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[Federal Register Volume 89, Number 193 (Friday, October 4, 2024)]
[Rules and Regulations]
[Pages 80767-80788]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-22832]

[[Page 80767]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 170

[EPA-HQ-OPP-2022-0133; FRL-8528-05-OCSPP]
RIN 2070-AK92

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) is 
finalizing revisions to the application exclusion zone (AEZ) 
requirements in the Agricultural Worker Protection Standard (WPS). EPA 
has determined that several aspects of the AEZ provisions, such as 
those regarding the applicability of the AEZ and distance determination 
criteria, should be revised to reinstate previous requirements that 
better protect public health and limit exposure for those who may be 
near ongoing pesticide applications. To restore these protections, EPA 
is finalizing the AEZ rule proposed on March 13, 2023, as proposed 
without change.

DATES: This final rule is effective December 3, 2024. The incorporation 
by reference of certain publications listed in the regulations is 
approved by the Director of the Federal Register as of December 3, 
2024.

ADDRESSES: The docket for this action, identified by docket 
identification (ID) number EPA-HQ-OPP-2022-0133, is available online at 
https://www.regulations.gov. Additional information about dockets 
generally, along with instructions for visiting the docket in-person, 
is available at https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Carolyn Schroeder, Pesticide Re-
Evaluation Division (7508M), Office of Pesticide Programs, 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, 
DC 20460-0001; telephone number: (202) 566-2376; email address: 
[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 questions regarding the applicability of this action to 
a particular entity, consult the person listed in the FOR FURTHER 
INFORMATION CONTACT section.

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

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

C. What action is the Agency taking?

    EPA is finalizing the AEZ rule that was proposed on March 13, 2023 
(88 FR 15346; FRL-8528-03-OCSPP) (hereinafter ``2023 Proposed Rule''; 
Ref. 1), as proposed and without change. In so doing, the Agency is 
revising certain AEZ requirements of the WPS that were amended by EPA 
in a final rule published on October 30, 2020 (hereinafter ``2020 AEZ 
Rule''; Ref. 2). As further explained in Unit II.A.4., the effective 
date of the 2020 AEZ Rule was stayed pursuant to a court order; that 
is, the 2020 AEZ Rule has not gone into effect. This rulemaking, once 
in effect, replaces the requirements that were published under the 2020 
AEZ Rule but never went into effect.
    Specifically, EPA is rescinding three of the amendments outlined in 
the 2020 AEZ Rule and reinstating the related AEZ requirements as 
published in a final rule on November 2, 2015 (hereinafter ``2015 
WPS''; Ref. 3), with certain modifications. The following three 
amendments from the 2020 AEZ Rule are being rescinded:
    1. The area where the AEZ applies. This rule rescinds language from 
the 2020 AEZ Rule that limited the applicability of the AEZ to the 
agricultural employer's property. As such, with this rule, applications 
must be suspended whenever someone is within the AEZ, regardless of 
whether that person is on or off the agricultural establishment.
    2. The exception to application suspension requirements for 
property easements. Under this rule, applications must be suspended 
whenever someone is within an AEZ, even if they are not employed by the 
establishment and in an area subject to an easement that prevents the 
agricultural employer from temporarily excluding those individuals from 
that area.
    3. The distances from the application equipment in which entry 
restrictions associated with ongoing ground-based pesticide 
applications apply. Under this rule, the AEZ distance is 100 feet for 
ground-based fine spray applications and 25 feet, generally, for 
ground-based applications using medium or larger droplet sizes.
    EPA is also amending the AEZ provisions in the 2015 WPS as follows:
    1. Clarifies when suspended applications may be resumed. This rule 
specifies that applications that were suspended due to individuals 
entering an AEZ may be resumed after those individuals have left the 
AEZ. As a result, this rule supersedes EPA's previous interpretive 
guidance on resuming applications in circumstances when individuals 
off-establishment are in the AEZ (see Unit VI.B.; Refs. 4 through 6).
    2. Provides an exemption allowing owners and their immediate family 
to remain within the AEZ in certain scenarios. Under this rule, farm 
owners and members of their immediate family may shelter within closed 
structures within an AEZ during pesticide applications, provided that 
the owner has instructed the handlers that only the owner's immediate 
family are inside the closed shelter and that the application should 
proceed despite their presence. Handlers may proceed with applications 
under these circumstances.
    3. Replaces the volume median diameter (VMD) criteria with droplet 
size classification standards. Under this rule, the standard that will 
be used as the droplet size criterion when making

[[Page 80768]]

AEZ distance determinations based on droplet size is the technical 
standard established by the American Society of Agricultural Engineers 
(ASAE). ASAE was renamed the American Society of Agricultural and 
Biological Engineers (ASABE) in 2005, which is also endorsed by the 
American National Standards Institute (ANSI). Although ASABE is now the 
organization of record for these standards, the specific size standard 
reflects the name of the organization that existed at the time that the 
standard was established.
    Each of these changes is explained in more detail in Unit IV.

D. Why is the Agency taking this action?

    EPA reexamined the 2020 AEZ Rule consistent with Executive Order 
13990 (Ref. 7), and in response to a factual error that EPA discovered 
in the 2020 AEZ Rule's preamble while compiling the administrative 
record for litigation (see Unit II.A.4 and Unit II.A.5.). As a result 
of EPA's reexamination of the 2020 AEZ Rule, the Agency determined that 
certain amended AEZ requirements in the 2020 AEZ Rule should be 
rescinded, with several protections from the 2015 WPS regulatory text 
being reinstated. EPA determined that reinstatement of these 
protections from the 2015 WPS will be more effective at reducing 
potential exposures from ongoing pesticide applications and promote 
public health for all populations and communities near agricultural 
establishments. In addition, EPA's analysis supporting the 2015 WPS 
shows that these protections will better support the Agency's efforts 
to reduce disproportionate risks associated with agricultural pesticide 
exposures that currently fall on populations and communities with a 
history of environmental justice concerns, particularly agricultural 
employees (i.e., workers and handlers), the employees' families, and 
the communities that live near establishments that use pesticides (Ref. 
3). Reinstating the regulatory text for certain AEZ requirements from 
the 2015 WPS will be associated with minimal cost to the regulated 
community, as described in Unit III. These revisions are consistent 
with FIFRA's mandate to protect health and the environment against 
unreasonable risk to humans or the environment, taking into account the 
economic, social, and environmental costs and benefits.

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

    EPA assessed the potential incremental economic impacts of this 
action, as compared to both the 2015 WPS and the 2020 AEZ Rule. EPA 
used this approach because the 2015 WPS has continued to provide the 
operative regulatory language for the AEZ requirements during the 
court-ordered stay of the 2020 AEZ Rule (see Unit II.A.4.). As compared 
to the 2015 WPS, EPA determined that the 2020 AEZ Rule had minimal 
impacts (see Unit III.A.). Similarly, EPA found that the impact of the 
changes in this final rule on agricultural establishments is likely to 
be small relative to the 2020 AEZ Rule (see Unit III.B.). EPA's 
analysis addresses other implications of this action as well (see Unit 
III.C.).

II. Context and Goals for This Rulemaking

A. Context for This Rulemaking

1. The WPS
    EPA implements FIFRA's mandate to limit adverse effects on human 
health in part through the WPS regulation codified at 40 CFR part 170. 
The WPS is a uniform set of requirements for workers, handlers, and 
their employers that are generally applicable to all agricultural 
pesticides and are incorporated onto agricultural pesticide labels by 
reference. The WPS is intended to reduce the risk of illness and injury 
to agricultural workers and pesticide handlers who may be exposed to 
pesticides while working. The WPS requirements are generally applicable 
to pesticides used in crop production agriculture and made applicable 
to certain pesticide products through FIFRA's pesticide product 
registration process by inclusion of a statement requiring WPS 
compliance on the product label. The WPS requirements complement the 
product-specific labeling restrictions and are intended to minimize 
occupational exposures generally. When a registered pesticide label 
includes a statement requiring compliance with the WPS, any failure to 
comply with the WPS when using a pesticide is a violation of FIFRA.
    The risk reduction measures of the WPS may be characterized as 
being one of three types: information, protection, and mitigation. To 
ensure that employees will be informed about exposure to pesticides, 
the WPS requires that workers and handlers receive training on general 
pesticide safety, and that employers provide access to information 
about the pesticides with which workers and handlers may have contact. 
To protect workers and handlers from pesticide exposure, the WPS 
prohibits the application of pesticides in a manner that exposes 
workers or other persons, generally prohibits workers and other persons 
from being in areas being treated with pesticides, and generally 
prohibits workers from entering a treated area while a restricted-entry 
interval (REI) is in effect (with limited exceptions that require 
additional protections). In addition, the rule protects workers by 
requiring employers to notify them about areas on the establishment 
treated with pesticides through posted and/or oral warnings. The rule 
protects handlers by ensuring that they understand proper use of and 
have access to required personal protective equipment (PPE). Finally, 
the WPS has provisions to mitigate exposures if they do occur by 
requiring the employer to provide workers and handlers with an ample 
supply of water, soap, and towels for routine washing and emergency 
decontamination. The employer must also make transportation available 
to a medical care facility if a worker or handler may have been 
poisoned or injured by a pesticide and provide health care providers 
with information about the pesticide(s) to which the person may have 
been exposed.
2. History of the AEZ Requirements
    In 2015, EPA promulgated a final rule that comprehensively revised 
the WPS for the first time since 1992 (Ref. 8). The 2015 WPS added 
several pesticide-related safety measures and strengthened elements of 
the existing regulation in areas including training, notification, 
pesticide safety and hazard communication information, and use of PPE. 
The 2015 WPS also implemented updated requirements for providing 
supplies for routine washing and emergency decontamination.
    Under the WPS established in 1992 (57 FR 38101, August 21, 1992 
(FRL-3374-6)), the pesticide handler's employer and the pesticide 
handler were required to ensure that no pesticide is applied in a 
manner that may contact, either directly or through drift, any 
agricultural worker or other person, other than an appropriately 
trained and equipped pesticide handler involved in the application 
(Ref. 8). This prohibition is often referred to as the ``Do Not 
Contact'' provision and is applicable in all situations, without 
limitations on distance or location of the individuals. This particular 
provision was carried over into the 2015 WPS revisions and has remained 
unchanged (Ref. 3).
    Among other changes to improve public health and to build upon the 
existing protections of the 1992 WPS, the 2015 WPS established AEZ 
requirements for outdoor production application to reinforce the 
existing ``Do

[[Page 80769]]

Not Contact'' provision and to enhance overall compliance with safe 
application practices intended to protect agricultural workers and 
bystanders from pesticide exposure from sprays and drift (Ref. 3). The 
AEZ is an area surrounding the point(s) of pesticide discharge from the 
application equipment that must generally be free of all persons during 
pesticide applications. The AEZ moves with the application equipment 
while the application is ongoing and ceases to exist around the 
equipment once the pesticide application ends. After the application 
has been completed or the application equipment has moved on to a new 
area, entry restrictions associated with treated areas go into effect.
    The 2015 WPS requirement at 40 CFR 170.505(b) required pesticide 
handlers (applicators) making a pesticide application to temporarily 
suspend the application if any worker or other person, other than 
trained and equipped handlers assisting in the application, was within 
the AEZ. The 2015 WPS revisions further required a handler to suspend 
an application if a worker or other person was in any portion of the 
AEZ, on or off the establishment. These restrictions were intended to 
bolster the protections afforded by the ``Do Not Contact'' provision, 
promote an application approach aimed at reducing incidents in which 
people in areas adjacent to pesticide applications could be affected by 
either direct contact or drift, and establish a well-defined area from 
which people generally must be excluded during ongoing applications. 
The AEZ requirement was one of the many public health protection tools 
incorporated into the 2015 WPS rule to emphasize one of the key safety 
points in both the WPS and on pesticide labels: do not spray people.
    As outlined in the 2015 WPS, the size of the AEZ was dependent 
largely on the application method used. For aerial, air blast, 
fumigant, smoke, mist, and fog applications, as well as sprays using a 
spray quality (droplet spectrum) of smaller than medium (defined as VMD 
of less than 294 microns), the area encompassed 100 feet from the 
application equipment in all directions. For other applications sprayed 
from a height of greater than 12 inches from the planting medium using 
a spray quality (droplet spectrum) of medium or larger (defined as VMD 
of 294 microns or greater), the area encompassed 25 feet from the 
application equipment in all directions. For all other applications, 
there was no AEZ.
3. The 2020 AEZ Rule Modifying the AEZ Provisions of the 2015 WPS
    On October 30, 2020, EPA published revisions to the AEZ provisions 
under the WPS (Ref. 1). The 2020 AEZ Rule would have modified the AEZ 
requirements to limit the AEZ to an agricultural employer's property 
where an agricultural employer can lawfully exercise control over 
employees or bystanders who may be within the AEZ during an 
application, and would have simplified the criteria for determining the 
AEZ distances for ground spray applications. In addition, 
clarifications were made on when applications may resume after being 
suspended due to someone entering the AEZ, as well as providing an 
exemption for farm owners and their immediate family so that they would 
not have to leave their homes or another enclosed structure when it is 
located within an AEZ. The 2020 AEZ Rule revisions did not include any 
changes to the ``Do Not Contact'' provision in the WPS, which still 
prohibited applying pesticides in a manner that may result in contact 
either directly or through drift. The rule was set to go into effect on 
December 29, 2020; however, the effective date was stayed by the court.
4. Actions Under Judicial Review
    As explained in the Federal Register of May 16, 2022 (87 FR 29673; 
FRL-9803-01-OCSPP), two civil actions were filed in the U.S. District 
Court for the Southern District of New York (S.D.N.Y.) on December 16, 
2020, challenging the 2020 AEZ Rule (now consolidated as case number 
1:20-cv-10642). Additionally, two petitions for review were filed in 
the U.S. Second Circuit Court of Appeals on December 17, 2020 (case 
numbers 20-4174 and 20-4203), which have been held in abeyance pending 
the proceedings in the district court.
    On December 28, 2020, S.D.N.Y. issued an order granting plaintiffs' 
request for a temporary restraining order (TRO) and injunctive relief 
(Ref. 9). The court's order stayed the December 2020 effective date of 
the 2020 AEZ Rule and enjoined all EPA authorities who would otherwise 
take action to make the 2020 AEZ Rule effective from doing so. 
Following the December 2020 order, S.D.N.Y. issued several additional 
orders consented to by both EPA and the plaintiffs, further extending 
the preliminary injunction and staying all proceedings in the case 
(e.g., Ref. 10). As a result, the 2020 AEZ Rule has never gone into 
effect.
5. EPA's Reconsideration of Certain 2020 AEZ Rule Amendments
    Concurrent with the ongoing litigation, the 2020 AEZ Rule was 
included among several EPA actions identified for review in accordance 
with Executive Order 13990 (Refs. 7 and 11). In the course of reviewing 
both the 2015 WPS and 2020 AEZ Rules in accordance with Executive Order 
13990, EPA found that some of the 2020 revisions to the AEZ 
requirements (specifically, the 2020 AEZ Rule's simplification of AEZ 
distance requirements and the limitation of the applicability of the 
AEZ requirements to the agricultural establishment's boundaries) are 
inconsistent with the objectives of protecting against unreasonable 
adverse effects on human health and the environment and limiting 
exposure to dangerous chemicals and pesticides for all populations, 
including those who may experience disproportionate burden or risks 
such as workers, handlers, and those who live, work, or play on or near 
agricultural establishments. The Agency determined that the 2020 
changes did not effectively balance the potential social and economic 
costs associated with limiting the AEZ requirements to areas under the 
owner's control and simplifying the distance criteria for ground-based 
spray applications (Ref. 1).
    Furthermore, while preparing the administrative record for 
litigation, EPA discovered a factual error contained in the preamble of 
the 2020 AEZ Rule regarding the scope of AEZ content within EPA-
approved trainings. Specifically, the preamble to the 2020 AEZ Rule 
states that ``EPA-approved trainings since 2018 . . . have also 
incorporated EPA's 2016 guidance on how to apply pesticides near 
establishment borders and provide information on various measures 
applicators or handlers can take to prevent individuals from being 
contacted by spray or through drift,'' and listed examples of such 
measures (Ref. 2). This assertion in the 2020 AEZ Rule was in error. 
While all EPA-approved trainings are in compliance with the WPS because 
they address the minimum requirements of the AEZ (40 CFR 170.501), 
after reevaluating the rule, EPA has determined that some of the 
trainings it has approved since 2018 only contain a partial set of the 
topics provided in guidance regarding best pesticide application 
practices near the borders of an establishment and on potential 
measures that can be used to prevent contact through drift (Refs. 4 
through 6). Therefore, the reliance on this inaccurate assumption 
provides

[[Page 80770]]

further reason to reinstate the 2015 WPS requirements regarding the 
applicability of AEZs off the establishment and within easements.

B. Goals of This Rulemaking

    With this final rule, EPA is restoring protections originally 
established in the 2015 WPS that were amended by the 2020 AEZ Rule. By 
reestablishing the AEZ distances from the 2015 WPS and reinstating the 
applicability of the AEZ off-establishment and in easements, the rule 
will protect the health of all who may be within the vicinity of an 
ongoing pesticide application. Since agricultural workers, their 
families, and communities living near agricultural establishments may 
represent populations of environmental justice concern, the rulemaking 
also supports EPA's broader efforts to reduce the disproportionate 
burden of pesticide exposure on certain communities. Reducing such 
disproportionate burdens was a goal of both the 2015 WPS and Executive 
Order 13990 (Refs. 3 and 7).
    EPA also seeks to improve the clarity of the AEZ regulation with 
this action. Hence, this rule retains the clarification from the 2020 
AEZ Rule that specifies that suspended applications may resume once no 
one is in the AEZ. As discussed in more depth in Unit V.E., that 
clarification will supersede EPA's previous interpretive guidance 
(``2016/2018 Guidance'') on resuming applications in situations where 
people off the agricultural establishment are in the AEZ (Refs. 4 
through 6). EPA anticipates that eliminating the 2016/2018 Guidance and 
relying instead on the plain language of the regulation will make the 
AEZ requirements clearer and support their implementation and 
enforcement.
    To further clarify the AEZ requirements, EPA is finalizing new 
amendments to the criteria used to define droplet sizes and thus to 
determine AEZ distances. The 2015 WPS used a VMD value of 294 microns 
to distinguish between ``fine'' and ``medium'' or larger droplets, and 
thus to determine whether the AEZ should be 25 or 100 feet. The 
specific VMD value was derived from the original version of the ASABE 
standard, which is often referenced in nozzle manufacturers' selection 
guides. However, the ASABE standard has been revised several times, and 
ASABE no longer defines ``medium'' by a single numerical VMD value, but 
rather by a range. Moreover, applicators in the field often determine 
droplet size by selecting the appropriate nozzle according to its ASABE 
rating. EPA is therefore finalizing its proposal to define droplet 
sizes as ``medium'' or larger by incorporating the ASABE standard 
itself. The ASABE standard is familiar to and well understood by the 
regulated community.
    Additionally, EPA aims with this rule to provide some regulatory 
relief for family-operated farms where it does not increase exposure 
risk to workers and bystanders. Therefore, this action finalizes the 
exemption for immediate family members under specific scenarios to 
remain within the AEZ, reducing management complexities for farming 
families.

III. Economic Analysis

A. 2015 WPS Baseline Assessment

    Since the 2020 AEZ Rule has not been implemented due to the court-
ordered stay discussed in Unit II.A.4., the 2015 WPS has continued to 
provide the operative regulatory language for the AEZ requirements 
during the current stay and any future extensions of the stay. 
Therefore, the Agency has determined that there will be no new impacts 
from the portions of this rule reinstating the 2015 WPS provisions that 
make the AEZ applicable beyond the boundaries of an agricultural 
establishment and within easements on the agricultural establishment.
    Additionally, this rule reinstates the 2015 WPS criteria and 
factors for determining AEZ distances at 40 CFR 170.405(a) for ground 
spray applications, except for language around VMD as a determining 
factor (see Unit IV.C.). The Agency does not anticipate any new costs 
or impacts due to reinstating this regulatory language since the 2015 
WPS remains in effect. Removing VMD from the AEZ criteria and instead 
using droplet size classifications (i.e., ``medium'' as defined by the 
ASABE; see Unit VII.) is expected to provide a clear, practical, and 
easy approach for determining AEZ and enclosed space distances. EPA 
anticipates that this revision will improve compliance with other AEZ 
requirements and make it easier to enforce these provisions by 
eliminating any need to determine whether an application is over or 
under the specified VMD of 294 microns, as required by the 2015 WPS.
    EPA is also maintaining certain revisions that were presented in 
the 2020 AEZ Rule, such as the provision that clarifies that pesticide 
applications that were suspended due to individuals entering an AEZ may 
be resumed after those individuals have left the AEZ, and the exemption 
that allows farm owners and members of their immediate family (as 
defined in 40 CFR 170.305) to shelter within closed structures within 
an AEZ during pesticide applications, provided that the owner has 
instructed the handlers that only the owner's immediate family are 
inside the closed shelter and that the application should proceed 
despite their presence (further described in Units IV.B.2. and V.F.). 
The revision that clarifies when suspended applications may resume 
better aligns with EPA's intent in the 2015 WPS. While this 
clarification does not result in any impacts compared to the intent of 
the 2015 WPS, it does nullify the 2016/2018 Guidance, the impacts of 
which are further described in Unit III.C.
    Finalizing an immediate family exemption means that owners and 
their immediate family members do not have to leave their homes that 
are within an AEZ if the doors and windows remain closed. By retaining 
the immediate family exemption, some applications will be simpler and 
less burdensome than the 2015 WPS since fewer applications would need 
to be suspended on family farms. The impact is likely small, as the 
change would only apply to immediate family members of the farm owner 
who are inside a structure and within the AEZ. These changes are 
consistent with the intent of the AEZ in the 2015 WPS, particularly 
with regard to the immediate family exemptions that are applicable to 
other portions of the 2015 WPS. Maintaining these clarifications and 
flexibilities provide some regulatory relief that was sought after 
promulgation of the 2015 WPS without increasing exposure risks to 
workers or bystanders.

B. 2020 AEZ Rule Baseline Assessment

    The 2020 AEZ Rule was initiated in response to feedback from 
members of the agricultural community, including the U.S. Department of 
Agriculture (USDA), State pesticide regulatory agencies, several 
agricultural interest groups, and a limited number of public comments. 
These comments raised concerns about the complexity and enforceability 
of the AEZ requirements after the 2015 WPS was promulgated. For the 
2020 AEZ Rule, EPA qualitatively described the benefit of the rule as a 
reduction in the complexity of applying a pesticide (Ref. 12). The 
benefits described were not monetary; revising the requirements would 
have reduced the complexity of arranging and conducting pesticide 
applications and enforcing the provisions. The benefits of the 2020 AEZ 
Rule would have resulted in some reduced management complexity both on 
and off establishment, because there would

[[Page 80771]]

have been fewer situations where the AEZ would have applied had the 
rule gone into effect (i.e., the AEZ would not have been applicable off 
the establishment or for individuals within an easement on the 
establishment). EPA did not discuss any costs, or increased risk from 
pesticide exposure, in the 2020 AEZ Rule's supporting documents due its 
reliance on the ``Do Not Contact'' requirement that establishes the 
responsibility of the applicator to prevent pesticides from contacting 
people either directly or through drift. This is in part because the 
``Do Not Contact'' provision (further described in Unit II.A.2.) is 
applicable in all situations, without limitations on distance or the 
individual's location respective to the application.
    Compared to the 2020 AEZ Rule, the changes in this rulemaking will 
result in the AEZ encompassing a greater area and applying in more 
situations. Had the 2020 AEZ Rule been implemented, the 2020 AEZ Rule 
would have applied only in situations where people can be directed by 
the owner of the establishment, while this rulemaking would apply in 
all situations, regardless of whether people may not be under the 
direction of the owner, such as individuals off the establishment or 
within easements. To effectively implement the changes in this rule 
compared to the 2020 AEZ Rule, owners and handlers may need to 
communicate more frequently with those nearby the establishment or 
within easements to ensure that nobody is within the AEZ and may 
require an application to be suspended or rescheduled. However, with 
the 2020 AEZ Rule as a baseline, the impact of these changes on 
agricultural establishments is likely to be small. Conversely, having 
the AEZ be applicable in all directions, regardless of whether an 
individual is on or off the establishment, may simplify applications in 
the sense that the handler does not need to apply different 
requirements to different situations.
    In addition, the 2020 AEZ Rule sought to establish a simplified 25-
foot AEZ for all ground-based spray applications above 12 inches, 
regardless of the droplet size. This rule reinstates the 2015 WPS 
criteria and factors for determining AEZ distances at 40 CFR 170.405(a) 
for ground spray applications, except for language around VMD as a 
determining factor (as further explained in Units IV.C. and V.C.). If 
the 2020 AEZ Rule had gone into effect, this action may have resulted 
in more complex application strategies because the different AEZ 
distances may have come into play more often and owners and handlers 
would have had to consider more carefully the various application and 
nozzle characteristics. However, restoring the droplet size criteria 
back to the 2015 WPS language (i.e., medium droplets as a threshold) 
results in increased protection from applications using fine sprays 
that are more susceptible to spray drift compared to the 2020 AEZ Rule. 
Additionally, EPA's decision to not reinstate VMD as a criterion and 
instead rely on the ASABE standard's definition of ``medium'' droplet 
size better reflects how applicators in the field determine droplet 
size (by selecting the appropriate nozzle according to its ASABE 
rating). The change should make it easier for applicators to understand 
the original requirements regarding how to achieve specific droplet 
classifications and how to implement the appropriate AEZ based on that 
information. As a result, the impact of these changes in droplet size 
criteria is expected to be small compared to the 2020 AEZ Rule.
    As previously noted, EPA is retaining certain changes made by the 
2020 AEZ Rule, such as the provision that clarifies that pesticide 
applications that were suspended due to individuals entering an AEZ may 
be resumed after those individuals have left the AEZ, and the exemption 
that allows farm owners and members of their immediate family (as 
defined in 40 CFR 170.305) to shelter within closed structures within 
an AEZ during pesticide applications, provided that the owner has 
instructed the handlers that only the owner's immediate family are 
inside the closed shelter and that the application should proceed 
despite their presence (further described in Units IV.B.2. and V.F.). 
These changes are consistent with the intent of the AEZ in the 2015 
WPS, particularly with regard to the immediate family exemptions that 
are applicable to other portions of the 2015 WPS. Retaining these 
clarifications and flexibilities in this rule provides some regulatory 
relief that was sought in the 2020 AEZ Rule without increasing exposure 
risks to workers or bystanders.
    Compared to the 2020 AEZ Rule, the requirements of this rule 
regarding individuals off the establishment and within easements are 
more protective of workers and bystanders when implemented rather than 
relying on the ``Do Not Contact'' requirement as the only protective 
measure when individuals are outside of the owner's control, as under 
the 2020 AEZ Rule.
    Public comments submitted to the docket during the 2015 WPS 
rulemaking included examples of incidents where workers were exposed to 
pesticide applications from neighboring establishments as well as from 
the establishment where they were working. EPA continues to receive 
reports of incidents like those provided in past comments, despite the 
``Do Not Contact'' requirement and the expectation that applicators and 
handlers must not spray pesticides in a manner that may result in 
contact with individuals. As noted in the 2015 WPS, out of 17 incidents 
identified in the comments, only one could have been prevented if the 
AEZ was limited to the boundaries of the agricultural establishment, as 
would have been established had the 2020 AEZ Rule gone into effect. 
EPA's analysis at the time indicated that the AEZ, if complied with, 
could have prevented at least four of the incidents reported in the 
2015 WPS comments, and possibly as many as 12, depending on the actual 
distances between the workers and application equipment (Ref. 3). While 
the Agency is unable to quantify the number of incidents that could be 
reduced by the AEZ, the AEZ requirements serve as an important 
supplement to the ``Do Not Contact'' requirements and are expected to 
reduce the total number of exposures if implemented correctly and 
consistently.

C. Additional Considerations for the Final Rule

    While this final rule does not impose additional requirements 
beyond what the 2015 WPS requires, stakeholders also requested that EPA 
codify 2016/2018 Guidance stating that applicators could resume 
applications when people off the establishment were in the AEZ, 
provided they first suspended the application and then evaluated the 
situation to ensure that no contact would occur (Refs. 4 through 6). 
While EPA determined not to codify the 2016/2018 Guidance (for reasons 
explained in Unit V.E.), stakeholders highlighted a potential burden to 
handlers: pesticide applications may be more difficult in areas where 
vehicles can pass through the AEZ. EPA considered but chose not to 
adopt an exception for some vehicles passing through an AEZ. An 
exception for some vehicles could create additional risks to vehicle 
occupants, as described in Units V.B. and V.E. There is no additional 
burden relative to the 2015 WPS in choosing not to adopt the exception, 
because the 2015 WPS contained no exception to the requirement to 
suspend the application when someone is in the AEZ (except for properly 
trained and equipped handlers involved in the application). The 2016/
2018 Guidance simply clarified when suspended applications could 
resume. Therefore, EPA concluded that the

[[Page 80772]]

benefits of including an exception for some vehicles were outweighed by 
potential risks to vehicle occupants passing through the AEZ. Although 
the exception would reduce the complexity of an application when some 
vehicles pass through an AEZ, the benefits are unlikely to be 
substantial in most cases.
    Under this final rule, as in the 2015 WPS, suspending an 
application is required when a vehicle enters the AEZ. A vehicle could 
only enter the AEZ when the field is adjacent to a road, a portion of 
the road is within the AEZ (after considering any ditches or turnrows 
between the field and the road), and a vehicle is passing through the 
AEZ during an application at the edge of the field nearest the road. In 
most cases, the burden could be managed by the applicator suspending 
the application as the vehicle approaches the AEZ and resuming the 
application once the vehicle has left the AEZ, which could increase the 
time to complete the task as an applicator would suspend and resume 
application. In many rural areas where heavy traffic is unlikely, cases 
of vehicles passing through the AEZ during an application may be 
infrequent. In some cases, such as when a heavily trafficked road is 
adjacent to an agricultural establishment, it may be difficult for the 
applicator to suspend and resume applications between passing vehicles. 
In these cases, applicators may be able to change the timing of 
application to a time when there is less traffic or alter the 
application in such a way as to have a smaller AEZ (i.e., choosing a 
product that allows larger droplet size, which might require changing 
the pesticide applied). If none of these approaches are feasible, the 
owner or handler could be unable to treat the area of the agricultural 
establishment bordering the road. Owners could use another, potentially 
less cost-effective pest control method in this area, cease pest 
control in this area, or stop production in the area entirely. The 
latter options could imply a substantial impact on the affected area of 
the field where a vehicle could pass through an AEZ. The relative 
impact will be larger on smaller or narrow fields that border a busy 
road, as a larger portion of the field would be affected. EPA is unable 
to quantify how many growers would be substantially affected 
considering that growers typically manage multiple fields, but 
substantial impacts to a farm as a whole are likely to be rare.

IV. Proposed Changes to the AEZ Requirements

    On March 13, 2023, EPA published a proposed rule (2023 Proposed 
Rule) that reconsidered the 2020 AEZ Rule requirements in response to 
Executive Order 13990 (Ref. 1). The Agency proposed to rescind three 
amendments from the 2020 AEZ Rule and reinstate the corresponding 
requirements from the 2015 WPS (see Unit IV.A.). The Agency also 
proposed three amendments to improve the clarity of the AEZ provisions 
and provide some regulatory relief to family-operated farms. Two of 
these amendments were provisions from the 2020 AEZ Rule that the Agency 
proposed to retain, as they do not increase risk for workers and 
bystanders (see Unit IV.B.). The third was a new provision to clarify 
the meaning of the ``medium'' droplet size (see Unit IV.C.). The 
proposed amendments are outlined in this unit.

A. Rescind Provisions From the 2020 AEZ Rule

    The Agency proposed to rescind the following amendments from the 
2020 AEZ Rule and reinstate the corresponding 2015 WPS Rule 
requirements.
1. The Area Where the AEZ Applies
    EPA proposed to revise the AEZ provision at 40 CFR 170.505(b) 
requiring that pesticide handlers ``suspend the application'' if a 
worker or other person (other than a trained and equipped handler) is 
in the AEZ. The 2020 AEZ Rule added a clause limiting the applicability 
of the suspension requirement to the agricultural employer's property, 
such that the AEZ would no longer cover bystanders on adjacent 
establishments. As a result, had the 2020 AEZ Rule gone into effect, it 
would have relied solely upon the ``Do Not Contact'' requirement in the 
WPS as the method of protecting people on adjacent properties. EPA 
proposed to reinstate the 2015 WPS regulatory text requiring pesticide 
handlers to suspend applications if any worker or other person, other 
than appropriately trained and equipped handlers involved in the 
application, enters an AEZ, regardless of whether those people are on 
or off the establishment. EPA also proposed to make conforming 
revisions to the handler training requirements at 40 CFR 
170.501(c)(3)(xi), and the exemptions at 40 CFR 170.601(a)(1)(vi) to 
reflect the applicability of the AEZ both on and off the establishment.
2. The Exception to Application Suspension Requirements for Property 
Easements
    EPA proposed to remove language from 40 CFR 170.405(a)(2)(ii) and 
170.505(b)(1)(ii) and (b)(2)(ii) that made the AEZ requirements 
inapplicable in easements. The 2020 AEZ Rule would have created an 
exception for agricultural employers and handlers, wherein they would 
not have been required to suspend pesticide applications if an 
individual not employed by the establishment was within an AEZ but in 
an area subject to an easement, where the agricultural employer may not 
be able to restrict entry. EPA proposed to reinstate the 2015 WPS 
regulatory text that requires pesticide handlers to suspend 
applications if any worker or other person, other than appropriately 
trained and equipped handlers involved in the application, enters an 
AEZ, regardless of whether they are in an area subject to an easement.
3. The Distances From the Application Equipment in Which Entry 
Restrictions Associated With Ongoing Pesticide Applications Apply
    EPA proposed to reinstate the 2015 WPS criteria and factors for 
determining AEZ distances at 40 CFR 170.405(a) for ground spray 
applications, except for language around a VMD as a determining factor 
(see Unit IV.C.). The 2020 AEZ Rule would have eliminated the criteria 
for determining the AEZ distances based on droplet size, establishing a 
single 25-foot AEZ for all ground-based spray applications made from a 
height greater than 12 inches from the soil surface or planting medium, 
irrespective of droplet size. EPA proposed to reinstate the 2015 WPS 
regulatory text, which specifies an AEZ distance of 100 feet for sprays 
using a spray quality (droplet spectrum) of smaller than medium, and a 
25-foot AEZ for ground applications sprayed from a height greater than 
12 inches from the soil surface or planting medium using a spray 
quality (droplet spectrum) of medium or larger.

B. Retain Provisions From the 2020 AEZ Rule

    EPA proposed to retain two provisions from the 2020 AEZ Rule that 
did not increase exposure risk to workers and bystanders. These 
provisions sought to improve the clarity of the AEZ requirements and to 
provide some regulatory relief for family-operated farms.
1. Clarification on When Suspended Applications Could Be Resumed
    In the 2020 AEZ Rule, EPA revised 40 CFR 170.505(b) to clarify that 
applications that had been suspended because individuals were in the 
AEZ could be resumed after those individuals had left the AEZ. EPA 
proposed to retain this revision.

[[Page 80773]]

2. Exemption Allowing Owners and Their Immediate Family To Remain 
Within the AEZ in Certain Scenarios
    EPA proposed to retain the immediate family exemption at 40 CFR 
170.601. In the 2020 AEZ Rule, EPA added an exemption that allows farm 
owners and members of their immediate family (as defined in 40 CFR 
170.305) to shelter within closed structures within an AEZ during 
pesticide applications, provided that the owner has instructed the 
handlers that only the owner's immediate family are inside the closed 
shelter and that the application should proceed despite their presence. 
The exemption also permits handlers to proceed with an application when 
owners or their immediate family members remain inside closed 
buildings, housing, and structures, provided that the owner has 
expressly instructed the handler that only the owner and/or their 
immediate family members remain inside the closed building and that the 
application can proceed despite the owner and their immediate family 
members' presence inside the closed building. It does not permit non-
family members to remain within the closed structure.

C. Replace the VMD Criteria With the ASABE Droplet Size Classification 
Standards

    In addition to rescinding and retaining the provisions from the 
2020 AEZ Rule discussed in Units IV.A. and IV.B., EPA proposed to 
incorporate the droplet size categories of all versions of the ASAE 
Standard 572 (S572) (Refs. 13 through 16) by reference in 40 CFR 
170.405, to give meaning to the ``medium'' droplet size criterion (for 
more information on the incorporation by reference, see Unit VII.). The 
2015 WPS used a VMD value of 294 microns to distinguish between fine 
spray applications and spray applications using medium or larger 
droplet sizes; this VMD value was the determining criterion for AEZ 
distances. The VMD criterion reflected an older version of S572, which 
used the value of 294 microns to define ``medium'' (Ref. 13). However, 
S572 has been revised several times (see Unit VII.; Refs. 14 through 
16). While the categorization of ``medium'' droplet sizes has remained 
largely constant, the specific VMD values that were the basis for the 
criteria in the 2015 WPS requirements have changed. Moreover, 
applicators in the field often determine droplet size by selecting the 
appropriate nozzle according to its S572 rating. EPA therefore proposed 
to replace VMD with an incorporation by reference to S572 for droplet 
size, which defines droplet size categories for the classification of 
spray nozzles, relative to specified reference fan nozzles. The S572 
classifications and categories are generally well understood by the 
regulated community and are referenced in several places, including on 
pesticide product labels as updated through EPA's Registration Review 
process, as well as in nozzle manufacturers' selection guides to assist 
applicators in determining which nozzles and spray characteristics will 
produce various droplet sizes that are consistent with the S572 
classifications.
    To maintain consistency in the requirements between outdoor 
production applications and applications associated with enclosed space 
production, EPA also proposed to remove VMD as a criterion for entry 
restriction distances during enclosed space production pesticide 
applications, instead using the same droplet size standards as those 
used for outdoor production.

V. Public Comments and EPA Responses

    The public comment period for the 2023 Proposed Rule closed on May 
13, 2023. EPA received feedback from 25 commenters (28 submissions 
total) specific to the 2023 Proposed Rule. USDA submitted additional 
comments during the public comment period. Some of the 25 comments 
discussed the AEZ as a general principle while others focused on 
specific requirements.

A. General Comments on the AEZ

1. Comments
    Several agricultural business stakeholders, as well as State lead 
agencies represented by the National Association of State Departments 
of Agriculture (NASDA), expressed general opposition to the AEZ 
requirements, characterizing them as complex, burdensome for growers 
and handlers, and duplicative of existing protections (e.g., label 
requirements and ``Do Not Contact''). They stated that the need for the 
AEZ is not supported by incident data.
    Several farmworker advocacy organizations, along with numerous 
State Attorneys General and one State lead agency commented that the 
AEZ is necessary to protect human health, including that of 
farmworkers, bystanders, and surrounding communities. They 
characterized the AEZ as consistent with EPA's responsibilities under 
FIFRA, as well as EPA policies and principles of environmental justice 
and children's health. To support their statements, commenters cited 
studies, incident data, and anecdotal evidence of pesticide exposures 
to workers and bystanders beyond that which EPA considered for the 2015 
WPS. One commenter presented a series of photographs and maps 
demonstrating the proximity of agricultural fields to schools and 
playgrounds. Commenters also noted that pesticide exposure incidents 
are underreported.
2. Response
    EPA disagrees with commenters who suggested that the AEZ 
requirements are duplicative or unjustified by incident data. The 
Agency considers the AEZ necessary to address incidents of contact from 
agricultural pesticide applications. As EPA determined during its 
analysis for the 2015 WPS, ``Do Not Contact,'' on its own, has been 
insufficient to protect workers and bystanders; handlers require a 
guideline (Ref. 3). Although EPA published amendments to the AEZ 
requirements in 2020, the Agency maintained that some sort of guideline 
is necessary. Furthermore, commenters on this action and the proposal 
that was finalized as the 2020 AEZ Rule (2019 Proposed Rule) identified 
several incidents that might have been prevented by correct 
implementation of the AEZ requirements. EPA's review of data from the 
Sentinel Event Notification System for Occupational Risks-Pesticides 
(SENSOR-pesticides), the National Pesticide Information Center (NPIC), 
EPA's Incident Data System, and State surveillance systems identified 
others, including incidents in the years after the AEZ requirements 
went into effect and incidents involving sensitive populations (Refs. 
17 through 20). For example, in June 2023, after the public comment 
period for the 2023 Proposed Rule closed, 12 workers in Oregon appear 
to have been exposed to an application less than 25 feet from a tractor 
applying pesticides in a neighboring field (Ref. 19). Of the 12 
workers, 10 had adverse health effects and one was hospitalized. 
Similarly, in California in 2016, 2018, and 2019, State surveillance 
data captured incidents of agricultural pesticides contacting passing 
school buses (Ref. 18). While much incident data lacks specific details 
about the distance to application equipment, it supports the need for 
handlers to be aware of their surroundings and suspend applications 
when workers and bystanders are nearby; in other words, it supports the 
general approach of the AEZ requirements. Moreover, EPA agrees with 
commenters that exposure

[[Page 80774]]

incidents are underreported. As described in the economic analysis for 
the 2015 WPS, health care providers may not always report incidents of 
pesticide exposure because there is no universal reporting requirement 
or central reporting point (Ref. 21). In addition to these barriers for 
health care providers, EPA acknowledges that the literacy, language, 
legal, economic, and immigration status of agricultural workers creates 
challenges for those who wish to access the health care that would be a 
primary route for reporting pesticide incidents. Due to underreporting 
and limitations in the information collected, there may have been 
incidents supporting the need for an AEZ that pesticide surveillance 
systems did not capture. While the Agency is unable to quantify the 
number of incidents that may have been prevented by correct 
implementation of the AEZ requirements, the information from incidents 
that EPA has reviewed and the Agency's understanding of factors 
contributing to underreporting generally support the necessity of an 
AEZ as an additional administrative control measure for handlers in 
support of protecting public health.
    EPA agrees with commenters that the AEZ is consistent with its 
obligations under FIFRA, Agency policy, and executive orders on 
environmental justice and children's health (Refs. 7, 22 and 23). EPA's 
analysis of the 2015 WPS showed that the regulation would reduce risks 
that fall disproportionately on populations of environmental justice 
concern, such as workers, handlers, and their families and nearby 
communities. EPA reexamined the 2020 AEZ Rule in accordance with 
Executive Order 13990, which identifies environmental justice as an 
Administration priority, and found that the 2020 AEZ Rule reduced key 
protections established by the 2015 WPS (Ref. 7). Therefore, EPA is 
finalizing this rule to reinstate those provisions and restore 
protections. Similarly, although this action is not expected to have a 
disproportionate impact on children, EPA is persuaded by the specific 
examples that commenters provided, as well as its own findings from 
incident data, that the AEZ could reduce the potential for children to 
be exposed to pesticides.

B. Area Where the AEZ Is Applicable and Exception for Easements

1. Proposed Rule
    EPA proposed to reinstate the 2015 WPS regulatory text requiring 
pesticide handlers to suspend applications if any worker or other 
person, other than appropriately trained and equipped handlers involved 
in the application, enters an AEZ, regardless of whether they are on or 
off the establishment or in an area subject to an easement.
2. Final rule
    EPA has finalized as proposed the area where the AEZ requirements 
are applicable, and removed the exception for easements that would have 
been established under the 2020 AEZ Rule.
3. Comments
    Several Attorneys General, farmworker advocacy organizations, a 
State lead agency, and two members of the public commented in support 
of the proposal to reinstate the applicability of the AEZ requirements 
off-establishment and in easements. These commenters stated that the 
AEZ must extend off-establishment to protect the health of farmworkers, 
farmworker families, and surrounding communities, since pesticide drift 
does not automatically stop at the establishment boundaries. Similarly, 
one organization and several Attorneys General noted that the proposal 
to reinstate the applicability of AEZ requirements in easements 
protects essential utility and postal workers, among others.
    Commenters in support of reinstating this requirement cited 
studies, incident data, and anecdotes from both before and after the 
2015 WPS rulemaking to demonstrate that people near agricultural 
establishments, not just on them, are at risk from pesticide exposure. 
Children and populations of environmental justice concern may live or 
spend time near agricultural fields (for example, in migrant farmworker 
housing or childcare centers). Therefore, commenters also suggested 
that requiring AEZ protections to extend off the establishment and into 
easements is consistent with executive orders, EPA policies, and 
general principles of children's health and environmental justice.
    One commenter noted that the ``Do Not Contact'' requirement does 
not stop at the establishment boundaries. They suggested that the 
applicability of the AEZ requirements off-establishment supports ``Do 
Not Contact'' and would improve compliance.
    NASDA and several agricultural business stakeholders opposed 
requiring AEZs to be applicable in all areas near an ongoing 
application, including off the establishment and in easements. Many of 
these commenters noted that establishment owners, agricultural 
employers, and handlers cannot control the movement of people off-
establishment or in easements, and that pesticide applications are 
time-sensitive. They suggested that the requirement to suspend for 
individuals within an AEZ off the establishment could delay 
applications until the optimal application time had passed, resulting 
in less effective applications and lost yield. Similarly, one commenter 
suggested that off-establishment AEZ requirements could restrict access 
to farm roads and facilities for long periods, disrupting local 
economies. These commenters indicated that the requirements would 
particularly affect fields with easements, fields bordering roads and 
houses, and aerial applications.
    Some commenters suggested that off-establishment AEZ requirements 
could result not only in delayed applications but also in permanent 
setbacks. USDA, agricultural business stakeholders, and a member of the 
public suggested that owners might choose to leave parts of their land 
unsprayed rather than repeatedly suspend the application. They 
identified fields bordering busy roads, fields bordering housing, and 
areas with limited visibility (such as orchards) as situations where 
setbacks might be more likely. Setbacks would lead to lost yield. 
Commenters stated that the impact of leaving land unused would be 
greatest for smaller farms.
    Several agricultural business stakeholders raised legal concerns 
with the applicability of the AEZ off-establishment. Two commenters 
suggested that owners, employers, and handlers who attempted to 
restrict entry to or activities on areas not on their property but 
within the AEZ could face legal liability. Another commenter expressed 
the same concern over easements, noting that easements grant a right of 
access to certain parties.
    While not opposing the applicability of the AEZ off-establishment 
or in easements, one State lead agency noted that handlers may struggle 
to make determinations about whether people are in the AEZ when the AEZ 
extends past the property line. They encouraged EPA to hold the 
agricultural employer or a licensed applicator responsible for 
implementation of this provision.
    Several commenters discussed how AEZ requirements that apply off-
establishment will affect communication among handlers and others in 
agricultural areas. USDA expressed concern that handlers would have to 
engage in burdensome communication with people off-establishment, while 
two advocacy organizations suggested that extending AEZ requirements 
off-establishment would encourage positive, proactive communication 
among neighbors about upcoming applications.

[[Page 80775]]

4. Response
    EPA agrees with commenters who assert it is necessary for the AEZ 
requirements to apply off-establishment and in easements to protect 
human health, including that of communities of environmental justice 
concern (such as workers, handlers, and their families) and sensitive 
populations, such as children. As noted in the preamble to the 2015 
WPS, out of 17 incidents of pesticide exposure identified in the 
comments, only one could have been prevented if the AEZ were limited to 
the boundaries of the agricultural establishment. EPA's analysis 
indicated that the AEZ could have prevented at least four of the 
incidents reported in the comments on the 2015 WPS, and possibly as 
many as 12 (Ref. 3).
    EPA also agrees with commenters who state that for the AEZ 
requirements to effectively supplement the ``Do Not Contact'' 
provision, the AEZ must extend beyond the boundary of the establishment 
as the ``Do Not Contact'' provision does. The AEZ regulation provides 
an additional requirement for handlers such that their applications do 
not contact people either directly or through drift. That requirement 
should be equally useful to handlers complying with ``Do Not Contact'' 
whether the AEZ is on- or off-establishment. Incident data from NPIC, 
SENSOR-pesticides, State surveillance, and EPA's incident data system 
suggests generally that the need for this requirement is ongoing (Refs. 
17 through 20). For example, pesticide surveillance systems continue to 
capture exposure incidents involving people on off-establishment roads, 
such as the incidents involving contact to school buses referenced in 
Unit V.A.2. EPA found examples of incidents involving contact to people 
on roads even after the AEZ went into effect. For instance, in 2018, 
Washington State surveillance captured an incident in which a man 
driving to work was contacted by an airblast application 30 to 40 feet 
away (Ref. 20). This incident and the school bus incidents referenced 
above are meant to serve only as examples, not to establish trends; but 
they provide additional support for EPA's finding in the 2015 WPS that 
the AEZ is necessary to supplement ``Do Not Contact'' beyond the 
boundary of the establishment.
    EPA disagrees with commenters who suggested that AEZ requirements 
applicable beyond the boundary of the establishment and in easements 
are equivalent to permanent setbacks in all or even most cases. There 
are several means by which agricultural employers and handlers can 
limit the need to suspend their applications due to the movement of 
people off-establishment and in easements. They may choose to adjust 
the type of pesticide application such that the AEZ is only 25 feet, 
selecting a product that allows for medium or coarser droplets. 
Alternatively, employers and handlers may choose to provide advanced 
notification of planned applications to ensure no one is in the AEZ or 
choose to complete the application at a time when there are fewer 
people present in the area (although the requirement to suspend an 
application if people are in the AEZ remains). Moreover, as discussed 
in further detail in Unit III.C., these alternatives are likely only 
necessary in select, infrequent circumstances.
    In the same way, EPA is not persuaded that the applicability of the 
AEZ requirements off-establishment and in easements causes unreasonable 
delays to applications, restricts access to farm facilities for long 
periods of time, or places an undue burden of communication on owners, 
employers, and handlers. The AEZ moves with the application equipment 
and exists only while the application is ongoing. As discussed in Unit 
III.B., EPA anticipates that the economic impacts of the requirements 
off-establishment and in easements are likely small in most cases, even 
as compared to the 2020 AEZ Rule. Furthermore, the ``Do Not Contact'' 
requirement has always been applicable beyond the boundary of the 
establishment, so the AEZ requirement adds minimal (if any) burden to 
what was already required in many situations before 2015. Owners, 
employers, and handlers can also reduce any potential disruption to the 
application by adjusting application type or timing or by providing 
advance notification, as discussed in the previous paragraph.
    Commenters' concerns that the AEZ puts owners, employers, and 
handlers in legal jeopardy by forcing them to restrict access to or 
activities on others' property appear to reflect a misunderstanding of 
the AEZ requirements. The AEZ does not require that owners, employers, 
or handlers restrict access to others' property. The ``keep out'' 
requirement at 170.405(a)(2) (where the agricultural employer is 
prohibited from allowing or directing any worker or other person to 
enter or remain in the AEZ,) is only applicable on the agricultural 
establishment and within the boundaries of the AEZ or treated area. 
Similarly, the AEZ does not force owners, employers, or handlers to 
control the activities of people off-establishment. If someone is in 
the AEZ off-establishment (for example, if a neighbor pulls into their 
home's driveway and into the AEZ), the requirement is for the handler 
to suspend the application until the person leaves the AEZ. Therefore, 
EPA is not placing an affirmative duty on agricultural establishment 
owners or handlers to restrict the movement of people outside the 
boundaries of the agricultural establishment or creating potential 
legal liability for owners or handlers.
    Similarly, EPA is not persuaded by comments stating that the AEZ 
requirements put agricultural employers in legal jeopardy by forcing 
them to restrict access to easements on the agricultural establishment. 
If an AEZ overlaps with part of an easement on the agricultural 
establishment, the agricultural employer is required to ensure that no 
one enters that AEZ; however, they are not required to keep people out 
of the easement entirely. As the AEZ exists only immediately around the 
application equipment and during the application, any limitations to 
easement access would be small in scope and temporary. Furthermore, if 
someone in an easement were within the AEZ, the handler would only have 
to suspend the application to comply with the AEZ requirements. 
Therefore, EPA is not placing an affirmative duty on handlers or owners 
to control the actions of persons in easements and in turn, is not 
creating potential legal liability for owners or handlers in extending 
the AEZ into easements.
    Overall, EPA maintains that even if the AEZ provisions cause minor 
disruption to agricultural operations or necessitate some additional 
communication, the benefits of the AEZ extending to workers and 
bystanders off-establishment outweigh the burden on the regulated 
community. Continued reports of incidents since the 2015 WPS went into 
effect highlight the need for compliance with the AEZ requirements to 
protect human health. As discussed in Unit III.B., EPA anticipates that 
the applicability of the AEZ requirements off-establishment and in 
easements will likely have only a small impact in most cases as 
compared to the 2020 AEZ Rule. Furthermore, EPA reiterates that the 
requirements to suspend the application for individuals off-
establishment and in easements have been in place since the 2015 WPS 
and thus do not represent new costs for the regulated community.
    With respect to the comment stating that handlers may struggle to 
determine whether people are in the AEZ when it extends off-
establishment, the Agency reiterates that handlers already bear 
responsibility under the WPS for

[[Page 80776]]

ensuring that pesticides do not contact people beyond the boundaries of 
the establishment. The AEZ indicates how to avoid contact, setting 
minimum required distances for suspending the application. However, it 
should also be noted that there is no restriction in the rule limiting 
responsibility to the handler. The decision to hold liable the owner of 
the establishment or a certified applicator is made on a case-by-case 
basis.
    EPA plans to issue guidance to support establishment owners, 
agricultural employers, and handlers in complying with AEZ requirements 
related to applications near the boundaries of the establishment and 
easements. In this compliance assistance guidance, EPA will consider 
including suggestions on communication, as well as strategies that 
limit the need for such communication (e.g., changing the path or 
timing of the application).

C. Distance Requirements and Replacing the VMD Criteria With the ASABE 
Droplet Size Classification Standards

1. Proposed Rule
    EPA proposed to reinstate the 2015 WPS regulatory text, which 
specifies a distance of 100 feet for sprays using a spray quality of 
smaller than medium, and a 25-foot AEZ for ground applications sprayed 
from a height greater than 12 inches from the soil surface or planting 
medium using a spray quality of medium or larger.
    EPA also proposed to replace the VMD criteria with the ASABE 
droplet size classification standards, for both indoor and outdoor 
production (Refs. 13 through 16).
2. Final Rule
    EPA has finalized as proposed the AEZ distances and droplet size 
criteria. EPA has finalized its proposal to replace VMD criteria with 
the ASABE droplet size classification standard, as proposed, for both 
indoor and outdoor production.
3. Comments
    Several agricultural business stakeholders opposed the AEZ 
distances in the 2023 Proposed Rule, as well as the use of droplet size 
as the criterion to determine the size of the AEZ. These commenters 
advocated for the use of product-specific distances, as EPA has 
established for pesticides that require buffer zones; or for the use of 
factors besides droplet size to control drift, such as spray pressure, 
wind direction, and wind speed.
    Some farmworker advocacy organizations, though generally supportive 
of the 2023 Proposed Rule, questioned whether the size of the AEZ is 
sufficiently protective of human health. These stakeholders cited 
studies and State incident data that found drift from airblast 
applications at distances greater than 100 feet, as well as anecdotal 
reports of continued exposures.
    Other farmworker advocacy organizations, as well as several 
Attorneys General, commented in support of the AEZ distance 
requirements in the 2023 Proposed Rule, stating that they are necessary 
to protect human health. One commenter cited anecdotes, enforcement 
cases, and incident data of farmworkers and community members within 
100 feet of an ongoing application who were contacted by pesticides. 
Several commenters referenced studies demonstrating that smaller 
droplets drift farther than larger ones, reasoning that finer-droplet 
sprays require larger AEZs.
    Two farmworker advocacy organizations also commented in support of 
using the ASABE standards for droplet size to determine the size of the 
AEZ. They remarked that the ASABE standards are well understood by the 
regulated community because they are used to rate spray nozzles, which 
could reduce the complexity of implementing the rule and improve 
compliance. A farm bureau also expressed support for use of the ASABE 
standards, though opposing the distance requirements. Another 
farmworker advocacy organization noted that the ASABE standards are not 
well understood by farmworkers and asked that this information be 
provided to workers in a language they understand.
4. Response
    While EPA appreciates the data and studies cited by commenters, the 
Agency has determined that re-establishing the AEZ distances from the 
2015 WPS is the best approach.
    Studies cited in response to this action and in response to the 
2020 AEZ Rule (Refs. 24 through 28), as well as information contained 
in the administrative record for the 2015 WPS rule, show that pesticide 
applications using sprays with droplets smaller than medium are prone 
to drift greater than 25 feet. Therefore, EPA has determined that a 
100-foot AEZ for sprays with droplets smaller than medium is needed to 
protect workers or bystanders near these fine-spray applications.
    With respect to comments urging an AEZ distance of greater than 100 
feet for certain application types, EPA notes, firstly, that the WPS 
does not function in isolation. The AEZ is intended to serve as a 
baseline protection measure when product labels do not provide greater 
protections. When labels are more protective, they take precedence. For 
example, rather than the AEZ, which exists only during the application, 
soil fumigants may have label-mandated buffer zones that begin during 
the application and remain after the application has concluded. These 
buffers may be up to half a mile wide. In this way, EPA already 
supplements the AEZ distances with product label-specific instructions 
in cases where there is a particular, increased risk.
    Second, in this rulemaking, EPA reconsidered AEZ distances only 
with respect to application type. To reconsider the distances 
themselves would require a new evaluation of the human health and 
economic impacts of the AEZ requirements, as well as their 
enforceability. EPA finds the current human health and economic impacts 
analyses detailed in this final rule to be sufficient for establishing 
AEZ distances. Finally, the 100-foot distance is familiar to 
stakeholders, having been the operative AEZ distance for certain 
applications since 2015. This distance is also consistent with previous 
protective distances for nursery production under the 1992 WPS (Ref. 
8). Familiarity and consistency aid compliance.
    Though EPA appreciates that some commenters have considered the 
range of techniques available to reduce drift, the Agency is similarly 
not persuaded by commenters' request for further product- or 
application-specific protections in lieu of the AEZ. As discussed 
above, the WPS and labeling requirements work in tandem: the WPS is a 
more general, uniform set of standards for pesticide safety while the 
labeling requirements provide more tailored protections based on the 
specifics of each chemical and application method. A uniform AEZ is 
consistent with that approach. Moreover, while EPA is aware of the many 
methods and technologies to reduce drift, it agrees with one State lead 
agency's comment that not all pesticide handlers are highly trained and 
equipped certified applicators. There is need for a supplement to ``Do 
Not Contact'' that serves all handlers, regardless of training or 
experience.
    EPA agrees with commenters who asserted the ASABE standards are 
well understood by regulated community. EPA believes that the 
incorporation of the ASABE standard into the rule will allow handlers 
to quickly and easily determine AEZ size, reducing the complexity of 
implementation, since the

[[Page 80777]]

standard is often referenced in nozzle manufacturers' selection guides. 
EPA also anticipates that this revision will improve compliance with 
other AEZ requirements and make it easier to enforce these provisions 
by eliminating any need to determine the VMD.
    In developing its compliance assistance guidance, EPA will consider 
providing clarity around the ASABE droplet size standard as needed.

D. Clarification on Resuming Suspended Applications

1. Proposed Rule
    In the 2020 AEZ Rule, EPA added text clarifying that applications 
that had been suspended because individuals were in the AEZ could be 
resumed after those individuals had left the AEZ. EPA proposed to 
retain the clarification under this action.
2. Final Rule
    EPA has finalized as proposed the clarification on resuming 
applications.
3. Comments
    NASDA, agricultural business stakeholders, and several farmworker 
advocacy stakeholders supported the proposal to clarify when suspended 
applications could resume. Commenters agreed that the language provides 
necessary clarity. A farmworker advocacy organization suggested that by 
providing certainty to handlers, the clarification would improve 
compliance with ``Do Not Contact.'' NASDA qualified its support, 
indicating that the clarification should only apply on-establishment.
    While not opposing this provision, one State lead agency noted that 
pesticide handlers may not be certified applicators or even native 
English speakers. As such, handlers may not have language skills to ask 
bystanders to leave the AEZ so that the application can resume or the 
training to adjust the application path. The State agency recommended 
that the rule be further clarified so that an employer or certified 
applicator is held responsible for resuming applications.
4. Response
    Although EPA always intended for suspended applications to resume 
once persons have left the AEZ, EPA agrees with commenters that the 
regulation is clearer when this is made explicit. EPA hopes that the 
provision also improves compliance. EPA disagrees that the 
clarification should only apply to applications within the agricultural 
establishment's boundaries, for the reasons outlined in Unit V.B.
    While EPA recognizes the comment stating that handlers are not 
always certified applicators or native English speakers, the Agency 
believes that all handlers should have the skills necessary to suspend 
the application when people enter the AEZ and resume it after they 
leave. Handlers already bear responsibility under the WPS for ensuring 
that pesticides do not contact people; the AEZ complements 
implementation of the ``Do Not Contact'' provision by providing a 
minimum distance at which they must suspend the application.
    It should be noted that there is no restriction in the rule 
limiting responsibility to the handler. The decision to hold liable the 
owner of the establishment or a certified applicator are made on a 
case-by-case basis. In its compliance assistance guidance, EPA will 
consider including best practices to support agricultural employers and 
various handlers with the new clarification on resuming applications.

E. EPA's 2016/2018 Guidance on Resuming Suspended Applications

1. Proposed Rule
    In Units II.B.3. and II.C.3. of the 2023 Proposed Rule, EPA 
requested input on the adequacy of procedures laid out in previous 
interpretive guidance documents (two from 2016 and one from 2018) for 
resuming applications in situations where the AEZ extends off-
establishment or into easements (Refs. 4 through 6). These procedures 
allow pesticide handlers to resume applications when people off-
establishment or in easements are in the AEZ, provided handlers first 
suspend the application and then evaluate conditions to ensure there 
will be no contact. The 2016/2018 Guidance provides a number of best 
application practices handlers could use to evaluate conditions, 
ranging anywhere from asking people to move from the AEZ until the 
application equipment has moved on to assessing wind direction and 
other weather conditions to determine that the application will not 
blow toward bystanders. Because the 2023 Proposed Rule specifies that 
applications (whether on- or off-establishment) can only resume once 
people have left the AEZ, it nullifies the 2016/2018 Guidance.
2. Final Rule
    EPA has finalized as proposed the clarification regarding when 
suspended applications may resume. Procedures from EPA's 2016/2018 
Guidance are nullified by this action.
3. Comments
    USDA and agricultural business stakeholders commented in support of 
the procedures from the 2016/2018 Guidance, maintaining that they 
accommodate economic and logistical needs without posing additional 
risk to workers and bystanders. Commenters suggested that, if 
applicators were not able to resume applications as indicated in the 
2016/2018 Guidance, applications along busy roads and near houses or 
farm facilities would be frequently disrupted. Additionally, USDA 
described difficulties for ground-based applicators in orchards or 
vineyards even with the flexibilities of the 2016/2018 Guidance. If 
visibility is poor, these handlers ``might not even see people passing 
[off-establishment] who are within the AEZ and would only have the 
option to make applications under conditions that ensure no pesticide 
contact.''
    USDA suggested that, in the absence of the 2016/2018 Guidance, 
establishment owners would be forced to set back from their property 
lines, foregoing part of their yield. They laid out a hypothetical 
estimating the potential impact of 50-foot setbacks on an agricultural 
operation. USDA also noted that guidance does not have the force of 
regulation and can be inconsistently enforced, or else revoked. To 
prevent potential losses and avoid inconsistencies, USDA suggested 
codifying language similar to the 2016/2018 Guidance in this rule that 
permits handlers to resume applications after they have evaluated and 
determined that people outside of the establishment's boundaries will 
not be contacted by the pesticide application, either directly or 
through drift.
    A farmworker advocacy organization commented in opposition to the 
procedures from the 2016/2018 Guidance, stating that they posed an 
unreasonable risk to bystanders. This commenter suggested that the 
2016/2018 Guidance contradicts the common-sense interpretation of the 
requirement that applications must be suspended when ``any worker or 
other person . . . is in'' the AEZ. They also noted that the 2016/2018 
Guidance procedures rely heavily on the discretion of the handler; 
under the 2016/2018 Guidance, the handler determines case by case 
whether contact will occur, how to prevent contact, and when it was 
safe to resume the application. In contrast, if the handler could not 
resume the application until people have left the AEZ, regardless of 
whether they were on- or off-establishment, the only determination they 
had to make was

[[Page 80778]]

whether people were within 25 or 100 feet. Referencing EPA's analysis 
from the 2015 WPS and decision to supplement ``Do Not Contact'' with an 
AEZ, the commenter maintained that there is a need to simplify 
handlers' decision-making, rather than rely exclusively on their 
judgment; and that allowing handlers broad discretion increases the 
risk of bystander exposure.
    Similarly, the State lead agency noted that pesticide handlers are 
not always highly trained certified applicators. As a result, some 
handlers may not have the skills to evaluate whether environmental 
conditions allow them to safely resume applications, or the knowledge 
to choose an appropriate drift-reduction technology. The commenter 
proposed that the employer or a certified applicator be held 
responsible for determining when to resume applications.
4. Response
    Comments revealed a number of limitations to the 2016/2018 Guidance 
that EPA had not previously considered. First, rather than provide the 
intended clarity, the 2016/2018 Guidance introduced ambiguity into the 
AEZ and opened the door to inconsistent interpretation and enforcement 
of the AEZ requirements. Codifying the procedures would continue this 
ambiguity. The ``evaluation'' step is open-ended, with any number of 
methodologies that could be used to determine whether an application 
can resume. The lack of specificity could again lead to complexity and 
inconsistencies in implementation and enforcement across states.
    Second, as one commenter noted, the procedures outlined in the 
2016/2018 Guidance relied extensively on handlers' discretion and 
involve a more complex assessment beyond what the current AEZ 
provisions require. While judgments may be made with the benefit of 
extensive training and advanced technology, EPA agrees with the State 
lead agency's comment, which noted that not all handlers are certified 
applicators. The open-ended ``evaluation'' step is inconsistent with 
the AEZ's purpose: to serve as a uniform guideline for all types of 
handlers. Incident data continues to suggest that there is a need to 
supplement ``Do Not Contact'' in a way that relies less on handler 
discretion. For example, under the 2016/2018 Guidance a handler might 
evaluate and determine that they can safely resume an application 
despite the presence of a passing car, believing that people inside a 
car are safe from contact. Yet pesticide surveillance data has captured 
any number of ways in which people inside moving vehicles may be 
contacted by pesticides: via open windows, open sunroofs, and through 
the vehicle's ventilation system. In California in 2018, for instance, 
a student in a school bus was contacted by foam from an airblast 
application, which drifted through the open window (Ref. 18). While it 
is uncertain whether correct implementation of the AEZ requirements and 
2016/2018 Guidance would have prevented the incident, it illustrates a 
scenario in which relying on the discretion of a handler could increase 
the human health risk of the application.
    Finally, in light of comments, EPA believes that the 2016/2018 
Guidance procedures do not necessarily reduce logistical burdens in the 
ways originally thought or as commenters described, if implemented 
correctly. The 2016/2018 Guidance did not create an exception to the 
2015 WPS suspension requirement; the procedures outlined in guidance 
only describe when handlers can resume applications after they first 
suspend them and then evaluate the situation to ensure there will be no 
contact. In the case of a property bounded by an off-establishment 
road, the handler would still have to suspend the application when a 
vehicle enters the AEZ. If a handler is unable to suspend in time 
because visibility is poor or because cars pass through the AEZ too 
quickly, they would not have been consistent with the 2016/2018 
Guidance procedures even if they had evaluated the situation before 
beginning application and determined no contact would occur. While the 
2016/2018 Guidance may have reduced some logistical burdens, it did not 
allow applications near establishment boundaries to proceed entirely 
unimpeded. Thus, upon further consideration, EPA does not believe 
correct implementation of the 2016/2018 Guidance would result in 
substantial benefit. Moreover, with regard to concerns about ground-
based applicators, EPA notes that irrespective of the AEZ requirements 
and any associated guidance, handlers are always required under the 
2015 WPS to ensure that pesticide applications are made under 
conditions that ensure no contact.

F. Exemption Allowing Owners and Their Immediate Family To Remain 
Within the AEZ in Certain Scenarios, and Other Comments on Pesticide 
Applications Near Housing

1. Proposed Rule
    EPA proposed to include an immediate family exemption for certain 
AEZ scenarios. Specifically, EPA proposed to allow owners and their 
immediate family members to remain inside closed houses or structures 
in the AEZ during pesticide applications. The exemption also permits 
handlers to proceed with an application under these circumstances, 
provided that the owner has communicated certain information 
beforehand.
2. Final Rule
    EPA has finalized the exemption for owners and their immediate 
family members, as proposed.
3. Comments
    Agricultural business stakeholders discussed logistical and 
financial difficulties for owners and handlers when housing lies within 
the AEZ. They described delays in farming operations if immediate 
family members were forced to leave the house during applications on 
their property. One farm bureau also noted the potential for delays 
stemming from houses located off-establishment less than 100 feet from 
the property line. This commenter noted that local regulations may not 
always require houses to be built farther away, and that it can be 
difficult for a handler to determine whether off-establishment houses 
are occupied.
    As a result, NASDA and agricultural business stakeholders, as well 
as one advocacy organization, commented in favor of the immediate 
family exemption. These commenters noted that the exemption provides 
flexibility for farming families and reduces delays in applications.
    Farmworker advocacy organizations discussed the potential human 
health risks associated with pesticide applications near farmworker 
housing. Commenters cited studies and anecdotal evidence of the poor 
quality of farmworker housing; houses may not be fully sealed to the 
outdoors, and cooking and laundry facilities may be open-air. These 
commenters suggested that the AEZ requirements do not account 
sufficiently for the risk of drift into houses or the risk of post-
application exposure. In response, three organizations recommended that 
the AEZ be enforced as a buffer zone around employer-provided housing. 
One proposed an advanced notification requirement when housing will 
fall into the AEZ, so that residents can proactively take in laundry 
and cover cooking facilities.
    Several commenters also elaborated on the logistical and financial 
difficulties that people who live near agricultural establishments face 
when housing falls in the AEZ, suggesting that

[[Page 80779]]

families may be forced to relocate for long periods, and even 
overnight, due to ongoing pesticide applications. In response, one 
commenter suggested that applications near housing be restricted to 
certain times of day.
    Two farmworker advocacy organizations stated that they did not 
oppose the exemption or took no position on it. One of these commenters 
recommended that owners clarify for handlers that the immediate family 
exemption does not apply to labor housing.
4. Response
    EPA agrees with comments in support of the immediate family 
exemption that suggested that the immediate family exemption will make 
some pesticide applications on family farms simpler and less 
burdensome. As stated in the 2023 Proposed Rule, EPA anticipates that 
owners will take appropriate steps to protect their family members in 
the AEZ; thus, the exemption provides flexibility at minimal risk to 
human health and without compromising the health of workers and non-
family bystanders. As commenters requested, EPA plans to issue 
compliance assistance guidance. In this guidance, EPA will consider 
including best practices on communications between establishment owners 
and handlers to support the implementation of the immediate family 
exemption.
    EPA agrees with commenters who cited studies demonstrating that the 
quality of housing in agricultural communities is variable (see, e.g., 
Refs. 29 through 32). Thus, EPA has limited housing-related exceptions 
to owners of agricultural establishments and immediate family members 
in enclosed structures on the establishment, as proposed. In the case 
of on-establishment structures occupied by the owner and their 
immediate family, the owner is likely to know about major physical 
deficiencies and whether the structure is sufficiently enclosed (for 
example, free from leaks and broken windows) to protect family members 
inside. In contrast, an establishment owner will have less insight into 
the quality of off-establishment housing.
    EPA acknowledges commenters' concerns over pesticide applications 
near housing. EPA believes many of these commenters' suggestions, such 
as advanced notification or clarifying that the immediate family 
exemption does not apply to labor housing, can be addressed through 
guidance. Others, such as buffer zones around employer-provided 
housing, are beyond the scope of this action and would require 
additional analysis and public discussion to determine the 
appropriateness of buffers and buffer sizes around employee housing or 
other structures on the establishment where workers may be present. 
Employer-provided housing is not uniform (for example, workers with 
temporary H-2A agricultural visas may be housed in hotels off-
establishment), nor is it regulated by EPA.
    In its compliance assistance guidance, EPA will consider including 
best practices for handlers applying pesticides near housing, to take 
into account the logistical and economic difficulties that they may 
face. Some commenters have also expressed concern for people who live 
near agricultural establishments that may be disproportionately at risk 
from pesticide applications; EPA will also consider guidance that may 
include suggestions on best practices for communicating with people who 
live near agricultural establishments and whose housing may fall within 
the AEZ. EPA disagrees with commenters that communication about 
applications near housing is unreasonably burdensome. However, EPA will 
also consider including strategies that limit the need for such 
communication in its compliance guidance. For example, if local 
ordinances do not require that houses be set back more than 100 feet 
from property lines, handlers may need to adjust the application type 
or droplet size to decrease the size of the AEZ to 25 feet.

G. Enforcement of the AEZ Requirements

1. Proposed Rule
    In Unit III. of the 2023 Proposed Rule, EPA asked for commenters' 
recommendations or considerations on improving the enforceability of 
the AEZ provisions.
2. Final Rule
    In this final rule, EPA did not make any changes to proposed 
regulatory text based on public comments related to enforcement.
3. Comments
    AAPCO, NASDA, and another agricultural business stakeholder 
expressed concerns about the enforceability of the 2023 Proposed Rule. 
AAPCO asked how AEZ violations would be documented or even detected in 
the first place, given that one would have to measure from moving 
application equipment to moving bystanders. NASDA remarked that it 
would be difficult to enforce AEZ requirements off-establishment, as 
handlers have no control over people beyond the property boundaries. 
Similarly, NASDA noted that enforcement of the immediate family 
exemption requires further consideration to ensure it does not become 
burdensome to handlers or regulators. Despite its other concerns, NASDA 
agreed that clarifying when applications would resume would aid 
enforcement.
    In contrast, an advocacy organization suggested that the AEZ 
provisions should aid enforcement of contact violations. The 
organization stated that ``Do Not Contact,'' on its own, may be 
difficult to enforce, as farmworkers may be reluctant to report a 
pesticide exposure to authorities and healthcare providers might not 
recognize the symptoms. In comparison, the commenter suggested that it 
should be easier to prove the distance between application equipment 
and bystanders.
    A farmworker advocacy organization offered suggestions to aid 
enforcement of the AEZ requirements, as well as the WPS more generally. 
Noting that farmworkers often fear workplace retaliation or immigration 
consequences, they recommended interagency collaboration, inspections 
that prioritize workers' confidentiality, unannounced inspections, and 
a general awareness of farmworkers' cultural context and language needs 
on the part of inspectors.
4. Response
    EPA appreciates the comments received in response to the request 
for recommendations or considerations on improving the enforceability 
of the AEZ provisions. To assist inspectors with monitoring compliance 
with the WPS, EPA provides two guidance documents: the FIFRA Inspection 
Manual and the WPS Inspection Manual (Refs. 33 through 34). These 
guidance documents are reviewed and updated periodically. The manuals 
include sampling procedures that may be used to confirm the distance 
the pesticide traveled. As discussed elsewhere in this preamble, the 
AEZ requirement complements the ``Do Not Contact'' requirement by 
providing a measurement that may be used for enforcement to better 
protect farmworkers and others from pesticide exposure.
    Additionally, EPA funds training through a State and Tribal 
Assistance Grant that specifically addresses the needs of pesticide 
inspectors, including the conduct of WPS inspections. EPA considers the 
feedback from stakeholders to be invaluable to ensure that inspector 
guidance and training continue to address evolving needs,

[[Page 80780]]

especially given the unique WPS inspection challenges identified by 
farmworker advocacy organizations, including the significant cultural 
concerns raised by the commenters.
    The enforceability of the WPS is important to the EPA and the 
Agency appreciates all comments received. Permitting applications to 
resume once all persons have left the AEZ is sufficiently clear to 
provide an enforceable standard.
    The risks of retaliation that farmworkers face from reporting 
pesticide exposures, though beyond the scope of the AEZ rule, are 
contemplated by other sections of the WPS. (See 40 CFR 
170.401(c)(2)(xi) (requiring worker training on existing protections 
against retaliatory acts) and 170.501(c)(2)(xiii) (requiring handler 
training on existing protections against retaliatory acts)). 
Furthermore, EPA has requested that the National Environmental Justice 
Advisory Council (NEJAC), a Federal advisory committee to EPA, 
recommend how EPA can incorporate a deeper understanding of farmworker 
concerns about WPS inspections into training materials (Ref. 35). As 
EPA receives feedback on the WPS from NEJAC and other Federal advisory 
committees to the Agency, EPA will use this information to help inform 
its efforts to enhance training and to improve inspections and 
enforcement of the WPS.

H. ``Do Not Contact'' and Restricted Entry Intervals

1. Proposed Rule
    EPA did not propose any changes to the ``Do Not Contact'' or 
Restricted Entry Interval (REI) provisions of the WPS.
2. Final Rule
    EPA has finalized the 2023 Proposed Rule as proposed, retaining the 
``Do Not Contact'' and Restricted Entry Interval (REI) requirements as 
written in the 2015 WPS.
3. Comments
    Two farmworker advocacy stakeholders asked that EPA review more 
generally the ``Do Not Contact'' provision of the WPS, which the AEZ 
supplements. These commenters stated that pesticide exposure can occur 
not just due to direct spray incidents but due to drift, pesticide 
residues on surfaces, and pesticide vapors in the air. According to 
these commenters, an AEZ that exists only while the application is 
ongoing does not prevent these exposures. One commenter requested that 
EPA add additional entry restrictions post-application, suggesting that 
the existing REIs are insufficient.
    A farm bureau also expressed its support for the ``Do Not Contact'' 
provision, though opposing other aspects of the 2023 Proposed Rule.
4. Response
    EPA acknowledges commenters' concerns over indirect exposure 
pathways. Drift that results in pesticide exposure is considered a 
violation of the ``Do Not Contact'' provision. REIs restrict entry to 
the treated area after pesticide applications to prevent exposure to 
pesticide residues. While the WPS does govern some aspects of REIs, 
such as requirement surrounding early entry activities, the length of 
REIs is determined through the extensive analysis of chemicals' effects 
on people and the environment during the registration and registration 
review process. To redefine REIs in this rulemaking would be to go 
beyond its scope.

I. Handler Training Requirements

1. Proposed Rule
    To conform with the revised AEZ requirements, EPA proposed 
revisions to the handler training requirements at 40 CFR 
170.501(c)(3)(xi). The new training requirements specify that 
``handlers must suspend a pesticide application if workers or other 
persons are in the application exclusion zone and must not resume the 
application while workers or other persons remain in the application 
exclusion zone.'' The training requirements also incorporate the 
immediate family exemption, explaining that the applicator may resume 
the application ``provided that the handlers have been expressly 
instructed by the owner(s) of the agricultural establishment that only 
immediate family members remain inside those closed buildings, housing, 
or shelters and that the application should proceed despite the 
presence of the owner(s) or their immediate family members inside those 
closed buildings, housing, or shelters.''
2. Final Rule
    EPA finalized the handler training requirements at 40 CFR 170.501 
as proposed.
3. Comments
    Two farmworker advocacy organizations and USDA commented on 
proposed revisions to the mandatory annual pesticide handler training. 
One farmworker advocacy organization expressed support for EPA's 
proposal to bring trainings into line with the revised requirements on 
suspending and resuming applications. One farmworker advocacy 
organization discussed handler trainings more generally, encouraging 
employers to offer engaging, multilingual trainings.
    USDA commented that trainings should also address pesticide 
applications at the boundaries of the agricultural establishment, 
including how and when handlers should communicate with people on 
neighboring establishments who may be within the AEZ. In keeping with 
its comments on maintaining language from the 2016/2018 Guidance, USDA 
also requested that handler trainings be updated to reflect procedures 
for situations where people off-establishment are in the AEZ, and to 
clarify how and when employers and handlers should communicate 
regarding the boundaries of the agricultural establishment.
4. Response
    Under the 2015 WPS, handler trainings are required to contain all 
of the topics for worker trainings at 40 CFR 170.401(c)(3), as well as 
additional topics such as proper application and use of pesticides, 
following label directions, and the AEZ and ``Do Not Contact'' 
requirements. Like worker trainings, handler trainings must be 
delivered in a format handlers can understand, such as through a 
translator, and must be held in a place free of distractions. All 
worker and handler trainings must be EPA-approved and presented by a 
qualified trainer of workers and/or handlers. (For the full list of 
handler training and trainer requirements, see 40 CFR 170.501.)
    Through its cooperative agreements and its review and approval of 
individual training submissions as required by 40 CFR 170.501(c)(1), 
EPA supports the development of interactive WPS trainings for pesticide 
handlers in multiple languages. As of March 2024, EPA had approved 11 
handler trainings (including trainings in both Spanish and English) 
that reflected the 2015 WPS. Because EPA is mostly reinstating the 2015 
WPS requirements with some minor revisions, the training topics in 40 
CFR 170.501(c)(3) will remain largely the same with the exception of 
adding content related to the immediate family exemption and 
clarification on resuming applications. Some trainings will also need 
to be revised to varying degrees to be reflective of changes in Agency 
policy moving forward under this rulemaking. While all approved 
trainings include the required content under the 2015 WPS, some 
trainings have gone further by incorporating some

[[Page 80781]]

of the best application practices and procedures (e.g., assessing wind 
direction before proceeding with an application) for resuming 
applications that were provided in the 2016/2018 Guidance (Refs. 4 
through 6). That guidance will be nullified because of this action and 
will be replaced with new guidance (see Units V.K. and VI.B.). EPA will 
work with the developers of these trainings to update their AEZ content 
both in response to this action and the change in policy and guidance 
direction. Additionally, EPA will continue to review handler and worker 
trainings and ensure that they are in line with the new AEZ 
requirements under this action.
    For reasons explained in Unit V.E., EPA is not codifying 2016/2018 
Guidance procedures for situations where people off-establishment are 
in the AEZ. As such, EPA will also not require that handler trainings 
include those procedures. However, EPA agrees with USDA that employers 
and handlers would benefit from more clarity regarding procedures and 
communication when applications are made near agricultural 
establishment boundaries, especially if people off the establishment 
may enter the AEZ. Therefore, EPA will consider providing clarity for 
these and other circumstances through compliance assistance guidance.

J. Applications to Crop Canopies

1. Proposed Rule
    EPA did not propose any changes to the AEZ requirements at 40 CFR 
170.405(a)(1)(ii) to account for agricultural practices from different 
industries.
2. Final Rule
    EPA has finalized the regulatory text at 40 CFR 170.405(a)(1)(ii) 
as proposed.
3. Comments
    A trade organization representing the horticulture industry asked 
that EPA add clarifying language to 40 CFR 170.405(a)(1)(ii). The 
commenter noted that it is common practice in horticulture to apply 
pesticides directly to the canopies of ornamental plants. They asked 
that the language be amended to include ``crop canopy'' in the height 
requirements for the 25-foot AEZ distance criteria. Currently, if an 
application is made from a height of 12 inches or higher off the 
ground, it is subject to an AEZ, regardless of the distance from the 
crop canopy. The change the commenter suggested would mean that, if the 
application was made from a height of 12 inches or higher off the 
ground, but less than 12 inches from a crop canopy, there would be no 
AEZ.
4. Response
    When EPA developed the 2015 WPS, it did not intend to except from 
the AEZ requirements applications made from more than 12 inches off the 
ground but within 12 inches of a crop canopy. This rulemaking was 
focused primarily on reinstating the AEZ protections from the 2015 WPS, 
and therefore language around crop canopies goes beyond the scope of 
this action. EPA will consider clarifying in its compliance assistance 
guidance that applications made less than 12 inches from a crop canopy 
are still subject to an AEZ if they are more than 12 inches off the 
ground.

K. Requests for Guidance

1. Proposed Rule
    At various places in the 2023 Proposed Rule, EPA requested feedback 
on whether additional guidance is needed and how it could be improved 
for various AEZ provisions, including implementation for off-
establishment individuals and individuals in easements, the ASABE 
droplet size standards, and the immediate family exemption.
2. Final Rule
    EPA plans to supplement this action with guidance to assist 
stakeholders with compliance.
3. Comments
    Many commenters requested that EPA issue guidance on this action. 
Several commenters asked for guidance clarifying the immediate family 
exemption. AAPCO requested that EPA provide guidance on the 
communication required to ensure that only family members remain inside 
closed buildings. They also requested guidance on how EPA will 
determine compliance.
    AAPCO requested a general How-to-Comply manual on the AEZ for all 
stakeholders. To aid enforcement, they also asked for specific guidance 
and training for inspectors and State regulatory officials. A trade 
association asked for guidance for growers on implementing the AEZ off-
establishment.
    Another commenter asked for guidance on the notifications that 
establishment owners and employers must provide to workers.
    USDA asked that EPA clarify whether it has previously developed an 
interpretive policy on the definition of airblast sprayers as they 
relate to the AEZ. If EPA has not, USDA asked for EPA to clarify where 
and when the interpretive policy will be published.
    Related to its comments on the 2016/2018 Guidance, USDA also 
requested that EPA update the guidance document to specify whether then 
2018 Guidance document superseded the 2016 one, and to clarify the term 
``treated area.''
    One farmworker advocacy organization asked for the Agency to issue 
guidance on ``Do Not Contact.'' The commenter suggested that, to avoid 
violations, guidance should recommend that employers coordinate 
applications and fieldwork so that workers do not reenter a field 
immediately after application, but rather move away from the AEZ.
4. Response
    EPA plans to address many of the commenters' requests for guidance, 
as indicated throughout Unit V. Guidance will support establishment 
owners, agricultural employers, and handlers with compliance. 
Specifically, EPA will consider addressing the following topics, as 
needed, based on feedback after this rule is published:
     Best practices for applications near the boundaries of the 
agricultural establishment and in easements.
     ASABE standard as applies to the AEZ requirements.
     Clarification on resuming applications.
     Implementation of the immediate family exemption, 
including the fact that the exemption does not apply to labor housing.
     Best practices for applications near housing.
     Best practices for communication, including communication 
with people off-establishment and in easements; communication between 
employers and handlers regarding the boundaries of the establishment; 
communication around who remains inside closed structures during an 
application in accordance with the immediate family exemption; 
communication with residents of surrounding communities whose houses 
may fall into the AEZ; and advance notification of applications.
     Strategies to limit the need for such communication.
     How the AEZ applies to agricultural practices from 
different industries, including that applications more than 12 inches 
off the ground but less than 12 inches from a crop canopy are still 
subject to an AEZ.
     Clarify the relationship between the AEZ, REI, and ``Do 
Not Contact'' requirements.
    EPA anticipates that some compliance assistance materials, such as 
the How-to-Comply Manual for the WPS (Ref. 36), may be updated through 
its cooperative agreements. Guidance

[[Page 80782]]

manuals for inspectors, such as the FIFRA Inspection Manual and the WPS 
Inspection Manual (Refs. 33 and 34), are reviewed and updated on a 
periodic basis.
    In response to USDA's request for clarification on what qualifies 
as an airblast sprayer, EPA's Office of Pesticide Programs Electronic 
Label (OPPEL) definition of airblast sprayer is a ``general term 
describing sprays directed into the foliage with a forced air stream, 
usually created with a powered fan mounted on or pulled behind a truck 
or tractor typically used in a vineyard, orchard, and some nurseries. 
Includes electrostatic sprayers.'' (Ref. 37). EPA will use definitions 
that are consistent with current agency policy and update its guidance 
as needed to reflect changes as they occur.
    Given that there have now been changes to the AEZ requirements, the 
AEZ-specific 2018 guidance document, titled ``Worker Protection 
Standard Application Exclusion Zone Requirements: Updated Question and 
Answers'' (Ref. 4) will be replaced with new compliance assistance 
guidance. EPA's 2016 AEZ-specific guidance document, titled ``Q&A Fact 
Sheet on the Worker Protection Standard (WPS) Application Exclusion 
Zone (AEZ) Requirements'' was superseded by the 2018 guidance (Ref. 5). 
EPA's 2016 document ``Worker Protection Standard Frequently Asked 
Questions,'' which provides answers to frequently asked questions on 
the full WPS (not just the AEZ requirements), will remain a resource 
for non-AEZ related guidance and will be updated consistent with this 
action (Ref. 6).

VI. The Final Rule

A. Regulatory Changes

    EPA is finalizing the 2023 Proposed Rule without changes.

B. 2016/2018 Guidance

    Because EPA is finalizing the clarification on when suspended 
applications may resume, upon the effective date of this rule, the rule 
supersedes EPA's 2018 interpretive guidance document, ``Worker 
Protection Standard Application Exclusion Zone Requirements: Updated 
Questions and Answers'' (Ref. 4). EPA's 2016 guidance document ``Q&A 
Fact Sheet on the Worker Protection Standard (WPS) Application 
Exclusion Zone (AEZ) Requirements'' was superseded by the 2018 
interpretive guidance document (Ref. 5). EPA's 2016 document ``Worker 
Protection Standard Frequently Asked Questions,'' which provides 
answers to frequently asked questions on the WPS (not just the AEZ 
requirements), will remain a resource for non-AEZ related guidance 
(Ref. 6).

C. Future Compliance Assistance Guidance

    After this final rule is published, EPA will consider addressing 
the following topics, as needed:
     Best practices for applications near the boundaries of the 
agricultural establishment and in easements.
     ASABE standard as applies to the AEZ requirements.
     Clarification on resuming applications.
     Implementation of the immediate family exemption, 
including the fact that the exemption does not apply to labor housing.
     Best practices for applications near housing.
     Best practices for communication, including communication 
with people off-establishment and in easements; communication between 
employers and handlers regarding the boundaries of the establishment; 
communication around who remains inside closed structures during an 
application in accordance with the immediate family exemption; 
communication with residents of surrounding communities whose houses 
may fall into the AEZ; and advance notification of applications.
     Strategies to limit the need for such communication.
     How the AEZ applies to agricultural practices from 
different industries, including that applications more than 12 inches 
off the ground but less than 12 inches from a crop canopy are still 
subject to an AEZ.
    EPA anticipates that some compliance assistance materials, such as 
the How-to-Comply Manual for the WPS (Ref. 36), may be updated through 
its cooperative agreements. Guidance manuals for inspectors, such as 
the FIFRA Inspection Manual and the WPS Inspection Manual (Refs. 33 and 
34), are reviewed and updated on a periodic basis.

VII. Incorporation by Reference

A. Incorporation of ASABE Standards

    This final rule incorporates voluntary consensus standards by 
reference. EPA identified an applicable voluntary consensus standard 
developed by ASABE for defining droplet sizes. Instead of fully 
reinstating the droplet size criteria established in the 2015 WPS, EPA 
is incorporating by reference the ASABE standard identified as ``ANSI/
ASAE S572, Spray Nozzle Classification by Droplet Spectra'' and certain 
successor editions (ANSI/ASAE S572.1, ANSI/ASAE S572.2, and ANSI/ASAE 
S572.3) (Refs. 13 through 16) to enhance the Agency's compliance with 
the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 
272 note). (ASABE standards, engineering practices, and data initially 
approved prior to the society name change from ``ASAE'' to ``ASABE'' in 
July 2005 are designated as ``ASAE'', regardless of the revision 
approval date.) The NTTAA and Office of Management and Budget (OMB) 
Circular A-119 require agencies to use voluntary consensus standards in 
its regulatory, procurement, and program activities in lieu of 
government-unique standards, unless use of such standards would be 
inconsistent with applicable law or otherwise impractical.
    The ASABE categorization of ``medium'' droplet sizes has remained 
largely unchanged despite various updates to the standard over the 
years. Updates of the standard are briefly summarized as follows:
    1. ANSI/ASAE S572. Spray Nozzle Classification by Droplet Spectra 
(Ref. 13). This original standard established 6 droplet size classes: 
Very Fine (VF), Fine (F), Medium (M), Coarse (C), Very Coarse (VC) and 
Extra Coarse (XC).
    2. ANSI/ASAE S572.1. Spray Nozzle Classification by Droplet Spectra 
(Ref. 14). This standard added two new classes: Extra Fine (XF) and 
Ultra Coarse (UC).
    3. ANSI/ASAE S572.2. Spray Nozzle Classification by Droplet Spectra 
(Ref. 15). This standard corrected flowrate values that were used to 
establish classification category thresholds but did not substantially 
change the standard.
    4. ANSI/ASAE S572.3. Spray Nozzle Classification by Droplet Spectra 
(Ref. 16). This standard updated some classification boundaries to 
harmonize with the International Standards Organization's (ISO) 
operating pressures established in ISO 25358.
    Given the relative stability of the categorization of ``medium'' 
droplet sizes, removing VMD from the AEZ criteria and instead using 
droplet size classifications (i.e., ``medium'' as defined by the ASABE; 
see Unit IV.C. and V.C.) is expected to provide a clear, practical, and 
easy approach for determining AEZ distances. EPA anticipates that this 
revision will improve compliance with other AEZ requirements and make 
it easier to enforce these provisions by eliminating any need to 
determine whether an application is over or under the specified VMD of 
294 microns, as required by the 2015 WPS.

[[Page 80783]]

B. Reasonable Availability

    Copies of the ASABE standards identified in Unit VII.A. may be 
purchased from the ASABE, 2950 Niles Road, St. Joseph, MI 49085, or by 
calling (269) 429-0300, or at https://www.asabe.org. Additionally, each 
of these standards are available for inspection at the OPP Docket, 
Environmental Protection Agency Docket Center (EPA/DC), West William 
Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, 
Washington, DC. The EPA/DC Public Reading Room hours of operation are 
8:30 a.m. to 4:30 p.m. EDT, Monday through Friday, excluding legal 
holidays. The telephone number of the EPA/DC Public Reading Room is 
(202) 566-1744. EPA has determined that the standards are reasonably 
available to the class of persons affected by this rulemaking.
    If you have a disability and the format of any material on an EPA 
web page interferes with your ability to access the information, please 
contact EPA's Rehabilitation Act Section 508 (29 U.S.C. 794d) Program 
at 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.

VIII. Severability

    The Agency intends that the provisions of this rule be severable. 
In the event that any individual provision or part of this rule is 
invalidated, the Agency intends that this would not render the entire 
rule invalid, and that any individual provisions that can continue to 
operate will be left in place. The amendments to 40 CFR part 170 
finalized in this rule involve separate aspects of the AEZ and EPA 
finds that each provision is able to operate independently of the 
others. This has been demonstrated by the Agency's revisions to the AEZ 
provisions from the 2015 WPS, to the 2020 AEZ Rule, to the current 
final rule. With each final rule concerning the AEZ, EPA has been able 
to retain certain provisions while amending or vacating others. For the 
foregoing reasons, EPA finds that the amendments in this final rule are 
severable.

IX. References

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

1. EPA. Pesticides; Agricultural Worker Protection Standard; 
Reconsideration of the Application Exclusion Zone Amendments; 
Proposed Rule. Federal Register. 88 FR 15346, March 13, 2023 (FRL-
8528-03-OCSPP). https://www.govinfo.gov/content/pkg/FR-2023-03-13/pdf/2023-03619.pdf.
2. EPA. Pesticides; Agricultural Worker Protection Standard 
Revisions; Revision of the Application Exclusion Zone Requirements; 
Final Rule. Federal Register. 85 FR 68760, October 30, 2020 (FRL-
10016-03). Available at https://www.govinfo.gov/content/pkg/FR-2020-10-30/pdf/2020-23411.pdf.
3. 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.
4. 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.
5. EPA. WPS Guidance on the Application Exclusion Zone. Q&A Fact 
Sheet on the Worker Protection Standard (WPS) Application Exclusion 
Zone (AEZ) Requirements. April 14, 2016. Available at https://www.regulations.gov/document/EPA-HQ-OPP-2017-0543-0007.
6. EPA. Worker Protection Standard Frequently Asked Questions: 40 
CFR part 170. April 14, 2016. Available at https://www.epa.gov/sites/default/files/2016-04/documents/wps-faq.pdf.
7. Executive Order 13990. Protecting Public Health and the 
Environment and Restoring 2976 Science to Tackle the Climate Crisis. 
Federal Register 86 FR 7037, January 25, 2021. https://www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/2021-01765.pdf.
8. EPA. Pesticides; Agricultural Worker Protection Standard; Final 
Rule. Federal Register. 57 FR 38102, August 13, 1992 (FRL-3774-6). 
https://www.govinfo.gov/content/pkg/FR-1992-08-21/pdf/FR-1992-08-21.pdf.
9. State of New York et al. v. United States Environmental 
Protection Agency, Case No. 1:20-cv-10642; (United States Southern 
District of New York, December 28, 2020). Amended Order Re: 
Complaint for Declaratory and Injunctive Relief.
10. State of New York et al. v. United States Environmental 
Protection Agency, Case No. 1:20-cv-10642; (United States Southern 
District of New York, August 15, 2022). Eleventh Stipulation and 
Consent Order Further Extending Stay and Extending Injunction.
11. The White House, Briefing Room. Fact Sheet: List of Agency 
Actions for Review. January 20, 2021. https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/.
12. EPA. Cost Analysis for Revisions to the Application Exclusion 
Zone in the Worker Protection Standard. 2020. EPA Document ID No. 
EPA-HQ-OPP-2017-0543-0152. https://www.regulations.gov/document/EPA-HQ-OPP-2017-0543-0152.
13. ASABE. Spray Nozzle Classification by Droplet Spectra. ASAE S572 
FEB2004, reaffirmed February 2004 (ANSI/ASAE S572).
14. ASABE. Spray Nozzle Classification by Droplet Spectra. ANSI/ASAE 
S572.1 MAR2009 (R2017), reaffirmed December 2017.
15. ASABE. Spray Nozzle Classification by Droplet Spectra. ANSI/ASAE 
S572.2 JUL2018, July 2018.
16. ASABE. Spray Nozzle Classification by Droplet Spectra. ANSI/ASAE 
S572.3 FEB2020, February 2020.
17. National Pesticide Information Center (NPIC). Specific data 
requested from NPIC. 2024.
18. California Department of Pesticides Regulation (DPR). Data from 
the California DPR's Pesticide Illness Query (CalPIQ). 2024. https://apps.cdpr.ca.gov/calpiq/.
19. EPA. Data from EPA's pesticide Incident Data System (IDS). 2024. 
https://ordspub.epa.gov/ords/pesticides/f?p=359:1.
20. National Institute for Occupational Safety & Health (NIOSH). 
Specific data requested from the NIOSH Sentinel Event Notification 
System for Occupational Risk--Pesticides Program. 2024.
21. EPA. Economic Analysis of the Agricultural Worker Protection 
Standard Revisions, RIN 2070-AJ22. September 2015. EPA Document ID 
No. EPA-HQ-OPP-2011-0184-2522. https://www.regulations.gov/document/EPA-HQ-OPP-2011-0184-2522.
22. Executive Order 14096. Revitalizing Our Nation's Commitment to 
Environmental Justice for All. Federal Register. 88 FR 25251, April 
26, 2023. https://www.govinfo.gov/content/pkg/FR-2023-04-26/pdf/2023-08955.pdf.
23. EPA. 2021 Policy on Children's Health. October 5, 2021. https://www.epa.gov/system/files/documents/2021-10/2021-policy-on-childrens-health.pdf.
24. Bueno, Mariana and Cunha, Jo[atilde]o & Santana, Denise. (2016). 
Assessment of spray drift from pesticide applications in soybean 
crops. Biosystems Engineering. 154, February 2017, Pages 35-45.

[[Page 80784]]

25. Kasner, E.J., Fenske, R.A., Hoheisel, G.A., Galvin, K., Blanco, 
M.N., Seto, E.Y.W., & Yost, M.G. (2018). Spray Drift from a 
Conventional Axial Fan Airblast Sprayer in a Modern Orchard Work 
Environment. Annals of work exposures and health, 62(9), 1134-1146. 
https://doi.org/10.1093/annweh/wxy082.
26. Felsot, A.S., Unsworth, J.B., Linders, J.B., Roberts, G., 
Rautman, D., Harris, C., & Carazo, E. (2011). Agrochemical spray 
drift; assessment and mitigation--a review. Journal of environmental 
science and health. Part. B, Pesticides, food contaminants, and 
agricultural wastes, 46(1), 1-23.
27. Taylor, W. & Womac, A. & Miller, P. & Taylor, B. (2004). An 
Attempt to Relate Drop Size to Drift Risk. Proceedings of the 
International Conference on Pesticide Application for Drift 
Management.
28. Nuyttens, David & Baetens, Katrijn & Schampheleire, Mieke & 
Sonck, Bart. (2007). Effect of nozzle type, size and pressure on 
spray droplet characteristics. Biosystems Engineering. Vol. 97, 
Issue 3, July 2007, Pages 333-345.
29. Quandt, S.A., Summers, P., Bischoff, W.E., Chen, H., Wiggins, 
M.F., Spears, C.R., & Arcury, T.A. (2013). Cooking and eating 
facilities in migrant farmworker housing in North Carolina. American 
journal of public health, 103(3), e78-e84. https://doi.org/10.2105/AJPH.2012.300831.
30. Keim-Malpass, J., Spears Johnson, C.R., Quandt, S.A., & Arcury, 
T.A. (2015). Perceptions of housing conditions among migrant 
farmworkers and their families: implications for health, safety and 
social policy. Rural and remote health, 15, 3076.
31. Gentry, A.L., Grzywacz, J.G., Quandt, S.A., Davis, S.W., & 
Arcury, T.A. (2007). Housing Quality Among North Carolina Farmworker 
Families. Journal of Agricultural Safety and Health. 13(3), 2007, 
pages 323-337.
32. Early, J., Davis, S.W., Quandt, S.A., Rao, P., Snively, B.M., & 
Arcury, T.A. (2006). Housing Characteristics of Farmworker Families 
in North Carolina. Journal of Agricultural Safety and Health. 8, 
173-184 (April 2006).
33. EPA. Office of Enforcement and Compliance Assurance Inspection 
Manual: Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) 
Inspection Manual. August 1, 2019. https://www.epa.gov/sites/default/files/2014-01/documents/fiframanual.pdf.
34. EPA. Office of Enforcement and Compliance Assurance Inspection 
Manual: Worker Protection Standard Inspection Manual. August 15, 
2018. https://www.epa.gov/sites/default/files/2013-09/documents/wpsinspectionsguide.pdf.
35. EPA. Farmworker and Pesticides Charge to the National 
Environmental Justice Advisory Council. March 30, 2023. https://www.epa.gov/system/files/documents/2023-11/farmworker-and-pesticides-charge-questions-to-the-nejac-03.30.23.pdf.
36. Pesticide Educational Resources Collaborative. How to Comply 
With the 2015 Revised Worker Protection Standard for Agricultural 
Pesticides: What Owners and Employers Need to Know. 2017. https://www.epa.gov/pesticide-worker-safety/pesticide-worker-protection-standard-how-comply-manual.
37. EPA. Office of Pesticide Program Electronic Label (OPPEL): 
Smartlabel Vocabulary Guide Version 3. Accessed 2024. https://www.epa.gov/pesticide-registration/oppel-pilot-documents.
38. USDA. Re: FIFRA 25(a) Review of draft final rule: ``Pesticides; 
Agricultural Worker Protection Standard; Reconsideration of the 
Application Exclusion Zone Amendments''. USDA Comment (July 24, 
2024) and EPA Response (August 28, 2024).

X. FIFRA Review Requirements

    Pursuant to FIFRA section 25(a), EPA submitted the draft final rule 
to the United States Department of Agriculture (USDA) for review (see 
89 FR 57770, July 16, 2024 (FRL-8528-04-OCSPP), with a copy sent to the 
appropriate Congressional Committees as required under FIFRA section 
25(a). USDA responded and provided comments on July 24, 2024 (Ref. 38). 
USDA did not object to the final rule; however, USDA expressed concerns 
about the burden that the AEZ could place on growers and applicators in 
the absence of EPA's 2016/2018 Guidance. EPA responded to these 
comments on August 28, 2024, explaining its rationale for superseding 
the guidance and reiterating the importance of the AEZ as a uniform 
baseline requirement to support pesticide handlers and protect human 
health (Ref. 38).
    In accordance with FIFRA section 25(d), the EPA asked the FIFRA 
Scientific Advisory Panel (SAP) to waive review of the draft final 
rule, as was done for the draft proposed rule. The FIFRA SAP waived its 
scientific review of the draft final rule on June 29, 2024, because the 
final rule does not raise scientific or science policy issues that 
warrant a scientific review by the SAP.

XI. Statutory and Executive Order Reviews

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

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 14094: Modernizing Regulatory Review

    This action is not a significant regulatory action as defined in 
Executive Order 12866 (58 FR 51735, October 4, 1993), as amended by 
Executive Order 14094 (88 FR 21879, April 11, 2023), and was therefore 
not subject to a requirement for Executive Order 12866 review.

B. Paperwork Reduction Act (PRA)

    This action does not impose any new or modify information 
collection burden that would require additional review or approval by 
OMB under the PRA, 44 U.S.C. 3501 et seq. OMB has previously approved 
the information collection activities contained in the existing 
regulations and assigned OMB Control No. 2070-0190 and it is identified 
by EPA ICR No. 2491.06. This action does not impose an information 
collection burden, because the revisions do not affect the approved 
information collection activities.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA, 5 
U.S.C. 601 et seq. The small entities subject to the requirements of 
this action are agricultural and handler employers, and commercial 
pesticide handler employers. The Agency has determined that while 
reinstating several of the 2015 AEZ requirements could require 
agricultural employers to direct workers to move away from the edge of 
treatment areas as the application equipment passes, this would be a 
very temporary disruption in any worker activity and, as discussed in 
Unit III., would not lead to any quantifiable impacts on agricultural 
establishments, including small agricultural operations. On the part of 
the handlers, the requirement to cease an application if someone is in 
the AEZ clarifies the applicator or handler's responsibility and is 
unlikely to result in measurable costs for affected entities.
    As explained in Unit II.A.4., the 2020 AEZ Rule never went into 
effect due to a series of court orders staying the effective date of 
the 2020 AEZ Rule. While the discussion compares the effects of this 
action to the 2020 AEZ Rule, the AEZ requirements have always extended 
beyond the boundary of an agricultural establishment and within 
easements since it originally went into effect in 2018. Therefore, 
given that the 2015 rule has remained in effect since its 
establishment, there are no new impacts expected with this rule.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate of $100 million 
(adjusted annually for inflation) or more (in 1995 dollars) as 
described in UMRA, 2 U.S.C. 1531-1538, and does not

[[Page 80785]]

significantly or uniquely affect small governments. The action imposes 
no enforceable duty on any State, local, or Tribal governments and the 
costs involved are estimated not to exceed $183 million in 2023 dollars 
($100 million in 1995$ adjusted for inflation using the GDP implicit 
price deflator) or more in any one year.

E. Executive Order 13132: Federalism

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

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

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

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

    Executive Order 13045 (62 FR 19885, April 23, 1997) directs Federal 
agencies to include an evaluation of the health and safety effects of 
the planned regulation on children in Federal health and safety 
standards and explain why the regulation is preferable to potentially 
effective and reasonably feasible alternatives. While the environmental 
health or safety risks addressed by this action present a 
disproportionate risk to children, this action is not subject to 
Executive Order 13045 because it is not a significant regulatory action 
under section 3(f)(1) of Executive Order 12866. However, EPA's Policy 
on Children's Health (Ref. 23) applies to this action.
    The WPS is intended to apply to myriad agricultural pesticides, and 
the Agency has not developed a health or risk assessment to evaluate 
any impact of the amendments of the AEZ provisions for each pesticide 
subject to the WPS. The Agency finds that it is reasonable to expect 
that this rule will address existing environmental health or safety 
risks from agricultural pesticide applications that may have a 
disproportionate effect on children. Children face the risk of 
pesticide exposure from work in pesticide-treated areas or near ongoing 
pesticide applications, from the use of pesticides near their homes and 
schools, and from pesticide residues brought into the home by family 
members after a day of working with pesticides or being in or near 
pesticide-treated areas. Children also face the risk of pesticide 
exposure from drift. The rule is intended to limit these exposures and 
risks by reinstating AEZ requirements that no longer limit it to the 
property boundary of an agricultural establishment and expanding the 
AEZ back to 100 feet for sprayed applications with droplet sizes 
smaller than medium.

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

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

I. National Technology Transfer and Advancement Act (NTTAA)

    This action involves voluntary standards subject to consideration 
under the NTTAA section 12(d), 15 U.S.C. 272 note. EPA has decided to 
use ANSI/ASAE S572, ANSI/ASAE S572.1, ANSI/ASAE S572.2, and ANSI/ASAE 
S572.3 to define ``medium'' droplet sizes. Additional information about 
these standards is provided in Unit VII., including how to access them 
and our incorporation of these standards into the regulation pursuant 
to 1 CFR part 51.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations and 
Executive Order 14096: Revitalizing Our Nation's Commitment to 
Environmental Justice for All

    EPA believes that the human health or environmental conditions that 
exist prior to this action result in or have the potential to result in 
disproportionate and adverse human health or environmental effects on 
communities with environmental justice concerns in accordance with 
Executive Orders 12898 (59 FR 7629, February 16, 1994) and 14096 (88 FR 
25251, April 26, 2023). As noted in past assessments (Ref. 3), affected 
populations include minority and/or low-income individuals that may 
have a higher risk of exposure and/or are more vulnerable to the 
impacts of pesticides due to occupation, economic status, health and 
obstacles to healthcare access, language barriers, and other 
sociodemographic characteristics.
    EPA believes that this action is likely to reduce existing 
disproportionate and adverse effects on communities with environmental 
justice concerns. This action will limit exposures to pesticides for 
agricultural workers, handlers, and communities adjacent to 
agricultural establishments; improve public health; and prioritize 
environmental justice by rescinding certain changes to the AEZ 
provisions that were reflected in the 2020 AEZ Rule but have not yet 
taken effect. This action will reinstate, for example, regulatory text 
requiring agricultural employers to keep workers and other people out 
of the AEZ during the pesticide application regardless of whether the 
individuals are outside of establishments' boundaries or within 
easements. Additionally, these changes will reinstate larger AEZs for 
those sprays with the highest spray drift potential. As discussed in 
Unit III., reinstating the 2015 WPS requirements for these AEZ 
provisions better balances social and health-related costs than the 
2020 AEZ Rule.
    EPA additionally identified and addressed environmental justice 
concerns by engaging with stakeholders from affected communities 
extensively in the development of the 2015 WPS rulemaking that 
originally established the AEZ requirements that the Agency is 
reinstating. Those efforts were conducted to obtain meaningful 
involvement of all affected parties. Consistent with those efforts and 
assessments, EPA believes this rule will better protect the health of 
agricultural workers and handlers by reinstating the complementary 
protections of the AEZ that were intended to support the ``Do Not 
Contact'' requirements within the WPS.
    The information supporting this executive order review is contained 
in Unit III. and the Economic Analysis from the 2015 WPS (Ref. 21).

K. Congressional Review Act (CRA)

    This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA 
will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 170

    Environmental protection, Agricultural worker, Employer, Farms, 
Forests, Greenhouses, Incorporation by

[[Page 80786]]

reference, Nurseries, Pesticide handler, Pesticides, Worker protection 
standard.

Michael S. Regan,
Administrator.

    Therefore, for the reasons stated in the preamble, 40 CFR chapter I 
is amended as follows:

PART 170--WORKER PROTECTION STANDARD

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

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

0
2. Amend Sec.  170.405 by:
0
a. Revising paragraphs (a)(1)(i) and (ii), and (a)(2);
0
b. Revising and republishing paragraph (b); and
0
c. Adding paragraph (c).
    The revisions and additions read as follows:

Sec.  170.405   Entry restrictions associated with pesticide 
applications.

    (a) * * *
    (1) * * *
    (i) The application exclusion zone is the area that extends 100 
feet horizontally from the point(s) of pesticide discharge from the 
application equipment in all directions during application when the 
pesticide is applied by any of the following methods:
    (A) Aerially.
    (B) Air blast or air-propelled applications.
    (C) As a fumigant, smoke, mist, or fog.
    (D) As a spray using nozzles or nozzle configurations which produce 
a droplet size of smaller than medium, in accordance with the meaning 
given to ``medium'' in ANSI/ASAE S572, ANSI/ASAE S572.1, ANSI/ASAE 
S572.2, or ANSI/ASAE S572.3 (all incorporated by reference, see 
paragraph (c) of this section).
    (ii) The application exclusion zone is the area that extends 25 
feet horizontally from the point(s) of pesticide discharge from the 
application equipment in all directions during application when the 
pesticide is sprayed from a height of greater than 12 inches from the 
soil surface or planting medium using nozzles or nozzle configurations 
which produce a droplet size of medium or larger in accordance with the 
meaning given to ``medium'' in ANSI/ASAE S572, ANSI/ASAE S572.1, ANSI/
ASAE S572.2, or ANSI/ASAE S572.3 (all incorporated by reference, see 
paragraph (c) of this section), and not as in paragraph (a)(1)(i) of 
this section.
* * * * *
    (2) During any outdoor production pesticide application, the 
agricultural employer must not allow or direct any worker or other 
person to enter or to remain in the treated area or an application 
exclusion zone that is within the boundaries of the establishment until 
the application is complete, except for:
    (i) Appropriately trained and equipped handlers involved in the 
application, and
    (ii) Owners of the agricultural establishment and their immediate 
family members who remain inside closed buildings, housing, or shelters 
under the conditions specified in Sec.  170.601(a)(1)(vi).
* * * * *
    (b) Enclosed space production pesticide applications. (1) During 
any enclosed space production pesticide application described in column 
A of table 1 to paragraph (b) of this section, the agricultural 
employer must not allow or direct any worker or other person, other 
than an appropriately trained and equipped handler involved in the 
application, to enter or to remain in the area specified in column B of 
table 1 to paragraph (b) of this section during the application and 
until the time specified in column C of table 1 to paragraph (b) of 
this section has expired.
    (2) After the time specified in column C of table 1 to paragraph 
(b) of this section has expired, the area subject to the labeling-
specified restricted-entry interval and the post-application entry 
restrictions specified in Sec.  170.407 is the area specified in column 
D of table 1 to paragraph (b) of this section.
    (3) When column C of table 1 to paragraph (b) of this section 
specifies that ventilation criteria must be met, ventilation must 
continue until the air concentration is measured to be equal to or less 
than the inhalation exposure level required by the labeling. If no 
inhalation exposure level is listed on the labeling, ventilation must 
continue until after one of the following conditions is met:
    (i) Ten air exchanges are completed.
    (ii) Two hours of ventilation using fans or other mechanical 
ventilating systems.
    (iii) Four hours of ventilation using vents, windows, or other 
passive ventilation.
    (iv) Eleven hours with no ventilation followed by one hour of 
mechanical ventilation.
    (v) Eleven hours with no ventilation followed by two hours of 
passive ventilation.
    (vi) Twenty-four hours with no ventilation.

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

[[Page 80787]]

 
4. Not as in entry 1, 2, or 3 of this  Treated area plus 25     Application is complete  Treated area.
 table, and From a height of greater    feet in all directions
 than 12 inches from the planting       of the treated area,
 medium; or As a spray using a spray    but not outside the
 quality (droplet spectrum) of medium   enclosed space.
 or larger in accordance with the
 meaning given to ``medium'' by the
 American Society of Agricultural and
 Biological Engineers in ANSI/ASAE
 S572, ANSI/ASAE S572.1, ANSI/ASAE
 S572.2, or ANSI/ASAE S572.3 (all
 incorporated by reference, see Sec.
  170.405(c)).
5. Otherwise.........................  Treated area...........  Application is complete  Treated area.
----------------------------------------------------------------------------------------------------------------

    (c) Incorporation by reference. The material listed in this 
paragraph (c) is incorporated by reference into this section with the 
approval of the Director of the Federal Register in accordance with 5 
U.S.C. 552(a) and 1 CFR part 51. All approved incorporation by 
reference (IBR) material is available for inspection at the 
Environmental Protection Agency (EPA) and at the National Archives and 
Records Administration (NARA). Contact EPA at: OPP Docket, 
Environmental Protection Agency Docket Center (EPA/DC), West William 
Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, 
Washington, DC. The EPA/DC Public Reading Room hours of operation are 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number of the EPA/DC Public Reading room and 
the OPP Docket is (202) 566-1744. For information on the availability 
of this material at NARA, visit https://www.archives.gov/federal-register/cfr/ibr-locations or email [email protected]. The 
material may be obtained from the American Society of Agricultural and 
Biological Engineers, 2950 Niles Road, St. Joseph, MI 49085, (269) 429-
0300, https://www.asabe.org.
    (1) ANSI/ASAE S572 FEB2004, Spray Nozzle Classification by Droplet 
Spectra, reaffirmed February 2004 (ANSI/ASAE S572).
    (2) ANSI/ASAE S572.1 MAR2009 (R2017), Spray Nozzle Classification 
by Droplet Spectra, reaffirmed December 2017 (ANSI/ASAE S572.1).
    (3) ANSI/ASAE S572.2 JUL2018, Spray Nozzle Classification by 
Droplet Spectra, ANSI approved July 2018 (ANSI/ASAE S572.2).
    (4) ANSI/ASAE S572.3, Spray Nozzle Classification by Droplet 
Spectra, ANSI approved February 2020 (ANSI/ASAE S572.3).

0
3. Amend Sec.  170.501 by revising paragraph (c)(3)(xi) to read as 
follows:

Sec.  170.501   Training requirements for handlers.

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

0
4. Amend Sec.  170.505 by revising paragraph (b) to read as follows:

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

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

0
5. Amend Sec.  170.601 by revising paragraph (a)(1) to read as follows:

Sec.  170.601   Exemptions.

    (a) * * *
    (1) On any agricultural establishment where a majority of the 
establishment is owned by one or more members of the same immediate 
family, the owner(s) of the establishment (and, where specified in the 
following, certain handlers) are not required to provide the 
protections of the following provisions to themselves or members of 
their immediate family when they are performing handling activities or 
tasks related to the production of agricultural plants that would 
otherwise be covered by this part on their own agricultural 
establishment.
    (i) Section 170.309(c).

[[Page 80788]]

    (ii) Section 170.309(f) through (j).
    (iii) Section 170.311.
    (iv) Section 170.401.
    (v) Section 170.403.
    (vi) Sections 170.405(a)(2) and 170.505(b), but only in regard to 
owner(s) of the establishment and their immediate family members who 
remain inside closed buildings, housing, or shelters. This exception 
also applies to handlers (regardless of whether they are immediate 
family members) who have been expressly instructed by the owner(s) of 
the establishment that:
    (A) Only the owner(s) or their immediate family members remain 
inside the closed building, housing, or shelter, and
    (B) The application should proceed despite the presence of the 
owner(s) or their immediate family members remaining inside the closed 
buildings, housing, or shelters.
    (vii) Section 170.409.
    (viii) Sections 170.411 and 170.509.
    (ix) Section 170.501.
    (x) Section 170.503.
    (xi) Section 170.505(c) and (d).
    (xii) Section 170.507(c) through (e).
    (xiii) Section 170.605(a) through (c), and (e) through (j).
* * * * *
[FR Doc. 2024-22832 Filed 10-3-24; 8:45 am]
BILLING CODE P
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