Pesticides; Agricultural Worker Protection Standard; Revision of the Application Exclusion Zone Requirements, 68760-68782 [2020-23411]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 85, Number 211 (Friday, October 30, 2020)]
[Rules and Regulations]
[Pages 68760-68782]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23411]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 170

[EPA-HQ-OPP-2017-0543; FRL-10016-03]
RIN 2070-AK49


Pesticides; Agricultural Worker Protection Standard; Revision of 
the Application Exclusion Zone Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing revisions to the Agricultural Worker 
Protection Standard (WPS) to clarify and simplify the application 
exclusion zone (AEZ) requirements. This rulemaking is responsive to 
feedback received from stakeholders and the Agency's efforts to reduce 
regulatory burden, while providing the necessary protections for 
agricultural workers and the public. EPA remains committed to ensuring 
the protection of workers and persons in areas where pesticide 
applications are taking place. The AEZ and no contact provisions aim to 
ensure such protections. EPA also has a strong interest in promulgating 
regulations that are enforceable, clear, and effective.

DATES: This final rule is effective December 29, 2020.

[[Page 68761]]


ADDRESSES: The docket for this action, identified by docket 
identification (ID) number EPA-HQ-OPP-2017-0543, is available at https://www.regulations.gov or at the Office of Pesticide Programs Regulatory 
Public Docket (OPP Docket) in the Environmental Protection Agency 
Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 
1301 Constitution Ave. NW, Washington, DC 20460-0001. The Public 
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the OPP 
Docket is (703) 305-5805.
    Due to the public health concerns related to COVID-19, the EPA 
Docket Center (EPA/DC) and Reading Room is closed to visitors with 
limited exceptions. The staff continues to provide remote customer 
service via email, phone, and webform. For the latest status 
information on EPA/DC services and docket access, visit https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Carolyn Schroeder, Pesticide Re-
Evaluation Division (7508P), Office of Pesticide Programs, 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, 
DC 20460; telephone number: (703) 308-2961; email address: 
[email protected].

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:
     Agricultural Establishments (NAICS code 111000).
     Nursery and Tree Production (NAICS code 111421).
     Timber Tract Operations (NAICS code 113110).
     Forest Nurseries and Gathering of Forest Products (NAICS 
code 113210).
     Farm Workers (NAICS codes 11511, 115112, and 115114).
     Pesticide Handling on Farms (NAICS code 115112).
     Farm Labor Contractors and Crew Leaders (NAICS code 
115115).
     Pesticide Handling in Forestry (NAICS code 115310).
     Pesticide Manufacturers (NAICS code 325320).
     Farm Worker Support Organizations (NAICS codes 813311, 
813312, and 813319).
     Farm Worker Labor Organizations (NAICS code 813930).
     Crop Advisors (NAICS codes 115112, 541690, 541712).
    If you have any questions regarding the applicability of this 
action to a particular entity, consult the technical person listed 
under FOR FURTHER INFORMATION CONTACT.

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

    This action is issued under the authority of the Federal 
Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136-136y, 
particularly sections 136a(d), 136i, and 136w. Additionally, in 
accordance with the Pesticide Registration Improvement Extension Act of 
2018 (PRIA 4) (Pub. L. 116-8; March 8, 2019), EPA is only revising the 
AEZ requirements in the WPS.

C. What action is the Agency taking?

    EPA is revising the AEZ requirements of the WPS (40 CFR part 170) 
adopted in 2015 (80 FR 67496, November 2, 2015) (FRL-9931-81) (Ref. 1) 
to clarify and simplify the requirements. Specifically, EPA is amending 
the AEZ requirements by:
     Modifying the AEZ so it is applicable and enforceable only 
on an agricultural employer's property, as proposed.
     Adding clarifying language indicating that pesticide 
applications which have been suspended due to individuals entering an 
AEZ on the establishment may be resumed after those individuals have 
left the AEZ.
     Excepting agricultural employers and handlers from the 
requirement to suspend applications owing to the presence within the 
AEZ of persons not employed by the establishment who are in an area 
subject to an easement that prevents the agricultural employer from 
temporarily excluding those persons from that area.
     Allowing the owners and their immediate family (as defined 
in 40 CFR 170.305) to shelter in place inside closed buildings, 
housing, or shelters within the AEZ, and allowing the application 
performed by handlers to proceed 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.
     Simplifying and clarifying criteria and factors for 
determining AEZ distances of either 100 or 25 feet by basing the AEZ on 
application method. EPA has removed the language and criteria 
pertaining to spray quality and droplet size, as proposed, so that all 
ground spray applications from a height greater than 12 inches are 
subject to the same 25-foot AEZ.
    As discussed further in this document, these revisions take into 
consideration the comments received from the public in response to the 
AEZ proposed rule (84 FR 58666, November 1, 2019) (FRL-9995-47) (Ref. 
2).

D. Why is the Agency taking this action?

    As further described in Unit II.B. of the proposed rule (Ref. 2), 
EPA initiated this rulemaking to clarify and simplify the WPS AEZ 
requirements in response to feedback about the AEZ requirements in the 
2015 WPS rule from members of the agricultural community, including the 
U.S. Department of Agriculture (USDA), state pesticide regulatory 
agencies (i.e., State Lead Agencies (SLAs)) and organizations, and 
several agricultural interest groups, as well as discussions with the 
Pesticide Program Dialogue Committee (PPDC) and public comments. This 
rulemaking is also responsive to the Agency's efforts to reduce burden 
on regulated entities, while providing the necessary protections for 
agricultural workers and the public. EPA remains committed to ensuring 
the protection of workers and persons in areas where pesticide 
applications are taking place. The AEZ and no contact provisions aim to 
ensure such protections. EPA also has a strong interest in promulgating 
regulations that are enforceable, clear, and effective.

E. What are the estimated incremental impacts of this action?

    EPA evaluated the potential incremental economic impacts and 
determined that these changes reduce existing burden. This analysis 
(Ref. 3), which is available in the docket, is summarized here.
    The primary benefit of revising the AEZ requirements is a reduction 
in the complexity of applying a pesticide and improving the compliance 
and enforceability of the requirements. This deregulatory action is 
expected to reduce the burden for affected entities because the revised 
requirements are expected to substantially reduce the complexity of 
arranging and conducting a pesticide application. EPA has not, however, 
quantified the anticipated cost savings.

[[Page 68762]]

II. Context and Goals of This Rulemaking

A. Context for This Rulemaking

    1. Statutory authority. Enacted in 1947, FIFRA established a 
framework for the pre-market registration and regulation of pesticide 
products; since 1972, FIFRA has prohibited the registration of 
pesticide products that cause unreasonable adverse effects. FIFRA makes 
it unlawful to use a pesticide in a manner inconsistent with the 
labeling and gives EPA's Administrator authority to develop regulations 
to carry out the Act. FIFRA's legislative history indicates that 
Congress specifically intended for FIFRA to protect workers and other 
persons from occupational exposure directly to pesticides or to their 
residues (Ref. 4).
    Under FIFRA's authority, EPA has implemented measures to protect 
workers, handlers, other persons, and the environment from pesticide 
exposure in two primary ways. First, EPA includes product-specific use 
instructions and restrictions on individual pesticide product labeling. 
These instructions and restrictions are the result of EPA's stringent 
registration and reevaluation processes and are based on the risks of 
the particular product. Since users must comply with directions for use 
and restrictions on a product's labeling, EPA uses the labeling to 
convey mandatory requirements for how the pesticide must be used to 
protect people and the environment from unreasonable adverse effects of 
pesticide exposure. Second, EPA enacted the WPS to expand protections 
against the risks of agricultural pesticides without making individual 
product labeling longer and much more complex. 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. Its 
requirements complement the product-specific labeling restrictions and 
are intended to minimize occupational exposures generally.
    2. EPA's regulation of pesticides. EPA uses a science-based 
approach to register and re-evaluate pesticides in order to protect 
human health and the environment from unreasonable adverse effects that 
might be caused by pesticides. The registration process begins when a 
manufacturer submits an application to register a pesticide. The 
application must contain required test data, including information on 
the pesticide's chemistry, environmental fate, toxicity to humans and 
wildlife, and potential for human exposure. EPA also requires a copy of 
the proposed labeling, including directions for use and appropriate 
warnings.
    Once an application for a new pesticide product is received, EPA 
conducts an evaluation, which includes a detailed review of scientific 
data to determine the potential impact on human health and the 
environment. EPA considers the risk assessments and results of any peer 
review and evaluates potential risk management measures that could 
mitigate risks that exceed EPA's level of concern. In the registration 
process, EPA evaluates the proposed use(s) of the pesticide to 
determine whether it would cause adverse effects on human health, non-
target species, and the environment. In evaluating the impact of a 
pesticide on occupational health and safety, EPA considers the risks 
associated with use of the pesticide (occupational, environmental) and 
the benefits associated with use of the pesticide (economic, public 
health, environmental). However, FIFRA does not require EPA to balance 
the risks and benefits for each exposed group individually. For 
example, a product may pose risks to workers, but those risks may 
nevertheless be reasonable in comparison to the economic benefit of 
continued use of the product to society at large.
    If the application for registration does not contain sufficient 
evidence for EPA to determine that the pesticide meets the FIFRA 
registration criteria, EPA communicates to the applicant the need for 
more or better refined data, labeling modifications, or additional use 
restrictions. Once the applicant has demonstrated that a proposed 
product meets the FIFRA registration criteria and any applicable 
requirements under the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 
U.S.C. 321 et seq., EPA approves the registration subject to any risk 
mitigation measures necessary to meet the FIFRA registration criteria. 
EPA devotes significant resources to the regulation of pesticides to 
ensure that each pesticide product meets the FIFRA requirement that 
pesticides not cause unreasonable adverse effects to the public and the 
environment.
    When EPA approves a pesticide, the labeling generally includes all 
risk mitigation measures required by EPA for the particular pesticide 
product and the uses specified on its label. The risk mitigation 
measures may include requiring certain engineering controls, such as 
the use of closed systems for mixing pesticides and loading them into 
application equipment to reduce potential exposure to those who handle 
pesticides; establishing conditions on the use of the pesticide by 
specifying certain use sites, maximum application rate or maximum 
number of applications; or establishing restricted entry intervals 
(REIs) during which entry into an area treated with the pesticide is 
generally prohibited until residue levels have declined to levels 
unlikely to cause unreasonable adverse effects. Because users must 
comply with the directions for use and use restrictions on a product's 
labeling, EPA uses the labeling to establish and convey mandatory 
requirements for how the pesticide must be used to protect the 
applicator, the public, and the environment from pesticide exposure.
    Under FIFRA, EPA is required to review periodically the 
registration of pesticides currently registered in the United States. 
The 1988 FIFRA amendments required EPA to establish a pesticide 
reregistration program. Reregistration was a one-time comprehensive 
review of the human health and environmental effects of pesticides 
first registered before November 1, 1984 to ensure that these 
pesticides' registrations were consistent with contemporary standards. 
The 1996 amendments to FIFRA required that EPA establish, through 
rulemaking, an ongoing ``registration review'' process of all 
pesticides at least every 15 years. The final rule establishing the 
registration review program was signed in August 2006 (71 FR 45720, 
August 9, 2006) (FRL-8080-4), and is promulgated in 40 CFR part 155. 
The purpose of both re-evaluation programs is to review all pesticides 
registered in the United States to ensure that they continue to meet 
current safety standards based on up-to-date scientific approaches and 
relevant data.
    Pesticides reviewed under the reregistration program that met 
current scientific and safety standards were declared ``eligible'' for 
reregistration. The results of EPA's reviews are summarized in 
Reregistration Eligibility Decision (RED) documents. Often before a 
pesticide could be determined ``eligible,'' additional risk reduction 
measures had to be put in place. For a number of pesticides, measures 
intended to reduce exposure to handlers and workers were needed and are 
now reflected on pesticide labeling. To address occupational risk 
concerns, REDs include mitigation measures such as: Voluntary 
cancellation of the product or specific use(s); limiting the amount, 
frequency, or timing of applications; imposing other application 
restrictions; classifying a product or specific use(s) for restricted 
use only by certified applicators; requiring the use

[[Page 68763]]

of specific personal protective equipment (PPE); establishing specific 
REIs; and improving use directions. During this process, EPA also 
encouraged registrants to find replacements for the inert ingredients 
of greatest concern. As a result of EPA's reregistration efforts, 
current U.S. farm workers are not exposed to many of the previously 
used active and inert ingredients that were of the greatest 
toxicological concern. And for most of the older products that remain 
registered, reregistration resulted in the inclusion of additional risk 
mitigation measures on the label.
    EPA's registration review program is a recurring assessment of 
products against current standards. EPA reviews each registered 
pesticide at least every 15 years to determine whether it continues to 
meet the FIFRA standard for registration. Pesticides registered before 
1984 were reevaluated initially under the reregistration program. These 
and pesticides initially registered in 1984 or later are all subject to 
registration review.
    In summary, EPA's pesticide reregistration and registration reviews 
assess the specific risks associated with particular chemicals and 
ensure that the public and environment do not suffer unreasonable 
adverse effects from those risks. EPA implements the risk reduction and 
mitigation measures identified in the pesticide reregistration and 
registration review programs through amendments to individual pesticide 
product labeling.
    3. The Agricultural Worker Protection Standard (WPS). The 
Agricultural WPS regulation in 40 CFR part 170 is incorporated on 
certain pesticide product labeling through a statement in the 
agricultural use box. The WPS provides a comprehensive collection of 
pesticide management practices generally applicable to all agricultural 
pesticide use scenarios in crop production, complementing the product-
specific requirements that appear on individual pesticide product 
labels.
    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 an 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 PPE. 
Finally, the WPS has provisions to mitigate exposures if they do occur 
by requiring the employer to provide to 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.
    EPA manages the risks and benefits of each pesticide product 
primarily through the labeling requirements specific to each pesticide 
product. If pesticide products are used according to the labeling, EPA 
does not expect use to cause unreasonable adverse effects. However, 
data on incidents of adverse effects to human health and the 
environment from the use of agricultural pesticides show that users do 
not always comply with labeling requirements. Rigorous ongoing 
training, compliance assistance, and enforcement are needed to ensure 
that risk mitigation measures are appropriately implemented in the 
field. The framework provided by the WPS is critical for ensuring that 
the improvements brought about by reregistration and registration 
review are realized in the field. For example, the requirement for 
handlers to receive instruction on how to use the pesticide and the 
application equipment for each application is one way to educate 
handlers about updated requirements on product labeling to ensure they 
use pesticides in a manner that will not harm themselves, workers, the 
public, or the environment. In addition, REIs are established through 
individual pesticide product labeling, but action needs to be taken at 
the use site to ensure that workers are aware of areas on the 
establishment where REIs are in effect and given directions to be kept 
out of the treated area while the REI is in effect. The WPS has been 
designed to enhance the effectiveness of the existing structure of 
protections and to better realize labeling-based risk mitigation 
measures at the field level.

B. Goals of This Rulemaking

    1. Background and intent of the AEZ requirements. In 2015, EPA 
finalized revisions to the WPS for the first time since 1992 (Ref. 1). 
As established in the 1992 WPS rule (57 FR 38101, August 21, 1992) 
(FRL-3374-6), the pesticide handler's employer and the pesticide 
handler are required to ensure that no pesticide is applied so as to 
contact, either directly or through drift, any agricultural worker or 
other person, other than appropriately trained and equipped pesticide 
handlers involved in the application. This requirement is commonly 
referred to as the ``Do Not Contact'' provision and has been one of the 
key protective and enforcement mechanisms on both pesticide labels and 
in the WPS. This requirement prohibits application in a way that 
contacts agricultural workers or other persons both on and off the 
agricultural establishment where the pesticide is being applied.
    The 2015 WPS rule (Ref. 1) added requirements to supplement the 
existing requirements and to enhance compliance with safe application 
practices designed to protect agricultural workers and bystanders from 
pesticide exposure through drift. The 2015 WPS rule established the AEZ 
requirements for outdoor production, defined as ``the area surrounding 
the application equipment that must be free of all persons other than 
appropriately trained and equipped handlers during pesticide 
applications.'' The AEZ moves with the application equipment and is no 
longer in effect once the pesticide application stops. For aerial, air 
blast, and ground applications with fine or very fine droplet size, as 
well as fumigations, mists, and foggers, the area encompasses 100 feet 
from the application equipment in all directions. For ground 
applications with medium or larger droplet size and a spray height of 
more than 12 inches from the ground, the area encompasses 25 feet from 
the application equipment in all directions. For all other 
applications, there is no AEZ.
    The 1992 WPS rule prohibited agricultural employers from allowing 
or directing any agricultural worker or other person other than trained 
and properly equipped pesticide handlers involved in the application to 
enter or remain in the treated area until after the pesticide 
application is complete. The 2015 WPS rule further prohibited the 
employer from allowing anyone in the

[[Page 68764]]

part of the AEZ (which can extend beyond the treated area) that is 
within the boundaries of the establishment. For example, employers and 
handlers must ensure that workers in adjacent fields or buildings 
within their establishment move out of an AEZ as the pesticide 
application equipment passes; workers could return once the equipment 
has moved on (provided no REI is in effect in that area; the treated 
area does not map to the AEZ). The 2015 WPS rule also required handlers 
to ``immediately suspend a pesticide application'' if anyone other than 
a trained and properly equipped handler is within the AEZ, including 
any part of the AEZ beyond the boundaries of the agricultural 
establishment.
    These restrictions were intended to reduce incidents, or the 
probability of incidents, in which people in areas adjacent to 
pesticide applications could be affected by drift. Additionally, the 
purpose of the AEZ was to supplement and establish written controls to 
guide employers and handlers on how to comply with the primary 
prohibition against applying pesticides in a manner that results in 
contact to others by establishing a well-defined area from which 
persons generally must be excluded during applications. The AEZ 
requirement was just one of the many worker and public health 
protection tools incorporated into the 2015 WPS rule to emphasize one 
of the key safety points in the WPS and on pesticide labels in 
general--do not spray people.
    2. Stakeholder engagement after the 2015 WPS rule. Shortly after 
the publication of the 2015 WPS rule and during the Agency's extensive 
outreach and training efforts for State Lead Agencies (SLAs) after 
promulgating the rule, some SLAs and organizations that represent SLAs 
began raising concerns about the AEZ requirements (Ref. 5). Frequent 
comments about the AEZ included concerns about its complexity and 
enforceability. In an effort to address questions and concerns raised 
by SLAs early on during the initial outreach and training efforts, EPA 
issued an AEZ-specific guidance in April 2016 (Ref. 6). Despite this 
guidance, EPA continued to hear from key stakeholder groups, including 
those representing SLAs such as the Association of American Pesticide 
Control Officials (AAPCO) (Ref. 7) and the National Association of 
State Departments of Agriculture (NASDA) (Ref. 8), regarding their 
concerns around the AEZ requirements.
    In accordance with Executive Order 13777, Enforcing the Regulatory 
Reform Agenda (82 FR 12285, March 1, 2017), and based on the feedback 
received up to that point, EPA solicited additional public comments on 
the AEZ and other provisions of the WPS in the spring of 2017 on 
regulations that may be appropriate for repeal, replacement, or 
modification as part of the Agency's Regulatory Reform Agenda efforts. 
EPA encouraged entities significantly affected by Federal regulations, 
including state, local, and tribal governments, small businesses, 
consumers, non-governmental organizations, and trade associations, to 
provide input and other assistance, as permitted by law. EPA received 
comments from stakeholders on the WPS regulations, as amended in 2015, 
as part of the public's response to the Executive Order 13777 request.
    These revisions are also in the spirit of Executive Order 13790, 
Promoting Agriculture and Rural Prosperity in America (82 FR 20237, 
April 25, 2017), the intent of which was to help ensure that regulatory 
burdens do not unnecessarily encumber agricultural production or harm 
rural communities. The Executive Order required USDA to assemble an 
interagency taskforce, including EPA, to identify legislative, 
regulatory, and policy changes to promote in rural America agriculture, 
economic development, job growth, infrastructure improvements, 
technological innovation, energy security, and quality of life.
    Information pertaining specifically to EPA's evaluation of existing 
regulations under Executive Order 13777, including the comments 
received, can be found at https://www.regulations.gov under docket ID 
number EPA-HQ-OA-2017-0190. Among the comments received, approximately 
25 commenters provided input specific to the AEZ requirements in the 
2015 WPS rule. Commenters on the AEZ requirements included SLAs, state 
organizations/associations, an agricultural coalition, farm bureau 
federations, grower and trade organizations, and a retailer 
organization (Ref. 9). Commenters discussed the need for changes to 
several WPS requirements, including the AEZ. Comments on the AEZ from 
organizations representing SLAs and agricultural interests raised 
concerns about the states' ability to enforce the AEZ requirements, 
expressed a need for clarity about how the requirement was intended to 
work, described problems with worker housing near treated areas, and 
the perception of increased burden on the regulated community. As noted 
in several of the SLA comments, including those submitted by AAPCO, 
EPA's efforts to address some of the concerns raised since 2015 through 
guidance have not been adequate. Commenters also indicated that EPA did 
not provide the necessary clarity to assist state regulatory agencies 
with compliance and enforcement activities.
    In addition to comments received through the Regulatory Reform 
Agenda process, EPA solicited feedback on the WPS and AEZ requirements 
from the Pesticide Program Dialogue Committee (PPDC). The PPDC is a 
federal advisory committee that includes a diverse group of 
stakeholders from environmental and public interest groups, pesticide 
manufacturers, trade associations, commodity groups, public health and 
academic institutions, federal and state agencies, and the general 
public. In May 2017, the PPDC discussed the implementation of the WPS 
in general as part of the ongoing Executive Order 13777 efforts (Ref. 
10). On November 2, 2017, PPDC members again discussed the WPS 
requirements for the application exclusion zone in a public meeting 
with EPA (Ref. 11). Feedback EPA received on the AEZ revolved around 
the need to develop additional training and enhanced guidance for 
certain scenarios to ensure the success of the provision. With this 
feedback in mind, EPA addressed the remaining AEZ issues with a second 
guidance document, issued in February 2018 (Ref. 12). Despite this 
additional guidance, feedback from SLAs indicated that this guidance 
was still unable to adequately address the issues identified during the 
Regulatory Reform process and the Agency's outreach efforts.
    Requests from SLAs to clarify and simplify WPS AEZ requirements, 
together with comments received through 2018 from various stakeholders 
regarding the need for improved clarity and guidance on the AEZ 
requirements, and the Agency's inability to effectively address all AEZ 
issues through guidance, prompted EPA's decision to address these 
issues through rulemaking.

III. Proposed Changes to the AEZ Requirements

    On November 1, 2019 (Ref. 2), EPA proposed narrow updates to the 
WPS regulation to improve the long-term success of the Agency's AEZ 
requirements. Specifically, EPA proposed to:
     Modify the AEZ so it is applicable and enforceable only on 
an agricultural employer's property, where an agricultural employer can 
lawfully exercise control over employees and bystanders who could fall 
within the AEZ. As currently written, the off-farm aspect of this 
provision has proven difficult for state regulators to enforce. These 
proposed changes would enhance

[[Page 68765]]

both enforcement and implementation of the AEZ for state regulators and 
agricultural employers respectively. Off-farm bystanders would still be 
protected from pesticide applications by the existing ``do not 
contact'' requirement that prohibits use in a manner that would contact 
unprotected individuals.
     Add clarifying language indicating that pesticide 
applications which have been suspended due to individuals entering an 
AEZ may be resumed after those individuals have left the AEZ.
     Simplify the criteria for deciding whether pesticide 
applications are subject to the 25- or 100-foot AEZ.
     Exempt the owners of certain family-owned farms from the 
AEZ requirements in regard to immediate family members who remain 
inside closed buildings, housing, or shelters on the establishment. 
This would allow farm owners and their immediate family members to stay 
in their homes or other enclosed structures on their property during 
certain pesticide applications. EPA proposed these targeted updates to 
improve enforceability for state regulators and reduce regulatory 
burdens for farmers while maintaining public health protections for 
farm workers and other individuals near agricultural establishments 
that could be exposed to agricultural pesticide applications.

IV. Public Comments

    The public comment period for the proposed rule closed on January 
30, 2020. EPA received 126 unique submissions to the docket, of which 
three were mass mail/signature campaigns that included over 28,000 
written comments and/or signatures. Commenters included state pesticide 
regulatory agencies and associations, farmworker advocacy 
organizations, public health associations and professionals, growers 
and grower organizations, agricultural producer organizations, 
applicators and applicator organizations, farm bureaus, concerned 
citizens, and others. Comments and EPA's responses to these comments, 
including those that do not raise significant issues or substantially 
change the proposed requirements, are in a Response to Comments 
document (Ref. 13) that is available in the docket for this action. 
Those comments that have prompted changes to the proposed requirements 
for the final rule are discussed in Unit V, which describes the 
comments and the final requirements. In this unit, EPA is providing a 
summary of the substantive issues raised by comments and EPA's 
responses, which are discussed in detail in the Response to Comment 
document (Ref. 13).

A. Support for the Rulemaking

    1. Comments. Of the 126 unique submissions to the docket, 
approximately 16 commenters submitted comments in support of EPA's 
efforts to clarify and simplify the AEZ requirements of the WPS, noting 
that these changes would result in improved enforceability and 
compliance while maintaining other protections intended to ensure the 
safety of workers or other persons from contact during pesticide 
applications. In addition to general support, 10 of these commenters 
provided additional recommendations to further improve upon the 
proposed changes.
    2. EPA Response. EPA appreciates the commenters' general support 
for the proposed revisions. EPA acknowledges that several commenters 
provided additional feedback or recommendations on ways to improve the 
AEZ provision, which will be discussed in more detail in the following 
sections of this document and in the Response to Comments document 
(Ref. 13).

B. Opposition to the Rulemaking

    1. Comments. Most of the comments submitted to the docket expressed 
opposition to EPA finalizing the proposed changes. Of the 126 unique 
submissions to the docket, EPA received 110 unique submissions in 
opposition to the proposed rule changes. This includes 3 mass mail/
signature campaigns with 28,202 signatures or general comments of 
opposition and 89 individual comments submitted to the docket. Some of 
these comments speak to personal experiences with pesticide exposures, 
while others asked EPA in general to protect human health and the 
environment by maintaining the AEZ requirements. Other commenters 
stated that EPA should not allow humans to be sprayed, and that all 
people should receive adequate protections both on and off the 
establishment. In addition to the general comments received in 
opposition to the proposed rule, EPA received approximately 18 comments 
with more specific recommendations and concerns on the proposed rule, 
including feedback on EPA's analyses and rationale for the proposed 
changes.
    2. EPA Response. EPA appreciates the many commenters who provided 
personal stories about experiences with pesticide exposures. These and 
many other experiences are some of the reasons EPA implements and 
supports the WPS requirements and makes every effort to ensure workers 
and bystanders are protected from pesticide risks.
    EPA generally agrees with the commenters regarding protecting 
workers and bystanders from exposure during pesticide applications and 
believes that many of the comments result from deficiencies in the 
proposed rule's explanation of the proposed changes. Many of the 
commenters thought that by limiting the AEZ requirements to within the 
boundaries of the establishment where owners have the ability to 
control the movement of people, thereby excepting individuals off the 
establishment or on easements, and by exempting agricultural 
establishment owners and their immediate families from leaving their 
homes that are within the AEZ boundaries, EPA was permitting handlers 
to spray pesticides in a manner that would result in people being 
contacted by pesticides and being unnecessarily exposed. This is a 
misunderstanding of the proposed rule, which retained protections 
sufficient to protect workers, bystanders, and family members.
    Consistent with both agricultural pesticide labels and the WPS 
since 1994, the handler employer and the handler must ensure that no 
pesticide is applied so as to contact, directly or through drift, any 
worker or other person, other than appropriately trained and equipped 
handlers involved in the application. This is a long-standing 
requirement, often referred to as the ``Do Not Contact'' provision, 
that was in place before (and after) EPA finalized its updates to the 
2015 rule that introduced the concept of the AEZ. The AEZ, when 
considered by the agency, was initially framed as a set of guiding 
practices to support the ``Do Not Contact'' provision. Although EPA 
proposed that the AEZ would no longer apply to areas outside of the 
agricultural establishment's boundaries or to those outside of the 
agricultural employer's control (e.g., those who are working on or in 
easements), EPA did not propose any change to the requirement that 
handlers must ensure that their application does not contact persons 
directly or through drift. If a handler has any reason to believe that 
workers or bystanders may be contacted by a pesticide during a 
pesticide application, the application should not take place until 
either those individuals leave the area or the handler can take 
measures to ensure that contact will not occur. Otherwise, the handler 
risks causing harm to others and violating the WPS and pesticide label.
    EPA acknowledges it is critical to educate handlers and others on 
how to prevent pesticide exposure from

[[Page 68766]]

occurring. The AEZ guidance documents issued by EPA since 2016 state 
that applications near establishment borders can continue provided that 
the applicator or handler follows certain measures or steps to ensure 
that applications will not result in individuals being contacted by 
spray or through drift off the establishment. As noted in these 
guidelines, this same information is incorporated into required WPS 
handler training programs (see 40 CFR 170.501 for handler training 
requirements) approved by EPA since June 2018. Most of these approved 
handler trainings are available through one of EPA's cooperative 
agreements at https://www.pesticideresources.org/wps/training/handlers.html. EPA-approved training programs will continue to provide 
this valuable information (including training related to the AEZ) to 
handlers regarding how to the comply with the ``Do Not Contact'' 
provision. EPA is open to working with the various stakeholder groups 
on other training or supplemental educational materials for handlers. 
Ultimately, EPA and stakeholders have a shared interest in providing 
handlers with information and tools needed to prevent pesticides 
contacting anyone on or off the establishment.

C. EPA's Administrative Record and Justifications for the AEZ Changes

    1. Comments. Several commenters, including some advocacy groups, 
individuals within the public health field, and a joint letter signed 
by seven State Attorneys General (AG) offices, expressed opposition and 
concern regarding EPA's justification of the proposed AEZ changes. The 
commenters argued that EPA's proposal reflected an unsupported change 
in the position EPA took when promulgating the 2015 Rule. These 
commenters argued that the proposed rule rests on new conclusions based 
substantially on the same evidence the agency considered when reaching 
the opposite conclusions in 2015. Several commenters argued that if 
finalized, this rulemaking would likely violate the Administrative 
Procedure Act (APA) because the revisions reflect an unjustified and 
unsupported departure from the agency's prior position. Furthermore, 
these commenters maintain that the agency's explanation that changes 
are necessary to facilitate state compliance efforts is contrary to the 
evidence.
    Commenters frequently pointed to EPA's 2015 WPS rule where EPA 
concluded that creating the AEZ was a necessary supplemental protection 
because the ``do not contact'' requirement was not sufficiently 
protecting people against harmful pesticide exposure. They also noted 
that EPA further cited specific instances of pesticide exposure beyond 
the boundaries of the agricultural establishment that the AEZ as 
finalized in 2015 could have prevented, but that a more limited AEZ 
would not. They suggested that the AEZ proposal reverses course 
entirely from that position and that it would be arbitrary and 
capricious to limit the AEZ without new evidence just five years after 
establishing the AEZ, with no explanation of why EPA's assessment of 
those facts in 2015 was incorrect.
    Commenters dispute the reasons EPA presented to demonstrate the AEZ 
as established in 2015 is unworkable or difficult to administer. As 
evidence, the commenters cited EPA's reliance on feedback solicited and 
received in 2016 and 2017 through three venues:
     Training and outreach to state pesticide regulatory 
agencies;
     as part of EPA's ``Regulatory Reform Agenda'' efforts in 
2017; and
     two meetings of the PPDC in 2017.
    The commenters suggest that EPA's reliance on these venues to 
support the proposed change is irrational and mischaracterized.
    For example, commenters maintain that feedback from EPA's training 
and outreach to state agencies in 2016 cannot form a rational basis for 
the proposal because EPA's own Inspector General concluded that the 
agency's training efforts to prepare the regulated community for 
compliance with the 2015 WPS were woefully deficient. Commenters cited 
a 2018 evaluation by the EPA Office of Inspector General (OIG) that 
found that ``essential'' training and implementation materials--
including the WPS Inspection Manual and How to Comply manual--were not 
available through 2016 (Ref. 14). As a result, they cite that ``many 
state officials said they were not given the time, tools, or resources 
to successfully implement the revised WPS'' by January 2, 2017, the 
compliance date for certain revisions.
    Commenters also discussed information received in response to the 
agency's ``Regulatory Reform'' solicitations in the spring of 2017, the 
provisions of the AEZ that the agency now proposes to modify were not 
even in effect at the time. The ``suspend application'' provisions of 
the AEZ had a compliance date of January 1, 2018. Commenters argued it 
would be irrational to rely on comments submitted in 2017 to support 
the proposition that the AEZ requirements are too hard to work with, 
when key requirements had not even come into effect.
    Several advocacy organizations and the letter from the State AGs 
also commented on EPA's reliance on feedback from the Pesticide Program 
Dialogue Committee (PPDC), a federal advisory committee under the 
Federal Advisory Committee Act, 5 U.S.C. App.2, that consists of 
representatives from user/grower groups, environmental, public 
interest, and animal welfare groups, farmworker representatives, public 
health representatives, chemical and biopesticides industry and trade 
associations, state, local, and tribal government, and federal 
agencies. The commenters stated that EPA's reliance on PPDC's feedback 
is flawed, and that EPA failed to disclose that the PPDC met and 
decided that there were no AEZ issues that necessitated revoking or 
curtailing it, and that they believed any potential issues could be 
addressed through guidance, education, and training (Ref. 13). 
Commenters cited that in the transcript, an EPA official summarized the 
discussion with respect to AEZ by noting that ``what we largely talked 
about was the need to develop some additional and enhanced guidance 
around certain scenarios.''
    2. EPA Response. The feedback EPA has received since finalizing the 
2015 WPS, and the Agency's attempts at addressing these concerns, 
influenced EPA's approach to revising the AEZ requirements in the 
proposed rule. Based on the commenters' statements, EPA believes it is 
necessary to more fully describe the process and the record relied 
upon, provide more context on the steps taken to address issues raised 
between 2015 and the proposed AEZ rulemaking and why a departure from 
the 2015 WPS justification for the AEZ is both warranted and will not 
result in unreasonable adverse effects.
    In late 2015 and early 2016, during the Agency's extensive outreach 
and training efforts for SLAs, some SLAs raised concerns about the AEZ 
requirements. Frequent comments about the AEZ included concerns about 
its complexity and enforceability, and that it would be difficult for 
states to provide compliance assistance in the absence of clear 
guidance from the Agency. In an effort to address some of the initial 
questions and concerns raised by SLAs during these efforts, EPA issued 
AEZ-specific guidance in April 2016 (Ref. 6). In the document, EPA 
interpreted the suspension requirement for people within the AEZ, but 
off the establishment, to mean that applications could resume if 
handlers take measures

[[Page 68767]]

to ensure workers will not be contacted by sprays, such as:
     Assessing the wind and other weather conditions to confirm 
they will prevent workers or other persons from being contacted by the 
pesticide either directly or through drift;
     adjusting the application method or employing drift 
reduction measures in such a way to ensure that resuming the 
application will not result in workers or other persons off the 
establishment being contacted by the pesticide;
     asking the workers or other persons to move out of the AEZ 
until the application is complete; or,
     adjusting the treated area or the path of the application 
equipment away from the workers or other persons so they would not be 
in the AEZ.
    While this guidance addressed some of the issues raised, EPA 
continued to hear from SLAs and state associations representing SLAs 
regarding their concerns around the AEZ and the need for additional and 
clearer guidance on the AEZ specifically and the WPS in general (Refs. 
7, 8). In an effort to address the concerns, EPA assisted a cooperative 
agreement partner on a comprehensive ``How-to-Comply'' manual, released 
in late 2016 (Ref. 15).
    Despite these efforts, SLAs continued to bring to EPA issues 
regarding the AEZ. Several SLAs, AAPCO, and NASDA submitted comments on 
these issues under Executive Order 13777 about their concerns (Ref. 9). 
These commenters continued to express concerns about a lack of clear 
AEZ guidance and the resulting confusion for both growers and state 
pesticide regulatory agencies. These concerns were grounded in the 
SLAs' preparations to enforce the AEZ requirement and could not 
reasonably be ignored solely on account of preceding the AEZ compliance 
date, as commenters propose. As a result of these and other comments, 
EPA decided to raise this issue for discussion during the 2017 PPDC 
meetings.
    During a meeting on May 4, 2017, EPA and PPDC members briefly 
discussed and flagged for further discussion the challenges in 
understanding the AEZ requirement, and obstacles to enforcement, 
compliance assistance, and education. On November 2, 2017 (Ref. 11), 
EPA and PPDC members discussed the AEZ in more detail. To clarify EPA's 
record, EPA acknowledges that the commenters are correct that the PPDC 
did not recommend that rulemaking was required to achieve better 
compliance with the AEZ requirements. Rather, the feedback EPA received 
on the AEZ revolved around the need for additional training and 
enhanced guidance around certain scenarios to ensure the success of the 
AEZ provision.
    Following the PPDC's feedback on needing enhanced guidance, EPA 
completed a second AEZ guidance document. In the February 2018 guidance 
document (Ref. 12), EPA attempted to clarify the remaining issues on 
implementing the AEZ both on and off the establishment. Building upon 
the April 2016 guidance, EPA addressed the off-establishment AEZ by 
explaining what steps to take when someone enters the AEZ that is 
located off the establishment, when and under what circumstances 
handlers can resume pesticide applications that have been suspended, as 
well as providing more detail about how to evaluate situations and what 
measures can be taken when people are within the AEZ but off the 
establishment. Similarly, EPA updated the WPS Inspection Manual (Ref. 
16) in August 2018 with some of the same language and references to the 
2016 and 2018 guidance documents and additional guidance for inspectors 
on compliance and enforcement when persons are in the AEZ but outside 
of the boundaries of the establishment or within easements. This 
detailed information is provided in both the February 2018 guidance 
document, the 2018 WPS Inspection Manual, and the response to comments 
document for this rulemaking.
    The guidance documents issued between 2016 and now clarify that 
applications near establishment boundaries can occur when people are in 
the AEZ but outside of the boundaries of the establishment, provided 
that the applicator/handler follows all labeling requirements and takes 
the appropriate steps to prevent contact from occurring. While EPA 
believed this to be a workable and reasonable solution for implementing 
the AEZ requirements off the establishment, SLAs continued to inform 
EPA that guidance did not adequately address their issues. In 
particular, even though an applicator/handler ensures that conditions 
are favorable or takes measures to prevent drift off the establishment, 
the AEZ regulatory text could be read as prohibiting the application 
and risking of an enforcement action, even if a contact does not occur. 
As one SLA stated in their public comment to the AEZ proposal, guidance 
does not ``carry the weight and authority'' of codified regulations, 
and that their state AG had advised their office that they would be 
``on shaky ground were we to ignore the plain language of the Standard 
and regulate based on interpretative guidance.''
    EPA agrees that guidance does not carry the weight of regulation, 
and that handlers and handler employers may be concerned about state or 
federal authorities taking a strict reading of the regulation. In 
addition, handlers unaware of the existing guidance may interpret the 
AEZ provision more strictly than necessary. For these reasons, EPA 
agrees it is best to revise the regulation itself to clarify that the 
AEZ does not extend beyond the boundaries of the establishment and does 
not apply on or in easements where agricultural employers do not have 
control.
    Despite proposing to limit the AEZ to within the boundaries of the 
establishment, public comments submitted by SLAs, AAPCO, and NASDA on 
the proposal emphasized that workers and bystanders have many 
protections provided by:
     The whole suite of WPS requirements, including the AEZ on 
the establishment, the ``Do No Contact'' provision at 40 CFR 
170.505(a), the REI, and others;
     the certification and training regulations governing 
applicators of RUPs; and,
     product-specific labeling requirements and the pesticide 
label statement which prohibits applications to be made in such a way 
that workers or other persons are contacted by pesticides, either 
directly or through drift. (Note: The ``Do Not Contact'' requirement is 
provided on labels as well as in the WPS.)
    These requirements work together to protect people from exposure to 
pesticides during applications. The trained handler or applicator 
should understand the principles underlying the AEZ requirement and how 
it relates to the ``Do Not Contact'' requirement. Any applicator or 
handler with any reason to believe someone may be contacted during the 
application, should suspend the application until they can assure 
people would not be contacted by pesticides. Otherwise, the applicator 
or handler would be at risk of violating the WPS and FIFRA.
    EPA's risk assessments and registration decisions presume that no 
workers or other persons are being sprayed directly. Before the WPS 
2015 revision, details on how to comply with the ``Do Not Contact'' 
provision was limited. With the 2015 revision, EPA's intention with the 
AEZ requirement was to provide applicators and handlers with specific 
criteria for suspending applications and actions to prevent contact 
with pesticides during

[[Page 68768]]

applications. When developing the 2015 WPS rule, EPA found that 
incidents of exposure to drift or direct spray and other misuse 
violations continued to occur.
    Based on the comments in opposing the changes, EPA recognizes that 
the AEZ proposed rule lacked important details and information on 
several fronts. Specifically, how the Agency intends to equip handlers 
with knowledge and tools to prevent contacting persons off the 
establishment with pesticides during applications; why the Agency 
believes the ``Do Not Contact'' provision is the most appropriate 
mechanism to prevent contacting persons off the establishment with 
pesticides; and why the ``Do Not Contact'' provision is adequately 
protective for persons off-establishment, despite the Agency's 2015 
assessment.
    The Agency believes that the enhanced training requirements of the 
2015 WPS should substantially increase compliance with the ``Do Not 
Contact'' requirement. The AEZ requirement provides an extra measure of 
assurance that applications will not result in worker or bystander 
exposure. This extra measure of assurance may be considered a redundant 
protection, but EPA considered it appropriate based on its 2015 
understanding that the burdens of compliance with the AEZ would be 
minimal, inasmuch as the handler and handler employer were already 
required to take all steps necessary to prevent contact to workers or 
other persons. The changes to the AEZ (making it inapplicable off-
establishment and to easements and the immediate family exemption) 
reflect EPA's current understanding that in certain circumstances, the 
AEZ imposes burdens that are disproportionate to the need for the extra 
measure of assurance the AEZ is intended to provide.

D. Adequacy and Enforcement of the ``Do Not Contact'' Provision Versus 
the AEZ

    1. Comments. Several farmworker advocacy groups, former pesticide 
regulators, and the State AGs' letter argue that the ``Do Not Contact'' 
provision has a history of shortcomings and despite the clear 
prohibition against spraying pesticides so as to contact workers or 
bystanders, EPA updated the WPS precisely because contact was still 
occurring. The commenters acknowledge that the ``Do Not Contact'' 
provision is an important mechanism, but it alone is not enough to 
protect workers and bystanders. Furthermore, several commenters argue 
that the ``Do Not Contact'' provision lacks specific guidance to the 
handler or applicator on how to comply with the provision and protect 
bystanders. By contrast, they point out that the AEZ provision clearly 
explains what must be done to protect workers and bystanders; spraying 
must be suspended if anyone is in the AEZ. While the ``Do Not Contact'' 
provision provides an important protection against pesticide poisoning, 
commenters argue that the vagueness and lack of instruction for the 
owner/applicator is part of what lead to the inclusion of the AEZ in 
the 2015 WPS.
    Commenters argue that the AEZ proactively protects against 
pesticide poisoning by requiring the suspension of application before 
anyone is sprayed while in contrast the ``Do Not Contact'' provision 
can be enforced only after contact with pesticides has occurred. The 
``Do Not Contact'' provision prohibits action that once violated will 
have already resulted in harm to workers. Thus, they argue that 
enforcement of the ``Do Not Contact'' provision does not in itself 
prevent harm in the first place. They argue, however, that enforcement 
of the AEZ could help prevent a dangerous incident from occurring.
    One commenter cites two situations where California enforced the 
AEZ provision of the WPS. In January 2017, California amended its 
existing worker safety regulations to align with the 2015 Rule, 
creating state AEZ provisions, Cal. Code Regs. tit. 3, 6762, that are 
equivalent to the 2015 AEZ provisions. The commenter states that 
California enforced the AEZ requirement in at least two instances. On 
August 16, 2017, fieldworkers pruning tomato plants were exposed to 
pesticides during an application to melons less than 100 feet from 
where they were working. The fieldworkers suffered adverse health 
effects and two of them were taken to the hospital by ambulance. 
Similarly, on June 5, 2019, employees working with kiwi vines sought 
medical treatment after exposure to pesticides during an application at 
a different site less than 100 feet away. In both cases, the county 
agricultural commissioners issued administrative civil penalties based 
on violations of the California AEZ provisions. The commenter states 
that California has not encountered the challenges implementing the AEZ 
requirement that EPA has invoked as the reason for the Proposed Rule. 
They argue that California's regulations--which mirrors the federal AEZ 
provisions--have not been difficult to enforce, are not confusing or 
unnecessary, and that it shows that the AEZ requirements are effective 
and can be implemented.
    At least two other commenters explained that a situation in Texas 
that they felt showed it is easier to enforce violations of the AEZ 
requirement than the ``Do Not Contact'' provision. In April 2019, an 
employee for a nonprofit organization saw a pesticide being applied 
from a plane in a field immediately north of another field where more 
than 60 workers were working. The two fields belonged to different 
owners. The complaint was eventually denied because, regardless of the 
workers' proximity to the aerial spray, the inspector believed they 
would not have been physically contacted by the pesticides under those 
conditions. The commenters argue this demonstrates that the ``Do Not 
Contact'' provision can be difficult to enforce, and it would be easier 
to prove violations of the AEZ provision.
    Overall, the comments argue that EPA's claims in the proposal are 
false. Specifically, commenters argue that EPA's claims that the AEZ 
offers no more protection than the ``Do Not Contact'' provision already 
provides, and that curtailing the AEZ would not reduce protections are 
false and are entirely inconsistent with the findings in 2015 that the 
AEZ was a necessary supplement to the ``Do Not Contact'' provision. 
Furthermore, they state that EPA does not dispute its findings in 2015 
that without the AEZ in place, people are still being sprayed, creating 
an unreasonable risk.
    2. EPA Response. EPA disagrees with commenters on the assertion 
that enforcing the ``Do Not Contact'' provision does not prevent harm 
in the first place. The ``Do Not Contact'' provision applies in all 
situations and application scenarios, regardless of whether the AEZ is 
required or has been followed. The primary safety goal of any 
application is to prevent pesticides from contacting people. Complying 
with the AEZ does not absolve handlers or handler employers from that 
primary responsibility. A handler could comply with the AEZ during an 
application and yet fail to follow all pesticide labeling requirements 
such that pesticide contacts people outside of the AEZ. The combination 
of following labeling requirements based on EPA's product-specific risk 
assessments and the WPS requirements together play a role in protecting 
human health. Reinforcing the need to not spray people is a key piece 
of that equation.
    The requirement to suspend application if people other than trained 
and equipped handlers are in the AEZ was intended to act as a 
supplement or guide for applicators on the ``Do Not Contact'' 
requirement by giving the

[[Page 68769]]

applicator specific criteria for suspending applications. It was EPA's 
intent that these specific criteria would be useful to applicators 
attempting to comply with the existing ``Do Not Contact'' requirement 
beyond the boundaries of the agricultural establishment.
    Regardless of whether it is easier in a particular instance to 
prove a violation of the AEZ requirement or of the do not contact 
requirement, the goal of the WPS is not to create easily proven 
violations but to reduce adverse effects to human health and the 
environment. EPA believes that the combination of protections created 
by the 2015 WPS, notwithstanding the revisions in this final rule, 
appropriately achieves that goal. The comments suggest a misplaced 
emphasis on creating easily proven violations, irrespective of adverse 
effects. EPA is not aware of any AEZ violation having been enforced 
without pesticide without contact occurring first, such as the two 
cases in California. In the Texas incident cited by the commenters, the 
inspector did not find a WPS violation because there was no evidence to 
suggest that pesticide contact could have occurred given the workers' 
proximity to the application, the application method, and variables 
such as weather, wind speed and direction, and vegetation. This is 
likely due, in part, to EPA's guidance on how to implement the AEZ off 
the establishment, which has interpreted the requirements at 40 CFR 
170.505(b) to mean that applications can resume after the handler has 
assessed the conditions or used various safety measures to prevent a 
situation where individuals could be sprayed accidentally.
    Despite EPA's best efforts to offer clarity and a workable solution 
through guidance, incongruity remains between EPA's interpretation of 
the ``suspend'' requirement as a temporary measure until handlers take 
appropriate steps, and how others may interpret the language at 40 CFR 
170.505(b) to mean something more strict or permanent. For example, 
even though a handler could follow the steps in guidance and EPA-
approved training and apply the pesticide safely without it contacting 
a person off the establishment, a state regulator could take an 
enforcement action against them if they held a strict reading of the 
regulatory requirement to suspend the application. While changes in 
this final rule rectify this difficult situation, the goal to prevent 
pesticide from contacting others will continue to be met through 
required WPS training, including training on how to comply with the 
``Do Not Contact'' requirement. Thus, EPA is open to working with the 
various stakeholder groups on other training or educational materials 
so that handlers have the information and tools so as not to spray 
pesticides in a manner that results in contact with anyone on or off 
the establishment.

E. EPA's Cost Analysis for the AEZ Proposal

    1. Comments. Several commenters, including several advocacy groups 
and the joint State AGs letter, argue that EPA's cost analysis for the 
AEZ proposal fails to adequately justify the proposed revisions of the 
AEZ. Some of the commenters cite EPA's 2015 cost analysis indicating 
that the benefits of extending the AEZ beyond the agricultural 
establishment's boundaries could be substantial while the burden on 
applicators to temporarily suspending applications was minimal.
    One commenter states that while the benefits of the proposal 
presumably correspond to reducing the ``complexity'' costs of the 2015 
AEZ provisions, it is hard to see how a provision that requires the 
size (and shape) of the AEZ to change as the application equipment 
moves is less complex than a rule establishing an AEZ of a constant 
size and shape. Yet, EPA appears to be drawing a different conclusion 
now without any effort to explain why it has changed its view of the 
benefits and costs of maintaining the larger AEZ. In sum, they argue 
that EPA's characterization of the costs and benefits of applying the 
AEZ protections beyond the agricultural establishment's boundaries in 
the AEZ proposed rule is at odds with the rationale EPA presented in 
2015 to justify the AEZ provision.
    Another commenter states that the Agency has arbitrarily failed to 
quantify the costs of the increased pesticide exposure that would 
result from the proposal. Specifically, the comment cites that EPA's 
acknowledgement in the proposal that farmworkers and others benefit 
from extending the AEZ boundary beyond the agricultural establishment, 
but without explanation or support, the proposal characterizes these 
benefits as ``minimal.'' Furthermore, the Cost Analysis includes no 
discussion--whether quantitative or qualitative--of the costs of 
foregoing these protections, or of the increased risks to farmworkers 
or others of limiting the AEZ to within the boundaries of the 
establishment. Instead, they argue that the Cost Analysis states that 
``EPA is unable to quantify any increased risk of pesticide exposure 
from revising the AEZ requirements'' and that the Agency asserts 
without explanation or support that any increase in this risk ``may be 
negligible.'' The Agency cannot avoid its obligation to analyze the 
consequences that foreseeably arise merely by saying that the 
consequences are unclear. The EPA's refusal to quantify the costs of 
the proposal, including the costs of adverse impacts to human health, 
is striking given the agency's statutory mandate under FIFRA to protect 
humans and the environment from unreasonable adverse effects of 
pesticides. As a result, the commenter argues that the APA does not 
permit the agency to ignore so central an evidentiary question.
    Another commenter argues that the agency failed to support its 
assessment of the benefits of weakening the AEZ. EPA first claims that 
the proposal is expected to reduce the burden of compliance and lead to 
cost savings, but then predicts that ``[i]n general, revising the AEZ 
requirement is not expected to result in any quantifiable cost savings 
for farms covered by the WPS.'' The commenter then states that an 
``analysis that predicts cost savings but refuses to quantify those 
savings--indeed, that claims any such savings cannot be quantified--is 
not a rational basis for revising the AEZ.''
    The commenters argue that given these flaws, the AEZ revisions 
would be arbitrary and capricious if finalized.
    2. EPA Response. The economic analysis (2015 EA) (Ref. 17) for the 
2015 WPS rule was more comprehensive than the cost analysis for the AEZ 
proposal. However, the level of analysis specific to the AEZ provision 
in the 2015 EA was similar to what was contained in the cost analysis 
for the AEZ proposal. In the 2015 EA, the costs of the AEZ were 
qualitative, and assumed to be low as the AEZ was designed to 
supplement the ``Do Not Contact'' requirements of the WPS and the label 
that establish the responsibility of the applicator to prevent 
pesticides from contacting people. In both the 2015 EA and the cost 
analysis for the AEZ proposal, the discussion was qualitative and 
appropriate for a rule change that has impacts on application 
requirements and change in risks of exposure that cannot reasonably be 
quantified. A qualitative discussion of the potential effects of the 
rule is appropriate in the absence of information on which to base 
quantitative estimates. EPA's action for this rulemaking is consistent 
with the APA.
    EPA's statement that changes to the AEZ in the proposed rule would 
reduce complexity was referring to restricting the AEZ to the 
establishment, removing the complex definition of droplet sizes

[[Page 68770]]

based on the Volume Median Diameter (VMD), and making the size of the 
AEZ consistent across application methods. Although restricting the AEZ 
to the establishment does potentially change the size and shape of the 
AEZ near the edges of the establishment, it does reduce complexity 
because, in situations where the applicator is able to apply the 
pesticide without contacting any person, the applicator would not be 
required to suspend solely on account of the presence of persons who 
are outside the control of the agricultural employer. If the AEZ 
extends to persons outside the control of the agricultural employer 
(either off the farm or on farms through an easement), then the 
agricultural employer would be unable to fulfill his or her obligation 
to exclude those people. As a result, this could cause the application 
to halt for extended periods of time despite the applicator's ability 
to take other measures to prevent drift from contacting those people.
    The commenters suggested that EPA did not consider the costs of 
changing the AEZ in the proposal, which they felt would increase the 
risks of pesticide exposure to people who would have been within the 
AEZ but off the establishment, within the AEZ and within an easement on 
the establishment, or in between the 25 and 100 feet area from 
application equipment, if the size of the AEZ were reduced on the 
establishment for some application methods. EPA evaluated the potential 
for increased risk, and concluded that the ``Do Not Contact'' 
requirement, the changes to the WPS-required training content in 2015, 
and the suite of requirements in the 2015 WPS rule provide effective 
protection from pesticide exposures during applications.

F. EPA's Determinations on Environmental Justice (Executive Order 
12898) and Children's Health (Executive Order 13045)

    1. Comments. Several advocacy commenters, individuals with public 
health expertise, State AGs, and general public commenters argued that 
EPA failed to comply with its obligations under Executive Order 12898 
to address environmental justice (EJ) in minority populations and low-
income populations. Under Executive Order 12898, federal agencies are 
directed to identify and address disproportionately high and adverse 
human health or environmental effects of their policies on minority 
populations and low-income populations in the United States. Commenters 
argue that the proposal does not meaningfully address its EJ impacts. 
Commenters argue that EPA relies on an unsupported conclusion that the 
proposal ``would not have disproportionately high and adverse human 
health or environmental effects on minority or low-income 
populations.'' Commenters suggest that by EPA failing to take a ``hard 
look'' at EJ issues in its review and to identify any method or 
analysis, the agency's analysis in the proposal would likely fail to 
satisfy the APA's arbitrary-and-capricious standard.
    Similarly, commenters argue that EPA failed to comply with 
Executive Order 13045, which requires agencies to identify and assess 
health and safety risks that may disproportionately affect children and 
ensure that activities address disproportionate risks to children. 
Commenters cite examples of exposures involving children as well as 
various studies and information cited within the 2015 WPS indicating 
risks toward children; they argue based on this information, EPA did 
not fully consider how eliminating the off-establishment AEZ would 
impact children near the boundaries of establishments.
    2. EPA Response. EPA does not believe this rulemaking will have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations, nor will it have a 
disproportionate effect on children. EPA does consider the 
environmental and health protections for risks of agricultural 
pesticides to all potentially affected populations and addresses them 
in two ways. First, EPA manages the risks and benefits of each 
pesticide product primarily through registration and labeling 
requirements specific to each pesticide product. Routine pesticide 
registration reviews, and subsequent labeling directives as a result of 
those reviews, take into account protecting all groups, including 
vulnerable groups (e.g., children and EJ communities). Second, the 
framework provided by the 2015 WPS is critical for ensuring that the 
improvements brought about by reregistration and registration review 
are realized. Therefore, if agricultural pesticide products are used 
according to their labeling, EPA does not expect there to be 
unreasonable adverse effects to children, EJ communities, or anyone 
else. Compliance assistance and enforcement also play a role in 
ensuring that risk mitigation measures are appropriately implemented in 
the field.
    As indicated by the commenters, the 2015 WPS went through an 
exhaustive public participation to incorporate a number of safety 
mechanisms into the regulation, and extensively engaged farmworker 
representatives, and when possible, worked directly with workers and 
handlers, to solicit their feedback and ideas for improvements. Some of 
these retained requirements and improvements to the WPS that promotes 
safety included enhanced and expanded training, and notifications; 
adding protection requirements such as the AEZ on the establishment; 
the ``Do Not Contact'' requirement and REIs; mitigating exposures by 
having decontamination supplies available and ensuring that workers 
receive emergency assistance if necessary; and establishing a minimum 
age of 18 for handler and early entry worker duties. EPA remains 
committed to ensuring the long-term success of the WPS and continues to 
support ongoing implementation efforts that arose from these 
interactions. This includes funding various cooperative agreements that 
support implementation and education and reviewing and approving all 
trainings to ensure appropriate information is provided to both workers 
and handlers on pesticide safety.
    One of the areas that has seen a significant improvement as a 
result of that feedback involves that of enhanced training in place 
since the end of 2018. These enhanced trainings for workers and 
handlers include more steps on how to minimize worker and handler 
exposure and that of the families from pesticide residues carried from 
the treated areas to the home. In one cooperative agreement funded by 
EPA, early data provided to the Agency has shown worker knowledge gains 
as a result of these improved trainings, which have been provided in 
the field for over a year (Ref. 18). While EPA does not have similar 
information regarding knowledge gains for handlers, EPA expects that 
handler trainings have also increased the overall understanding of the 
requirements to ensure safer applications of pesticides. For example, 
the requirement for handlers to receive training and instruction on how 
to use the pesticide and the application equipment for each application 
is one way to inform handlers of updated product labeling requirements 
so as not to apply pesticides in a manner that will harm themselves, 
workers, the public, or the environment.
    EPA-approved trainings since 2018 (83 FR 29013; June 22, 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. Those measures include:

[[Page 68771]]

     Assessing the wind and other weather conditions to confirm 
he/she will prevent workers or other persons from being contacted by 
the pesticide either directly or through drift;
     Adjusting the application method or employing drift 
reduction measures in such a way to ensure that resuming the 
application will not result in workers or other persons off the 
establishment being contacted by the pesticide;
     Asking the workers or other persons to move out of the 
area until the application is complete; or
     Adjusting the treated area or the path of the application 
equipment away from the workers or other persons so they will not be 
sprayed.
    EPA believes that by having incorporated this information into EPA-
approved training, handlers have the information they need to safely 
apply pesticides when the establishment's owner and handler lack 
control over people's movements off the establishment. Based on this 
information already existing on how to comply with the ``Do Not 
Contact'' requirement of the WPS, EPA does not believe the change to 
limit the AEZ to within the boundaries of the establishment will result 
in unreasonable adverse effects for any persons, including EJ 
communities or children, off the establishment. EPA remains committed 
to the goal of conveying this information accurately and consistently 
through training and supplemental education materials, and the Agency 
is open to working with its stakeholders to ensure the information is 
current and available.
    In regard to the proposed changes to simplify the AEZ criteria for 
ground applications (i.e., establish an AEZ of 25 feet when sprayed at 
a height greater than 12 inches) on the establishment, EPA determined 
that these changes would not result in unreasonable adverse effects on 
farmworker communities because the ``Do Not Contact'' requirement 
remains in effect. These changes would not result in unreasonable 
adverse effects on children because of the minimum age requirement 
prohibiting children under the age of 18 from participating in handler 
or early entry worker activities also remains in effect. Additionally, 
since the owner has control over the movement of people on his or her 
establishment, the owner can schedule applications and worker 
activities around each other to prevent potential conflicts with the 
AEZ and the ``Do Not Contact'' provision. With proper planning, EPA 
believes this to be of minimal impact on the establishment.
    Commenters cited studies, such as those from Felsot et al. (Ref. 
19) and Kasner et al. (Ref. 20), that show that pesticide applications 
using fine sprays are prone to drift greater than 25 feet. Some 
commenters instead recommended a simplified 100-foot AEZ to ensure that 
protections would be increased while meeting EPA's stated goal of 
simplifying the AEZ. Drift potential is based on a number of factors in 
addition to droplet size, and the AEZ is designed to work in tandem 
with other provisions to ensure no contact and other label requirements 
(to reduce drift) to protect workers. Simplifying the AEZ criteria can 
help handlers better understand and implement the AEZ requirements 
successfully and promotes awareness on how to comply with the ``Do Not 
Contact'' provision. Additionally, all handlers must take EPA-approved 
trainings addressing how the AEZ facilitates compliance with the ``Do 
Not Contact'' provision, and by simplifying the AEZ message, EPA 
expects that these annual trainings will better inform handlers' 
decision-making in regard to preventing contact even where the AEZ 
requirement does not apply. EPA believes that the potential costs and 
burdens for establishment owners to move workers who are within 100 
feet of all ground spray applications would be disproportionate to the 
benefits, particularly when making applications using a medium or 
larger spray quality. Therefore, EPA has decided to finalize the AEZ 
distance requirements on the establishment as proposed. Specifically, 
EPA is establishing a 25-foot AEZ for all sprayed applications made 
from a height greater than 12 inches from the soil surface or planting 
medium, and no longer differentiating between sprayed applications 
based on the spray quality or other factors for setting different AEZ 
distances for outdoor production. EPA will maintain the existing AEZ 
distances of 100 feet for pesticide applications made by the following 
methods: Aerially; by air blast or air-propelled applications; or as a 
fumigant, smoke, mist or fog. This issue is discussed in more detail in 
Unit V.C.

G. Procedural Mandates of FIFRA

    1. Comment. One commenter argued that EPA violated FIFRA's 
procedural mandates. The commenter cites the requirement at Section 
21(b) that before publishing regulations for ``any public health 
pesticide,'' the EPA Administrator ``shall solicit the views of the 
Secretary of Health and Human Services in the same manner as the views 
of the Secretary of Agriculture are solicited under Section 25(a)(2).'' 
The commenter further cites the definition of ``public health 
pesticide,'' which is defined at FIFRA Section 2(nn) as ``any minor use 
pesticide product registered for use and used predominantly in public 
health programs for vector control or for other recognized health 
protection uses, including the prevention or mitigation of viruses, 
bacteria, or other microorganisms (other than viruses, bacteria, or 
other microorganisms on or in living man or other living animal) that 
pose a threat to public health.'' The commenter then states that for 
such pesticides, ``[a]t least 60 days prior to signing any proposed 
regulation for publication in the Federal Register, the Administrator 
shall provide [the Secretary of Health and Human Services] a copy of 
such regulation.''
    The commenter argues that the protections provided by the WPS 
applies to all agricultural pesticides, including public health 
pesticides, and that EPA was required to send a copy of the proposed 
rule to the Secretary of Health and Human Services (HHS) before it 
published the proposal in the Federal Register. By not doing so, the 
commenter claims EPA violated this procedural mandate in FIFRA.
    2. EPA Response. EPA disagrees with this comment. The WPS only 
applies to agricultural establishments, where agricultural pesticides 
are used on agricultural plants (``any plant grown or maintained for 
commercial or research purposes and includes, but is not limited to, 
food, feed, and fiber plants; trees; turfgrass; flowers, shrubs; 
ornamentals; and seedlings''). See 40 CFR 170, Subpart D, for the 
scope, applicability, and definitions for ``agricultural 
establishment'' and ``agricultural plant''. Conversely, Section 21(b) 
only applies to ``public health pesticides'' as defined in Section 
2(nn) and quoted above.
    Because this rulemaking applies only to agricultural pesticides 
used on agricultural plants on agricultural establishments, and not to 
``public health pesticides'' as defined in FIFRA, the Agency is not 
required to solicit the views of the Secretary of HHS in regard to this 
rulemaking.

V. The Final Rule

A. Revisions To Address Issues Raised About the AEZ Extending Beyond 
the Boundary of the Establishment

    1. Proposal. EPA proposed to revise the AEZ provision at 40 CFR 
170.505(b) that requires handlers to ``suspend the application'' if a 
worker or other person is in the AEZ, which as written in the 2015 WPS 
can extend beyond the

[[Page 68772]]

boundaries of the agricultural establishment. EPA proposed to limit the 
AEZ to within the boundaries of the agricultural establishment. This 
change would make the requirement at 40 CFR 170.505(b) for pesticide 
handlers to suspend applications consistent with the requirement at 40 
CFR 170.405(a)(2) for agricultural employers to exclude persons from 
the AEZ.
    The AEZ is an area surrounding pesticide application equipment that 
exists only during outdoor pesticide applications. The 2015 WPS added 
the AEZ requirements to supplement the ``Do Not Contact'' requirements 
to reduce the number of incidents of exposure to pesticides during 
agricultural applications. 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 (besides trained/equipped handlers assisting in the 
application) is in the AEZ. The handler must suspend an application if 
a worker or other person is in any portion of the AEZ--on or off the 
establishment. EPA proposed to revise 40 CFR 170.505(b) so the handler/
applicator would not be responsible for areas of AEZ off the 
establishment, where he/she lacks control over persons in the AEZ. 
However, EPA did not propose any changes to the existing provision in 
the 2015 WPS that prohibits a handler/applicator and the handler 
employer from applying a pesticide in such a way that it contacts 
workers or other persons directly or through drift (other than 
appropriately trained and PPE equipped handlers involved in the 
application). This provision will remain the key mechanism for ensuring 
the protections of individuals off the establishment from the potential 
exposures to pesticides from nearby agricultural pesticide 
applications.
    2. Final Rule. In the final rule, EPA has adopted the proposed 
changes to limit the AEZ to within the boundaries of the establishment 
in those areas where the agricultural employer has control over persons 
on the establishment.
    3. Comments and Responses. a. Comments. Two SLAs, AAPCO, NASDA, 
several agricultural stakeholder associations, and farm bureaus 
expressed general support for EPA's proposal to limit the AEZ to within 
the boundaries of the establishment. These commenters cited some of the 
previously identified concerns associated with the AEZ off the 
establishment, where the establishment owner has no legal control or 
authority over anyone outside the establishment and could thereby 
impact applications long-term and potentially on a permanent basis 
depending on the presence of fixed structures. Additionally, commenters 
from SLAs, AAPCO, and NASDA expressed support for this revision because 
it creates more consistency between the owner and handlers' 
responsibilities under the WPS and clarifies the plain language of the 
requirement to be consistent with EPA's interpretive guidance. These 
commenters also expressed that minimizing and managing risks of 
pesticide exposure to all persons is central to their missions, and 
that extending such protections to individuals who are not agricultural 
workers or handlers is more properly accomplished by other means, such 
as the protections afforded under the ``Do Not Contact'' provision.
    Several commenters from farmworker advocacy groups, public health 
professionals/associations, and commenters from the general public 
expressed opposition to the proposal to limit the AEZ requirements to 
within the boundaries of the establishment. Commenters argued that the 
proposed limitation of the AEZ to the boundaries of the farm would 
lessen protections for workers who might be exposed to drift from a 
neighboring farm, citing various example of cross-boundary drift 
situations. These commenters have argued that a robust implementation 
of the AEZ might have protected workers on adjacent fields from being 
sprayed. Frequently, commenters noted that drift does not stop at 
boundary lines, that the AEZ requirement is necessary and not 
confusing. Therefore, they argue it should be maintained both on and 
off the establishment and for those working on or in easements.
    Commenters argued that limiting the AEZ to the boundaries of the 
farm would lessen protections, and that it is irrelevant whether the 
applicator (or the agricultural employer or the owner of an 
agricultural establishment) has control over a person who is outside of 
the boundaries of the agricultural establishment. One commenter stated 
that if such a person is in the AEZ, there is a very high risk that the 
person is close enough to be sprayed by the pesticide, and the 
applicator should (and the current AEZ provision would require him/her 
to) suspend the application to give such individuals a chance to move 
away. The commenter further argued that restricting the AEZ to land 
within the agricultural establishment would significantly diminish the 
protection of bystanders. Further, the commenter suggested that the 
notion to make the duty of the agricultural employer and the applicator 
``more consistent'' ignores the fact that these distinct duties usually 
rest on different people, stating that applicator typically works for 
the agricultural employer, and each would need training on the 
different duties imposed.
    Commenters also argued that it is necessary that the AEZ apply 
beyond the boundaries of the agricultural establishment because it 
protects people who might otherwise be sprayed with a pesticide, citing 
EPA's analysis in the 2015 WPS that including the area of the AEZ 
outside the boundaries of the agricultural establishment could 
potentially reduce unintended pesticide spray contact incidents four- 
to ten-fold. Commenters stated that EPA provided no rationale for why 
maintaining such a significant increase in protection is 
``unnecessary,'' and stated that having an inconsistent shape (i.e., 
the AEZ no longer being a consistent shape around the application 
equipment for off the establishment and for workers in easements) could 
actually be more confusing and complex to implement.
    Similarly, commenters stated that removing AEZ protections for 
persons on or in easements should not be finalized, and that using the 
scenarios of ``easements'' and ``utility workers'' as a rationale for 
allowing pesticide applications to be resumed even when someone is 
still within the AEZ is potentially misleading. Commenters expressed 
concerns that, due to the use of conditional language (``persons not 
employed by the establishment are present on easements that may exist . 
. . . The owner or ag employer may be unable to control the movement of 
people''), this revised requirement could be used as rationale to 
resume application while anyone is present within the AEZ, including 
people willing to vacate the area during the application, as well as 
those who are not on an easement. They argue that even if the 
conditional language is removed, people in easements should continue to 
be protected by EPA regulations, and that the rationale that people on 
easements are not within an owner's control ``in whole or in part'' 
should not deprive them of their right to be protected. For those in 
easements, one commenter offered the solution to post a notice on the 
boundary of the easement about the date and time of pesticide 
application, so that individuals are empowered to leave the area so 
they can avoid being exposed to pesticides.
    b. EPA Response. EPA disagrees with the commenters that the change 
to limit the AEZ within the boundaries of the

[[Page 68773]]

establishment will result in protections being weakened. As stated in 
Unit IV.B above in previous responses to the overarching comments, 
handlers are still required to comply with the ``Do Not Contact'' 
requirements in the WPS and on pesticide labels. This requirement is 
applicable regardless of distance from the application equipment, and 
regardless of whether the persons are on or off the establishment or 
within easements.
    Additionally, EPA believes that the enhanced training requirements 
of the 2015 WPS will significantly improve compliance with the ``Do Not 
Contact'' requirement. These annual trainings (versus every 5 years 
under the previous rule) include best practices to prevent exposure 
during applications and are consistent with how EPA has been 
interpreting and implementing the AEZ off the establishment. To 
reiterate these best application practices covered in the new training 
materials, these measures include:
     Assessing the wind and other weather conditions to confirm 
he/she will prevent workers or other persons from being contacted by 
the pesticide either directly or through drift;
     Adjusting the application method or employing drift 
reduction measures in such a way to ensure that resuming the 
application will not result in workers or other persons off the 
establishment being contacted by the pesticide;
     Asking the workers or other persons to move until the 
application is complete; or
     Adjusting the treated area or the path of the application 
equipment away from the workers or other persons so they will not be 
sprayed.
    While the AEZ will no longer apply off the establishment or to 
persons on the establishment pursuant to easements as a regulatory 
requirement, agricultural employers and handler employers must still 
include the AEZ as one of the safety measures in their trainings. 
Trained handlers will understand the principles underlying the AEZ and 
how it facilitates compliance with the ``Do Not Contact'' requirement, 
and that training will help inform their decision-making in regard to 
preventing contact with persons outside the establishment or present 
under an easement. EPA is committed and open to working with 
stakeholders to ensure that this information is presented to handlers 
in a clear and effective manner to impress upon handlers their 
responsibility under the WPS to not spray pesticides in a manner that 
results in contact in any situation.
    EPA also disagrees with the commenters that requiring the AEZ only 
on the establishment would be more complex or confusing. For example, 
owners already have the responsibility of not allowing or directing any 
worker or other person not involved in the application to enter or 
remain in an AEZ that is within the establishment's boundaries. As 
indicated in the public comments submitted by NASDA, this change brings 
the pesticide handlers' duty to suspend applications in 40 CFR 
170.505(b) in line with the agricultural employers' duty to exclude 
persons from the AEZ in 40 CFR 170.405(a)(2), so the two requirements 
will be consistent and will be noted as such in handler trainings.

B. Revisions To Address Issues Raised by SLAs Regarding When Handlers 
May Resume an Application That Has Been Suspended

    1. Proposal. EPA proposed to revise the AEZ provision at 40 CFR 
170.505(b) to add a paragraph clarifying conditions under which a 
handler may resume an application that was suspended because of people 
present in the AEZ on the agricultural establishment. The proposed 
revision of 40 CFR 170.505(b) would also clarify how the AEZ applies to 
persons not employed by the agricultural establishment who may be in 
easements (e.g., gas, mineral, utility, or wind/solar energy workers) 
that may be within the boundaries of the establishment. These people 
are generally not within the control of the owner or agricultural 
employer of the establishment, so their presence could disrupt and 
prevent pesticide applications. EPA did not propose any changes to the 
existing ``Do Not Contact'' provision in the WPS.
    The 2015 WPS rule was silent on if and when a handler could resume 
an application that was suspended, because workers or other people were 
present in the AEZ. EPA never envisioned that the AEZ requirement would 
lead to an application being suspended permanently, and the proposed 
change makes EPA's expectations explicit. EPA therefore proposed to 
revise the WPS to clarify that handlers may resume a suspended 
application when no workers or other persons (other than appropriately 
trained and equipped handlers involved in the application) remain in an 
AEZ within the boundaries of the establishment.
    EPA also proposed language to allow applications to be made or 
resume while persons not employed by the establishment in easements 
that may exist within the boundaries of agricultural establishments 
because, depending on the terms of the easement, the owner or 
agricultural employer may be unable to control the movement of people 
(e.g., utility workers) within the easement. The 2015 AEZ requirement 
at 40 CFR 170.405(a)(2) precludes an application from being made on an 
agricultural establishment while workers or other people are in the AEZ 
within the boundaries of the establishment. In developing the original 
AEZ requirement, EPA presumed that all persons on an agricultural 
establishment would be subject to the control of the owner or 
agricultural employer, not recognizing the prevalence of easements 
which deprive the landowner of the ability, in whole or in part, to 
control the movement of persons within the easement. The proposed 
revisions at 40 CFR 170.505(b) address this situation by allowing 
handlers to make or resume an application despite the presence within 
the AEZ of persons not employed by the establishment who are working on 
or in an area subject to an easement. These individuals will still be 
protected by the ``Do Not Contact'' provision, so even though they 
could remain in an easement, the handler and the handler employer would 
be prohibited from allowing the pesticide application to result in any 
contact to these persons. The proposed revision to the regulatory text 
would be codified at 40 CFR 170.505(b).
    2. Final Rule. In the final rule, EPA has adopted the proposed 
changes regarding when applications can resume after they have been 
suspended.
    3. Comments and Responses. a. Comments. Several agricultural 
stakeholders, advocacy groups, and one SLA association expressed 
support for clarifying that applications can be resumed once all 
individuals within the AEZ have left the area, other than those 
permitted by the regulation. All commenters cited the importance of 
providing clarity and aiding applicators in making better decisions 
regarding how to abide by the AEZ requirements.
    However, several advocacy groups disagreed with the proposed change 
to limit the AEZ to within the boundaries of the establishment. They 
were against allowing handlers to continue to spray while individuals 
on adjacent properties were within the 25 and 100-foot AEZ distances as 
required in the 2015 WPS Rule. Additionally, the commenters expressed 
opposition to EPA's proposed changes which would allow the following 
groups of people to remain within the AEZ during applications:
     People who are present within the boundaries of the 
agricultural

[[Page 68774]]

establishment because their presence is allowed pursuant to an 
easement, and
     People who are in the immediate family of the owner of the 
agricultural establishment.
    b. EPA Response. EPA agrees with the commenters that revisions to 
clearly explain when applications can resume after being suspended are 
important and provide clarity not afforded under the 2015 WPS 
regulatory language. While the notion of suspending applications was 
implicitly meant to apply only until individuals not participating in 
the application have left the AEZ, EPA plans to move forward with the 
proposal to ensure that it is explicitly stated that suspended 
applications may resume once people leave the AEZ.
    Regarding the commenters who disagreed with EPA's other proposals, 
those issues have been addressed more specifically in Sections A, C, 
and D of this Unit.

C. Revisions to Clarify and Simplify the AEZ Requirements for Outdoor 
Production

    1. Proposal: EPA proposed to revise the criteria and factors for 
determining AEZ distances at 40 CFR 170.405(a). EPA proposed the 
following revisions to simplify the AEZ requirements while maintaining 
the protections intended under the 2015 WPS:
     Eliminate the language and criteria pertaining to spray 
quality and droplet size and VMD for ``sprayed applications''.
     Limit the criteria for 100-foot AEZ distances for outdoor 
production to pesticide applications made by any of the following 
methods: (1) Aerially; (2) by air blast or air-propelled applications; 
or (3) as a fumigant, smoke, mist, or fog.
     Establish a 25-foot AEZ for all sprayed applications made 
from a height greater than 12 inches from the soil surface or planting 
medium, and no longer differentiating between sprayed applications 
based on the spray quality or other factors for setting different AEZ 
distances for outdoor production.
    Some pesticide labels will have restrictions for applications that 
are different than the criteria in the 2015 WPS or this AEZ rulemaking. 
For example, the restrictions on soil fumigant labels are more 
restrictive than the AEZ of 100 feet. In situations like this, 
pesticide users must follow the product-specific instructions on the 
labeling. As stated in 40 CFR 170.303(c) and 170.317(a), when 40 CFR 
part 170 is referenced on a pesticide label, pesticide users must 
comply with all the requirements in 40 CFR part 170, except those that 
are inconsistent with product-specific instructions on the pesticide 
product labeling.
    2. Final Rule. EPA has finalized the AEZ distances of 25 and 100 
feet as proposed. Also as proposed, EPA has removed the criteria of 
spray quality and droplet size for determining whether a ground spray 
is subject to a 25-foot or 100-foot AEZ, and has established a 25-foot 
AEZ for all ground spray applications made from a height greater than 
12 inches from the soil surface or planting medium.
    3. Comments and Responses. a. Comments. Farmworker advocacy group 
commenters, individuals within the public health field, former 
pesticide regulators and several general public commenters recommended 
that EPA keep the regulations for application method, height, and 
criteria as written in the 2015 WPS. While some acknowledge that 
problems with clarity and compliance exist, they state that the 
original criteria were a step in the right direction to protect workers 
and bystanders from direct spray and from drift. They claim that making 
the proposed changes would eliminate the AEZ entirely for applications 
of fine droplet size sprayed at 12 inches or lower and significantly 
reduces the AEZ for those that are sprayed higher than 12 inches in 
general. They argue that because pesticides sprayed with a fine droplet 
size are most prone to drift, the AEZ should be wider in those cases, 
not narrower. Commenters cited studies showing that pesticide 
applications using fine or smaller sprays are prone to drift greater 
than 25 feet. Finally, they maintain that EPA did not present any new 
or compelling evidence to support the changes in criteria.
    A couple of commenters discussed that having a single distance 
requirement for the AEZ for each application method is a logical choice 
and doing so would moot any conflicts over terminology to describe 
spray droplet characteristics. However, they argue that a problem with 
EPA's proposals--to eliminate the AEZ for spray applications of fine 
droplets released less than one foot off the ground and to set a 
standard, 25-foot AEZ for all other ground spray applications--is that 
a pesticide spray composed of tiny droplets will easily move farther 
than 25 feet. They state that EPA has the capability, but failed to 
analyze, how much and how far a pesticide spray application could be 
expected to travel, and that such an analysis would show that a large 
percentage of the spray would drift outside a 25-foot AEZ under common 
weather conditions. One commenter argued that EPA's proposal also 
completely ignored the more protective (and equally straight-forward 
and enforceable) option of setting a standard AEZ of 100 feet for all 
ground spray applications. Finally, commenters stated reducing the AEZ 
distance from 100 to 25 feet significantly reduces the size of the AEZ 
for ground spray applications with fine droplet sizes from ~ 31,415 
square feet to ~ 1,963 square feet, a reduction of ~ 93%.
    b. EPA Response. In choosing a 25-foot AEZ for ground applications 
above 12 inches, EPA sought one simplified AEZ criterion for ground 
spray applications that would maintain protection while alleviating the 
complexity. During repeated outreach and training events during WPS 
implementation efforts after the 2015 rulemaking, it became clear to 
EPA that there was a great deal of confusion and misunderstanding 
regarding the AEZ requirements and the criteria for determining the 
appropriate AEZ distance. Comments on simplifying the AEZ, which are 
summarized below, included:
     It would be very difficult to enforce the AEZ requirements 
in many circumstances, because it would be challenging to determine 
what the AEZ should have been during an application in many situations, 
unless it is simplified or there were additional recordkeeping 
requirements.
     The current rule refers to factors and criteria for 
determining the AEZ (i.e., droplet size and ``volume median diameters'' 
or VMDs) that are no longer appropriate based on new information from 
the American Society of Agricultural and Biological Engineers (ASABE). 
The ASABE standards regarding the criteria for the droplet size 
classification system have been revised multiple times, thereby 
resulting in the VMD of 294 microns established under the 2015 WPS 
being no longer appropriate. An AEZ distance based on this factor makes 
it difficult for some applicators to determine their required AEZ. This 
has resulted in confusion and difficulty in complying with the AEZ 
requirement.
     The AEZ distances are currently based on factors that make 
it difficult for some applicators to determine their required AEZ, 
making it difficult to comply with the requirement. The complexity has 
resulted in many calling for the elimination of the AEZ altogether.
     Although there is a good rationale and basis for the AEZ 
requirement, it needs to be simplified to make it more practical, 
understandable, and easier to implement.

[[Page 68775]]

    The Agency considered maintaining the spray quality and spray 
droplet criteria from the 2015 WPS. EPA agrees that sprays may drift 
greater than 25 feet and smaller droplet sizes increase the drift 
potential. In addition to spray droplet size, numerous factors impact 
the potential for spray drift, including application method, wind speed 
and direction, temperature and humidity, nozzle release height, 
pesticide formulation, terrain and target crop. The Agency's efforts, 
however, are to develop a simplified approach that is easier to 
understand and implement while still providing necessary guidance on 
how to comply with the overarching ``Do Not Contact'' requirement.
    EPA also considered the recommendation by several public commenters 
to simplify the AEZ by establishing a 100-foot AEZ for all ground spray 
applications above 12 inches. EPA agrees with the commenters that a 
100-foot AEZ would simplify the criteria. However, EPA believes that 
the potential costs and burdens for establishment owners to move 
workers who are within 100 feet of all ground spray applications would 
be disproportionate to the benefits, particularly when making 
applications using a medium or larger spray quality.
    The WPS ``Do Not Contact'' provision prohibits contacting persons 
with pesticides for all situations and without any distance limitation 
on the proximity of the application. The ``Do Not Contact'' provision 
is a performance standard that mandates an outcome but does not specify 
how it is to be achieved. The AEZ requirements are supplemental to the 
``Do Not Contact'' requirements (and any label-specific requirements 
intended to protect against contact) in that they provide a small set 
of concrete benchmarks intended to help handlers accomplish the no-
contact objective. The AEZ, when coupled with the provisions to ensure 
no contact and other label requirements (which may prescribe nozzle 
types, droplet sizes, and buffers based on product-specific 
assessments), is designed to be just one of several mechanisms to 
protect workers and other persons. EPA has concluded that the 2015 AEZ 
ground spray criteria are too complex, and in many cases too 
restrictive, and the ``Do Not Contact'' requirement would be better 
supplemented by the combination of a simplified AEZ and additional 
product-specific requirements where needed. Where EPA's product-
specific risk assessments result in labeling language that is 
inconsistent with or exceeds the requirements of the 25-foot AEZ, the 
handler must comply with the pesticide product labeling. Therefore, EPA 
has decided to finalize the proposed 25-foot AEZ for all ground 
applications sprayed from a height greater than 12 inches to serve as 
the baseline for ground applications when product labels do not provide 
something more protective and to remove spray quality and spray 
droplets to make this baseline simple to determine. EPA is finalizing 
changes to simplify the criteria so applicators can better understand 
the AEZ requirements and need for the AEZ protections, and how to 
implement them.

D. Providing an Immediate Family Exemption to the AEZ Requirements

    1. Proposal. EPA proposed to revise Sec.  170.601 so that owners 
and applicators would be exempt from the AEZ requirements of Sec.  
170.405(a)(2) in regard to members of their immediate families who are 
inside closed buildings, housing, or shelters on the establishment 
during pesticide applications. Immediate family, as defined at Sec.  
170.305, includes the owner's (or owners') spouse, parents, 
stepparents, foster parents, father-in-law, mother-in-law, children, 
stepchildren, foster children, sons-in-law, daughters-in-law, 
grandparents, grandchildren, brothers, sisters, brothers-in-law, 
sisters-in-law, aunts, uncles, nieces, nephews, and first cousins. 
``First cousin'' is defined as the child of a parent's sibling, i.e., 
the child of an aunt or uncle.
    EPA proposed this revision to address unforeseen impacts of the 
2015 AEZ requirements in certain situations. Stakeholders raised 
concerns related to the AEZ requirement in 40 CFR 170.405(a)(2) 
(requiring that employers must not allow workers/people to remain in 
the AEZ on the establishment other than properly trained and equipped 
handlers involved in the application) applying to workers or other 
persons that are in buildings, housing, or shelters on the 
establishment. Even when workers or other people are in closed 
buildings, housing, or shelters that are within the boundaries of the 
establishment, the employer cannot legally apply the pesticide if those 
people are within the boundary area of the AEZ--it is a violation of 
the WPS. There is no choice under the current rule but to remove them 
from the AEZ before the application can take place, regardless of 
whether the buildings are enclosed, or the handler can ensure the 
pesticide will not contact the people. This raised specific concerns 
for owners of agricultural establishments and their immediate families.
    In the case of owners of agricultural establishments and their 
immediate families, family members cannot stay in their own home within 
the AEZ during pesticide applications even if the owner and applicator 
take appropriate steps to ensure family members would not be contacted 
by pesticide spray or drift. This can be burdensome, for example, when 
owners are employing EPA-recommended best practices such as those 
prescribed under the pollinator protection strategy to apply pesticides 
in the evening and when temperatures are below 50 [deg]F, when 
pollinators are not as active but immediate family members are more 
likely to be present. Although EPA acknowledged that there is an 
exposure risk for owners and immediate family members present within 
the AEZ during pesticide applications, EPA anticipates that family 
members would take appropriate steps to protect other family members to 
ensure they would not be contacted during pesticide applications, and 
that the AEZ requirement therefore subjects owners of agricultural 
establishments and their immediate families to unnecessary burdens. 
Accordingly, EPA proposed to revise 40 CFR 170.601(a) so that owners 
and applicators would be exempt from the provisions of 40 CFR 
170.405(a)(2) regarding members of their immediate families who are 
inside closed buildings, housing, or shelters on the establishment. 
This would not impact WPS protections for workers and handlers, because 
owners and applicators would still have to observe AEZ requirements for 
non-family member employees on the establishment. Because the proposed 
exemption was limited to 40 CFR 170.405(a)(2), family members would 
still be subject to all other AEZ requirements.
    2. Final Rule. In the final rule, EPA has adopted the proposed 
change to Sec.  170.601(a)(1), but with several modifications. EPA has 
narrowed the proposed regulatory language to clarify that these 
exemptions only apply in regard to immediate family members who remain 
inside closed buildings, housing, or shelters on the establishment. In 
addition, EPA has added new regulatory language to Sec. Sec.  170.601, 
170.405(a)(2) and 170.505(b)(1) to make it clear that the immediate 
family exemption to the AEZ also applies when the handler performing 
the application is not an owner of the establishment, but only when the 
handler has been instructed by the owner to proceed with the 
application near family homes or closed

[[Page 68776]]

buildings containing only the owner's immediate family inside.
    Upon review of the comments, EPA recognized that expanding the 
Sec.  170.601(a) immediate family exemption to include Sec.  
170.405(a)(2) is not sufficient to accomplish the proposed goal of 
allowing immediate family members to remain in the home or other 
shelter within the AEZ during applications. As proposed, the regulatory 
text of the revised rule would exempt a farm owner of his or her 
responsibilities as an agricultural employer, but it is not clear that 
it would also exempt the farm owner from Sec.  170.505(b) when acting 
as a handler; he or she could still be subject to Sec.  170.505(b) and 
have to suspend the application until family members are evacuated from 
the home within the AEZ. Moreover, the proposed regulatory text made no 
exemption for applications made by handlers other than an establishment 
owner, so as drafted, there would effectively be no exemption at all. 
In order to accomplish the stated goals of the proposal, EPA is 
revising Sec.  170.601(a) to expressly include the AEZ requirements in 
Sec.  170.505(b) as well as those in Sec.  170.405(a)(2) in the 
immediate family exemption, and to extend that exemption to include 
handlers in certain circumstances. The AEZ requirements would still 
apply when owners and immediate family members are in the AEZ and 
outside of closed buildings, housing, or shelters.
    As revised in this final rule, Sec.  170.601(a)(1) provides that 
the owner of the establishment may permit handlers to perform 
applications near closed buildings, housing, or shelters where the 
owners or their immediate family members are present, provided that the 
owner has expressly instructed the handlers that only the owners or 
their immediate family members remain inside the closed shelters, and 
that the application should proceed despite their presence in the 
closed shelters. Without these expressed instructions from the owner, 
handlers will be required to suspend the application if the owner or 
their immediate family members are inside closed structures within an 
AEZ.
    EPA has also added references to this Sec.  170.601(a)(1)(vi) 
exemption in Sec. Sec.  170.405(a)(2) and 170.505(b)(1) for clarity.
    3. Comments and Responses. a. Comments. SLAs, AAPCO, NASDA, and 
several agricultural stakeholder groups and farm bureaus expressed 
their general support for adding the AEZ requirements to the 40 CFR 
170.601 immediate family exception. These commenters state that 
allowing immediate family members to remain inside closed buildings 
inside the AEZ boundaries during pesticide applications would reduce 
the burden to applicators who are on their own family farm. These 
commenters agreed with EPA's proposal that immediate family members, 
including children, would be as safe as they are now without the 
exemption because applicators would protect their own family members. 
Furthermore, the revision would reduce the considerable burden on 
farmers and their family members and create more flexibility while not 
compromising safety.
    Conversely, several farmworker advocacy commenters and individuals 
in the general public expressed concerns over EPA's proposal to exempt 
farm owners and their immediate family members. Among the comments 
received, commenters stated that it is in everyone's best interest to 
leave the AEZ during a pesticide application, so requiring everyone to 
do so, including owners' family members, should not generate ``undue 
burden,'' and that the applicator would not be able to ensure that only 
the owners' family members are inside particular buildings. Commenters 
also suggested that the proposed revision of the AEZ would put a real 
burden on rural communities by reducing protection to family members 
who might not necessarily understand the risk of exposure to which they 
are subjecting themselves. Lastly, they maintain that the risk to 
public health outweighs any benefits.
    In addition to these comments, one commenter stated that the Agency 
made no effort to explain why its rationale would justify exempting 
family members when the family members are outdoors but within an AEZ, 
and that, at best, it would justify an exemption only when family 
members are in a closed building. Second, the commenter suggested that 
the Agency did not explain how its rationale aligns with an earlier 
justification to exempt family members from certain WPS requirements. 
The commenter stated that when the Agency included provisions in the 
1992 WPS to exempt family members from certain requirements, EPA 
explained that it was reasonable to expect owners of agricultural 
establishments to take all steps necessary to protect their own family 
members, and at the same time the exemption gave owners flexibility on 
how to provide those protections. So, for example, the WPS does not 
require owners to give family members formal pesticide safety training 
or to keep records documenting that the family members had been 
trained. The commenter indicated that the Agency reasoned that such 
training could and would happen informally (and perhaps better) over 
time. As the commenter notes, the protection provided by the AEZ 
provisions, however, is not like training; it cannot be provided 
informally, or even adequately, over time, and that the AEZ provision 
is only meaningful if the applicator suspends spraying at the moment 
when someone is too near the application equipment. They believe that 
exempting family members will only encourage applicators to be less 
careful in complying with the ``Do Not Contact'' provision.
    One commenter suggested that while the proposed exemption for 
family members is unjustifiably overbroad, EPA's rationale does raise a 
valid concern. The commenter thought that it seemed reasonable that the 
WPS regulation should not require suspension of an application every 
time the application equipment passes near a closed, occupied building, 
but that there was a serious practical issue with the Agency's proposed 
exemption of family members. To the extent that it is designed to 
address circumstances in which an immediate family member could be 
inside of a building within an AEZ, it would be practically impossible 
for an applicator to know whether any people were present and whether 
the only people in the building were members of the immediate family. 
Under the proposal, in order to comply, the applicator would most 
likely need to suspend application in order to check the building. 
Thus, the commenter believes that the proposed change probably would 
not provide any real relief from the alleged burden. Moreover, another 
practical consideration is that an applicator who is not the owner of 
the agricultural establishment might well not know the relationship of 
the person in the AEZ (either within a building or not) to the owner.
    b. EPA Response. The proposed rule regulatory text would exempt 
farm owners from providing the protections of 40 CFR 170.405(a)(2) to 
themselves or their immediate family members. The proposed language 
would exempt them from all requirements of the AEZ whether family 
members are inside or outside of enclosed structures as one of the 
commenters noted. EPA agrees with the commenter that the proposed 
language was overly broad and acknowledges that this was not the 
intention of the proposed exemption. As stated in the preamble to the 
proposal, EPA intended the exemption to apply only to family members 
inside closed buildings, housing, or shelters to reduce

[[Page 68777]]

the burdens of having to leave their homes during a pesticide 
application.
    EPA believes this approach is consistent with the 1992 WPS 
rationale cited by one of the commenters. EPA expects owners of 
agricultural establishments to take all steps necessary to protect 
their own immediate family members, and the final rule gives owners 
flexibility to provide those protections by sheltering immediate family 
members in enclosed structures within the AEZ.
    Accordingly, EPA is changing the regulatory text at 40 CFR 
170.601(a)(1)(vi) to state that the exemption only applies when 
immediate family members of farm owners remain inside closed buildings, 
housing, or shelters on the establishment. This change clarifies that 
the AEZ requirements fully apply to immediate family members when they 
are outdoors, and that the exemption only applies when they shelter-in-
place.
    While reviewing the comments, EPA identified an ambiguity in the 
proposed rule regarding whether the proposed family exemption is broad 
enough to allow handlers who are not an owner of the establishment to 
perform the application while owners and their immediate family members 
to remain inside closed buildings, houses, or structures. This is, in 
part, because the existing 40 CFR 170.601(a)(1) only applies to owners, 
and while it could be construed to apply to owners when performing the 
handler activities, it would not extend to other handlers who have been 
hired by the owner to perform those duties. However, EPA's intent was 
to allow the owner, who generally has awareness of, and control over, 
the movement of immediate family members on the establishment, to 
instruct an applicator or handler to perform an application while the 
owners or their immediate family members remained inside closed 
structures within the AEZ. The final rule reflects this intent and will 
relieve owners and their immediate families of the burden of vacating 
the building when the owner judges it unnecessary. Without the express 
instruction from the owner to proceed with an application despite his 
or her family's presence in the closed structure, the final rule 
requires handlers to comply with the suspension requirements at Sec.  
170.505 and not proceed with the application until the owner's 
immediate family vacates the AEZ.
    Some of the commenters understood the proposal to mean that 
applicators or handlers who are not owners of the agricultural 
establishment would need to comply with the AEZ requirements and 
suspend the application in all situations until they could confirm the 
structure was clear as required under 40 CFR 170.505, while others 
viewed EPA's proposal to apply more broadly (i.e., family members could 
stay inside while a hired handler performs the application). The Agency 
recognizes that as proposed, Sec.  170.601(a)(1)(iv) might only apply 
to owners in their role as agricultural employers; it would not 
necessarily exempt the owner or any other person from the handler 
requirements of Sec.  170.505(b), making the proposed exemption 
unusable. This would not be consistent with EPA's intent, or the 
understanding of at least some commenters.
    Accordingly, EPA has revised the regulatory text at Sec.  170.601 
to make clear that applications conducted by other handlers can proceed 
when owners or their immediate family members remain inside closed 
buildings, housing, and structures, provided that the owner has 
expressly instructed the handler that only the owner and/or their 
immediate family members remain inside the closed building and that the 
application can proceed despite the owner and their immediate family 
members' presence inside the closed building. Handlers will have to 
receive this information from the owner of the establishment prior to 
application and cannot assume that only the owner's family are inside 
without that assurance. The rule does not require that the instruction 
be provided to the handler in writing, as that could be unnecessarily 
burdensome in many cases. However, insisting on a written instruction 
may provide a handler relief from an enforcement action if the owner's 
representation proves to be incorrect.
    EPA assumes that owners will take into account the risks to their 
immediate family members before instructing a handler to proceed with 
an application. This approach gives owners flexibility on how to 
provide appropriate protections when their family remains in an 
enclosed structure within the AEZ while reducing burdens during 
applications. This revision to the regulatory text will not lessen 
protections for workers or other persons, as this exemption to the AEZ 
requirement does not apply if a person present in the AEZ is not a 
member of the owner's immediate family.
    EPA, however, disagrees with the assertion that the exemption would 
result in applicators being less careful in complying with the ``Do Not 
Contact'' provision. The farm owner or applicator must still suspend 
application if anyone other than the owners or their immediate family 
members are within the AEZ, including inside enclosed structures within 
an AEZ. It is reasonable to believe that owners will warn their 
immediate family of a pesticide application in advance and instruct 
them that no one, other than their immediate family members, may be 
inside during the application. Moreover, the agricultural employer's 
responsibility under 40 CFR 170.405(a)(2) to not allow or direct any 
worker or other person within the AEZ other than appropriately trained 
and equipped handlers involved in the application requires the farm 
owner or agricultural employer to ensure that no one outside of the 
immediate family will be permitted in the house within an AEZ until 
after the application they are performing is complete or the 
application equipment has moved on.

E. Recommendations To Develop State Equivalency Provisions for the AEZ

    1. Comments. One SLA, one state association representing SLAs, and 
one agricultural stakeholder association requested that EPA establish a 
mechanism to review and accept (when warranted) AEZ equivalency plans 
or provisions submitted by SLAs, territories, and tribes. The 
commenters all indicated that at least one state ``shelter-in-place'' 
provision has protections in addition to those specified in the federal 
AEZ. Commenters indicated that the state law was developed after a 
long, inclusive, and transparent rulemaking process with farm worker 
advocacy groups and grower groups. This state law provides 
clarifications and revisions to the federal requirements and provides 
protections in addition to those in the federal AEZ.
    2. EPA Response. In the early development of the AEZ proposal, EPA 
had considered addressing state equivalency plans and a mechanism to 
review and accept those plans. EPA's preference at the time was to 
address state equivalency plans with the whole WPS in mind. However, 
under PRIA 4 (Pub. L. 116-8; March 8, 2019), EPA is required to carry 
out the 2015 WPS rule and is not permitted to propose or finalize 
revisions to the WPS other than to the AEZ prior to October 1, 2021. As 
a result of this statutory limitation, EPA has determined that EPA's 
preferred path to revising the state equivalency request language at 40 
CFR 170.609 would be outside the scope of what is permitted under 
statute since the preferred approach would not be limited to the AEZ 
requirements. While EPA is currently limited by PRIA 4 to make this 
change, EPA may be able to

[[Page 68778]]

reexamine this recommendation starting in October 2021.

F. Recommendation To Add an AEZ ``Shelter-in-Place'' Provision for 
Workers and Other Persons

    1. Comments. In addition to the requests to establish mechanisms 
for state equivalency plans, two agricultural stakeholders and one SLA 
requested that EPA expand the exemption offered to agricultural owners 
and their immediate families to include workers and others who remain 
in an enclosed structure.
    Another commenter argued that the EPA exemption allowing 
agricultural owners and their immediate families to remain inside a 
closed building within an AEZ would not need to be as complicated as 
suggested in the proposal. The commenter suggested that instead of 
naming different types of buildings, the criteria could be that 
application could continue as long as all visible openings by which the 
pesticide spray could enter the building--e.g., doors and windows--
appear closed, and that unnamed ``variables'' are irrelevant. The 
commenter stated that what should matter from a safety perspective is 
whether the spray is likely to contact someone within the AEZ, not the 
relationship between the owner of the agricultural establishment and 
the person in the AEZ. They argue this suggestion would eliminate the 
arbitrary distinction in the proposal that affords different 
protections to people in the owner's immediate family and those who are 
not. Further, the commenter argues that an applicator could determine 
more quickly and easily whether he or she needed to suspend application 
simply by looking at the exterior of the building, rather than entering 
the building.
    2. EPA Response. EPA disagrees with the commenters' recommendations 
to extend the exemption to remain in the AEZ to anyone provided they 
remain in an enclosed structure (i.e., ``shelter-in-place''). EPA had 
considered addressing this issue through development of an exception to 
the AEZ requirement that would consider and identify appropriate 
conditions that would allow people to remain in a building or structure 
in the AEZ. EPA believes that conditions vary too much for EPA to 
establish a generally applicable ``shelter-in-place'' provision, and 
would be better suited to narrowly-targeted ``shelter-in-place'' 
provisions developed by SLAs based upon the circumstances and need 
within their jurisdictions. However, as indicated previously, EPA's 
preferred path for developing state equivalency mechanisms and revising 
the language under 40 CFR 170.609 is currently limited by PRIA 4. EPA 
may reexamine this issue again if and when EPA has the authority to 
reconsider other aspects of the WPS.

G. Other Recommendations and Revisions

    1. Definitions. a. Application Exclusion Zone.
    i. Current rule and proposal. Under 40 CFR 170.305, the application 
exclusion zone means ``the area surrounding the application equipment 
that must be free of all persons other than appropriately trained and 
equipped handlers during pesticide applications.''
    Under the proposed rule, EPA proposed to change the definition to 
mean ``the area surrounding the application equipment from which 
persons generally must be excluded during pesticide applications.''
    The proposed change was intended to reflect the various proposed 
revisions limiting the AEZ to within the boundaries of the 
establishment and addressing easements within establishment boundaries 
and allowing an owner's immediate family to remain in an enclosed 
building within an AEZ during an application.
    ii. Comments and Responses.
    Comments. One commenter recommended that EPA revise the definition 
of AEZ to mean ``the area surrounding the point(s) of pesticide 
discharge from the application equipment that must be free of all 
persons during pesticide applications, other than those persons noted 
under 40 CFR 170.405(a)(2) and 170.601(a)(1).'' The commenter stated 
that definition of the AEZ as proposed was unclear and even EPA's 
explanation of it was inconsistent, which will make compliance and 
enforcement difficult. For example, the April 2016 and February 2018 
guidances both show graphics in which the AEZ is measured from the 
entirety of the pesticide application equipment for a ground sprayer. 
However, the February 2018 adds a graphic for an aerial spray in which 
the AEZ is measured from the points of pesticide discharge for an 
aerial sprayer. The two graphics are side by side in the February 2018 
guidance.
    In addition to this revised definition, the commenter recommended 
that to be consistent with this recommended definition, similar 
language should be added at 40 CFR 170.405(a)(1)(i) and 
170.405(a)(1)(ii) to be clear that the AEZ distance is determined from 
the point(s) of pesticide discharge from the application equipment.
    EPA Response. EPA agrees with the commenter and revised the final 
regulatory text when discussing measuring the AEZ from the points of 
pesticide discharge to ``the area surrounding the point(s) of pesticide 
discharge from the application equipment that must generally be free of 
all persons during pesticide applications;'' this recommended change is 
a commonsense revision to the definition and regulatory text that helps 
to improve the clarity of the rule and is consistent with EPA's past 
outreach on the AEZ requirements. EPA did not include as part of the 
definition ``other than those persons noted under Sec.  170.405(a)(2) 
and Sec.  170.601(a)(1).'' The limits to the AEZ boundaries, 
exceptions, and exemptions are addressed through the responsibilities 
of the agricultural employer or handler during applications within an 
AEZ, and regulatory text is found at Sec. Sec.  170.405(a)(2), 
170.505(b) and 170.601(a)(1), respectively. However, EPA has revised 
the definition to clarify that exclusion is the general rule, to which 
there are exceptions.
    b. Easements. i. Current rule and proposal. Under the current rule, 
there is no definition or exception associated with easements. EPA 
proposed to allow applications to be made or resume while persons not 
employed by the establishment are present on easements that may exist 
within the boundaries of agricultural establishments, because, 
depending on the terms of the easement, the owner or agricultural 
employer may be unable to control the movement of people (e.g., utility 
workers) within an easement. The proposal to address people not 
employed by the establishment who are in an area subject to an easement 
(e.g., utility workers) provides regulatory relief to handlers and 
agricultural employers and may prevent disruptions to pesticide 
applications. Despite this proposed change, EPA did not define the 
meaning of an ``easement.''
    ii. Comment and Response.
    Comment. One commenter stated that adding the exception to the AEZ 
beyond the boundary of the establishment where handlers do not have the 
ability to control the movement of people off the establishment or 
within easements allows a more reasonable approach on shared property. 
However, the commenter felt that without a definition of ``easement'', 
the interpretation of such is left up to each state or historical 
elucidation. The commenter stated that ``easement'' is commonly defined 
as ``a nonpossessory right to use and/or enter onto the real property 
of another without possessing it,'' which allows some relief of the AEZ 
requirements along utility or roadway rights-of-ways

[[Page 68779]]

that are clearly an ``easement.'' However, there is the challenge of 
unintentional consequences if the term is not defined on properties 
such as driveways, access roads, etc. A definition of ``easement'' 
should be added to clarify exactly how EPA is defining ``easement'' to 
ensure consistency in the interpretation of the rule.
    EPA Response. EPA's intention for the easement exception was to 
recognize that some persons may have a legal right to be on parts of an 
agricultural establishment independent of the agricultural employer's 
control, and for their presence not to be an insurmountable obstacle to 
pesticide application provided the pesticide could be applied without 
contacting such persons. Whether a person has such a legal right is a 
matter of state law, so it seems inappropriate for EPA to try to impose 
a national definition of ``easement'' in the WPS. EPA agrees that the 
commenter's definition of ``easement'' is a common definition; however, 
EPA does not think that including it in the rule would substantially 
aid in interpretation or implementation.
    2. Making the AEZ Based on Wind Direction. a. Current rule and 
proposal. Under the current rule, for aerial, air blast, fumigations, 
mists, and foggers, as well as ground applications with fine or smaller 
droplet sizes (less than 294 microns VMD), the AEZ area encompasses 100 
feet from the application equipment in all directions. For ground 
applications with medium or larger droplet sizes (VMD greater than 294 
microns) and a spray height of more than 12 inches from the ground, the 
area encompasses 25 feet from the application equipment in all 
directions. For all other applications, there is no AEZ.
    In the proposed rule, EPA proposed to limit the criteria for 100-
foot AEZ distances for outdoor production to pesticide applications 
made by any of the following methods: (1) Aerially; (2) by air blast or 
air-propelled applications; or (3) as a fumigant, smoke, mist, or fog. 
Additionally, the proposal set to establish a 25-foot AEZ for all 
sprayed applications made from a height greater than 12 inches from the 
soil surface or planting medium, and no longer differentiate between 
sprayed applications based on the droplet size of 294 microns or other 
factors for setting different AEZ distances for outdoor production.
    b. Comments and Responses.
    i. Comments. Three commenters recommended improving implementation 
of the AEZ without compromising the safety of workers by making the AEZ 
based on wind direction. These commenters suggest that the AEZ should 
only apply to the downwind side of the applicator as drift only moves 
downwind. They argued that, for example, aerial applicators have the 
tools necessary to provide immediate onsite wind direction measurement 
so if wind direction does change during the application they can 
respond immediately. The commenters indicated that the labels for some 
products are reflective of this concept and offer evidence supporting 
the concept of buffer zones based on wind direction and believe this 
same logic should also be applied to the AEZ.
    ii. EPA Response. EPA disagrees with this recommendation, as it 
would make the requirements of the AEZ more complex rather than less. 
This recommendation could also lead to workers being placed too close 
to applications based on wind direction, resulting in potential 
pesticide exposures with sudden shifts in wind direction during 
application. By maintaining an omnidirectional AEZ (i.e., an AEZ around 
the application equipment in all directions), the AEZ will provide a 
margin of security against changes in wind direction for those on the 
establishment who may be near the ongoing application but are not 
properly trained and equipped handlers participating in the 
application.
    3. Recommendation to Reduce Redundancy. a. Comment. One commenter 
suggested the following change presented in the proposal to make the 
final rule text less redundant:
     In 40 CFR 170.505(b)(1), remove ``, other than an 
appropriately trained and equipped handler involved in the 
application,'' because this language was repeated in the proposed text 
at 40 CFR 170.505(b)(1)(i).
    b. EPA Response. EPA agrees with the commenter and has removed, 
``other than an appropriately trained and equipped hander involved in 
the application'' from the final regulatory text in 40 CFR 
170.505(b)(1) since it is repeated in 40 CFR 170.505(b)(1)(i).
    Additionally, while not explicitly mentioned in any public comment, 
EPA has made a similar edit from the proposed to final rule to remove 
the redundant text, ``. . . within the boundaries of the agricultural 
establishment . . . ,'' in 40 CFR 170.501(3)(xi) since that 
clarification is previously stated in the sentence.

VI. 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.

VII. References

    The following is a listing of the documents that are specifically 
referenced in this document. The docket includes these documents and 
other information considered by EPA, including documents that are 
referenced within the documents that are included in the docket, even 
if the referenced document is not physically located in the docket. For 
assistance in locating these other documents, please consult the person 
listed under FOR FURTHER INFORMATION CONTACT.
1. EPA. Pesticides; Agricultural Worker Protection Standard Revisions; 
Final Rule. Federal Register. 80 FR 67496, November 2, 2015 (FRL-9931-
81).
2. EPA. Pesticides; Agricultural Worker Protection Standard; Revision 
of the Application Exclusion Zone Requirements; Proposed Rule. Federal 
Register. 84 FR 58666, November 1, 2019 (FRL-9995-47).
3. EPA. Cost Analysis for Revisions to the Application Exclusion Zone 
in the Worker Protection Standard. 2020.
4. U.S. Senate. S. Rep. No. 92-883 (Part II), 92nd Congress, 2nd 
Session at 43-46 (1972). U.S. Code Congressional and Administrative 
News 1972, p. 4063.
5. North Carolina Department of Agriculture and Consumer Services 
(NCDA&CS). Letter from James W. Burnette, Jr., Director NCDA&CS, to 
James J. Jones, Assistant Administrator, OCSPP. December 4, 2015.
6. 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 https://www.regulations.gov/document?D=EPA-HQ-OPP-2017-0543-0007.
7. AAPCO. Letter from Dennis W. Howard, President, to Jack Housenger, 
Office Director, Office of Pesticide Programs. August 17, 2016. 
Available online at https://aapco.files.wordpress.com/2016/11/letter-to-jack-housenger-wps_aez.pdf.
8. NASDA. Letter from Nathan Bowen, Director, Public Policy, to 
Administrator Gina McCarthy. November 16, 2016. Available

[[Page 68780]]

online at https://www.nasda.org/letters-comments-testimony/nasda-letter-requesting-extension-for-worker-protection-standard-implementation-timeline.
9. EPA. Reference List of Public Comments Regarding the Worker 
Protection Standard Submitted to Docket EPA-HQ-OA-2017-0190. List 
available at https://www.regulations.gov/document?D=EPA-HQ-OPP-2017-0543-0005.
10. EPA. Transcript from PPDC Meeting on May 4, 2017. Available online 
at https://www.epa.gov/sites/production/files/2017-07/documents/may-4-2017-ppdc-meeting-transcript.pdf.
11. EPA. Transcript from PPDC Meeting on November 2, 2017. Available 
online at https://www.epa.gov/sites/production/files/2018-01/documents/november-2-2017-ppdc-meeting-transcript.pdf.
12. EPA. Worker Protection Standard Application Exclusion Zone 
Requirements: Updated Questions and Answers. February 15, 2018. 
Available at https://www.regulations.gov/document?D=EPA-HQ-OPP-2017-0543-0008.
13. EPA. Pesticides; Agricultural Worker Protection Standard; Revision 
of the Application Exclusion Zone Requirements; Response to Comments on 
the Proposed Rule. 2020.
14. EPA, Office of Inspector General, EPA Needs to Evaluate the Impact 
of the Revised Agricultural Worker Protection Standard on Pesticide 
Exposure Incidents, Report No. 18-P-0080 (Feb. 15, 2018) (``OIG 
Report''). Available online at https://www.epa.gov/sites/production/files/2018-02/documents/_epaoig_20180215-18-p-0080.pdf.
15. EPA. How to Comply with the 2015 Revised Worker Protection Standard 
for Agricultural Pesticides: What Owners and Employers Need to Know. 
2016.
16. EPA. Inspection Manual: Worker Protection Standard Inspection 
Manual. 2018.
17. EPA. Economic Analysis of the Agricultural Worker Protection 
Standard Revisions. September 2015 (RIN 2070-AJ22). Available at 
https://www.regulations.gov/document?D=EPA-HQ-OPP-2011-0184-2522.
18. Association of Farmworker Opportunity Programs (AFOP). 2019 
Training Data Report. AFOP, Farmworker Health & Safety Programs report 
developed with EPA grant #83597001, Occupational Safety and Health 
Administration Susan Harwood Training Program Funds grant #SH-05004-SH, 
and W.K. Kellogg Foundation grant #P3033500. January 2020.
19. Felsot et al. Agrochemical Spray Drift; Assessment and Mitigation--
A Review, 46 J. Envtl. Sci. Health Part B 1. 2010. Provided in comment 
by Earthjustice et al.
20. Kasner et al., Spray Drift from a Conventional Axial Fan Airblast 
Sprayer in a Modern Orchard Work Environment, 62 Annals of Work 
Exposures and Health 1134. 2018. Provided in comment by Earthjustice et 
al.

VIII. FIFRA Review Requirements

    Under FIFRA section 25, EPA has submitted a draft of the final rule 
to the Secretary of the Department of Agriculture (USDA), the FIFRA 
Scientific Advisory Panel (SAP), and the appropriate Congressional 
Committees. USDA reviewed the draft final rule during the interagency 
review mentioned in Unit IX.A. and waived further review on October 7, 
2020. Since there are no science issues warranting review, the FIFRA 
SAP waived a detailed review on October 12, 2020.

IX. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

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

    This action is a significant regulatory action that was submitted 
to the Office of Management and Budget (OMB) for review under Executive 
Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, 
January 21, 2011). Any changes made in response to OMB recommendations 
have been documented in the docket. EPA prepared a cost analysis 
associated with this action, which is briefly summarized in Unit I.E. 
and is available in the docket (Ref. 3).

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is a deregulatory action as specified in Executive 
Order 13771 (82 FR 9339, February 3, 2017). The EPA cost analysis 
associated with this action is briefly summarized in Unit I.E. and is 
available in the docket (Ref. 3).

C. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden 
under the PRA, 44 U.S.C. 3501 et seq. OMB has previously approved the 
information collection activities contained in the existing regulations 
and has assigned OMB control number 2070-0190. This rule does not 
impose or modify any information collection burdens because the AEZ 
requirements are not associated with any information collection 
activities that require approval under the PRA.

D. 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. In making this determination, the impact of concern 
is any significant adverse economic impact on small entities. An agency 
may certify that a rule will not have a significant economic impact on 
a substantial number of small entities if the rule relieves burden or 
has no net burden on the small entities subject to the rule. The 
changes to the AEZ requirements in this rule will reduce the impacts on 
all entities subject to the rule, so there are no significant impacts 
to any small entities. EPA has therefore concluded that this action 
will relieve regulatory burden for all directly regulated small 
entities.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The rule requirements will primarily affect 
agricultural employers and commercial pesticide handler employers. This 
action is also expected to be a burden-reducing action because removing 
the requirements should reduce the complexity of arranging and 
conducting a pesticide application. The cost analysis associated with 
this action is briefly summarized in Unit I.E. and is available in the 
docket (Ref. 3). As such, the requirements of sections 202, 203, 204, 
or 205 of UMRA, 2 U.S.C. 1531-1538, do not apply to this action.

F. Executive Order 13132: Federalism

    This action does not have federalism implications as defined 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

[[Page 68781]]

responsibilities among the various levels of government.

G. 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 any effect on tribal governments, on the relationship between 
the Federal Government and the Indian tribes, or on the distribution of 
power and responsibilities between the Federal Government and Indian 
tribes. There are no costs to Tribes associated with these changes 
because the WPS is implemented through the pesticide label, so changes 
to the regulation do not impose any new obligations on the part of 
Tribes. Thus, Executive Order 13175 does not apply to this action.

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

    This action is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997), because it is not economically significant as defined 
in Executive Order 12866, and because EPA does not believe the 
environmental health or safety risks addressed by this action present a 
disproportionate risk to children. This determination is discussed in 
more detail in Unit IV.F.

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

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards that would 
require Agency consideration under NTTAA section 12(d), 15 U.S.C. 272.

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

    EPA believes that this action does not have disproportionately high 
and adverse human health or environmental effects on minority 
populations, low-income populations and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). A 
more detailed discussion of this determination is provided in Unit 
IV.F.

L. Congressional Review Act (CRA)

    This action is subject to the CRA, 5 U.S.C. 801-808, 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, nurseries, pesticides, pesticide handler, worker 
protection standard.

Andrew Wheeler,
Administrator.

    Therefore, for the reasons set forth in the preamble, 40 CFR 
chapter I, subchapter R is amended as follows:

PART 170--[AMENDED]

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

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


Sec.  170.305  Definitions.

0
2. Amend Sec.  170.305 by revising the definition of Application 
exclusion zone to read as follows:
* * * * *
    Application exclusion zone means the area surrounding the point(s) 
of pesticide discharge from the application equipment that must 
generally be free of all persons during pesticide applications.
* * * * *

0
3. Amend Sec.  170.405 by revising paragraphs (a)(1)(i) and (ii) and 
(a)(2) to read as follows:


Sec.  170.405  Entry restrictions associated with pesticide 
applications.

* * * * *
    (a) * * *
    (1) * * *
    (i) The application exclusion zone is the area that extends 100 
feet horizontally from the point(s) of pesticide discharge from the 
application equipment in all directions during application when the 
pesticide is applied by any of the following methods:
    (A) Aerially.
    (B) Air blast or air-propelled applications.
    (C) As a fumigant, smoke, mist, or fog.
    (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 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) Persons not employed by the establishment in an area subject 
to an easement that prevents the agricultural employer from temporarily 
excluding those persons from that area.
    (iii) Owners of the agricultural establishment and their immediate 
family members who remain inside closed buildings, housing, or shelters 
on the establishment under the conditions specified in Sec.  
170.601(a)(1)(vi).
* * * * *

0
4. 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 within the 
boundaries of the agricultural establishment 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, persons not employed by the establishment 
in an area subject to an easement that prevents the agricultural 
employer from temporarily excluding those persons from that area, and 
the owner(s) of the agricultural establishment and members of their 
immediate families who remain inside closed buildings, housing, or 
shelters on the establishment, 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.  170.505 by revising paragraph (b) to read as follows:

[[Page 68782]]

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) that is within the boundaries of the agricultural 
establishment or the area specified in column B of the Table in Sec.  
170.405(b)(4), except for:
    (i) Appropriately trained and equipped handlers involved in the 
application,
    (ii) Persons not employed by the establishment in an area subject 
to an easement that prevents the agricultural employer from temporarily 
excluding those persons from that area, and
    (iii) The owner(s) of the agricultural establishment and members of 
their immediate families who remain inside closed buildings, housing, 
or shelters on the establishment, 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) that is within the boundaries of 
the agricultural establishment or the area specified in column B of the 
Table in Sec.  170.405(b)(4), except for:
    (i) Appropriately trained and equipped handlers involved in the 
application,
    (ii) Persons not employed by the establishment in an area subject 
to an easement that prevents the agricultural employer from temporarily 
excluding those persons from that area, and
    (iii) The owner(s) of the agricultural establishment and members of 
their immediate families who remain inside closed buildings, housing, 
or shelters on the establishment, 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
6. 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 below, 
certain handlers) are not required to provide the protections of the 
following provisions to themselves or members of their immediate family 
when they are performing handling activities or tasks related to the 
production of agricultural plants that would otherwise be covered by 
this part on their own agricultural establishment.
    (i) Section 170.309(c).
    (ii) Section 170.309(f) through (j).
    (iii) Section 170.311.
    (iv) Section 170.401.
    (v) Section 170.403.
    (vi) Sections 170.405(a)(2) and 170.505(b), but only in regard to 
owner(s) of the establishment and their immediate family members who 
remain inside closed buildings, housing, or shelters on the 
establishment. 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 on the establishment, 
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 on the establishment.
    (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. 2020-23411 Filed 10-29-20; 8:45 am]
BILLING CODE 6560-50-P