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

<RULE> ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Part 170</CFR> <DEPDOC>[EPA-HQ-OPP-2022-0133; FRL-8528-05-OCSPP]</DEPDOC> <RIN>RIN 2070-AK92</RIN> <SUBJECT>Pesticides; Agricultural Worker Protection Standard; Reconsideration of the Application Exclusion Zone Amendments</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Environmental Protection Agency (EPA). <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Environmental Protection Agency (EPA or Agency) is finalizing revisions to the application exclusion zone (AEZ) requirements in the Agricultural Worker Protection Standard (WPS). EPA has determined that several aspects of the AEZ provisions, such as those regarding the applicability of the AEZ and distance determination criteria, should be revised to reinstate previous requirements that better protect public health and limit exposure for those who may be near ongoing pesticide applications. To restore these protections, EPA is finalizing the AEZ rule proposed on March 13, 2023, as proposed without change. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This final rule is effective December 3, 2024. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of December 3, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2022-0133, is available online at <E T="03">https://www.regulations.gov.</E> Additional information about dockets generally, along with instructions for visiting the docket in-person, is available at <E T="03">https://www.epa.gov/dockets.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Carolyn Schroeder, Pesticide Re-Evaluation Division (7508M), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (202) 566-2376; email address: <E T="03">schroeder.carolyn@epa.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Executive Summary</HD> <HD SOURCE="HD2">A. Does this action apply to me?</HD> You may be potentially affected by this action if you work in or employ persons working in crop production agriculture where pesticides are applied. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include: • Agricultural Establishments (NAICS code 111000); • Nursery and Tree Production (NAICS code 111421); • Timber Tract Operations (NAICS code 113110); • Forest Nurseries and Gathering of Forest Products (NAICS code 113210); • Farm Workers (NAICS codes 11511, 115112, and 115114); • Pesticide Handling on Farms (NAICS code 115112); • Farm Labor Contractors and Crew Leaders (NAICS code 115115); • Pesticide Handling in Forestry (NAICS code 115310); • Pesticide Manufacturers (NAICS code 325320); • Farm Worker Support Organizations (NAICS codes 813311, 813312, and 813319); • Farm Worker Labor Organizations (NAICS code 813930); and • Crop Advisors (NAICS codes 115112, 541690, 541712). If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the <E T="02">FOR FURTHER INFORMATION CONTACT</E> section. <HD SOURCE="HD2">B. What is the Agency's authority for taking this action?</HD> This action is issued under the authority of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 through 136y, particularly sections 136a(d), 136i, and 136w. <HD SOURCE="HD2">C. What action is the Agency taking?</HD> EPA is finalizing the AEZ rule that was proposed on March 13, 2023 (88 FR 15346; FRL-8528-03-OCSPP) (hereinafter “2023 Proposed Rule”; Ref. 1), as proposed and without change. In so doing, the Agency is revising certain AEZ requirements of the WPS that were amended by EPA in a final rule published on October 30, 2020 (hereinafter “2020 AEZ Rule”; Ref. 2). As further explained in Unit II.A.4., the effective date of the 2020 AEZ Rule was stayed pursuant to a court order; that is, the 2020 AEZ Rule has not gone into effect. This rulemaking, once in effect, replaces the requirements that were published under the 2020 AEZ Rule but never went into effect. Specifically, EPA is rescinding three of the amendments outlined in the 2020 AEZ Rule and reinstating the related AEZ requirements as published in a final rule on November 2, 2015 (hereinafter “2015 WPS”; Ref. 3), with certain modifications. The following three amendments from the 2020 AEZ Rule are being rescinded: 1. <E T="03">The area where the AEZ applies.</E> This rule rescinds language from the 2020 AEZ Rule that limited the applicability of the AEZ to the agricultural employer's property. As such, with this rule, applications must be suspended whenever someone is within the AEZ, regardless of whether that person is on or off the agricultural establishment. 2. <E T="03">The exception to application suspension requirements for property easements.</E> Under this rule, applications must be suspended whenever someone is within an AEZ, even if they are not employed by the establishment and in an area subject to an easement that prevents the agricultural employer from temporarily excluding those individuals from that area. 3. <E T="03">The distances from the application equipment in which entry restrictions associated with ongoing ground-based pesticide applications apply.</E> Under this rule, the AEZ distance is 100 feet for ground-based fine spray applications and 25 feet, generally, for ground-based applications using medium or larger droplet sizes. EPA is also amending the AEZ provisions in the 2015 WPS as follows: 1. <E T="03">Clarifies when suspended applications may be resumed.</E> This rule specifies that applications that were suspended due to individuals entering an AEZ may be resumed after those individuals have left the AEZ. As a result, this rule supersedes EPA's previous interpretive guidance on resuming applications in circumstances when individuals off-establishment are in the AEZ (see Unit VI.B.; Refs. 4 through 6). 2. <E T="03">Provides an exemption allowing owners and their immediate family to remain within the AEZ in certain scenarios.</E> Under this rule, farm owners and members of their immediate family may shelter within closed structures within an AEZ during pesticide applications, provided that the owner has instructed the handlers that only the owner's immediate family are inside the closed shelter and that the application should proceed despite their presence. Handlers may proceed with applications under these circumstances. 3. <E T="03">Replaces the volume median diameter (VMD) criteria with droplet size classification standards.</E> Under this rule, the standard that will be used as the droplet size criterion when making AEZ distance determinations based on droplet size is the technical standard established by the American Society of Agricultural Engineers (ASAE). ASAE was renamed the American Society of Agricultural and Biological Engineers (ASABE) in 2005, which is also endorsed by the American National Standards Institute (ANSI). Although ASABE is now the organization of record for these standards, the specific size standard reflects the name of the organization that existed at the time that the standard was established. Each of these changes is explained in more detail in Unit IV. <HD SOURCE="HD2">D. Why is the Agency taking this action?</HD> EPA reexamined the 2020 AEZ Rule consistent with Executive Order 13990 (Ref. 7), and in response to a factual error that EPA discovered in the 2020 AEZ Rule's preamble while compiling the administrative record for litigation (see Unit II.A.4 and Unit II.A.5.). As a result of EPA's reexamination of the 2020 AEZ Rule, the Agency determined that certain amended AEZ requirements in the 2020 AEZ Rule should be rescinded, with several protections from the 2015 WPS regulatory text being reinstated. EPA determined that reinstatement of these protections from the 2015 WPS will be more effective at reducing potential exposures from ongoing pesticide applications and promote public health for all populations and communities near agricultural establishments. In addition, EPA's analysis supporting the 2015 WPS shows that these protections will better support the Agency's efforts to reduce disproportionate risks associated with agricultural pesticide exposures that currently fall on populations and communities with a history of environmental justice concerns, particularly agricultural employees ( <E T="03">i.e.,</E> workers and handlers), the employees' families, and the communities that live near establishments that use pesticides (Ref. 3). Reinstating the regulatory text for certain AEZ requirements from the 2015 WPS will be associated with minimal cost to the regulated community, as described in Unit III. These revisions are consistent with FIFRA's mandate to protect health and the environment against unreasonable risk to humans or the environment, taking into account the economic, social, and environmental costs and benefits. <HD SOURCE="HD2">E. What are the estimated incremental impacts of this action?</HD> EPA assessed the potential incremental economic impacts of this action, as compared to both the 2015 WPS and the 2020 AEZ Rule. EPA used this approach because the 2015 WPS has continued to provide the operative regulatory language for the AEZ requirements during the court-ordered stay of the 2020 AEZ Rule (see Unit II.A.4.). As compared to the 2015 WPS, EPA determined that the 2020 AEZ Rule had minimal impacts (see Unit III.A.). Similarly, EPA fo ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 154k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━