Letter Expresses Ag Groups WPS Concerns

March 3, 2016

The Honorable Michael Conaway, Chairman
The Honorable Collin Peterson, Ranking Minority Member
House Committee on Agriculture
1301 Longworth HOB
Washington, DC 20515

Dear Chairman Conaway and Rep. Peterson:

Several weeks ago, in advance of your committee's oversight hearing on EPA, our organizations outlined concerns we have with numerous policies being implemented by the agency. One of those issues is the worker protection standard (WPS) rule recently promulgated by the agency. Provisions of that rule become effective in January 2017.

Even though EPA, by its own admission, could not identify or quantify many of the benefits of the rule, the agency nevertheless imposed many new requirements – from record-keeping requirements for growers and restricted grower flexibility in managing crops to imposition of additional training costs and new, unfunded mandates on state lead agencies.

Above and beyond substantive concerns, it appears that EPA did not follow the law in promulgating this rule. Section 25(a)(2)(B) of the Federal Insecticide, Fungicide and Rodenticide Act[1] provides that "at least 30 days prior to signing any regulation in final form for publication in the Federal Register," EPA must provide to your committee a copy "of such regulation." It is our understanding that the May 2015 "draft final" regulation provided to your committee does not reflect the regulation signed by the administration in September. This is critical because the final rule departs in major respects from the May 2015 draft, as well as from earlier proposals on which stakeholders were allowed to comment:

1.The rule signed by the EPA administrator in September included a provision authorizing "designated representatives" access to proprietary farm pesticide use information. No such provision was contained in the May 2015 draft provided to the committee.

2.The final rule contains provisions setting out "application exclusion zones" (AEZs).[2]

Grower organizations are particularly vulnerable to the "designated representative" provision surreptitiously inserted into the final rule:

• Farmers have no way of authenticating such designations.
• Farmers may be legally liable even when presented with fraudulent designations.
• There are no restrictions whatsoever on what "designated representatives" may do with farm-specific data once they have obtained it.
• Under the rule, "designated representatives" are not required to share the information they receive with the workers who have supposedly signed the designation (thus undercutting any assertion that this provision would improve worker safety).
• Release of the information is not related in any way to exposure, health or risk to the worker.[3]
• There are no provisions in the rule sanctioning third parties who abuse the provision.

Because the process followed by the agency did not adhere to the provisions of law, and because substantive provisions raise many legitimate concerns among the stakeholder community, we are writing to request that the House Agriculture Committee work with the House Appropriations Committee on appropriate language in the EPA funding bill to forestall implementation of the rule. We believe it is entirely appropriate for your committee to insist upon the prerogatives it is granted under FIFRA. We are deeply troubled that if EPA is permitted to ignore its statutory obligations to you, it may well use this as a precedent to ignore its obligations in the future.

The undersigned organizations stand ready to work with you in a bipartisan fashion to craft appropriate language that reinforces the rights and prerogatives of the House Committee on Agriculture, reinforces the appropriate role of state lead agencies and protects the interests of agricultural producers from provisions that will jeopardize their rights to use EPA-approved pesticides in a lawful manner.

Sincerely,

American Farm Bureau Federation
American Sugarbeet Growers Association
California Citrus Mutual
California Specialty Crops
Florida Fruit & Vegetable Association
National Association of State Departments of Agriculture
National Association of Wheat Growers
National Corn Growers Association
National Cotton Council
National Council of Agricultural Employers
National Council of Farmer Cooperatives
National Potato Council
The Cranberry Institute
United Fresh Produce Association
US Apple
USA Rice
Western Growers Association
Wisconsin State Cranberry Growers

---

[1] 7 USC 136w(a)(2)(B)

[2] In a December 4, 2015, letter to Assistant Administrator Jim Jones, James Burnette, the Director of the Structural Pest Control and Pesticides Division of the North Carolina Department of Agriculture and Consumer Services, stated: "We are equally dismayed that this AEZ was not presented as part of the proposed regulations and thus was not something that the States or others were given opportunity to consider and comment on.…For EPA to have made such a 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."

[3] A separate provision in the regulation requires the release of pertinent information to health or medical treating personnel.