[Federal Register Volume 60, Number 28 (Friday, February 10, 1995)]
[Rules and Regulations]
[Pages 8118-8124]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3287]
[[Page 8117]]
_______________________________________________________________________
Part II
Department of Agriculture
_______________________________________________________________________
Agricultural Marketing Service
_______________________________________________________________________
7 CFR Part 110
Recordkeeping Requirements for Certified Applicators of Federally
Restricted Use Pesticides; Final Rule
Federal Register / Vol. 60, No. 28 / Friday, February 10, 1995 /
Rules and Regulations
[[Page 8118]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 110
[SD-94-001]
RIN 0581-AB22
Recordkeeping Requirements for Certified Applicators of Federally
Restricted Use Pesticides
AGENCY: Agricultural Marketing Service (AMS), USDA.
ACTION: Final rule.
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SUMMARY: The Agricultural Marketing Service, United States Department
of Agriculture, is amending its regulations governing recordkeeping of
federally restricted use pesticides by certified applicators. The final
regulations revise the definitions of the terms ``medical emergency''
and ``licensed health care professional,'' provide new requirements for
recording the location of ``spot applications'' of federally restricted
use pesticides, reduce the time period for a certified applicator to
make a record of the application of a federally restricted use
pesticide, clarify the circumstances under which licensed health care
professionals may obtain, utilize, and release restricted use pesticide
records or record information, and clarify the penalty provisions in
the regulations. The changes to the rule ensure that the regulations
are consistent with the objectives of section 1491 of the Food,
Agriculture, Conservation, and Trade Act of 1990. The changes should
further ensure accuracy of records of the application of federally
restricted use pesticides, and improve the ability of licensed health
care professionals to provide medical treatment to an individual who
may have been exposed to a federally restricted use pesticide.
EFFECTIVE DATE: May 11, 1995.
FOR FURTHER INFORMATION CONTACT: Bonnie Poli, Chief, Pesticide Records
Branch, Science Division, AMS, 8700 Centreville Road, Suite 200,
Manassas, VA 22110, 703-330-7826.
SUPPLEMENTARY INFORMATION:
Executive Order 12866 and Regulatory Flexibility Act
This rule has been determined to be significant for purposes of
Executive Order 12866 and therefore has been reviewed by OMB.
This rule also has been reviewed under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). This rule will (1) revise certain
definitions within the regulations; (2) require the location of spot
applications of federally restricted use pesticides be designated as
``spot application'' followed by a concise description of location and
treatment; (3) reduce the time period within which the information
required by the regulations must be recorded; (4) clarify the
availability of pesticide record information to facilitate medical
treatment or first aid; (5) clarify the utilization and release of
pesticide records or record information by licensed health care
professionals; and (6) clarify the penalty provisions.
The Administrator of AMS has determined that approximately 1.3
million certified pesticide applicators (980,000 private and 300,000
commercial applicators) will be affected by this final rule. However,
we do not anticipate that any of the revisions to the regulations or
additional requirements will result in any significant additional
economic impact on certified applicators of federally restricted use
pesticides. The amendments to the rule will not increase the amount of
time necessary for a certified applicator to record the information
required by the regulations. Although the regulations will require
certified applicators to record a concise description of the location
of a ``spot application,'' this requirement does not significantly
increase the time to make a record.
Under these circumstances, the Administrator of the Agricultural
Marketing Service has determined that this action will not have a
significant economic impact on a substantial number of small entities.
Executive Order 12778
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. This rule: (1) will not preempt any state or local
laws, regulations, or policies, unless they present an irreconcilable
conflict with this rule; (2) will not have any retroactive effect; and
(3) will not require administrative proceedings before parties may file
suit challenging this rule.
Paperwork Reduction Act
In accordance with Section 3507 of the Paperwork Reduction Act of
1980 (44 U.S.C. 3507), the recordkeeping provisions included in this
rule have been approved by the Office of Management and Budget (OMB),
number 0581-0164.
Background
As part of the Food, Agriculture, Conservation, and Trade Act of
1990 (7 U.S.C. 136i-1), hereinafter referred to as the FACT Act,
Congress mandated the establishment by the Secretary of Agriculture, in
consultation with the Administrator of the Environmental Protection
Agency, of requirements for recordkeeping by all certified applicators
of federally restricted use pesticides.
The regulations at 7 CFR part 110, ``Recordkeeping Requirements for
Certified Applicators of Federally Restricted Use Pesticides,''
(hereinafter referred to as the regulations) require certified
pesticide applicators to maintain records of federally restricted use
pesticide applications for a period of 2 years. The regulations also
provide for access to pesticide records or record information by
federal or state officials, or by licensed health care professionals
when needed to treat an individual who may have been exposed to
restricted use pesticides, and penalties for enforcement of the
recordkeeping and access provisions. The regulations became effective
on May 10, 1993.
After publication of the regulations, AMS proceeded with the
implementation of a national program for recordkeeping of federally
restricted use pesticides. Early in the implementation phase of the AMS
recordkeeping program, state regulatory agencies and others raised
issues involving specific interpretations of the regulations. A lawsuit
was filed against the Secretary of Agriculture and the Administrator of
the Environmental Protection Agency by the National Coalition Against
the Misuse of Pesticides and others. The lawsuit challenged the
substance of limited portions of the final regulations promulgated by
AMS.
Proposed Rule
After a thorough review of the regulations and consideration of the
issues raised by the lawsuit, we published a document on April 6, 1994,
in the Federal Register (59 FR 16400-16403), proposing to amend the
recordkeeping regulations for federally restricted use pesticides.
Comments on the Proposed Rule
AMS solicited comments concerning our proposal for a 60 day comment
period ending June 6, 1994. We received 47 comments from certified
pesticide applicators, medical professionals, agricultural and
farmworker organizations, State Departments of Agriculture, State
Cooperative Extension Services and other individuals and groups. The
comments received and our responses to those comments are as follows.
[[Page 8119]]
Section 110.2--Definitions
Licensed Health Care Professional
The current regulations define ``licensed health care
professional'' as ``a physician, nurse, emergency medical technician or
other qualified individual, licensed by a State to provide medical
treatment.''
AMS proposed to amend the definition of a ``licensed health care
professional'' to mean ``a physician, nurse, emergency medical
technician or other qualified individual, licensed or certified by a
state to provide medical treatment.'' AMS proposed this amendment to
clarify our intention to include qualified individuals who have been
certified by a state to provide medical treatment in the definition of
``licensed health care professional.''
Many comments supported the proposed change in the definition
citing the need to include all individuals who are either state
certified or licensed, and are qualified to provide medical treatment
in cases of pesticide related illness in the definition of ``licensed
health care professional.'' For example, one commentor stated, ``the
proposed definition recognizes the realities of modern health care, in
that many tasks are performed by paraprofessionals and other persons
working under the direction of licensed professionals.'' Another
commentor stated, ``* * * often the first responder for medical
emergencies or medical care is not a licensed health care professional.
The definition needs to be broadened to include other professionals to
ensure greater access to immediate and appropriate medical treatment.''
AMS agrees that under some circumstances certified individuals are
qualified to provide medical treatment for pesticide related exposures.
Some states use the term ``certified'' and ``licensed''
interchangeably. For example, a ``licensed nurse practioner'' in one
state may be classified as a ``certified nurse practioner'' in another
state. Therefore, this final rule amends the definition of ``licensed
health care professional'' to include any qualified individuals
certified by a state to provide medical treatment. However, individuals
who have been certified only to provide first aid or cardiopulmonary
resuscitation (CPR) through organizations such as the American Red
Cross are not included in the definition of ``licensed health care
professional'' in this final rule.
AMS also received comments which expressed concerns that allowing
access by ``certified'' individuals would greatly expand access to
private record information to individuals who are not qualified to
provide proper treatment for pesticide related illnesses. One commentor
stated, ``* * * there are 23 different health care professionals
certified by the state including such professions as: Athletic
Training, Chiropractic, Mental Health Practice, Physical Therapy and
Psychology. Under the proposed changes, these professionals would be
able to request records and release the information. This change would
not increase health protection, but rather provide an avenue for non-
related health care professionals to have access to private records.''
We agree with comments received expressing concerns that certified
individuals such as physical or athletic therapists should not be able
to request pesticide record information. We are addressing these
concerns in section 110.5(a) by allowing only the attending licensed
health care professional, or an individual acting under the direction
of the attending licensed health care professional, access to record
information. This amendment to section 110.5(a) should eliminate the
request for pesticide record information by individuals who are not
qualified to provide medical treatment for pesticide related injuries
or illness.
For these reasons, we are adopting the proposed language.
``Licensed health care professional'' shall be defined as ``a
physician, nurse, emergency medical technician, or other qualified
individual, licensed or certified by a State to provide medical
treatment.''
Medical Emergency
The current regulations define ``medical emergency'' as ``injuries
or illnesses which require immediate medical attention to prevent life-
threatening or disabling conditions.''
AMS proposed to change the definition of ``medical emergency''
after concerns were raised that the definition was too restrictive and
could hinder medical treatment by licensed health care professionals of
individuals who may have been exposed to a federally restricted use
pesticide. It was not the intent of AMS to limit medical treatment of
persons who may have been exposed to a restricted use pesticide.
Therefore, AMS proposed that the term ``medical emergency'' be defined
as ``a situation that requires immediate medical treatment or first
aid.''
AMS received 27 comments concerning the proposed change to the
definition of ``medical emergency.'' The commentors who supported the
proposed definition stated that the current definition was too
restrictive. For example, one commentor stated that the proposed
definition ``* * * ensures that all instances of pesticide related
illnesses can be appropriately dealt with; that they do not get omitted
inadvertently due to an overly narrow definition.'' Another commentor
stated, ``Expanding this definition ensures the appropriate care and
medical response for all pesticide related illnesses.''
Commentors who opposed the proposed change stated that the current
and proposed definitions of ``medical emergency'' are too broad because
they encompass illnesses or injuries that have nothing to do with
possible pesticide poisonings. One of these commentors stated that
``The definition should refer to and be limited to the related
pesticide situation to avoid confusion and misunderstanding.'' However,
the comments opposing the change to the definition did support
providing the record information when appropriate for pesticide related
illness.
AMS agrees that the current definition of ``medical emergency'' is
too restrictive and could hinder appropriate medical treatment to
individuals who may have been exposed to a federally restricted use
pesticide. After considering the comments, we have adopted a definition
that is less restrictive than the current definition and provides for
more appropriate access to record information for a medical emergency.
The definition of ``medical emergency'' in the final rule encompasses
situations that require immediate medical treatment or first aid as set
forth in the proposal. Further, in response to the comments which
stated that the definition was too broad, we added a phrase which
limits the definition of medical emergency to situations that require
treatment or first aid ``to treat possible symptoms of pesticide
poisoning or exposure.''
Therefore, this final rule amends the definition of ``medical
emergency'' to read as follows: ``A situation that requires immediate
medical treatment or first aid to treat possible symptoms of pesticide
poisoning or exposure.''
Section 110.3(a)(6)--Spot Applications
The current pesticide recordkeeping regulations provide reduced
requirements for recording information for ``spot applications.''
Section 110.3(a)(6) provides that applications of restricted use
pesticides made on the same day in a total area of less than one-tenth
(1/10) of an acre require the following elements be recorded: (1) Brand
or product name and EPA registration number; (2) total amount applied;
(3) location must be designated as ``spot application''; and (4) the
date of application. Section 110.3(a)(6) does [[Page 8120]] not apply
to records maintained for greenhouse and nursery applications.
The reduced requirements for recordkeeping information for ``spot
applications'' were intended to provide certified applicators with an
incentive to record small spot applications on noxious weeds or similar
type applications, without recording each location, due to the usually
small amount of pesticide associated with a spot application.
After concerns were raised that the required spot application
record information was not adequate for medical treatment because a
specific location was not required to be recorded for each spot
application, AMS proposed to delete section 110.3(a)(6), the spot
application record element. By deleting section 110.3(a)(6), spot
applications would be recorded in the same manner as all other
federally restricted use pesticide applications.
AMS received 35 comments addressing the deletion of the spot
application provision. Comments which supported the deletion of the
spot application provision generally stated that specific locations can
provide important information for medical treatments. For example one
commentor stated, ``In cases where an individual may have been poisoned
by a spot application, it may be critically important to know the
specific location of the application.''
Comments opposing the proposed change stated that it would be
extremely difficult to record the specific location of a spot
application. For example one commentor stated that ``It would be very
difficult, if not impossible, to provide the exact legal description of
the area treated.'' Other commentors were concerned that the proposed
change would be extremely burdensome to certified applicators, increase
their workload and operating costs, and therefore have an economic
impact. Other commentors stated that if the recordkeeping requirements
become too burdensome, the net result would be non-compliance.
AMS recognizes the importance of location information where an
entire field or area has been treated. AMS also recognizes that, in
some instances, knowing that a spot application was performed could be
valuable information when needed to determine if a possible pesticide
exposure could have occurred in a field or area.
Moreover, because the purpose of a spot application is to apply
pesticide to a small area targeting a specific pest, such as noxious
weeds or an ant mound, it would be impractical to require certified
applicators to supply a precise description of each application within
a field or production area, in order to make an exact determination if
a possible pesticide exposure occurred.
In order to provide information on the location of spot pesticide
applications, and avoid a cumbersome recording requirement for such
spot applications, this final rule maintains the spot application
provision in the regulations, but requires a more detailed description
of the location of spot applications to be recorded than is currently
required by section 110.3(a)(6). This final rule requires the certified
applicator to provide location, designated as ``spot application,''
followed by a concise description of the location and treatment for
spot applications of a federally restricted use pesticide. For example,
a certified applicator who applied pesticides for noxious weeds could
record the location and treatment as ``spot application,'' followed by
a concise description such as ``treated thistle over entire farm
acreage;'' a certified applicator who treated for fire ants could
record the location of the application by stating ``spot application,
sprayed fire ant mounds on pastures of lower creek farm.'' The
description of the location of spot applications should assist licensed
health care professionals to determine whether an individual has been
exposed to a federally restricted use pesticide.
Additionally we are making other changes for clarification and
consistency between the recordkeeping requirements for spot
applications and those for other applications set forth at section
110.3(a)(1-5) which is redesignated in this final rule as section
110.3(a). We are amending section 110.3(a)(6)(iv) from ``the date of
application'' to ``the month, day, and year on which the restricted use
pesticide application occurred.'' This language is consistent with that
used in section 110.3(a)(4).
Accordingly, this final rule amends the spot application provision
in section 110.3(a)(6), which is redesignated in this final rule as
section 110.3(b), to require certified applicators to maintain records
of applications of restricted use pesticides made on the same day in a
total area of less than one-tenth (1/10) of an acre. These records must
include, for the application, the brand or product name and EPA
registration number; total amount applied; location, designated as
``spot application,'' followed by a concise description of location and
treatment; and the month, day, and year on which the restricted use
pesticide application occurred. This final rule does not change
requirements as previously established for greenhouse and nursery
applications of restricted use pesticides. The provisions for spot
applications do not apply to applications of restricted use pesticides
in greenhouses and nurseries. Instead, certified applicators who make
applications in greenhouses and nurseries are required to keep all the
data elements required by section 110.3(a).
Section 110.3(b)--Time for Making an Official Record
The current regulations provide that the information required for a
record shall be recorded within 30 days following the pesticide
application.
Concerns were raised regarding the accuracy of the records for both
collecting information for a pesticide use data base and for medical
treatment if application information was only required to be recorded
within 30 days following the pesticide application. AMS responded by
proposing that a record of the application of a restricted use
pesticide be made within 7 days following the pesticide application.
AMS received 41 comments on this issue. Comments ranged from
suggestions that a record be completed upon application, within 24
hours, shortened to 2 days, 3 days, 5 days, 14 days and maintained at
the 30 day time period.
Some commentors supported requiring certified applicators to record
the required pesticide information within 7 days or less after
application of the pesticide in order to have information available for
medical treatment of possible pesticide exposure. AMS supports the need
to have accurate information available in cases of medical treatment
and has addressed these concerns by requiring in section 110.5(a), as
amended by this final rule, that certified applicators provide the
record information promptly to the atttending licensed health care
professional when necessary to provide medical treatment or first aid,
and immediately when the attending licensed health care professional
determines that there is a medical emergency.
AMS disagrees with those commentors who stated that pesticide
application information must be recorded shortly after the pesticide
has been applied so that it can be available for medical treatment. The
current regulations require certified applicators to provide accurate
record information for purposes of providing medical treatment or first
aid, in accordance with section 110.5(a), whether or not the time to
make a written record has elapsed. This final rule amends the
[[Page 8121]] regulations by adding language which clarifies the
certified applicator's responsibility to provide federally restricted
use pesticide record information for medical treatment.
AMS also received comments supporting allowing 30 days to record
pesticide application information because it was consistent with
section 1491(a)(2) of the FACT Act which requires certified commercial
applicators to provide a copy of a restricted use application record
within 30 days of the application. Although the FACT Act requires
certified commercial applicators to provide a copy of the record
information to their clients within 30 days of application, it does not
provide a time period within which a certified applicator, private or
commercial, shall make a record.
In addition, numerous commentors supported the 30 day period to
make a record because they believed the 7 days did not provide
certified applicators adequate time to make a record in peak production
periods. AMS has reevaluated the proposed 7 day time period and agrees
that during peak production periods certified applicators could need
more time to make accurate records due to the long hours many
applicators spend in the field during those periods.
Therefore, to provide a balanced approach to assure accurate
information for data collection on federally restricted use pesticides
and provide adequate time for certified applicators to make a record,
we are amending section 110.3(b), which is redesignated in this final
rule as section 110.3(c), to require that certified applicators must
complete the record within 14 days following the pesticide application.
However, whether or not the written record has been completed, the
certified applicator shall provide the information to be recorded in
accordance with section 110.5(a).
AMS also received comments from certified commercial applicators
objecting to the change in the time frame to provide copies of
restricted use application records to clients from 30 days to the
proposed 7 days. We did not propose to change, nor does this final rule
change the time within which certified commercial applicators must
provide clients with copies of records of restricted use applications.
Certified commercial applicators are still given 30 days to provide a
copy of the federally restricted use application record to their
clients.
AMS also received comments requesting clarification of the use of
the term ``official record'' in the supplementary information in the
proposed rule. The use of the term ``official record'' was incorrect.
Its use was our attempt to describe the recording of a pesticide
application as required under 7 CFR part 110.
Section 110.5(a)--Availability of Records To Facilitate Medical
Treatment
Currently, section 110.5(a) of the rule states: ``When a licensed
health care professional determines that any record of the application
of restricted use pesticide required to be maintained under Sec. 110.3
of this part is necessary to provide medical treatment or first aid to
an individual who may have been exposed to the restricted use pesticide
for which the record is maintained, the certified applicator required
to maintain the record shall provide the record information and any
available label information promptly to the licensed health care
professional. If it is determined by a licensed health care
professional to be a medical emergency, the record information of the
restricted use pesticide relating to the medical emergency shall be
provided immediately.''
AMS proposed to amend section 110.5(a) to address concerns that if
a strict interpretation was applied to this section, it would require
the licensed health care professional to personally make the record
information request and possibly hinder access to record information
and medical treatment. AMS never intended to prevent an individual
acting under the direction of the attending licensed health care
professional from requesting record information. We are aware that, in
some instances, the attending licensed health care professional may
rely on a person acting under his/her direction to make the contacts
necessary to obtain the pesticide record information.
In order to clarify the regulations concerning the availability of
pesticide record information to facilitate medical treatment, AMS
proposed to amend section 110.5(a) to provide that either the licensed
health care professional or an individual acting under the direction of
the attending licensed health care professional could request record
information when necessary to provide medical treatment or first aid.
The proposed amendment reads as follows: ``When a licensed health care
professional, or an individual acting under the direction of the
attending licensed health care professional, determines that any record
of the application of restricted use pesticide required to be
maintained under Sec. 110.3 of this part is necessary to provide
medical treatment or first aid to an individual who may have been
exposed to the restricted use pesticide for which the record is or will
be maintained, the certified applicator required to maintain the record
shall promptly provide the record information and any available label
information. If it is determined by a licensed health care
professional, or an individual acting under the direction of the
attending licensed health care professional, to be a medical emergency,
the record information of the restricted use pesticide, relating to the
medical emergency, shall be provided immediately.''
AMS received 28 comments regarding proposed section 110.5(a). Most
of the commentors supported the proposed change. Additionally, several
commentors supported the concept of the proposed amendment, but
suggested changes in the proposed language to decrease the possibility
of unqualified licensed health care professionals obtaining the record
information.
After consideration of the comments, AMS agrees that the proposed
language could be more specifically worded to address comments received
regarding access to records by licensed health care professionals who
may not be qualified to provide treatment for pesticide related
illness. Therefore, we are adding the word ``attending'' to licensed
health care professional to be consistent throughout the rule and help
eliminate request for records or record information from individuals
who may be licensed or certified by a state to provide medical
treatment or first aid, but are not qualified to provide medical
treatment for possible pesticide injury or illness. This final rule
amends section 110.5(a) to read as follows:
When the attending licensed health care professional, or an
individual acting under the direction of the attending licensed health
care professional, determines that any record of the application of a
restricted use pesticide required to be maintained under Sec. 110.3 is
necessary to provide medical treatment or first aid to an individual
who may have been exposed to the restricted use pesticide for which the
record is or will be maintained, the certified applicator required to
maintain the record shall promptly provide the record information and
any available label information. If it is determined by the attending
licensed health care professional, or an individual acting under the
direction of the attending licensed health care professional, to be a
medical emergency, the record information of the restricted use
pesticide, relating to the medical emergency, shall be provided
immediately.
[[Page 8122]]
Section 110.5(b)--Release of Record Information by Licensed Health Care
Professionals
Under the current regulations, licensed health care professionals
may release record information obtained through section 110.5(a) only
when necessary to provide medical treatment or first aid to an
individual who may have been exposed to the restricted use pesticide
for which the record is maintained. Section 110.5(b) provides: ``No
licensed health care professional shall release any record or
information from the record obtained under paragraph (a) of this
section except as necessary to provide medical treatment or first aid
to an individual who may have been exposed to the restricted use
pesticide for which the record is maintained.''
Due to concerns that section 110.5(b) was too restrictive, AMS
proposed to expand the circumstances under which the pesticide record
information could be utilized and released, and to clarify who had the
authority to release this information. Accordingly, AMS proposed to
amend section 110.5(b) to provide: A licensed health care professional,
or an individual acting under the direction of the attending licensed
health care professional, may utilize and release the record or record
information obtained under paragraph (a) of this section when necessary
to provide medical treatment or first aid to an individual or
individuals who may have been exposed to the restricted use pesticide
for which the record is or will be maintained. Further utilization and
release of such record or record information is limited to licensed
health care professionals who may use it: (1) To submit pesticide
poisoning incident reports to appropriate State or Federal agencies, or
(2) where consideration of medical ethics may necessitate such
utilization and release.
In general, the comments received supported the proposed amendments
to section 110.5(b). However, many comments expressed concern with the
use of the term ``medical ethics'' as a criterion for the release of
pesticide record information. One commentor stated, ``* * * matters of
ethics are, in some respects, shared by a group, but are also
inherently personal and subjective.'' Numerous commentors also thought
that the use of ``medical ethics'' was vague and were opposed to the
proposal unless the phrase was clarified as to what constitutes
``consideration of medical ethics.'' However, the comments generally
supported the use of record information by the licensed health care
professional if it would prevent further pesticide health hazards.
AMS agrees with the comments stating that the attending licensed
health care professional in some instances should be able to utilize
pesticide record information to prevent additional poisoning or
injuries. AMS also agrees with the commentors that stated that the use
of the term ``medical ethics'' is vague and open for broad
interpretation. Therefore, the amended language deletes the use of the
phrase ``medical ethics.'' Accordingly, this final rule provides the
attending licensed health care professional with the ability to release
pesticide record information to appropriate agencies when necessary to
prevent further injury or illness.
In addition, comments expressed the need to allow licensed health
care professionals the flexibility to meet requirements of pesticide
poisoning incident reporting. Again, comments generally supported the
concept. However, some commentors were concerned about the certified
applicator's right to confidentiality in the process of reporting.
AMS agrees that the proposed language can be improved in order to
address many of the comments and still provide the needed flexibility
to assure that licensed health care professionals can utilize and
release the pesticide record information for appropriate reasons.
Therefore, we are amending section 110.5(b) to read as follows:
(1) The attending licensed health care professional, or an
individual acting under the direction of the attending licensed health
care professional, may utilize and release the record or record
information obtained under paragraph (a) of this section when necessary
to provide medical treatment or first aid to an individual who may have
been exposed to the restricted use pesticide for which the record is or
will be maintained. (2) The attending licensed health care professional
may release the record or record information to appropriate federal or
state agencies that deal with pesticide use or any health issue related
to the use of pesticides when necessary to prevent further injury or
illness. (3) A licensed health care professional may release the record
or record information to submit pesticide poisoning incident reports to
appropriate state or federal agencies.
Section 110.7--Penalties
Section 110.7 provides that ``any certified applicator who violates
7 U.S.C. 136i-1 (a), (b), or (c) shall be liable for a civil penalty of
not more than $500 in the case of the first offense, and of not less
than $1,000 in the case of each subsequent offense, except that the
penalty shall be less than $1,000 for a second offense if the
Administrator determines that the certified applicator made a good
faith effort to comply with this part.''
Several state pesticide regulatory agencies had questions regarding
the application of the penalty provisions in section 110.7. After
reexamining the issue, AMS proposed to amend section 110.7 to eliminate
any ambiguity and make it clear that the Administrator of AMS, or the
Administrator's designee, has flexibility in assessing civil penalties.
The proposed changes paralleled the language in subsection (d) of the
FACT Act. AMS proposed to amend section 110.7 to provide that ``any
certified applicator who violates the requirements of 7 U.S.C. 136i-1
(a), (b), or (c) shall be subject to a civil penalty of not more than
$500 in the case of the first offense, and in the case of subsequent
offenses, be subject to a fine of not less than $1,000 for each
violation, except that the penalty shall be less than $1,000 if the
Administrator, or his designee, determines that the certified
applicator made a good faith effort to comply with this Part.''
Numerous comments supported the proposed amendment. For example,
one commentor stated, ``* * * the flexibility to tailor penalties to
specific situations and consider the effort made to comply with the
regulations are essential elements of good program implementation and
enforcement.''
Comments opposing the proposed change asserted that the Secretary
of Agriculture should not have the discretion to waive the fine. AMS
disagrees. The FACT Act provides the Secretary discretion to determine
whether or not a penalty shall be assessed for violations of the FACT
Act, and to assess a penalty of less than $1,000 if the Secretary
determines that the certified applicator made a good faith effort to
comply.
Therefore, we are adopting the proposed language, with some minor
changes for clarity. This final rule amends section 110.7 to read as
follows: ``Any certified applicator who violates the requirements of 7
U.S.C. 136i-1 (a), (b), or (c) or this part shall be subject to a civil
penalty of not more than $500 in the case of the first offense, and in
the case of subsequent offenses, be subject to a civil penalty of not
less than $1,000 for each violation, except that the civil penalty
shall be less than $1,000 if the Administrator determines that the
certified applicator made a good faith effort to comply with 7 U.S.C.
136i-1 (a), (b), and (c) and this part.'' [[Page 8123]]
Other Comments
We also received a number of comments which are beyond the scope of
this rulemaking proceeding, and therefore we are not addressing those
comments in this final rulemaking document.
Conclusion
Based upon the rationale in the proposed rule and this rulemaking
document, we are adopting the provisions of the proposal as a final
rule, except as previously discussed in this document and except for
minor editorial changes for clarity.
List of Subjects in 7 CFR Part 110
Pesticide and pests, reporting and recordkeeping requirements.
Therefore, 7 CFR part 110, is amended as follows:
PART 110--RECORDKEEPING ON RESTRICTED USE PESTICIDES BY CERTIFIED
APPLICATORS; SURVEYS AND REPORTS
1. The authority citation for part 110 is revised to read as
follows:
Authority: 7 U.S.C. 136a(d)(1)(c), 136i-1, and 450; 7 CFR 2.17,
2.50.
2. In Sec. 110.2, the definition of the term ``licensed health care
professional'' is amended by adding the phrase ``or certified''
immediately following the word ``licensed''.
3. In Sec. 110.2, the definition of the term ``medical emergency''
is revised to read as follows:
Sec. 110.2 Definitions.
* * * * *
Medical emergency. A situation that requires immediate medical
treatment or first aid to treat possible symptoms of pesticide
poisoning or exposure.
* * * * *
4. In Sec. 110.2, the definition of the word ``recordkeeping'' is
amended by removing the reference to ``Sec. 110.3(a)(1) through (6) of
this part'' and adding ``Sec. 110.3(a) and (b)'' in its place.
5. Section 110.3 is amended as follows:
a. Paragraph (a) is revised as set forth below.
b. Paragraphs (b) through (g) are redesignated as paragraphs (c)
through (h) respectively.
c. New paragraph (b) is added to read as set forth below.
d. Redesignated paragraph (c) is revised as set forth below.
Sec. 110.3 Records, retention, and access to records.
(a) Certified applicators of restricted use pesticides shall
maintain records of the application of restricted use pesticides.
Except as provided in paragraph (b) of this section, these records
shall include the following information for each application:
(1) The brand or product name, and the EPA registration number of
the restricted use pesticide that was applied;
(2) The total amount of the restricted use pesticide applied;
(3) The location of the application, the size of area treated, and
the crop, commodity, stored product, or site to which a restricted use
pesticide was applied. The location of the application may be recorded
using any of the following designations:
(i) County, range, township, and section;
(ii) An identification system utilizing maps and/or written
descriptions which accurately identify location;
(iii) An identification system established by a United States
Department of Agriculture agency which utilizes maps and numbering
system to identify field locations; or
(iv) The legal property description.
(4) The month, day, and year on which the restricted use pesticide
application occurred; and
(5) The name and certification number (if applicable) of the
certified applicator who applied or who supervised the application of
the restricted use pesticide.
(b) Certified applicators shall maintain records of the application
of restricted use pesticides made on the same day in a total area of
less than one-tenth (\1/10\) of an acre. Except for applications of
restricted use pesticides in greenhouses and nurseries, to which the
requirements of paragraph (a) of this section apply, these records
shall include the following information for the application:
(1) The brand or product name, and the EPA registration number of
the restricted use pesticide that was applied;
(2) The total amount of the restricted use pesticide applied;
(3) The location of the application, designated as ``spot
application,'' followed by a concise description of location and
treatment; and
(4) The month, day, and year on which the restricted use pesticide
application occurred.
(c) The information required in this section shall be recorded
within 14 days following the pesticide application. However, whether or
not the written record has been completed, the certified applicator
shall provide the information to be recorded in accordance with
Sec. 110.5(a).
* * * * *
6. Section 110.5 is revised to read as follows:
Sec. 110.5 Availability of records to facilitate medical treatment.
(a) When the attending licensed health care professional, or an
individual acting under the direction of the attending licensed health
care professional, determines that any record of the application of any
restricted use pesticide required to be maintained under Sec. 110.3 is
necessary to provide medical treatment or first aid to an individual
who may have been exposed to the restricted use pesticide for which the
record is or will be maintained, the certified applicator required to
maintain the record shall promptly provide the record information and
any available label information. If it is determined by the attending
licensed health care professional, or an individual acting under the
direction of the attending licensed health care professional, to be a
medical emergency, the record information of the restricted use
pesticide, relating to the medical emergency, shall be provided
immediately.
(b)(1) The attending licensed health care professional, or an
individual acting under the direction of the attending licensed health
care professional, may utilize and release the record or record
information obtained under paragraph (a) of this section when necessary
to provide medical treatment or first aid to an individual who may have
been exposed to the restricted use pesticide for which the record is or
will be maintained.
(2) The attending licensed health care professional may release the
record or record information to appropriate federal or state agencies
that deal with pesticide use or any health issue related to the use of
pesticides when necessary to prevent further injury or illness.
(3) A licensed health care professional may release the record or
record information to submit pesticide poisoning incident reports to
appropriate state or federal agencies.
7. Section 110.7 is revised to read as follows:
Sec. 110.7 Penalties.
Any certified applicator who violates 7 U.S.C. 136i-1 (a), (b), or
(c) or this part shall be subject to a civil penalty of not more than
$500 in the case of the first offense, and in the case of subsequent
offenses, be subject to a civil penalty of not less than $1,000 for
each violation, except that the civil penalty shall be less
[[Page 8124]] than $1,000 if the Administrator determines that the
certified applicator made a good faith effort to comply with 7 U.S.C.
136i-1 (a) (b), and (c) and this part.
Dated: February 2, 1995.
Lon Hatamiya,
Administrator.
[FR Doc. 95-3287 Filed 2-9-95; 8:45 am]
BILLING CODE 3410-02-P
