[Federal Register Volume 85, Number 211 (Friday, October 30, 2020)]
[Rules and Regulations]
[Pages 68760-68782]
[FR Doc No: 2020-23411]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 170

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

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

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

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

FOR FURTHER INFORMATION CONTACT: Carolyn Schroeder, Pesticide Re-
Evaluation Division (7508P), Office of Pesticide Programs,
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington,
DC 20460; telephone number:<PHONE_NUMBER>; email address:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Does this action apply to me?

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

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

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

C. What action is the Agency taking?

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

D. Why is the Agency taking this action?

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

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

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

II. Context and Goals of This Rulemaking

A. Context for This Rulemaking

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

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

B. Goals of This Rulemaking

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

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

III. Proposed Changes to the AEZ Requirements

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

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

IV. Public Comments

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

A. Support for the Rulemaking

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

B. Opposition to the Rulemaking

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

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

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

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

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

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

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

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

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

E. EPA's Cost Analysis for the AEZ Proposal

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

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

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

    1. Comments. Several advocacy commenters, individuals with public
health expertise, State AGs, and general public commenters argued that
EPA failed to comply with its obligations under Executive Order 12898
to address environmental justice (EJ) in minority populations and low-
income populations. Under Executive Order 12898, federal agencies are
directed to identify and address disproportionately high and adverse
human health or environmental effects of their policies on minority
populations and low-income populations in the United States. Commenters
argue that the proposal does not meaningfully address its EJ impacts.
Commenters argue that EPA relies on an unsupported conclusion that the
proposal ``would not have disproportionately high and adverse human
health or environmental effects on minority or low-income
populations.'' Commenters suggest that by EPA failing to take a ``hard
look'' at EJ issues in its review and to identify any method or
analysis, the agency's analysis in the proposal would likely fail to
satisfy the APA's arbitrary-and-capricious standard.
    Similarly, commenters argue that EPA failed to comply with
Executive Order 13045, which requires agencies to identify and assess
health and safety risks that may disproportionately affect children and
ensure that activities address disproportionate risks to children.
Commenters cite examples of exposures involving children as well as
various studies and information cited within the 2015 WPS indicating
risks toward children; they argue based on this information, EPA did
not fully consider how eliminating the off-establishment AEZ would
impact children near the boundaries of establishments.
    2. EPA Response. EPA does not believe this rulemaking will have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations, nor will it have a
disproportionate effect on children. EPA does consider the
environmental and health protections for risks of agricultural
pesticides to all potentially affected populations and addresses them
in two ways. First, EPA manages the risks and benefits of each
pesticide product primarily through registration and labeling
requirements specific to each pesticide product. Routine pesticide
registration reviews, and subsequent labeling directives as a result of
those reviews, take into account protecting all groups, including
vulnerable groups (e.g., children and EJ communities). Second, the
framework provided by the 2015 WPS is critical for ensuring that the
improvements brought about by reregistration and registration review
are realized. Therefore, if agricultural pesticide products are used
according to their labeling, EPA does not expect there to be
unreasonable adverse effects to children, EJ communities, or anyone
else. Compliance assistance and enforcement also play a role in
ensuring that risk mitigation measures are appropriately implemented in
the field.
    As indicated by the commenters, the 2015 WPS went through an
exhaustive public participation to incorporate a number of safety
mechanisms into the regulation, and extensively engaged farmworker
representatives, and when possible, worked directly with workers and
handlers, to solicit their feedback and ideas for improvements. Some of
these retained requirements and improvements to the WPS that promotes
safety included enhanced and expanded training, and notifications;
adding protection requirements such as the AEZ on the establishment;
the ``Do Not Contact'' requirement and REIs; mitigating exposures by
having decontamination supplies available and ensuring that workers
receive emergency assistance if necessary; and establishing a minimum
age of 18 for handler and early entry worker duties. EPA remains
committed to ensuring the long-term success of the WPS and continues to
support ongoing implementation efforts that arose from these
interactions. This includes funding various cooperative agreements that
support implementation and education and reviewing and approving all
trainings to ensure appropriate information is provided to both workers
and handlers on pesticide safety.
    One of the areas that has seen a significant improvement as a
result of that feedback involves that of enhanced training in place
since the end of 2018. These enhanced trainings for workers and
handlers include more steps on how to minimize worker and handler
exposure and that of the families from pesticide residues carried from
the treated areas to the home. In one cooperative agreement funded by
EPA, early data provided to the Agency has shown worker knowledge gains
as a result of these improved trainings, which have been provided in
the field for over a year (Ref. 18). While EPA does not have similar
information regarding knowledge gains for handlers, EPA expects that
handler trainings have also increased the overall understanding of the
requirements to ensure safer applications of pesticides. For example,
the requirement for handlers to receive training and instruction on how
to use the pesticide and the application equipment for each application
is one way to inform handlers of updated product labeling requirements
so as not to apply pesticides in a manner that will harm themselves,
workers, the public, or the environment.
    EPA-approved trainings since 2018 (83 FR 29013; June 22, 2018) have
also incorporated EPA's 2016 guidance on how to apply pesticides near
establishment borders and provide information on various measures
applicators or handlers can take to prevent individuals from being
contacted by spray or through drift. Those measures include:

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

G. Procedural Mandates of FIFRA

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

V. The Final Rule

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

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

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

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

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

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

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

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

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

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

D. Providing an Immediate Family Exemption to the AEZ Requirements

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

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

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

E. Recommendations To Develop State Equivalency Provisions for the AEZ

    1. Comments. One SLA, one state association representing SLAs, and
one agricultural stakeholder association requested that EPA establish a
mechanism to review and accept (when warranted) AEZ equivalency plans
or provisions submitted by SLAs, territories, and tribes. The
commenters all indicated that at least one state ``shelter-in-place''
provision has protections in addition to those specified in the federal
AEZ. Commenters indicated that the state law was developed after a
long, inclusive, and transparent rulemaking process with farm worker
advocacy groups and grower groups. This state law provides
clarifications and revisions to the federal requirements and provides
protections in addition to those in the federal AEZ.
    2. EPA Response. In the early development of the AEZ proposal, EPA
had considered addressing state equivalency plans and a mechanism to
review and accept those plans. EPA's preference at the time was to
address state equivalency plans with the whole WPS in mind. However,