00-14322. Cut-Roses; Request for Exception to Worker Protection Standard's Prohibition of Early Entry Into Pesticide-Treated Areas to Harvest Roses by Hand Cutting

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of exception request; request for comment.

SUMMARY:

EPA has received a request for an exception from some of the restricted entry provisions of the Worker Protection Standard for rose harvesters. The exception would allow rose harvesters to harvest roses by hand before restricted entry intervals (REIs) have expired. Roses, Inc. has submitted a request to the Agency for a 5-year WPS cut-rose exception similar to the terms of a previous exception. This Notice acknowledges receipt of Roses, Inc.'s request and invites comment on the request.

DATES:

Comments, identified by docket control number OPP-301000, must be received on or before August 7, 2000.

ADDRESSES:

Comments may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit I. of the “SUPPLEMENTARY INFORMATION.” To ensure proper receipt by EPA, it is imperative that you identify docket control number OPP-301000 in the subject line on the first page of your response.

FOR FURTHER INFORMATION CONTACT:

Robert I. Rose, Field and External Affairs Division (7506C), Office of Pesticide Programs, Environmental Protection Agency, Ariel Rios Bldg., 1200 Pennsylvania Ave., Washington, DC 20460; telephone number: [phone]; fax number: [phone]; e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

You may be potentially affected by this action if you are a rose producer or harvester or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:

Categories	NAICS codes	Examples of potentially affected entities
Agriculture	11	Agriculture, forestry, fishing and hunting
Agriculture pest control services	115112	Control of rose pests and diseases
Crop harvesting	115113	Cut rose harvesting
Postharvest crop activities	115114	Reentry for management and maintenance
Agriculture production or harvesting crews	115115	Rose harvesters

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this table could also be affected. The North American Industrial Classification System (NAICS) codes are provided to assist you and others in determining whether or not this action might apply to certain entities. The complete NAICS codes and descriptions are listed at: http://www.census.gov/​epcd/​www/​naics.html. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under “FOR FURTHER INFORMATION CONTACT.”

B. How Can I Get Additional Information, Including Copies of this Document and Other Related Documents?

1. Electronically. You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/​. To access this document, on the Home Page select “Laws and Regulations” and then look up the entry for this document under the “Federal Register—Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/​fedrgstr/​.

2. In person. The Agency has established a docket for this action under docket control number OPP-301000. The docket consists of documents specifically referenced in this action, any public comments received during an applicable comment period, and other information related to this action. The public version of the official record does not include any information claimed as confidential business information (CBI). The public version of the official record including printed paper versions of electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA, from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is [phone].

C. How and to Whom Do I Submit Comments?

You may submit comments through the mail, in person, or electronically. To ensure proper handling by EPA, it is imperative that you identify docket control number OPP-301000 in the subject line on the first page of your response.

1. By mail. Submit your comments to: Public Information and Records Integrity Branch (PIRIB), Information Resources and Services Division (7502C), Office of Pesticide Programs (OPP), Environmental Protection Agency, Ariel Rios Bldg., 1200 Pennsylvania Ave., Washington, DC 20460.

2. In person or by courier. Deliver your comments to: Public Information and Records Integrity Branch (PIRIB), Information Resources and Services Division (7502C), Office of Pesticide Programs (OPP), Environmental Protection Agency, Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA. The PIRIB is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is [phone].

3. Electronically. You may submit your comments electronically by e-mail to: “[e-mail]”, or you can submit a computer disk to the address above. Do not submit any information electronically that you consider to be CBI. Avoid the use of special characters and any form of encryption. Electronic submissions will be accepted in Wordperfect 6.1/8.0 or ASCII file format. All comments in electronic form must be identified by docket control number OPP-301000.

D. How Should I Handle CBI That I Want to Submit to the Agency?

Do not submit any information electronically that you consider to be CBI. You may claim information that you submit to EPA in response to this document as CBI by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. In addition to one complete version of the comments that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public version of the official record. Information not marked confidential will be included in the public version of the official record without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under “FOR FURTHER INFORMATION CONTACT” section.

E. What Should I Consider as I Prepare My Comments for EPA?

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide copies of any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.

5. Provide specific examples to illustrate your concerns.

6. Make sure to submit your comments by the deadline in this notice.

7. To ensure proper handling by EPA, be sure to identify the docket control number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and Federal Register citation.

II. Background

A. What Action is the Agency Taking?

The Agency is announcing the receipt of a request from Roses, Inc., of Haslett Michigan, representing rose growers throughout the U.S. for an exception to the USEPA Worker Protection Standard to allow early entry of workers to harvest greenhouse grown fresh cut roses prior to the end of pesticide reentry intervals. The rationales supporting this request are provided. The Agency is providing a 60-day period for public comment before making a final decision.

B. WPS Background

Introduced in 1974, and revised in 1992, the Worker Protection Standard (WPS) 40 CFR part 170, is intended to protect agricultural workers and pesticide handlers from risks associated with agricultural pesticides. The WPS covers employees working in or on farms, forests, nurseries, and greenhouses who perform hand-labor operations in areas treated with pesticides. It also applies to workers who mix, load, apply or otherwise handle pesticides. The WPS contains requirements for pesticide safety training, notification of pesticide applications, use of personal protective equipment (PPE), restricted entry intervals (REIs) following pesticide application, decontamination supplies, and emergency medical assistance.

40 CFR 170.112 prohibits agricultural workers from entering a pesticide-treated area during an REI. Under specified conditions, the WPS contains exceptions (40 CFR 170.112(b-e)) to the general prohibition against worker entry into treated areas during the REI.

EPA may establish exceptions under 40 CFR 170.112(e) to the WPS provisions restricting early entry to perform routine hand-labor tasks. The WPS defines hand-labor as any agricultural activity performed by hand or with hand tools that causes a worker to have substantial contact with treated surfaces such as plants or soil that may contain pesticide residues. The process and information that must be included in a request for exception is described in 40 CFR 170.112(e)(1). When a request is received, EPA issues a public notice stating that an exception is being considered and describes the nature of the exception. At least 30 days is allowed for public comment. EPA grants or denies the exception request based on a risk-benefit analysis as required by 40 CFR 170.112(e)(3).

C. WPS Cut-Rose Exception History

In June 1994, EPA granted a 2-year exception to the WPS for cut rose harvest in response to a request from the floral industry. This exemption allowed early entry to harvest greenhouse-grown cut roses under certain specified conditions. It expired on June 10, 1996. In the spring of 1996, Roses, Inc., a rose-grower association, approached the Agency with the need to continue the exception. Roses, Inc. stated the domestic cut-rose industry would not survive economically without the exception. After consulting with the rose industry, EPA published a notice in the Federal Register of October 30, 1996 (61 FR 56099) (FR-5571-8). This notice acknowledged receipt of Roses, Inc.'s request, described their proposal and provided a 30-day public comment period. On December 18, 1996, the Agency sent a letter to the cut-rose community announcing the WPS Cut-Rose Exception. In the Federal Register of October 3, 1997 (62 FR 51993) (FRL-5599-2), the Agency announced that it had granted a limited administrative exemption to the 1992 WPS restrictions on early entry into pesticide-treated areas allowing workers to hand harvest roses during REIs. It was effective from December 18, 1996 until October 4, 1999.

III. Regulatory Assessment

A. Roses, Inc.'s Exception Request

Summary of request: Roses, Inc. asserts that without an early-entry exception allowing cut roses to be harvested at least two times per day, cut-rose growers will lose a significant portion of the cash value of their crop. The competitive market in the United States requires that roses be cut at a narrowly specific stage of bud development, after which, they decrease in value. The required twice daily harvest is not possible when pesticides with an REI greater than 4 hours have been applied because the WPS early-entry restriction eliminates the possibility of a second harvest on the day of pesticide treatment. For longer reentry intervals, additional harvests on subsequent days may also not be possible. Roses, Inc. estimates the losses to be as high as $35,000 per acre per year from not being able to cut roses at the most appropriate stage of bud development due to pesticide REI requirements. The fresh cut-rose industry competes with roses imported from countries where labor costs are often less per day than a U.S. grower's pay per hour. Roses, Inc. states growers have not moved to alternative methods of crop pest and disease protection because reliable, safe, proven pest management controls are not yet in the market. Those that are available are typically more costly than conventional chemical pesticide programs and not as effective.

Considering the specific harvest and pest and disease control requirements of the crop, the need for a cosmetically perfect rose and competitive market pressure from imports, Roses, Inc. asserts that an early-entry exception to the WPS is essential to the cut-roses industry. Without it, the loss of roses would be more than rose flower producers could economically withstand.

Exemption usage: Roses, Inc. surveyed those cut-rose growers that had not registered to use the most recent exemption to determine their reasons. Twenty survey response forms were returned. Each response had one or more reasons for not registering to use the exemption. Eleven indicated they were making a tight bud cut and harvest before each spray application and did not enter before the expiration of the REI. Eight said they did not need the exception because they have a local market that will accept roses that are more open than would be accepted in traditional markets. Five reported they would rather suffer the loss of roses too far open to market or accept a lower price for open roses than use the exception. Eighteen also indicated they spray 12-hour REI (or less) pesticides at night and harvest in the morning when the REI has expired.

Exemption terms proposed by Roses, Inc: Roses, Inc. is proposing a further exception to the WPS to allow trained workers to enter a pesticide-treated greenhouse to harvest roses under certain conditions before the end of the REI. Roses, Inc. proposes the following conditions.

All growers who wish to use the exception would be required to register for the exemption with EPA. Roses, Inc. proposes that the appropriate form be filed with Roses, Inc. Roses Inc. would consolidate the forms and transmit them to EPA. Exemption would be granted only to growers that are members of Roses, Inc.

The exemption would last 5 years. Roses, Inc. proposes that the first 2 years of the exception have the same conditions as the current exception followed by a planned phaseout in years 3, 4, and 5. The third year of the exception would limit rose harvest before the end of the pesticide REI to only those harvest periods just prior to major floral holidays such as Mother's Day, Valentine's Day, Easter, Christmas, and New Year's and other recognized floral holidays. The frequency of use would be limited at other times of the year to no more than once every 2 weeks. Individual growers would be required to submit a statement to Roses, Inc. explaining their need for the exemption to justify its use during the 4th year of the exemption. Roses, Inc. would consolidate these statements and submit them to the Agency. An individual statement of need would continue to be required during the 5th year of the exemption. The exemption would terminate at the end of its 5th year.

Roses, Inc. bases its exception request on the following proposed conditions. There is continued development of IPM programs that include effective and economic predator and parasite biological control agents for the rose greenhouse industry during the proposed 5 years of the exemption. There is also continued development and registration of effective short REI pesticides for this industry during this time. An annual review of the exception and the industry's progress toward phasing out the exception would be conducted by Roses, Inc. and the Agency. There is continued EPA support of the Rose Exception Advisory Workgroup. The Food Quality Protection Act will not negatively impact the cut-rose industry because of mitigation measures or suspensions based on aggregate and cumulative risk assessments. Increasing foreign imports will not be priced so low that individual growers cannot afford transition to new insect and disease control agents and products that facilitate optimal harvesting procedures. The National Institute for Occupational Safety and Health study on risk to early-entry workers in the rose greenhouse does not produce significant adverse effects data on early entry after pesticide use or other adverse pesticide effects in floral greenhouses.

B. Agency Assessment, Concerns, and Opinion

Under CFR 40 170.112, (e) Exception requiring Agency approval—(1) Requesting an exception, the following information must be submitted to the Agency for an exception to be considered:

(i) The name, address and telephone number of the submitter.

(ii) The time period for which the exception is requested.

(iii) A description of the crop(s) and specific crop production tasks for which the exception is requested.

(iv) A description of the geographic area for which the exception is requested.

(v) An explanation as to why, for each requested crop-task combination, alternative practices would not be technically or financially viable. This information should include estimates or data on a per acre revenue and cost of production for the crop and area for which the exception is requested. These estimates or data should include: the situation prior to implementation of this final rule, the situation after implementation of this final rule if the exception is not granted, the situation after implementation of this final rule if the exception is granted, and specific information on individual factors which cause differences in revenues and costs among the three situations.

(vi) A description or documentation of the safety and feasibility of such an exception, including, but not limited to, the feasibility of performing the necessary hand labor activity while wearing the personal protective equipment required for early entry for the pesticide(s) expected to be applied, the means of mitigating heat-related illness concerns, the period of time required daily per worker to perform the hand labor activity, any suggested methods of reducing the worker's exposure, and any other mitigating factors such as the availability of running water for routine and emergency decontamination and mechanical devices that would reduce the workers' contact with the treated surfaces.

The information should include the costs associated with early-entry, such as decontamination facilities, special information and training for the workers, heat stress avoidance procedures, and provision, inspection, cleaning, and maintenance of PPE. EPA will not grant exceptions where the costs of early entry equal or exceed the expected loss in value of crop yield or quality.

Since receipt of Roses, Inc.'s request for an exception, the Agency has been discussing the content with Roses, Inc. and within the Agency to better understand and supplement the request with other information. Even though the request remains incomplete, the Agency has chosen to publish this notice of receipt and would like public comment prior to making a decision on the request.

The petition by Roses, Inc. does not adequately address the information requirements regarding specific information on individual factors which cause differences in revenues and costs. The petition also did not provide the information required regarding the means of mitigating heat-related illness concerns, the period of time required daily per worker to perform the hand labor activity, and the costs associated with early-entry as stated above.

The Agency would also like to consider a narrower exception request, such as one confined to specific pesticide products, time, pest or infestations where risks and benefits can be better defined. This would allow for an exception with potentially less risk for workers because of less frequent exposure.

C. Comments Solicited

The Agency is interested in a full range of comments and information on this exception request. The Agency particularly welcomes comments supported by information that would help establish the economic need for the exception in light of the significant number of rose growers that continue production without it, the appropriate group to administer or manage the exception since Roses Inc. has proposed to administer several aspects such as grower registration, justification of need, limitation of eligibility to use an exception to Roses, Inc. membership, and pesticide exposure risks to workers from allowing early entry for harvesting. Data and information that will assist worker and harvester risk assessment and adverse incident reports are of particular need. Through public comment, the Agency is seeking information to further improve the risk-benefit analysis. Individuals are encouraged to provide comments on all or any portions of the information sought by the Agency.

List of Subjects in 40 CFR Part 170

• Environmental protection
• Administrative practice and procedure
• Occupational safety and health
• Pesticides and pests
• Roses

Dated: May 23, 2000.

Marcia E. Mulkey,

Director, Office of Pesticide Programs.