WASHINGTON, Dec. 22, 2016 – A farmworker safety rule scheduled to go into effect Jan. 1 needs to be delayed a year because EPA has not told states how to implement it, the American Farm Bureau Federation and National Association of State Departments of Agriculture said today.
In a petition filed with the agency, AFBF and NASDA claim EPA violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) by failing to deliver “enforcement guidance, educational materials, and training resources necessary to effectively implement the rule changes and assist the regulated community with compliance activities.” They asked the agency to push the effective date of the new standards from Jan. 1, 2017, to Jan. 1, 2018.
The delay is needed “to give NASDA members adequate time to prepare for compliance with the rule and to avoid the unfair and unredressable harm to farmers and ranchers,” Nathan Bowen, NASDA’s director of public policy, and Dale Moore, AFBF’s executive director of public policy, said in the petition.
“Even if all of the compliance and enforcement materials were completed and distributed to all the appropriate state enforcement agencies, there is simply not enough time for the (state lead agencies, or SLA’s) and the regulated community to successfully implement the provisions scheduled to take effect on January 1, 2017,” the petition says. “In short, EPA has failed to develop and deliver the necessary resources for states to train the regulated community on the new requirements, and the agency has failed to comply with its own WPS Implementation Timeline communicated to the SLAs in May 2015.”
One specific sticking point is the “designated representative” provision in the November 2015 Worker Protection Standard (WPS) rule. That provision would allow farmworkers to choose a person – a member of a nonprofit group, for example – to request pesticide hazard and application information, which must be accessible to workers or handlers of pesticides.
Farm groups have been critical of the provision. The petition says it “exceeds the scope of the WPS rule by depriving farmers of reasonable expectation of privacy for confidential business information. Moreover, it subjects farmers to potential harassment and public criticisms for lawful use of EPA-approved pesticides.”
AFBF and NASDA also said that the provision did not appear in a “draft final” rule submitted to Congress in May 2015. FIFRA requires EPA to submit final regulations to the House and Senate agriculture committees at least 30 days before they are signed by the EPA administrator.
EPA acknowledged, in response to questions from the House Agriculture Committee, that the draft final rule it sent to the committee did not have the designated representative provision.
Another concern is the lack of clarity on requirements for application exclusion zones (AEZ’s) – areas “that must be free of all persons other than appropriately trained and equipped handlers during pesticide applications,” according to an EPA Frequently Asked Questions document on the rule.
The Association of American Pesticide Control Officials (AAPCO) had asked EPA in August to consider delaying the effective date of the WPS rule until AEZ concerns could be worked out. AAPCO asked the agency to consider letting state regulators develop programs that would allow workers whose housing is located within AEZ’s to “shelter in place” instead of going outside, as the rule would appear to require.
“lt is believed by many, that if the housing is adequate (fully enclosed and tightly constructed), it is safer to ‘shelter in place’ vs. leaving the AEZ and returning soon after the application,” AAPCO President Dennis Howard said in the letter to Jack Housenger, director of EPA’s Office of Pesticide Programs.
In a response in October, Housenger said that efforts underway to assist in implementation “will enable growers and trainers to meet the requirements of the (rule) without the need for a delay.”
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