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Proposed Rule2023-03619

Pesticides; Agricultural Worker Protection Standard; Reconsideration of the Application Exclusion Zone Amendments

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Published

March 13, 2023

Issuing agencies

Environmental Protection Agency

Abstract

The Environmental Protection Agency (EPA) is proposing to reinstate certain requirements that were amended in 2020 regarding the application exclusion zone (AEZ) requirements of the Agricultural Worker Protection Standard (WPS). EPA has reconsidered the amended AEZ requirements and has determined that several aspects of the AEZ provisions, such as those regarding the applicability of the AEZ and distance determination criteria, should be revised to reinstate previous requirements that are protective of public health and to limit exposure for those who may be near ongoing pesticide applications.

Full Text

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<title>Federal Register, Volume 88 Issue 48 (Monday, March 13, 2023)</title>
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[Federal Register Volume 88, Number 48 (Monday, March 13, 2023)]
[Proposed Rules]
[Pages 15346-15360]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-03619]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 170

[EPA-HQ-OPP-2022-0133; FRL-8528-03-OCSPP]
RIN 2070-AK92

Pesticides; Agricultural Worker Protection Standard;
Reconsideration of the Application Exclusion Zone Amendments

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
reinstate certain requirements that were amended in 2020 regarding the
application exclusion zone (AEZ) requirements of the Agricultural
Worker Protection Standard (WPS). EPA has reconsidered the amended AEZ
requirements and has determined that several aspects of the AEZ
provisions, such as those regarding the applicability of the AEZ and
distance determination criteria, should be revised to reinstate
previous requirements that are protective of public health and to limit
exposure for those who may be near ongoing pesticide applications.

DATES: Comments must be received on or before May 12, 2023.

ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPP-2022-0133, through the Federal eRulemaking
Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the online instructions
for submitting comments. Do not submit electronically any information
you consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Additional
instructions on commenting and visiting the docket, along with more
information about dockets generally, is available at <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.

FOR FURTHER INFORMATION CONTACT: Carolyn Schroeder, Pesticide Re-
Evaluation Division, Office of Pesticide Programs, Environmental
Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-
0001; telephone number: (202) 566-2376; email address:
<a href="/cdn-cgi/l/email-protection#2a59494258454f4e4f5804494b58454653446a4f5a4b044d455c"><span class="__cf_email__" data-cfemail="0a79696278656f6e6f7824696b78656673644a6f7a6b246d657c">[email&#160;protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Does this action apply to me?

You may be potentially affected by this action if you work in or
employ persons working in crop production agriculture where pesticides
are applied. The following list of North American Industrial
Classification System (NAICS) codes is not intended to be exhaustive,
but rather provides a guide to help readers determine whether this
document applies to them. Potentially affected entities may include:
<bullet> Agricultural Establishments (NAICS code 111000);
<bullet> Nursery and Tree Production (NAICS code 111421);
<bullet> Timber Tract Operations (NAICS code 113110);
<bullet> Forest Nurseries and Gathering of Forest Products (NAICS
code 113210);
<bullet> Farm Workers (NAICS codes 11511, 115112, and 115114);
<bullet> Pesticide Handling on Farms (NAICS code 115112);
<bullet> Farm Labor Contractors and Crew Leaders (NAICS code
115115);
<bullet> Pesticide Handling in Forestry (NAICS code 115310);
<bullet> Pesticide Manufacturers (NAICS code 325320);
<bullet> Farm Worker Support Organizations (NAICS codes 813311,
813312, and 813319);
<bullet> Farm Worker Labor Organizations (NAICS code 813930); and
<bullet> Crop Advisors (NAICS codes 115112, 541690, 541712).
If you have any questions regarding the applicability of this
action to a particular entity, consult the technical person listed
under FOR FURTHER INFORMATION CONTACT.

B. What is the Agency's authority for taking this action?

This action is issued under the authority of the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136
through 136y, particularly sections 136a(d), 136i, and 136w.

C. What action is the Agency taking?

EPA is proposing to revise certain AEZ requirements of the WPS that
were amended by EPA in a final rule published on October 30, 2020 (85
FR 68760) (``2020 AEZ Rule'') (Ref. 1). As further explained in Unit
II.A.4., the effective date of the 2020 AEZ Rule is currently stayed
pursuant to a court order; that is, the 2020 AEZ Rule has not yet taken
effect. EPA proposes to revise the AEZ requirements by rescinding the

[[Page 15347]]

following changes outlined in the 2020 AEZ Rule and reinstating the
related AEZ requirements as published in a final rule on November 2,
2015 (80 FR 67496) (``2015 WPS'') (Ref. 2).
1. The Area Where the AEZ Applies
The 2020 AEZ Rule would have limited the applicability of the AEZ
to the agricultural employer's property such that the AEZ would no
longer cover bystanders on adjacent properties. As a result, the 2020
AEZ Rule would have solely relied upon the ``Do Not Contact''
requirement in the WPS (further described in Unit II.A.) as the method
of protecting people on adjacent properties had the rule gone into
effect. This rule proposes to reinstate the 2015 WPS regulatory text
requiring pesticide handlers to suspend applications if any worker or
other person, other than appropriately trained and equipped handlers
involved in the application, enters an AEZ regardless of whether they
are on or off the establishment. See Unit II.B. for the detailed
discussion of this proposed revision.
2. The Exception to Application Suspension Requirements for Property
Easements
The 2020 AEZ Rule would have created an exception for agricultural
employers and handlers from the requirement to suspend pesticide
applications due to the presence of an individual not employed by the
establishment who is within an AEZ but in an area subject to an
easement that prevents the agricultural employer from temporarily
excluding those individuals from that area. This rule proposes to
reinstate the 2015 WPS regulatory text that requires pesticide handlers
to suspend applications if any worker or other person, other than
appropriately trained and equipped handlers involved in the
application, enters an AEZ regardless of whether they are in an area
subject to an easement. See Unit II.C. for the detailed discussion of
this proposed revision.
3. The Distances From the Application Equipment in Which Entry
Restrictions Associated With Ongoing Pesticide Applications Apply
The 2020 AEZ Rule would have reduced AEZ distances from 100 feet to
25 feet for certain ground-based sprays using fine droplet sizes and
simplified all ground-based sprays to be 25 feet when sprayed at a
height of greater than 12 inches. This rule proposes to reinstate the
2015 WPS regulatory text that specifies a distance of 100 feet for
ground-based fine spray applications, a 25-foot AEZ for ground-based
applications using medium or larger droplet sizes sprayed above 12
inches, and to reinstate all applicable determination criteria from the
2015 WPS with the exception of the Volume Median Diameter (VMD) droplet
size criterion when making distance determinations. EPA proposes to
replace VMD by citing standards that more accurately define medium
droplet sizes. Additionally, to maintain consistency in the
requirements between outdoor production applications and applications
associated with enclosed space production, EPA is also proposing to
remove VMD as a criterion for entry restriction distances during
enclosed space production pesticide applications and instead using the
same droplet size standards as those used for outdoor production. See
Units II.D. and II.E. for the detailed discussion of these proposed
revisions.
EPA is also proposing to maintain certain revisions that were
presented in the 2020 AEZ Rule, such as the provision that clarifies
that pesticide applications that were suspended due to individuals
entering an AEZ may be resumed after those individuals have left the
AEZ, and the exemption that allows farm owners and members of their
immediate family (as defined in 40 CFR 170.305) to shelter within
closed structures within an AEZ during pesticide applications, provided
that the owner has instructed the handlers that only the owner's
immediate family are inside the closed shelter and that the application
should proceed despite their presence. See Unit II.F. for a detailed
discussion of these proposals.

D. Why is the Agency taking this action?

EPA has reexamined the 2020 AEZ Rule both in accordance with the
Executive Order 13990, Protecting Public Health and the Environment and
Restoring Science to Tackle the Climate Crisis (86 FR 7037, January 25,
2021), and in response to an error in the preamble of the 2020 AEZ
Rule. As further discussed in Unit II.A.4., EPA discovered a factual
error while compiling the administrative record in response to
litigation. As a result of our reexamination of the 2020 AEZ Rule, EPA
has determined that certain amended AEZ requirements in the 2020 AEZ
Rule should be rescinded, with several protections from the 2015 WPS
regulatory text being reinstated. EPA has determined that reinstatement
of these protections from the 2015 WPS will be more effective at
reducing potential exposures from ongoing pesticide applications and to
promote public health for all populations and communities near
agricultural establishments. In addition, EPA's analyses supporting the
2015 WPS have shown that these protections will better support the
Agency's efforts to reduce disproportionate risks associated with
agricultural pesticide exposures that currently fall on populations and
communities with a history of environmental justice concerns,
particularly agricultural employees (i.e., workers and handlers), the
employees' families, and the communities that live near establishments
that use pesticides (Ref. 3). These protections are consistent with
FIFRA's mandate to protect health and the environment against
unreasonable risk to man or the environment, taking into account the
economic, social, and environmental costs and benefits. Reinstating the
regulatory text for certain AEZ requirements from the 2015 WPS, as
described in Unit II.B., II.C., and II.D., will be associated with
minimal cost to the regulated community, as described in Unit I.E.

E. What are the incremental impacts of this action?

1. 2015 WPS Baseline Assessment
Since the 2020 AEZ Rule has not been implemented due to the court-
ordered stay discussed in Unit II.A.4., the 2015 WPS continues to
provide the operative regulatory language for the AEZ requirements
during the current stay and any future extensions of the stay.
Therefore, the Agency has determined that there will be no new impacts
from the portions of this proposal seeking to reinstate the 2015 WPS
provisions that make the AEZ applicable beyond the boundaries of an
agricultural establishment and within easements on the agricultural
establishment, as further described in Unit II.B. and II.C.
Additionally, this action proposes to reinstate the 2015 WPS
criteria and factors for determining AEZ distances at 40 CFR 170.405(a)
for ground spray applications, with the exception of language around a
Volume Median Diameter (VMD) as a determining factor, which is further
explained in Units II.D. and II.E. The Agency does not anticipate any
new costs or impacts due to reinstating this regulatory language since
the 2015 WPS remains in effect. However, the proposal to remove VMD
from the AEZ criteria and instead use droplet size classifications
(i.e., ``medium'' as defined by the American National Standards
Institute/American Society of Agricultural and Biological Engineers
(ANSI/ASABE); see Units II.D. and E.) is expected to provide a clear,
practical, and easy approach for determining AEZ and enclosed space

[[Page 15348]]

distances. EPA anticipates that this revision will improve compliance
with other AEZ requirements and make it easier to enforce these
provisions by eliminating any need to determine whether an application
is over or under the specified VMD of 294 microns, as required by the
2015 WPS.
EPA is also proposing to maintain certain revisions that were
presented in the 2020 AEZ Rule, such as the provision that clarifies
that pesticide applications that were suspended due to individuals
entering an AEZ may be resumed after those individuals have left the
AEZ, and the exemption that allows farm owners and members of their
immediate family (as defined in 40 CFR 170.305) to shelter within
closed structures within an AEZ during pesticide applications, provided
that the owner has instructed the handlers that only the owner's
immediate family are inside the closed shelter and that the application
should proceed despite their presence (further described in Unit
II.F.). The revision to the AEZ suspension requirement better clarifies
EPA's 2015 intent for how the AEZ provisions should work once there are
no longer individuals other than pesticide handlers within an AEZ and
does not result in any impacts. The immediate family exemption means
that owners and their immediate family members do not have to leave
their homes that are within an AEZ if the doors and windows remain
closed. By proposing to retain the immediate family exemption, some
applications will be simpler and less burdensome than the 2015 WPS
since fewer applications would need to be suspended on family farms.
The effect is likely small, as the change would only apply to immediate
family members of the farm owner who are inside a structure and within
the AEZ. The Agency finds that these changes are consistent with the
intent of the AEZ in the 2015 WPS and are supported by the
administrative record, particularly with regards to the immediate
family exemptions that are applicable to other portions of the 2015
WPS. Maintaining these clarifications and flexibilities provide some
regulatory relief that was sought after promulgation of the 2015 WPS
without increasing exposure risks to workers or bystanders.
2. 2020 AEZ Rule Baseline Assessment
The 2020 AEZ Rule was initiated in response to feedback from
members of the agricultural community, including the U.S. Department of
Agriculture (USDA), state pesticide regulatory agencies, several
agricultural interest groups, and from public comments. These comments
raised concerns about the complexity and enforceability of the AEZ
requirements after the 2015 WPS was promulgated. For the 2020 AEZ rule,
EPA qualitatively described the benefit of the rule as a reduction in
the complexity of applying a pesticide (Ref. 4). The benefits described
were not monetary; revising the requirements would have reduced the
complexity of arranging and conducting pesticide applications and
enforcing the provisions. The benefits of the 2020 AEZ Rule would have
resulted in reduced management complexity both on and off
establishment, because there would have been fewer situations where the
AEZ would have applied had the rule gone into effect (i.e., the AEZ
would not have been applicable off the establishment or for individuals
within an easement on the establishment). EPA did not discuss any
costs, or increased risk from pesticide exposure, in the 2020 AEZ
Rule's supporting documents due its reliance on the ``Do Not Contact''
requirement that establishes the responsibility of the applicator to
prevent pesticides from contacting people either directly or through
drift. This is in part because the ``Do Not Contact'' provision
(further described in Unit II.A.) is applicable in all situations,
without limitations on distance or the individual's location respective
to the application.
After reevaluating the 2020 AEZ Rule, the Agency has determined
that the 2020 changes do not effectively balance the potential social
and economic costs associated with limiting the AEZ requirements to
areas under the owner's control and simplifying the distance criteria
for ground-based spray applications. Based on careful reconsideration
of the administrative record regarding the AEZ in the 2015 WPS and 2020
AEZ Rule, EPA has determined that the 2015 requirements regarding
individuals off the establishment and within easements are more
protective of workers and bystanders when implemented rather than
relying on the ``Do Not Contact'' requirement as the only protective
measure when individuals are outside of the owner's control.
Public comments submitted to the docket during the 2015 WPS
rulemaking included examples of incidents where workers were exposed to
pesticide applications from neighboring establishments as well as from
the establishment where they were working. As noted in the 2015 WPS,
out of 17 incidents identified in the comments, only one would have
been prevented if the AEZ was limited to the boundaries of the
agricultural establishment as it would have been established had the
2020 AEZ Rule gone into effect. EPA's analysis at the time indicated
that the AEZ would have prevented at least four of the incidents
reported in the 2015 comments, and possibly as many as 12, depending on
the actual distances between the workers and application equipment. EPA
continues to receive reports of incidents like those provided in past
comments, despite the ``Do Not Contact'' requirement and the
expectation that applicators and handlers must not spray pesticides in
a manner that may result in contact with individuals. While the Agency
is unable to quantify the number of new incidents that could be reduced
by the AEZ, EPA believes, based on this information, that its original
assessment of the AEZ in 2015 is the correct approach. The AEZ
requirements serve as an important supplement to the ``Do Not Contact''
requirements and are expected to reduce the total number of exposures
if implemented correctly and consistently. Therefore, EPA believes its
proposal to reinstate the 2015 requirements to extend beyond the
establishment's boundaries and within easements, better balances social
and health-related costs than the 2020 AEZ Rule and outweighs the
negligible costs on agricultural establishments to implement AEZs
during an application.
In determining that the reinstatement of certain AEZ provisions
from the 2015 WPS is warranted, EPA recognizes that an analysis of
changes from the 2020 AEZ Rule and this proposed action is necessary.
Compared to the 2020 AEZ Rule, the proposed changes in this rulemaking
mean that more applications will have AEZs that encompass a greater
area and therefore result in more situations where the AEZ will be
applicable. Had the 2020 AEZ Rule been implemented, the 2020 AEZ Rule
would have applied only in situations where people can be directed by
the owner of the establishment, while the proposed changes in this
rulemaking would apply in all situations, regardless of whether people
may not be under the direction of the owner, such as individuals off
the establishment or within easements. To effectively implement the
changes in this proposal, owners and handlers may need to communicate
more frequently with those nearby the establishment or within easements
to ensure that nobody is within the AEZ and may require an application
to be suspended or rescheduled. However, the impact of these changes on
agricultural establishments is likely to be small compared to the 2020
AEZ Rule. Conversely, having the AEZ be

[[Page 15349]]

applicable in all directions, regardless of whether an individual is on
or off the establishment, may simplify applications in the sense that
the handler does not need to apply different requirements to different
situations.
In addition, the 2020 AEZ Rule sought to establish a simplified 25-
foot AEZ for all ground-based spray applications above 12 inches,
regardless of the droplet size. This proposed rule reinstates the 2015
WPS criteria and factors for determining AEZ distances at 40 CFR
170.405(a) for ground spray applications, except for language around a
Volume Median Diameter (VMD) as a determining factor as further
explained in Unit II.D. If the 2020 AEZ Rule had gone into effect, the
changes in this proposed rule may result in more complex application
strategies, because the different AEZ distances may come into play more
often and owners and handlers will have to consider more carefully the
various application and nozzle characteristics. However, restoring the
droplet size criteria back to the 2015 WPS language (i.e., medium
droplets as a threshold) results in increased protection from
applications using fine sprays that are more susceptible to spray drift
compared to the 2020 AEZ Rule. Additionally, EPA's proposal to not
reinstate VMD as a criterion and instead rely on the ASABE standard's
definition of ``medium'' droplet size better clarifies how to determine
droplet sizes and should make it easier for applicators to understand
the original requirements regarding how to achieve specific droplet
classifications and how to implement the appropriate AEZ based on that
information. As a result, the impact of these changes is expected to be
small compared to the 2020 AEZ Rule.
As previously noted, EPA is proposing to retain certain changes
made by the 2020 AEZ Rule, such as the provision that clarifies that
pesticide applications that were suspended due to individuals entering
an AEZ may be resumed after those individuals have left the AEZ, and
the exemption that allows farm owners and members of their immediate
family (as defined in 40 CFR 170.305) to shelter within closed
structures within an AEZ during pesticide applications, provided that
the owner has instructed the handlers that only the owner's immediate
family are inside the closed shelter and that the application should
proceed despite their presence (further described in Unit II.F.). These
changes are consistent with the intent of the AEZ in the 2015 WPS and
are supported by the administrative record, particularly with regards
to the immediate family exemptions that are applicable to other
portions of the 2015 WPS. Retaining these clarifications and
flexibilities in this proposal provides some regulatory relief that was
sought in the 2020 AEZ Rule without increasing exposure risks to
workers or bystanders.

II. Proposed Changes to the WPS

A. Background and Existing Requirements

1. The Agricultural WPS
EPA implements FIFRA's mandate to limit adverse effects on human
health in part through the WPS regulation codified at 40 CFR part 170.
The WPS is a uniform set of requirements for workers, handlers, and
their employers that are generally applicable to all agricultural
pesticides and are incorporated onto agricultural pesticide labels by
reference. The WPS is intended to reduce the risk of illness and injury
to agricultural workers and pesticide handlers who may be exposed to
pesticides while working. The WPS requirements are generally applicable
to pesticides used in crop production agriculture and made applicable
to certain pesticide products through FIFRA's pesticide product
registration process by inclusion of a statement requiring WPS
compliance on the product label. The WPS requirements complement the
product-specific labeling restrictions and are intended to minimize
occupational exposures generally. When a registered pesticide label
includes a statement requiring compliance with the WPS, any failure to
comply with the WPS when using a pesticide is a violation of FIFRA.
The risk reduction measures of the WPS may be characterized as
being one of three types: information, protection, and mitigation. To
ensure that employees will be informed about exposure to pesticides,
the WPS requires that workers and handlers receive training on general
pesticide safety, and that employers provide access to information
about the pesticides with which workers and handlers may have contact.
To protect workers and handlers from pesticide exposure, the WPS
prohibits the application of pesticides in a manner that exposes
workers or other persons, generally prohibits workers and other persons
from being in areas being treated with pesticides, and generally
prohibits workers from entering a treated area while a restricted-entry
interval (REI) is in effect (with limited exceptions that require
additional protections). In addition, the rule protects workers by
requiring employers to notify them about areas on the establishment
treated with pesticides through posted and/or oral warnings. The rule
protects handlers by ensuring that they understand proper use of and
have access to required personal protective equipment (PPE). Finally,
the WPS has provisions to mitigate exposures if they do occur by
requiring the employer to provide workers and handlers with an ample
supply of water, soap, and towels for routine washing and emergency
decontamination. The employer must also make transportation available
to a medical care facility if a worker or handler may have been
poisoned or injured by a pesticide and provide health care providers
with information about the pesticide(s) to which the person may have
been exposed.
2. History of the AEZ Requirements
In 2015, EPA promulgated a final rule that comprehensively revised
the WPS for the first time since 1992 (Ref. 2). The 2015 WPS added
several pesticide-related safety measures and strengthened elements of
the existing regulation in areas including training, notification,
pesticide safety and hazard communication information, use of PPE, and
implemented requirements for providing supplies for routine washing and
emergency decontamination.
Under the WPS established in 1992 (57 FR 38101, August 21, 1992
(FRL-3374-6)), the pesticide handler's employer and the pesticide
handler were required to ensure that no pesticide is applied in a
manner that may contact, either directly or through drift, any
agricultural worker or other person, other than an appropriately
trained and equipped pesticide handler involved in the application.
This prohibition is often referred to as the ``Do Not Contact''
provision and is applicable in all situations, without limitations on
distance or location of the individuals. This particular provision was
carried over into the 2015 WPS revisions and has remained unchanged.
Among other changes to improve public health and to build upon the
existing protections of the 1992 WPS, the 2015 WPS established AEZ
requirements for outdoor production application to reinforce the
existing ``Do Not Contact'' provision and to enhance overall compliance
with safe application practices intended to protect agricultural
workers and bystanders from pesticide exposure from sprays and drift.
The AEZ is an area surrounding the point(s) of pesticide discharge from
the application equipment that must generally be free of all persons
during pesticide applications, moves with the

[[Page 15350]]

application equipment while the application is ongoing, and ceases to
exist around the equipment once the pesticide application ends. After
the application has been completed or the application equipment has
moved on to a new area, entry restrictions associated with treated
areas go into effect.
The 2015 WPS requirement at 40 CFR 170.505(b) required pesticide
handlers (applicators) making a pesticide application to temporarily
suspend the application if any worker or other person, other than
trained and equipped handlers assisting in the application, was within
the AEZ. The 2015 WPS revisions further required a handler to suspend
an application if a worker or other person was in any portion of the
AEZ--on or off the establishment. These restrictions were intended to
bolster the protections afforded by the ``Do Not Contact'' provision,
promote an application approach aimed at reducing incidents in which
people in areas adjacent to pesticide applications could be affected by
either direct contact or drift, and establish a well-defined area from
which people generally must be excluded during ongoing applications.
The AEZ requirement was one of the many public health protection tools
incorporated into the 2015 WPS rule to emphasize one of the key safety
points in both the WPS and on pesticide labels--do not spray people.
As outlined in the 2015 WPS, the size of the AEZ was dependent
largely on the application method used. For aerial, air blast,
fumigant, smoke, mist, and fog applications, as well as sprays using a
spray quality (droplet spectrum) of smaller than medium (volume median
diameter of less than 294 microns), the area encompassed 100 feet from
the application equipment in all directions. For other applications
sprayed from a height of greater than 12 inches from the planting
medium using a spray quality (droplet spectrum) of medium or larger
(volume median diameter of 294 microns or greater), the area
encompassed 25 feet from the application equipment in all directions.
For all other applications, there was no AEZ.
3. The 2020 AEZ Rule Modifying the AEZ Provisions of the 2015 WPS
On October 30, 2020, EPA finalized updates to the AEZ provisions
under the WPS (Ref. 1). The 2020 AEZ Rule modified the AEZ requirements
to limit the AEZ to an agricultural employer's property where an
agricultural employer can lawfully exercise control over employees or
bystanders who may be within the AEZ during an application, and to
simplify the criteria for determining the AEZ distances for ground
spray applications. In addition, clarifications were made on when
applications may resume after being suspended due to someone entering
the AEZ, as well as providing an exemption for farm owners and their
immediate family from having to leave their homes or another enclosed
structure when it is located within an AEZ. The 2020 AEZ Rule revisions
did not include any changes to the ``Do Not Contact'' provision in the
WPS, which still prohibited applying pesticides in a manner that may
result in contact either directly or through drift. The rule was set to
go into effect on December 29, 2020.
4. Actions Seeking Judicial Review
As explained in the Federal Register of May 16, 2022 (87 FR 29673;
FRL-9803-01-OCSPP), two civil actions were filed in the U.S. District
Court for the Southern District of New York (S.D.N.Y.) on December 16,
2020, challenging the 2020 AEZ Rule (now consolidated as case number
1:20-cv-10642). Additionally, two petitions for review were filed in
the U.S. Second Circuit Court of Appeals on December 17, 2020 (case
numbers 20-4174 and 20-4203), which have been held in abeyance pending
the proceedings in the district court.
On December 28, 2020, S.D.N.Y. issued an order granting plaintiffs'
request for a temporary restraining order (TRO) and injunctive relief
(Ref. 5). The court's order stayed the December 29, 2020, effective
date of the 2020 AEZ Rule and enjoined all EPA authorities who would
otherwise take action to make the 2020 AEZ Rule effective from doing
so. Following the December 2020 Order, S.D.N.Y. has issued several
additional orders consented to by both EPA and the plaintiffs, further
extending the preliminary injunction and staying all proceedings in the
case (e.g., Ref. 6). As a result, the 2020 AEZ Rule has not gone into
effect. In the course of compiling the administrative record for
purposes of the litigation, EPA discovered a factual error in the
preamble of the 2020 AEZ Rule regarding the scope of existing handler
training on the AEZ and how to implement the AEZ when individuals are
in areas not under the control of the agriculture establishment's
owner. As further discussed in Unit II.A.5., the discovery of this
factual error has contributed in part to EPA's reconsideration of the
2020 AEZ Rule.
5. EPA's Reconsideration of Certain 2020 AEZ Rule Amendments
Concurrent with the ongoing litigation described in Unit II.A.4.,
the 2020 AEZ Rule was included among several EPA actions identified for
review in accordance with E.O. 13990 (Ref. 7). In the course of
reviewing both the 2015 WPS and 2020 AEZ Rules in accordance with E.O.
13990, EPA has found that some of the 2020 revisions to the AEZ
requirements, specifically, the 2020 AEZ Rule's simplification of AEZ
distance requirements (see Unit II.D.) and the limitation of the
applicability of the AEZ requirements to the agricultural
establishment's boundaries (see Units II.B. and C.), are inconsistent
with the objectives of protecting against unreasonable adverse effects
on human health and the environment and limiting exposure to dangerous
chemicals and pesticides for all populations, including those who may
experience disproportionate burden or risks such as workers, handlers,
and those who live, work, or play on or near agricultural
establishments.
Furthermore, while preparing the administrative record for
litigation, EPA discovered a factual error contained in the preamble of
the 2020 AEZ Rule regarding the scope of AEZ content within EPA-
approved trainings. Specifically, the preamble to the 2020 AEZ Rule
states that ``EPA-approved trainings since 2018 . . . have also
incorporated EPA's 2016 guidance on how to apply pesticides near
establishment borders and provide information on various measures
applicators or handlers can take to prevent individuals from being
contacted by spray or through drift,'' and listed examples of such
measures (Ref. 1). This assertion in the 2020 AEZ Rule was in error.
While all EPA-approved trainings are in compliance with the WPS because
they address the minimum requirements of the AEZ (40 CFR 170.501),
after reevaluating the rule, EPA has determined that some of the
trainings it has approved since 2018 only contained a partial set of
the topics provided in guidance (Ref. 8) regarding best pesticide
application practices near the borders of an establishment and on
potential measures that can be used to prevent contact through drift.
Therefore, the reliance on this inaccurate assumption provides further
reason to reinstate the 2015 requirements regarding the applicability
of AEZs for individuals off the establishment and within easements.
As a result, EPA proposes to make certain modifications to the AEZ
requirements established in the 2020

[[Page 15351]]

AEZ Rule by reinstating the protections as originally established in
the 2015 WPS. The proposed revisions aim to reestablish the level of
protections afforded to all who are on an agricultural establishment
and may be within the vicinity of an ongoing application, with slight
modifications to support compliance and understanding. These revisions
would be limited to the following three modifications made in the 2020
AEZ Rule: the limitation of the AEZ requirements to the area within the
property's boundaries that are under the agricultural employer's
control, the exception to the suspension and exclusion requirements due
to the presence of someone within an area subject to an easement when
the person has the legal right to access that area, and the reduction
of the AEZ distance from 100 feet to 25 feet for certain ground-based
sprays. These three provisions would essentially revert to their status
under the 2015 WPS revision, although EPA is not proposing to reinstate
references to VMD that are no longer current.
Some changes made by the 2020 AEZ Rule would remain in place under
this proposal. For example, the 2020 AEZ Rule amendment which states
that pesticide applications that have been suspended due to individuals
entering an AEZ may be resumed after they have left the AEZ was
supported both by the administrative record and public comments,
because it provides needed clarity that was previously missing in the
2015 WPS. Additionally, the 2020 AEZ Rule added an exemption that
allows farm owners and their immediate family to shelter inside closed
structures within an AEZ during pesticide applications, provided that
the owner has instructed the handlers that only the owner's immediate
family are inside the closed shelter and that the application should
proceed despite their presence. The rationale for the immediate family
exemption in the 2020 AEZ Rule is consistent with the other immediate
family exemptions established under the 2015 WPS (Ref. 1).

B. Revisions To Reinstate the Applicability of the AEZ to Off-
Establishment Areas

1. Proposed Changes
EPA proposes to revise the AEZ provision at 40 CFR 170.505(b) that
requires handlers to ``suspend the application'' if a worker or other
person is in the AEZ by removing clauses limiting its effect to persons
only within the boundaries of the agricultural establishment. EPA also
proposes to make conforming revisions to the handler training
requirements at 40 CFR 170.501(c)(3)(xi), and the exemptions at 40 CFR
170.601(a)(1)(vi) to reflect the applicability of the AEZ both on and
off the establishment.
The AEZ requirements apply to both handlers and agricultural
employers, and in the 2015 WPS they applied to each differently,
reflecting the different responsibilities and authorities of handlers
and agricultural employers. For pesticide handlers, the AEZ requirement
at 40 CFR 170.505(b) in the 2015 WPS required handlers making a
pesticide application to temporarily suspend the application if any
worker or other person (besides trained and equipped handlers assisting
in the application) was in the AEZ, the boundaries of which were
described in terms of distance from the application equipment per 40
CFR 170.405(a)(1). Thus, the handlers' obligation to suspend
applications under the 2015 WPS applied if a worker or other person was
in any portion of the AEZ, on or off the establishment, reflecting the
handlers' responsibilities under the ``Do Not Contact'' requirement. In
contrast, the agricultural employers' obligation regarding the AEZ in
the 2015 WPS was that ``the agricultural employer must not allow or
direct any worker or other person, other than an appropriately trained
and equipped handler involved in the application, to enter or to remain
in the treated area or an AEZ that is within the boundaries of the
establishment until the application is complete.'' 40 CFR 170.405(a)(2)
(2015 version). This responsibility reflected the difference in
agricultural employers' ability to control the movements of persons and
to protect their workers on their property versus persons beyond the
property borders where agricultural employers do not have control over
their presence.
The difference between handlers' and agricultural employers' AEZ
responsibilities under the 2015 WPS was a source of confusion for some
stakeholders during the Agency's early outreach efforts after the 2015
WPS. Additionally, the handlers' responsibility to suspend application
if a person or passing vehicle was within the AEZ, but not at risk of
exposure, was viewed by some as an unreasonable burden, particularly
before EPA clarified through guidance (Refs. 8, 9) that such
applications could continue once the handlers have evaluated the
situation and determined whether the application can resume without
contacting anyone with the pesticide. The 2020 AEZ Rule changed 40 CFR
170.505(b) to limit the AEZ to the area within the boundaries of the
agricultural establishment, bringing the pesticide handlers' duty to
suspend applications into line with the agricultural employers' duty to
exclude persons from the AEZ in 40 CFR 170.405(a)(2).
After reconsidering the comments submitted in response to the AEZ
proposal in 2019 and reevaluating the information from the
administrative record in both the 2015 WPS and 2020 AEZ Rule, EPA has
determined that the AEZ provisions from the 2015 WPS provide a valuable
complement to the ``Do Not Contact'' requirements, along with the other
protections on pesticide labels, to protect workers and bystanders both
on and off the establishment from being contacted by pesticides that
are applied. Generally, incident data provided to the Agency lacks
critical details to make firm correlations between whether a properly
implemented AEZ would have prevented a contact from occurring, and
often incidents are underreported or cited only on the basis of a
contact occurring, so it is difficult for the Agency to fully assess
and quantify the successes and benefits of the AEZ. EPA's best
estimates came from comments submitted during the 2015 WPS rulemaking
efforts (Ref. 2) citing 17 incidents where workers were exposed to
pesticides due to drift. In assessing these incidents during the 2015
WPS rulemaking, only one of those incidents could have potentially been
prevented if the AEZ were limited to the boundaries of the agricultural
establishment. However, proper implementation of the AEZ requirements
for individuals both on and off the establishment may have prevented at
least four of the incidents reported in those comments, and potentially
as many as 12, depending on the actual distances between the workers
and application equipment, which were not specified in the comments at
that time.
In the 2015 WPS, EPA determined that the AEZ requirements were a
necessary supplement to the existing ``Do Not Contact'' provision,
because they gave the applicator specific criteria for suspending an
application when people other than handlers are near ongoing
applications and potentially within the AEZ. In addition to providing
greater protections for workers and bystanders, the current AEZ
requirements are useful to applicators attempting to comply with the
existing ``Do Not Contact'' requirement beyond the boundaries of the
agricultural establishment. Having an AEZ in effect in all directions
during an application will simplify handler responsibilities, as
handlers will only be

[[Page 15352]]

expected to adhere to one distance for a given application type,
instead of two distinct requirements during the application (one within
the boundaries of the establishment and one for when the application
equipment is near the establishment's boundaries). EPA finds that
maintaining a consistent shape and size for an application is likely
less confusing to handlers during the application and is easier to
convey in handler trainings than having different requirements for on-
and off-establishment situations. This approach will also help to
promote the ``Do Not Contact'' requirement to not spray people during
applications.
EPA's risk assessments and registration decisions are based on the
premise that the label is followed and that the WPS protections
effectively prevent people (workers and bystanders) from being
contacted by pesticide applications. In other words, incidents where
workers or bystanders are sprayed directly result in people being
exposed to pesticides in a way that is not typically considered in
EPA's risk assessments or registration decisions. While these types of
incidents are misuse violations, public commenters to the 2020 AEZ Rule
cited several examples of incidents after the 2015 WPS was finalized,
showing these types of incidents continue to occur. Therefore, there
remains a need to supplement the existing ``Do Not Contact'' provision
to reduce exposures to workers and other persons from being directly
sprayed with pesticides, including those who may be off the
establishment.
2. Anticipated Effects
As explained in Unit II.A.4., the 2020 AEZ Rule never went into
effect due to a series of court orders staying the effective date of
the 2020 AEZ final rule. However, in determining that the reinstatement
of certain AEZ provisions from the 2015 WPS is warranted, EPA
recognizes that an analysis of changes from the 2020 AEZ Rule and this
proposed action is necessary. While the discussion in this section
compares the effects of the currently proposed changes to the 2020 AEZ
final rule, the AEZ requirements have always extended beyond the
boundary of an agricultural establishment since it originally went into
effect in 2015. Therefore, given that the 2015 rule has remained in
effect since its establishment, there are no new impacts expected with
this proposed rule.
Revising the requirement so that applicators must suspend an
application for individuals within an AEZ outside the boundary of the
agricultural establishment is anticipated to have little effect on the
costs of pesticide applications. Although the proposed changes have the
potential to increase the number of situations where applications would
need to be evaluated and potentially suspended compared to the intent
of the 2020 AEZ Rule, the proposed AEZ changes would only apply in the
specific instances when people are within the AEZ. In those cases, an
applicator must temporarily suspend and may have to reschedule an
application to avoid potential contact. This could lead to more complex
application strategies or require increased communication with people
nearby to get them to move outside the AEZ before resuming an
application. However, the proposed AEZ provisions will provide the
applicator specific criteria for suspending an application without
needing to know the specific boundary of the property, which may make
it easier for the applicator to comply with the requirement that
applications should be suspended if anyone is within the vicinity of
the application.
EPA is unable to quantify how much pesticide exposure will change
from no longer restricting the AEZ to the establishment. In addition to
the AEZ, the ``Do Not Contact'' provision, whereby the pesticide
handler's employer and the pesticide handler are required to ensure
that no pesticide is applied in a manner that may contact, either
directly or through drift, any agricultural worker or other person,
other than an appropriately trained and equipped pesticide handler
involved in the application. This prohibition is applicable in all
situations, without limitations on distance or location of the
individuals. The AEZ is an additional precaution to limit unintended
pesticide exposure and to complement other protections for workers and
bystanders both on and off the establishment from being contacted by
pesticides. Consistent with the 2015 WPS, EPA believes that reinstating
the applicability of the AEZ to off-establishment situations to support
the ``Do Not Contact'' requirements will help reduce the number of
exposures of workers and other non-handlers to unintentional contact to
pesticide applications. Therefore, the social and economic benefits of
these requirements outweigh the negligible costs to implement them.
3. Comments Sought on This Proposal
The Agency is interested in comments regarding the proposal to
reestablish the applicability of the AEZ for situations when people may
be within an AEZ outside of the establishment's boundaries and its
efforts to improve understanding and compliance with this requirement.
While this rulemaking is intended to reinstate protections for off-
establishment individuals that were reduced in the 2020 AEZ Rule, EPA
understands that some of the concerns raised in the 2020 AEZ Rule
regarding the implementation and enforcement of off-establishment AEZs
will persist without additional guidance or future rulemaking to
clarify the Agency's expectations for this particular provision. EPA is
interested in comments on how to improve its existing guidance (Ref. 8)
on the AEZ implementation for off-establishment individuals and whether
the approaches outlined in the existing guidance reflect a reasonable
approach to resuming applications for those off the establishment and
not under an agricultural employer's control. EPA is also interested in
how to improve handler trainings to ensure that AEZs and the ``Do Not
Contact'' provisions are presented in a way that is easily understood,
enhances compliance, and ensures that handlers have the information and
tools needed to protect those who may be near pesticide applications.
Additionally, EPA is interested in feedback on other options or
approaches that could help to address the concerns of state enforcement
agencies or agricultural stakeholders without diminishing AEZ
protections for people in all areas adjacent to ongoing applications.

C. Revisions To Remove Provisions Making the AEZ Inapplicable in
Easements Within Agricultural Establishments

1. Proposed Changes
EPA proposes to remove language from the 2020 AEZ Rule provisions
at 40 CFR 170.405(a)(2)(ii) and 170.505(b)(1)(ii) and (b)(2)(ii) that
make the AEZ requirements inapplicable in easements within the
agricultural establishment.
Portions of agricultural establishments may be subject to easements
(e.g., right-of-way, gas, mineral, utility, wind/solar energy) such
that some persons (e.g., utility workers) may have a legal right to be
on parts of an agricultural establishment independent of the
agricultural employer's control. In 2015, EPA presumed that all persons
on an agricultural establishment would be subject to the control of the
owner or agricultural employer, not recognizing the prevalence of
easements which deprive the landowner of the ability, in

[[Page 15353]]

whole or in part, to control the movement of persons within the
easement. The 2015 WPS made no exception for such easements. The 2020
AEZ Rule revised the WPS so that agricultural employers are not
required to exclude, and handlers are not required to suspend
applications for, persons not employed by the establishment who are in
the AEZ in an area subject to an easement that prevents the
agricultural employer from temporarily excluding those persons from
that area.
The purpose of the easement exception was to ensure that the
presence of persons who have a legal right to be on parts of an
agricultural establishment independent of the agricultural employer's
control should not be an insurmountable obstacle to pesticide
application, provided the pesticide could be applied without contacting
such persons (Ref. 1). This easement exception was based on a
determination that the ``Do Not Contact'' requirement was sufficiently
protective of persons in easements within the agricultural
establishment. In line with the decision to not limit the AEZ to the
boundaries of the agricultural establishment as discussed in Unit
II.B., EPA has determined that the AEZ should also not be limited only
to those areas where the agricultural employer can exclude people, and
thereby should be applicable to easements within the agricultural
establishment. Having the AEZ requirements apply in easements within
the establishment aligns with the ``Do Not Contact'' provision and
increases the protection for workers and bystanders in all areas of the
establishment.
2. Anticipated Effects
As explained in Unit II.A.4., the 2020 AEZ Rule never went into
effect due to court orders staying the effective date of the 2020 AEZ
final rule. However, in determining that the reinstatement of certain
AEZ provisions from the 2015 WPS is warranted, EPA recognizes that an
analysis of changes from the 2020 AEZ Rule and this proposed action is
necessary. While the above discussion in this section compares the
effects of the currently proposed changes to the 2020 AEZ final rule,
the AEZ requirements have always extended to easements on an
agricultural establishment since they originally went into effect in
2015. Therefore, given that the 2015 WPS has remained in effect since
its establishment, there are no new impacts expected with the revision.
Revising the AEZ requirements so that applicators must suspend
applications when people are inside an AEZ while in an area subject to
an easement is anticipated to have little effect on the costs of
pesticide application. Although this change has the potential to
increase the complexity of pesticide applications, this requirement
would only apply to specific instances in which people are within an
easement that is also within the AEZ. In those cases, an owner or an
applicator may have to reschedule an application, temporarily suspend
applications, or communicate with people subject to an easement to move
them outside of the AEZ, which could in turn lead to more complex
application strategies. However, the proposal to reinstate the 2015 AEZ
requirements will provide the applicator with specific criteria for
suspending applications without needing to consider exceptions for
easements and the location of those boundaries, which may make it
easier for the applicator since the AEZ will therefore extend from the
application in all directions, regardless of easements.
Since EPA is unaware of any pesticide exposure incidents involving
individuals on an easement, EPA is unable to quantify how incidents of
exposure will be affected by reinstating the 2015 AEZ regulatory text
that would, in effect, make the AEZ applicable within easements on an
agricultural establishment. As described previously, the ``Do Not
Contact'' provision is applicable in all situations, without
limitations on distance or the location of the individuals. The AEZ is
an additional precaution to limit unintended pesticide exposure,
intended to complement other protections for workers and bystanders.
Despite the gap in available information, the Agency anticipates that
reinstating the AEZ as finalized in the 2015 WPS will help to reduce
potential exposures for those in easements if implemented properly.
3. Comments Sought on This Proposal
The Agency is interested in comments regarding the proposal to
reestablish the applicability of the AEZ for people who may be in an
area subject to an easement that falls within an AEZ and its efforts to
improve understanding and compliance with this requirement. While this
rulemaking intends to reinstate protections that were reduced in the
2020 AEZ Rule for individuals within an area subject to an easement,
EPA understands that some of the concerns raised in the 2020 AEZ Rule
regarding the implementation and enforcement of AEZs will persist
without additional guidance or future rulemaking to clarify the
Agency's expectations for this particular provision. EPA is interested
in comments on how to improve its guidance on the implementation of AEZ
protections for those within easements, and whether the approaches
outlined in the existing guidance reflect a reasonable approach to
resuming applications when those within easements and not under an
agricultural employer's control. EPA is also interested in how to
improve handler trainings to ensure that AEZs and the ``Do Not
Contact'' provisions are presented in a way that is easily understood,
enhance compliance, and ensure protection for those who may be within
an easement. Additionally, EPA is interested in feedback on what other
options or approaches could help address the concerns of state
enforcement agencies or agricultural stakeholders without diminishing
AEZ protections for people in areas subject to an easement.

D. Revisions To Reinstate 2015 AEZ Distance Requirements for Certain
Ground-Based Sprays

1. Proposed Changes
EPA is proposing to reinstate the 2015 WPS criteria and factors for
determining AEZ distances at 40 CFR 170.405(a) for ground spray
applications, except for language around a Volume Median Diameter (VMD)
as a determining factor. The 2020 AEZ Rule sought to simplify the AEZ
requirements for ground spray applications by eliminating the language
pertaining to spray quality and droplet size and VMD as criteria for
determining the appropriate AEZ distance. This had the effect of
establishing a single 25-foot AEZ for all ground-based spray
applications made from a height greater than 12 inches from the soil
surface or planting medium, irrespective of droplet size.
This proposed rule would reinstate language from the 2015 WPS that
set AEZ distances based on the spray quality (droplet spectrum) sizes
and spray height for certain pesticide application methods. Despite the
Agency's efforts in the 2020 AEZ Rule to develop a simplified approach
that was easier to understand and implement, EPA has reconsidered
several studies cited by commenters (Refs. 10, 11, 12, 13) in response
to EPA's 2019 AEZ Proposed Rule (Ref. 14) that show that pesticide
applications using sprays with droplets smaller than medium (i.e., fine
or smaller droplet sizes) are prone to drift greater than 25 feet.
After reconsidering the comments and the information submitted to the
Agency during the 2019 public comment period and reevaluating the

[[Page 15354]]

information in the administrative record for the 2015 WPS rule, EPA has
determined that the 100-foot AEZ for sprays with droplets smaller than
medium is needed to provide protection to workers or bystanders near
these fine-spray applications. As a result, the Agency is proposing to
reestablish AEZ distances of 100 feet for sprays using a spray quality
(droplet spectrum) of smaller than medium, and a 25-foot AEZ for ground
applications sprayed from a height greater than 12 inches from the soil
surface or planting medium using a spray quality (droplet spectrum) of
medium or larger.
EPA is proposing, however, to incorporate the droplet size
categories of all versions of the American National Standards
Institute/American Society of Agricultural and Biological Engineers
(ANSI/ASABE) Standard 572 (S572) by reference in Sec. 170.405,
including ANSI/ASABE S572.1, ANSI/ASABE S572.2, and ANSI/ASABE S572.3,
to give meaning to the ``medium'' droplet size criterion instead of
using the VMD values from the 2015 WPS. Because a similar approach
using droplet size classifications was used in 40 CFR 170.405(b) when
establishing entry restrictions during enclosed space production under
the 2015 WPS, EPA is also proposing to remove VMD as a criterion for
enclosed space production and instead rely on these ANSI/ASABE
standards to ensure consistency between outdoor production requirements
and enclosed space production requirements. The rationale for
incorporating these standards by reference is further discussed in Unit
II.E.
While EPA proposes to reinstate the 2015 WPS criteria for
determining AEZ distances based on the droplet size and spray height,
EPA reiterates that the application of a pesticide in a manner
inconsistent with its labeling is a violation of FIFRA. Regardless of
the droplet size criteria for the AEZ distances presented in 40 CFR
170.405(a) and the entry restriction distances for enclosed space
production in 40 CFR 170.405(b), individual product labels may specify
different, more protective product-specific restrictions that must be
followed during the application. Pesticide users must comply with all
the requirements in 40 CFR part 170, except those that are inconsistent
with product-specific instructions on the pesticide product labeling.
2. Anticipated Effects
In this proposal, EPA is changing the determinants of the size of
the AEZ. In some cases, such as where the handler is spraying a
pesticide product with droplet sizes smaller than medium (i.e., fine
droplets), the size of the AEZ would have been 25 feet under the 2020
AEZ Rule. This proposal would reestablish the 2015 WPS regulatory text
that set a distance of 100 feet for these applications. For sprayed
applications using medium or larger droplets sprayed above 12 inches,
the distance remains 25 feet, which is the same distance for these
applications in both the 2015 WPS and the 2020 AEZ Rule.
Reinstating the different AEZ distances from the 2015 WPS for
ground-based sprays based on droplet sizes is more complex than the
2020 AEZ for some growers, because handlers will have to assess droplet
size and use that information to determine the correct size of the AEZ.
However, the change in size only makes a difference for applications
using a fine spray in the specific instances when people are between 25
and 100 feet from the application equipment. In those cases, an
applicator would have had to reschedule an application or temporarily
suspend applications until individuals leave the area. Retaining the
droplet size criteria from the 2020 AEZ Rule may have made it simpler
for handlers to know or understand the criteria for the AEZ, without
having to know the specific characteristics of specific nozzles and
applications, but it would also be less protective than the
requirements of the 2015 WPS for applications using a fine droplet
spray. In determining that the reinstatement of certain AEZ provisions
from the 2015 WPS is warranted, EPA recognizes that an analysis of
changes from the 2020 AEZ Rule and this proposed action is necessary.
However, since the 2020 AEZ Rule has not gone into effect, there are no
new impacts expected with the revision, and all costs associated with
reinstating the 2015 WPS regulatory language are expected to be
negligible.
3. Comments Sought on This Proposal
The Agency is interested in comments regarding the proposal
reestablish 25- and 100-foot AEZ for ground-based sprays based on
droplet size and spray height criteria. EPA is also interested in
comments on the proposal to not reinstate the VMD as a criterion for
determining 25- versus 100-foot AEZ distances, and whether the proposal
to base AEZ distances on a classification category threshold of medium
defined by the ANSI/ASABE standard and spray height still achieves the
same protection that was provided in the 2015 WPS. Additionally, EPA is
interested in information on whether incorporating the ANSI/ASABE
standards by reference into the regulations to better define ``medium''
droplet sizes is adequate. The Agency is also interested in whether
additional guidance for handlers/applicators conveying the value of
using nozzle manufacturer guides and manuals to determine droplet sizes
that are consistent with the ANSI/ASABE standard's definition of
``medium'' is needed to provide enough clarity to the regulated
community on how to make an AEZ or enclosed space application distance
determination for a given application. EPA is interested in feedback on
whether incorporating the droplet classification category of medium
from ANSI/ASABE is as well understood in the agricultural community as
the Agency believes it to be, and whether this promotes a
simplification to the requirements without diminishing protections.
While this rulemaking is intended to reestablish protections from the
2015 WPS, the Agency is also interested in additional information for
future consideration of the AEZ requirements regarding appropriate AEZ
distances for different application methods.

E. Incorporation by Reference

EPA identified an applicable voluntary consensus standard for
defining droplet size. Instead of fully reinstating the droplet size
criteria established in the 2015 WPS, EPA is proposing to incorporate
S572.3, Spray Nozzle Classification by Droplet Spectra, and its
preceding editions by reference to enhance the Agency's compliance with
the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C.
272 note). The NTTAA and Office of Management and Budget (OMB) Circular
A-119 require agencies to use voluntary consensus standards in its
regulatory, procurement, and program activities in lieu of government-
unique standards, unless use of such standards would be inconsistent
with applicable law or otherwise impractical.
1. Summary of Applicable Voluntary Consensus Standard
The American Society of Agricultural and Biological Engineers
(ASABE) Standard S572 and updates of that standard were developed by
ASABE and approved through the American National Standards Institute
(ANSI). The standard defines droplet spectrum categories for the
classification of spray nozzles, relative to specified reference fan
nozzles discharging spray into static air or so that no stream of air
enhances atomization. The purpose of classification is to provide the
nozzle user with droplet size information

[[Page 15355]]

primarily to indicate off-site spray drift potential and secondarily
for application efficacy. The standard established a basis for relative
nozzle comparisons only based on droplet size. The standard does not
address other spray drift and application efficacy factors, such as
droplet discharge trajectory, height, and velocity; air bubble
inclusion; droplet evaporation; and impaction on target. As discussed
in Unit. II.E.2., the ASABE categorization of ``medium'' droplet sizes
is mostly unchanged despite various updates to the standard in recent
years. Given the relative stability of the categorization of ``medium''
droplet sizes, EPA proposes to incorporate by reference the current and
all previous versions of S572 to establish the droplet spectrum
requirements of Sec. 170.405.
2. Reasons To Incorporate Current and Previous Versions of the Standard
by Reference
EPA decided to reinstate the distance criteria based on a
``medium'' droplet size cutoff and height, but not VMD, for several
reasons. The description of the droplet size/spectrum in the 2015 WPS
language in 40 CFR 170.405(a)(1) and (b)(4) included a numerical value
of 294 microns for the VMD. The oldest version of the ASABE standard
S572 for which these requirements were originally based on defined the
droplet spectrum in six categories and included numerical values for
the VMD (Ref. 15). However, the ASABE standard has been revised several
times, in 2009, 2018, and 2020 (Refs., 16, 17, 18). The most current
standard now defines the droplet sizes into eight classification
categories and no longer includes the numerical VMD values that were
the basis for the specific criteria in the 2015 WPS requirements at 40
CFR 170.405(a)(1) and (b)(4). The classification categories now include
a range of VMDs to define ``medium'' as opposed to a specific VMD
value. The categorization of ``medium'' droplet sizes throughout the
ASABE standards, however, have remained largely the same.
The ASABE classifications and categories are generally well
understood by the regulated community and are referenced in several
places, including on some EPA pesticide labels as they are revised
during EPA's Registration Review process. Additionally, droplet
classifications from the ASABE standards are also referenced in nozzle
manufacturers' selection guides to assist applicators in determining
which nozzles and spray characteristics will produce various droplet
sizes that are consistent with the ASABE classifications.
The ASABE classification categories have defined droplet size
categories for the classification of spray nozzles relative to the
specified reference fan nozzle. The purpose of classification is to
provide the nozzle user with droplet size information primarily to
indicate off-target spray drift potential and secondarily for
application efficacy. Nozzle manufacturers often provide the necessary
information in their selection guides to place their nozzle types into
a droplet size category (Extremely Fine (XF), Very fine (VF), Fine (F),
Medium (M), Coarse (C), Very Coarse (VC), Extremely Coarse (EC), and
Ultra Coarse (UC)) based at least on orifice size and pressure. The
color code associated with droplet size classification categories in
the ASABE standard has become commonly understood and is often the same
color code currently used in nozzle manufacturer guides on speed,
pressure, and nozzle type. EPA notes, however, that these colors may
not always reflect the color of the nozzle itself, so care must be
taken by applicators when reviewing these guides to determine the
correct droplet size for a particular nozzle or nozzle configuration.
EPA believes that AEZ and enclosed space distances using a droplet size
of ``medium'' can be determined quickly and simply when referring to
these guides and manuals, which is reflective of how applicators and
handlers typically ascertain this information in preparation for
applications.
Therefore, simplifying the requirements to be based on droplet size
categories alone provides a clear and easy approach for determining an
AEZ or enclosed space distance, and makes it easier to enforce the
requirements without the complexity of determining whether an
application is over or under a VMD of 294 microns as required in 2015
WPS. Additionally, EPA will consider developing additional guidance as
needed to specify that the information necessary to achieve the desired
droplet size based on ASABE's definition of ``medium'' can be obtained
through the nozzle manufacturers' guides where the characteristics for
the particular nozzle are typically provided.
3. Reasonable Availability
Copies of this standard may be purchased from the ASABE, 2950 Niles
Road, St. Joseph, MI 49085, or by calling (269) 429-0300, or at <a href="https://www.asabe.org">https://www.asabe.org</a>. Additionally, each of these standards are available for
inspection at the OPP Docket in the EPA Docket Center (EPA/DC) at Rm.
3334, EPA, West Bldg., 1301 Constitution Ave. NW, Washington, DC. The
EPA/DC Public Reading Room hours of operation are 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number of the EPA/DC Public Reading Room and the OPP Docket is (202)
566-1744. For information about the electronic availability of this
standard for public review in read-only format during the public
comment period, visit <a href="https://www.epa.gov/pesticide-worker-safety/worker-protection-standard-application-exclusion-zone">https://www.epa.gov/pesticide-worker-safety/worker-protection-standard-application-exclusion-zone</a>. EPA has
determined that the standard and its predecessor versions are
reasonably available to the class of persons affected by this
rulemaking.
If you have a disability and the format of any material on an EPA
web page interferes with your ability to access the information, please
contact EPA's Rehabilitation Act Section 508 (29 U.S.C. 794d) Program
at <a href="https://www.epa.gov/accessibility/forms/contact-us-about-section-508-accessibility">https://www.epa.gov/accessibility/forms/contact-us-about-section-508-accessibility</a> or via email at <a href="/cdn-cgi/l/email-protection#780b1d1b0c1117164d4840381d0819561f170e"><span class="__cf_email__" data-cfemail="05766066716c6a6b30353d456075642b626a73">[email&#160;protected]</span></a>. To enable us to
respond in a manner most helpful to you, please indicate the nature of
the accessibility issue, the web address of the requested material,
your preferred format in which you want to receive the material
(electronic format (ASCII, etc.), standard print, large print, etc.),
and your contact information.

F. Retention of the 2020 AEZ Rule's Suspension Clarification and the
Immediate Family Exemption

1. Summary of the Retained Provisions From the 2020 AEZ Rule
EPA is proposing to retain the 2020 AEZ Rule's revisions to clarify
when applications that have been suspended due to someone being within
the AEZ can be resumed, and the family exemption for owners and their
immediate family members to remain within an AEZ provided they are
inside a closed house or structure.
In the 2020 AEZ Rule, EPA revised 40 CFR 170.505(b) to clarify that
handlers may resume a suspended application provided that no workers or
other persons (other than appropriately trained and equipped handlers
involved in the application) remain in the AEZ. Commenters in response
to the 2019 AEZ Proposed Rule were supportive of this change, because
it provided the needed clarity for EPA's intent of the suspension
requirement. Therefore, EPA intends to maintain this revision in the
2020 AEZ Rule and will only address the language in 40 CFR 170.505(b)
regarding off-establishment individuals

[[Page 15356]]

and those within easements as discussed in Unit II.B. and C.
EPA also proposes to maintain the immediate family exemption at 40
CFR 170.601, which exempts owners and their immediate family members
from having to leave the AEZ when they remain inside closed buildings,
housing, or shelters on the establishment during pesticide
applications. This exemption also permits handlers the ability to
proceed with an application when owners or their immediate family
members remain inside closed buildings, housing, and structures,
provided that the owner has expressly instructed the handler that only
the owner and/or their immediate family members remain inside the
closed building and that the application can proceed despite the owner
and their immediate family members' presence inside the closed
building. Handlers, under this exemption, would have to receive this
information from the owner of the establishment prior to application
and cannot assume that only the owner's family are inside without that
assurance. The Agency believes this approach is consistent with the
1992 and 2015 WPS rationales for providing exemptions to the WPS for
family farms because the Agency expects owners of agricultural
establishments will take all steps necessary to protect their own
immediate family members, and the exemption gives owners flexibility to
provide those protections by sheltering immediate family members in
enclosed structures within an AEZ.
2. Comments Sought on This Proposal
While EPA intends to retain these provisions from the 2020 AEZ
Rule, EPA is interested in any new information that might be available
for the Agency to consider ensuring that these provisions are
adequately protective while meeting the needs of stakeholders. EPA also
seeks input on what the Agency can do to ensure that the expectations
of these provisions are clear and enforceable. For example, EPA is
interested in feedback on whether any additional guidance or future
revision is needed to ensure that the intent of the immediate family
exemption from the AEZ requirements is properly implemented. EPA is
also interested on the clarity and enforceability of the immediate
family exemption, particularly regarding handlers who have been
``expressly instructed'' by the owner to proceed with an application.

G. Options Considered but Not Proposed

The Agency considered rescinding the 2020 AEZ Rule in its entirety
and reinstating the WPS in full as finalized in 2015, but the Agency
has determined that certain provisions of the 2020 AEZ Rule have merit
and support in the administrative record. The Agency has determined
that this rulemaking presents the best opportunity to ensure that
protections from the 2015 WPS are expeditiously reinstated into the
regulatory text, while preserving the meritorious provisions of the
2020 AEZ Rule (i.e., clarification of when suspended applications can
resume and the immediate family exemption). In addition, the Agency
continues to assess the best approaches for improving understanding,
compliance, and enforcement the AEZ requirements. The Agency will
continue to collect additional information for future consideration on
the AEZ requirements.

III. Request for Comment

In addition to the request for comments that are specific to the
individual issues discussed in Unit II., EPA also requests comments
generally on the proposed changes to the WPS AEZ requirements, its
efforts to address potential exposure concerns in connection to the
changes made by the 2020 AEZ Rule, and the Agency's intention to retain
the 2020 AEZ Rule provisions related to the clarification of when
suspended applications can resume and the exemption for owners and
their immediate family to remain inside homes or other enclosed
buildings or structures that may fall within an AEZ. EPA is also
interested in whether the proposed changes may have unanticipated
consequences, and whether there are any recommendations or
considerations on improving the understanding, compliance, and
enforceability of the AEZ provisions. To ensure that EPA can give your
comments the fullest consideration, please provide the rationale and
data or information that support your position.

IV. References

The following is a listing of the documents that are specifically
referenced in this document. The docket includes these documents and
other information considered by EPA, including documents that are
referenced within the documents that are included in the docket, even
if the referenced document is not itself physically located in the
docket. For assistance in locating these other documents, please
consult the person listed under FOR FURTHER INFORMATION CONTACT.

1. EPA. Pesticides; Agricultural Worker Protection Standard
Revisions; Revision of the Application Exclusion Zone Requirements;
Final Rule. Federal Register. 85 FR 68760, October 30, 2020 (FRL-
10016-03). Available at <a href="https://www.govinfo.gov/content/pkg/FR-2020-10-30/pdf/2020-23411.pdf">https://www.govinfo.gov/content/pkg/FR-2020-10-30/pdf/2020-23411.pdf</a>.
2. EPA. Pesticides; Agricultural Worker Protection Standard
Revisions; Final Rule. Federal Register. 80 FR 67496, November 2,
2015 (FRL-9931-81). Available at <a href="https://www.govinfo.gov/content/pkg/FR-2015-11-02/pdf/2015-25970.pdf">https://www.govinfo.gov/content/pkg/FR-2015-11-02/pdf/2015-25970.pdf</a>.
3. EPA. Economic Analysis of the Agricultural Worker Protection
Standard Revisions, September 2015 RIN 2070-AJ22. 2015. EPA Docket
ID No. EPA-HQ-OPP-2011-0184-2522. Available at <a href="https://www.regulations.gov/document/EPA-HQ-OPP-2011-0184-2522">https://www.regulations.gov/document/EPA-HQ-OPP-2011-0184-2522</a>.
4. EPA. Cost Analysis for Revisions to the Application Exclusion
Zone in the Worker Protection Standard. 2020. EPA Docket ID No. EPA-
HQ-OPP-2017-0543-0152. Available at <a href="https://www.regulations.gov/document/EPA-HQ-OPP-2017-0543-0152">https://www.regulations.gov/document/EPA-HQ-OPP-2017-0543-0152</a>.
5. State of New York et al. v. United States Environmental
Protection Agency, Case No. 1:20-cv-10642; (United States Southern
District of New York, December 28, 2020). Amended Order Re:
Complaint for Declaratory and Injunctive Relief.
6. State of New York et al. v. United States Environmental
Protection Agency, Case No. 1:20-cv-10642; (United States Southern
District of New York, August 15, 2022). Eighth Stipulation and
Consent Order Further Extending Stay and Extending Injunction.
7. The White House, Briefing Room. Fact Sheet: List of Agency
Actions for Review. January 20, 2021. Available at <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/">https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/</a>.
8. EPA. Worker Protection Standard Application Exclusion Zone
Requirements: Updated Questions and Answers. February 15, 2018.
Available at <a href="https://www.regulations.gov/document/EPA-HQ-OPP-2017-0543-0008">https://www.regulations.gov/document/EPA-HQ-OPP-2017-0543-0008</a>.
9. EPA. WPS Guidance on the Application Exclusion Zone. Q&A Fact
Sheet on the Worker Protection Standard (WPS) Application Exclusion
Zone (AEZ) Requirements. April 14, 2016. Available at <a href="https://www.regulations.gov/document/EPA-HQ-OPP-2017-0543-0007">https://www.regulations.gov/document/EPA-HQ-OPP-2017-0543-0007</a>.
10. Felsot et al. Agrochemical Spray Drift; Assessment and
Mitigation--A Review, 46 J. Envtl. Sci. Health Part B 1. 2010.
11. Kasner et al., Spray Drift from a Conventional Axial Fan
Airblast Sprayer in a Modern Orchard Work Environment, 62 Annals of
Work Exposures and Health 1134. 2018.
12. W.A. Taylor et al., An Attempt to Relate Drop Size to Drift
Risk, Proceedings of the International Conference on Pesticide
Application for Drift Management, 210-223. 2004.
13. Nuyttens et al., Effect of Nozzle Type, Size and Pressure on
Spray Droplet Characteristics, 97 Biosystems Engineering 333. 2007.

[[Page 15357]]

14. EPA. Pesticides; Agricultural Worker Protection Standard;
Revision of the Application Exclusion Zone Requirements; Proposed
Rule. Federal Register. 84 FR 58666, November 1, 2019 (FRL-9995-47).
15. American National Standards Institute (ANSI)/American Society of
Agricultural and Engineers (ASAE). Spray Nozzle Classification by
Droplet Spectra. ANSI/ASAE S572. August 1999.
16. American National Standards Institute (ANSI)/American Society of
Agricultural and Biological Engineers (ASABE). Spray Nozzle
Classification by Droplet Spectra. ANSI/ASABE S572.1. March 2009.
17. American National Standards Institute (ANSI)/American Society of
Agricultural and Biological Engineers (ASABE). Spray Nozzle
Classification by Droplet Spectra. ANSI/ASABE S572.2. July 2018.
18. American National Standards Institute (ANSI)/American Society of
Agricultural and Biological Engineers (ASABE). Spray Nozzle
Classification by Droplet Spectra. ANSI/ASABE S572.3. February 2020.
19. EPA. Notification of Submission to the Secretary of Agriculture;
Pesticides; Agricultural Worker Protection Standard; Reconsideration
of the Application Exclusion Zone Amendments; Draft Proposed Rule;
Notification of submission to the Secretary of Agriculture. Federal
Register. 87 FR 74072, December 2, 2022 (FRL-8528-02-OCSPP).

V. FIFRA Review Requirements

In accordance with FIFRA section 25(a), EPA submitted a draft of
this proposed rule to the United States Department of Agriculture
(USDA) (Ref. 19) and the FIFRA Scientific Advisory Panel (SAP) for
review. A draft of the rule was also submitted to the appropriate
Congressional Committees.
The FIFRA SAP waived its scientific review of this proposed rule on
November 27, 2022. The SAP indicated that the draft proposed rule does
not contain scientific issues that warranted review by the Panel.
USDA completed its review on December 28, 2022. USDA expressed its
support for the action and provided no comments that warranted a
response from EPA.

VI. Statutory and Executive Order Reviews

Additional information about these statutes and Executive orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

This action is not a significant regulatory action and was
therefore not submitted to OMB for review under Executive Orders 12866
(58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011).

B. Paperwork Reduction Act (PRA)

This action does not impose any new or modify information
collection requirements that would require additional review or
approval by OMB under the PRA, 44 U.S.C. 3501 et seq. OMB has
previously approved the information collection activities contained in
the existing regulations under OMB control number 2070-0190 and
identified by EPA Information Collection Request No. 2491.06. This
proposal does not impose an information collection burden because the
AEZ requirements are not associated with any of the existing burdens in
the approved information collection request.

C. Regulatory Flexibility Act (RFA)

I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA, 5
U.S.C. 601 et seq. The small entities subject to the requirements of
this action are agricultural and handler employers, and commercial
pesticide handler employers. The Agency has determined that while
reinstating several of the 2015 AEZ requirements could require
agricultural employers to direct workers to move away from the edge of
treatment areas as the application equipment passes, this would be a
very temporary disruption in any worker activity and, as summarized in
Unit I.E. and otherwise discussed in Units II.B.2., II.C.2., and
II.D.2., would not lead to any quantifiable impacts on agricultural
establishments, including small agricultural operations. On the part of
the handlers, the requirement to cease an application if someone is in
the AEZ clarifies the applicator or handler's responsibility and is
unlikely to result in measurable costs.
As explained in Unit II.A.4., the 2020 AEZ Rule never went into
effect due to a series of court orders staying the effective date of
the 2020 AEZ final rule. While the discussion compares the effects of
the currently proposed changes to the 2020 AEZ final rule, the AEZ
requirements have always extended beyond the boundary of an
agricultural establishment and within easements since it originally
went into effect in 2016. Therefore, given that the 2015 rule has
remained in effect since its establishment, there are no new impacts
expected with this proposed rule.

D. Unfunded Mandates Reform Act (UMRA)

This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any State,
local, or tribal governments or the private sector.

E. Executive Order 13132: Federalism

This action does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

This action does not have tribal implications as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000), because it will
not have substantial direct effects on tribal governments, on the
relationship between the Federal Government and tribal governments, or
on the distribution of power and responsibilities between the Federal
Government and tribal governments. Thus, Executive Order 13175 does not
apply to this action.

G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

This action is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it is not economically significant as defined
in Executive Order 12866 (see Unit V.A.), and because the EPA does not
believe the environmental health or safety risks addressed by this
action present a disproportionate risk to children. EPA interprets
Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to
those regulatory actions that concern environmental health or safety
risks that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive order.
The WPS is intended to apply to myriad agricultural pesticides and
the Agency has not developed a health or risk assessment to evaluate
impact of the proposed amendments of the AEZ provisions for each
pesticide subject to the WPS. Beyond the requirements of Executive
Order 13045, EPA's 2021 Policy on Children's Health, dated October 5,
2021 (https://www.epa.gov/

[[Page 15358]]

system/files/documents/2021-10/2021-policy-on-childrens-health.pdf),
requires EPA to consistently and explicitly consider early life
exposures and lifelong health in all human health decisions. The Agency
finds that it is reasonable to expect that this proposed rule would
address existing environmental health or safety risks from agricultural
pesticide applications that may have a disproportionate effect on
children. Children face the risk of pesticide exposure from work in
pesticide-treated areas or near ongoing pesticide application, from the
use of pesticides near their homes and schools, and from pesticide
residues brought into the home by family members after a day of working
with pesticides or being in or near pesticide-treated areas. Children
also face the risk of pesticide exposure from drift. The proposed rule
is intended to limit these exposures and risks by reinstating AEZ
requirements that no longer limit it to the property boundary of an
agricultural establishment and expanding the AEZ back to 100 feet for
sprayed applications with droplet sizes smaller than medium.

H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

This action is not subject to Executive Order 13211 (66 FR 28355,
May 22, 2001), because it is not a significant regulatory action under
Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA) and 1 CFR
Part 51

This action involves voluntary standards under NTTAA section 12(d),
15 U.S.C. 272 note. EPA is proposing to adopt the use of ANSI/ASABE
S572, ANSI/ASABE S572.1, ANSI/ASABE S572.2, and ANSI/ASABE S572.3 to
define ``medium'' droplet sizes. Additional information about these
standards, including how to access them, is provided in Unit II.E.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

Executive Order 12898 (59 FR 7629, February 16, 1994) directs
Federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations (people of color and/or indigenous
peoples) and low-income populations.
EPA believes that the human health or environmental conditions that
exist prior to this action result in or have the potential to result in
disproportionate and adverse human health or environmental effects on
people of color, low-income populations and/or indigenous peoples. As
noted in past assessments (Ref. 3), affected populations include
minority and/or low-income individuals that may have a higher risk of
exposure and/or are more vulnerable to the impacts of pesticides due to
occupation, economic status, health and obstacles to healthcare access,
language barriers, and other sociodemographic characteristics.
EPA believes that this action is likely to reduce existing
disproportionate and adverse effects on people of color, low-income
populations and/or Indigenous peoples. EPA seeks to limit exposure of
agricultural workers, handlers, and communities adjacent to
agricultural establishments to pesticides. This action would limit
exposures to pesticides, improve public health, and prioritize
environmental justice by rescinding certain changes to the AEZ
provisions that were reflected in the 2020 AEZ Rule but have not yet
taken effect. This action would reinstate, for example, regulatory text
requiring agricultural employers to keep workers and other people out
of the AEZ during the pesticide application regardless of whether the
individuals are outside of establishments' boundaries or within
easements. Additionally, these changes will reinstate larger AEZs for
those sprays with the highest spray drift potential. As discussed in
Unit I.E., reinstating the 2015 WPS requirements for these AEZ
provisions better balances social and health-related costs than the
2020 AEZ Rule.
EPA additionally identified and addressed environmental justice
concerns by engaging with stakeholders from affected communities
extensively in the development of the 2015 WPS rulemaking that
originally established the AEZ requirements that the Agency proposes to
reinstate. Those efforts were conducted to obtain meaningful
involvement of all affected parties. Consistent with those efforts and
assessments, EPA believes this rule will better protect the health of
agricultural workers and handlers by reinstating the complementary
protections of the AEZ that were intended to support the ``Do Not
Contact'' requirements within the WPS.
The information supporting this Executive order review is contained
in the section discussing the incremental impacts of this action in
Unit I.E. and the Economic Analysis from the 2015 WPS (Ref. 3).

List of Subjects in 40 CFR Part 170

Environmental protection, Agricultural worker, Employer, Farms,
Forests, Greenhouses, Incorporation by reference, Nurseries, Pesticide
handler, Pesticides, Worker protection standard.

Michael S. Regan,
Administrator.

Therefore, for the reasons set forth in the preamble, EPA proposes
to amend 40 CFR chapter I as follows:

PART 170--WORKER PROTECTION STANDARD

0
1. The authority citation for part 170 continues to read as follows:

Authority: 7 U.S.C. 136w.

0
2. Amend Sec. 170.405 by revising paragraphs (a)(1)(i) and (ii),
(a)(2), and (b)(4) and adding paragraph (c) to read as follows:

Sec. 170.405 Entry restrictions associated with pesticide
applications.

(a) * * *
(1) * * *
(i) The application exclusion zone is the area that extends 100
feet horizontally from the point(s) of pesticide discharge from the
application equipment in all directions during application when the
pesticide is applied by any of the following methods:
(A) Aerially.
(B) Air blast or air-propelled applications.
(C) As a fumigant, smoke, mist, or fog.
(D) As a spray using nozzles or nozzle configurations which produce
a droplet size of smaller than medium, in accordance with the meaning
given to ``medium'' by the American Society of Agricultural and
Biological Engineers in ASABE Standard S572, S572.1, S572.2, or S572.3
(incorporated by reference, see paragraph (c) of this section).
(ii) The application exclusion zone is the area that extends 25
feet horizontally from the point(s) of pesticide discharge from the
application equipment in all directions during application when the
pesticide is sprayed from a height of greater than 12 inches from the
soil surface or planting medium using nozzles or nozzle configurations
which produce a droplet size of medium or larger in accordance with the
meaning given to ``medium'' by the American Society of Agricultural and
Biological Engineers in ASABE Standard S572, S572.1, S572.2, or S572.3
(incorporated by reference, see

[[Page 15359]]

paragraph (c) of this section), and not as in paragraph (a)(1)(i) of
this section.
* * * * *
(2) During any outdoor production pesticide application, the
agricultural employer must not allow or direct any worker or other
person to enter or to remain in the treated area or an application
exclusion zone that is within the boundaries of the establishment until
the application is complete, except for:
(i) Appropriately trained and equipped handlers involved in the
application; and
(ii) Owners of the agricultural establishment and their immediate
family members who remain inside closed buildings, housing, or shelters
under the conditions specified in Sec. 170.601(a)(1)(vi).
* * * * *
(b) * * *
(4) The following table applies to paragraphs (b)(1), (2), and (3)
of this section.

Table 1 to Paragraph (b)(4)--Entry Restrictions During Enclosed Space Production Pesticide Applications
----------------------------------------------------------------------------------------------------------------
D. After the expiration
B. Workers and other of time specified in
persons, other than column C, the area
A. When a pesticide is applied: appropriately trained C. Until: subject to the
and equipped handlers restricted-entry
are prohibited in: interval is:
----------------------------------------------------------------------------------------------------------------
(1) As a fumigant.................... Entire enclosed space The ventilation No post-application
plus any adjacent criteria of paragraph entry restrictions
structure or area that (b)(3) of this section required by Sec.
cannot be sealed off are met. 170.407 after criteria
from the treated area. in column C are met.
(2) As a: (i) Smoke, or (ii) Mist, or Entire enclosed space.. The ventilation Entire enclosed space.
(iii) Fog, or (iv) As a spray using criteria of paragraph
a spray quality (droplet spectrum) (b)(3) of this section
of smaller than medium, in are met.
accordance with the meaning given to
``medium'' by the American Society
of Agricultural and Biological
Engineers in ASABE Standard S572,
S572.1, S572.2, or S572.3
(incorporated by reference, see
paragraph (c) of this section).
(3) Not as in (1) or (2), and for Entire enclosed space.. The ventilation Treated area.
which a respiratory protection criteria of paragraph
device is required for application (b)(3) of this section
by the pesticide product labeling. are met.
(4) Not as in (1), (2), or (3), and: Treated area plus 25 Application is complete Treated area.
(i) From a height of greater than 12 feet in all directions
inches from the planting medium, or of the treated area,
(ii) As a spray using a spray but not outside the
quality (droplet spectrum) of medium enclosed space.
or larger in accordance with the
meaning given to ``medium'' by the
American Society of Agricultural and
Biological Engineers in ASABE
Standard S572, S572.1, S572.2, or
S572.3 (incorporated by reference,
see paragraph (c) of this section).
(5) Otherwise........................ Treated area........... Application is complete Treated area.
----------------------------------------------------------------------------------------------------------------

(c) Incorporation by reference. The material listed in this
paragraph (c) is incorporated by reference into this section with the
approval of the Director of the Federal Register under 5 U.S.C. 552(a)
and 1 CFR part 51. To enforce any editions other than those specified
in this section, the Environmental Protection Agency (EPA) must publish
a document in the Federal Register and the materials must be available
to the public. All approved material is available for inspection at the
EPA and at the National Archives and Records Administration (NARA).
Contact EPA at: OPP Docket, Environmental Protection Agency Docket
Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301
Constitution Ave. NW, Washington, DC. The EPA/DC Public Reading Room
hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding legal holidays. The telephone number of the EPA/DC Public
Reading room and the OPP Docket is (202) 566-1744. For information on
the availability of this material at NARA, visit: <a href="http://www.archives.gov/register//locations.html">www.archives.gov/register//locations.html</a> or email: <a href="/cdn-cgi/l/email-protection#3f594d1156514c4f5a5c4b5650517f515e4d5e11585049"><span class="__cf_email__" data-cfemail="ff998dd196918c8f9a9c8b969091bf919e8d9ed1989089">[email&#160;protected]</span></a>. The material
may be obtained from the following source(s) in this paragraph (c):
(1) American Society of Agricultural and Biological Engineers, 2950
Niles Road, St. Joseph, MI 49085, (269) 429-0300, <a href="https://www.asabe.org">https://www.asabe.org</a>.
(i) ANSI/ASAE S572, Spray Nozzle Classification by Droplet Spectra,
Approved August 1999, Reaffirmed February 2004.
(ii) ANSI/ASABE S572.1, Spray Nozzle Classification by Droplet
Spectra, Approved March 2009, Reaffirmed December 2017.
(iii) ANSI/ASABE S572.2, Spray Nozzle Classification by Droplet
Spectra, Approved July 2018.
(iv) ANSI/ASABE S572.3, Spray Nozzle Classification by Droplet
Spectra, Approved February 2020.
(2) [Reserved]
0
3. Amend Sec. 170.501 by revising paragraph (c)(3)(xi) to read as
follows:

Sec. 170.501 Training requirements for handlers.

* * * * *
(c) * * *
(3) * * *
(xi) Handlers must suspend a pesticide application if workers or
other persons are in the application exclusion zone and must not resume
the application while workers or other persons remain in the
application exclusion zone, except for appropriately trained and
equipped handlers involved in the application, and the owner(s) of the
agricultural establishment and members of their immediate families who
remain inside closed buildings, housing, or shelters, provided that the
handlers have been expressly instructed by the owner(s) of the
agricultural establishment that only immediate family members remain
inside those

[[Page 15360]]

closed buildings, housing, or shelters and that the application should
proceed despite the presence of the owner(s) or their immediate family
members inside those closed buildings, housing, or shelters.
* * * * *
0
4. Amend Sec. 170.505 by revising paragraph (b) to read as follows:

Sec. 170.505 Requirements during applications to protect handlers,
workers, and other persons.

* * * * *
(b) Suspending applications. (1) Any handler performing a pesticide
application must immediately suspend the pesticide application if any
worker or other person is in an application exclusion zone described in
Sec. 170.405(a)(1) or the area specified in column B of table 1 to
Sec. 170.405(b)(4), except for:
(i) Appropriately trained and equipped handlers involved in the
application; and
(ii) The owner(s) of the agricultural establishment and members of
their immediate families who remain inside closed buildings, housing,
or shelters, provided that the handlers have been expressly instructed
by the owner(s) of the agricultural establishment that only immediate
family members remain inside those closed buildings, housing, or
shelters and that the application should proceed despite the presence
of the owner(s) or their immediate family members inside those closed
buildings, housing, or shelters.
(2) A handler must not resume a suspended pesticide application
while any workers or other persons remain in an application exclusion
zone described in Sec. 170.405(a)(1) or the area specified in column B
of table 1 to Sec. 170.405(b)(4), except for:
(i) Appropriately trained and equipped handlers involved in the
application; and
(ii) The owner(s) of the agricultural establishment and members of
their immediate families who remain inside closed buildings, housing,
or shelters, provided that the handlers have been expressly instructed
by the owner(s) of the agricultural establishment that only immediate
family members remain inside those closed buildings, housing, or
shelters and that the application should proceed despite the presence
of the owner(s) or their immediate family members inside those closed
buildings, housing, or shelters.
* * * * *
0
5. Amend Sec. 170.601 by revising paragraph (a)(1) to read as follows:

Sec. 170.601 Exemptions.

(a) * * *
(1) On any agricultural establishment where a majority of the
establishment is owned by one or more members of the same immediate
family, the owner(s) of the establishment (and, where specified in
paragraphs (a)(1)(i) through (xiii) of this section, certain handlers)
are not required to provide the protections of the following provisions
to themselves or members of their immediate family when they are
performing handling activities or tasks related to the production of
agricultural plants that would otherwise be covered by this part on
their own agricultural establishment.
(i) Section 170.309(c).
(ii) Section 170.309(f) through (j).
(iii) Section 170.311.
(iv) Section 170.401.
(v) Section 170.403.
(vi) Sections 170.405(a)(2) and 170.505(b), but only in regard to
owner(s) of the establishment and their immediate family members who
remain inside closed buildings, housing, or shelters. This exception
also applies to handlers (regardless of whether they are immediate
family members) who have been expressly instructed by the owner(s) of
the establishment that:
(A) Only the owner(s) or their immediate family members remain
inside the closed building, housing, or shelter; and
(B) The application should proceed despite the presence of the
owner(s) or their immediate family members remaining inside the closed
buildings, housing, or shelters.
(vii) Section 170.409.
(viii) Sections 170.411 and 170.509.
(ix) Section 170.501.
(x) Section 170.503.
(xi) Section 170.505(c) and (d).
(xii) Section 170.507(c) through (e).
(xiii) Section 170.605(a) through (c), and (e) through (j).
* * * * *
[FR Doc. 2023-03619 Filed 3-10-23; 8:45 am]
BILLING CODE 6560-50-P

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