employee may have been harmed by a pesticide. Therefore, EPA has
decided to retain the requirement for the pesticide application
information to be displayed at a place on the establishment where
workers and handlers are likely to pass by or congregate and has added
the requirement that the SDS must also be displayed at that location.
In addition, in the final rule, workers and handlers and their
designated representative may request either a copy of or access to the
pesticide-specific information that was required to be displayed while
the worker or handler was employed on the

establishment. The records of application and SDSs must be retained for
two years after the application. Access to the SDSs after the display
period will afford workers and handlers information about the
pesticides they may have been exposed to, and the hazards they may
present.
    EPA recognizes, however, that there can be difficulties in
complying with the central display requirement. In response to comments
about the difficulty of keeping accurate information posted, EPA has
attempted to simplify the central display requirement by changing the
required time frame for posting the application-specific information
(see Unit VII.D.). EPA expects this modification to the requirement for
the timing to post the application information will reduce the burden
on employers, while providing employees with ready access to accurate
information. In response to the comments about the difficulty of
maintaining a legible central display when it is subject to weather
conditions, EPA notes that the central display requirement does not
mandate that employers post the information outdoors. The information
must be displayed ``where workers and handlers are likely to pass by
and congregate and where it can be readily seen and read'' and workers
and handlers must be able to access the information at all times during
work hours. This does not preclude the central display from being
maintained in a location sheltered from weather conditions, such as a
bathroom, break area, or changing area, as long as the requirements of
this section are met.
    EPA has been convinced by comments in support to retain the option
for a designated representative to access hazard information
(application information and SDS) on behalf of a worker or handler. EPA
agrees that including in the rule a requirement, based on OSHA's rule
at 29 CFR 1910.1020, for employers to provide the information to a
representative who has been designated to act on the behalf of the
worker or handler would give workers and handlers more access to
information related to pesticides used in their workplace. Also, EPA is
aware that California and Texas regulations include requirements for
employee representatives' to be given access to hazard information for
farmworkers, and comments from the Texas Department of Agriculture
encouraged EPA to require the designation in writing and to limit
access to records to the retention timeframe of two years. EPA is
unaware of issues related to worker representatives in those states.
    In response to the many comments opposing the establishment of the
authorized or designated representative based on concerns for the
potential for anti-chemical activists fraudulently acquiring records,
the final rule includes a requirement for the representative to provide
to the employer documentation (written authorization) signed by the
worker or handler that clearly designates that person to act as his or
her designated representative. The information that can be obtained is
limited to the application and hazard information that is required by
Sec.  170.311(b) of the final rule that was required to be displayed
while the worker or handler was on the establishment, and for the dates
applicable to the worker's or handler's dates of employment on the
establishment. The employer must provide the information regardless of
the worker's or handler's employment status on that establishment at
the time of the request.
    EPA was convinced by comments about the need for the pesticide
specific information by medical personnel treating workers or handlers
who may have been exposed to pesticides on the establishment, and has
added a requirement that employers promptly provide the information to
the requesting medical personnel or persons they supervise. The
information would help ensure that the medical considerations would
include the possibility that a pesticide exposure was involved in the
worker's or handler's illness.

B. Pesticide-Specific Hazard Communication Materials--General

    1. Current rule and proposal. The existing WPS requires employers
to provide workers and handlers with specific pesticide application
information, but not pesticide-specific hazard information on the
pesticides they may be exposed to in the workplace.
    EPA proposed to require employers to provide workers and handlers
with access to the SDSs and pesticide labeling for products that have
been applied on the establishment and to which workers and handlers may
be exposed, in addition to the pesticide application information
already required to be made available.
    2. Final rule. EPA has finalized the requirement for agricultural
employers to display at a central location pesticide application
information and SDSs for pesticide products used on the establishment
(referred to as ``pesticide application and hazard information'' in the
final rule). EPA has not finalized the proposal to require employers to
provide access to pesticide labeling. The final regulatory text for
this requirement is available at 40 CFR 170.311(b).
    3. Comments and responses.
    Comments on providing safety data sheets and pesticide labeling.
EPA received many comments in favor of the proposed requirement.
Although many farmworker advocacy organizations expressed support for a
requirement that employers maintain both labeling and SDS and make them
available to workers and handlers, few discussed the merits or
drawbacks. Many farmworker advocacy organizations, public health
organizations and academics, a grower organization and others supported
a requirement to maintain and provide SDSs. Some of these commenters
indicated that the information on a SDS would be helpful for the
correct diagnosis and treatment of pesticide-related illnesses.
Farmworker advocacy organizations explained that workers want more
information on what pesticides are used and what they are exposed to,
along with possible side effects. On the other hand, a few grower
organizations, a farm bureau, a pesticide manufacturer organization and
a couple of states were against a requirement to provide SDSs. These
commenters argued that EPA had not made a case strong enough to justify
why workers need SDSs. They also opposed display of SDSs on the grounds
that while the pesticide product label poses legally enforceable
requirements on users, SDSs do not.
    Some farmworker advocacy organizations, public health
organizations, a grower organization, a farm bureau and others thought
it would not be much of a burden on agricultural employers to acquire
the SDSs of pesticide products because they are easily available online
or can be requested from the pesticide manufacturer or distributor. One
farmworker advocacy organization gave the Washington State Employer
Hazard Communication rule (EHC rule) as an example of a requirement for
employers to make SDSs available to employees that is feasible. http://www.lni.wa.gov/IPUB/413-012-000.pdf. The Washington State EHC rule
applies to employers with one or more employees who either handle or
are potentially exposed to hazardous chemicals, including pesticides,
in their workplace. It requires employers to make SDSs for each
chemical that employees may encounter readily accessible and easily
obtained without delay during each work shift, and to ensure that
employees traveling between workplaces during a work shift can
immediately obtain the

SDS in an emergency. In contrast, a couple of grower associations
stated that it is overly burdensome for agricultural employers to get
SDSs. One state thought it would be difficult for employers to locate
the correct SDS for pesticide products. They also noted that small
businesses and private applicators will have the most difficulty since
they are not already accustomed to keeping SDSs.
    EPA received some comments both for and against providing pesticide
product labeling. Many farmworker advocacy groups supported a
requirement for the employer to provide the labeling. These commenters
maintained that workers and handlers want more information on chemicals
to which they may be exposed. On the other hand, farm bureaus, growers
and grower organizations and states opposed a requirement to provide
the labeling. These commenters expressed concern that EPA is expanding
its mandate by requiring agricultural employers to provide the product
``labeling'' when it should be limited only to the WPS portions of the
``label.'' These commenters argued that an agricultural employer could
easily violate this requirement by not having the most current or
correct version of the labeling, such as a specimen or technical label.
    EPA Response. After consideration of the comments, EPA remains
convinced that access to SDSs offers significant health and safety
benefits to workers and handlers. SDSs contain information that is not
generally included in pesticide labeling regarding chronic,
developmental, and reproductive toxicity that can be valuable to
exposed and potentially exposed workers, and to medical personnel and
others who provide treatment to an ill or injured person. Moreover,
given the ubiquity of chemicals subject to the OSHA Hazard
Communication Standard that mandates the development and distribution
of SDSs, it is likely that many health care professionals are more
familiar with SDSs than pesticide labeling. Requiring the SDS as part
of the central display facilitates a quicker identification of the
pesticide product used in case of an incident and may assist in
diagnosis. The SDS contains information about symptoms expected in a
person exposed to the chemical (immediate, delayed and chronic effects)
as well as recommended treatment, whereas the label may not include
detailed information on symptoms or treatment. EPA recognizes that
state pesticide regulatory agencies do not review, approve, or take
enforcement action based on the information in SDSs. However, comments
from worker advocates indicate that workers and handlers want to have
more information on health effects, which is available on SDSs and
generally not available on the pesticide labeling. OSHA is requiring
that all SDSs be in a standard format, making it easier to locate
health information (Ref. 17). Accordingly, EPA concludes that a
requirement to post SDSs is an effective way to communicate pesticide
hazard information important to workers and handlers. EPA notes that
under the final rule workers and handlers will learn during pesticide
safety training about SDSs, the information they contain, and their
availability at central display locations. This addition to the
training will further reinforce workers' and handlers' awareness and
potential use of SDSs.
    EPA is persuaded that access to SDSs is not a significant obstacle
to requiring agricultural employers to keep and display SDSs for
pesticide products used on the establishment. Agricultural employers
can obtain SDSs from the distributor of the pesticide, online, or upon
request from the product manufacturer. For example, employers in
industries other than agriculture--including retailers and wholesalers
of agricultural chemicals--are required by the OSHA Hazard
Communication Standard to make available SDSs to their employees.
    Upon consideration of the comments, EPA has decided not to require
agricultural employers include the pesticide product label or labeling
as part of the central display requirement. EPA recognizes the burden
on employers to provide both the SDS and label or labeling in addition
to the pesticide application information. As noted previously, the SDS
contains the health-related information requested in comments by worker
advocates, and that would be most useful to persons providing treatment
to those who may have been exposed to pesticides. EPA agrees that if
necessary, the labeling for a product used for a specific application
can be located using the application-specific information that
employers are also required to post. See Unit XVIII.A. for a complete
discussion of comments related to labels and labeling.
    Comments on the extent of the requirement. EPA received comments
both to narrow and to expand the scope of the proposal requiring
employers to maintain SDSs and make them available to employees. Among
the suggestions to narrow the scope of the proposal, one state
suggested EPA keep a central repository of SDSs for agricultural
employers to access and require employers to keep the SDS only while
the associated pesticide product remains on the establishment.
Farmworker advocacy organizations and public health organizations
recommended expanding the proposed requirement to a full Hazard
Communication Standard as required by the Washington State ECHC for all
hazardous chemicals, which requires employers to develop a written
Hazard Communication program, maintain availability and access to SDSs,
provide information and training on hazards in the workplace, translate
certain documents upon request, and keep and provide access to exposure
records for at least 30 years.
    Many farmworker advocacy organizations suggested that EPA require
SDSs to be available in multiple languages and provided two examples of
similar requirements. First, one farmworker advocacy organization cited
the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C.
1801, et seq.), administered by the DOL, which requires written
information on the terms of employment to be provided in English,
Spanish or other language common to workers. Second, one farmworker
advocacy organization claimed that in Washington State, agricultural
employers are required to provide translated documents if requested.
Farmworker advocacy organizations asserted that it would be easy to
translate SDSs because of the standard format required by OSHA's
adoption of the Globally Harmonized System of Classification and
Labeling of Chemicals. One pesticide manufacturer organization was
opposed to translating the SDS because of the many indigenous languages
present among workers.
    EPA Response. After reviewing the comments, EPA has decided on an
approach that will provide workers and handlers with more information
about the potential health effects associated with the pesticides to
which they may be exposed without overly burdening agricultural
employers. Obtaining the SDSs for products used on the establishment
should not be overly burdensome to employers; SDSs are available from
pesticide dealers and the internet. An EPA-managed repository of the
SDSs of all WPS pesticides would not significantly improve access and
would be a significant burden for EPA because of the number of
pesticides included. Stakeholders such as grower organizations are free
to voluntarily develop SDS repositories with assistance from members.
Voluntary programs of this sort would involve limited subsets of all
WPS-scope pesticide products and could possibly

be accomplished within a short period in comparison to a national,
full-scale repository program.
    EPA has decided not to reduce the amount of time the SDS must be
available. The cost of retaining the SDS, once obtained, is negligible.
Employees and medical personnel could benefit from access to the health
effects information in the SDS in case of symptoms that develop
sometime after the application has been completed.
    EPA disagrees with commenters' request to adopt a full hazard
communication proposal as required by the Washington State ECHC for all
hazardous chemicals. The full set of the WPS requirements in the final
rule provide protections similar to those provided to workers in other
industries under OSHA's Hazard Communication Standard program, while
recognizing differences between agriculture and other industries. As
discussed in the Agency's 1992 proposed rule on the Worker Protection
Standard; Hazard Information (Ref. 18), in response to numerous
concerns about potential overlap or conflict between EPA's July 1988
proposed WPS (Ref. 18) and OSHA's August 1988 proposed Hazard
Communications Standard (Ref. 19), EPA committed to work with OSHA to
minimize confusion and avoid duplication between the two agencies'
requirements. Rather than require agricultural establishments that may
not routinely use the same pesticides to develop and maintain a written
Hazard Communication Standard plan listing all chemicals that will be
used in the workplace, EPA's approach, in both the 1992 proposed rule
on Hazard Information (Ref. 20) and this final rule, has been to
identify specific requirements, tailored to fit the context of
pesticide use in agricultural production that serve a purpose similar
to the Hazard Communication Standard requirements in other industries.
These requirements include pesticide safety training, display of basic
pesticide safety information, notification or posting of treated areas,
and access to information about pesticides used in the workplace at a
central location. EPA notes that the WPS does not exempt employers with
10 or fewer employees, unlike OSHA's Hazard Communication Standard. EPA
also notes that the cost of a developing and implementing a full hazard
communication program specific to each establishment could be
burdensome to small agricultural establishments.
    Lastly, although EPA is not requiring that SDSs be translated at
this time, EPA encourages and supports employers to display this
information in such a way that workers and handlers can understand,
including translation. EPA is open to conferring with stakeholders on
the need for translation and identifying content to be translated, if
necessary. EPA notes that some pesticide manufacturers already make
pesticide product SDSs available in Spanish and EPA encourages
employers to display Spanish SDSs where available and appropriate.
    Comments on other forms of hazard communications materials. Many
farmworker advocacy organizations suggested EPA develop and provide
crop sheets, booklets, or other types of materials that describe the
health effects of pesticides, either in lieu of or in addition to the
SDS. These commenters identified a need for a pictorial booklet
designed for low-literacy audiences on the health effects from exposure
to pesticides, based on the information in SDSs. One state suggested
that a small booklet with basic pesticide exposure symptoms by classes
of chemicals or modes of action, described in layman's terms would be
more helpful to workers than SDSs. One pesticide manufacturer
organization opposed the development of crop sheets.
    EPA Response. EPA agrees with the basic concept of providing
workers and handlers with information on the health effects of
pesticides for workers and handlers in a manner they can understand.
Pesticide safety training and the pesticide information display provide
workers and handlers with information on the symptoms that may be
associated with exposure to different pesticides. If workers or
handlers need information about the specific effects of a pesticide
with which they have worked, they can consult the SDS. However, EPA
does not agree with the commenters' request to require crop sheets or
similar materials because, in EPA's judgment, the benefits of such a
requirement would not justify the substantial costs associated with
creating, updating, translating and distributing materials for every
crop, growing region, and WPS-scope pesticide product. As noted in the
proposal for this rule, crop sheets and other types of material have
been developed in the past, with very limited success. For example, one
state's crop sheet program proved to be expensive and labor intensive,
and the crop sheets were left as litter in the fields, unused. SDSs
already contain information about the potential health effects (acute,
delayed, and chronic) associated with use of pesticide products and
will be readily available in a uniform format, including provide hazard
information in words and in pictograms.
    Comments on inconsistencies in information between labels and SDSs.
A pesticide manufacturer organization opposed any requirement by EPA to
provide SDSs to worker and handlers upon request. This commenter
expressed concern about the confusion that may be caused by
inconsistencies between pesticide labels and SDSs. OSHA requires
manufacturers to use GHS terms and chemical classification criteria on
SDSs whereas EPA does not require their use on pesticide product
labels. As a result, SDSs and pesticide product labels could have
different hazard statements, pictograms and signal words.
    EPA Response. EPA has not finalized the proposed requirement for
the employer to make available pesticide product labeling upon request.
Instead, the final rule requires the employer to display only pesticide
application information and SDSs for pesticide products used on the
establishment. The SDS provides succinct information about the known
health hazards of the product that typically is not presented as part
of the product label or labeling. Such information can be invaluable to
medical professionals for the diagnosis and treatment of certain
pesticide-related illnesses and injuries. Because EPA is not requiring
the employer to display the labeling, EPA does not expect issues with a
perception of conflict between labeling and SDSs. The persons who wear
PPE and have access to the label are pesticide handlers who receive
more thorough training than workers. If pesticide handlers encounter
conflicting information on labeling and SDSs, such as the PPE
identified, they should know they must follow the instructions on the
pesticide labeling, as they are trained to do. For information on
OSHA's adoption of the Globally Harmonized System of Classification and
Labeling of Chemicals for SDSs and the pesticide product labeling, see
EPA's Pesticide Registration (PR) Notice 2012-1, ``Material Safety Data
Sheets as Pesticide Labeling'' (http://www2.epa.gov/sites/production/files/2014-04/documents/pr2012-1.pdf).

C. Pesticide Application Information--Content of Pesticide Application
Information

    1. Current rule and proposal. In the existing WPS, the agricultural
employer must record and display the following information about each
pesticide application: The location and description of the area to be
treated, the product name, EPA registration number and active
ingredient(s) of the pesticide product, time and date the pesticide is
to be applied, and REI for the pesticide.

    EPA proposed to require the agricultural employer to record and
make available, in addition to the information required in the existing
regulation: The specific crop or site treated, the start and end dates
and times of the application, and the end date and duration of the REI.
    2. Final rule. EPA has finalized the proposed requirements for the
contents of pesticide application information, with one change. The
final rule requires agricultural employers to record and display the
following pesticide application information: Product name, EPA
registration number, and active ingredient(s) of the pesticide product
applied; the crop or site treated and the location and description of
the treated area; the date(s) and times the application started and
ended; and the duration of the REI. The final rule does not require the
employer to record the end date of the REI. The final regulatory text
for this requirement is available at 40 CFR 170.311(b)(1)(ii)-(v).
    The agricultural employer must record and display the information
about the crop or site treated and the location of the treated area.
EPA encourages employers to display the information in such a way that
workers and handlers can understand and distinguish each treated area
from all other areas on the establishment; in some cases, a map or
diagram may be appropriate.
    EPA encourages and supports the provision and display of the
application information so it is most useful to workers and handlers on
the establishment. One such option is to separate the information about
treated areas, so those areas where an REI is in effect are distinct
from those where the REI has expired, allowing the viewer to more
quickly identify areas where entry is restricted. Similarly, maps
highlighting areas where an REI is in effect and those where the REI
has expired could also present the information in a user friendly,
pictorial manner. EPA also sees an opportunity for employers to provide
information of this nature through texting and other electronic means
to their employees, and encourages such communication, in addition to
the requirement for maintaining this information as part of the central
display.
    3. Comments and responses.
    Comments. Many farmworker advocacy organizations, a few pesticide
regulatory agencies, a grower organization and others supported the
proposed expansion of the content requirement for pesticide application
information records. According to these commenters, it would be a small
burden to require additional application information, such as crops
treated, that could help workers proactively avoid exposure to
pesticides. One state asked EPA to parallel the information required by
USDA to avoid confusion, while another suggested that more information
be required in addition to the information proposed to assist state
pesticide regulatory personnel in determining compliance.
    Several farm bureaus, one grower organization and several states
opposed any changes. These commenters asserted that the content
required by the existing regulation is already too burdensome. Several
farm bureaus opposed EPA's proposed expansion of the content of records
stating that EPA had not justified it with quantifiable benefits. A few
states, two farmworker advocacy organizations and other commenters
suggested various combinations of records limited to three or fewer
pieces of information. One grower organization argued that only a
record of the active ingredient is needed for medical treatment, while
another questioned how a record of the REI benefits the health and
safety of workers. Lastly, these commenters maintained that
recordkeeping of general use pesticide applications is not required by
law, the proposed requirement is duplicative of state and federal
requirements, and commercial applicators already keep records.
    EPA Response. EPA agrees with the comments that adding more
information to application records is a small burden compared to the
benefits of determining compliance and giving workers and handlers
information to verify the location of treated areas. The crop or site
treated, start and end times and date(s) of the application, and
duration of the REI are important for protecting worker and handlers
and useful for determining compliance. Agricultural employers,
compliance officers, workers, handlers and others will be able to
calculate the end date and time of the REI by having the end date and
time of the application and the duration of the REI included in the
pesticide application information. The combined information will also
help workers and handlers identify the areas where an REI is in effect.
EPA did not propose requiring more information because the proposed
content of application records fits the needs of stakeholders to
determine compliance and to give workers and handlers the ability to
discern which area had been treated. An arbitrary limit of only three
or fewer pieces of information may not achieve the same benefits.
    The WPS requires agricultural employers to maintain records because
those records provide information that is important for the protection
of their employees. While a significant number of agricultural
employers may also be certified as private pesticide applicators, their
status as private applicators does not exempt them from the WPS
recordkeeping required of agricultural employers. The WPS does not
require private applicators to maintain records on account of their
status as private applicators.
    The risks of concern under the WPS include both RUPs and non-RUPs,
while certification requirements at the federal level, including
recordkeeping, only apply to those using RUPs. Neither the USDA
application record requirements for private applicators of RUPs, nor
state application record requirements for commercial applicators fully
cover the information needed under the WPS for the protection of
workers and handlers. The USDA required information does not include
the active ingredients, duration of the REI or the start and end dates
and times of applications, nor does it apply to applications of non-RUP
pesticides. Commercial applicators would have to record the information
required by the state pesticide regulatory agency, which must at a
minimum include the kinds, amounts, uses, dates and places of RUP
applications. 40 CFR 171.7(b)(1)(iii)(E). Also, state pesticide
regulatory agencies may or may not require records of non-RUP
applications. Therefore, it is unlikely that all states' commercial
applicator RUP application records will match exactly the record
requirements of the WPS. Because the records required to be maintained
by USDA and the states do not include all of the information needed for
protection of workers and handlers, it is appropriate to require such
recordkeeping through the WPS.

D. Pesticide Application and Hazard Information--When Information Must
Be Made Available

    1. Current rule and proposal. In the existing rule, the
agricultural employer must record and display the pesticide application
information before the application takes place, if workers or handlers
are present on the establishment before the application begins.
Otherwise, the information must be recorded and displayed at the
beginning of any worker's or handler's first work period. If the
employer posts warning signs for a treated area, the pesticide
application information must be displayed at the same time as, or
earlier than, the warning signs. The

information must remain on display when workers are on the
establishment and from the time of the application until 30 days after
the REI expires or until 30 days after the application end date if the
REI is 0 hours (or in the rare instance where a label might not have an
REI).
    EPA proposed to require the agricultural employer to provide the
pesticide application information, the SDS and labeling upon request
during normal work hours, no later than the end of the day.
    2. Final rule. The final rule requires the agricultural employer to
display the pesticide application information and the SDS (pesticide
application and hazard information) at the central display no later
than 24 hours after the application is complete. Also, the employer
must display the pesticide application and hazard information for each
treated area before any worker is permitted to enter the treated area,
even if the applicable REI has expired. If workers will be in the area,
they must be notified of the application before it starts, by posted
signs or orally, and warned not to enter the area. The application
information and SDS must remain posted for 30 days from the expiration
date of the REI or from the application end date if the REI is 0 hours
(or in the rare instance where a label might not have an REI). EPA did
not finalize the proposed requirement for the agricultural employer to
make available the pesticide application information and the SDS no
later than the end of the day of the application. The final rule
eliminates the existing requirement to display the application
information before or at the same time a warning sign is posted at a
treated area. The final regulatory text for this requirement is
available at 40 CFR 170.311(b)(5) and 40 CFR 170.309(l).
    3. Comments and responses.
    Comments. Several farmworker advocacy organizations and one public
health organization requested that EPA keep the existing requirement to
make information available before the application so workers and
handlers would be able to connect symptoms to an application if the
exposure occurred during the application. While many farmworker
advocacy groups supported the display of information before an
application, some expressed concern about the accuracy of the pesticide
application information displayed when information about the
application changed from what was planned and the displayed information
was not updated. One farm bureau and one pesticide manufacturer
organization requested that EPA require employers to make the
information available after the application.
    EPA Response. EPA agrees with the commenters that it is important
to provide workers and handlers with accurate information about
pesticide applications. Displaying the information after the
application is complete benefits workers and handlers because they can
be confident the information is correct, and the employer no longer has
to change the information when application plans change. Under the
final rule, EPA expects all displays of pesticide application
information will contain accurate information. The final rule retains
the requirement for workers to receive oral notification, or to see
posted warning signs, or both before an application begins, informing
them to stay out of an area before an application begins.

E. Pesticide Application and Hazard Information--Retention of Records

    1. Current rule and proposal. The existing WPS requires employers
to maintain pesticide application information at the central display
from the time of application until 30 days after the REI expires. There
is no requirement for the employer to retain the pesticide application
information in any form after that time.
    EPA proposed to require employers to retain, for each application
of a WPS-covered pesticide, the pesticide application information,
labeling and SDS, for two years from the date of the end of the REI for
each product applied.
    2. Final rule. The final rule requires agricultural employers to
retain the pesticide application information and the SDS for the
product used (pesticide application and hazard information) for two
years from the date of expiration of the REI applicable to the
application conducted. EPA has not included the proposed requirement
for the employer to retain the pesticide labeling in the final rule.
The final regulatory text for this requirement is available at 40 CFR
170.311(b)(6).
    3. Comments and responses.
    Comments. EPA received comments supporting a two year recordkeeping
requirement from several states and one grower organization. One state
commented that it did not have a need for the information after one
year, but that two years was not much more of a burden. Many farmworker
advocacy and public health organizations requested EPA to require
recordkeeping ranging from more than two years to as many as 30 years
to help with the diagnosis of chronic health effects that could be
related to pesticide exposure.
    Commenters from some farm bureaus, grower associations, and Small
Business Administration's Office of Advocacy opposed a two-year
recordkeeping requirement, in part because they asserted that EPA could
not show quantifiable benefits. These commenters argued it would be a
paperwork exercise without health and safety benefits driven based on
the needs of enforcement, and instead should be replaced with a
minimal, non-intrusive requirement. One commenter suggested requiring
employers to keep records only during the harvest season.
    EPA Response. EPA has concluded that a two-year recordkeeping
requirement would be helpful for health diagnoses and investigation
purposes. EPA considered requiring the retention of records for five
years and asked state pesticide regulatory agencies about their needs
for access to pesticide application records. These enforcement agencies
informed EPA that they rarely need to rely on records beyond the two-
year timeframe.
    EPA notes that this recordkeeping requirement does not necessarily
impose a duplicative burden on agricultural employers to obtain
pesticide application information and SDSs twice--once to satisfy the
central display requirement and once to satisfy the recordkeeping
requirement. Agricultural employers may satisfy this recordkeeping
requirement by the removal of the pesticide application information and
SDS from the central display 31 days from the expiration of the REI (or
from the end of the pesticide application if there is no REI) and
retaining those records for two years from the date of application. EPA
recognizes that some employers may choose to maintain electronic copies
of pesticide application records and the product SDS. The WPS does not
specify that records must be kept on paper, so an employer can maintain
records electronically as long as the employer satisfies all related
requirements of the WPS, such as being able to quickly access and
provide the required materials in the event of a pesticide emergency.

F. Costs and Benefits

    1. Costs. EPA estimates the cost for these final hazard
communication requirements, implemented together, to be $9.3 million
annually, or $25 annually per establishment (Ref. 1). The cost of the
hazard communication requirements differs from the proposed
requirements because EPA is maintaining and revising the existing
central display requirement, allowing the agricultural employer to
display

information after the application negating the need to update
information later, and requiring the agricultural employer to display
and keep records of the pesticide application information and SDS but
not the labeling.
    2. Benefits. Although EPA cannot quantify benefits specific to any
of these requirements, the qualitative benefits from workers' and
handlers' ready access to accurate information about areas under an
REI, pesticides in use, and potential health impacts from those
pesticides convinced EPA to adopt these requirements Ref. 1). The final
rule retains the central posting requirement, and allows the employer
some flexibility in posting the information so accurate information is
displayed.

VIII. Information Exchange Between Handler and Agricultural Employers

    1. Current rule and proposal. The existing WPS requires handler and
agricultural employers to exchange information about pesticide
applications. When handlers are employed by an employer other than the
agricultural employer, the existing WPS requires the agricultural
employer to provide the handler employer with information about treated
areas on the agricultural establishment the handler may be in (or may
walk within one-quarter mile of), including specific location and
description of any such areas and restrictions on entering those areas.
The existing WPS requires handler employers to provide agricultural
employers with the following information prior to making a pesticide
application on the agricultural establishment:
     Location and description of the area to be
treated.
     Time and date of application.
     Product name, active ingredient(s), and EPA
registration number for the product.
     REI for pesticide(s) applied.
     Whether posted notification, oral notification,
or both are required.
     Any other product-specific requirements on the
product labeling concerning protection of workers or other persons
during or after application.
    The agricultural employer must display this information for workers
and handlers employed by the establishment at the central location. The
current WPS requires handler employers to inform agricultural employers
before the application takes place when there will be changes to
scheduled pesticide applications, such as changes to scheduled
pesticide application times, locations, and subsequent REIs.
    In addition to maintaining the current requirements, EPA proposed
to require the agricultural employer to also provide to the handler
employer information about the location of ``entry-restricted areas''
on the establishment. EPA also proposed to require the handler employer
to communicate to the agricultural employer the start and end times of
pesticide applications and the end date of the REI. EPA also proposed
to relax existing WPS requirements by requiring handler employers to
provide information about any changes to pesticide application plans to
the agricultural employer within two hours of the end of the
application rather than before the application. Changes to the
estimated application end time of less than one hour would not require
notification.
    Finally, in the proposal, EPA unintentionally omitted the provision
in the existing WPS that the agricultural employer need not provide
information to the handler employer about treated areas if the handler
will not be in or walk within one-quarter mile of those treated areas.
    2. Final Rule. Information exchange from agricultural employer to
handler employer. The final rule requires the agricultural employer to
notify the handler employer of any treated areas where an REI is in
effect and any restrictions on entering those areas. EPA has not
included in the final rule a requirement for the agricultural employer
to communicate to the handler employer information about the location
of ``entry-restricted areas'' on the establishment because of the
changes to the requirement concerning entry-restricted areas, as
discussed in Unit IX.B. EPA has also revised the final rule to correct
the unintentional omission of the existing rule's exception that the
agricultural employer need not provide information to the commercial
handler employer about treated areas if the handler will not be in, or
walk within one-quarter mile of those areas. The final regulatory text
for these requirements is available at 40 CFR 170.309(k).
    Information exchange from handler employer to agricultural
employer. EPA has finalized the proposal to expand and clarify the
information the pesticide handler employer must provide to the
agricultural employer with minor modifications. The final rule does not
require the handler employer to convey the end date of the REI to the
agricultural employer. The final regulatory text for these requirements
is available at 40 CFR 170.313(i).
    Timing of exchange of information from handler employer to
agricultural employer. EPA has modified the final rule to specify those
situations where the handler employer must notify the agricultural
employer of changes to the application information before the
application takes place. EPA has also modified the rule to specify the
timing for notifying agricultural employers if the notification is not
required before the application. The final regulatory text for these
requirements is available at 40 CFR 170.313(j).
    3. Comments and responses.
    Comments. Many states and a few farmworker advocacy organizations
expressed general support for the proposal to expand the information to
be exchanged. These commenters agreed the additional information would
help agricultural employers protect workers, reduce pesticide-related
illnesses and exposure from drift during applications. Many farm
bureaus, states, applicators and applicator associations and an
agricultural organization generally disagreed with the proposed
expansion. Some of these commenters argued that the proposed
requirements are unrealistic and impractical given the dynamics and
unpredictable factors involved in a farming operation, such as pest
infestations and weather changes. In addition, they argued that the
proposal would require multiple parties to exchange information,
resulting in the potential for miscommunication. Some commenters also
opposed the proposed expansion of information exchange because EPA did
not provide documented justification. Crop consultants, an applicator
association and a farm bureau indicated the proposal is unnecessary
because close coordination of information already exists between
applicators, handlers, crop consultants, and growers. Furthermore, they
stated that not only are handlers already required to keep workers out
of areas during applications, applications are often scheduled to take
place when workers are absent. A few states, farm bureaus and a crop
consultant opposed EPA's proposal to add to the information the
agricultural employer is required to give the handler employer. One
crop consultant indicated the information is already on purchase orders
or sales agreements between growers and commercial handlers or their
employers. One state requested that EPA omit the application start time
because it is not used to calculate the REI.
    EPA's proposal on the timing to provide notice of a change in
application plans elicited many comments. EPA proposed that this

notice be provided within 2 hours of the end of the application, unless
the only change was a difference of less than 1 hour between scheduled
and actual application times. One state and several farmworker advocacy
organizations endorsed the requirement because of the ease of providing
the information in the timeframe by relying on existing electronic
capabilities. One farmworker advocacy organization urged EPA to require
that changes be communicated before the start of the application in
order to enable employers to be able to keep workers out of the treated
area.
    To prevent confusion about scheduled and actual start and end times
and to avoid miscommunication, one state suggested that EPA require the
handler employer to inform the agricultural employer of changes at any
time on the application day. Two aerial applicators explained that a
two-hour window for notification of change sounds reasonable on paper,
but not in practice. During long workdays of the busy season,
applicators would have to make phone calls in the middle of the night
and send text messages, usually from the airplane during or in between
applications. Also, it can take more than one day to complete an
application because of factors such as the weather, a change in wind
direction, or verifying the presence of bystanders. These situations
could require the handler to give several updates to multiple parties,
resulting in a greater chance for errors and noncompliance.
    One commenter requested that EPA require notification of a change
within 24 hours from the end of the actual application, while another
advised EPA to require notification if the actual application
completion time is two or more hours later than the scheduled
application time. Several farm bureaus, a pesticide applicator and a
crop consultant organization advised EPA to require that changes in
application plans be communicated: Before the scheduled date and times,
if the application is going to be made earlier than expected, or before
the end of the REI as scheduled, if the application is made later than
expected. One aerial applicator stated that if an REI is greater than
24 hours, EPA should require an information update before the scheduled
REI expires or within 24 hours of the scheduled application time.
Another aerial applicator recommended the handler employer and handler
give the agricultural employer a window of estimated start and
completion date(s) and time(s). In this situation, the handler would
not make the application outside of that window without the approval of
the agricultural employer, who in turn must keep workers out of the
area during that time, unless notified of a change in the application
start and completion date(s) and time(s).
    Many commenters noted the absence of the existing provision that
the agricultural employer need not provide information to the
commercial handler employer if the handler will not be in or walk
within one-quarter mile of an area that may be treated with a pesticide
or under an REI, and noted this could result in the need to provide
excessive, unnecessary information.
    EPA Response. The information exchange requirements ensure that
agricultural employers and handler employers have the information they
need to comply with the requirements for notifying workers and handlers
of risks associated with pesticide applications and treated areas
(i.e., agricultural employers are required to notify workers of treated
areas and display pesticide application and hazard information at the
central location on the establishment for workers and handlers to see,
and handler employers must inform their handler employees of treated
areas on the agricultural establishment near where they work).
    EPA has been convinced not to adopt the proposed change to expand
the information required to be communicated by the agricultural
employer to the handler employer to include information about the
location of ``entry-restricted areas'' on the establishment. Requiring
employers to exchange this information would not be practical given
other changes in the rule related to the ``entry-restricted areas''
(replaced by ``application exclusion zones'' in the final rule) that
make the tracking of such areas infeasible. EPA also agrees that it is
not necessary for the handler employer to calculate the end time of the
REI for each application and include it in the information conveyed to
the agricultural employer. The requirement to provide this piece of
information has been deleted from the final rule.
    Most of the other information required to be exchanged by the final
rule is already required to be exchanged by the existing rule, and
therefore EPA does not agree that this requirement presents a
substantially increased or unreasonable burden. Agricultural and
handler employers are currently required to exchange information so
agricultural employers may provide notification of application and
treated areas under an REI to workers and handlers. Without this
information transfer, accurate and timely notification would be
difficult to achieve, exposing workers and handlers to potential
exposure to pesticides. It is critical that the agricultural employer
know the start times of applications in order to be able to notify
workers and handlers (when they are on the establishment) so they may
avoid treated areas. EPA recognizes that exchange of the expanded
information may already occur on some establishments and expects those
entities to experience less burden than in situations where such
coordination has not already developed.
    EPA recognizes that much of the information required may be
available on sales agreements and purchase orders between commercial
pesticide handlers and agricultural employers, which will reduce the
burden for employers to gather it; however, without inclusion of the
information exchange requirements in the WPS there is no assurance of
timely exchange of all of the necessary information.
    EPA considered the range of options suggested for the timing of the
information exchange. Several of the recommendations for notification
of application changes from the commercial pesticide handler employer
to the agricultural employer can be accommodated under the final rule.
For example, the applicator and agricultural employer can agree on a
window of the estimated start and end times, with the understanding
that the application would be made during that period, unless the two
communicate and agree to a different timeframe. This would allow the
agricultural employer to notify workers of the treatment, keep them
from the area, and create and post the application information,
satisfying the requirement.
    EPA did not identify any suggestions from commenters, apart from
those that would be covered by the final rule that would meet the needs
for agricultural employers to provide employees notification of the
application and inform them of treated areas under an REI, and to
record and display the pesticide application information. Agricultural
employers must have information about the start time of the application
before it begins to ensure they have the ability to notify workers of
the application before it commences. Agricultural employers must have
the end time of the application to notify workers that although the
application has ended, entry to the treated area remains prohibited
because an REI is in effect. Without these details being provided prior
to the application, agricultural employers are not able to fulfill
their responsibilities to protect workers.

    EPA notes that the method for notification of changes to
application information should be agreed upon between the handler
employer and the agricultural employer to ensure receipt, and can be
accomplished through electronic media, telephone, or other means. The
agricultural employer must receive the information in sufficient time
to record and display the information for workers and handlers.
    4. Costs and benefits. EPA has estimated the cost of the
information exchange requirements to be negligible because the existing
rule already requires handler employers and agricultural employers to
collect and exchange information. The changes in the final rule are
minor and offer flexibility for employers. The information the
agricultural employer must give the handler employer has been
clarified. EPA has made minor changes to the information the handler
employer must give the agricultural employer. The timing to notify the
agricultural employer of most changes to the information has remained
the same as the existing regulation, i.e., before the application
begins. In the final rule, two changes provide the handler employer
flexibility. If the product changes or the application is made later
than originally scheduled, the handler employer must notify the
agricultural employer within two hours of the end of the application.
If the only change was a difference of less than one hour between the
scheduled and actual application times, notification is not required.
    EPA expects these changes will ensure that the agricultural
employer provides workers and handlers with accurate application
information, which was problematic under the existing rule, and
maintains accurate application records. The information exchanged and
the timing of notification of changes of actual applications from
scheduled applications remains essentially unchanged. Although
notification can be given after the fact if a different pesticide
product is applied or the application is completed after it was
scheduled, this change does not make the WPS any less protective of
workers, handlers and others. The agricultural employer will still have
the essential information needed to know when and where to keep
workers, handlers and others out of areas to be treated during and
after treatment, and the revised information will be available in time
for proper medical treatment if needed. The cost of including
additional details is reasonable compared to the improved ability of
workers and handlers to identify areas where pesticides are being
applied or have recently been applied.

IX. Drift-Related Requirements

    The requirements discussed in this section are intended to decrease
the number of incidents in which workers and other persons are exposed
to pesticides through unintentional contact during application. Drift
is the off-site movement through the air of pesticide droplets or
particles originating from pesticides applied as liquids or dry
materials. Workers errantly in the area being treated may be directly
exposed to pesticides during application. In addition, bystanders (both
workers and non-workers) located outside a treated area may be exposed
when pesticide droplets or particles move outside the area being
treated through the air during and/or immediately after the pesticide
application. As used here, the term ``drift'' includes both of these
modes of exposure, but does not include off-site movement of pesticide-
imbedded soil-borne particles by wind or vapor drift through
volatilization of applied pesticide, although these are often
categorized as ``drift'' in other contexts. EPA has developed
methodologies for assessing the risks to bystanders from exposure to
pesticides from drift and also from volatilization, and addresses risks
of concern and other issues via the registration review process. The
purpose of the requirements discussed in this section is to prevent
workers and other persons from being exposed to pesticides by
unintentional contact during application. The term ``drift'' is used as
shorthand in this section to refer to unintentional exposure from both
direct exposures to workers in the area being treated and drift
exposures to workers and bystanders.

A. Overarching Performance Standard

    1. Current rule and proposal. The existing WPS includes two related
requirements that prohibit a pesticide from being applied in a way that
contacts workers or other persons. Agricultural products subject to the
WPS must have this statement on the label: ``Do not apply this product
in a way that will contact workers or other persons, either directly or
through drift. Only protected handlers may be in the area during
application.'' 40 CFR 156.206(a). Also, the existing WPS requires the
handler employer and the handler to assure that no pesticide is applied
so as to contact, either directly or through drift, any worker or other
person, other than an appropriately trained and equipped handler. These
requirements prohibit application in a way that contacts workers or
other persons both on and off the agricultural establishment where the
pesticide is being applied.
    EPA did not propose any changes to the label statement. EPA
proposed several minor wording changes to the WPS requirement for the
handler employer and the handler, but the impact of the proposed
requirement would be the same as under the existing WPS.
    2. Final rule. EPA has finalized the proposed changes to the
requirement for the handler employer and handler with a minor change.
The final rule changes the language from the proposed ``handler located
on the establishment'' to ``handler involved in the application.'' As
with the existing rule, the final rule prohibits contact to workers and
other persons regardless of whether or not they are on the agricultural
establishment. The final regulatory text for this requirement is
available at 40 CFR 170.505(a). There are no changes to the label
statement at 40 CFR 156.206(a).
    3. Comments and responses.
    Comments. Many commenters, including states and their
organizations, grower associations, farm bureaus and pesticide
manufacturer associations, stated that the existing two requirements
adequately protect workers and bystanders from exposure during
applications. These commenters opposed the other drift-related
requirements that EPA proposed (entry-restricted areas for farms and
forests and the requirement to suspend applications under certain
conditions) as unnecessary, asserting the proposed requirements do not
provide any additional protection.
    Many respondents from states and their organizations, grower
associations, farm bureaus and pesticide manufacturer associations
commented that EPA's risk assessments and pesticide labels include
conservative protections for applicators, handlers, workers and
bystanders. Some of these commenters argued that the existing
restrictions on the labels, including REIs and pesticide-specific
buffers, provide sufficient protection to workers and bystanders.
    Many respondents from all commenter types commented on incidents
where workers or bystanders reported being contacted by pesticides that
were being applied. Some of these incidents involve workers in the
areas where pesticides were applied and other incidents involve workers
or bystanders being exposed to pesticides that drifted off the target
site. Many of the commenters cited three broad studies that looked at
data from SENSOR-

Pesticides and California's Pesticide Illness Surveillance Program
(Refs. 10, 11 and 12). Other commenters cited specific incidents of
exposure from drift or workers in the area being treated being sprayed
directly. Some applicator and pesticide manufacturer associations cited
state data showing that there has been a decrease in drift complaints
over time, dropping from an average of 333 complaints per year
nationwide (from 1996 through 1998) to an average of 247 complaints per
year (from 2002 through 2004).
    EPA response. EPA disagrees with the assertion that the ``do not
contact'' requirements, along with the other protections on pesticide
labels, are by themselves sufficient to protect workers and bystanders
from being directly contacted by pesticides that are applied. First,
many commenters cited incidents where people were directly exposed to
pesticide applications, even if there was disagreement about how
regularly these types of incidents happen. Second, EPA's risk
assessments and registration decisions are based on the premise that
the WPS protections effectively prevent people (workers and bystanders)
from being sprayed directly (Ref. 13). In other words, incidents where
workers or bystanders are sprayed directly result in people being
exposed to pesticides in a way that is not considered in EPA's risk
assessments or registration decisions. These types of incidents are
misuse violations but they continue to occur, as described in the
following sections. Therefore, there is a need to supplement the
existing WPS protections to reduce exposures to workers and other
persons from being directly sprayed with pesticides.
    There is no one solution that can prevent all drift incidents and
it will take a comprehensive approach, including additional regulatory
requirements, education, outreach, and some common-sense voluntary
measures to further reduce the number of people who are directly
exposed to pesticide spray/applications. The additional regulatory
requirements include revised requirements for entry restrictions during
pesticide applications and for handlers to suspend applications in
certain circumstances. Common-sense voluntary measures include a grower
talking to his/her neighbors to let them know when pesticides are being
applied so the neighbors can keep workers and others away from the
boundary of adjacent establishments during that time, and participating
in voluntary communication programs such as Spray Safe (http://www.spraysafe.org/) and Drift Watch (https://driftwatch.org/). EPA
intends to include information about good management practices as well
as the regulatory requirements during outreach for implementation of
the final rule. It is also worth noting that EPA is working to assess
and mitigate any product-specific risks from exposure to pesticides
from drift and from volatilization within the registration review
process.

B. Entry Restrictions To Protect Workers and Other Persons During
Application

    1. Current rule and proposal. The existing WPS establishes entry-
restricted areas adjacent to treated areas that apply during pesticide
application for nurseries and greenhouses only. The existing rule
requires that the agricultural employer must not allow or direct any
person, other than an appropriately trained and equipped handler, to
enter or remain in the entry-restricted area during a pesticide
application in a nursery or greenhouse. The size of the entry-
restricted area depends on the type of product applied and the
application method. The entry restrictions for greenhouses also include
ventilation requirements. The existing entry restriction requirement
applies only within the boundaries of the agricultural establishment.
The existing provisions at 40 CFR 170.110 regarding entering entry-
restricted areas during application are different than the existing
provisions at 40 CFR 170.112 regarding entry into treated areas after
the application of a pesticide and before the REI specified on the
pesticide labeling has expired.
    EPA proposed to establish entry-restricted areas during pesticide
applications on farms and in forests, while slightly modifying the
requirement for entry-restricted areas for nurseries and greenhouses.
EPA proposed two types of entry restrictions: One for enclosed space
production, which would apply to greenhouses and other types of indoor
production operations (e.g., mushroom houses, hoop houses, polyhouses),
and one for outdoor production, which would apply to farms, forests and
nurseries. In addition, EPA proposed to define the entry-restricted
area as the area from which workers or other persons must be excluded
during and after the pesticide application.
    2. Final rule. In regard to enclosed space production (e.g.,
greenhouses, mushroom houses, hoop houses), EPA has finalized the
requirements for entry restrictions during pesticide applications with
several minor changes. For the most part, the final rule incorporates
the existing entry restriction and ventilation requirements for
greenhouses as the requirements for enclosed space production. The
final rule deletes the term ``entry-restricted area'' and adjusts the
descriptions of the application types to be consistent with the changes
to the description of application exclusion zones for outdoor
production. In addition, EPA changed the definition of ``enclosed space
production'' to clarify that it applies only to areas with non-porous
covering, so structures with a covering made of fencing or fabric to
provide shade on plants (no walls) such as shade houses, are not
considered enclosed spaces under the final rule. See the discussion of
definitions in Unit XVIII.C. of this document for more information
about the changes to this definition.
    In regard to outdoor production (e.g., farms, forests, nurseries,
shade houses), the final rule differs substantially from EPA's proposed
requirements. The final rule makes the following changes from the
proposal:
     Replacing the phrase ``entry-restricted area''
with ``application exclusion zone'' to make it more distinct from the
requirements regarding REIs. The final regulatory text for this
requirement is available at 40 CFR 170.405(a).
     Revising the corresponding definition to clarify
that the application exclusion zone exists only during (not after) a
pesticide application. The final regulatory text for this definition is
available at 40 CFR 170.305.
     Revising the corresponding definition and
regulatory description of an application exclusion zone so it is a
specified distance from the application equipment rather than from the
edge of the treated area, and clarifying that the application exclusion
zone moves with the application equipment. The final regulatory text
for this requirement is available at 40 CFR 170.405(a)(1).
     Revising some of the application methods in the
description of the application exclusion zone to reflect current
application methods and to differentiate the distances based on the
spray droplet size rather than pressure. The final regulatory text for
this requirement is available at 40 CFR 170.405(a)(1).
     Adding a provision to the regulatory text to
clarify that any labeling restrictions supersede the requirements of
the WPS, including those related to application exclusion zones. This
was discussed in the preamble of the proposed rule (Ref. 2 at 15490)
but was inadvertently left out of the proposed regulatory text. The
final regulatory text for this requirement is available at 40 CFR
170.303(c) and 170.317(a).
    3. Comments and responses.

    Comments--supporting the proposal or more stringent measures. Many
commenters, including farmworker advocacy organizations, public health
organizations, and a state, generally supported the proposed
requirement for entry-restricted areas. The commenters stated that the
proposed change should provide modest improvements in protecting
workers from pesticide drift during application if there is enough
training and education of applicators. One farmworker advocacy
organization described an incident where workers were in a field
topping tobacco at the same time a plant growth regulator with a 24-
hour REI was being applied to the adjacent row. The workers were close
enough to have to move out of the path of the tractor. However, because
the treated area was defined to be only the rows being treated, this
was permissible under the existing WPS. Many commenters provided other
examples of incidents where workers were unintentionally exposed
directly to the pesticide spray. A few farmworker advocacy
organizations commented that many workers say that they have felt the
spray of pesticides from fields close to where they work. A farmworker
advocacy organization commented that in 2012, about 20% of farmworkers
in New Mexico reported to the organization that pesticides were applied
to the fields at the same time that they were working. Another
farmworker advocacy organization stated that about half of the child
tobacco workers interviewed by the organization in 2013 reported that
they saw tractors spraying pesticides in the fields in or adjacent to
the ones where they were working.
    Many farmworker advocacy organizations and several public health
organizations argued that EPA should revise the approach for entry
restrictions to protect workers on neighboring property and to increase
the length of the entry-restricted area. The recommended distances
ranged from 60 to 200 feet for ground application and 300 feet to a
mile or more for aerial application. EPA responded to some of these
suggestions in its response to ``Pesticides in the Air--Kids at Risk:
Petition to Protect Children from Pesticide Drift (2009)'' (Ref. 13).
    Comments--opposing the proposal. Many states and their
organizations, grower organizations, farm bureaus, applicator
organizations, agricultural producer organizations, pesticide
manufacturer organizations, and the Small Business Administration's
Office of Advocacy opposed the proposed requirement to apply the entry-
restricted areas to farms and forests. Most of these commenters argued
that the approach is too complicated because it establishes another
area to be controlled that varies by application type, may include
persons other than those employed by the agricultural establishment and
may be different than label restrictions. (Note: Some of the comments
appear to reflect a misunderstanding of the proposal, i.e., that the
entry-restricted areas would be ``buffer zones'' that would remain in
effect after the application was complete.) Some states and their
organizations commented that the requirement to keep individuals out of
varying widths of areas surrounding treated areas would be difficult
for an agricultural employer to implement and even more difficult for a
state to enforce.
    Most of these commenters asserted that the proposed requirement to
apply entry-restricted areas to farms and forests would present some
logistical issues that could effectively shut down parts of the
establishment. For example, many ground and aerial pesticide
applications occur along rural roads or near access points to the
agricultural establishment. These roads and access points would be
within the proposed entry-restricted areas. On larger fields, pesticide
applications could take several hours to complete. Commenters claimed
that prohibiting workers from using these roads or gaining access to
farm buildings for long periods of time would be impractical and could
have an adverse economic impact. Many of the commenters stated that EPA
did not account for the cost of stopping business during some pesticide
applications. As an example, one grower organization opposed the
``worker buffers'' because they could take a lot of area out of
cultivation on smaller farms, farms with widely varied crop maturities
and farms that are not laid out in large blocks. Instead of arbitrary
buffers, this commenter argued to keep the standard as it is--do not
apply where workers are present and do not allow spray (or drift) to
contact workers.
    Comments on application types and distances. Some commenters
addressed the specific application methods and the distances of 100
feet and 25 feet in the proposed entry-restricted areas. Some states,
grower organizations, agricultural organizations and pesticide
manufacturer organizations commented that the distances of 25 to 100
feet are not supported by drift reduction technologies, applicator
standard operating procedures or incident data. A state commented that
the table of application methods and distances is flawed because it
does not account for all application scenarios and does not logically
apply distances.
    EPA Response. Based on the comments, EPA has made some changes in
the final rule from the proposed requirement to extend entry-restricted
areas to farms and forests. However, experiences such as those of
workers having to move to get out of the way of the tractor that was
applying pesticide (described previously) and workers being directly
sprayed confirm EPA's position that additional protections are
necessary during pesticide applications on farms and in forests. The
existing WPS prohibits a farm or forest agricultural employer from
allowing or directing any worker to enter or remain in a treated area,
which is defined to include areas being treated. The existing
regulations require oral notifications before pesticide applications to
include the location and description of the treated area, the time
during which entry is restricted and instructions not to enter the
treated area until the REI has expired. The existing regulations
require handler employers to ensure that pesticides are applied in a
manner that will not contact a worker either directly or through drift.
Inasmuch as these requirements--clearly intended to prevent direct
exposure of workers during pesticide applications--have proven
insufficient for that purpose, additional measures are needed.
    EPA has changed the final rule in several ways to address some of
the concerns expressed in the comments about the logistical problems
with the proposal. First, in the final rule EPA replaced the term
``entry-restricted area'' with ``application exclusion zone,'' which
more clearly associates this restriction with the period during the
pesticide application. This new term is also less likely to be confused
with the term ``restricted-entry interval.'' Second, EPA revised the
requirements for the application exclusion zone so that it is not based
on the ``treated area,'' but instead a specified distance from the
application equipment. The application exclusion zone is essentially a
horizontal circle surrounding the application equipment that moves with
the application equipment. For example, if a pesticide is applied
aerially, the border of the application exclusion zone is a horizontal
circle that extends 100 feet from the place on the ground directly
below the aircraft, and moves with the aircraft as the application
proceeds.
    Because the application exclusion zone is based on the location of
the application equipment, rather than the location of the treated
area, the application exclusion zone could extend

beyond the boundary of the agricultural establishment. However, in 40
CFR 170.405(a)(2), the final rule limits the requirement for the
agricultural employer to keep workers and other persons out of the
treated area or the application exclusion zone during application to
areas that are within the boundaries of the agricultural establishment,
as proposed. The existing entry-restricted area requirement for
nurseries is also limited to areas that are within the boundaries of
the agricultural establishment. EPA retained the existing and proposed
limitation because this requirement applies to the agricultural
employer. The agricultural employer can control what happens on the
agricultural establishment but could have difficulty limiting access to
roads or fields that are beyond his property.
    The comments reflected a general lack of understanding that the
proposed entry-restricted areas would exist only during application,
and many comments anticipated conflicts between no-spray buffers on
some pesticide labels and the proposed entry-restricted area. However,
these are two different types of requirements. If a label specifies a
``no-spray'' buffer, pesticide cannot be applied in that area at any
time. Under the final rule, a pesticide can be applied in an
application exclusion zone, and the requirement for agricultural
employers is to keep workers and other people out of this zone during
the pesticide application. These two types of requirements are
distinct, and as a result should not be problematic to implement.
    EPA reassessed the application methods and distances in the
proposed requirements for entry-restricted areas for outdoor production
and made some changes in the description of application exclusion zones
in the final rule in Sec.  170.405(a)(1). The final rule maintains the
proposed distances of 100 feet and 25 feet but revises the application
methods associated with each distance.
    The application methods that have an application exclusion zone of
100 feet are the ones where pesticide is expected to move a longer
distance from where they are applied. The changes include:
     Adding air blast applications, to more
accurately and more broadly describe current application methods.
     Deleting pesticides applied as an aerosol
because it is unnecessary.
     Including pesticides applied as a spray using a
spray quality (droplet spectrum) of smaller than medium (volume median
diameter less than 294 microns). The volume median diameter refers to
the midpoint droplet size or mean, where half of the volume of spray is
in droplets smaller, and half of the volume is in droplets larger than
the mean. EPA chose to establish this criteria based on the spray
quality rather than just the pressure because the drop size depends on
a number of variables, including the pressure, the nozzle type, liquid
properties, and the spray angle. Focusing on the spray quality, rather
than pressure, is also consistent with EPA's voluntary Drift Reduction
Technology program and current models of drift used in EPA's risk
assessments.
    The application methods that have an application exclusion zone of
25 feet are the ones where pesticide is expected to move a shorter
distance from where they are applied. The changes include:
     Replacing several of the proposed criteria with
pesticides applied as a spray using a spray quality (droplet spectrum)
of medium or larger (volume median diameter of 294 microns or larger).
     Eliminating the criterion based on the product
label requiring a respirator because it is intended to apply to
enclosed spaces like greenhouses and was accidentally included in the
proposed criteria for outdoor production.
    The corresponding changes to application methods were made to the
Table--Entry Restrictions During Enclosed Space Production Pesticide
Applications at 40 CFR 170.405(b)(4) for consistency.
    EPA acknowledges that some pesticide labels will have restrictions
that apply during applications that are different than the application
exclusion zones. For example, the restrictions on soil fumigant labels
are more restrictive than the application exclusion zone of 100 feet
specified in Sec.  170.405(a)(1)(i)(D). In situations like this,
pesticide users must follow the product-specific instructions on the
labeling. As stated in Sec. Sec.  170.303(c) and 170.317(a), when 40
CFR Part 170 is referenced on a pesticide label, pesticide users must
comply with all of the requirements in 40 CFR Part 170, except those
that are inconsistent with product-specific instructions on the
pesticide product labeling.

C. Suspend Application

    1. Current rule and proposal. As discussed in Unit IX.A., the
existing WPS requires handler employers and handlers to assure that no
pesticide is applied so as to contact, either directly or through
drift, any worker or other person, other than an appropriately trained
and equipped handler. However, the existing WPS does not include an
explicit requirement for handlers to stop or suspend application. EPA
proposed to add a provision to require a handler performing a pesticide
application to immediately stop or suspend the pesticide application if
any worker or other person, other than an appropriately trained and
equipped handler, is in the treated area or the entry-restricted area.
Based on the description of entry-restricted areas in the proposed
rule, the requirement for handlers to stop or suspend application in
certain circumstances would apply only within the boundaries of the
agricultural establishment.
    2. Final rule. In the final rule, EPA has made several changes to
the proposed requirement to suspend applications. First, EPA revised
the language to require a handler to ``immediately suspend a pesticide
application'' rather than to ``immediately stop or suspend a pesticide
application'' to clarify that the application must be suspended but can
be restarted once workers or other persons are out of the zone. Second,
EPA changed the area that is covered by the requirement to suspend
application in two ways. EPA replaced ``entry-restricted area'' with
``application exclusion zone,'' decreasing the size of the area that is
covered by the requirement. See Unit IX.B. Also, EPA removed the
treated area from the requirement. For outdoor production, the area
covered by the requirement is much smaller than the area that would
have been covered by the proposed rule, which would have been the
treated area plus up to 100 feet beyond the edge of the treated area.
Third, the application exclusion zone can extend beyond the boundaries
of the agricultural establishment for the purposes of this requirement,
i.e., the handler must suspend application if any person other than
another handler involved in the application is in the application
exclusion zone, regardless of whether the application exclusion zone
extends off of the employer's property.
    The final rule requires the handler performing the application to
suspend application if people who should not be present are in the
application exclusion zone (which ranges up to 100 feet from the
application equipment for outdoor production) or in the area identified
for exclusion for enclosed space production (which ranges from 25 feet
to the entire enclosed space plus any adjacent structure that cannot be
sealed off.) The final regulatory text for this requirement is
available at 40 CFR 170.505(b).
    3. Comments and responses.
    Comments. Some commenters, including farmworker advocacy
organizations, public health organizations, academics, and a state

generally supported the proposed requirement for applicators to stop or
suspend pesticide applications under certain conditions. A farmworker
advocacy organization supported the proposed requirement, stating that
current rules do not provide meaningful guidance on how applicators can
prevent human exposure during applications. Some other commenters from
farmworker advocacy organizations, public health organizations and
public health agencies supported the proposed requirement but urged EPA
to extend the protections to workers at neighboring establishments.
Many of these commenters provided information suggesting that workers
may be more likely to be affected by drift from a different
establishment. For example, commenters cited a Washington Department of
Health report that documented 43 workers in Washington being affected
by drift from another farm while only 13 workers reported being
affected by drift from the farm where they were working in 2010-2011.
In comments arguing against the need for entry-restricted areas, some
applicator organizations provided examples supporting the requirement
to suspend applications, stating that it is standard operating
procedure for aerial applicators to temporarily avoid making passes
adjacent to roads or other areas if workers happen to be passing by in
vehicles or on foot.
    Many states and their organizations, grower organizations, farm
bureaus, applicator organizations, agricultural producer organizations
and pesticide manufacturer organizations opposed the proposed
requirement for handlers to stop or suspend pesticide applications in
certain circumstances. Most of these commenters argued that the
provision is unnecessary because it would not offer any protections or
prevent contact from pesticide applications beyond the existing ``do
not contact'' requirement. Some commenters raised logistical concerns:
Applicators may not be aware that a person has entered a treated area
or entry-restricted area in many situations, such as in a forest or an
orchard in full leaf, in a very large field, or if there are restricted
sight lines or rolling hills; the proposed requirement would impose
unwarranted expectations for pilots, who would have to be fully aware
of boundaries 100 feet on all sides of the target area while traveling
at 150 mph; as proposed, an applicator would have to stop if a person
is in an entry-restricted area even if it is not possible for that
person to encounter pesticides because of wind conditions.
    A few grower organizations and farm bureaus commented that there is
a difference between stopping and suspending an application and asked
whether this would require applicators to cease application altogether
or suspend the application until a person is no longer in the area.
    EPA Response. As stated in the proposal, EPA has identified a need
to supplement the ``do not contact'' performance standard because
exposure to drift or direct spray events still happen despite the ``do
not contact'' requirement, and EPA's risk assessments and registration
decisions presume that no workers or other persons are being sprayed
directly. Therefore, the final rule includes an explicit requirement
for handlers to suspend pesticide applications under certain
conditions, which mandates applicators to take specified actions to
prevent exposing people to pesticide during applications.
    However, EPA revised the final rule in response to several points
made by commenters. First, the final rule requires a handler to
``immediately suspend a pesticide application'' rather than to
``immediately stop or suspend a pesticide application.'' This change
was made to clarify that the application must be suspended immediately
if workers or persons other than handlers are in the specified areas
but can be restarted once workers or other persons are out of the
specified area.
    EPA was persuaded by the commenters who raised logistical concerns
about the proposed requirement, which were related to the handler not
being able to see the person or a person entering an edge of a large
area that is not near the application equipment. EPA revised the
requirement in the final rule to decrease the size of the area that the
handler must monitor for workers or persons other than handlers by
removing the treated area from the area covered by this requirement and
by changing the ``application exclusion zone'' so it is measured from
the application equipment rather than from the edge of the treated
area. In the final rule, the handler performing the application must
suspend application if any of the identified people are in the
application exclusion zone (which ranges up to 100 feet from the
application equipment) rather than if any of the people are in the
entire treated area plus that distance (up to 100 feet) from the edge
of the treated area.
    EPA was also persuaded by the comments and incident information
about workers at neighboring establishments being directly contacted by
drift. The incidents cited by commenters show that workers are directly
exposed to pesticide applications from neighboring establishments as
well as from the establishment where they are working. To reduce the
number of incidents where workers are exposed to drift from neighboring
establishments, the final rule extends the application exclusion zone
beyond the boundaries of the agricultural establishment for this
requirement, thus requiring applicators to immediately suspend
applications if people other than a properly trained and equipped
handler are in the application exclusion zone.
    EPA has decided to extend the application exclusion zone beyond the
boundaries of the agricultural establishment for the requirement to
suspend applications for several reasons. First, this addresses more of
the worker drift cases, where workers are within 100 feet of the
agricultural establishment to protect more workers. Out of 17 incidents
identified in the comments, only one would have been prevented if the
application exclusion zone was limited to the boundaries of the
agricultural establishment as provided in the proposed rule. The
requirement in the final rule would have prevented at least four of the
incidents reported in the comments, and possibly as many as 12,
depending on the actual distances between the workers and application
equipment, which were not specified in the comments. Second, the
existing requirement that the handler must assure the pesticide is
applied in a way that does not contact workers or other persons already
extends beyond the boundary of the agricultural establishment. The new,
explicit requirement to suspend application if people other than
handlers are in the application exclusion zone is intended to
supplement the existing ``do not contact'' requirement by giving the
applicator specific criteria for suspending application. These specific
criteria should be equally useful to applicators attempting to comply
with the existing ``do not contact'' requirement beyond the boundaries
of the agricultural establishment. Third, the application exclusion
zone would extend a maximum of 100 feet beyond the boundary of an
agricultural establishment only for the length of time it takes for the
equipment applying the pesticide to pass by, so this should not shut
down roads or access points to the establishment for long periods of
time.

To reiterate a point made in Unit IX.B., the final rule does not hold
agricultural employers responsible for keeping workers and other
persons out of portions of the application exclusion zone that extend
beyond the boundaries of the agricultural establishment. On the other
hand, this provision in Sec.  170.505(b) of the final rule imposes a
requirement on the handler applying the pesticide to immediately
suspend the application if workers or persons other than handlers
involved in the application are in the application exclusion zone,
whether on the establishment or beyond the boundaries of the
establishment.

D. Costs and Benefits

    1. Costs. In the proposal, EPA estimated the cost for restricting
entry to areas adjacent to an area being treated would be negligible.
EPA assumed that employers could generally reassign workers to other
tasks for the duration of the pesticide application in instances where
worker tasks in the adjacent areas had to be stopped until the
application was complete. In the proposal, EPA estimated the cost of
the requirement to suspend application would be negligible because it
essentially clarifies an existing requirement. In the final rule, EPA
estimates the costs of both requirements remains negligible.
    2. Benefits. EPA believes both of the drift-related requirements
discussed in this section of the preamble will help reduce the number
of exposures of workers and other non-handlers to unintentional contact
to pesticide applications. Therefore, the benefits of these
requirements outweigh the negligible costs.

X. Establish Minimum Age for Handling Pesticides and Working in a
Treated Area While an REI Is in Effect

A. Current Rule and Proposal

    The existing regulation does not establish any age restriction for
handlers or early-entry work. EPA proposed to prohibit persons younger
than 16 years of age from handling pesticides, with an exception for
handlers working on an establishment owned by an immediate family
member. EPA requested comment on an alternative option of prohibiting
any person under 18 years old from handling pesticides.
    The existing WPS establishes conditions for when a worker may enter
into a treated area under an REI. The conditions are related to the
type of work performed (often referred to as ``early-entry'' tasks) and
the length of time the worker may be in the treated area. However, the
existing WPS establishes no minimum age for workers entering a treated
area under an REI to perform early-entry tasks. EPA proposed to
prohibit any worker under 16 years old from entering a treated area
under an REI to perform early-entry tasks, with an exemption from this
prohibition for persons covered by the immediate family exemption. EPA
requested comment on an alternative option of prohibiting any person
under 18 years old from entering treated areas during the REI to
perform early-entry tasks.

B. Final Rule

    The final rule prohibits persons younger than 18 years old from
handling pesticides. EPA has retained the proposed exemption for
handlers working on an establishment owned by an immediate family
member. The final regulatory text for the prohibition is available at
40 CFR 170.309(c) and 170.313(c). The final regulatory text for the
exemption is available at 40 CFR 170.601(a)(1)(i).
    The final rule prohibits persons younger than 18 years old from
entering treated areas during the REI to perform early-entry tasks, and
retains the proposed exemption for persons working on an establishment
owned by an immediate family member. The final regulatory text for this
prohibition is available at 40 CFR 170.309(c) and 170.605(a). The final
regulatory text for the exemption is available at 40 CFR
170.601(a)(1)(xii).

C. Comments and Responses

    Comments. Many commenters requested that EPA establish a minimum
age of 18 for handlers and early-entry workers. Commenters cited
several reasons for their request. First, many commenters noted that
adolescents' bodies are still developing and they may be more
susceptible to the effects of pesticide exposure. Second, commenters
noted that adolescents are less mature and their judgment is not as
well developed as that of adults. This immaturity may mean that
adolescents may be less consistently aware of risks associated with
handling pesticides or entering a treated area while an REI is in
effect, that they may not adequately protect themselves or other
workers from known risks, and that spills, splashes, and improper
handling practices may be more likely. A few commenters submitted
studies related to development of maturity and decision-making skills
in adolescents in support of this assertion. Third, commenters asserted
that restricting handling activities to persons at least 18 years old
could result in higher potential economic benefit from avoiding
exposure and any potentially related chronic effects to children,
because they have a longer potential life span. Fourth, because
information on the potential chronic effects of pesticide exposure on
developing systems is not known, commenters recommended that EPA
prohibit adolescents from handling pesticides and entering treated
areas while an REI is in effect as a precaution until it can be shown
that they would not suffer adverse chronic effects from potential
exposure. Finally, a few commenters noted that persons under 18 years
old are protected in other industries by OSHA and should receive
similar protections under the WPS, and that some states have already
prohibited handling of pesticides in agriculture by anyone under 18
years old.
    Some commenters expressed support for a minimum age of 16. States
primarily supported EPA's proposal to establish a minimum age of 16,
noting that establishing a minimum age of 18 would require them to
change their state laws. Other commenters supporting the proposed
minimum age of 16 noted that this requirement would align with DOL's
restriction on handling pesticides in toxicity categories I and II in
agriculture.
    A few commenters opposed establishing any minimum age. These
commenters asserted that EPA should not take any action because the
DOL's hazardous occupations orders under the Fair Labor Standards Act
(FLSA) already prohibit adolescents under 16 years old from handling
pesticides in toxicity categories I and II in agriculture with limited
exceptions. Some commenters also assert that establishing any minimum
age for pesticide handlers is a matter that should be handled by the
states, not EPA.
    Some commenters requested that EPA eliminate the exception from any
minimum age requirement for members of the owner's immediate family.
Commenters assert that adolescents' developmental status does not
differ if they are an employee on a farm owned by an immediate family
member or by someone unrelated to them. Other commenters supported
EPA's proposal or requested that EPA establish a higher minimum age
only if EPA also retains the exception for members of the owner's
immediate family.
    EPA Response. Based on the comments received and an evaluation of
existing literature related to adolescents' development of maturity and
judgment, EPA has decided that the benefits of further reductions in
adolescent pesticide exposures justify their cost; the final rule
generally prohibits persons under 18 years old from

handling pesticides or entering a treated area while an REI is in
effect. EPA recognizes that adolescents' bodies and judgment are still
developing. While studies have not demonstrated a clear cut off point
at which adolescents are fully developed, literature indicates that
their development may continue until they reach their early to mid-20s.
EPA also agrees that research has shown that adolescents may take more
risks, be less aware of the potential consequences of their actions on
themselves and others, and be less likely to protect themselves from
known risks. All of this information supports establishing a higher
minimum age than proposed in order to allow those handling pesticides
to develop more fully before putting themselves, others, and the
environment at risk, and to allow those performing early-entry
activities to develop more fully in order to adequately protect
themselves from the risks of entering a treated area while an REI is in
effect. The final rule will reduce the potential for misuse by
adolescent handlers who may less consistently exercise good judgment
when handling agricultural pesticides.
    EPA notes commenters' assertions that avoiding pesticide exposure
in adolescents could result in higher potential economic benefit
because of adolescents' longer potential lifespans. EPA agrees that it
is appropriate to take reasonable precautions to protect adolescents
from pesticide exposures, both because of the potential impact of
pesticides on further development and because adolescents may not
properly appreciate (and take appropriate steps to avoid) the risks of
potential pesticide exposure. While statistical associations have been
observed in studies that estimate the relation between pesticide
exposure and chronic health outcomes such as cancer, the causal nature
of these associations has not yet been determined; thus quantifying the
magnitude of the chronic health risk reduction expected as a result of
pesticide exposure reduction is not possible. However, based on what is
known about the potential for biologically active chemicals generally
to disrupt developmental processes, it is reasonable to have heightened
concern for adolescents under the age of 18 in situations where they
face particularly high pesticide exposures. Prohibiting adolescents
under the age of 18 from handling agricultural pesticides will protect
them from any potential risks of pesticide use through handling
activities, ensuring that adolescents do not suffer unreasonable
adverse effects from handling agricultural pesticides. Prohibiting
adolescents under 18 years old from entering a treated area while an
REI is in effect will protect them by delaying their entry into treated
areas until residues are at a level that should not cause unreasonable
adverse effects.
    EPA recognizes that DOL prohibits persons under 18 years old from
engaging in hazardous tasks in other industries, and that some states
have taken action to prohibit certain adolescents from handling
pesticides in agriculture (state minimum ages for pesticide handlers,
where established, range from 16 years old to 18 years old). These
examples of protections for adolescents in other industries or by
states indicate a recognition that different standards for certain
adolescents and adults are appropriate.
    EPA disagrees with commenters' assertions that EPA should defer to
the states or the FLSA and not establish any age-related restrictions
on pesticide handling or early-entry activities. EPA has the
responsibility under FIFRA to regulate the use of pesticides to avoid
unreasonable adverse effects, apart from any requirements established
by other federal or state laws. The DOL's actions under the FLSA
limiting the use of certain pesticides to persons at least 16 years old
do not preclude EPA from taking actions to ensure that human health and
the environment are protected from unreasonable adverse effects. While
DOL's hazardous occupations order prohibiting those under 16 years old
from handling certain pesticides satisfies the purposes of the FLSA,
those purposes are distinct from those of FIFRA. EPA has concluded that
because, as discussed previously, adolescents' bodies, maturity, and
judgment are still developing, the handling of agricultural pesticides
and entry into a treated area while an REI is in effect by persons
under 18 years old presents an unreasonable likelihood of adverse
effects. Therefore, the final rule generally limits pesticide handling
and early-entry activities to persons who are at least 18 years old.
    EPA agrees that adolescents' developmental status does not differ
if they are employees on a farm owned by an immediate family or by
someone unrelated to them. However, EPA recognizes that imposing a
minimum age for handling agricultural pesticides or performing early-
entry tasks on owners or members of their immediate families could
significantly disrupt some immediate family-owned farms. Given the high
social cost of imposing a minimum age requirement on owners and members
of their immediate families on farms owned by members of the same
immediate family, EPA has finalized the proposed exemption to this
requirement.
    4. Costs and benefits. EPA estimates the cost of requiring handlers
and early-entry workers to be at least 18 years old would be $3.1
million annually. EPA estimates that, on average, the cost would be
about $8 per agricultural establishment per year. The cost per
commercial pesticide handling establishment per year is estimated to be
over $360. The estimated cost of the final requirement is likely to be
overstated, particularly for commercial pesticide handling
establishments, because EPA made some very conservative assumptions
regarding the amount of time an adolescent works.
    EPA cannot quantify the benefits associated with this specific
proposal. However, this requirement would improve the health of
adolescent handlers, as well as other workers and handlers on the
establishment and the environment. It would also improve the health of
adolescent workers by reducing their potential for exposure to
pesticides in a treated area when an REI is in effect. As discussed in
the preamble to the proposed rule, adolescents' judgment is not fully
developed. Restricting adolescents' ability to handle pesticides will
lead to less exposure potential for the handlers themselves, and less
potential for misapplication that could cause negative impacts on other
handlers or workers on the establishment, as well as the environment.

XI. Restrictions on Worker Entry Into Treated Areas

A. Requirements for Entry During an REI

    1. Current rule and proposal. The existing WPS establishes specific
exceptions to the general prohibition against sending workers into a
treated area while an REI is in effect. Workers who enter pesticide-
treated areas during an REI (known as ``early-entry workers'') without
adequate protection may face an elevated risk from pesticide exposure.
Under the existing rule, the employer must: Ensure that the worker has
read or been informed of the human health hazards on the product
labeling; provide instruction on how to put on, use, and remove PPE;
stress the importance of washing after removing the PPE; and instruct
the worker on how to prevent, recognize, and treat heat-related
illness. The employer must also implement measures to prevent heat
related illness when workers must wear PPE.
    In addition to these existing requirements, EPA proposed to require

employers to inform workers sent into a treated area while the REI is
in effect of the specific exception under which they would enter, to
describe the tasks permitted and any limitations required under that
exception, and to identify the PPE required by the labeling. EPA also
proposed to require the employer to create a record of the oral
notification provided to early-entry workers, to obtain the signature
of each early-entry worker acknowledging the oral notification prior to
the early entry, and to maintain the record for 2 years.
    2. Final Rule. EPA has finalized the proposed requirements for the
employer to inform the worker of the type of exception which permits
the entry into the area under an REI, to describe the tasks that the
worker may perform and other limitations under the exception, and to
identify the PPE that must be worn. However, EPA has decided not to
require employers to create or maintain records of the oral
notification. The final regulatory text for this requirement is
available at 40 CFR 170.605.
    3. Comments and responses.
    Comments on oral notification. Comments on the proposal to inform
workers of the early entry exception and to explain the PPE were
largely supportive, recognizing the reasonable nature of the proposed
information. Commenters in support of the proposal included a pesticide
manufacturer organization and farmworker advocacy organizations. One
public health organization supported the proposal, but recommended that
the requirement be modeled after OSHA's confined space regulations, to
include: Specific training for early entry, a requirement for workers
to be provided respirators and other necessary PPE, written emergency
rescue procedures and resources in case of an overexposure or other
mishap, on-site monitoring of the worker from outside the entry zone,
and recordkeeping of each entry.
    Several agricultural producer organizations and pesticide
manufacturer organizations supported the proposal, but expressed
concern for the requirement for employers to manage heat stress.
    EPA Response. EPA has decided not to amend the final rule based on
OSHA's confined space regulations. OSHA's definition of a confined
space is one in which there is limited or restricted means for entry or
exit. These characteristics exacerbate any hazard to the employee, in
that the employee could be overcome by a toxic atmosphere or by
physical engulfment, such as in a grain storage bin, and be unable to
quickly exit. EPA recognizes a similar potential for pesticide handlers
making fumigant applications in greenhouses to be overcome by the
fumigant. The WPS provides protections for such scenarios by requiring
PPE, including respirators where required by the label, and continuous
monitoring by a handler outside of the treatment area. The handler
entering the greenhouse would have specific instructions on the labeled
hazards. The monitoring handler must have access to the PPE required by
the product labeling in case they would need to enter the greenhouse
for rescue of the applicator. However, except for the use of fumigants,
which have specific label requirements because of their increased
potential for inhalation risk, the more common scenario of a worker
entering a treated area on a farm, forest, or in a nursery during the
REI would not pose such risks from a toxic atmosphere. It is unlikely
that there would be an environment that could concentrate the pesticide
and produce a potentially life-threatening environment. The predominant
component of exposure during work in a treated area where an REI is in
effect is dermal, with rare exceptions. Specific information about the
entry must include the human health hazards on the pesticide labeling,
explanation of the required PPE and the proper way to wear and remove
PPE, description of the tasks that may be performed and any limitations
on the time permitted in the area. Workers directed to enter a treated
area during the REI must have had the pesticide safety training so they
may protect themselves. Employers must provide the PPE required by the
product label for early entry to minimize exposure. Employers must
provide early entry workers with the decontamination supplies
appropriate for pesticide handlers.
    EPA agrees with commenters that heat stress can be a problem for
workers in warm, humid climes and when employees must wear PPE. EPA
notes that requirements related to heat stress for early entry workers
are already included in the existing rule at 40 CFR170.112(c)(6)(x) and
170.112(c)(7).
    Comments in opposition to the early-entry exceptions. A number of
farmworker advocacy organizations voiced opposition, in general, to
most or all of the early entry exceptions in the existing rule,
suggesting that workers should not be required to enter treated areas
under an REI, due to risk of exposure.
    EPA Response. In deciding whether to allow workers to enter treated
areas prior to the expiration of the REI, EPA considered the risk to
the workers and the benefits from the early-entry activities. In each
case, EPA determined that the potential risks to properly trained and
equipped early-entry workers are reasonable in comparison to the
significant economic impacts from delaying necessary activities,
provided that the required limitations to each exception are observed.
    Comments on recordkeeping of oral notification. One farmworker
advocacy organization supported the recordkeeping requirement, stating
that the ``proposed changes will ensure early entry workers are
adequately informed about the risks of the work they are asked to do.''
In contrast, several states and their organizations expressed concern
for the recordkeeping requirement, stating that it is not practical and
would result in technical violations, such as failures to obtain the
necessary signatures, without enhancing worker protection.
    EPA Response. EPA was convinced by the rationale provided by the
states that the requirement for records of notification to early-entry
workers was too burdensome for agriculture, while adding little or no
protections for the workers. There is typically some urgency to the
need for entry into a treated area while the REI is in effect; the
added burden to create records during this time could be unreasonable
as it would not necessarily increase protection of early-entry workers.
EPA retained the requirement for employers to provide protective
information to early-entry workers, but did not include the proposed
recordkeeping requirement because it is unclear that such records would
improve the transmission of information.

B. Clarify Conditions of the ``No Contact'' Exception

    1. Current rule and proposal. The existing WPS allows workers to
enter areas while an REI is in effect for activities that do not result
in contact with any treated surfaces. In the proposal, EPA sought to
clarify the ``no contact'' requirement of the exception by explaining
that performing tasks while wearing PPE does not qualify as ``no
contact.'' The proposal offered three examples of acceptable ``no
contact'' activities.
    2. Final rule. EPA has finalized the proposed clarification. The
final rule adds to the exception the following language: ``This
exception does not allow workers to perform any activities that involve
contact with treated surfaces even if workers are wearing personal
protective equipment.'' The final regulatory text for this requirement
is available at 40 CFR 170.603(a)(1).
    3. Comments and responses.

    Comments. One farm bureau stated that workers are prevented from
having contact with pesticides and their residues through the medium of
PPE.
    EPA Response. Although PPE--when properly fitted, worn, removed,
cleaned and maintained--can provide significant protection against
pesticide exposures, it does not eliminate exposure. The variation in
exposure reduction offered by various types of PPE can be seen in EPA's
``Exposure Surrogate Reference Table'' (http://www.epa.gov/opp00001/science/handler-exposure-table.pdf). Use of PPE for activities
involving contact with pesticide-treated surfaces does not reduce risks
to the same level as no-contact activities. EPA has finalized the ``no
contact'' exception as proposed because the PPE appropriate for early
entry into treated areas under this exception is appropriate only for
activities that do not involve contact with treated surfaces.

C. Limit ``Agricultural Emergency'' Exception

    1. Current rule and proposal. The existing WPS permits entry into a
treated area during an REI when a state, tribal, or federal agency
having jurisdiction declares the existence of conditions that could
cause an agricultural emergency. EPA proposed that only agricultural
emergency determinations by EPA, state and tribal pesticide regulatory
agencies, and state departments of agriculture, could authorize early
entry under the agricultural emergency exception.
    In addition, EPA proposed to limit the time a worker may be in the
treated area under the agricultural emergency exception when the label
of the product used to treat the area requires both oral and written
notification (``double notification''). Under the existing rule, there
is no time limit; EPA proposed to establish allowing workers to be in a
treated area under this exception for a maximum of 4 hours in any 24
hour period.
    2. Final rule. EPA has finalized the proposal, with one change. The
final rule does not include EPA as an agency with authorization to
declare the existence of conditions that could cause an agricultural
emergency because EPA decided that States and Tribes are best situated
to decide what conditions in their respective jurisdictions could
constitute an agricultural emergency. The final regulatory text for
this requirement is available at 40 CFR 170.603(c).
    3. Comments and responses.
    Comments on restricting the declaration of an agricultural
emergency. One state supported the proposal, but recommended broadening
it to include the state governor. Another state found the proposal
satisfactory. One grower organization opposed the proposal, stating
that pre-approval to enter the treated area would be cumbersome and
unnecessary if the criteria are clearly defined and documented. Another
grower organization and a farm bureau from the same state expressed
concern that this change would seriously impact growers' ability to
enter a treated area to manage fires, fix broken irrigation and
chemigation pipes, and address other problems that could pose risks to
adjacent public areas and cause crop loss. These commenters recommended
that EPA develop guidance to instruct relevant municipal agencies such
as local fire departments to declare agricultural emergencies.
    Commenters also suggested that there is a need for entities other
than EPA, state departments of agriculture and the state pesticide
regulatory agencies to declare agricultural emergencies. In the
examples provided by commenters, fires and broken irrigation or
chemigation pipes could pose risks to the public and the crop.
    EPA Response. As described in the preamble to the proposed rule,
EPA noted that entities other than the state pesticide regulatory
agencies, state departments of agriculture, and EPA might not have the
background and technical expertise to assess the benefits and risks to
workers from the entry while the REI is in effect, and might not
understand the statutory requirement to consider both risks and
benefits when establishing conditions for early-entry workers. EPA
decided not to include state governors as an entity authorized to
declare an agricultural emergency because it is not necessary; a state
governor could direct the state department of agriculture or pesticide
regulatory agency to determine whether conditions that could result in
an agricultural emergency exist.
    The need for pre-approval for conditions that may result in an
agricultural emergency is a requirement in the existing rule. EPA has
responded to the concern of the grower organization through its
Interpretive Guidance Workgroup on the existing WPS, which clarified
that state pesticide regulatory agencies may establish guidance or
regulations describing the circumstances that could constitute an
agricultural emergency and for which entry into areas under an REI is
permitted. If a grower determines that such conditions exist at a site,
then workers may enter the area while the REI is in effect under the
agricultural emergency exception, consistent with applicable
restrictions.
    EPA has decided not to expand the declaring agencies to include
municipal agencies such as local fire departments, but will work with
state pesticide regulatory agencies and departments of agriculture to
support identification of circumstances that could constitute an
agricultural emergency in their jurisdictions. EPA recommends that
these entities identify, in their states, local conditions that could
constitute such emergencies. Through state regulation or by policy,
these agencies may pre-approve entry when such conditions occur.

D. Codify ``Limited Contact'' and ``Irrigation'' Exceptions

    1. Current rule and proposal. EPA established ``limited contact''
and ``irrigation'' exceptions as administrative exceptions in 1995.
Although these exceptions are noted in the existing rule at 40 CFR
170.112(e)(7), the terms and conditions of these exceptions are not
included in the existing rule. These exceptions permit entry into a
treated area during the REI for certain non-hand labor activities,
including irrigation. The existing exception for irrigation requires
that the need for the early entry be unforeseen.
    EPA proposed to incorporate the terms and conditions for these
exceptions into the final rule, and to eliminate the requirement for
the need for irrigation to be unforeseen.
    2. Final rule. EPA has finalized the rule as proposed. The final
regulatory text for this requirement is available at 40 CFR 170.603(d).
    3. Comments. Two farm bureaus specifically supported the
codification of the limited contact and irrigation exceptions.

E. Eliminate the Option for an Exception Requiring Agency Approval

    1. Current rule and proposal. Under the existing rule, an applicant
may request approval from EPA for an exception to the prohibition on
worker entry into a treated area during the REI for a specific need.
EPA proposed to eliminate the process for requesting an exception from
the rule.
    2. Final rule. EPA is finalizing the proposal to eliminate the
provision for exceptions requiring Agency approval.
    3. Comments and responses.
    Comment. One grower opposed the elimination of the provision,
citing the evolution of farming practices and the potential for
conflict between new practices and the rule. The commenter

stated that there is no administrative burden to the EPA, except to
evaluate requests if they are submitted.
    EPA Response. EPA included the administrative exception process
into the WPS in 1992 in recognition that the general prohibition on
routine early entry might significantly affect various agricultural
entities or practices in ways that might only become apparent as the
1992 WPS was put into effect. EPA created a small number of exceptions
during the 1990s, but none since 1997. The effects of reentry intervals
on agricultural entities and practices are now sufficiently well
understood that the administrative exception process is no longer
needed in the WPS. As explained in the preamble to the proposed rule,
EPA finds the pesticide re-evaluation process a more appropriate venue
than the WPS for considering the economic impacts of REIs on particular
agricultural entities and practices. Under EPA's registration review
process, applicants may request alternative REIs for specific needs for
their crop. This process takes into account the potential increased
risk to workers and the benefits to the production of the crop. In
cases where EPA finds that the revision of an REI is warranted, the
product label will be amended to specify the REI for that particular
use.

F. Costs and Benefits

    1. Costs. EPA estimates the cost of implementing the requirement
for oral notification prior to workers' entry into a treated area under
an REI to be about $706,000 per year, or about $2 per establishment
annually. EPA estimates that the revisions to the exceptions allowing
entry into a treated area before the REI expires would have negligible
cost, if any.
    2. Benefits. EPA concludes that the benefit of providing detailed
information about the tasks they are to undertake and the limitations
on their exposure to the worker prior to entry into an area under an
REI is reasonable compared with the cost.

XII. Display of Pesticide Safety Information

A. Pesticide Safety Information Content

    1. Current rule and proposal. The existing rule requires employers
to display a pesticide safety poster containing the following
information:
     Avoid getting on your skin or into your body any
pesticides that may be on plants and soil, in irrigation water, or
drifting from nearby applications.
     Wash before eating, drinking, using chewing gum
or tobacco, or using the toilet.
     Wear work clothing that protects the body from
pesticide residues (long-sleeved shirts, long pants, shoes and socks,
and a hat or scarf).
     Wash/shower with soap and water, shampoo hair,
and put on clean clothes after work.
     Wash work clothes separately from other clothes
before wearing them again.
     Wash immediately in the nearest clean water if
pesticides are spilled or sprayed on the body. As soon as possible,
shower, shampoo, and change into clean clothes.
     Follow directions about keeping out of treated
or restricted areas.
     There are federal rules to protect workers and
handlers, including a requirement for safety training.
    The existing rule also requires the employer to provide contact
information for the nearest emergency medical care facility and to
promptly update the safety information poster when any of the required
contact information changes.
    EPA proposed changing the term for what employers must display from
``pesticide safety poster'' to ``pesticide safety information.'' EPA
proposed retaining the existing content requirements of the existing
rule, with one exception. EPA proposed removing the item regarding
federal rules to allow the other information to be more prominent. EPA
proposed retaining the requirement to display the contact information
for the medical facility and amending the language from ``nearest
emergency medical care facility'' to ``a nearby operating medical
facility.'' Finally, EPA proposed requiring the employer to provide on
the display the name, address, and telephone number of the state or
tribal pesticide regulatory agency.
    2. Final rule. EPA has finalized the proposed requirements for
content, and has added a point to the proposed display requirements
that advises workers and handlers to seek medical attention as soon as
possible if they believe they have been made ill from pesticides. EPA
has also amended one of the existing required points to clarify that if
pesticides are spilled or sprayed on the body, workers and handlers
should rinse immediately in the nearest clean water if more readily
available than the decontamination supplies, and should wash with soap
and water as soon as possible. The final rule refers to the requirement
as ``pesticide safety information'' and allows display of the
information in any format that meets the requirements of the rule,
rather than only as a pesticide safety poster. EPA has included a
requirement in the final rule for the employer to update the pesticide
information display within 24 hours of notice of any changes to the
medical facility or pesticide regulatory agency contact information.
Finally, EPA has provided an option in the regulatory text that allows
employers to comply by following the requirements at 40 CFR
170.311(a)(1)-(4) before they are fully implemented. The final
regulatory text for these requirements is available at 40 CFR
170.311(a)(1)-(4).
    The final rule delays implementation of the changes to the required
pesticide safety information until two years after the rule is made
final, in order to allow time for model pesticide safety information
display materials to be developed and distributed.
    3. Comments and responses.
    Comments. Farmworker advocacy groups and public health
organizations supported the emergency medical care change and inclusion
of the state or tribal agency responsible for enforcement. However,
they urged implementation sooner than the proposed two years from the
effective date of the final rule. One commenter reported that a recent
survey they conducted indicated that 25% of respondents did not
complain about pesticide-related health problems or pesticide
applications to the fields while they were working because they did not