Pesticides; Agricultural Worker Protection Standard; Reconsideration of the Application Exclusion Zone Amendments, 15346-15360 [2023-03619]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 88, Number 48 (Monday, March 13, 2023)]
[Proposed Rules]
[Pages 15346-15360]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03619]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 170

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


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

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

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

FOR FURTHER INFORMATION CONTACT: Carolyn Schroeder, Pesticide Re-
Evaluation Division, Office of Pesticide Programs, Environmental 
Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-
0001; telephone number: (202) 566-2376; email address: 
[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); and
     Crop Advisors (NAICS codes 115112, 541690, 541712).
    If you have any questions regarding the applicability of this 
action to a particular entity, consult the technical person listed 
under FOR FURTHER INFORMATION CONTACT.

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

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

C. What action is the Agency taking?

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

[[Page 15347]]

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

D. Why is the Agency taking this action?

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

E. What are the incremental impacts of this action?

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

[[Page 15348]]

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

[[Page 15349]]

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

II. Proposed Changes to the WPS

A. Background and Existing Requirements

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

[[Page 15350]]

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

[[Page 15351]]

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

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

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

[[Page 15352]]

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

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

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

[[Page 15353]]

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

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

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

[[Page 15354]]

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

E. Incorporation by Reference

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

[[Page 15355]]

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

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

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

[[Page 15356]]

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

G. Options Considered but Not Proposed

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

III. Request for Comment

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

IV. References

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

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

[[Page 15357]]

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

V. FIFRA Review Requirements

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

VI. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive orders 
can be found at 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 not a significant regulatory action and was 
therefore not submitted to OMB for review under Executive Orders 12866 
(58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011).

B. Paperwork Reduction Act (PRA)

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

C. Regulatory Flexibility Act (RFA)

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

D. Unfunded Mandates Reform Act (UMRA)

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

E. Executive Order 13132: Federalism

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

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

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

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

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

[[Page 15358]]

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

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

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

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

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

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

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

List of Subjects in 40 CFR Part 170

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

Michael S. Regan,
Administrator.

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

PART 170--WORKER PROTECTION STANDARD

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

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

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


Sec.  170.405  Entry restrictions associated with pesticide 
applications.

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

[[Page 15359]]

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

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

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


Sec.  170.501  Training requirements for handlers.

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

[[Page 15360]]

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


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

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


Sec.  170.601  Exemptions.

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