Rule2024-22832
Pesticides; Agricultural Worker Protection Standard; Reconsideration of the Application Exclusion Zone Amendments
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 4, 2024
Effective
December 3, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA or Agency) is finalizing revisions to the application exclusion zone (AEZ) requirements in the Agricultural Worker Protection Standard (WPS). EPA 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 better protect public health and limit exposure for those who may be near ongoing pesticide applications. To restore these protections, EPA is finalizing the AEZ rule proposed on March 13, 2023, as proposed without change.
Full Text
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<title>Federal Register, Volume 89 Issue 193 (Friday, October 4, 2024)</title>
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[Federal Register Volume 89, Number 193 (Friday, October 4, 2024)]
[Rules and Regulations]
[Pages 80767-80788]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-22832]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 170
[EPA-HQ-OPP-2022-0133; FRL-8528-05-OCSPP]
RIN 2070-AK92
Pesticides; Agricultural Worker Protection Standard;
Reconsideration of the Application Exclusion Zone Amendments
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA or Agency) is
finalizing revisions to the application exclusion zone (AEZ)
requirements in the Agricultural Worker Protection Standard (WPS). EPA
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
better protect public health and limit exposure for those who may be
near ongoing pesticide applications. To restore these protections, EPA
is finalizing the AEZ rule proposed on March 13, 2023, as proposed
without change.
DATES: This final rule is effective December 3, 2024. The incorporation
by reference of certain publications listed in the regulations is
approved by the Director of the Federal Register as of December 3,
2024.
ADDRESSES: The docket for this action, identified by docket
identification (ID) number EPA-HQ-OPP-2022-0133, is available online at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. Additional information about dockets
generally, along with instructions for visiting the docket in-person,
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 (7508M), 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#3b48585349545e5f5e4915585a49545742557b5e4b5a155c544d"><span class="__cf_email__" data-cfemail="6a19090218050f0e0f1844090b18050613042a0f1a0b440d051c">[email 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 questions regarding the applicability of this action to
a particular entity, consult the person listed in the FOR FURTHER
INFORMATION CONTACT section.
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 finalizing the AEZ rule that was proposed on March 13, 2023
(88 FR 15346; FRL-8528-03-OCSPP) (hereinafter ``2023 Proposed Rule'';
Ref. 1), as proposed and without change. In so doing, the Agency is
revising certain AEZ requirements of the WPS that were amended by EPA
in a final rule published on October 30, 2020 (hereinafter ``2020 AEZ
Rule''; Ref. 2). As further explained in Unit II.A.4., the effective
date of the 2020 AEZ Rule was stayed pursuant to a court order; that
is, the 2020 AEZ Rule has not gone into effect. This rulemaking, once
in effect, replaces the requirements that were published under the 2020
AEZ Rule but never went into effect.
Specifically, EPA is rescinding three of the amendments outlined in
the 2020 AEZ Rule and reinstating the related AEZ requirements as
published in a final rule on November 2, 2015 (hereinafter ``2015
WPS''; Ref. 3), with certain modifications. The following three
amendments from the 2020 AEZ Rule are being rescinded:
1. The area where the AEZ applies. This rule rescinds language from
the 2020 AEZ Rule that limited the applicability of the AEZ to the
agricultural employer's property. As such, with this rule, applications
must be suspended whenever someone is within the AEZ, regardless of
whether that person is on or off the agricultural establishment.
2. The exception to application suspension requirements for
property easements. Under this rule, applications must be suspended
whenever someone is within an AEZ, even if they are not employed by the
establishment and in an area subject to an easement that prevents the
agricultural employer from temporarily excluding those individuals from
that area.
3. The distances from the application equipment in which entry
restrictions associated with ongoing ground-based pesticide
applications apply. Under this rule, the AEZ distance is 100 feet for
ground-based fine spray applications and 25 feet, generally, for
ground-based applications using medium or larger droplet sizes.
EPA is also amending the AEZ provisions in the 2015 WPS as follows:
1. Clarifies when suspended applications may be resumed. This rule
specifies that applications that were suspended due to individuals
entering an AEZ may be resumed after those individuals have left the
AEZ. As a result, this rule supersedes EPA's previous interpretive
guidance on resuming applications in circumstances when individuals
off-establishment are in the AEZ (see Unit VI.B.; Refs. 4 through 6).
2. Provides an exemption allowing owners and their immediate family
to remain within the AEZ in certain scenarios. Under this rule, farm
owners and members of their immediate family may 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. Handlers may proceed with applications
under these circumstances.
3. Replaces the volume median diameter (VMD) criteria with droplet
size classification standards. Under this rule, the standard that will
be used as the droplet size criterion when making
[[Page 80768]]
AEZ distance determinations based on droplet size is the technical
standard established by the American Society of Agricultural Engineers
(ASAE). ASAE was renamed the American Society of Agricultural and
Biological Engineers (ASABE) in 2005, which is also endorsed by the
American National Standards Institute (ANSI). Although ASABE is now the
organization of record for these standards, the specific size standard
reflects the name of the organization that existed at the time that the
standard was established.
Each of these changes is explained in more detail in Unit IV.
D. Why is the Agency taking this action?
EPA reexamined the 2020 AEZ Rule consistent with Executive Order
13990 (Ref. 7), and in response to a factual error that EPA discovered
in the 2020 AEZ Rule's preamble while compiling the administrative
record for litigation (see Unit II.A.4 and Unit II.A.5.). As a result
of EPA's reexamination of the 2020 AEZ Rule, the Agency 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 determined that reinstatement of these
protections from the 2015 WPS will be more effective at reducing
potential exposures from ongoing pesticide applications and promote
public health for all populations and communities near agricultural
establishments. In addition, EPA's analysis supporting the 2015 WPS
shows 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). Reinstating the regulatory text for certain AEZ requirements from
the 2015 WPS will be associated with minimal cost to the regulated
community, as described in Unit III. These revisions are consistent
with FIFRA's mandate to protect health and the environment against
unreasonable risk to humans or the environment, taking into account the
economic, social, and environmental costs and benefits.
E. What are the estimated incremental impacts of this action?
EPA assessed the potential incremental economic impacts of this
action, as compared to both the 2015 WPS and the 2020 AEZ Rule. EPA
used this approach because the 2015 WPS has continued to provide the
operative regulatory language for the AEZ requirements during the
court-ordered stay of the 2020 AEZ Rule (see Unit II.A.4.). As compared
to the 2015 WPS, EPA determined that the 2020 AEZ Rule had minimal
impacts (see Unit III.A.). Similarly, EPA found that the impact of the
changes in this final rule on agricultural establishments is likely to
be small relative to the 2020 AEZ Rule (see Unit III.B.). EPA's
analysis addresses other implications of this action as well (see Unit
III.C.).
II. Context and Goals for This Rulemaking
A. Context for This Rulemaking
1. The 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. 8). 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, and use of PPE.
The 2015 WPS also implemented updated 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
(Ref. 8). 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 (Ref. 3).
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
[[Page 80769]]
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 (Ref. 3). 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. The AEZ moves with the 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 (defined as VMD
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 (defined as VMD
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 published revisions to the AEZ provisions
under the WPS (Ref. 1). The 2020 AEZ Rule would have 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 would have simplified 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 so that they would
not have 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; however, the effective date was stayed by the court.
4. Actions Under 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. 9). The court's order stayed the December 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. 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. 10). As a result, the 2020 AEZ Rule has never gone into
effect.
5. EPA's Reconsideration of Certain 2020 AEZ Rule Amendments
Concurrent with the ongoing litigation, the 2020 AEZ Rule was
included among several EPA actions identified for review in accordance
with Executive Order 13990 (Refs. 7 and 11). In the course of reviewing
both the 2015 WPS and 2020 AEZ Rules in accordance with Executive Order
13990, EPA found that some of the 2020 revisions to the AEZ
requirements (specifically, the 2020 AEZ Rule's simplification of AEZ
distance requirements and the limitation of the applicability of the
AEZ requirements to the agricultural establishment's boundaries) 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. The Agency determined that the 2020
changes did 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 (Ref. 1).
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. 2). 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 contain a partial set of the
topics provided in guidance regarding best pesticide application
practices near the borders of an establishment and on potential
measures that can be used to prevent contact through drift (Refs. 4
through 6). Therefore, the reliance on this inaccurate assumption
provides
[[Page 80770]]
further reason to reinstate the 2015 WPS requirements regarding the
applicability of AEZs off the establishment and within easements.
B. Goals of This Rulemaking
With this final rule, EPA is restoring protections originally
established in the 2015 WPS that were amended by the 2020 AEZ Rule. By
reestablishing the AEZ distances from the 2015 WPS and reinstating the
applicability of the AEZ off-establishment and in easements, the rule
will protect the health of all who may be within the vicinity of an
ongoing pesticide application. Since agricultural workers, their
families, and communities living near agricultural establishments may
represent populations of environmental justice concern, the rulemaking
also supports EPA's broader efforts to reduce the disproportionate
burden of pesticide exposure on certain communities. Reducing such
disproportionate burdens was a goal of both the 2015 WPS and Executive
Order 13990 (Refs. 3 and 7).
EPA also seeks to improve the clarity of the AEZ regulation with
this action. Hence, this rule retains the clarification from the 2020
AEZ Rule that specifies that suspended applications may resume once no
one is in the AEZ. As discussed in more depth in Unit V.E., that
clarification will supersede EPA's previous interpretive guidance
(``2016/2018 Guidance'') on resuming applications in situations where
people off the agricultural establishment are in the AEZ (Refs. 4
through 6). EPA anticipates that eliminating the 2016/2018 Guidance and
relying instead on the plain language of the regulation will make the
AEZ requirements clearer and support their implementation and
enforcement.
To further clarify the AEZ requirements, EPA is finalizing new
amendments to the criteria used to define droplet sizes and thus to
determine AEZ distances. The 2015 WPS used a VMD value of 294 microns
to distinguish between ``fine'' and ``medium'' or larger droplets, and
thus to determine whether the AEZ should be 25 or 100 feet. The
specific VMD value was derived from the original version of the ASABE
standard, which is often referenced in nozzle manufacturers' selection
guides. However, the ASABE standard has been revised several times, and
ASABE no longer defines ``medium'' by a single numerical VMD value, but
rather by a range. Moreover, applicators in the field often determine
droplet size by selecting the appropriate nozzle according to its ASABE
rating. EPA is therefore finalizing its proposal to define droplet
sizes as ``medium'' or larger by incorporating the ASABE standard
itself. The ASABE standard is familiar to and well understood by the
regulated community.
Additionally, EPA aims with this rule to provide some regulatory
relief for family-operated farms where it does not increase exposure
risk to workers and bystanders. Therefore, this action finalizes the
exemption for immediate family members under specific scenarios to
remain within the AEZ, reducing management complexities for farming
families.
III. Economic Analysis
A. 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 has continued 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 rule reinstating the 2015 WPS provisions that
make the AEZ applicable beyond the boundaries of an agricultural
establishment and within easements on the agricultural establishment.
Additionally, this 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 VMD as a determining
factor (see Unit IV.C.). The Agency does not anticipate any new costs
or impacts due to reinstating this regulatory language since the 2015
WPS remains in effect. Removing VMD from the AEZ criteria and instead
using droplet size classifications (i.e., ``medium'' as defined by the
ASABE; see Unit VII.) is expected to provide a clear, practical, and
easy approach for determining AEZ and enclosed space 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 maintaining 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 Units IV.B.2. and V.F.).
The revision that clarifies when suspended applications may resume
better aligns with EPA's intent in the 2015 WPS. While this
clarification does not result in any impacts compared to the intent of
the 2015 WPS, it does nullify the 2016/2018 Guidance, the impacts of
which are further described in Unit III.C.
Finalizing an 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 retaining
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 impact 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. These changes are
consistent with the intent of the AEZ in the 2015 WPS, particularly
with regard 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.
B. 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 a limited number of 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. 12). 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 some reduced management complexity both on
and off establishment, because there would
[[Page 80771]]
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.2.) is
applicable in all situations, without limitations on distance or the
individual's location respective to the application.
Compared to the 2020 AEZ Rule, the changes in this rulemaking will
result in the AEZ encompassing a greater area and applying in more
situations. 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 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 rule
compared to the 2020 AEZ Rule, 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, with
the 2020 AEZ Rule as a baseline, the impact of these changes on
agricultural establishments is likely to be small. Conversely, having
the AEZ be 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 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 VMD as a
determining factor (as further explained in Units IV.C. and V.C.). If
the 2020 AEZ Rule had gone into effect, this action may have resulted
in more complex application strategies because the different AEZ
distances may have come into play more often and owners and handlers
would have had 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 decision to not reinstate VMD as a criterion and
instead rely on the ASABE standard's definition of ``medium'' droplet
size better reflects how applicators in the field determine droplet
size (by selecting the appropriate nozzle according to its ASABE
rating). The change 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 in droplet size
criteria is expected to be small compared to the 2020 AEZ Rule.
As previously noted, EPA is retaining 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 Units IV.B.2. and V.F.).
These changes are consistent with the intent of the AEZ in the 2015
WPS, particularly with regard to the immediate family exemptions that
are applicable to other portions of the 2015 WPS. Retaining these
clarifications and flexibilities in this rule provides some regulatory
relief that was sought in the 2020 AEZ Rule without increasing exposure
risks to workers or bystanders.
Compared to the 2020 AEZ Rule, the requirements of this rule
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, as under
the 2020 AEZ Rule.
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. 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. As noted in the 2015 WPS, out of 17 incidents
identified in the comments, only one could have been prevented if the
AEZ was limited to the boundaries of the agricultural establishment, as
would have been established had the 2020 AEZ Rule gone into effect.
EPA's analysis at the time indicated that the AEZ, if complied with,
could have prevented at least four of the incidents reported in the
2015 WPS comments, and possibly as many as 12, depending on the actual
distances between the workers and application equipment (Ref. 3). While
the Agency is unable to quantify the number of incidents that could be
reduced by the AEZ, 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.
C. Additional Considerations for the Final Rule
While this final rule does not impose additional requirements
beyond what the 2015 WPS requires, stakeholders also requested that EPA
codify 2016/2018 Guidance stating that applicators could resume
applications when people off the establishment were in the AEZ,
provided they first suspended the application and then evaluated the
situation to ensure that no contact would occur (Refs. 4 through 6).
While EPA determined not to codify the 2016/2018 Guidance (for reasons
explained in Unit V.E.), stakeholders highlighted a potential burden to
handlers: pesticide applications may be more difficult in areas where
vehicles can pass through the AEZ. EPA considered but chose not to
adopt an exception for some vehicles passing through an AEZ. An
exception for some vehicles could create additional risks to vehicle
occupants, as described in Units V.B. and V.E. There is no additional
burden relative to the 2015 WPS in choosing not to adopt the exception,
because the 2015 WPS contained no exception to the requirement to
suspend the application when someone is in the AEZ (except for properly
trained and equipped handlers involved in the application). The 2016/
2018 Guidance simply clarified when suspended applications could
resume. Therefore, EPA concluded that the
[[Page 80772]]
benefits of including an exception for some vehicles were outweighed by
potential risks to vehicle occupants passing through the AEZ. Although
the exception would reduce the complexity of an application when some
vehicles pass through an AEZ, the benefits are unlikely to be
substantial in most cases.
Under this final rule, as in the 2015 WPS, suspending an
application is required when a vehicle enters the AEZ. A vehicle could
only enter the AEZ when the field is adjacent to a road, a portion of
the road is within the AEZ (after considering any ditches or turnrows
between the field and the road), and a vehicle is passing through the
AEZ during an application at the edge of the field nearest the road. In
most cases, the burden could be managed by the applicator suspending
the application as the vehicle approaches the AEZ and resuming the
application once the vehicle has left the AEZ, which could increase the
time to complete the task as an applicator would suspend and resume
application. In many rural areas where heavy traffic is unlikely, cases
of vehicles passing through the AEZ during an application may be
infrequent. In some cases, such as when a heavily trafficked road is
adjacent to an agricultural establishment, it may be difficult for the
applicator to suspend and resume applications between passing vehicles.
In these cases, applicators may be able to change the timing of
application to a time when there is less traffic or alter the
application in such a way as to have a smaller AEZ (i.e., choosing a
product that allows larger droplet size, which might require changing
the pesticide applied). If none of these approaches are feasible, the
owner or handler could be unable to treat the area of the agricultural
establishment bordering the road. Owners could use another, potentially
less cost-effective pest control method in this area, cease pest
control in this area, or stop production in the area entirely. The
latter options could imply a substantial impact on the affected area of
the field where a vehicle could pass through an AEZ. The relative
impact will be larger on smaller or narrow fields that border a busy
road, as a larger portion of the field would be affected. EPA is unable
to quantify how many growers would be substantially affected
considering that growers typically manage multiple fields, but
substantial impacts to a farm as a whole are likely to be rare.
IV. Proposed Changes to the AEZ Requirements
On March 13, 2023, EPA published a proposed rule (2023 Proposed
Rule) that reconsidered the 2020 AEZ Rule requirements in response to
Executive Order 13990 (Ref. 1). The Agency proposed to rescind three
amendments from the 2020 AEZ Rule and reinstate the corresponding
requirements from the 2015 WPS (see Unit IV.A.). The Agency also
proposed three amendments to improve the clarity of the AEZ provisions
and provide some regulatory relief to family-operated farms. Two of
these amendments were provisions from the 2020 AEZ Rule that the Agency
proposed to retain, as they do not increase risk for workers and
bystanders (see Unit IV.B.). The third was a new provision to clarify
the meaning of the ``medium'' droplet size (see Unit IV.C.). The
proposed amendments are outlined in this unit.
A. Rescind Provisions From the 2020 AEZ Rule
The Agency proposed to rescind the following amendments from the
2020 AEZ Rule and reinstate the corresponding 2015 WPS Rule
requirements.
1. The Area Where the AEZ Applies
EPA proposed to revise the AEZ provision at 40 CFR 170.505(b)
requiring that pesticide handlers ``suspend the application'' if a
worker or other person (other than a trained and equipped handler) is
in the AEZ. The 2020 AEZ Rule added a clause limiting the applicability
of the suspension requirement to the agricultural employer's property,
such that the AEZ would no longer cover bystanders on adjacent
establishments. As a result, had the 2020 AEZ Rule gone into effect, it
would have relied solely upon the ``Do Not Contact'' requirement in the
WPS as the method of protecting people on adjacent properties. EPA
proposed 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 those people are on
or off the establishment. EPA also proposed 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.
2. The Exception to Application Suspension Requirements for Property
Easements
EPA proposed to remove language from 40 CFR 170.405(a)(2)(ii) and
170.505(b)(1)(ii) and (b)(2)(ii) that made the AEZ requirements
inapplicable in easements. The 2020 AEZ Rule would have created an
exception for agricultural employers and handlers, wherein they would
not have been required to suspend pesticide applications if an
individual not employed by the establishment was within an AEZ but in
an area subject to an easement, where the agricultural employer may not
be able to restrict entry. EPA proposed 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.
3. The Distances From the Application Equipment in Which Entry
Restrictions Associated With Ongoing Pesticide Applications Apply
EPA proposed 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 VMD as a determining factor
(see Unit IV.C.). The 2020 AEZ Rule would have eliminated the criteria
for determining the AEZ distances based on droplet size, 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. EPA proposed to reinstate the 2015 WPS
regulatory text, which specifies an AEZ distance 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.
B. Retain Provisions From the 2020 AEZ Rule
EPA proposed to retain two provisions from the 2020 AEZ Rule that
did not increase exposure risk to workers and bystanders. These
provisions sought to improve the clarity of the AEZ requirements and to
provide some regulatory relief for family-operated farms.
1. Clarification on When Suspended Applications Could Be Resumed
In the 2020 AEZ Rule, EPA revised 40 CFR 170.505(b) to clarify that
applications that had been suspended because individuals were in the
AEZ could be resumed after those individuals had left the AEZ. EPA
proposed to retain this revision.
[[Page 80773]]
2. Exemption Allowing Owners and Their Immediate Family To Remain
Within the AEZ in Certain Scenarios
EPA proposed to retain the immediate family exemption at 40 CFR
170.601. In the 2020 AEZ Rule, EPA added an 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.
The exemption also permits handlers 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. It does not permit non-
family members to remain within the closed structure.
C. Replace the VMD Criteria With the ASABE Droplet Size Classification
Standards
In addition to rescinding and retaining the provisions from the
2020 AEZ Rule discussed in Units IV.A. and IV.B., EPA proposed to
incorporate the droplet size categories of all versions of the ASAE
Standard 572 (S572) (Refs. 13 through 16) by reference in 40 CFR
170.405, to give meaning to the ``medium'' droplet size criterion (for
more information on the incorporation by reference, see Unit VII.). The
2015 WPS used a VMD value of 294 microns to distinguish between fine
spray applications and spray applications using medium or larger
droplet sizes; this VMD value was the determining criterion for AEZ
distances. The VMD criterion reflected an older version of S572, which
used the value of 294 microns to define ``medium'' (Ref. 13). However,
S572 has been revised several times (see Unit VII.; Refs. 14 through
16). While the categorization of ``medium'' droplet sizes has remained
largely constant, the specific VMD values that were the basis for the
criteria in the 2015 WPS requirements have changed. Moreover,
applicators in the field often determine droplet size by selecting the
appropriate nozzle according to its S572 rating. EPA therefore proposed
to replace VMD with an incorporation by reference to S572 for droplet
size, which defines droplet size categories for the classification of
spray nozzles, relative to specified reference fan nozzles. The S572
classifications and categories are generally well understood by the
regulated community and are referenced in several places, including on
pesticide product labels as updated through EPA's Registration Review
process, as well as 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 S572
classifications.
To maintain consistency in the requirements between outdoor
production applications and applications associated with enclosed space
production, EPA also proposed to remove VMD as a criterion for entry
restriction distances during enclosed space production pesticide
applications, instead using the same droplet size standards as those
used for outdoor production.
V. Public Comments and EPA Responses
The public comment period for the 2023 Proposed Rule closed on May
13, 2023. EPA received feedback from 25 commenters (28 submissions
total) specific to the 2023 Proposed Rule. USDA submitted additional
comments during the public comment period. Some of the 25 comments
discussed the AEZ as a general principle while others focused on
specific requirements.
A. General Comments on the AEZ
1. Comments
Several agricultural business stakeholders, as well as State lead
agencies represented by the National Association of State Departments
of Agriculture (NASDA), expressed general opposition to the AEZ
requirements, characterizing them as complex, burdensome for growers
and handlers, and duplicative of existing protections (e.g., label
requirements and ``Do Not Contact''). They stated that the need for the
AEZ is not supported by incident data.
Several farmworker advocacy organizations, along with numerous
State Attorneys General and one State lead agency commented that the
AEZ is necessary to protect human health, including that of
farmworkers, bystanders, and surrounding communities. They
characterized the AEZ as consistent with EPA's responsibilities under
FIFRA, as well as EPA policies and principles of environmental justice
and children's health. To support their statements, commenters cited
studies, incident data, and anecdotal evidence of pesticide exposures
to workers and bystanders beyond that which EPA considered for the 2015
WPS. One commenter presented a series of photographs and maps
demonstrating the proximity of agricultural fields to schools and
playgrounds. Commenters also noted that pesticide exposure incidents
are underreported.
2. Response
EPA disagrees with commenters who suggested that the AEZ
requirements are duplicative or unjustified by incident data. The
Agency considers the AEZ necessary to address incidents of contact from
agricultural pesticide applications. As EPA determined during its
analysis for the 2015 WPS, ``Do Not Contact,'' on its own, has been
insufficient to protect workers and bystanders; handlers require a
guideline (Ref. 3). Although EPA published amendments to the AEZ
requirements in 2020, the Agency maintained that some sort of guideline
is necessary. Furthermore, commenters on this action and the proposal
that was finalized as the 2020 AEZ Rule (2019 Proposed Rule) identified
several incidents that might have been prevented by correct
implementation of the AEZ requirements. EPA's review of data from the
Sentinel Event Notification System for Occupational Risks-Pesticides
(SENSOR-pesticides), the National Pesticide Information Center (NPIC),
EPA's Incident Data System, and State surveillance systems identified
others, including incidents in the years after the AEZ requirements
went into effect and incidents involving sensitive populations (Refs.
17 through 20). For example, in June 2023, after the public comment
period for the 2023 Proposed Rule closed, 12 workers in Oregon appear
to have been exposed to an application less than 25 feet from a tractor
applying pesticides in a neighboring field (Ref. 19). Of the 12
workers, 10 had adverse health effects and one was hospitalized.
Similarly, in California in 2016, 2018, and 2019, State surveillance
data captured incidents of agricultural pesticides contacting passing
school buses (Ref. 18). While much incident data lacks specific details
about the distance to application equipment, it supports the need for
handlers to be aware of their surroundings and suspend applications
when workers and bystanders are nearby; in other words, it supports the
general approach of the AEZ requirements. Moreover, EPA agrees with
commenters that exposure
[[Page 80774]]
incidents are underreported. As described in the economic analysis for
the 2015 WPS, health care providers may not always report incidents of
pesticide exposure because there is no universal reporting requirement
or central reporting point (Ref. 21). In addition to these barriers for
health care providers, EPA acknowledges that the literacy, language,
legal, economic, and immigration status of agricultural workers creates
challenges for those who wish to access the health care that would be a
primary route for reporting pesticide incidents. Due to underreporting
and limitations in the information collected, there may have been
incidents supporting the need for an AEZ that pesticide surveillance
systems did not capture. While the Agency is unable to quantify the
number of incidents that may have been prevented by correct
implementation of the AEZ requirements, the information from incidents
that EPA has reviewed and the Agency's understanding of factors
contributing to underreporting generally support the necessity of an
AEZ as an additional administrative control measure for handlers in
support of protecting public health.
EPA agrees with commenters that the AEZ is consistent with its
obligations under FIFRA, Agency policy, and executive orders on
environmental justice and children's health (Refs. 7, 22 and 23). EPA's
analysis of the 2015 WPS showed that the regulation would reduce risks
that fall disproportionately on populations of environmental justice
concern, such as workers, handlers, and their families and nearby
communities. EPA reexamined the 2020 AEZ Rule in accordance with
Executive Order 13990, which identifies environmental justice as an
Administration priority, and found that the 2020 AEZ Rule reduced key
protections established by the 2015 WPS (Ref. 7). Therefore, EPA is
finalizing this rule to reinstate those provisions and restore
protections. Similarly, although this action is not expected to have a
disproportionate impact on children, EPA is persuaded by the specific
examples that commenters provided, as well as its own findings from
incident data, that the AEZ could reduce the potential for children to
be exposed to pesticides.
B. Area Where the AEZ Is Applicable and Exception for Easements
1. Proposed Rule
EPA proposed 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 or in an area subject to an easement.
2. Final rule
EPA has finalized as proposed the area where the AEZ requirements
are applicable, and removed the exception for easements that would have
been established under the 2020 AEZ Rule.
3. Comments
Several Attorneys General, farmworker advocacy organizations, a
State lead agency, and two members of the public commented in support
of the proposal to reinstate the applicability of the AEZ requirements
off-establishment and in easements. These commenters stated that the
AEZ must extend off-establishment to protect the health of farmworkers,
farmworker families, and surrounding communities, since pesticide drift
does not automatically stop at the establishment boundaries. Similarly,
one organization and several Attorneys General noted that the proposal
to reinstate the applicability of AEZ requirements in easements
protects essential utility and postal workers, among others.
Commenters in support of reinstating this requirement cited
studies, incident data, and anecdotes from both before and after the
2015 WPS rulemaking to demonstrate that people near agricultural
establishments, not just on them, are at risk from pesticide exposure.
Children and populations of environmental justice concern may live or
spend time near agricultural fields (for example, in migrant farmworker
housing or childcare centers). Therefore, commenters also suggested
that requiring AEZ protections to extend off the establishment and into
easements is consistent with executive orders, EPA policies, and
general principles of children's health and environmental justice.
One commenter noted that the ``Do Not Contact'' requirement does
not stop at the establishment boundaries. They suggested that the
applicability of the AEZ requirements off-establishment supports ``Do
Not Contact'' and would improve compliance.
NASDA and several agricultural business stakeholders opposed
requiring AEZs to be applicable in all areas near an ongoing
application, including off the establishment and in easements. Many of
these commenters noted that establishment owners, agricultural
employers, and handlers cannot control the movement of people off-
establishment or in easements, and that pesticide applications are
time-sensitive. They suggested that the requirement to suspend for
individuals within an AEZ off the establishment could delay
applications until the optimal application time had passed, resulting
in less effective applications and lost yield. Similarly, one commenter
suggested that off-establishment AEZ requirements could restrict access
to farm roads and facilities for long periods, disrupting local
economies. These commenters indicated that the requirements would
particularly affect fields with easements, fields bordering roads and
houses, and aerial applications.
Some commenters suggested that off-establishment AEZ requirements
could result not only in delayed applications but also in permanent
setbacks. USDA, agricultural business stakeholders, and a member of the
public suggested that owners might choose to leave parts of their land
unsprayed rather than repeatedly suspend the application. They
identified fields bordering busy roads, fields bordering housing, and
areas with limited visibility (such as orchards) as situations where
setbacks might be more likely. Setbacks would lead to lost yield.
Commenters stated that the impact of leaving land unused would be
greatest for smaller farms.
Several agricultural business stakeholders raised legal concerns
with the applicability of the AEZ off-establishment. Two commenters
suggested that owners, employers, and handlers who attempted to
restrict entry to or activities on areas not on their property but
within the AEZ could face legal liability. Another commenter expressed
the same concern over easements, noting that easements grant a right of
access to certain parties.
While not opposing the applicability of the AEZ off-establishment
or in easements, one State lead agency noted that handlers may struggle
to make determinations about whether people are in the AEZ when the AEZ
extends past the property line. They encouraged EPA to hold the
agricultural employer or a licensed applicator responsible for
implementation of this provision.
Several commenters discussed how AEZ requirements that apply off-
establishment will affect communication among handlers and others in
agricultural areas. USDA expressed concern that handlers would have to
engage in burdensome communication with people off-establishment, while
two advocacy organizations suggested that extending AEZ requirements
off-establishment would encourage positive, proactive communication
among neighbors about upcoming applications.
[[Page 80775]]
4. Response
EPA agrees with commenters who assert it is necessary for the AEZ
requirements to apply off-establishment and in easements to protect
human health, including that of communities of environmental justice
concern (such as workers, handlers, and their families) and sensitive
populations, such as children. As noted in the preamble to the 2015
WPS, out of 17 incidents of pesticide exposure identified in the
comments, only one could have been prevented if the AEZ were limited to
the boundaries of the agricultural establishment. EPA's analysis
indicated that the AEZ could have prevented at least four of the
incidents reported in the comments on the 2015 WPS, and possibly as
many as 12 (Ref. 3).
EPA also agrees with commenters who state that for the AEZ
requirements to effectively supplement the ``Do Not Contact''
provision, the AEZ must extend beyond the boundary of the establishment
as the ``Do Not Contact'' provision does. The AEZ regulation provides
an additional requirement for handlers such that their applications do
not contact people either directly or through drift. That requirement
should be equally useful to handlers complying with ``Do Not Contact''
whether the AEZ is on- or off-establishment. Incident data from NPIC,
SENSOR-pesticides, State surveillance, and EPA's incident data system
suggests generally that the need for this requirement is ongoing (Refs.
17 through 20). For example, pesticide surveillance systems continue to
capture exposure incidents involving people on off-establishment roads,
such as the incidents involving contact to school buses referenced in
Unit V.A.2. EPA found examples of incidents involving contact to people
on roads even after the AEZ went into effect. For instance, in 2018,
Washington State surveillance captured an incident in which a man
driving to work was contacted by an airblast application 30 to 40 feet
away (Ref. 20). This incident and the school bus incidents referenced
above are meant to serve only as examples, not to establish trends; but
they provide additional support for EPA's finding in the 2015 WPS that
the AEZ is necessary to supplement ``Do Not Contact'' beyond the
boundary of the establishment.
EPA disagrees with commenters who suggested that AEZ requirements
applicable beyond the boundary of the establishment and in easements
are equivalent to permanent setbacks in all or even most cases. There
are several means by which agricultural employers and handlers can
limit the need to suspend their applications due to the movement of
people off-establishment and in easements. They may choose to adjust
the type of pesticide application such that the AEZ is only 25 feet,
selecting a product that allows for medium or coarser droplets.
Alternatively, employers and handlers may choose to provide advanced
notification of planned applications to ensure no one is in the AEZ or
choose to complete the application at a time when there are fewer
people present in the area (although the requirement to suspend an
application if people are in the AEZ remains). Moreover, as discussed
in further detail in Unit III.C., these alternatives are likely only
necessary in select, infrequent circumstances.
In the same way, EPA is not persuaded that the applicability of the
AEZ requirements off-establishment and in easements causes unreasonable
delays to applications, restricts access to farm facilities for long
periods of time, or places an undue burden of communication on owners,
employers, and handlers. The AEZ moves with the application equipment
and exists only while the application is ongoing. As discussed in Unit
III.B., EPA anticipates that the economic impacts of the requirements
off-establishment and in easements are likely small in most cases, even
as compared to the 2020 AEZ Rule. Furthermore, the ``Do Not Contact''
requirement has always been applicable beyond the boundary of the
establishment, so the AEZ requirement adds minimal (if any) burden to
what was already required in many situations before 2015. Owners,
employers, and handlers can also reduce any potential disruption to the
application by adjusting application type or timing or by providing
advance notification, as discussed in the previous paragraph.
Commenters' concerns that the AEZ puts owners, employers, and
handlers in legal jeopardy by forcing them to restrict access to or
activities on others' property appear to reflect a misunderstanding of
the AEZ requirements. The AEZ does not require that owners, employers,
or handlers restrict access to others' property. The ``keep out''
requirement at 170.405(a)(2) (where the agricultural employer is
prohibited from allowing or directing any worker or other person to
enter or remain in the AEZ,) is only applicable on the agricultural
establishment and within the boundaries of the AEZ or treated area.
Similarly, the AEZ does not force owners, employers, or handlers to
control the activities of people off-establishment. If someone is in
the AEZ off-establishment (for example, if a neighbor pulls into their
home's driveway and into the AEZ), the requirement is for the handler
to suspend the application until the person leaves the AEZ. Therefore,
EPA is not placing an affirmative duty on agricultural establishment
owners or handlers to restrict the movement of people outside the
boundaries of the agricultural establishment or creating potential
legal liability for owners or handlers.
Similarly, EPA is not persuaded by comments stating that the AEZ
requirements put agricultural employers in legal jeopardy by forcing
them to restrict access to easements on the agricultural establishment.
If an AEZ overlaps with part of an easement on the agricultural
establishment, the agricultural employer is required to ensure that no
one enters that AEZ; however, they are not required to keep people out
of the easement entirely. As the AEZ exists only immediately around the
application equipment and during the application, any limitations to
easement access would be small in scope and temporary. Furthermore, if
someone in an easement were within the AEZ, the handler would only have
to suspend the application to comply with the AEZ requirements.
Therefore, EPA is not placing an affirmative duty on handlers or owners
to control the actions of persons in easements and in turn, is not
creating potential legal liability for owners or handlers in extending
the AEZ into easements.
Overall, EPA maintains that even if the AEZ provisions cause minor
disruption to agricultural operations or necessitate some additional
communication, the benefits of the AEZ extending to workers and
bystanders off-establishment outweigh the burden on the regulated
community. Continued reports of incidents since the 2015 WPS went into
effect highlight the need for compliance with the AEZ requirements to
protect human health. As discussed in Unit III.B., EPA anticipates that
the applicability of the AEZ requirements off-establishment and in
easements will likely have only a small impact in most cases as
compared to the 2020 AEZ Rule. Furthermore, EPA reiterates that the
requirements to suspend the application for individuals off-
establishment and in easements have been in place since the 2015 WPS
and thus do not represent new costs for the regulated community.
With respect to the comment stating that handlers may struggle to
determine whether people are in the AEZ when it extends off-
establishment, the Agency reiterates that handlers already bear
responsibility under the WPS for
[[Page 80776]]
ensuring that pesticides do not contact people beyond the boundaries of
the establishment. The AEZ indicates how to avoid contact, setting
minimum required distances for suspending the application. However, it
should also be noted that there is no restriction in the rule limiting
responsibility to the handler. The decision to hold liable the owner of
the establishment or a certified applicator is made on a case-by-case
basis.
EPA plans to issue guidance to support establishment owners,
agricultural employers, and handlers in complying with AEZ requirements
related to applications near the boundaries of the establishment and
easements. In this compliance assistance guidance, EPA will consider
including suggestions on communication, as well as strategies that
limit the need for such communication (e.g., changing the path or
timing of the application).
C. Distance Requirements and Replacing the VMD Criteria With the ASABE
Droplet Size Classification Standards
1. Proposed Rule
EPA proposed to reinstate the 2015 WPS regulatory text, which
specifies a distance of 100 feet for sprays using a spray quality 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 of medium or larger.
EPA also proposed to replace the VMD criteria with the ASABE
droplet size classification standards, for both indoor and outdoor
production (Refs. 13 through 16).
2. Final Rule
EPA has finalized as proposed the AEZ distances and droplet size
criteria. EPA has finalized its proposal to replace VMD criteria with
the ASABE droplet size classification standard, as proposed, for both
indoor and outdoor production.
3. Comments
Several agricultural business stakeholders opposed the AEZ
distances in the 2023 Proposed Rule, as well as the use of droplet size
as the criterion to determine the size of the AEZ. These commenters
advocated for the use of product-specific distances, as EPA has
established for pesticides that require buffer zones; or for the use of
factors besides droplet size to control drift, such as spray pressure,
wind direction, and wind speed.
Some farmworker advocacy organizations, though generally supportive
of the 2023 Proposed Rule, questioned whether the size of the AEZ is
sufficiently protective of human health. These stakeholders cited
studies and State incident data that found drift from airblast
applications at distances greater than 100 feet, as well as anecdotal
reports of continued exposures.
Other farmworker advocacy organizations, as well as several
Attorneys General, commented in support of the AEZ distance
requirements in the 2023 Proposed Rule, stating that they are necessary
to protect human health. One commenter cited anecdotes, enforcement
cases, and incident data of farmworkers and community members within
100 feet of an ongoing application who were contacted by pesticides.
Several commenters referenced studies demonstrating that smaller
droplets drift farther than larger ones, reasoning that finer-droplet
sprays require larger AEZs.
Two farmworker advocacy organizations also commented in support of
using the ASABE standards for droplet size to determine the size of the
AEZ. They remarked that the ASABE standards are well understood by the
regulated community because they are used to rate spray nozzles, which
could reduce the complexity of implementing the rule and improve
compliance. A farm bureau also expressed support for use of the ASABE
standards, though opposing the distance requirements. Another
farmworker advocacy organization noted that the ASABE standards are not
well understood by farmworkers and asked that this information be
provided to workers in a language they understand.
4. Response
While EPA appreciates the data and studies cited by commenters, the
Agency has determined that re-establishing the AEZ distances from the
2015 WPS is the best approach.
Studies cited in response to this action and in response to the
2020 AEZ Rule (Refs. 24 through 28), as well as information contained
in the administrative record for the 2015 WPS rule, show that pesticide
applications using sprays with droplets smaller than medium are prone
to drift greater than 25 feet. Therefore, EPA has determined that a
100-foot AEZ for sprays with droplets smaller than medium is needed to
protect workers or bystanders near these fine-spray applications.
With respect to comments urging an AEZ distance of greater than 100
feet for certain application types, EPA notes, firstly, that the WPS
does not function in isolation. The AEZ is intended to serve as a
baseline protection measure when product labels do not provide greater
protections. When labels are more protective, they take precedence. For
example, rather than the AEZ, which exists only during the application,
soil fumigants may have label-mandated buffer zones that begin during
the application and remain after the application has concluded. These
buffers may be up to half a mile wide. In this way, EPA already
supplements the AEZ distances with product label-specific instructions
in cases where there is a particular, increased risk.
Second, in this rulemaking, EPA reconsidered AEZ distances only
with respect to application type. To reconsider the distances
themselves would require a new evaluation of the human health and
economic impacts of the AEZ requirements, as well as their
enforceability. EPA finds the current human health and economic impacts
analyses detailed in this final rule to be sufficient for establishing
AEZ distances. Finally, the 100-foot distance is familiar to
stakeholders, having been the operative AEZ distance for certain
applications since 2015. This distance is also consistent with previous
protective distances for nursery production under the 1992 WPS (Ref.
8). Familiarity and consistency aid compliance.
Though EPA appreciates that some commenters have considered the
range of techniques available to reduce drift, the Agency is similarly
not persuaded by commenters' request for further product- or
application-specific protections in lieu of the AEZ. As discussed
above, the WPS and labeling requirements work in tandem: the WPS is a
more general, uniform set of standards for pesticide safety while the
labeling requirements provide more tailored protections based on the
specifics of each chemical and application method. A uniform AEZ is
consistent with that approach. Moreover, while EPA is aware of the many
methods and technologies to reduce drift, it agrees with one State lead
agency's comment that not all pesticide handlers are highly trained and
equipped certified applicators. There is need for a supplement to ``Do
Not Contact'' that serves all handlers, regardless of training or
experience.
EPA agrees with commenters who asserted the ASABE standards are
well understood by regulated community. EPA believes that the
incorporation of the ASABE standard into the rule will allow handlers
to quickly and easily determine AEZ size, reducing the complexity of
implementation, since the
[[Page 80777]]
standard is often referenced in nozzle manufacturers' selection guides.
EPA also 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 the VMD.
In developing its compliance assistance guidance, EPA will consider
providing clarity around the ASABE droplet size standard as needed.
D. Clarification on Resuming Suspended Applications
1. Proposed Rule
In the 2020 AEZ Rule, EPA added text clarifying that applications
that had been suspended because individuals were in the AEZ could be
resumed after those individuals had left the AEZ. EPA proposed to
retain the clarification under this action.
2. Final Rule
EPA has finalized as proposed the clarification on resuming
applications.
3. Comments
NASDA, agricultural business stakeholders, and several farmworker
advocacy stakeholders supported the proposal to clarify when suspended
applications could resume. Commenters agreed that the language provides
necessary clarity. A farmworker advocacy organization suggested that by
providing certainty to handlers, the clarification would improve
compliance with ``Do Not Contact.'' NASDA qualified its support,
indicating that the clarification should only apply on-establishment.
While not opposing this provision, one State lead agency noted that
pesticide handlers may not be certified applicators or even native
English speakers. As such, handlers may not have language skills to ask
bystanders to leave the AEZ so that the application can resume or the
training to adjust the application path. The State agency recommended
that the rule be further clarified so that an employer or certified
applicator is held responsible for resuming applications.
4. Response
Although EPA always intended for suspended applications to resume
once persons have left the AEZ, EPA agrees with commenters that the
regulation is clearer when this is made explicit. EPA hopes that the
provision also improves compliance. EPA disagrees that the
clarification should only apply to applications within the agricultural
establishment's boundaries, for the reasons outlined in Unit V.B.
While EPA recognizes the comment stating that handlers are not
always certified applicators or native English speakers, the Agency
believes that all handlers should have the skills necessary to suspend
the application when people enter the AEZ and resume it after they
leave. Handlers already bear responsibility under the WPS for ensuring
that pesticides do not contact people; the AEZ complements
implementation of the ``Do Not Contact'' provision by providing a
minimum distance at which they must suspend the application.
It should be noted that there is no restriction in the rule
limiting responsibility to the handler. The decision to hold liable the
owner of the establishment or a certified applicator are made on a
case-by-case basis. In its compliance assistance guidance, EPA will
consider including best practices to support agricultural employers and
various handlers with the new clarification on resuming applications.
E. EPA's 2016/2018 Guidance on Resuming Suspended Applications
1. Proposed Rule
In Units II.B.3. and II.C.3. of the 2023 Proposed Rule, EPA
requested input on the adequacy of procedures laid out in previous
interpretive guidance documents (two from 2016 and one from 2018) for
resuming applications in situations where the AEZ extends off-
establishment or into easements (Refs. 4 through 6). These procedures
allow pesticide handlers to resume applications when people off-
establishment or in easements are in the AEZ, provided handlers first
suspend the application and then evaluate conditions to ensure there
will be no contact. The 2016/2018 Guidance provides a number of best
application practices handlers could use to evaluate conditions,
ranging anywhere from asking people to move from the AEZ until the
application equipment has moved on to assessing wind direction and
other weather conditions to determine that the application will not
blow toward bystanders. Because the 2023 Proposed Rule specifies that
applications (whether on- or off-establishment) can only resume once
people have left the AEZ, it nullifies the 2016/2018 Guidance.
2. Final Rule
EPA has finalized as proposed the clarification regarding when
suspended applications may resume. Procedures from EPA's 2016/2018
Guidance are nullified by this action.
3. Comments
USDA and agricultural business stakeholders commented in support of
the procedures from the 2016/2018 Guidance, maintaining that they
accommodate economic and logistical needs without posing additional
risk to workers and bystanders. Commenters suggested that, if
applicators were not able to resume applications as indicated in the
2016/2018 Guidance, applications along busy roads and near houses or
farm facilities would be frequently disrupted. Additionally, USDA
described difficulties for ground-based applicators in orchards or
vineyards even with the flexibilities of the 2016/2018 Guidance. If
visibility is poor, these handlers ``might not even see people passing
[off-establishment] who are within the AEZ and would only have the
option to make applications under conditions that ensure no pesticide
contact.''
USDA suggested that, in the absence of the 2016/2018 Guidance,
establishment owners would be forced to set back from their property
lines, foregoing part of their yield. They laid out a hypothetical
estimating the potential impact of 50-foot setbacks on an agricultural
operation. USDA also noted that guidance does not have the force of
regulation and can be inconsistently enforced, or else revoked. To
prevent potential losses and avoid inconsistencies, USDA suggested
codifying language similar to the 2016/2018 Guidance in this rule that
permits handlers to resume applications after they have evaluated and
determined that people outside of the establishment's boundaries will
not be contacted by the pesticide application, either directly or
through drift.
A farmworker advocacy organization commented in opposition to the
procedures from the 2016/2018 Guidance, stating that they posed an
unreasonable risk to bystanders. This commenter suggested that the
2016/2018 Guidance contradicts the common-sense interpretation of the
requirement that applications must be suspended when ``any worker or
other person . . . is in'' the AEZ. They also noted that the 2016/2018
Guidance procedures rely heavily on the discretion of the handler;
under the 2016/2018 Guidance, the handler determines case by case
whether contact will occur, how to prevent contact, and when it was
safe to resume the application. In contrast, if the handler could not
resume the application until people have left the AEZ, regardless of
whether they were on- or off-establishment, the only determination they
had to make was
[[Page 80778]]
whether people were within 25 or 100 feet. Referencing EPA's analysis
from the 2015 WPS and decision to supplement ``Do Not Contact'' with an
AEZ, the commenter maintained that there is a need to simplify
handlers' decision-making, rather than rely exclusively on their
judgment; and that allowing handlers broad discretion increases the
risk of bystander exposure.
Similarly, the State lead agency noted that pesticide handlers are
not always highly trained certified applicators. As a result, some
handlers may not have the skills to evaluate whether environmental
conditions allow them to safely resume applications, or the knowledge
to choose an appropriate drift-reduction technology. The commenter
proposed that the employer or a certified applicator be held
responsible for determining when to resume applications.
4. Response
Comments revealed a number of limitations to the 2016/2018 Guidance
that EPA had not previously considered. First, rather than provide the
intended clarity, the 2016/2018 Guidance introduced ambiguity into the
AEZ and opened the door to inconsistent interpretation and enforcement
of the AEZ requirements. Codifying the procedures would continue this
ambiguity. The ``evaluation'' step is open-ended, with any number of
methodologies that could be used to determine whether an application
can resume. The lack of specificity could again lead to complexity and
inconsistencies in implementation and enforcement across states.
Second, as one commenter noted, the procedures outlined in the
2016/2018 Guidance relied extensively on handlers' discretion and
involve a more complex assessment beyond what the current AEZ
provisions require. While judgments may be made with the benefit of
extensive training and advanced technology, EPA agrees with the State
lead agency's comment, which noted that not all handlers are certified
applicators. The open-ended ``evaluation'' step is inconsistent with
the AEZ's purpose: to serve as a uniform guideline for all types of
handlers. Incident data continues to suggest that there is a need to
supplement ``Do Not Contact'' in a way that relies less on handler
discretion. For example, under the 2016/2018 Guidance a handler might
evaluate and determine that they can safely resume an application
despite the presence of a passing car, believing that people inside a
car are safe from contact. Yet pesticide surveillance data has captured
any number of ways in which people inside moving vehicles may be
contacted by pesticides: via open windows, open sunroofs, and through
the vehicle's ventilation system. In California in 2018, for instance,
a student in a school bus was contacted by foam from an airblast
application, which drifted through the open window (Ref. 18). While it
is uncertain whether correct implementation of the AEZ requirements and
2016/2018 Guidance would have prevented the incident, it illustrates a
scenario in which relying on the discretion of a handler could increase
the human health risk of the application.
Finally, in light of comments, EPA believes that the 2016/2018
Guidance procedures do not necessarily reduce logistical burdens in the
ways originally thought or as commenters described, if implemented
correctly. The 2016/2018 Guidance did not create an exception to the
2015 WPS suspension requirement; the procedures outlined in guidance
only describe when handlers can resume applications after they first
suspend them and then evaluate the situation to ensure there will be no
contact. In the case of a property bounded by an off-establishment
road, the handler would still have to suspend the application when a
vehicle enters the AEZ. If a handler is unable to suspend in time
because visibility is poor or because cars pass through the AEZ too
quickly, they would not have been consistent with the 2016/2018
Guidance procedures even if they had evaluated the situation before
beginning application and determined no contact would occur. While the
2016/2018 Guidance may have reduced some logistical burdens, it did not
allow applications near establishment boundaries to proceed entirely
unimpeded. Thus, upon further consideration, EPA does not believe
correct implementation of the 2016/2018 Guidance would result in
substantial benefit. Moreover, with regard to concerns about ground-
based applicators, EPA notes that irrespective of the AEZ requirements
and any associated guidance, handlers are always required under the
2015 WPS to ensure that pesticide applications are made under
conditions that ensure no contact.
F. Exemption Allowing Owners and Their Immediate Family To Remain
Within the AEZ in Certain Scenarios, and Other Comments on Pesticide
Applications Near Housing
1. Proposed Rule
EPA proposed to include an immediate family exemption for certain
AEZ scenarios. Specifically, EPA proposed to allow owners and their
immediate family members to remain inside closed houses or structures
in the AEZ during pesticide applications. The exemption also permits
handlers to proceed with an application under these circumstances,
provided that the owner has communicated certain information
beforehand.
2. Final Rule
EPA has finalized the exemption for owners and their immediate
family members, as proposed.
3. Comments
Agricultural business stakeholders discussed logistical and
financial difficulties for owners and handlers when housing lies within
the AEZ. They described delays in farming operations if immediate
family members were forced to leave the house during applications on
their property. One farm bureau also noted the potential for delays
stemming from houses located off-establishment less than 100 feet from
the property line. This commenter noted that local regulations may not
always require houses to be built farther away, and that it can be
difficult for a handler to determine whether off-establishment houses
are occupied.
As a result, NASDA and agricultural business stakeholders, as well
as one advocacy organization, commented in favor of the immediate
family exemption. These commenters noted that the exemption provides
flexibility for farming families and reduces delays in applications.
Farmworker advocacy organizations discussed the potential human
health risks associated with pesticide applications near farmworker
housing. Commenters cited studies and anecdotal evidence of the poor
quality of farmworker housing; houses may not be fully sealed to the
outdoors, and cooking and laundry facilities may be open-air. These
commenters suggested that the AEZ requirements do not account
sufficiently for the risk of drift into houses or the risk of post-
application exposure. In response, three organizations recommended that
the AEZ be enforced as a buffer zone around employer-provided housing.
One proposed an advanced notification requirement when housing will
fall into the AEZ, so that residents can proactively take in laundry
and cover cooking facilities.
Several commenters also elaborated on the logistical and financial
difficulties that people who live near agricultural establishments face
when housing falls in the AEZ, suggesting that
[[Page 80779]]
families may be forced to relocate for long periods, and even
overnight, due to ongoing pesticide applications. In response, one
commenter suggested that applications near housing be restricted to
certain times of day.
Two farmworker advocacy organizations stated that they did not
oppose the exemption or took no position on it. One of these commenters
recommended that owners clarify for handlers that the immediate family
exemption does not apply to labor housing.
4. Response
EPA agrees with comments in support of the immediate family
exemption that suggested that the immediate family exemption will make
some pesticide applications on family farms simpler and less
burdensome. As stated in the 2023 Proposed Rule, EPA anticipates that
owners will take appropriate steps to protect their family members in
the AEZ; thus, the exemption provides flexibility at minimal risk to
human health and without compromising the health of workers and non-
family bystanders. As commenters requested, EPA plans to issue
compliance assistance guidance. In this guidance, EPA will consider
including best practices on communications between establishment owners
and handlers to support the implementation of the immediate family
exemption.
EPA agrees with commenters who cited studies demonstrating that the
quality of housing in agricultural communities is variable (see, e.g.,
Refs. 29 through 32). Thus, EPA has limited housing-related exceptions
to owners of agricultural establishments and immediate family members
in enclosed structures on the establishment, as proposed. In the case
of on-establishment structures occupied by the owner and their
immediate family, the owner is likely to know about major physical
deficiencies and whether the structure is sufficiently enclosed (for
example, free from leaks and broken windows) to protect family members
inside. In contrast, an establishment owner will have less insight into
the quality of off-establishment housing.
EPA acknowledges commenters' concerns over pesticide applications
near housing. EPA believes many of these commenters' suggestions, such
as advanced notification or clarifying that the immediate family
exemption does not apply to labor housing, can be addressed through
guidance. Others, such as buffer zones around employer-provided
housing, are beyond the scope of this action and would require
additional analysis and public discussion to determine the
appropriateness of buffers and buffer sizes around employee housing or
other structures on the establishment where workers may be present.
Employer-provided housing is not uniform (for example, workers with
temporary H-2A agricultural visas may be housed in hotels off-
establishment), nor is it regulated by EPA.
In its compliance assistance guidance, EPA will consider including
best practices for handlers applying pesticides near housing, to take
into account the logistical and economic difficulties that they may
face. Some commenters have also expressed concern for people who live
near agricultural establishments that may be disproportionately at risk
from pesticide applications; EPA will also consider guidance that may
include suggestions on best practices for communicating with people who
live near agricultural establishments and whose housing may fall within
the AEZ. EPA disagrees with commenters that communication about
applications near housing is unreasonably burdensome. However, EPA will
also consider including strategies that limit the need for such
communication in its compliance guidance. For example, if local
ordinances do not require that houses be set back more than 100 feet
from property lines, handlers may need to adjust the application type
or droplet size to decrease the size of the AEZ to 25 feet.
G. Enforcement of the AEZ Requirements
1. Proposed Rule
In Unit III. of the 2023 Proposed Rule, EPA asked for commenters'
recommendations or considerations on improving the enforceability of
the AEZ provisions.
2. Final Rule
In this final rule, EPA did not make any changes to proposed
regulatory text based on public comments related to enforcement.
3. Comments
AAPCO, NASDA, and another agricultural business stakeholder
expressed concerns about the enforceability of the 2023 Proposed Rule.
AAPCO asked how AEZ violations would be documented or even detected in
the first place, given that one would have to measure from moving
application equipment to moving bystanders. NASDA remarked that it
would be difficult to enforce AEZ requirements off-establishment, as
handlers have no control over people beyond the property boundaries.
Similarly, NASDA noted that enforcement of the immediate family
exemption requires further consideration to ensure it does not become
burdensome to handlers or regulators. Despite its other concerns, NASDA
agreed that clarifying when applications would resume would aid
enforcement.
In contrast, an advocacy organization suggested that the AEZ
provisions should aid enforcement of contact violations. The
organization stated that ``Do Not Contact,'' on its own, may be
difficult to enforce, as farmworkers may be reluctant to report a
pesticide exposure to authorities and healthcare providers might not
recognize the symptoms. In comparison, the commenter suggested that it
should be easier to prove the distance between application equipment
and bystanders.
A farmworker advocacy organization offered suggestions to aid
enforcement of the AEZ requirements, as well as the WPS more generally.
Noting that farmworkers often fear workplace retaliation or immigration
consequences, they recommended interagency collaboration, inspections
that prioritize workers' confidentiality, unannounced inspections, and
a general awareness of farmworkers' cultural context and language needs
on the part of inspectors.
4. Response
EPA appreciates the comments received in response to the request
for recommendations or considerations on improving the enforceability
of the AEZ provisions. To assist inspectors with monitoring compliance
with the WPS, EPA provides two guidance documents: the FIFRA Inspection
Manual and the WPS Inspection Manual (Refs. 33 through 34). These
guidance documents are reviewed and updated periodically. The manuals
include sampling procedures that may be used to confirm the distance
the pesticide traveled. As discussed elsewhere in this preamble, the
AEZ requirement complements the ``Do Not Contact'' requirement by
providing a measurement that may be used for enforcement to better
protect farmworkers and others from pesticide exposure.
Additionally, EPA funds training through a State and Tribal
Assistance Grant that specifically addresses the needs of pesticide
inspectors, including the conduct of WPS inspections. EPA considers the
feedback from stakeholders to be invaluable to ensure that inspector
guidance and training continue to address evolving needs,
[[Page 80780]]
especially given the unique WPS inspection challenges identified by
farmworker advocacy organizations, including the significant cultural
concerns raised by the commenters.
The enforceability of the WPS is important to the EPA and the
Agency appreciates all comments received. Permitting applications to
resume once all persons have left the AEZ is sufficiently clear to
provide an enforceable standard.
The risks of retaliation that farmworkers face from reporting
pesticide exposures, though beyond the scope of the AEZ rule, are
contemplated by other sections of the WPS. (See 40 CFR
170.401(c)(2)(xi) (requiring worker training on existing protections
against retaliatory acts) and 170.501(c)(2)(xiii) (requiring handler
training on existing protections against retaliatory acts)).
Furthermore, EPA has requested that the National Environmental Justice
Advisory Council (NEJAC), a Federal advisory committee to EPA,
recommend how EPA can incorporate a deeper understanding of farmworker
concerns about WPS inspections into training materials (Ref. 35). As
EPA receives feedback on the WPS from NEJAC and other Federal advisory
committees to the Agency, EPA will use this information to help inform
its efforts to enhance training and to improve inspections and
enforcement of the WPS.
H. ``Do Not Contact'' and Restricted Entry Intervals
1. Proposed Rule
EPA did not propose any changes to the ``Do Not Contact'' or
Restricted Entry Interval (REI) provisions of the WPS.
2. Final Rule
EPA has finalized the 2023 Proposed Rule as proposed, retaining the
``Do Not Contact'' and Restricted Entry Interval (REI) requirements as
written in the 2015 WPS.
3. Comments
Two farmworker advocacy stakeholders asked that EPA review more
generally the ``Do Not Contact'' provision of the WPS, which the AEZ
supplements. These commenters stated that pesticide exposure can occur
not just due to direct spray incidents but due to drift, pesticide
residues on surfaces, and pesticide vapors in the air. According to
these commenters, an AEZ that exists only while the application is
ongoing does not prevent these exposures. One commenter requested that
EPA add additional entry restrictions post-application, suggesting that
the existing REIs are insufficient.
A farm bureau also expressed its support for the ``Do Not Contact''
provision, though opposing other aspects of the 2023 Proposed Rule.
4. Response
EPA acknowledges commenters' concerns over indirect exposure
pathways. Drift that results in pesticide exposure is considered a
violation of the ``Do Not Contact'' provision. REIs restrict entry to
the treated area after pesticide applications to prevent exposure to
pesticide residues. While the WPS does govern some aspects of REIs,
such as requirement surrounding early entry activities, the length of
REIs is determined through the extensive analysis of chemicals' effects
on people and the environment during the registration and registration
review process. To redefine REIs in this rulemaking would be to go
beyond its scope.
I. Handler Training Requirements
1. Proposed Rule
To conform with the revised AEZ requirements, EPA proposed
revisions to the handler training requirements at 40 CFR
170.501(c)(3)(xi). The new training requirements specify that
``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.'' The training requirements also incorporate the
immediate family exemption, explaining that the applicator may resume
the application ``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. Final Rule
EPA finalized the handler training requirements at 40 CFR 170.501
as proposed.
3. Comments
Two farmworker advocacy organizations and USDA commented on
proposed revisions to the mandatory annual pesticide handler training.
One farmworker advocacy organization expressed support for EPA's
proposal to bring trainings into line with the revised requirements on
suspending and resuming applications. One farmworker advocacy
organization discussed handler trainings more generally, encouraging
employers to offer engaging, multilingual trainings.
USDA commented that trainings should also address pesticide
applications at the boundaries of the agricultural establishment,
including how and when handlers should communicate with people on
neighboring establishments who may be within the AEZ. In keeping with
its comments on maintaining language from the 2016/2018 Guidance, USDA
also requested that handler trainings be updated to reflect procedures
for situations where people off-establishment are in the AEZ, and to
clarify how and when employers and handlers should communicate
regarding the boundaries of the agricultural establishment.
4. Response
Under the 2015 WPS, handler trainings are required to contain all
of the topics for worker trainings at 40 CFR 170.401(c)(3), as well as
additional topics such as proper application and use of pesticides,
following label directions, and the AEZ and ``Do Not Contact''
requirements. Like worker trainings, handler trainings must be
delivered in a format handlers can understand, such as through a
translator, and must be held in a place free of distractions. All
worker and handler trainings must be EPA-approved and presented by a
qualified trainer of workers and/or handlers. (For the full list of
handler training and trainer requirements, see 40 CFR 170.501.)
Through its cooperative agreements and its review and approval of
individual training submissions as required by 40 CFR 170.501(c)(1),
EPA supports the development of interactive WPS trainings for pesticide
handlers in multiple languages. As of March 2024, EPA had approved 11
handler trainings (including trainings in both Spanish and English)
that reflected the 2015 WPS. Because EPA is mostly reinstating the 2015
WPS requirements with some minor revisions, the training topics in 40
CFR 170.501(c)(3) will remain largely the same with the exception of
adding content related to the immediate family exemption and
clarification on resuming applications. Some trainings will also need
to be revised to varying degrees to be reflective of changes in Agency
policy moving forward under this rulemaking. While all approved
trainings include the required content under the 2015 WPS, some
trainings have gone further by incorporating some
[[Page 80781]]
of the best application practices and procedures (e.g., assessing wind
direction before proceeding with an application) for resuming
applications that were provided in the 2016/2018 Guidance (Refs. 4
through 6). That guidance will be nullified because of this action and
will be replaced with new guidance (see Units V.K. and VI.B.). EPA will
work with the developers of these trainings to update their AEZ content
both in response to this action and the change in policy and guidance
direction. Additionally, EPA will continue to review handler and worker
trainings and ensure that they are in line with the new AEZ
requirements under this action.
For reasons explained in Unit V.E., EPA is not codifying 2016/2018
Guidance procedures for situations where people off-establishment are
in the AEZ. As such, EPA will also not require that handler trainings
include those procedures. However, EPA agrees with USDA that employers
and handlers would benefit from more clarity regarding procedures and
communication when applications are made near agricultural
establishment boundaries, especially if people off the establishment
may enter the AEZ. Therefore, EPA will consider providing clarity for
these and other circumstances through compliance assistance guidance.
J. Applications to Crop Canopies
1. Proposed Rule
EPA did not propose any changes to the AEZ requirements at 40 CFR
170.405(a)(1)(ii) to account for agricultural practices from different
industries.
2. Final Rule
EPA has finalized the regulatory text at 40 CFR 170.405(a)(1)(ii)
as proposed.
3. Comments
A trade organization representing the horticulture industry asked
that EPA add clarifying language to 40 CFR 170.405(a)(1)(ii). The
commenter noted that it is common practice in horticulture to apply
pesticides directly to the canopies of ornamental plants. They asked
that the language be amended to include ``crop canopy'' in the height
requirements for the 25-foot AEZ distance criteria. Currently, if an
application is made from a height of 12 inches or higher off the
ground, it is subject to an AEZ, regardless of the distance from the
crop canopy. The change the commenter suggested would mean that, if the
application was made from a height of 12 inches or higher off the
ground, but less than 12 inches from a crop canopy, there would be no
AEZ.
4. Response
When EPA developed the 2015 WPS, it did not intend to except from
the AEZ requirements applications made from more than 12 inches off the
ground but within 12 inches of a crop canopy. This rulemaking was
focused primarily on reinstating the AEZ protections from the 2015 WPS,
and therefore language around crop canopies goes beyond the scope of
this action. EPA will consider clarifying in its compliance assistance
guidance that applications made less than 12 inches from a crop canopy
are still subject to an AEZ if they are more than 12 inches off the
ground.
K. Requests for Guidance
1. Proposed Rule
At various places in the 2023 Proposed Rule, EPA requested feedback
on whether additional guidance is needed and how it could be improved
for various AEZ provisions, including implementation for off-
establishment individuals and individuals in easements, the ASABE
droplet size standards, and the immediate family exemption.
2. Final Rule
EPA plans to supplement this action with guidance to assist
stakeholders with compliance.
3. Comments
Many commenters requested that EPA issue guidance on this action.
Several commenters asked for guidance clarifying the immediate family
exemption. AAPCO requested that EPA provide guidance on the
communication required to ensure that only family members remain inside
closed buildings. They also requested guidance on how EPA will
determine compliance.
AAPCO requested a general How-to-Comply manual on the AEZ for all
stakeholders. To aid enforcement, they also asked for specific guidance
and training for inspectors and State regulatory officials. A trade
association asked for guidance for growers on implementing the AEZ off-
establishment.
Another commenter asked for guidance on the notifications that
establishment owners and employers must provide to workers.
USDA asked that EPA clarify whether it has previously developed an
interpretive policy on the definition of airblast sprayers as they
relate to the AEZ. If EPA has not, USDA asked for EPA to clarify where
and when the interpretive policy will be published.
Related to its comments on the 2016/2018 Guidance, USDA also
requested that EPA update the guidance document to specify whether then
2018 Guidance document superseded the 2016 one, and to clarify the term
``treated area.''
One farmworker advocacy organization asked for the Agency to issue
guidance on ``Do Not Contact.'' The commenter suggested that, to avoid
violations, guidance should recommend that employers coordinate
applications and fieldwork so that workers do not reenter a field
immediately after application, but rather move away from the AEZ.
4. Response
EPA plans to address many of the commenters' requests for guidance,
as indicated throughout Unit V. Guidance will support establishment
owners, agricultural employers, and handlers with compliance.
Specifically, EPA will consider addressing the following topics, as
needed, based on feedback after this rule is published:
<bullet> Best practices for applications near the boundaries of the
agricultural establishment and in easements.
<bullet> ASABE standard as applies to the AEZ requirements.
<bullet> Clarification on resuming applications.
<bullet> Implementation of the immediate family exemption,
including the fact that the exemption does not apply to labor housing.
<bullet> Best practices for applications near housing.
<bullet> Best practices for communication, including communication
with people off-establishment and in easements; communication between
employers and handlers regarding the boundaries of the establishment;
communication around who remains inside closed structures during an
application in accordance with the immediate family exemption;
communication with residents of surrounding communities whose houses
may fall into the AEZ; and advance notification of applications.
<bullet> Strategies to limit the need for such communication.
<bullet> How the AEZ applies to agricultural practices from
different industries, including that applications more than 12 inches
off the ground but less than 12 inches from a crop canopy are still
subject to an AEZ.
<bullet> Clarify the relationship between the AEZ, REI, and ``Do
Not Contact'' requirements.
EPA anticipates that some compliance assistance materials, such as
the How-to-Comply Manual for the WPS (Ref. 36), may be updated through
its cooperative agreements. Guidance
[[Page 80782]]
manuals for inspectors, such as the FIFRA Inspection Manual and the WPS
Inspection Manual (Refs. 33 and 34), are reviewed and updated on a
periodic basis.
In response to USDA's request for clarification on what qualifies
as an airblast sprayer, EPA's Office of Pesticide Programs Electronic
Label (OPPEL) definition of airblast sprayer is a ``general term
describing sprays directed into the foliage with a forced air stream,
usually created with a powered fan mounted on or pulled behind a truck
or tractor typically used in a vineyard, orchard, and some nurseries.
Includes electrostatic sprayers.'' (Ref. 37). EPA will use definitions
that are consistent with current agency policy and update its guidance
as needed to reflect changes as they occur.
Given that there have now been changes to the AEZ requirements, the
AEZ-specific 2018 guidance document, titled ``Worker Protection
Standard Application Exclusion Zone Requirements: Updated Question and
Answers'' (Ref. 4) will be replaced with new compliance assistance
guidance. EPA's 2016 AEZ-specific guidance document, titled ``Q&A Fact
Sheet on the Worker Protection Standard (WPS) Application Exclusion
Zone (AEZ) Requirements'' was superseded by the 2018 guidance (Ref. 5).
EPA's 2016 document ``Worker Protection Standard Frequently Asked
Questions,'' which provides answers to frequently asked questions on
the full WPS (not just the AEZ requirements), will remain a resource
for non-AEZ related guidance and will be updated consistent with this
action (Ref. 6).
VI. The Final Rule
A. Regulatory Changes
EPA is finalizing the 2023 Proposed Rule without changes.
B. 2016/2018 Guidance
Because EPA is finalizing the clarification on when suspended
applications may resume, upon the effective date of this rule, the rule
supersedes EPA's 2018 interpretive guidance document, ``Worker
Protection Standard Application Exclusion Zone Requirements: Updated
Questions and Answers'' (Ref. 4). EPA's 2016 guidance document ``Q&A
Fact Sheet on the Worker Protection Standard (WPS) Application
Exclusion Zone (AEZ) Requirements'' was superseded by the 2018
interpretive guidance document (Ref. 5). EPA's 2016 document ``Worker
Protection Standard Frequently Asked Questions,'' which provides
answers to frequently asked questions on the WPS (not just the AEZ
requirements), will remain a resource for non-AEZ related guidance
(Ref. 6).
C. Future Compliance Assistance Guidance
After this final rule is published, EPA will consider addressing
the following topics, as needed:
<bullet> Best practices for applications near the boundaries of the
agricultural establishment and in easements.
<bullet> ASABE standard as applies to the AEZ requirements.
<bullet> Clarification on resuming applications.
<bullet> Implementation of the immediate family exemption,
including the fact that the exemption does not apply to labor housing.
<bullet> Best practices for applications near housing.
<bullet> Best practices for communication, including communication
with people off-establishment and in easements; communication between
employers and handlers regarding the boundaries of the establishment;
communication around who remains inside closed structures during an
application in accordance with the immediate family exemption;
communication with residents of surrounding communities whose houses
may fall into the AEZ; and advance notification of applications.
<bullet> Strategies to limit the need for such communication.
<bullet> How the AEZ applies to agricultural practices from
different industries, including that applications more than 12 inches
off the ground but less than 12 inches from a crop canopy are still
subject to an AEZ.
EPA anticipates that some compliance assistance materials, such as
the How-to-Comply Manual for the WPS (Ref. 36), may be updated through
its cooperative agreements. Guidance manuals for inspectors, such as
the FIFRA Inspection Manual and the WPS Inspection Manual (Refs. 33 and
34), are reviewed and updated on a periodic basis.
VII. Incorporation by Reference
A. Incorporation of ASABE Standards
This final rule incorporates voluntary consensus standards by
reference. EPA identified an applicable voluntary consensus standard
developed by ASABE for defining droplet sizes. Instead of fully
reinstating the droplet size criteria established in the 2015 WPS, EPA
is incorporating by reference the ASABE standard identified as ``ANSI/
ASAE S572, Spray Nozzle Classification by Droplet Spectra'' and certain
successor editions (ANSI/ASAE S572.1, ANSI/ASAE S572.2, and ANSI/ASAE
S572.3) (Refs. 13 through 16) to enhance the Agency's compliance with
the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C.
272 note). (ASABE standards, engineering practices, and data initially
approved prior to the society name change from ``ASAE'' to ``ASABE'' in
July 2005 are designated as ``ASAE'', regardless of the revision
approval date.) 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.
The ASABE categorization of ``medium'' droplet sizes has remained
largely unchanged despite various updates to the standard over the
years. Updates of the standard are briefly summarized as follows:
1. ANSI/ASAE S572. Spray Nozzle Classification by Droplet Spectra
(Ref. 13). This original standard established 6 droplet size classes:
Very Fine (VF), Fine (F), Medium (M), Coarse (C), Very Coarse (VC) and
Extra Coarse (XC).
2. ANSI/ASAE S572.1. Spray Nozzle Classification by Droplet Spectra
(Ref. 14). This standard added two new classes: Extra Fine (XF) and
Ultra Coarse (UC).
3. ANSI/ASAE S572.2. Spray Nozzle Classification by Droplet Spectra
(Ref. 15). This standard corrected flowrate values that were used to
establish classification category thresholds but did not substantially
change the standard.
4. ANSI/ASAE S572.3. Spray Nozzle Classification by Droplet Spectra
(Ref. 16). This standard updated some classification boundaries to
harmonize with the International Standards Organization's (ISO)
operating pressures established in ISO 25358.
Given the relative stability of the categorization of ``medium''
droplet sizes, removing VMD from the AEZ criteria and instead using
droplet size classifications (i.e., ``medium'' as defined by the ASABE;
see Unit IV.C. and V.C.) is expected to provide a clear, practical, and
easy approach for determining AEZ 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.
[[Page 80783]]
B. Reasonable Availability
Copies of the ASABE standards identified in Unit VII.A. 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,
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. EDT, Monday through Friday, excluding legal
holidays. The telephone number of the EPA/DC Public Reading Room is
(202) 566-1744. EPA has determined that the standards 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#cdbea8aeb9a4a2a3f8fdf58da8bdace3aaa2bb"><span class="__cf_email__" data-cfemail="ed9e888e99848283d8ddd5ad889d8cc38a829b">[email 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.
VIII. Severability
The Agency intends that the provisions of this rule be severable.
In the event that any individual provision or part of this rule is
invalidated, the Agency intends that this would not render the entire
rule invalid, and that any individual provisions that can continue to
operate will be left in place. The amendments to 40 CFR part 170
finalized in this rule involve separate aspects of the AEZ and EPA
finds that each provision is able to operate independently of the
others. This has been demonstrated by the Agency's revisions to the AEZ
provisions from the 2015 WPS, to the 2020 AEZ Rule, to the current
final rule. With each final rule concerning the AEZ, EPA has been able
to retain certain provisions while amending or vacating others. For the
foregoing reasons, EPA finds that the amendments in this final rule are
severable.
IX. References
The following is a listing of the documents that are specifically
referenced in this Federal Register 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 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;
Reconsideration of the Application Exclusion Zone Amendments;
Proposed Rule. Federal Register. 88 FR 15346, March 13, 2023 (FRL-
8528-03-OCSPP). <a href="https://www.govinfo.gov/content/pkg/FR-2023-03-13/pdf/2023-03619.pdf">https://www.govinfo.gov/content/pkg/FR-2023-03-13/pdf/2023-03619.pdf</a>.
2. 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>.
3. 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>.
4. 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>.
5. 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>.
6. EPA. Worker Protection Standard Frequently Asked Questions: 40
CFR part 170. April 14, 2016. Available at <a href="https://www.epa.gov/sites/default/files/2016-04/documents/wps-faq.pdf">https://www.epa.gov/sites/default/files/2016-04/documents/wps-faq.pdf</a>.
7. Executive Order 13990. Protecting Public Health and the
Environment and Restoring 2976 Science to Tackle the Climate Crisis.
Federal Register 86 FR 7037, January 25, 2021. <a href="https://www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/2021-01765.pdf">https://www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/2021-01765.pdf</a>.
8. EPA. Pesticides; Agricultural Worker Protection Standard; Final
Rule. Federal Register. 57 FR 38102, August 13, 1992 (FRL-3774-6).
<a href="https://www.govinfo.gov/content/pkg/FR-1992-08-21/pdf/FR-1992-08-21.pdf">https://www.govinfo.gov/content/pkg/FR-1992-08-21/pdf/FR-1992-08-21.pdf</a>.
9. 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.
10. 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). Eleventh Stipulation and
Consent Order Further Extending Stay and Extending Injunction.
11. The White House, Briefing Room. Fact Sheet: List of Agency
Actions for Review. January 20, 2021. <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>.
12. EPA. Cost Analysis for Revisions to the Application Exclusion
Zone in the Worker Protection Standard. 2020. EPA Document ID No.
EPA-HQ-OPP-2017-0543-0152. <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>.
13. ASABE. Spray Nozzle Classification by Droplet Spectra. ASAE S572
FEB2004, reaffirmed February 2004 (ANSI/ASAE S572).
14. ASABE. Spray Nozzle Classification by Droplet Spectra. ANSI/ASAE
S572.1 MAR2009 (R2017), reaffirmed December 2017.
15. ASABE. Spray Nozzle Classification by Droplet Spectra. ANSI/ASAE
S572.2 JUL2018, July 2018.
16. ASABE. Spray Nozzle Classification by Droplet Spectra. ANSI/ASAE
S572.3 FEB2020, February 2020.
17. National Pesticide Information Center (NPIC). Specific data
requested from NPIC. 2024.
18. California Department of Pesticides Regulation (DPR). Data from
the California DPR's Pesticide Illness Query (CalPIQ). 2024. <a href="https://apps.cdpr.ca.gov/calpiq/">https://apps.cdpr.ca.gov/calpiq/</a>.
19. EPA. Data from EPA's pesticide Incident Data System (IDS). 2024.
<a href="https://ordspub.epa.gov/ords/pesticides/f?p=359:1">https://ordspub.epa.gov/ords/pesticides/f?p=359:1</a>.
20. National Institute for Occupational Safety & Health (NIOSH).
Specific data requested from the NIOSH Sentinel Event Notification
System for Occupational Risk--Pesticides Program. 2024.
21. EPA. Economic Analysis of the Agricultural Worker Protection
Standard Revisions, RIN 2070-AJ22. September 2015. EPA Document ID
No. EPA-HQ-OPP-2011-0184-2522. <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>.
22. Executive Order 14096. Revitalizing Our Nation's Commitment to
Environmental Justice for All. Federal Register. 88 FR 25251, April
26, 2023. <a href="https://www.govinfo.gov/content/pkg/FR-2023-04-26/pdf/2023-08955.pdf">https://www.govinfo.gov/content/pkg/FR-2023-04-26/pdf/2023-08955.pdf</a>.
23. EPA. 2021 Policy on Children's Health. October 5, 2021. <a href="https://www.epa.gov/system/files/documents/2021-10/2021-policy-on-childrens-health.pdf">https://www.epa.gov/system/files/documents/2021-10/2021-policy-on-childrens-health.pdf</a>.
24. Bueno, Mariana and Cunha, Jo[atilde]o & Santana, Denise. (2016).
Assessment of spray drift from pesticide applications in soybean
crops. Biosystems Engineering. 154, February 2017, Pages 35-45.
[[Page 80784]]
25. Kasner, E.J., Fenske, R.A., Hoheisel, G.A., Galvin, K., Blanco,
M.N., Seto, E.Y.W., & Yost, M.G. (2018). Spray Drift from a
Conventional Axial Fan Airblast Sprayer in a Modern Orchard Work
Environment. Annals of work exposures and health, 62(9), 1134-1146.
<a href="https://doi.org/10.1093/annweh/wxy082">https://doi.org/10.1093/annweh/wxy082</a>.
26. Felsot, A.S., Unsworth, J.B., Linders, J.B., Roberts, G.,
Rautman, D., Harris, C., & Carazo, E. (2011). Agrochemical spray
drift; assessment and mitigation--a review. Journal of environmental
science and health. Part. B, Pesticides, food contaminants, and
agricultural wastes, 46(1), 1-23.
27. Taylor, W. & Womac, A. & Miller, P. & Taylor, B. (2004). An
Attempt to Relate Drop Size to Drift Risk. Proceedings of the
International Conference on Pesticide Application for Drift
Management.
28. Nuyttens, David & Baetens, Katrijn & Schampheleire, Mieke &
Sonck, Bart. (2007). Effect of nozzle type, size and pressure on
spray droplet characteristics. Biosystems Engineering. Vol. 97,
Issue 3, July 2007, Pages 333-345.
29. Quandt, S.A., Summers, P., Bischoff, W.E., Chen, H., Wiggins,
M.F., Spears, C.R., & Arcury, T.A. (2013). Cooking and eating
facilities in migrant farmworker housing in North Carolina. American
journal of public health, 103(3), e78-e84. <a href="https://doi.org/10.2105/AJPH.2012.300831">https://doi.org/10.2105/AJPH.2012.300831</a>.
30. Keim-Malpass, J., Spears Johnson, C.R., Quandt, S.A., & Arcury,
T.A. (2015). Perceptions of housing conditions among migrant
farmworkers and their families: implications for health, safety and
social policy. Rural and remote health, 15, 3076.
31. Gentry, A.L., Grzywacz, J.G., Quandt, S.A., Davis, S.W., &
Arcury, T.A. (2007). Housing Quality Among North Carolina Farmworker
Families. Journal of Agricultural Safety and Health. 13(3), 2007,
pages 323-337.
32. Early, J., Davis, S.W., Quandt, S.A., Rao, P., Snively, B.M., &
Arcury, T.A. (2006). Housing Characteristics of Farmworker Families
in North Carolina. Journal of Agricultural Safety and Health. 8,
173-184 (April 2006).
33. EPA. Office of Enforcement and Compliance Assurance Inspection
Manual: Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)
Inspection Manual. August 1, 2019. <a href="https://www.epa.gov/sites/default/files/2014-01/documents/fiframanual.pdf">https://www.epa.gov/sites/default/files/2014-01/documents/fiframanual.pdf</a>.
34. EPA. Office of Enforcement and Compliance Assurance Inspection
Manual: Worker Protection Standard Inspection Manual. August 15,
2018. <a href="https://www.epa.gov/sites/default/files/2013-09/documents/wpsinspectionsguide.pdf">https://www.epa.gov/sites/default/files/2013-09/documents/wpsinspectionsguide.pdf</a>.
35. EPA. Farmworker and Pesticides Charge to the National
Environmental Justice Advisory Council. March 30, 2023. <a href="https://www.epa.gov/system/files/documents/2023-11/farmworker-and-pesticides-charge-questions-to-the-nejac-03.30.23.pdf">https://www.epa.gov/system/files/documents/2023-11/farmworker-and-pesticides-charge-questions-to-the-nejac-03.30.23.pdf</a>.
36. Pesticide Educational Resources Collaborative. How to Comply
With the 2015 Revised Worker Protection Standard for Agricultural
Pesticides: What Owners and Employers Need to Know. 2017. <a href="https://www.epa.gov/pesticide-worker-safety/pesticide-worker-protection-standard-how-comply-manual">https://www.epa.gov/pesticide-worker-safety/pesticide-worker-protection-standard-how-comply-manual</a>.
37. EPA. Office of Pesticide Program Electronic Label (OPPEL):
Smartlabel Vocabulary Guide Version 3. Accessed 2024. <a href="https://www.epa.gov/pesticide-registration/oppel-pilot-documents">https://www.epa.gov/pesticide-registration/oppel-pilot-documents</a>.
38. USDA. Re: FIFRA 25(a) Review of draft final rule: ``Pesticides;
Agricultural Worker Protection Standard; Reconsideration of the
Application Exclusion Zone Amendments''. USDA Comment (July 24,
2024) and EPA Response (August 28, 2024).
X. FIFRA Review Requirements
Pursuant to FIFRA section 25(a), EPA submitted the draft final rule
to the United States Department of Agriculture (USDA) for review (see
89 FR 57770, July 16, 2024 (FRL-8528-04-OCSPP), with a copy sent to the
appropriate Congressional Committees as required under FIFRA section
25(a). USDA responded and provided comments on July 24, 2024 (Ref. 38).
USDA did not object to the final rule; however, USDA expressed concerns
about the burden that the AEZ could place on growers and applicators in
the absence of EPA's 2016/2018 Guidance. EPA responded to these
comments on August 28, 2024, explaining its rationale for superseding
the guidance and reiterating the importance of the AEZ as a uniform
baseline requirement to support pesticide handlers and protect human
health (Ref. 38).
In accordance with FIFRA section 25(d), the EPA asked the FIFRA
Scientific Advisory Panel (SAP) to waive review of the draft final
rule, as was done for the draft proposed rule. The FIFRA SAP waived its
scientific review of the draft final rule on June 29, 2024, because the
final rule does not raise scientific or science policy issues that
warrant a scientific review by the SAP.
XI. 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 14094: Modernizing Regulatory Review
This action is not a significant regulatory action as defined in
Executive Order 12866 (58 FR 51735, October 4, 1993), as amended by
Executive Order 14094 (88 FR 21879, April 11, 2023), and was therefore
not subject to a requirement for Executive Order 12866 review.
B. Paperwork Reduction Act (PRA)
This action does not impose any new or modify information
collection burden 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 and assigned OMB Control No. 2070-0190 and it is identified
by EPA ICR No. 2491.06. This action does not impose an information
collection burden, because the revisions do not affect the approved
information collection activities.
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 discussed in
Unit III., 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 for affected entities.
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 Rule. While the discussion compares the effects of this
action to the 2020 AEZ Rule, the AEZ requirements have always extended
beyond the boundary of an agricultural establishment and within
easements since it originally went into effect in 2018. Therefore,
given that the 2015 rule has remained in effect since its
establishment, there are no new impacts expected with this rule.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate of $100 million
(adjusted annually for inflation) or more (in 1995 dollars) as
described in UMRA, 2 U.S.C. 1531-1538, and does not
[[Page 80785]]
significantly or uniquely affect small governments. The action imposes
no enforceable duty on any State, local, or Tribal governments and the
costs involved are estimated not to exceed $183 million in 2023 dollars
($100 million in 1995$ adjusted for inflation using the GDP implicit
price deflator) or more in any one year.
E. Executive Order 13132: Federalism
This action does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999), because 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.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997) directs Federal
agencies to include an evaluation of the health and safety effects of
the planned regulation on children in Federal health and safety
standards and explain why the regulation is preferable to potentially
effective and reasonably feasible alternatives. While the environmental
health or safety risks addressed by this action present a
disproportionate risk to children, this action is not subject to
Executive Order 13045 because it is not a significant regulatory action
under section 3(f)(1) of Executive Order 12866. However, EPA's Policy
on Children's Health (Ref. 23) applies to this action.
The WPS is intended to apply to myriad agricultural pesticides, and
the Agency has not developed a health or risk assessment to evaluate
any impact of the amendments of the AEZ provisions for each pesticide
subject to the WPS. The Agency finds that it is reasonable to expect
that this rule will 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 applications, 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 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)
This action involves voluntary standards subject to consideration
under the NTTAA section 12(d), 15 U.S.C. 272 note. EPA has decided to
use ANSI/ASAE S572, ANSI/ASAE S572.1, ANSI/ASAE S572.2, and ANSI/ASAE
S572.3 to define ``medium'' droplet sizes. Additional information about
these standards is provided in Unit VII., including how to access them
and our incorporation of these standards into the regulation pursuant
to 1 CFR part 51.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and
Executive Order 14096: Revitalizing Our Nation's Commitment to
Environmental Justice for All
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
communities with environmental justice concerns in accordance with
Executive Orders 12898 (59 FR 7629, February 16, 1994) and 14096 (88 FR
25251, April 26, 2023). 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 communities with environmental
justice concerns. This action will limit exposures to pesticides for
agricultural workers, handlers, and communities adjacent to
agricultural establishments; 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 will 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 III., 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 is
reinstating. 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 Unit III. and the Economic Analysis from the 2015 WPS (Ref. 21).
K. Congressional Review Act (CRA)
This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 170
Environmental protection, Agricultural worker, Employer, Farms,
Forests, Greenhouses, Incorporation by
[[Page 80786]]
reference, Nurseries, Pesticide handler, Pesticides, Worker protection
standard.
Michael S. Regan,
Administrator.
Therefore, for the reasons stated in the preamble, 40 CFR chapter I
is amended as follows:
PART 170--WORKER PROTECTION STANDARD
0
1. The authority citation for part 170 continues to read:
Authority: 7 U.S.C. 136w.
0
2. Amend Sec. 170.405 by:
0
a. Revising paragraphs (a)(1)(i) and (ii), and (a)(2);
0
b. Revising and republishing paragraph (b); and
0
c. Adding paragraph (c).
The revisions and additions 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'' in ANSI/ASAE S572, ANSI/ASAE S572.1, ANSI/ASAE
S572.2, or ANSI/ASAE S572.3 (all 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'' in ANSI/ASAE S572, ANSI/ASAE S572.1, ANSI/
ASAE S572.2, or ANSI/ASAE S572.3 (all incorporated by reference, see
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) Enclosed space production pesticide applications. (1) During
any enclosed space production pesticide application described in column
A of table 1 to paragraph (b) of this section, 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 area specified in column B of
table 1 to paragraph (b) of this section during the application and
until the time specified in column C of table 1 to paragraph (b) of
this section has expired.
(2) After the time specified in column C of table 1 to paragraph
(b) of this section has expired, the area subject to the labeling-
specified restricted-entry interval and the post-application entry
restrictions specified in Sec. 170.407 is the area specified in column
D of table 1 to paragraph (b) of this section.
(3) When column C of table 1 to paragraph (b) of this section
specifies that ventilation criteria must be met, ventilation must
continue until the air concentration is measured to be equal to or less
than the inhalation exposure level required by the labeling. If no
inhalation exposure level is listed on the labeling, ventilation must
continue until after one of the following conditions is met:
(i) Ten air exchanges are completed.
(ii) Two hours of ventilation using fans or other mechanical
ventilating systems.
(iii) Four hours of ventilation using vents, windows, or other
passive ventilation.
(iv) Eleven hours with no ventilation followed by one hour of
mechanical ventilation.
(v) Eleven hours with no ventilation followed by two hours of
passive ventilation.
(vi) Twenty-four hours with no ventilation.
Table 1 to Paragraph (b)--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 Smoke; Mist; Fog; or Spray Entire enclosed space.. The ventilation Entire enclosed space.
using a spray quality (droplet criteria of paragraph
spectrum) of smaller than medium, in (b)(3) of this section
accordance with the meaning given to are met.
``medium'' by the American Society
of Agricultural and Biological
Engineers in ANSI/ASAE S572, ANSI/
ASAE S572.1, ANSI/ASAE S572.2, or
ANSI/ASAE S572.3 (all incorporated
by reference, see Sec. paragraph
(c) of this section).
3. Not as in entry 1 or 2 of this Entire enclosed space.. The ventilation Treated area.
table, and for which a respiratory criteria of paragraph
protection device is required for (b)(3) of this section
application by the pesticide product are met.
labeling.
[[Page 80787]]
4. Not as in entry 1, 2, or 3 of this Treated area plus 25 Application is complete Treated area.
table, and From a height of greater feet in all directions
than 12 inches from the planting of the treated area,
medium; or 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 ANSI/ASAE
S572, ANSI/ASAE S572.1, ANSI/ASAE
S572.2, or ANSI/ASAE S572.3 (all
incorporated by reference, see Sec.
170.405(c)).
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 in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. All approved incorporation by
reference (IBR) material is available for inspection at the
Environmental Protection Agency (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="https://www.archives.gov/federal-register/cfr/ibr-locations">https://www.archives.gov/federal-register/cfr/ibr-locations</a> or email <a href="/cdn-cgi/l/email-protection#7513075b1c1b06051016011c1a1b351b1407145b121a03"><span class="__cf_email__" data-cfemail="a9cfdb87c0c7dad9cccaddc0c6c7e9c7c8dbc887cec6df">[email protected]</span></a>. The
material may be obtained from the 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>.
(1) ANSI/ASAE S572 FEB2004, Spray Nozzle Classification by Droplet
Spectra, reaffirmed February 2004 (ANSI/ASAE S572).
(2) ANSI/ASAE S572.1 MAR2009 (R2017), Spray Nozzle Classification
by Droplet Spectra, reaffirmed December 2017 (ANSI/ASAE S572.1).
(3) ANSI/ASAE S572.2 JUL2018, Spray Nozzle Classification by
Droplet Spectra, ANSI approved July 2018 (ANSI/ASAE S572.2).
(4) ANSI/ASAE S572.3, Spray Nozzle Classification by Droplet
Spectra, ANSI approved February 2020 (ANSI/ASAE S572.3).
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 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
paragraph (b) of Sec. 170.405, 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 paragraph (b) of Sec. 170.405, 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 the
following, 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).
[[Page 80788]]
(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. 2024-22832 Filed 10-3-24; 8:45 am]
BILLING CODE P
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