[Federal Register Volume 84, Number 212 (Friday, November 1, 2019)]
[Proposed Rules]
[Pages 58666-58674]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-23718]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 170

[EPA-HQ-OPP-2017-0543; FRL-9995-47]
RIN 2070-AK49


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing changes to the Agricultural Worker Protection 
Standard (WPS) to simplify the application exclusion zone (AEZ) 
requirements. The proposed changes described in this document are the 
only changes EPA is currently planning to make to the WPS provisions 
that are now in effect.

DATES: Comments must be received on or before January 30, 2020.

ADDRESSES: Submit your comments, identified by docket identification 
(ID) number EPA-HQ-OPP-2017-0543, by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the online instructions for submitting comments. Do not submit 
electronically any information you consider to be Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute.
     Mail: OPP Docket, Environmental Protection Agency Docket 
Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 
20460-0001.
     Hand Delivery: To make special arrangements for hand 
delivery or delivery of boxed information, please follow the 
instructions at https://www.epa.gov/dockets/where-send-comments-epa-dockets.
    Additional instructions on commenting or visiting the docket, along 
with more information about dockets generally, is available at https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Jackie Mosby, Field and External 
Affairs Division (7506P), Office of Pesticide Programs, Environmental 
Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; 
telephone number: (703) 347-0224; email address: 
OPP_NPRM_AgWorkerProtection@epa.gov.

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).

[[Page 58667]]

     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 action is the Agency taking?

    EPA is proposing to revise one requirement of the WPS (40 CFR part 
170), adopted in 2015 (80 FR 67496, November 2, 2015) (FRL-9931-81). 
Information supporting the 2015 final rule, including the proposed 
rule, public comments and EPA's responses thereto, is available at 
https://www.regulations.gov under docket number EPA-HQ-OPP-2011-0184. 
The Agency is proposing changes to the regulation and soliciting 
additional information and public comment to inform its proposed 
revision of the rule's Application Exclusion Zone (AEZ) requirements. 
EPA is proposing to clarify and simplify the AEZ requirements based in 
part on input received as part of EPA's outreach efforts with state 
lead agencies (SLAs) and various stakeholders after the 2015 rule and 
through the Regulatory Reform Agenda process.

C. Why is the Agency taking this action?

    As further described in Unit II.B., members of the agricultural 
community, including the US Department of Agriculture (USDA), State 
pesticide regulatory agencies and organizations, and several 
agricultural interest groups have expressed concerns with the AEZ 
requirements in the 2015 WPS rule. EPA began hearing general concerns 
about rule implementation and more specific concerns about the rule's 
AEZ requirements from some State pesticide regulatory agencies 
responsible for WPS and pesticide enforcement (i.e., SLAs) during the 
Agency's extensive outreach and training efforts for those agencies 
after promulgation of the 2015 WPS rule. Comments about the AEZ 
included concerns about the complexity and enforceability. Similar 
concerns were expressed through the Regulatory Reform Agenda outreach 
process and are found in docket number EPA-HQ-OA-2017-0190 at https://www.regulations.gov.
    EPA has also solicited comments on the AEZ requirements from the 
Pesticide Program Dialogue Committee (PPDC). The PPDC is a federal 
advisory committee that is broadly representative of EPA's stakeholders 
with members 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. The PPDC meets biannually with the EPA's Office of Pesticide 
Programs to discuss regulatory, policy, and program implementation 
issues. PPDC members discussed the WPS requirements for the application 
exclusion zone in public meetings with EPA on November 2, 2017 and 
expressed both support and some concerns with the AEZ requirements of 
the WPS rule at the May 4, 2017 meeting. The transcripts for PPDC 
meetings can be found at https://www.epa.gov/pesticide-advisory-committees-and-regulatory-partners/pesticide-program-dialogue-committee-ppdc.
    Clarifying and simplifying the WPS AEZ requirements was one of the 
most repeated requests from SLAs. These requests, together with 
comments received through the Regulatory Reform Agenda process and 
input from the PPDC, prompted EPA's decision to develop this proposed 
rule.

D. 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 (Pub. L. 116-8), EPA is only proposing revisions to the AEZ 
requirements in the WPS.

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

    EPA has evaluated the potential incremental economic impacts and 
determined that these proposed changes will reduce existing burden. 
Cost savings from the changes are largely in terms of reducing 
management complexity both on and off establishment. However, EPA has 
not quantified the anticipated cost savings. 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. See Units II.C. 
through II.F.

F. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit confidential business information 
(CBI) to EPA through http://www.regulations.gov or email. Clearly mark 
the part or all of the information that you claim to be CBI. For CBI 
information in a disk or CD-ROM that you mail to EPA, mark the outside 
of the disk or CD-ROM as CBI and then identify electronically within 
the disk or CD-ROM the specific information that is claimed as CBI. In 
addition to one complete version of the comment that includes 
information claimed as CBI, a copy of the comment that does not contain 
the information claimed as CBI must be submitted for inclusion in the 
public docket. Information marked as CBI will not be disclosed except 
in accordance with procedures set forth in 40 CFR part 2.
    2. Tips for preparing your comments. When preparing and submitting 
your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

II. Proposed Changes to the WPS

A. Background and Existing Requirements

    Under the WPS established in 1992 (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 an appropriately trained and equipped 
pesticide handler involved in the application. These requirements 
prohibit 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 added requirements to reinforce existing 
requirements and enhance compliance with safe application practices to 
protect agricultural workers and bystanders from pesticide exposure 
through drift. The 2015 WPS rule established application exclusion zone 
requirements (AEZ) for outdoor production, defined as the area 
extending horizontally around application equipment from which persons 
generally must be excluded

[[Page 58668]]

during pesticide applications. The AEZ moves with the application 
equipment. For aerial, airblast, 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 prohibited agricultural employers from allowing or 
directing any agricultural worker or other person other than a trained 
and equipped pesticide handler involved in the application to enter or 
remain in the treated area until after the pesticide application is 
complete. The 2015 WPS further prohibits 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 applicators have to 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 and the Restricted Entry Interval is no 
longer in effect, if applicable. The 2015 WPS also requires a handler 
to ``immediately suspend a pesticide application'' if anyone other than 
a trained and 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 are affected by drift. The purpose of the AEZ 
was to reinforce the 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.

B. Stakeholder Engagement

    EPA finalized revisions to the WPS in 2015 (80 FR 67496, November 
2, 2015). During the Agency's extensive outreach and training efforts 
for SLAs after promulgation of the 2015 rule, some SLAs raised concerns 
about the AEZ requirements. Comments about the AEZ included concerns 
about its complexity and enforceability.
    In accordance with Executive Order 13777, Enforcing the Regulatory 
Reform Agenda (82 FR 12285, March 1, 2017), EPA solicited comments 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 rule as part of 
the public's response to Executive Order 13777.
    These revisions are also in the spirit of Executive Order 13790, 
Promoting Agriculture and Rural Prosperity in America (82 FR 20237, 
April 25, 2017), which was designed 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 
number EPA-HQ-OA-2017-0190. Approximately 25 commenters provided input 
specific to the 2015 WPS AEZ requirements. Commenters included USDA, 
State pesticide regulatory agencies, State organizations, an 
organization representing Tribal pesticide regulators, a local 
government advisory committee, an agricultural coalition, farm bureau 
federations, growers, grower organizations, farmworker advocacy 
organizations, a public health association, a retailer organization and 
private individuals (Ref. 1).
    Commenters discussed the need for changes to several WPS 
requirements, including the AEZ. Comments on the AEZ from organizations 
representing state regulatory agencies and agricultural interests 
raised concerns about the ability of states to enforce the requirement, 
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. EPA is 
proposing revisions to these requirements in light of the comments 
received from agricultural interests and State pesticide regulatory 
officials.
    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). In May 2017, the 
PPDC discussed the implementation of the WPS (https://www.epa.gov/pesticide-advisory-committees-and-regulatory-partners/pesticide-program-dialogue-committee-meeting-4). On November 2, 2017, PPDC 
members discussed the WPS requirements for the application exclusion 
zone in a public meeting with EPA. (https://www.epa.gov/sites/production/files/2018-01/documents/november-2-2017-ppdc-meeting-transcript.pdf).
    Requests from SLAs to clarify and simplify WPS AEZ requirements, 
together with comments received through the Regulatory Reform Agenda 
process and input from the PPDC, prompted EPA's decision to develop 
this proposed rule.

C. Summary of Proposed Amendments

    EPA is proposing to amend the AEZ requirements in the 2015 WPS rule 
to limit the AEZ to the boundaries of the agricultural establishment. 
EPA is also proposing to revise the provisions related to handlers 
suspending and resuming applications, and the presence of persons on 
the agricultural establishment during application who are not under the 
control of the owner or agricultural employer. EPA is proposing to 
simplify the criteria for determining the AEZ distances for outdoor 
applications based on application method. EPA is also proposing to 
amend the AEZ requirements for owners of agricultural establishments 
and their immediate family members by expanding the exemption at 40 CFR 
170.601(a) to include the AEZ requirements at 40 CFR 170.405(a). EPA is 
not proposing any changes to the existing ``do not contact'' provision 
in the 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).

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

    1. Proposed Changes. EPA is proposing several changes to the AEZ, 
which are intended to work together to address concerns about the AEZ 
and improve the understanding and implementation of the AEZ 
requirements. The different AEZ

[[Page 58669]]

proposals are discussed in Unit II.E. through Unit II.G.
    EPA is proposing to revise the AEZ provision at 170.505(b) that 
requires handlers to ``suspend the application'' if a worker or other 
person is in the AEZ, which as currently described can extend beyond 
the boundaries of the agricultural establishment. The proposal would 
limit the AEZ to within the boundaries of the agricultural 
establishment. This change would bring the pesticide handlers' duty to 
suspend applications in 170.505(b) in line with the agricultural 
employers' duty to exclude persons from the AEZ in 170.405(a)(2) so the 
two requirements are more consistent.
    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 
of the label and the old WPS to reduce the number of exposure incidents 
during agricultural applications. The existing requirement at 
170.505(b) requires 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's obligation to suspend 
applications applies if a worker or other person is in any portion of 
the AEZ--on or off the establishment. EPA is proposing to revise 
170.505(b) so the handler/applicator would not be responsible for 
implementing AEZ requirements off the establishment, where he/she lacks 
control over persons in the AEZ. However, EPA is not proposing 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.
    After reviewing public input on the AEZ issues and concerns, EPA 
has concluded that the ``do not contact'' provision provides the more 
appropriate and enforceable regulatory mechanism to protect workers on 
nearby establishments and other people/bystanders that may be off the 
agricultural establishment but in close proximity to agricultural 
pesticide applications. EPA has determined that the current WPS 
provision extending the AEZ boundary beyond the agricultural 
establishment is confusing and unnecessary. EPA concludes the costs of 
including off the establishment areas in the AEZ do not outweigh the 
minimal benefits of including the additional area in the AEZ, so EPA is 
proposing to revise the WPS rule to limit the AEZ to the boundaries of 
the establishment.
    These proposed revisions are intended to address the AEZ concerns 
noted in the Regulatory Reform Agenda docket (Ref. 1). EPA received 
approximately 25 individual comments on the AEZ requirements in the 
Regulatory Reform Agenda docket from the U.S. Department of 
Agriculture, States, State organizations, a Tribal organization, farm 
bureau federations, grower associations, retailer organizations, an 
applicator organization, an agricultural coalition, farmworker advocate 
organizations, public health organizations and individuals. Some of 
these concerns were also expressed by State regulatory agencies during 
training and outreach sessions that EPA conducted in 2016 and 2017. 
Most comments about the AEZ in the Regulatory Reform Agenda docket 
expressed concerns about the handler requirement to suspend 
applications for situations when the AEZ extends beyond the boundaries 
of the agricultural establishment and people are in the AEZ. A few 
commenters supported revising the AEZ requirements while other 
commenters urged EPA to completely eliminate the AEZ requirements in 
the 2015 WPS rule (Ref. 1). Some points made by the commenters 
included:
     The concept of a regulatory requirement to keep 
individuals out of varying widths of areas surrounding treated areas 
seems difficult for an agricultural employer to implement and next to 
impossible for a State trying to ensure compliance. The logic behind 
the requirement is understandable and supportable but making this a 
regulatory requirement with an expectation of compliance monitoring and 
enforcement is not.
     The AEZ concept was presented in the 2014 WPS proposal as 
an ``entry restricted area.'' In the final 2015 WPS rule (80 FR 67495), 
EPA replaced the term ``entry restricted area'' with ``application 
exclusion zone'' to make it more distinct from the requirements 
regarding Restricted Entry Interval. However, this change was not clear 
to the commenters. The commenters suggested that the concept of the AEZ 
was not proposed; and neither was the idea of the AEZ extending beyond 
the boundary of the establishment. They suggested that this approach 
was not well thought out, was not open for public comment, and was not 
in the spirit of co-regulating with States and Tribes.
     Burdens and economic impacts upon agricultural operations 
and employers were not considered or addressed. One commenter likened 
this provision of the rule to an unlawful taking of private property.
     The AEZ requirement to cease application if a passing 
vehicle is within 25 or 100 feet of the property could be problematic.
     EPA guidance addressing the implementation concerns does 
not carry the weight of regulation and is not sufficiently clear for 
growers and the state regulatory agencies to implement the requirement.
    The main revision being proposed is to revise the handler's 
responsibility to suspend applications in 170.505(b)(1). In addition, 
EPA is proposing to revise the handler training content in 
170.501(c)(3)(xi) to reflect that proposed change.
    2. Anticipated Effects. The primary benefit of changing the AEZ 
requirements is a reduction in the complexity of applying a pesticide. 
The monetized benefits are difficult to quantify due to the variability 
of off establishment activities that could be within the AEZ (Ref. 2).
    3. Options Considered but Not Proposed. The Agency considered 
keeping the WPS AEZ provision at 170.505(b) that requires handlers to 
``suspend the application'' as it is in the current rule but adding 
provisions to the rule to better clarify the scope of the AEZ, as well 
as issuing additional outreach material, and guidance if necessary, 
about the handler AEZ requirements. However, such an approach would not 
fully address all concerns with the applicability of the AEZ off the 
establishment and would require more resources from EPA without 
necessarily providing any additional benefits or protection. EPA issued 
AEZ guidance in April 2016 (Ref. 3) which was revised in February 2018 
(Ref. 4) in an attempt to address concerns raised by stakeholders, but 
this guidance has not fully resolved all concerns. The intent of the 
AEZ guidance was to provide further explanation of the AEZ requirements 
in the WPS and to confirm that the AEZ requirements supplement the ``do 
not contact'' requirement by defining specific areas from which people 
generally must be excluded during a pesticide application. However, an 
exception of the AEZ beyond the

[[Page 58670]]

boundary of the establishment where handlers do not have the ability to 
control the movement of people off the establishment or within 
easements (e.g., utility workers), which commenters argued can 
effectively suspend an application activity, can only be accomplished 
through regulation.
    EPA also considered the option of making no changes to the AEZ 
provision at 170.505(b). However, that option would not address 
concerns with the AEZ or the concerns from State and Tribal pesticide 
regulators with compliance and enforcement issues related to the AEZ 
applying off the establishment. Some State and Tribal pesticide 
regulators have stated that the AEZ requirements applicable to 
situations where people are in the AEZ but off the establishment are 
unenforceable because the AEZ provisions do not apply if the applicator 
does not see the persons off the establishment, and it would be 
difficult if not impossible to prove the applicator saw persons in the 
AEZ. State and Tribal pesticide regulators state that it is easier for 
them to prove that a person has been contacted by pesticides from an 
application and take action to enforce the do not contact provision. 
This option would still leave EPA needing to address existing AEZ 
issues through additional guidance and to address future issues needing 
clarification through guidance related to the ``off establishment'' 
provisions. Therefore, EPA has elected to propose the revision to 
170.505(b) as described above.

E. Revisions To Address Issues Raised About When Handlers May Resume an 
Application That Has Been Suspended

    1. Proposed Changes. EPA is proposing to revise the AEZ provision 
at 170.505(b) to add a paragraph clarifying conditions under which a 
handler may resume the application after having to suspend an 
application if people are in the AEZ on the agricultural establishment. 
The proposed revision of 170.505(b) would also clarify how the AEZ 
applies to persons not employed by the agricultural establishment who 
may be working on or in easements (e.g., gas, mineral, utility, wind/
solar energy) that may be within the boundaries of the establishment. 
These people are generally not within the control of the owner or 
agricultural employer so their presence could disrupt and prevent 
pesticide applications. EPA is not proposing 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 after it has been 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 is 
proposing 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 is proposing language to allow applications to be made or 
resume while persons not employed by the establishment are present on 
easements that may exist within the boundaries of agricultural 
establishments because, depending on the terms of the easement, the 
owner or agricultural employer may be unable to control the movement of 
people (e.g., utility workers) within an easement. The existing AEZ 
requirement at 170.405(a) 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 movements of persons within the easement. The proposed 
revisions at 170.505(b) would 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 in an area subject 
to an easement that would otherwise prevent the agricultural employer 
from temporarily excluding those persons. These individuals will still 
be protected by the ``do not contact'' provision, so even though they 
could remain in an easement in the AEZ, 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 170.505(b).
    These proposed revisions are intended to address the AEZ concerns 
raised by stakeholders during WPS implementation efforts and those 
noted above from the Regulatory Reform Agenda docket (Ref. 1).
    2. Anticipated Effects. The primary benefit of clarifying the AEZ 
requirements about resuming a suspended application is providing 
certainty about when and how a pesticide application can occur. EPA 
does not anticipate the proposed revision about when a handler can 
resume an application when people are in the AEZ on the establishment 
to increase costs to handlers or employers or to change the intended 
protections to workers or other persons because this revision simply 
clarifies how the requirement was intended to be implemented in the 
2015 WPS. The proposal to address people not employed by the 
establishment who are in an area subject to an easement (e.g., utility 
workers) provides regulatory relief to handlers and agricultural 
employers and may prevent pesticide applications from being disrupted. 
However, EPA does not anticipate a change in the protections provided 
by WPS to the people in the easements because the handler must still 
apply the pesticide in a way that does not contact them, either 
directly or through drift.
    3. Options Considered but Not Proposed. The Agency considered the 
option of making no changes to the AEZ provision at 170.505(b). 
However, that option would not address concerns about when a suspended 
application may be resumed and could prevent pesticide applications 
from being made when people are in areas subject to an easement. 
Therefore, EPA has elected to propose the revision to 170.505(b) as 
described above.

F. Revisions To Clarify and Simplify the AEZ Requirements for Outdoor 
Production

    1. Proposed Changes. EPA is proposing to revise the criteria and 
factors for determining AEZ distances at 170.405(a). EPA is proposing 
the following revisions to simplify the AEZ requirements while 
maintaining the protections intended under the 2015 WPS:
     Eliminating the language and criteria pertaining to spray 
quality and droplet size and volume median diameter and using only 
``sprayed applications'' as the criterion for determining the 
appropriate AEZ distance for outdoor production.
     Limiting 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.
     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

[[Page 58671]]

applications based on the spray quality or other factors for setting 
different AEZ distances for outdoor production.
    During repeated outreach and training events during WPS 
implementation efforts, 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. This was 
also reflected in comments to EPA from some members of the PPDC and 
submitted through the Regulatory Reform Agenda process. Some of the 
specific points made by the commenters on the complexity of the AEZ 
distance criteria included the following:
     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 (not recommended).
     The current rule refers to factors and criteria for 
determining the AEZ (i.e., droplet size and ``volume median 
diameters'') that are no longer appropriate based on new information 
from the American Society of Agricultural and Biological Engineers 
(ASABE). In July 2018, ASABE revised the standards regarding the 
criteria for the droplet size classification system (Ref. 5). With this 
proposed rule, EPA seeks to make it easier for the regulated community 
to comply with the requirement while still maintaining protections for 
bystanders and other persons. The current rule and criteria for 
determining the AEZ are no longer appropriate based on information from 
ASABE. The AEZ distances are currently based on factors that make 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.
    EPA acknowledges that some pesticide labels will have restrictions 
for applications that are different than the existing or proposed AEZs. 
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 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.
    After reviewing public input on the AEZ issues and concerns, EPA 
concludes these proposed revisions will maintain essentially the same 
level of protection as provided by the AEZ provisions in the current 
rule, while addressing the concerns raised about the complexity of the 
AEZ requirements and criteria. EPA expects that this proposal would 
address the major concerns of stakeholders (when combined with other 
options from issues discussed above) and could increase compliance by 
making the AEZ requirements easier to understand and implement. The 
proposed revision to the regulatory text would be codified at 
170.405(a).
    Some of these proposed revisions are intended to address the AEZ 
concerns noted in the Regulatory Reform Agenda docket. Commenters 
raised concerns related to the general and/or overall complexity of the 
AEZ requirements in 170.405(a) (i.e., that establish the criteria and 
factors for determining AEZ distances) and the difficulty this creates 
in being able to comply with these requirements and enforce them.
    2. Anticipated Effects. In 2015, EPA estimated that the cost to the 
agricultural employer for implementing an AEZ around application 
equipment would be negligible. These proposed revisions are simplifying 
the existing provisions and not adding any new requirements or burden. 
Therefore, the proposed changes would not result in any added costs for 
the agricultural employer based on EPA's cost estimate of the 2015 WPS 
rule.
    EPA concludes these proposed revisions will maintain essentially 
the same level of protection as provided by the AEZ provisions in the 
current rule because they maintain the same general distances. These 
changes could increase compliance by making the AEZ requirements easier 
to understand and implement. Also, the requirement for the handler 
(applicator) to apply in a manner that does not contact workers or 
other people continues to apply.
    3. Options Considered but Not Proposed. The Agency considered 
making no changes to the AEZ provision at 170.405(a) or issuing 
guidance to clarify and potentially simplify these AEZ requirements for 
outdoor production. One member of the PPDC expressed concern that the 
size of the AEZ was already minimal for aerial, air-blast, fumigation, 
smoke, mist, and fog applications, and stated that the existing AEZ 
should be upheld so that workers and their families do not lose any 
level of protection. However, making no changes would not address 
concerns from State and Tribal pesticide regulators related to the 
complexity of the AEZ requirements and the confusion and consternation 
in the regulated community caused by that complexity. Making no changes 
to the AEZ provisions would not address concerns raised about WPS 
compliance and would require more extensive training and outreach, 
without added benefits or protection. EPA requests comments and 
supporting data to inform EPA's proposed changes to the AEZ 
requirements, on other options considered and any other suggested 
changes that could simplify the regulatory requirements around the AEZ, 
help SLAs improve their compliance monitoring and enforcement efforts, 
and maintain appropriate protections for workers, handlers, and other 
persons during applications.
    EPA issued interpretive guidance on February 15, 2018 addressing 
the AEZ (Ref. 4) that explains what the AEZ is, describes the 
responsibilities of agricultural employers and pesticide handlers for 
the AEZ, identifies the actions that should be taken by the pesticide 
applicator when someone enters the AEZ both when on and when off the 
establishment, explains the circumstances under which a pesticide 
applicator may resume a pesticide application after suspending 
application as a result of a person entering the AEZ, and provides 
instruction on how to determine the size of the AEZ. While helpful, the 
EPA guidance has not fully resolved all concerns, does not carry the 
weight and authority of a codified federal regulation, and may not 
provide the necessary clarity to assist state regulatory agencies with 
compliance activities for all AEZ issues. Therefore, EPA has elected to 
propose the revision to 170.405(a) as described above.

G. Proposed Revisions To Expand the Exemption for Owners of 
Agricultural Establishments and Their Immediate Families To Exempt Them 
From the Requirements of 170.405(a)

    1. Proposed Changes. EPA is proposing to amend the AEZ requirement 
or owners of agricultural establishments and their immediate

[[Page 58672]]

families by expanding the exemption at 170.601 to include entry 
restrictions during outdoor production pesticide applications 
(170.405(a)), to relieve burdens on family owned agricultural 
establishments during pesticide applications.
    EPA is proposing this revision to address issues that arose during 
implementation of the 2015 revisions resulting from the unforeseen 
impacts of the AEZ requirements in certain situations. Stakeholders 
raised concerns related to the AEZ requirement in 170.405(a) (i.e., 
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. 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 
closed or the handler can ensure the pesticide will not contact the 
people. This raises 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 during 
pesticide applications if the home is within the AEZ. Even though the 
owner/applicator may be taking all the appropriate steps to ensure he 
or she will not contact other family members in their home during 
applications, it would still be a violation for them to stay in their 
home within the AEZ during applications if this exemption is not 
expanded. Although EPA acknowledges that there is an exposure risk for 
owners and immediate family members present within the AEZ during 
pesticide applications, EPA anticipates that family members will take 
appropriate steps to protect other family members to ensure they will 
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 
proposes to revise 170.601 so that owners and applicators would be 
exempt from the provisions of 170.405(a) in regard to members of their 
immediate families who are inside closed buildings, housing, or 
shelters on the establishment. This should not impact WPS protections 
for workers and handlers because owners would still have to observe AEZ 
requirements for non-family member employees on the establishment. 
Because the proposed exemption is limited to 170.405(a), family members 
will still be subject to all other AEZ requirements.
    After reviewing public input on the AEZ issues and concerns, EPA 
concludes this proposed revision will maintain essentially the same AEZ 
protections provided in the current rule for owners and immediate 
family members because of their interest in protecting each other. The 
proposed revision to the regulatory text would be codified at 
170.601(a).
    2. Anticipated Effects. This proposed revision is considered 
regulatory relief and should decrease costs and burden associated with 
the rule while maintaining essentially the same benefits by exempting 
owners of agricultural establishments and their immediate families from 
some regulatory requirements. The benefits of this change are not 
necessarily monetary. However, some owners of agricultural 
establishments and their immediate families may see more tangible 
benefits if they are able to avoid costs of moving families from 
housing or the costs of new equipment to change application methods.
    3. Options Considered but Not Proposed. EPA considered addressing 
the AEZ issues by developing an exception to the AEZ requirement that 
would identify appropriate conditions for allowing people to remain in 
a building or structure in the AEZ. EPA also considered the option of 
making no changes to the owner exemption at 170.601(a). However, the 
Agency decided that it would be complicated to develop a national 
regulatory approach in the WPS that would address the many variables 
across the country where people might be in a building or structure in 
the AEZ on the agricultural establishment. Making no changes would not 
substantively address concerns identified by stakeholders (Ref. 1). 
Therefore, EPA has elected to propose the revision to 170.601(a) as 
described above.

III. Request for Comment

    EPA requests comments and supporting data to inform EPA's proposed 
changes to the AEZ requirements, on other options considered and any 
other suggested changes that could simplify the regulatory requirements 
around the AEZ while maintaining appropriate protections for workers, 
handlers, and other persons during applications. To ensure that EPA is 
able to give your comments the fullest consideration, please provide 
the rationale and data or information that support your position.

IV. Severability

    The Agency intends that the provisions of this rule be severable. 
In the event that any individual provision or part of this rule is 
invalidated, the Agency intends that this would not render the entire 
rule invalid, and that any individual provisions that can continue to 
operate will be left in place.

V. References

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

1. EPA. Reference List of Public Comments Regarding the Worker 
Protection Standard Submitted to Docket EPA-HQ-OA-2017-0190.
2. EPA. Cost Analysis for Revisions to the Application Exclusion 
Zone in the Worker Protection Standard, 2019.
3. EPA. WPS Guidance on the Application Exclusion Zone. Q&A Fact 
Sheet on the Worker Protection Standard (WPS) Application Exclusion 
Zone (AEZ) Requirements. April 14, 2016.
4. EPA. Worker Protection Standard Application Exclusion Zone 
Requirements: Updated Questions and Answers. Available at https://www.epa.gov/sites/production/files/2018-02/documents/aez-qa-fact-sheet-final.pdf. February 15, 2018.
5. American National Standards Institute (ANSI)/American Society of 
Agricultural Engineers (ASAE). Spray Nozzle Classification by 
Droplet Spectra. ANSI/ASAE S572.2. July 2018.

VI. FIFRA Review Requirements

    Under FIFRA section 25(a), EPA has submitted a draft of the 
proposed rule to the Secretary of the Department of Agriculture, the 
FIFRA Scientific Advisory Panel (SAP), and the appropriate 
Congressional Committees. USDA completed review of the draft proposed 
rule during the interagency review mentioned in Unit VII.A., and the 
SAP waived its review.

[[Page 58673]]

VII. Statutory and Executive Order Reviews

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

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

    This action is a significant regulatory action that was submitted 
to the Office of Management and Budget (OMB) for review under Executive 
Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, 
January 21, 2011). Any changes made in response to OMB recommendations 
have been documented in the docket. EPA prepared a cost analysis 
associated with this action, which is available in the docket (Ref. 2).

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

    This action is expected to be a deregulatory action as specified in 
Executive Order 13771 (82 FR 9339, February 3, 2017). The EPA cost 
analysis associated with this action is available in the docket (Ref. 
2).

C. Paperwork Reduction Act (PRA)

    This action does not impose any new or modify information 
collection activities under the PRA, 44 U.S.C. 3501 et seq. OMB has 
previously approved the information collection activities contained in 
the existing regulations under OMB control number 2070-0190 (EPA ICR 
No. 2491.02). This proposal does not impose an information collection 
burden because the application exclusion zone requirements are not 
associated with any of the existing burdens in the approved information 
collection request.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under RFA, 5 U.S.C. 
601 et seq. In making this determination, the impact of concern is any 
significant adverse economic impact on small entities. An agency may 
certify that a rule will not have a significant economic impact on a 
substantial number of small entities if the rule relieves burden or has 
no net burden on the small entities subject to the rule. These proposed 
changes would reduce the impacts on all small entities subject to the 
rule, so there are no significant impacts to any small entities. We 
have therefore concluded that this action will relieve regulatory 
burden for all directly regulated small entities.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. The proposed rule 
requirements would primarily affect agricultural employers and 
commercial pesticide handler employers. This action is also expected to 
be a burden-reducing action and does not result in net costs exceeding 
$100 million. EPA does not estimate the cost savings of the burden 
reduction in this proposed rule. However, removing the requirements 
should reduce the complexity of arranging and conducting a pesticide 
application. If anything, these corrections should improve 
understanding of the requirements, which would facilitate compliance. 
The cost analysis associated with this action is available in the 
docket (Ref. 2).

F. Executive Order 13132: Federalism

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

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

    This action does not have Tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). The proposed 
rule would change the requirements around AEZs. There are no costs to 
Tribes associated with the proposed changes because the WPS is 
implemented through the pesticide label, so changes to the regulation 
do not impose any new obligations on the part of Tribes. Thus, 
Executive Order 13175 does not apply to this action.

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

    This proposed rule is not subject to Executive Order 13045 (62 FR 
19885, April 23, 1997) because it is not an economically significant 
regulatory action as defined by Executive Order 12866. This rulemaking 
will not result in increased risk to children. The minimum age 
requirements in WPS will ensure that children are not allowed to handle 
pesticides or engage in early-entry work, helping to prevent children's 
exposure to pesticides as handlers or early-entry workers.

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

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

J. National Technology Transfer and Advancement Act (NTTAA)

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

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

    Executive Order 12898 (59 FR 7629; February 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this proposed rule would not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations.

List of Subjects in 40 CFR Part 170

    Environmental protection, pesticides, agricultural worker, 
pesticide handler, employer, farms, forests, nurseries, greenhouses, 
worker protection standard.

    Dated: October 24, 2019.
Andrew R. Wheeler,
Administrator.
    Therefore, EPA proposes to amend 40 CFR chapter I, subchapter R, as 
follows:

PART 170--[AMENDED]

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

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


[[Page 58674]]


0
2. Amend Sec.  170.305 by revising the definition of Application 
Exclusion Zone to read as follows:


Sec.  170.305   Definitions.

* * * * *
    Application exclusion zone means the area surrounding the 
application equipment from which persons generally must be excluded 
during pesticide applications.
* * * * *
0
3. Amend Sec.  170.405 by removing paragraph (a)(1)(i)(D), and revising 
paragraphs (a)(1)(i)(B), (a)(1)(i)(C), (a)(1)(ii), and (a)(2) to read 
as follows:


Sec.  170.405   Entry restrictions associated with pesticide 
applications.

* * * * *
    (a) * * *
    (1) * * *
    (i) * * *
    (A) * * *
    (B) Air blast or air-propelled applications.
    (C) As a fumigant, smoke, mist, or fog.
    (ii) The application exclusion zone is the area that extends 25 
feet horizontally from the application equipment in all directions 
during application when the pesticide is applied as a spray from a 
height greater than 12 inches from the soil surface or planting medium 
and not as in paragraph (a)(1)(i) of this section.
* * * * *
    (2) During any outdoor production pesticide application, the 
agricultural employer must not allow or direct any worker or other 
person to enter or to remain in the treated area or an application 
exclusion zone that is within the boundaries of the establishment until 
the application is complete, except for:
    (i) An appropriately trained and equipped handler involved in the 
application, and
    (ii) A person not employed by the establishment who is in an area 
subject to an easement that prevents the agricultural employer from 
temporarily excluding the person from that area.
* * * * *
0
3. Amend Sec.  170.501 by revising paragraph (c)(3)(xi) to read as 
follows:


Sec.  170.501   Training requirements for handlers.

* * * * *
    (c) * * *
    (3) * * *
    (xi) Handlers must suspend a pesticide application if workers or 
other persons are in the application exclusion zone within the 
boundaries of the agricultural establishment and must not resume the 
application while workers or other persons remain in the application 
exclusion zone within the boundaries of the agricultural establishment, 
except for an appropriately trained and equipped handler involved in 
the application, and a person not employed by the establishment who is 
in an area subject to an easement that prevents the agricultural 
employer from temporarily excluding the person from that area.
* * * * *
0
4. Amend Sec.  170.505 by revising paragraph (b) to read as follows:


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

* * * * *
    (b) Suspending applications. (1) Any handler performing a pesticide 
application must immediately suspend the pesticide application if any 
worker or other person, other than an appropriately trained and 
equipped handler involved in the application, is in an application 
exclusion zone described in Sec.  170.405(a)(1) that is within the 
boundaries of the agricultural establishment or the area specified in 
column B of the Table in Sec.  170.405(b)(4), except for:
    (i) An appropriately trained and equipped handler involved in the 
application, and
    (ii) A person not employed by the establishment who is in an area 
subject to an easement that prevents the agricultural employer from 
temporarily excluding the person from that area.
    (2) A handler must not resume a suspended pesticide application 
while any workers or other persons (other than appropriately trained 
and equipped handlers involved in the application) remain in an 
application exclusion zone described in Sec.  170.405(a)(1) that is 
within the boundaries of the agricultural establishment or the area 
specified in column B of the Table in Sec.  170.405(b)(4), except for 
persons not employed by the establishment in an area subject to an 
easement that prevents the agricultural employer from temporarily 
excluding those persons from that area.
* * * * *
0
5. Amend Sec.  170.601 by revising paragraph (a)(1) to read as follows:


Sec.  170.601   Exemptions.

    (a) * * *
    (1) On any agricultural establishment where a majority of the 
establishment is owned by one or more members of the same immediate 
family, the owner(s) of the establishment are not required to provide 
the protections of the following provisions to themselves or members of 
their immediate family when they are performing handling activities or 
tasks related to the production of agricultural plants that would 
otherwise be covered by this part on their own agricultural 
establishment.
    (i) Section 170.309(c).
    (ii) Section 170.309(f) through (j).
    (iii) Section 170.311.
    (iv) Section 170.401.
    (v) Section 170.403.
    (vi) Section 170.405(a).
    (vii) Section 170.409.
    (viii) Sections 170.411 and 170.509.
    (ix) Section 170.501.
    (x) Section 170.503.
    (xi) Section 170.505(c) and (d).
    (xii) Section 170.507(c) through (e).
    (xiii) Section 170.605(a) through (c), and (e) through (j).
* * * * *
[FR Doc. 2019-23718 Filed 10-31-19; 8:45 am]
 BILLING CODE 6560-50-P


