Final Interpretive Guidance Workgroup (IGW)
Questions & Answers For Release
March 26, 2004
[Note: The first three questions are grouped together because they address very similar issues and are closely related to each other.]
Section 170.3 defines a "worker"; in part, as any person who is "performing activities relating to the production of agricultural plants." For the purposes of determining whether an employee meets the definition of a "worker" under the WPS (and would therefore be covered by the WPS), what types of activities would be considered to be "activities relating to the production of agricultural plants?"
IGW Answer 2004-1
For the purposes of the WPS, activities that are considered to be "activities related to the production of agricultural plants" are those tasks that are directly related to cultivation and/or production of the agricultural plants or the "crop." Such tasks include (but are not necessarily limited to): soil and seedbed preparation; seeding; planting; moving plants, containers and nursery/greenhouse stock; transplanting; weeding; fertilizing; mulching; raking; pruning, thinning, harvesting and any other hand labor activities as defined in the WPS; irrigation and activities related to preparing for irrigation; and other miscellaneous non-handler tasks involved with protecting and/or improving production of the commodity (operating fans and heaters for greenhouses, frost/freeze protection activities, staking, etc.).
Are employees of an agricultural establishment (including contract labor) covered by the WPS if they are employed by the establishment but do not meet the WPS definition of workers or handlers because they are not performing worker or handler activities/tasks? What are some examples of employees that may work on an agricultural establishment, but would not be covered by the WPS as workers or handlers?
IGW Answer 2004-2
No, employees of an agricultural establishment (including contract labor) that are not performing worker or handler tasks are not covered by the WPS. [NOTE: During a WPS covered pesticide application on a WPS covered establishment, certain provisions of the WPS apply to all persons, not just workers and handlers. There are also WPS requirements that apply to persons engaged in repairing, cleaning or adjusting application equipment, and to persons who clean or launder pesticide contaminated PPE. Please refer to Section 170.110, 170.210, 170.234, and 170.240 for further information. Examples of employees that would not normally be considered workers or handlers under the WPS would include (but are not necessarily limited to): office employees; retail sales staff; building and construction crews; building maintenance/cleaning crews; food preparation or food service staff; truck drivers and/or haulers; mechanics; road workers; surveyors; power line crews; and any other employees not engaged in WPS defined worker/handler activities.
In forest operations, rudimentary road construction must often take place to allow harvesting of the timber. This entails laying gravel onto cleared paths so trucks and harvest crews have access to forest area being harvested. Assuming a WPS covered product has been applied to the forest, would the construction of the road in this situation be considered an activity related to the production of an agricultural plant (timber), such that the landowner and/or the road construction company must provide WPS protections for the road construction crew because they meet the definition of agricultural workers?
IGW Answer 2004-3
No, the construction of the road would not be considered an activity directly related to the production of an agricultural plant (timber in this case). Hence, the road construction crew would not be considered agricultural workers under the WPS, and the landowner and/or the road construction company would not need to provide general WPS protections for the road construction crew. However, please note that during the application of a covered pesticide on a covered establishment, certain WPS provisions apply to all persons, not just workers and handlers. Please refer to Section 170.110 and 170.210. Also see IGW question 14.33 for further guidance and clarification.
In pine forest operations, the main "crop" is the lumber from the pine forest, but pine straw is often collected from the forest floor as a byproduct. In many cases, a herbicide is applied to the forest floor for the purpose of destroying vines/weeds because they may complicate harvesting and baling of the pine straw, or because the vines/weeds are considered an invasive species that would contaminate the straw and complicate movement of the harvested pine straw due to varying State quarantine laws. Does this activity or production practice fall under the scope of the WPS? If so, please explain the IGW's rationale for this determination, and explain how the different aspects of this practice should be treated under WPS.
IGW Answer 2004-4
Yes, this activity/production practice does fall under the scope of the WPS. Under the WPS, a forest is defined as any operation engaged in the outdoor production of any agricultural plant to produce wood fiber or timber products. A pine forest operation is covered under the WPS as a forest since the pine trees are agricultural plants being grown for commercial purposes to produce wood fiber or timber products. The pine trees are the agricultural plants in this case, and the lumber and the pine straw would both be considered “timber products." Activities related to raising the pine trees and managing the overall forest operation to obtain the eventual timber products would be considered activities related to the production of agricultural plants. Therefore, herbicide applications to the forest floor to facilitate harvesting of pine straw or to allow shipment of the pine straw under State quarantine laws, would be covered under the WPS (assuming the herbicide is a WPS labeled product). Even though the pine straw may be considered a byproduct or secondary product compared to the actual lumber, it is still a timber product produced from a forest operation covered under the WPS.
Collection of the pine straw would be considered harvesting and a worker activity under the WPS. If the collection of the pine straw was accomplished through the use of mechanized equipment, then the harvesting would not necessarily be considered "hand labor" if there was negligible contact with the pine straw during the process. The pine straw would not be considered to be harvested until it was baled and/or otherwise removed from the forest floor, so herbicide applications to the forest floor while the pine straw was still present would not be considered a post-harvest application and would not be excepted from the WPS. [This situation would be similar to the collection of fallen nuts from an orchard floor. Herbicide applications to the orchard floor to kill weeds in order to facilitate collection of the nuts would be a covered pesticide application. Collection of the nuts would be considered harvesting, and the nuts would not be considered to be harvested until they were either packed into containers or collection bins or otherwise removed from the orchard.]