Steven W. Troxler
Commissioner

North Carolina Department of Agriculture
and Consumer Services
May 15, 2017

The Honorable Scott Pruitt
Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Ave, NW
Washington, DC 20460-0001
Re:

Enforcing the Regulatory Reform Agenda
EPA-HQ-2017-0190

In response to the Posting EPA-HQ-2017-0190, the North Carolina Department of Agriculture and Consumer Services
(NCDA&CS) requests once more that the U.S. Environmental Protection Agency extend the implementation of all revised
provisions of the Agricultural Worker Protection Standard (40 CFR 170, as published in the Federal Register on November 2,
2015) until January 2, 2018, or until EPA has: (1) finalized and delivered adequate enforcement guidance, educational materials, and
training resources to the state lead agencies (SLA); and (2) provided the SLAs the tools and financial resources necessary to effectively
implement the rule changes and assist the regulated community with compliance activities.
State Lead agencies have prioritized outreach, compliance assistance and enforcement, in regards to the Worker Protection
Standard since the initial regulation was enacted in 1992. NCDA&CS appreciates EPA’s program staff’s ongoing efforts to
develop, revise, finalize, and disseminate complete and accurate training materials, enforcement guidance, compliance materials
and other necessary educational resources to assist EPA’s state regulatory partners with executing a successful implementation
of the final rule changes. We have been working diligently with EPA program staff since the final rule was published in
November 2015 to review, improve and facilitate the expeditious development and delivery of these materials prior to the January
2, 2017, and 2018 implementation dates, respectively. Unfortunately, much of EPA’s work to develop and provide these critical
compliance and enforcement materials to state regulatory agencies remains incomplete and the release date in late 2015 did not
allow for adequate outreach to occur during grower meetings. North Carolina alone has over 14,000 certified applicators; we
have currently reached over 1/3 of our applicators and will take over two years to adequately train the remaining certified
applicators on the WPS Revisions. Not to mention, the many small farms in N.C. that currently utilize agricultural-use products
who are not certified to use restricted-use pesticides.
Frustrating the development and delivery of these critical training, guidance and compliance materials was the insertion and final
articulation of the Application Exclusion Zone (AEZ), which EPA has publicly acknowledged goes beyond the Agency’s stated
intent. Many state agencies expressed concerns in letters to Jim Jones in December of 2015. We understand EPA’s Office of
General Counsel has issued interpretive guidance clarifying the agency’s intent under the final regulation; however, agency
guidance does not carry the weight and authority of a codified federal regulation and does not provide the necessary clarity to
assist state regulatory agencies with compliance and enforcement activities. Some State Attorney General’s Office has advised
that we would be on shaky ground were we to regulate based on interpretative guidance and ignore the plain language of the
Standard.
We are equally dismayed that this AEZ was not presented as part the proposed regulations and thus was not something that the
States or others were given opportunity to consider and comment on. Instead we were only asked to comment on buffer zones
concept, which it was our understanding, would only be applicable up to the boundaries of the agricultural establishment, and
on which we did submit comments. For EPA to have made such substantive change to the original proposal as published for
public comment, without providing additional comment opportunities runs afoul of the productive performance partnerships
between the SLA’s and the Agency.

Steve.Troxler@ncagr.gov www.ncagr.gov
1001 Mail Service Center, Raleigh, North Carolina, 27699-1001
(919) 707-3000
An Equal Opportunity Employer

Fax (919) 733-1141

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The Honorable Scott Pruitt
May 15, 2017

As I have stated, there are two major issues with the EPA’s current interpretation — and ones for which we fully expect that
the agency could be challenged: 1)The agency did not follow established and appropriate re-publication and comment
procedures prior to including such a significant change; and 2) The unreasonable burdens and economic impacts upon
agricultural operations and employers have not been appropriately considered or addressed, and thus, this rule amounts to an “
unlawful taking.”
In August 2016, the Association of American Pesticide Control Officials (AAPCO), sent a letter to EPA’s Office of Pesticide
Programs outlining their concerns with the lack of availability of Train-the-Trainer materials and the OGC’s interpretive guidance
regarding the AEZ. These concerns along with the lack of implementation materials remain unaddressed and further demonstrate
the need for an extension to all pending WPS revisions until January 2018 or beyond.
One of our greatest concerns is the respirator requirements included in the WPS Revisions. To date, EPA has still not released
any compliance assistance materials, interpretative guidance, or enforcement guidance with the complex OSHA Standards
regarding respiratory protection that were adopted from 29 CFR 1910.134. Not to mention NIOSH updated their respiratory
nomenclature some 22 years ago but due to the lack of coordination between federal agencies, EPA still has not updated pesticide
labels to the new terminology used to reference respirator types. This is one of the most challenging areas to explain to growers
due to lack of consistency in terms.
In September 2016, the National Association of State Departments of Agriculture (NASDA) membership voted and approved an
Action Item1 during our annual meeting urging EPA to delay implementation of the revised WPS provisions. NASDA
emphasized the new WPS regulations require significant additional staff time to provide outreach to workers, handlers,
applicators, agricultural employers, trainers and other stakeholders. Under the WPS rule changes, trainers will now require
retraining, and per EPA’s implementation timeline, this retraining must take place during the same period the state agencies are
expected to conduct outreach and education to the producers in their states. In addition, the average actual on-site inspection
under the former WPS rule averaged three hours in duration, but under the new rule these same inspections are anticipated to
require approximately 50% more time due to the enhanced record keeping and site information requirements. These enhanced
compliance and record keeping requirements require EPA’s timely delivery of educational resources or training materials to
assist SLAs and the regulated community in understanding, complying, and enforcing the new requirements.
Now, even if all the compliance and enforcement materials were completed and distributed to all the appropriate state
enforcement agencies, there are simply not enough training opportunities available to provide adequate outreach to the regulated
community necessary to facilitate a successful implementation of the provisions scheduled to take effect on January 2, 2017. All
regulatory agencies realize the importance of providing adequate education on impending regulations before a successful launch
of the regulations may take place.
We concur with NASDA’s observations that this request to extend the implementation timeline is consistent with EPA’s delay
in implementation and enforcement to the WPS2 rule promulgated in 1992, which was implemented in the field in 1995-96. The
previous WPS implementation delay was required due to the lack of necessary training materials for pesticide workers and
pesticide handlers, compliance assistance materials for agricultural employers, and inspection guidance materials for state
regulators. Therefore, as the co-regulatory partner with EPA for the past 47 years, NCDA&CS respectfully requests EPA delay
the implementation dates of any further revised provisions to the WPS until at least January 2, 2018.
These are our basic concerns with the revisions of the Worker Protection Standard. Other more specific concerns follow:
Section 170.309 Agricultural employer duties…(a)
This section should be revised to make the agricultural employer responsible for compliance with only the WPS portions of the
pesticide product label, not the entire pesticide product label and labeling. Extending regulatory requirements to issues beyond
the WPS is exceeding the intent and scope of this rule. This is a WPS rule, not a rule to make agricultural employers, who may
or may not be certified pesticide applicators, responsible for general label compliance. The current FIFRA pesticide applicator
certification program is based on label compliance by individuals who have demonstrated competency to apply pesticides.
Arbitrarily extending those requirements to non-certified individuals is completely contradictory to that premise. If it is the
Agency’s intent to develop a shared liability provision for label compliance, that objective should be addressed through a

1

NASDA Action Item H: Implementation of Revised Agricultural Worker Protection Standard (Sept. 2016);
http://www.nasda.org/File.aspx?id=45396
2
40 C.F.R. §170

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The Honorable Scott Pruitt
May 15, 2017
separate and distinct rule addressing all pesticide products or through a revision of FIFRA. It should not be buried in a WPS
rule intended to protect workers and handlers. Any provision not specifically targeting protection of workers and handlers
should be removed from this rule.
Section 170.401 Training requirements for workers…(c)(4)(ii)
This section should be revised to reflect that there is no distinction or difference between a trainer eligible to train workers or
handlers. As proposed, this adds an unnecessary level of complication and confusion to a rule that is already too complicated
and confusing. It is logically inconsistent to believe that the basic skill set of a trainer of workers is significantly different from
that of a trainer of handlers. Neither EPA nor SLAs are qualified or in a position to be able to evaluate the proficiency of one
type of trainer versus another. Those distinctions are very subjective and beyond the capabilities of those responsible for
compliance with this rule. In addition, the logic is further turned upside down when one considers that a certified pesticide
applicator is legally capable of training and supervising a non-certified applicator to apply restricted use pesticides around
people and into the environment, but is not capable of training a worker about how to protect himself from pesticide exposure.
Section 170.405 Entry restrictions associated with pesticide applications
All references in this section, corresponding tables in this section, and other sections of this rule to ‘other persons’ should be
deleted. While limiting pesticide exposure to all persons is certainly a good thing that should be supported and promoted
whenever possible, extending protections of this rule to individuals who are not agricultural workers or handlers, if necessary,
should be accomplished by means other than the WPS rule. Again, creating protections for ‘other persons’ in a WPS rule
appears to be exceeding the scope and intent of the rule, even if it seems like a good idea. In addition, if such provisions are
warranted based on the risk assessments performed for ‘other persons’, it seems that non-agricultural products should receive
the same consideration as is being proposed for agricultural WPS products.
The concept of a regulatory requirement to keep individuals out of varying widths of areas surrounding treated areas seems
quite difficult for an agricultural employer to implement and next to impossible for an SLA trying to ensure compliance. The
logic behind such a safety measure is understandable and supportable, but making this a regulatory requirement with an
expectation of compliance monitoring and enforcement is not.
170.405 (a)-(b) Application Exclusion Zone. As referenced above, the final rule includes an “AEZ”. This portion of the
rule is so confusing that EPA needed several pages of interpretive guidance as well as interpretive guidance from the
Office of General Counsel. This confusing portion of the regulation was not part of the original proposal. The AEZ
does not provide any additional protections. Pesticide labels all currently read, “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.”
Section 170.409 Oral and posted notification of worker entry restrictions…(b)(1)(ii)
This section should be revised to add to the end of the posting timing requirement, “unless weather or circumstances beyond
the control of the applicator or agricultural employer delays the application.” There are a variety of provisions within the
existing rule that can be considered somewhat subjective. Adding a provision that recognizes the realities of weather and
planning seems reasonable to avoid additional unnecessary technical violations.
Section 170.501 Training requirements for handlers…(c)(1)
This section should be revised to require only that the trainer be available during the training session rather than continuously
present throughout the entire training. If training is being facilitated by an approved video or some other media that does not
require continuous attention by the trainer, it is of little value that the rule create another opportunity for a technical violation
that adds unproven additional protections to workers or handlers. The important point would seem to be that the trainer be
available immediately following the presentation for questions and comments. Even face-to-face trainers will often request that
trainees hold questions until the end of the session so as to not disrupt the flow and distract other trainees.
Section 170.501 (d)… Training requirements for handlers - Recordkeeping
This section should be deleted. This extensive recordkeeping requirement for proof of training creates an unnecessary burden
and expense for the agricultural producer. The current requirements in the existing rule are adequate. From a compliance
standpoint, if an SLA is investigating a for-cause complaint for determination of compliance with the training requirement,
examining training records alone will probably not satisfy the burden of proof for a significant enforcement action. This is
especially true if any training records are found not to be 100% accurate and complete for all trainees. Again, adding this
recordkeeping requirement creates the opportunity for technical violations without a demonstrated improvement in actual
protections for workers and handlers.

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The Honorable Scott Pruitt
May 15, 2017

Section 170.503…Knowledge of labeling application-specific, and establishment-specific information for handlers
This section should be deleted. See the comments for Section 170.201(c)(2) above. Again, requirements like these belong in a
certification standards and supervision rule, not a WPS rule targeting solely agricultural workers, handlers, and pesticide
products.
Section 170.507 Personal protective equipment…(b)(5)(iii)
The requirement for contaminated glove liners to be disposed of in accordance with federal, state, or local regulations should
be deleted. If such disposal regulations exist, adding this provision in a WPS rule adds no value or regulatory authority. It just
begs the question of what those regulations may be and adds another technical violation to the WPS rule that needs to
applicable to all pesticides. Eliminate the additional confusion. States and localities can address disposal requirements through
state or locality specific regulations as they see fit. Again, this is a worker/handler protection rule, not a disposal compliance
rule.
The implementation and compliance with the WPS rule changes are the responsibility shared by EPA, state regulatory agencies,
agricultural employers, trainers and workers. This requested extension to the implementation timeline is essential to ensure EPA’s
state regulatory partners and the regulated community have the appropriate information, training and resources necessary to
successfully implement the WPS rule changes. Implementing these regulatory changes without providing the necessary educational
resources or training materials to assist state regulatory agencies and the regulated community in understanding the new requirements
and how to comply with them is inappropriate and in direct conflict with the fundamental principle of “educate before you
regulate.”
We look forward to your reply.
Sincerely,

Steven W. Troxler
Commissioner