**[XXX]{.mark} Red denotes text used to assist readers**

**[XXX]{.mark} Black denotes existing regulatory language**

**[XXX]{.mark} Blue denotes new language per the proposed amendments**

**[abc]{.mark}** **Yellow denotes deleted text**

**[Octo]{.underline}ber 2008**

**This document is made available to assist readers and we believe it is
accurate.**

**All readers are advised to consult the Federal Register.**

[Shown in blue text below is the new definition added to §152.3 in
amendments to the container and containment regulations.]{.underline}

**PART 152 -- Pesticide Registration and Classification Procedures** 

       \* \* \*

**Subpart A -- General provisions.** 

**§ 152.3 Definitions.**

\* \* \* \* \*

*Released for shipment. * A product becomes released for shipment when
the producer has packaged and labeled it in the manner in which it will
be distributed or sold, or has stored it in an area where finished
products are ordinarily held for shipment.  Products stored in an area
where finished products are ordinarily held for shipment, but which are
not intended to be released for shipment must be physically separated
and marked as not yet released for shipment. Once a product becomes
released for shipment, the product remains in the condition of being
released for shipment unless subsequent activities, such as relabeling
or repackaging, constitute production. 

\* \* \* \* \*

[The amendments to the container and containment regulations added a new
§156.3, which is reflected in blue below. \[Note: The container and
containment regulations revised several paragraphs in §156.10. However,
there are no revisions to these paragraphs so they are not included
below.\]]{.underline}

**PART \[156**\--**\[AMENDED\]**

**156.3 Definitions.**

Terms used in this part have the same meaning as in the Act and part 152
of this chapter. In addition, as used in this part, the following terms
shall have the meanings set forth below.

*Dilutable* means that the pesticide product's labeling allows or
requires the pesticide product to be mixed with a liquid diluent prior
to application or use.

*Transport vehicle* means a cargo-carrying vehicle such as an
automobile, van, tractor, truck, semitrailer, tank car or rail car used
for the transportation of cargo by any mode.

[The container and containment regulations added a new Subpart H to part
156. With the amendments to the container and containment regulations
there are changes made to the regulations in §§156.140, 156.144 and
156.159. New language is in blue text, while deleted text is highlighted
in yellow.]{.underline}

Subpart H - Container Labeling

Sec.

156.140 Identification of container types.

156.144 Residue removal instructions - general.

156.159 Compliance date.

**Subpart H - Container Labeling**

**§ 156.140 Identification of container types.**

For products other than plant-incorporated protectants, the following
statements, as applicable, must be placed on the label or container. The
information may be located on any part of the container except the
closure. If the statements are placed on the container, they must be
durably marked on the container. Durable marking includes, but is not
limited to etching, embossing, ink jetting, stamping, heat stamping,
mechanically attaching a plate, molding, or marking with durable ink.

\(a\) *Nonrefillable container*. For nonrefillable containers, the
statements in paragraphs (a)(1) through (a)(4) of this section are
required except as provided in paragraphs (a)(5), (c), (d) and (e) of
this section. If placed on the label, the statements in paragraphs
(a)(1) through (a)(3) of this section must be under an appropriate
heading under the heading "Storage and Disposal." If any of the
statements in paragraphs (a)(1) through (a)(3) of this section are
placed on the container, an appropriate referral statement such as "See
container for recycling \[or other descriptive word\] information." must
be placed on the label under the heading "Storage and Disposal."

\(1\) *Statement identifying a nonrefillable container*. The following
phrase is required: \"Nonrefillable container".

\(2\) *Reuse statement*. One of the following statements is required.
Products with labels that allow household/residential use must use the
statement in paragraph (a)(2)(i) or (a)(2)(iii) of this section. All
other products must use the statement in paragraph (a)(2)(i),
(a)(2)(ii), or (a)(2)(iii) of this section.

\(i\) "Do not reuse or refill this container."

\(ii\) "Do not reuse this container to hold materials other than
pesticides or dilute pesticides (rinsate). After emptying and cleaning,
it may be allowable to temporarily hold rinsate or other
pesticide-related materials in the container. Contact your state
regulatory agency to determine allowable practices in your state."

\(iii\) The following statement may be used if a product is
"ready-to-use" and its directions for use allow a different product
(that is a similar, but concentrated formulation) to be poured into the
container and diluted by the end user: \"Do not reuse or refill this
container unless the directions for use allow a different (concentrated)
product to be diluted in the container.\"

\(3\) *Recycling or reconditioning statement*. One of the following
statements is required:

\(i\) "Offer for recycling if available."

\(ii\) "Once cleaned, some agricultural plastic pesticide containers can
be taken to a container collection site or picked up for recycling. To
find the nearest site, contact your chemical dealer or manufacturer or
contact \[**a pesticide container recycling organization**\] at
\[**phone number**\] or \[**web site**\]." For example, this statement
could be "Once cleaned, some agricultural plastic pesticide containers
can be taken to a container collection site or picked up for recycling.
To find the nearest site, contact your chemical dealer or manufacturer
or contact the Ag Container Recycling Council (ACRC) at 1-877-952-2272
(toll-free) or *www.acrecycle.org*."

\(iii\) A recycling statement approved by EPA and published in an EPA
document, such as a Pesticide Registration Notice.

\(iv\) An alternative recycling statement that has been reviewed and
approved by EPA.

\(v\) "Offer for reconditioning if appropriate."

\(4\) *Batch code*. A lot number, or other code used by the registrant
or producer to identify the batch of the pesticide product which is
distributed and sold.

\(5\) *Exemptions.* Pesticide products in the following types of
nonrefillable containers, and their packaging, are exempt from the
requirements in paragraphs (a)(1) and (a)(2) of this section:

\(i\) Aerosol cans.

\(ii\) Devices as defined in §152.500 of this chapter.

\(iii\) One-time use caulking tubes and other one-time use squeezable
tube containers for paste, gel, or other similar substances.

\(iv\) Foil packets for water soluble packaging, repellent wipes, and
other one-time use products.

\(v\) One-time use portion control packets, such as polyethylene sleeve
packages, or rodenticide placepacks.

\(vi\) One-time use bait stations.

\(vii\) One-time use cages for repellent or trapping strips.

\(viii\) Pet collars or animal ear tags, such as cattle ear tags.

\(ix\) One-time use semiochemical dispersion devices.

\(x\) Any container that is destroyed by the use of the product
contained.

\(xi\) Any container that would be destroyed if reuse of the container
were attempted.

\(b\) *Refillable container*. For refillable containers, one of the
following statements is required except as provided in paragraphs (c),
(d) and (e) of this section. If placed on the label, the statement must
be under the heading "Storage and Disposal". If the statement is placed
on the container, an appropriate referral statement, such as "Refilling
limitations are on the container." must be placed under the heading
"Storage and Disposal."

\(1\) \"Refillable Container. Refill this container with pesticide only.
Do not reuse this container for any other purpose.\"

\(2\) \"Refillable Container. Refill this container with *\[common
chemical name\]* only. Do not reuse this container for any other
purpose.\"

\(c\) *Modification.* EPA may, on its own initiative or based on data or
information submitted by any person, modify or waive the requirements of
this section or permit or require alternative labeling statements.

\(d\) *Exemption for articles.* Pesticidal articles that are not
exempted from FIFRA regulation by §152.25(a) of this chapter are exempt
from the requirements of this section.

\(e\) *Exemption for transport vehicles.* Transport vehicles are exempt
from the requirements of this section.

**156.144 Residue removal instructions - general.**

\(a\) *General*. Except as provided by paragraphs (c) through (g) of
this section, the label of each pesticide product must include the
applicable instructions for removing pesticide residues from the
container prior to container disposal that are specified in § 156.146
and §156.156. The residue removal instructions are required for both
nonrefillable and refillable containers.

\(b\) *Placement of residue removal statements*. All residue removal
instructions must be placed under the heading \"Storage and Disposal\".

\(c\) *Exemption for residential/household use products*.
Residential/household use pesticide products are exempt from the residue
removal instruction requirements in this section through §156.156.

\(d\) *Modification*. EPA may, on its own initiative or based on data
submitted by any person, modify or waive the requirements of this
section through §156.156, or permit or require alternative labeling
statements.

\(e\) *Exemption for gases. * Pesticide products that are gaseous at
atmospheric temperature and pressure are exempt from the residue removal
instruction requirements in this section through §156.156.

\(f\) Ex*emption for articles.* Pesticidal articles that are not
exempted from FIFRA regulation by §152.25(a) of this chapter are exempt
from the residue removal instruction requirements in this section
through §156.156.

\(g\) *Exemption for transport vehicles.* Transport vehicles are exempt
from the requirements in this section through §156.156.

**156.146 Residue removal instructions for nonrefillable containers -
rigid containers with dilutable pesticides.**

The label of each dilutable (liquid or solid) pesticide product packaged
in a rigid nonrefillable container must include the following residue
removal instructions as appropriate.

\(a\) *Timing of the residue removal procedure*. One of the following
statements must immediately precede the instructions required in
paragraph (b) of this section and must be consistent with the
instructions in paragraphs (b) and (c) of this section:

\(1\) "Clean container promptly after emptying."

\(2\) "Triple rinse or pressure rinse container (or equivalent) promptly
after emptying."

\(3\) "Triple rinse container (or equivalent) promptly after emptying."

\(b\) *Triple rinse instructions*. The label of each dilutable pesticide
product packaged in rigid nonrefillable containers must include one of
the following sets of instructions.

\(1\) For liquid dilutable pesticide products in containers small enough
to shake, use the following instructions: \"Triple Rinse as follows:
Empty the remaining contents into application equipment or a mix tank
and drain for 10 seconds after the flow begins to drip. Fill the
container 1/4 full with water and recap. Shake for 10 seconds. Pour
rinsate into application equipment or a mix tank or store rinsate for
later use or disposal. Drain for 10 seconds after the flow begins to
drip. Repeat this procedure two more times.\"

\(2\) For solid dilutable pesticide products in containers small enough
to shake, use the following instructions: \"Triple Rinse as follows:
Empty the remaining contents into application equipment or a mix tank.
Fill the container 1/4 full with water and recap. Shake for 10 seconds.
Pour rinsate into application equipment or a mix tank or store rinsate
for later use or disposal. Drain for 10 seconds after the flow begins to
drip. Repeat this procedure two more times.\"

\(3\) For containers that are too large to shake, use the following
instructions: "Triple rinse as follows: Empty remaining contents into
application equipment or a mix tank. Fill the container 1/4 full with
water. Replace and tighten closures. Tip container on its side and roll
it back and forth, ensuring at least one complete revolution, for 30
seconds. Stand the container on its end and tip it back and forth
several times. Turn the container over onto its other end and tip it
back and forth several times. Empty the rinsate into application
equipment or a mix tank or store rinsate for later use or disposal.
Repeat this procedure two more times."

\(c\) *Pressure rinse instructions*. The label of each dilutable
pesticide product packaged in rigid nonrefillable containers may include
one of the following sets of instructions, and one of them must be used
if the statement in paragraph (a)(2) of this section is used. If one of
these statements is included on the label, it must immediately follow
the triple rinse instructions specified in paragraph (b) of this
section.

\(1\) For liquid dilutable pesticide products, use the following label
instruction: \"Pressure rinse as follows: Empty the remaining contents
into application equipment or a mix tank and continue to drain for 10
seconds after the flow begins to drip. Hold container upside down over
application equipment or mix tank or collect rinsate for later use or
disposal. Insert pressure rinsing nozzle in the side of the container,
and rinse at about 40 PSI for at least 30 seconds. Drain for 10 seconds
after the flow begins to drip.\"

\(2\) For solid dilutable pesticide products, use the following label
instruction: \"Pressure rinse as follows: Empty the remaining contents
into application equipment or a mix tank. Hold container upside down
over application equipment or mix tank or collect rinsate for later use
or disposal. Insert pressure rinsing nozzle in the side of the
container, and rinse at about 40 PSI for at least 30 seconds. Drain for
10 seconds after the flow begins to drip.\"

\(d\) *Non-water diluent*. (1) A registrant who wishes to require users
to clean a container with a diluent other than water (e.g., solvents)
must submit to EPA a written request to modify the residue removal
instructions of this section. The registrant may not distribute or sell
the pesticide with the modified residue removal instructions until EPA
approves the request in writing.

\(2\) The registrant must indicate why a non-water diluent is necessary
for efficient residue removal, and must propose residue removal
instructions and disposal instructions that are appropriate for the
characteristics and formulation of the pesticide product and non-water
diluent. The proposed residue removal instructions must identify the
diluent. If the Directions for Use permit the application of a mixture
of the pesticide and the non-water diluent, the instructions may allow
the rinsate to be added to the application equipment or mix tank. If the
Directions for Use do not identify the non-water diluent as an allowable
addition to the pesticide, the instructions must require collection and
storage of the rinsate in a rinsate collection system.

\(3\) EPA may approve the request if EPA finds that the proposed
instructions are necessary and appropriate.

**156.156 Residue removal instructions for refillable containers.**

The label of each pesticide product packaged in a refillable container
must include the residue removal instructions in this section.
Instructions must be given for all pesticide products that are
distributed or sold in refillable containers, including those that do
not require dilution prior to application.

\(a\) *Timing of the residue removal procedure*. One of the following
statements must immediately precede the instructions required in
paragraph (b) of this section and must be consistent with the
instructions in paragraph (b) of this section:

\(1\) \"Cleaning the container before final disposal is the
responsibility of the person disposing of the container. Cleaning before
refilling is the responsibility of the refiller.\"

\(2\) \"Pressure rinsing the container before final disposal is the
responsibility of the person disposing of the container. Cleaning before
refilling is the responsibility of the refiller.\"

\(b\) *Residue removal instructions prior to container disposal*. (1)
Instructions for cleaning each

refillable container prior to disposal are required. The residue removal
instructions must be appropriate for the characteristics and formulation
of the pesticide product and must be adequate to protect human health
and the environment.

\(2\) Subject to meeting the standard in paragraph (b)(1) of this
section, the statement on residue removal instructions could include any
one of the following:

\(i\) The refilling residue removal procedure developed by the
registrant for the pesticide product.

\(ii\) Standard industry practices for cleaning refillable containers.

\(iii\) For pesticides that require dilution prior to application, the
following statement: \"To clean the container before final disposal,
empty the remaining contents from this container into application
equipment or a mix tank. Fill the container about 10 percent full with
water. Agitate vigorously or recirculate water with the pump for 2
minutes. Pour or pump rinsate into application equipment or rinsate
collection system. Repeat this rinsing procedure two more times.\"

\(iv\) Any other statement the registrant considers appropriate.

**156.159 Compliance date.**

Any pesticide product released for shipment by a registrant after August
16, 2010 must bear a label that complies with §§156.10(d)(7), 156.10(f),
156.10(i)(2)(ix), 156.140, 156.144, 156.146, and 156.156.

[The container and containment rule established an entirely new Part
165. The amendments to the container and containment regulations have
changed some definitions while making other changes throughout the
regulations. New text is in blue while deleted text is shown in yellow.
For each subpart, a note is inserted to identify the sections where
changes have been made.]{.underline}

**Part 165 -- Pesticide Management and Disposal**

**Subpart A -- General**

165.1 Scope.

165.3 Definitions.

165.4-165.19 \[Reserved\]

**Subpart B --** **Nonrefillable Container Standards: Container Design
and Residue Removal**

165.20 General provisions.

165.23 Scope of pesticide products included.

165.25 Nonrefillable container standards.

165.27 Reporting and recordkeeping.

165.28-165.39 \[Reserved\]

**Subpart C -- Refillable Container Standards: Container Design**

165.40 General provisions.

165.43 Scope of pesticide products included.

165.45 Refillable container standards.

165.47 What information must I report about my refillable containers?

165.48 - 165.59 \[Reserved\]

**Subpart D -- Standards for Repackaging Pesticide Products into
Refillable Containers**

165.60 General provisions.

165.63 Scope of pesticide products included.

165.65 Registrants who distribute or sell pesticide products in
refillable containers.

165.67 Registrants who distribute or sell pesticide products to
refillers for repackaging.

165.70 Refillers who are not registrants.

165.71-165.79 \[Reserved\]

**Subpart E -- Standards for Pesticide Containment Structures**

165.80 General provisions.

165.81 Scope of stationary pesticide containers included.

165.82 Scope of pesticide dispensing areas included.

165.83 Definition of new and existing structures.

165.85 Design and capacity requirements for new structures.

165.87 Design and capacity requirements for existing structures.

165.90 Operational, inspection and maintenance requirements for all new
and existing containment structures.

165.92 What if I need both a containment pad and a secondary containment
unit?

165.95 What recordkeeping do I have to do as a facility owner or
operator?

165.97 States with existing containment programs.

[The changes made to Subpart A are in §165.3.]{.underline}

**Subpart A -- General**

**§ 165.1 Scope.**

The Part 165 regulations establish standards and requirements for
pesticide containers, repackaging pesticides, and pesticide containment
structures.

**§ 165.3 Definitions.**

Terms used in this part have the same meaning as in the Act and part 152
of this chapter. In addition, as used in this part, the following terms
shall have the meanings set forth below.

*Act* means the Federal Insecticide, Fungicide, and Rodenticide Act.

*Agricultural pesticide* means any pesticide product labeled for use in
or on a farm, forest, nursery, or greenhouse.

*Appurtenance* means any equipment or device which is used for the
purpose of transferring a pesticide from a stationary pesticide
container or to any refillable container, including but not limited to,
hoses, fittings, plumbing, valves, gauges, pumps and metering devices.

*Capacity* means, as applied to containers, the rated capacity of the
container.

*Container* means any package, can, bottle, bag, barrel, drum, tank, or
other containing-device (excluding any application tanks) used to
enclose a pesticide. Containers that are used to sell or distribute a
pesticide product and that also function in applying the product (such
as spray bottles, aerosol cans and containers that become part of a
direct injection system) are considered to be containers for the
purposes of this part.

*Containment pad* means any structure that is designed and constructed
to intercept and contain pesticides, rinsates, and equipment wash water
at a pesticide dispensing area.

*Containment structure* means either a secondary containment unit or a
containment pad.

*Custom blending* means the service of mixing pesticides to a customer's
specifications, usually a pesticide(s)-fertilizer(s),
pesticide-pesticide, or a pesticide-animal feed mixture, when:

\(a\) The blend is prepared to the order of the customer and is not held
in inventory by the blender;

\(b\) The blend is to be used on the customer's property (including
leased or rented property);

\(c\) The pesticide(s) used in the blend bears end-use labeling
directions which do not prohibit use of the product in such a blend;

\(d\) The blend is prepared from registered pesticides; and

\(e\) The blend is delivered to the end-user along with a copy of the
end-use labeling of each pesticide used in the blend and a statement
specifying the composition of the mixture.

*Dilutable* means that the pesticide product's labeling allows or
requires the pesticide product to be mixed with a liquid diluent prior
to application or use.

*Dry pesticide* means any pesticide that is in solid form and that has
not been combined with liquids; this includes formulations such as
dusts, wettable powders, dry flowables, water-soluble powders, granules,
and dry baits.

*Establishment* means any site where a pesticidal product, active
ingredient, or device is produced, regardless of whether such site is
independently owned or operated, and regardless of whether such site is
domestic and producing a pesticidal product for export only, or whether
the site is foreign and producing any pesticidal product for import into
the United States.

*Facility* means all buildings, equipment, structures, and other
stationary items which are located on a single site or on contiguous or
adjacent sites and which are owned or operated by the same person (or by
any person who controls, who is controlled by, or who is under common
control with such person).

*Nonrefillable container* means a container that is not a refillable
container and that is designed and constructed for one-time use and is
not intended to be filled again with a pesticide for sale or
distribution. Reconditioned containers are considered to be
nonrefillable containers.

*One-way valve* means a valve that is designed and constructed to allow
virtually unrestricted flow in one direction and no flow in the opposite
direction, thus allowing the withdrawal of material from, but not the
introduction of material into, a container.

*Operator* means any person in control of, or having responsibility for,
the daily operation of a facility at which a containment structure is
located.

*Owner* means any person who owns a facility at which a containment
structure is required.

*Pesticide compatible* *as applied to containers* means that the
container construction materials will not chemically react with the
formulation. A container is not compatible with the formulation if, for
example, the formulation: (1) is corrosive to the container; (2) causes
softening, premature aging, or embrittlement of the container; (3)
otherwise causes the container to weaken or to create the risk of
discharge; (4) reacts in a significant chemical, electrolytic, or
galvanic manner with the container, or (5) interacts in a way, such as
the active ingredient permeating the container wall, that would cause
the formulation to differ from its composition as described in the
statement required in connection with its registration under FIFRA
section 3.

*Pesticide compatible* *as applied to containment* means that the
containment construction materials are able to withstand anticipated
exposure to stored or transferred substances without losing the
capability to provide the required containment of the same or other
substances within the containment area.

*Pesticide dispensing area* means an area in which pesticide is
transferred out of or into a container.

*Portable pesticide container* means a refillable container that is not
a stationary pesticide container.

*Produce* means to manufacture, prepare, propagate, compound, or process
any pesticide, including any pesticide produced pursuant to section 5 of
the Act, and any active ingredient or device, or to package, repackage,
label, relabel, or otherwise change the container of any pesticide or
device.

*Producer* means any person, as defined by the Act, who produces any
pesticide, active ingredient, or device (including packaging,
repackaging, labeling and relabeling).

*Refillable container* means a container that is intended to be filled
with pesticide more than once for sale or distribution.

*Refiller* means a person who engages in the activity of repackaging
pesticide product into refillable containers. This could include a
registrant or a person operating under contract to a registrant.

*Refilling establishment* means an establishment where the activity of
repackaging pesticide product into refillable containers occurs.

*Repackage* means, for the purposes of this part, to transfer a
pesticide formulation from one container to another without a change in
the composition of the formulation, the labeling content, or the
product's EPA registration number, for sale or distribution.

*Rinsate* means the liquid resulting from the rinsing of the interior of
any equipment or container that has come in direct contact with any
pesticide.

*Runoff* means surface water leaving the target site.

*Secondary containment unit* means any structure, including rigid
diking, that is designed and constructed to intercept and contain
pesticide spills and leaks and to prevent runoff and leaching from
stationary pesticide containers.

*Stationary pesticide container* means a refillable container that is
fixed at a single facility or establishment or, if not fixed, remains at
the facility or establishment for at least 30 consecutive days, and that
holds pesticide during the entire time.

*Suspension concentrate* means a stable suspension of solid particulate
active ingredients in a liquid intended for dilution with water before
use.   

*Tamper-evident device* means a device which can be visually inspected
to determine if a container has been opened.

*Transport vehicle* means a cargo-carrying vehicle such as an
automobile, van, tractor, truck, semitrailer, tank car or rail car used
for the transportation of cargo by any mode.

*Washwater* means the liquid resulting from the rinsing of the exterior
of any equipment or containers that have or may have come in direct
contact with any pesticide or system maintenance compound, such as oil
or antifreeze.

[The changes made to Subpart B are in §§165.20(c), 165.23(d), 165.25(a),
165.25(b), 165.25(f)(2), 165.27(b), 165.27(b)(4)(iii), 165.27(b)(5), and
165.27(b)(5)(iii).]{.underline}

**Subpart B \-- Nonrefillable Container Standards: Container Design and
Residue Removal**

**§ 165.20 General provisions.**

\(a\) *What is the purpose of the regulations in this subpart?* The
regulations in this subpart establish design and construction
requirements for nonrefillable containers used for the distribution or
sale of some pesticide products.

\(b\) *Do I have to comply with the regulations in this subpart?* You
must comply with the regulations in this subpart if you are a registrant
who distributes or sells a pesticide product in nonrefillable
containers. If your pesticide product is subject to the regulations in
this subpart as set out in § 165.23, your pesticide product must be
distributed or sold in a nonrefillable container that meets the
standards of these regulations.

\(c\) *When do I have to comply?* Any pesticide product packaged in a
nonrefillable container and released for shipment by you after August
16, 2009 must be packaged in a nonrefillable container that complies
with the regulations of this subpart.

**§ 165.23 Scope of pesticide products included.**

\(a\) *Are manufacturing use products subject to the regulations in this
subpart?* No, the regulations in this subpart do not apply to
manufacturing use products, as defined in § 158.153(h) of this chapter.

\(b\) *Are plant-incorporated protectants subject to the regulations in
this subpart?* No, the regulations in this subpart do not apply to
plant-incorporated protectants, as defined in § 174.3 of this chapter.

\(c\) *Which antimicrobial pesticide products are not subject to the
regulations in this subpart?* The regulations in this subpart do not
apply to a pesticide product if it satisfies all of the following
conditions:

\(1\) The pesticide product meets one of the following two criteria:

\(i\) The pesticide product is an antimicrobial pesticide as defined in
FIFRA section 2(mm); or

\(ii\) The pesticide product: (A) Is intended to: disinfect, sanitize,
reduce or mitigate growth or development of microbiological organisms;
or protect inanimate objects, industrial processes or systems, surfaces,
water, or other chemical substances from contamination, fouling, or
deterioration caused by bacteria, viruses, fungi, protozoa, algae, or
slime; and

\(B\) In the intended use is subject to a tolerance under section 408 of
the Federal Food, Drug, and Cosmetic Act or a food additive regulation
under section 409 of such Act.

\(2\) The labeling of the pesticide product includes directions for use
on a site in at least one of the following antimicrobial product use
categories: food handling/storage establishments premises and equipment;
commercial, institutional, and industrial premises and equipment;
residential and public access premises; medical premises and equipment;
human drinking water systems; materials preservatives; industrial
processes and water systems; antifouling coatings; wood preservatives;
or swimming pools.

\(3\) The pesticide product is not a hazardous waste as set out in part
261 of this chapter when the pesticide product is intended to be
disposed.

\(4\) EPA has not specifically determined that the pesticide product
must be subject to the regulations in this subpart to prevent an
unreasonable adverse effect on the environment according to the
provisions of paragraph (d) of this section.

\(d\) *How will EPA determine if an* *antimicrobial pesticide product
otherwise exempted must be subject to the regulations in this subpart to
prevent an unreasonable adverse effect on the environment?*

\(1\) EPA may determine that an antimicrobial pesticide product
otherwise exempted by paragraph (c) of this section must be subject to
the nonrefillable container regulations in this subpart to prevent an
unreasonable adverse effect on the environment if all of the following
conditions exist:

\(i\) EPA obtains information, data or other evidence of a problem with
the containers of a certain pesticide product or related group of
products.

\(ii\) The information, data or other evidence is reliable and factual.

\(iii\) The problem causes or could reasonably be expected to cause an
unreasonable adverse effect on the environment.

\(iv\) Complying with the container regulations could reasonably be
expected to eliminate the problem.

\(2\) If EPA determines that an antimicrobial pesticide product
otherwise exempted by paragraph (c) of this section must be subject to
the nonrefillable container regulations in this subpart to prevent an
unreasonable adverse effect on the environment, EPA may require, by
rule, that the product be distributed or sold in nonrefillable
containers that comply with all or some of the requirements in this
subpart. Alternatively, EPA may notify the applicant or registrant of
its intent to make such a determination. After allowing the applicant or
registrant a reasonable amount of time to reply, EPA may require, by
notification and as a condition of registration, that the product be
distributed or sold in nonrefillable containers that comply with all or
some of the requirements in this subpart. For the purpose of the
previous sentence, 60 days would be a reasonable amount of time to
reply, although EPA may, in its discretion, provide more time. EPA may
deny registration or initiate cancellation proceedings if the registrant
fails to comply with the nonrefillable container regulations within the
time frames established by EPA in the rule or in its notification.

\(e\) *What other pesticide products are subject to the regulations in
this subpart?* (1) Except for manufacturing use products,
plant-incorporated protectants, and antimicrobial products that are
exempt under paragraph (c) of this section, all of the regulations in
this subpart apply to a pesticide product if it satisfies at least one
of the following criteria:

\(i\) The pesticide product meets the criteria of Toxicity Category I as
set out in § 156.62 of this chapter.

\(ii\) The pesticide product meets the criteria of Toxicity Category II
as set out in § 156.62 of this chapter.

\(iii\) The pesticide product is classified for restricted use as set
out in §§ 152.160 - 152.175 of this chapter.

\(2\) Except for manufacturing use products, plant-incorporated
protectants, antimicrobial products that are exempt under (c) of this
section, and other pesticide products that are regulated under paragraph
(e)(1) of this section, a pesticide product must be packaged in
compliance with 49 CFR 173.24. If the pesticide product meets the
definition of a hazardous material in 49 CFR 171.8, the Department of
Transportation requires it to be packaged according to 49 CFR parts
171-180.

\(f\) *What does "pesticide product" or "pesticide" mean in the rest of
this subpart?* In § 165.25 through § 165.27, the term "pesticide
product" or "pesticide" refers only to a pesticide product or a
pesticide that is subject to the regulations in this subpart as
described in paragraphs (a) through (e) of this section.

**§ 165.25 Nonrefillable container standards.**

\(a\) *What Department of Transportation (DOT) standards do my
nonrefillable containers have to meet under this part if my pesticide
product is not a DOT hazardous material?* A pesticide product that does
not meet the definition of a hazardous material in 49 CFR 171.8 must be
packaged in a nonrefillable container that, if portable, is designed,
constructed, and marked to comply with the requirements of 49 CFR 173.4,
173.5, 173.6, 173.24, 173.24a, 173.24b, 173.28, 173.155, 173.203,
173.213, 173.240(c), 173.240(d), 173.241(c), 173.241(d), Part 178, and
Part 180 that are applicable to a Packing Group III material, or, if
subject to a special permit, according to the applicable requirements of
49 CFR part 107 subpart B. The requirements in this paragraph apply to
the pesticide product as it is packaged for transportation in commerce.

\(b\) *What DOT standards do my nonrefillable containers have to meet
under this part if my pesticide product is a DOT hazardous material?*
(1) If your pesticide product meets the definition of a hazardous
material in 49 CFR 171.8, the DOT requires your pesticide product to be
packaged according to 49 CFR parts 171-180 or, if subject to a special
permit, according to the applicable requirements of 49 CFR part 107
subpart B.

\(2\) For the purposes of these regulations, a pesticide product that
meets the definition of a hazardous material in 49 CFR 171.8 must be
packaged in a nonrefillable container that, if portable, is designed,
constructed, and marked to comply with the requirements of 49 CFR parts
171-180 or, if subject to a special permit, according to the applicable
requirements of 49 CFR part 107 subpart B. The requirements in this
paragraph apply to the pesticide product as it is packaged for
transportation in commerce.

\(c\) *What will EPA do if DOT proposes to change any of the
cross-referenced regulations?* If the DOT proposes to change any of the
regulations that are incorporated in paragraphs (a) and (b) of this
section, EPA will provide notice of the proposed changes and an
opportunity to comment in the **Federal Register**. Following notice and
comment, EPA will take final action regarding whether or not to revise
its rules, and the extent to which any such revision will correspond
with revised DOT regulations.

\(d\) *What standards for closures do my nonrefillable containers have
to meet?* If your nonrefillable container is a rigid container with a
capacity equal to or greater than 3.0 liters (0.79 gallons), if the
container is not an aerosol container or a pressurized container, and if
the container is used to distribute or sell a liquid agricultural
pesticide, each nonrefillable container must have at least one of the
following standard closures:

\(1\) Bung, 2 inch pipe size (2.375 inches in diameter), external
threading, 11.5 threads per inch, National Pipe Straight (NPS) standard.

\(2\) Bung, 2 inch pipe size (2.375 inches in diameter), external
threading, 5 threads per inch, buttress threads.

\(3\) Screw cap, 63 millimeters, at least one thread revolution at 6
threads per inch.

\(4\) Screw cap, 38 millimeters, at least one thread revolution at 6
threads per inch. The cap may fit on a separate rigid spout or on a
flexible pull-out plastic spout.

\(e\) *What standards for dispensing do my nonrefillable containers have
to meet?* If your nonrefillable container has a capacity of 5 gallons
(18.9 liters) or less, if the container is not an aerosol container, a
pressurized container, or a spray bottle, and if the container holds a
liquid pesticide, your nonrefillable container must do both of the
following:

\(1\) Allow the contents of the nonrefillable container to pour in a
continuous, coherent stream.

\(2\) Allow the contents of the nonrefillable container to be poured
with a minimum amount of dripping down the outside of the container.

\(f\) *What standards for residue removal do my nonrefillable containers
have to meet?* Each nonrefillable container and pesticide formulation
combination must meet the applicable residue removal standard of this
section.

\(1\) If the nonrefillable container is rigid and has a capacity less
than or equal to 5 gallons (18.9 liters) for liquid formulations or 50
pounds (22.7 kilograms) for solid formulations and if the pesticide
product's labeling allows or requires the pesticide product to be mixed
with a liquid diluent prior to application (that is, if the pesticide is
dilutable), each container/formulation combination must be capable of
attaining at least 99.99 percent removal of each active ingredient when
tested using the EPA test procedure "Rinsing Procedures for Dilutable
Pesticide Products in Rigid Containers."

\(2\) The test must be conducted only if the pesticide product is a
suspension concentrate or if EPA specifically requests the records on a
case by case basis.

\(3\) For the rigid container/dilutable product standard in paragraph
(f)(1) of this section, percent removal represents the percent of the
original concentration of the active ingredient in the pesticide product
when compared to the concentration of that active ingredient in the
fourth rinse. Percent removal is calculated by the formula:

percent removal = \[1.0 - RR\] x 100.0, where

Active ingredient concentration in fourth rinsate

RR = rinsate ratio =
\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--
.

Original concentration of active ingredient in the product

\(g\) *Can I obtain a waiver from or a modification to any of the
nonrefillable container standards?* Yes, it is possible for you to
obtain a waiver from or a modification to the nonrefillable container
standards, as follows:

\(1\) EPA may waive or modify the requirements of § 165.25(a) regarding
the DOT standards for pesticide products that are not DOT hazardous
materials if EPA determines that an alternative (partial or modified)
set of standards or pre-existing requirements achieves a level of safety
that is at least equal to that specified in the requirements of §
165.25(a).

\(2\) EPA may waive or modify the requirements of § 165.25(b) regarding
the DOT standards for pesticide products that are DOT hazardous
materials if EPA determines that an alternative (partial or modified)
set of standards or pre-existing requirements achieves a level of safety
that is at least equal to that specified in the requirements of §
165.25(b). EPA will modify or waive the requirements of § 165.25(b) only
after consulting with DOT to ensure consistency with DOT regulations and
exemptions.

\(3\) EPA may approve a non-standard closure (that is, a closure not
listed in § 165.25(d)) if EPA determines that both of the following
conditions are satisfied:

\(i\) The non-standard closure is necessary for the proper mixing,
loading, or application of the pesticide product.

\(ii\) The non-standard closure offers exposure protection to handlers
during mixing and loading that is the same or greater than that provided
by the standard closures.

\(4\) EPA may waive or modify the container dispensing capability
standards in § 165.25(e) if EPA determines that at least one of the
following conditions is satisfied:

\(i\) The product is typically removed from the container by a method
other than pouring.

\(ii\) Compliance with the container dispensing capability standards
would increase exposure to the pesticide container handler.

\(5\) EPA may waive or modify the requirements of § 165.25(f) regarding
the residue removal standard if EPA determines that both of the
following conditions are satisfied:

\(i\) The residue remaining in the container would not cause an
unreasonable adverse effect on the environment; and

\(ii\) The product offers significant benefits and cannot be
economically reformulated or repackaged.

\(h\) *How do I obtain a waiver from or a modification to any of the
nonrefillable container standards?* To obtain a waiver from or a
modification to any of the nonrefillable container standards, you must
submit a written request for a waiver or a modification to the EPA to
the following address: Office of Pesticide Programs (7504C); U.S.
Environmental Protection Agency; Ariel Rios Building; 1200 Pennsylvania
Avenue, N.W., Washington, DC 20460. You cannot distribute or sell the
pesticide product in a nonrefillable container that does not comply with
all of the nonrefillable container standards unless and until EPA
approves the request for the waiver or modification in writing. You must
include two copies of the following information (which may be part of an
application for registration or amended registration) with your written
request:

\(1\) The name and address of the registrant; the date; and the name,
title, signature, and phone number of the company official making the
request.

\(2\) The name and EPA registration number of the pesticide product for
which the waiver or modification is requested.

\(3\) A statement specifying the requirement or requirements from which
you are requesting a waiver or a modification.

\(4\) A description of the nonrefillable container or containers for
which the waiver or modification is requested.

\(5\) Documentation or justification to demonstrate that the applicable
waiver or modification criteria in paragraph (g) of this section are
satisfied.

**§ 165.27 Reporting and recordkeeping.**

\(a\) *What information must I report about my nonrefillable
containers?* You are not required to report to EPA with information
about your nonrefillable containers under the regulations in this
subpart. You should refer to the reporting standards in Part 159 of this
chapter to determine if information on container failures or other
incidents involving pesticide containers must be reported to EPA under
FIFRA section 6(a)(2) (7 U.S.C. § 136d(a)(2)).

\(b\) *What recordkeeping do I have to do for my nonrefillable
containers?* For each pesticide product that is subject to §§165.25 -
165.27 and is distributed or sold in nonrefillable containers, you must
maintain the records listed in this section for as long as a
nonrefillable container is used to distribute or sell the pesticide
product and for 3 years after that. You must furnish these records for
inspection and copying upon request by an employee of EPA or any entity
designated by EPA, such as a State, another political subdivision or a
Tribe. You must keep the following records:

\(1\) The name and EPA registration number of the pesticide product.

\(2\) A description of the nonrefillable container(s) in which the
pesticide product is distributed or sold.

\(3\) At least one of the following records to document compliance with
the requirement for closures in § 165.25(d) for each nonrefillable
container used to distribute or sell the pesticide product that must
comply with § 165.25(d):

\(i\) A letter or document from the container supplier that describes
the closure.

\(ii\) A specification about the closure in the contract between the
registrant or applicant and the container supplier.

\(iii\) A copy of EPA's approval of any non-standard closure.

\(4\) At least one of the following records pertaining to the container
dispensing capability requirements in § 165.25(e) for each nonrefillable
container used to distribute or sell the pesticide product that must
comply with § 165.25(e):

\(i\) Test data or documentation demonstrating that the nonrefillable
container meets the standards in § 165.25(e) when it contains the
pesticide product.

\(ii\) Test data or documentation demonstrating that a different
nonrefillable container meets the standards in § 165.25(e) when it
contains the pesticide product or even a different pesticide product and
a written explanation of why such data or documentation demonstrates
that the container meets the standards in § 165.25(e) for the pesticide
product.

\(iii\) A copy of EPA's approval of a request for a waiver from the
container dispensing requirement.

\(5\) At least one of the following records pertaining to the
nonrefillable container residue removal requirement in § 165.25(f) if
the pesticide product is a suspension concentrate or if EPA specifically
requests the records on a case by case basis:

\(i\) Test data showing that the nonrefillable container and pesticide
formulation meet the standard in § 165.25(f) .

\(ii\) Test data showing that a different nonrefillable container with
the same or a different pesticide formulation meets the standard in §
165.25(f), together with a written explanation of why such data
demonstrate that the nonrefillable container and pesticide formulation
meet the standard in § 165.25(f).

\(iii\) A copy of EPA's approval of a request for a waiver from the
residue removal standard requirement. 

[The changes to Subpart C are in §§165.40(b)(3), 165.40(c), 165.43(c),
165.43(d), 165.43(e), 165.43(f), 165.43(g), 165.45(a)(1), 165.45(b)(1),
165.45(b)(2), 165.45(e), and 165.45(f), 165.45(f)(2), 165.45(f)(2)(i),
165.45(f)(2)(ii), and 165.45(f)(2)(iii).]{.underline}

**Subpart C \-- Refillable Container Standards: Container Design**

**§ 165.40 General provisions.**

\(a\) *What is the purpose of the regulations in this subpart?* The
regulations in this subpart establish design and construction
requirements for refillable containers used for the distribution or sale
of some pesticide products.

\(b\) *Do I have to comply with the regulations in this subpart?* (1)
You must comply with all of the regulations in this subpart if you are a
registrant who distributes or sells a pesticide product in refillable
containers. If your pesticide product is subject to the regulations in
this subpart as set out in § 165.43, your pesticide product must be
distributed or sold in a refillable container that meets the standards
of these regulations. This includes your pesticide products that are
repackaged according to Subpart D.

\(2\) You must comply with the regulations in § 165.45(f) for stationary
pesticide containers if you are a refiller of a pesticide product and
you are not the registrant of the pesticide product. If the pesticide
product is subject to the regulations in this subpart as set out in §
165.43, the stationary pesticide containers used to distribute or sell
the product must meet the standards of § 165.45(f).

\(3\) If you are a refiller of a pesticide product and you are not a
registrant of the pesticide product, §165.45(a)(2) provides an exemption
from some of the requirements in §165.45(a)(1).

\(c\) *When do I have to comply?* Any pesticide product packaged in a
refillable container and released for shipment by you after August 16,
2011 must be packaged in a refillable container that complies with the
regulations of this subpart.  

**§ 165.43 Scope of pesticide products included.**

(a*) Are manufacturing use products subject to the regulations in this
subpart?* No, the regulations in this subpart do not apply to
manufacturing use products, as defined in § 158.153(h) of this chapter.

\(b\) *Are plant-incorporated protectants subject to the regulations in
this subpart?* No, the regulations in this subpart do not apply to
plant-incorporated protectants, as defined in § 174.3 of this chapter.

\(c\) *Which antimicrobial pesticide products are not subject to the
regulations in this subpart?* The regulations in this subpart do not
apply to a pesticide product if it satisfies all of the following
conditions:

\(1\) The pesticide product meets one of the following two criteria:

\(i\) The pesticide product is an "antimicrobial pesticide" as defined
in FIFRA section 2(mm); or

\(ii\) The pesticide product: (A) Is intended to: disinfect, sanitize,
reduce or mitigate growth or development of microbiological organisms;
or protect inanimate objects, industrial processes or systems, surfaces,
water, or other chemical substances from contamination, fouling, or
deterioration caused by bacteria, viruses, fungi, protozoa, algae, or
slime; and

\(B\) In the intended use is subject to a tolerance under section 408 of
the Federal Food, Drug, and Cosmetic Act or a food additive regulation
under section 409 of such Act.

\(2\) The labeling of the pesticide product includes directions for use
on a site in at least one of the following antimicrobial product use
categories: food handling/storage establishments premises and equipment;
commercial, institutional, and industrial premises and equipment;
residential and public access premises; medical premises and equipment;
human drinking water systems; materials preservatives; industrial
processes and water systems; antifouling coatings; wood preservatives;
or swimming pools.

\(3\) The pesticide product is not a hazardous waste as set out in part
261 of this chapter when the pesticide product is intended to be
disposed.

\(4\) EPA has not specifically determined that the pesticide product
must be subject to the regulations in this subpart to prevent an
unreasonable adverse effect on the environment according to the
provisions of paragraph (e) of this section.

\(d\) *Which requirements must an* *antimicrobial* *swimming pool
product comply with if it is not exempt from these regulations?* An
antimicrobial swimming pool product that is not exempt by paragraph (a),
(b), or (c) of this section must comply with all of the regulations in
this subpart except § 165.45(d) regarding marking and § 165.45(e)
regarding openings. For the purposes of this subpart, an antimicrobial
swimming pool product is a pesticide product that satisfies both of the
following conditions:

\(1\) The pesticide product is intended to: disinfect, sanitize, reduce
or mitigate growth or development of microbiological organisms; or
protect inanimate objects, industrial processes or systems, surfaces,
water, or other chemical substances from contamination, fouling, or
deterioration caused by bacteria, viruses, fungi, protozoa, algae, or
slime.

\(2\) The labeling of the pesticide product includes directions for use
on only a site or sites in the antimicrobial product use category of
swimming pools.

\(e\) *How will EPA determine if an antimicrobial* *pesticide product
otherwise exempted must be subject to the regulations in this subpart to
prevent an unreasonable adverse effect on the environment?* (1) EPA may
determine that an antimicrobial pesticide product otherwise exempted by
paragraph (c) of this section must be subject to the refillable
container regulations in this subpart to prevent an unreasonable adverse
effect on the environment if all of the following conditions exist:

\(i\) EPA obtains information, data or other evidence of a problem with
the containers of a certain pesticide product or related group of
products.

\(ii\) The information, data or other evidence is reliable and factual.

\(iii\) The problem causes or could reasonably be expected to cause an
unreasonable adverse effect on the environment.

\(iv\) Complying with the container regulations could reasonably be
expected to eliminate the problem.

\(2\) If EPA determines that an antimicrobial pesticide product
otherwise exempted by paragraph (c) of this section must be subject to
the refillable container regulations in this subpart to prevent an
unreasonable adverse effect on the environment, EPA may require, by
rule, that the product be distributed or sold in refillable containers
that comply with all or some of the requirements in this subpart.
Alternatively, EPA may notify the applicant or registrant of its intent
to make such a determination. After allowing the applicant or registrant
a reasonable amount of time to reply, EPA may require, by notification
and as a condition of registration, that the product be distributed or
sold in refillable containers that comply with all or some of the
requirements in this subpart. For the purpose of the previous sentence,
60 days would be a reasonable amount of time to reply, although EPA may,
in its discretion, provide more time. EPA may deny registration or
initiate cancellation proceedings if the registrant fails to comply with
the refillable container regulations within the time frames established
by EPA in the rule or in its notification.

\(f\) *What other pesticide products are subject to the regulations in
this subpart?* The regulations in this subpart apply to all pesticide
products other than manufacturing use products, plant-incorporated
protectants, and antimicrobial products that are exempt by paragraph (c)
of this section. Antimicrobial products covered under paragraph (d) of
this section are subject to the regulations indicated in that section.

\(g\) *What does "pesticide product" or "pesticide" mean in the rest of
this subpart?* In § 165.43(h) through § 165.47, the term "pesticide
product" or "pesticide" refers only to a pesticide product or a
pesticide that is subject to the regulations in this subpart as
described in paragraphs (a) through (f) of this section.

\(h\) *Are there any other exceptions?* (1) The regulations in this
subpart do not apply to transport vehicles that contain pesticide in
pesticide-holding tanks that are an integral part of the transport
vehicle and that are the primary containment for the pesticide.

\(2\) The regulations in this subpart do not apply to containers that
hold pesticides that are gaseous at atmospheric temperature and
pressure.

**§ 165.45 Refillable container standards**.

\(a\) *What Department of Transportation (DOT) standards do my
refillable containers have to meet under this part if my pesticide
product is not a DOT hazardous material?* (1) A pesticide product that
does not meet the definition of a hazardous material in 49 CFR 171.8
must be packaged in a refillable container that, if portable, is
designed, constructed, and marked to comply with the requirements of 49
CFR 173.4, 173.5, 173.6, 173.24, 173.24a, 173.24b, 173.28, 173.155,
173.203, 173.213, 173.240(c), 173.240(d), 173.241(c), 173.241(d), Part
178, and Part 180 that are applicable to a Packing Group III material,
or, if subject to a special permit, according to the applicable
requirements of 49 CFR part 107 subpart B. The requirements in this
paragraph apply to the pesticide product as it is packaged for
transportation in commerce.

\(2\) A refiller is not required to comply with 49 CFR 173.28(b)(2) for
pesticide products that are not DOT hazardous materials if the
refillable container to be reused complies with the refillable container
regulations in this subpart and the refilling is done in compliance with
the repackaging regulations in Subpart D of this part.

\(b\) *What DOT standards do my refillable containers have to meet under
this part if my pesticide product is a DOT hazardous material?* (1) If
your pesticide product meets the definition of a hazardous material in
49 CFR 171.8, the DOT requires your pesticide product to be packaged
according to 49 CFR parts 171-180 or, if subject to a special permit,
according to the applicable requirements of 49 CFR part 107 subpart B.

\(2\) For the purposes of these regulations, a pesticide product that
meets the definition of a hazardous material in 49 CFR 171.8 must be
packaged in a refillable container that, if portable, is designed,
constructed, and marked to comply with the requirements of 49 CFR parts
171-180 or, if subject to a special permit, according to the applicable
requirements of 49 CFR part 107 subpart B. The requirements in this
paragraph apply to the pesticide product as it is packaged for
transportation in commerce.

\(c\) *What will EPA do if DOT proposes to change any of the
cross-referenced regulations?* If the DOT proposes to change any of the
regulations that are incorporated in paragraphs (a) and (b) of this
section, EPA will provide notice of the proposed changes and an
opportunity to comment in the **Federal Register**. Following notice and
comment, EPA will take final action regarding whether or not to revise
its rules, and the extent to which any such revision will correspond
with revised DOT regulations.

\(d\) *What standards for marking do my refillable containers have to
meet?* Each refillable container must be marked in a durable and clearly
visible manner with a serial number or other identifying code that will
distinguish the individual container from all other containers. Durable
marking includes, but is not limited to, etching, embossing, ink
jetting, stamping, heat stamping, mechanically attaching a plate,
molding, and marking with durable ink. The serial number or other
identifying code must be located on the outside part of the container
except on a closure. Placement on the label or labeling is not
sufficient unless the label is an integral, permanent part of or
permanently stamped on the container.

\(e\) *What standards for openings do my refillable containers have to
meet?* If your refillable container is a portable pesticide container
that is designed to hold liquid pesticide formulations and is not a
cylinder that complies with the DOT Hazardous Materials Regulations in
49 CFR parts 171-180, each opening of the container other than a vent
must have a one-way valve, a tamper-evident device or both. A one-way
valve may be located in a device or system separate from the container
if the device or system is the only reasonably foreseeable way to
withdraw pesticide from the container. A vent must be designed to
minimize the amount of material that could be introduced into the
container through it.

\(f\) *What standards do my stationary pesticide containers have to
meet?* If a stationary pesticide container designed to hold undivided
quantities of pesticides equal to or greater than 500 gallons (1,890
liters) of liquid pesticide or equal to or greater than 4,000 pounds
(1,818 kilograms) of dry pesticide is located at the refilling
establishment of a refiller operating under written contract to you, the
stationary pesticide container must meet the following standards:

\(1\) Except during a civil emergency or any unanticipated grave natural
disaster or other natural phenomenon of an exceptional, inevitable and
irresistible character, the effects of which could not have been
prevented or avoided by the exercise of due care or foresight, each
stationary pesticide container (for liquid and dry pesticides) and its
appurtenances must meet both of the following standards:

\(i\) Each stationary pesticide container and its appurtenances must be
resistant to extreme changes in temperature and constructed of materials
that are adequately thick to not fail and that are resistant to
corrosion, puncture, or cracking.

\(ii\) Each stationary pesticide container must be capable of
withstanding all operating stresses, taking into account static head,
pressure buildup from pumps and compressors, and any other foreseeable
mechanical stresses to which the container may be subjected in the
course of operations.

\(2\) Each stationary container of liquid pesticides must meet all of
the following standards:

\(i\) Each stationary container of liquid pesticides must be equipped
with a vent or other device designed to relieve excess pressure, prevent
losses by evaporation, and exclude precipitation.

\(ii\) External sight gauges, which are pesticide-containing hoses or
tubes that run vertically along the exterior of the container from the
top to the bottom, are prohibited on stationary containers of liquid
pesticides.

\(iii\) Each connection on a stationary container of liquid pesticides
that is below the normal liquid level must be equipped with a shutoff
valve which is capable of being locked closed. A shutoff valve must be
located within a secondary containment unit if one is required by
subpart E of this part.

\(g\) *Can I obtain a waiver from or a modification to any of the
refillable container standards?* Yes, it is possible for you to obtain a
waiver from or a modification to some of the refillable container
standards, as follows:

\(a\) EPA may waive or modify the requirements of paragraph (a) of this
section regarding the DOT standards for pesticide products that are not
DOT hazardous materials if EPA determines that an alternative (partial
or modified) set of standards or pre-existing requirements achieves a
level of safety that is at least equal to that specified in the
requirements of paragraph (a) of this section.

\(b\) EPA may waive or modify the requirements of paragraph (b) of this
section regarding the DOT standards for pesticide products that are DOT
hazardous materials if EPA determines that an alternative (partial or
modified) set of standards or pre-existing requirements achieves a level
of safety that is at least equal to that specified in the requirements
of paragraph (b) of this section. EPA will modify or waive the
requirements of paragraph (b) of this section only after consulting with
DOT to ensure consistency with DOT regulations and exemptions.

\(h\) *How do I obtain a waiver from or a modification to any of the
refillable container standards?*

To obtain a waiver from or a modification to any of the refillable
container standards, you must submit a written request for a waiver or a
modification to the EPA to the following address: Office of Pesticide
Programs (7504C); U.S. Environmental Protection Agency; Ariel Rios
Building; 1200 Pennsylvania Avenue, N.W., Washington, DC 20460. You
cannot distribute or sell the pesticide product in a refillable
container that does not comply with all of the refillable container
standards unless and until EPA approves the request for the waiver or
modification in writing. You must include two copies of the following
information (which may be part of an application for registration or
amended registration) with your written request:

\(1\) The name and address of the registrant; the date; and the name,
title, signature, and phone number of the company official making the
request.

\(2\) The name and EPA registration number of the pesticide product for
which the waiver or modification is requested.

\(3\) A statement specifying the requirement or requirements from which
you are requesting a waiver or a modification.

\(4\) A description of the refillable container or containers for which
the waiver or modification is requested.

\(5\) Documentation or justification to demonstrate that the applicable
waiver or modification criteria in paragraph (g) of this section are
satisfied.

**§ 165.47 What information must I report about my refillable
containers?**

You are not required to report to EPA with information about your
refillable containers under the regulations in this subpart. You should
refer to the reporting standards in Part 159 of this chapter to
determine if information on container failures or other incidents
involving pesticide containers must be reported to EPA under FIFRA
section 6(a)(2) (7 U.S.C. 136d(a)(2)).

[The changes to Subpart D are in §§165.60(c), 165.63(d)(1),
165.65(i)(2)(iii), 165.67(b)(2)(ii), 165.67(d), 165.70(b)(2)(ii),
165.70(e)(5)(i), and 165.70(j)(2)(iii).]{.underline}

**Subpart D -- Standards for Repackaging Pesticide Products into
Refillable Containers**

**§ 165.60 General provisions**.

\(a\) *What is the purpose of the regulations in this subpart?* The
regulations in this subpart establish requirements for repackaging some
pesticide products into refillable containers for distribution or sale.

\(b\) *Do I have to comply with the regulations in this subpart?* You
must comply with the regulations in this subpart if you are a registrant
who distributes or sells a pesticide product in refillable containers,
if you are a registrant who distributes or sells pesticide products to a
refiller (that is not part of your company) for repackaging into
refillable containers, or if you are a refiller of a pesticide product
and you are not the registrant of the pesticide product. Each pesticide
product that is subject to the regulations in this subpart as set out in
§ 165.63 and that is distributed or sold in a refillable container must
be distributed or sold in compliance with the standards of these
regulations.

\(c\) *When do I have to comply?* Any pesticide product repackaged into
a refillable container and released for shipment by you after August 16,
2011 must be repackaged in compliance with the regulations of this
subpart.

**§ 165.63 Scope of pesticide products included**.

\(a\) *Are manufacturing use products subject to the regulations in this
subpart?* No, the regulations in this subpart do not apply to
manufacturing use products, as defined in § 158.153(h) of this chapter.

\(b\) *Are plant-incorporated protectants subject to the regulations in
this subpart?* No, the regulations in this subpart do not apply to
plant-incorporated protectants, as defined in § 174.3 of this chapter.

\(c\) *Which antimicrobial pesticide products are not subject to the
regulations in this subpart?* The regulations in this subpart do not
apply to a pesticide product if it satisfies all of the following
conditions:

\(1\) The pesticide product meets one of the following two criteria:

\(i\) The pesticide product is an antimicrobial pesticide as defined in
FIFRA section 2(mm); or

\(ii\) The pesticide product: (A) Is intended to: disinfect, sanitize,
reduce or mitigate growth or development of microbiological organisms;
or protect inanimate objects, industrial processes or systems, surfaces,
water, or other chemical substances from contamination, fouling, or
deterioration caused by bacteria, viruses, fungi, protozoa, algae, or
slime; and

\(B\) In the intended use is subject to a tolerance under section 408 of
the Federal Food, Drug, and Cosmetic Act or a food additive regulation
under section 409 of such Act.

\(2\) The labeling of the pesticide product includes directions for use
on a site in at least one of the following antimicrobial product use
categories: food handling/storage establishments premises and equipment;
commercial, institutional, and industrial premises and equipment;
residential and public access premises; medical premises and equipment;
human drinking water systems; materials preservatives; industrial
processes and water systems; antifouling coatings; wood preservatives;
or swimming pools.

\(3\) The pesticide product is not a hazardous waste as set out in part
261 of this chapter when the pesticide product is intended to be
disposed.

\(4\) EPA has not specifically determined that the pesticide product
must be subject to the regulations in this subpart to prevent an
unreasonable adverse effect on the environment according to the
provisions of paragraph (e) of this section.

\(d\) Which requirements must an antimicrobial swimming pool product
comply with if it is not exempt from these regulations?

\(1\) An antimicrobial swimming pool product that is not exempt by
paragraph (a), (b), or (c) of this section must comply with all of the
regulations in this subpart except for the following requirements:

  --------------------------------- ------------------- ------------------
  Requirement                       Requirement for     Requirement for
                                    registrants who     refillers who are
                                    distribute or sell  not registrants
                                    directly in         
                                    refillable          
                                    containers          

  Recordkeeping specific to each    165.65(i)(2)        165.70(j)(2)
  instance of repackaging                               

  Container inspection: criteria    165.65(e)(2)        165.70(f)(2)
  regarding a serial number or                          
  other identifying code                                

  Container inspection: criteria    165.65(e)(3)        165.70(f)(3)
  regarding one-way valve or                            
  tamper-evident device                                 

  Cleaning requirement: criteria    165.65(f)(1)        165.70(g)(1)
  regarding one-way valve or                            
  tamper-evident device                                 

  Cleaning if the one-way valve or  165.65(g)           165.70(h)
  tamper-evident device is not                          
  intact                                                
  --------------------------------- ------------------- ------------------

\(2\) For the purposes of this subpart, an antimicrobial swimming pool
product is a pesticide product that satisfies both of the following
conditions:

\(1\) The pesticide product is intended to: disinfect, sanitize, reduce
or mitigate growth or development of microbiological organisms; or
protect inanimate objects, industrial processes or systems, surfaces,
water, or other chemical substances from contamination, fouling, or
deterioration caused by bacteria, viruses, fungi, protozoa, algae, or
slime.

\(2\) The labeling of the pesticide product includes directions for use
on only a site or sites in the antimicrobial product use category of
swimming pools.

\(e\) *How will EPA determine if an antimicrobial pesticide product
otherwise exempted must be subject to the regulations in this subpart to
prevent an unreasonable adverse effect on the environment?*

\(1\) EPA may determine that an antimicrobial pesticide product
otherwise exempted paragraph (c) of this section must be subject to the
repackaging regulations in this subpart to prevent an unreasonable
adverse effect on the environment if all of the following conditions
exist:

\(i\) EPA obtains information, data or other evidence of a problem with
the containers of a certain pesticide product or related group of
products.

\(ii\) The information, data or other evidence is reliable and factual.

\(iii\) The problem causes or could reasonably be expected to cause an
unreasonable adverse effect on the environment.

\(iv\) Complying with the container regulations could reasonably be
expected to eliminate the problem.

\(2\) If EPA determines that an antimicrobial pesticide product
otherwise exempted paragraph (c) of this section must be subject to the
repackaging regulations in this subpart to prevent an unreasonable
adverse effect on the environment, EPA may require, by rule, that the
product be repackaged in compliance with all or some of the requirements
in this subpart. Alternatively, EPA may notify the applicant or
registrant of its intent to make such a determination. After allowing
the applicant or registrant a reasonable amount of time to reply, EPA
may require, by notification and as a condition of registration, that
the product be repackaged in compliance with all or some of the
requirements in this subpart. For the purpose of the previous sentence,
60 days would be a reasonable amount of time to reply, although EPA may,
in its discretion, provide more time. EPA may deny registration or
initiate cancellation proceedings if the registrant fails to comply with
the repackaging regulations within the time frames established by EPA in
the rule or in its notification.

\(f\) *What other pesticide products are subject to the regulations in
this subpart?* The regulations in this subpart apply to all pesticide
products other than manufacturing use products, plant-incorporated
protectants, and antimicrobial products that are exempt paragraph (c) of
this section. Antimicrobial products covered under paragraph (d) of this
section are subject to the regulations indicated in that section.

\(g\) *What does "pesticide product" or "pesticide" mean in the rest of
this subpart?* In § 165.63(h) through § 165.70, the term "pesticide
product" or "pesticide" refers only to a pesticide product or a
pesticide that is subject to the regulations in this subpart as
described in paragraphs (a) through (f) of this section.

\(h\) *Are there any other exceptions?* (1) The regulations in this
subpart do not apply to transport vehicles that contain pesticide in
pesticide-holding tanks that are an integral part of the transport
vehicle and that are the primary containment for the pesticide.

\(2\) Custom blending is not subject to the regulations in this subpart.

\(3\) The regulations in this subpart do not apply to containers that
hold pesticides that are gaseous at atmospheric temperature and
pressure.

**§ 165.65 Registrants who distribute or sell pesticide products in
refillable containers.**

\(a\) *Must I comply with the standards in this section?* You must
comply with the standards in this section if you are a registrant who
distributes or sells pesticide products in refillable containers. This
means that you conduct all of the repackaging for a pesticide product
and that you do not distribute or sell the pesticide product to a
refiller that is not part of your company for repackaging into
refillable containers. If you are a registrant that repackages a product
directly into refillable containers for sale or distribution and you
also sell or distribute other quantities of that product to an
independent refiller for repackaging, then you must meet the
requirements in this section for those quantities you distribute or sell
directly and the requirements in § 165.67 for those quantities that you
distribute or sell to an independent refiller.

\(b\) *Am I responsible for product integrity?* Yes, you are responsible
for the pesticide product that you distribute or sell in refillable
containers not being adulterated or different from the composition
described in its confidential statement of formula that is required
under FIFRA section 3.

\(c\) *What information must I develop?* For each pesticide product
distributed or sold in refillable containers, you must develop both of
the following documents in writing.

\(1\) You must develop a refilling residue removal procedure that
describes how to remove pesticide residue from a refillable container
(portable or stationary pesticide container) before it is refilled.

\(i\) The refilling residue removal procedure must be adequate to ensure
that the composition of the pesticide product does not differ at the
time of its distribution or sale from the composition described in its
confidential statement of formula that is required under FIFRA section
3.

\(ii\) If the refilling residue removal procedure requires the use of a
solvent other than the diluent used for applying the pesticide as
specified on the labeling under \"Directions for Use\", or if there is
no diluent used for application, the refilling residue removal procedure
must describe how to manage any rinsate resulting from the procedure in
accordance with applicable Federal and State regulations.

\(2\) You must develop a description of acceptable refillable containers
(portable or stationary pesticide containers) that can be used for
distributing or selling that pesticide product.

\(i\) An acceptable container is one that you have determined meets the
standards in Subpart C of this part and is compatible with the pesticide
formulation intended to be distributed and sold using the refillable
container.

\(ii\) You must identify the containers by specifying the container
materials of construction that are compatible with the pesticide
formulation and specifying information necessary to confirm compliance
with the refillable container requirements in subpart C of this part.

\(d\) *What requirements must my individual establishments follow
regarding repackaging a pesticide product into refillable containers?* A
refiller at your individual establishment that repackages a pesticide
product into refillable containers for distribution or sale must comply
with all of the following provisions.

\(1\) The establishment must be registered with EPA as a producing
establishment as required by § 167.20 of this chapter.

\(2\) The refiller must not change the pesticide formulation unless the
refiller has a registration for the new formulation.

\(3\) The refiller must repackage a pesticide product only into a
refillable container that is identified on your description of
acceptable containers for that pesticide product.

\(4\) The refiller may repackage any quantity of a pesticide product
into a refillable container up to the rated capacity of the container.
In addition, there are no general limits on the size of the refillable
containers that the refiller can use.

\(5\) The refiller must have all of the following items at the
establishment before repackaging a pesticide product into any refillable
container for distribution or sale:

\(i\) The pesticide product\'s label and labeling.

\(ii\) The written refilling residue removal procedure for the pesticide
product.

\(iii\) The written description of acceptable containers for the
pesticide product.

\(6\) Before repackaging a pesticide product into any refillable
container for distribution or sale, the refiller must identify the
pesticide product previously contained in the refillable container to
determine whether a residue removal procedure must be conducted in
accordance with paragraph (f) of this section. The refiller may identify
the previous pesticide product by referring to the label or labeling.

\(7\) The refiller must inspect each refillable container according to
paragraph (e) of this section.

\(8\) The refiller must clean each refillable container according to
paragraph (f) or (g) of this section, if required by either section.

\(9\) The refiller must ensure that each refillable container is
properly labeled according to paragraph (h) of this section.

\(10\) The establishment must maintain records in accordance with
paragraph (i) of this section.

\(11\) The establishment must maintain records as required by part 169
of this chapter.

\(12\) The establishment must report as required by part 167 of this
chapter.

\(e\) *How must my individual establishments inspect refillable
containers?* Before repackaging a pesticide product into any refillable
container, a refiller at your establishment must visually inspect the
exterior and (if possible) the interior of the container and the
exterior of appurtenances. The purpose of the inspection is to determine
whether the container meets the necessary criteria with respect to
continued container integrity, required markings, and openings. If the
condition in paragraph (e)(1) of this section exists, the container
fails the inspection and must not be refilled unless the container is
repaired, reconditioned, or remanufactured in compliance with the
relevant DOT requirement. If the condition in paragraph (e)(2) or (e)(3)
of this section exists (or both), the container fails the inspection and
must not be refilled until the container meets the standards specified
in subpart C. The conditions are:

\(1\) The integrity of the container is compromised in at least one of
the following ways:

\(i\) The container shows signs of rupture or other damage which reduces
its structural integrity.

\(ii\) The container has visible pitting, significant reduction in
material thickness, metal fatigue, damaged threads or closures, or other
significant defects.

\(iii\) The container has cracks, warpage, corrosion or any other damage
which might render it unsafe for transportation.

\(iv\) There is damage to the fittings, valves, tamper-evident devices
or other appurtenances that may cause failure of the container.

\(2\) The container does not bear the markings required by §§ 165.45(a),
(b) and (d) of this chapter, or such markings are not legible.

\(3\) The container does not have an intact and functioning one-way
valve or tamper-evident device on each opening other than a vent, if
required.

\(f\) *How must my individual establishments clean refillable
containers?* A refiller at your establishment must clean each refillable
container by conducting the pesticide product\'s refilling residue
removal procedure before repackaging the pesticide product into the
refillable container, unless the conditions in paragraph (f)(1) of this
section and either paragraph (f)(2) or (f)(3) of this section are
satisfied:

\(1\) If required, each tamper-evident device and one-way valve is
intact.

\(2\) The refillable container is being refilled with the same pesticide
product.

\(3\) Both of the following conditions are satisfied.

\(i\) The container previously held a pesticide product with a single
active ingredient and is being used to repackage a pesticide product
with the same single active ingredient.

\(ii\) There is no change that would cause the composition of the
product being repackaged to differ from the composition described in its
confidential statement of formula that is required under FIFRA section
3. Examples of unallowable changes include the active ingredient
concentration increasing or decreasing beyond the limits established by
the confidential statement of formula or a reaction or interaction
between the pesticide product being repackaged and the residue remaining
in the container.

\(g\) *How must my individual establishments clean a refillable
container that has a broken (non-intact) tamper-evident device or
one-way valve?* As required in paragraph (f) of this section, a refiller
at your establishment must clean each refillable container that has a
tamper-evident device or one-way valve that is not intact by conducting
the pesticide product\'s refilling residue removal procedure before
repackaging the pesticide product into the refillable container. In
addition, other procedures may be necessary to assure that product
integrity is maintained in such cases.

\(h\) *How must my individual establishments label refillable
containers?* Before distributing or selling a pesticide product in a
refillable container, a refiller at your establishment must ensure that
the label of the pesticide product is securely attached to the
refillable container such that the label can reasonably be expected to
remain affixed during the foreseeable conditions and period of use. The
label and labeling must comply in all respects with the requirements of
Part 156 of this chapter. In particular, the refiller at your
establishment must ensure that the net contents statement and EPA
establishment number appear on the label.

\(i\) *What recordkeeping must my individual establishments do?* Each of
your individual establishments that repackages a pesticide product into
refillable containers for distribution or sale must maintain all of the
records listed in this section in addition to the applicable records
identified in Parts 167 and 169 of this title. The establishment must
furnish these records for inspection and copying upon request by an
employee of EPA or any entity designated by EPA, such as a State,
another political subdivision or a Tribe.

\(1\) For each pesticide product distributed or sold in refillable
containers, both of the following records must be maintained for the
current operating year and for 3 years after that:

\(i\) The written refilling residue removal procedure for the pesticide
product.

\(ii\) The written description of acceptable containers for the
pesticide product.

\(2\) Each time a refiller at your establishment repackages a pesticide
product into a refillable container and distributes or sells the
product, the following records must be generated and maintained for at
least 3 years after the date of repackaging:

\(i\) The EPA registration number of the pesticide product distributed
or sold in the refillable container.

\(ii\) The date of the repackaging.

\(iii\) The serial number or other identifying code of the refillable
container.

**§ 165.67 Registrants who distribute or sell pesticide products to
refillers for repackaging.**

\(a\) *Must I comply with the standards in this section?* You must
comply with the standards in this section if you are a registrant who
distributes or sells pesticide products to a refiller that is not part
of your company for repackaging into refillable containers.

\(b\) *Under what conditions can I allow a refiller to repackage my
pesticide product into refillable containers?* You may allow a refiller
to repackage your pesticide product into refillable containers and to
distribute or sell such repackaged product under your existing
registration if all of the following conditions are satisfied:

\(1\) The repackaging results in no change to the pesticide formulation.

\(2\) One of the following conditions regarding a registered refilling
establishment is satisfied:

\(i\) The pesticide product is repackaged at a refilling establishment
registered with EPA as required by § 167.20 of this chapter.

\(ii\) The pesticide product is repackaged by a refilling establishment
registered with EPA as required by §167.20 of this chapter at the site
of a user who intends to use or apply the product. .

\(3\) You have entered into a written contract with the refiller to
repackage the pesticide product and to use the label of your pesticide
product.

\(4\) The pesticide product is repackaged only into refillable
containers that meet the standards of Subpart C.

\(5\) The pesticide product is labeled with the product\'s label with no
changes except the addition of an appropriate net contents statement and
the refiller's EPA establishment number.

\(c\) *What violations are applicable to illegal repackaging?*
Repackaging a pesticide product for distribution or sale without either
obtaining a registration or meeting all of the conditions in paragraph
(b) of this section is a violation of section 12 of the Act. Both you
and the refiller that is repackaging your pesticide product under
written contract with you may be liable for violations pertaining to the
repackaged product.

\(d\) *When must I provide the written contract to the refiller?* If you
allow a refiller to repackage your product as specified in paragraph (b)
of this section you must provide the written contract referred to in
paragraph (b)(3) of this section to the refiller before you distribute
or sell the pesticide product to the refiller.

\(e\) *Am I responsible for product integrity?* Yes, for a product that
you distribute or sell to a refiller that is not part of your company
for repackaging into refillable containers, you are responsible for the
pesticide product not being adulterated or different from the
composition described in its confidential statement of formula that is
required under FIFRA section 3.

\(f\) *What information must I develop?* For each pesticide product
distributed or sold in refillable containers, you must develop both of
the following documents in writing.

\(1\) You must develop a refilling residue removal procedure that
describes how to remove pesticide residue from a refillable container
(portable or stationary pesticide container) before it is refilled.

\(i\) The refilling residue removal procedure must be adequate to ensure
that the composition of the pesticide product does not differ at the
time of its distribution or sale from the composition described in its
confidential statement of formula that is required under FIFRA section
3.

\(ii\) If the refilling residue removal procedure requires the use of a
solvent other than the diluent used for applying the pesticide as
specified on the labeling under \"Directions for Use\", or if there is
no diluent used for application, the refilling residue removal procedure
must describe how to manage any rinsate resulting from the procedure in
accordance with applicable Federal and State regulations.

\(2\) You must develop a description of acceptable refillable containers
(portable or stationary pesticide containers) that can be used for
distributing or selling that pesticide product.

\(i\) An acceptable container is one that you have determined meets the
standards in Subpart C of this part and is compatible with the pesticide
formulation intended to be distributed and sold using the refillable
container.

\(ii\) You must identify the containers by specifying the container
materials of construction that are compatible with the pesticide
formulation and specifying information necessary to confirm compliance
with the refillable container requirements in subpart C of this part.

\(g\) *When must I provide the information to the refiller?* You must
provide the refiller with all of the following information and
documentation before or at the time of distribution or sale of your
pesticide product to the refiller:

\(1\) Your written refilling residue removal procedure for the pesticide
product.

\(2\) Your written description of acceptable containers for the
pesticide product.

\(3\) The pesticide product\'s label and labeling.

\(h\) *What recordkeeping must I do?* You must maintain all of the
records listed in this section for the current operating year and for 3
years after that. You must furnish these records for inspection and
copying upon request by an employee of EPA or any entity designated by
EPA, such as a State, another political subdivision or a Tribe:

\(1\) Each written contract entered into with a refiller for repackaging
your pesticide product into refillable containers.

\(2\) Your written refilling residue removal procedure for the pesticide
product.

\(3\) Your written description of acceptable containers for the
pesticide product.

**§ 165.70 Refillers who are not registrants**.

\(a\) *Must I comply with the standards in this section?* You must
comply with the standards in this section if you are a refiller of a
pesticide product and you are not the registrant of the pesticide
product.

\(b\) *Under what conditions can I repackage a registrant's pesticide
product into refillable containers?* A registrant may allow you to
repackage the registrant\'s pesticide product into refillable containers
and to distribute or sell such repackaged product under the
registrant\'s existing registration if all of the following conditions
are satisfied:

\(1\) The repackaging results in no change to the pesticide formulation.

\(2\) One of the following conditions regarding a registered refilling
establishment is satisfied:

\(i\) The pesticide product is repackaged at a refilling establishment
registered with EPA as required by § 167.20 of this chapter.

\(ii\) The pesticide product is repackaged by a refilling establishment
registered with EPA as required by §167.20 of this chapter at the site
of a user who intends to use or apply the product.

\(3\) The registrant has entered into a written contract with you to
repackage the pesticide product and to use the label of the
registrant\'s pesticide product.

\(4\) The pesticide product is repackaged only into refillable
containers that meet the standards of Subpart C.

\(5\) The pesticide product is labeled with the product\'s label with no
changes except the addition of an appropriate net contents statement and
the refiller's EPA establishment number.

\(c\) *What violations are applicable to illegal repackaging?*
Repackaging a pesticide product for distribution or sale without either
obtaining a registration or meeting all of the conditions in paragraph
(b) of this section is a violation of section 12 of the Act. Both you
and the pesticide product's registrant may be liable for violations
pertaining to the repackaged product.

\(d\) *Am I responsible for product integrity?* Yes, you are responsible
for the pesticide product that you distribute or sell in refillable
containers not being adulterated or different from the composition
described in its confidential statement of formula that is required
under FIFRA section 3.

\(e\) *What requirements must I follow regarding repackaging a pesticide
product into refillable containers?* You must comply with all of the
following provisions.

\(1\) Your establishment must be registered with EPA as a producing
establishment as required by § 167.20 of this chapter.

\(2\) You must not change the pesticide formulation unless you have a
registration for the new formulation.

\(3\) You must repackage a pesticide product only into a refillable
container that is identified on the description of acceptable containers
for that pesticide product provided by the registrant.

\(4\) You may repackage any quantity of a pesticide product into a
refillable container up to the rated capacity of the container. In
addition, there are no general limits on the size of the refillable
containers that you can use.

\(5\) You must have all of the following items at your establishment
before repackaging a pesticide product into any refillable container for
distribution or sale:

\(i\) The written contract referred to in paragraph (b)(3) of this
section from the pesticide product's registrant.

\(ii\) The pesticide product\'s label and labeling.

\(iii\) The registrant's written refilling residue removal procedure for
the pesticide product.

\(iv\) The registrant's written description of acceptable containers for
the pesticide product.

\(6\) Before repackaging a pesticide product into any refillable
container for distribution or sale, you must identify the pesticide
product previously contained in the refillable container to determine
whether a residue removal procedure must be conducted in accordance with
paragraph (g) of this section. You may identify the previous pesticide
product by referring to the label or labeling.

\(7\) You must inspect each refillable container according to paragraph
(f) of this section.

\(8\) You must clean each refillable container according to paragraph
(g) or (h) of this section , if required by either section.

\(9\) You must ensure that each refillable container is properly labeled
according to paragraph (i) of this section.

\(10\) You must maintain records in accordance with paragraph (j) of
this section.

\(11\) You must maintain records as required by part 169 of this
chapter.

\(12\) You must report as required by part 167 of this chapter.

\(13\) The stationary pesticide containers at your establishment must
meet the standards in § 165.45(f).

\(14\) You may be required to comply with the containment standards in
Subpart E.

\(f\) *How must I inspect refillable containers?* Before repackaging a
pesticide product into any refillable container, you must visually
inspect the exterior and (if possible) the interior of the container and
the exterior of appurtenances. The purpose of the inspection is to
determine whether the container meets the necessary criteria with
respect to continued container integrity, required markings, and
openings. If the condition in paragraph (f)(1) of this section exists,
the container fails the inspection and must not be refilled unless the
container is repaired, reconditioned, or remanufactured in compliance
with the relevant DOT requirement. If the condition in paragraph (f)(2)
or (f)(3) of this section exists (or both), the container fails the
inspection and must not be refilled until the container meets the
standards specified in subpart C. The conditions are:

\(1\) The integrity of the container is compromised in at least one of
the following ways:

\(i\) The container shows signs of rupture or other damage which reduces
its structural integrity.

\(ii\) The container has visible pitting, significant reduction in
material thickness, metal fatigue, damaged threads or closures, or other
significant defects.

\(iii\) The container has cracks, warpage, corrosion or any other damage
which might render it unsafe for transportation.

\(iv\) There is damage to the fittings, valves, tamper-evident devices
or other appurtenances that may cause failure of the container.

\(2\) The container does not bear the markings required by §§ 165.45(a),
(b) and (d) of this chapter, or such markings are not legible.

\(3\) The container does not have an intact and functioning one-way
valve or tamper-evident device on each opening other than a vent, if
required.

\(g\) *How must I clean refillable containers?* You must clean each
refillable container by conducting the pesticide product\'s refilling
residue removal procedure before repackaging the pesticide product into
the refillable container, unless the conditions in paragraph (g)(1) of
this section and either paragraph (g)(2) or (g)(3) of this section are
satisfied:

\(1\) If required, each tamper-evident device and one-way valve is
intact.

\(2\) The refillable container is being refilled with the same pesticide
product.

\(3\) Both of the following conditions are satisfied.

\(i\) The container previously held a pesticide product with a single
active ingredient and is being used to repackage a pesticide product
with the same single active ingredient.

\(ii\) There is no change that would cause the composition of the
product being repackaged to differ from the composition described in its
confidential statement of formula that is required under FIFRA section
3. Examples of unallowable changes include the active ingredient
concentration increasing or decreasing beyond the limits established by
the confidential statement of formula or a reaction or interaction
between the pesticide product being repackaged and the residue remaining
in the container.

\(h\) *How must I clean a refillable container that has a broken
(non-intact) tamper-evident device or one-way valve?* As required in
paragraph (g) of this section, you must clean each refillable container
that has a tamper-evident device or one-way valve that is not intact by
conducting the pesticide product\'s refilling residue removal procedure
before repackaging the pesticide product into the refillable container.
In addition, other procedures may be necessary to assure that product
integrity is maintained in such cases.

\(i\) *How must I label refillable containers?* Before distributing or
selling a pesticide product in a refillable container, you must ensure
that the label of the pesticide product is securely attached to the
refillable container such that the label can reasonably be expected to
remain affixed during the foreseeable conditions and period of use. The
label and labeling must comply in all respects with the requirements of
Part 156 of this chapter. In particular, you must ensure that the net
contents statement and EPA establishment number appear on the label.

\(j\) *What recordkeeping must I do?* You must maintain all of the
records listed in this section in addition to the applicable records
identified in Parts 167 and 169 of this title. You must furnish these
records for inspection and copying upon request by an employee of EPA or
any entity designated by EPA, such as a State, another political
subdivision or a Tribe.

\(1\) For each pesticide product distributed or sold in refillable
containers, all of the following records must be maintained for the
current operating year and for 3 years after that:

\(i\) The written contract from the pesticide product's registrant for
the pesticide product.

\(ii\) The written refilling residue removal procedure for the pesticide
product.

\(iii\) The written description of acceptable containers for the
pesticide product.

\(2\) Each time you repackage a pesticide product into a refillable
container and distribute or sell the product, the following records must
be generated and maintained for at least 3 years after the date of
repackaging:

\(i\) The EPA registration number of the pesticide product distributed
or sold in the refillable container.

\(ii\) The date of the repackaging.

\(iii\) The serial number or other identifying code of the refillable
container.

[The changes made to Subpart D are in §§165.80(b)(1), 165.85(a)(3),
165.85(c), 165.85(c)(1), 165.85(c)(2), 165.85(d), 165.85(f),
165.85(f)(1) 165.85(f)(2), 165.85(f)(3), 165.85(f)(4), 165.87(a)(3),
165.87(c), 165.85(c)(1), 165.87(d), 165.87(f),165.87(f)(1),
165.87(f)(2), 165.87(f)(3), 165.87(f)(4), 165.90(a)(2), 165.90(a)(5),
165.90(b)(1), 165.90(b)(2), 165.90(b)(3), and 165.97(b)(1).]{.underline}

**Subpart E \-- Standards for Pesticide Containment Structures**

**§ 165.80 General provisions.**

\(a\) *What is the purpose of the regulations in this subpart?* The
purpose of the containment regulations in this subpart is to protect
human health and the environment from exposure to agricultural
pesticides which may spill or leak from stationary pesticide containers.
This protection is achieved by the construction of secondary containment
units or pads at certain facilities handling agricultural pesticides.
These regulations will also reduce waste generation associated with:

\(1\) Storage and handling of large quantities of pesticide products.

\(2\) Pesticide dispensing and container-refilling operations.

\(b\) *Do I have to comply with the regulations in this subpart?* You
must comply with the regulations in this subpart if you are an owner or
operator of one of the following businesses and if you also have a
stationary pesticide container or a pesticide dispensing (including
container refilling) area:

\(1\) Refilling establishments who repackage agricultural pesticides and
whose principal business is retail sale (i.e., more than 50% of total
annual revenue comes from retail operations).

\(2\) Custom blenders of agricultural pesticides.

\(3\) Businesses which apply an agricultural pesticide for compensation
(other than trading of personal services between agricultural
producers).

\(c\) *When do I have to comply?* You must comply with all applicable
containment regulations for new and existing structures as of August 17,
2009.

**§ 165.81 Scope of stationary pesticide containers included.**

\(a\) *What is a stationary pesticide container?* A stationary pesticide
container is a refillable container that is fixed at a single facility
or establishment, or, if not fixed, remains at the facility or
establishment for at least 30 consecutive days, and that holds pesticide
during the entire time.

\(b\) *What stationary pesticide containers are subject to the
regulations in this subpart?* Stationary pesticide containers designed
to hold undivided quantities of agricultural pesticides equal to or
greater than 500 gallons (1,890 liters) of liquid pesticide or equal to
or greater than 4,000 pounds (1,818 kilograms) of dry pesticide are
subject to the regulations in this subpart and must have a secondary
containment unit that complies with the provisions of this subpart
unless any of the following conditions exists:

\(1\) The container is empty, that is, all pesticide that can be removed
by methods such as draining, pumping or aspirating has been removed
(whether or not the container has been rinsed or washed).

\(2\) The container holds only pesticide rinsates or wash waters, and is
labeled accordingly.

\(3\) The container holds only pesticides which would be gaseous when
released at atmospheric temperature and pressure.

\(4\) The container is dedicated to non-pesticide use, and is labeled
accordingly.

**§ 165.82 Scope of pesticide dispensing areas included.**

\(a\) *What pesticide dispensing areas are subject to the regulations in
this subpart?* A pesticide dispensing area is subject to the containment
regulations in this subpart and must have a containment pad that
complies with the requirements of this subpart if any of the following
activities occur:

\(1\) Refillable containers of agricultural pesticide are emptied,
cleaned or rinsed.

\(2\) Agricultural pesticides are dispensed from a stationary pesticide
container designed to hold undivided quantities of agricultural
pesticides greater than 500 gallons (1,890 liters) of liquid pesticide
or greater than 4,000 pounds (1,818 kilograms) of dry pesticide for any
purpose, including refilling or emptying for cleaning. This applies when
pesticide is dispensed from the container into any vessel, including,
but not limited to:

\(i\) Refillable containers;

\(ii\) Service containers;

\(iii\) Transport vehicles;

\(iv\) Application equipment.

\(3\) Agricultural pesticides are dispensed from a transport vehicle for
purposes of filling a refillable container.

\(4\) Agricultural pesticides are dispensed from any other container for
the purpose of refilling a refillable container for sale or
distribution. Containment requirements do not apply if the agricultural
pesticide is dispensed from such a container for use, application or
purposes other than refilling for sale or distribution.

\(b\) *What pesticide dispensing areas are exempt from the regulations
in this subpart?* A pesticide dispensing area is exempt from the
regulations in this subpart if any of the following conditions exist:

\(1\) The only pesticides in the dispensing area would be gaseous when
released at atmospheric temperature and pressure.

\(2\) The only pesticide containers refilled or emptied within the
dispensing area are stationary pesticide containers which are already
protected by a secondary containment unit that complies with the
provisions of this subpart.

\(3\) The pesticide dispensing area is used solely for dispensing
pesticide from a rail car which does not remain at a facility long
enough to meet the definition of a stationary pesticide container; that
is, 30 days.

**§ 165.83 Definition of new and existing structures.**

\(a\) *What is a new containment structure?* A new containment structure
is one whose installation began after November 16, 2006. Installation is
considered to have begun if:

\(1\) You, as the owner or operator, have obtained all Federal, State,
and local approvals or permits necessary to begin physical construction
of the containment structure; AND

\(2\) You have either begun a continuous on-site physical construction
or installation program OR you have entered into contractual
obligations. The contract must be such that it cannot be canceled or
modified without substantial loss, and must be for the physical
construction or installation of the containment structure within a
specific and reasonable time frame.

\(b\) *What is an existing containment structure?* An existing
containment structure is defined as one whose installation began on or
before November 16, 2006.

**§ 165.85 Design and capacity requirements for new structures.**

\(a\) *For all new containment structures, what construction materials
must I use?* These are the material specifications for a new containment
structure:

\(1\) The containment structure must be constructed of steel, reinforced
concrete or other rigid material capable of withstanding the full
hydrostatic head, load and impact of any pesticides, precipitation,
other substances, equipment and appurtenances placed within the
structure. The structure must be liquid-tight with cracks, seams and
joints appropriately sealed.

\(2\) The structure must not be constructed of natural earthen material,
unfired clay, or asphalt.

\(3\) The containment structure must be made of materials compatible
with the pesticides stored. In this case, compatible means able to
withstand anticipated exposure to stored or transferred substances and
still provide containment of those same or other substances within the
containment area.

\(b\) *For all new containment structures, what are the general design
requirements?* These are the general design requirements for new
containment structures:

\(1\) You must protect appurtenances and pesticide containers against
damage from operating personnel and moving equipment. Means of
protection include, but are not limited to, supports to prevent sagging,
flexible connections, the use of guard rails, barriers, and protective
cages.

\(2\) Appurtenances, discharge outlets or gravity drains must not be
configured through the base or wall of the containment structure, except
for direct interconnections between adjacent containment structures
which meet the requirements of this subpart. Appurtenances must be
configured in such a way that spills or leaks are easy to see.

\(3\) The containment structure must be constructed with sufficient
freeboard to contain precipitation and prevent water and other liquids
from seeping into or flowing onto it from adjacent land or structures.

\(4\) Multiple stationary pesticide containers may be protected within a
single secondary containment unit.

\(c\) *For new* *secondary containment units for stationary containers
of liquid pesticides and new containment pads in pesticide dispensing
areas, what are the capacity requirements?* These are the capacity
requirements:

\(1\) New secondary containment units for stationary containers of
liquid pesticides, if protected from precipitation, must have a capacity
of at least 100 percent of the volume of the largest stationary
pesticide container plus the volume displaced by other containers and
appurtenances within the unit.

\(2\) New secondary containment units for stationary containers of
liquid pesticides,if exposed to or unprotected from precipitation, must
have a capacity of at least 110 percent of the volume of the largest
stationary pesticide container plus the volume displaced by other
containers and appurtenances within the unit.

\(3\) New containment pads in pesticide dispensing areas which have a
pesticide container or pesticide-holding equipment with a volume of 750
gallons or greater must have a holding capacity of at least 750 gallons.

\(4\) New containment pads in pesticide dispensing areas which do NOT
have a pesticide container or pesticide-holding equipment with a volume
of at least 750 gallons must have a holding capacity of at least 100
percent of the volume of the largest pesticide container or
pesticide-holding equipment used on the pad.

\(d\) *For new secondary* *containment units for stationary containers
of liquid pesticides, what are the specific design requirements?* You
must either anchor or elevate each stationary container of liquid
pesticides protected by a new secondary containment unit to prevent
flotation in the event that the secondary containment unit fills with
liquid.

\(e\) *For new containment pads in pesticide dispensing areas, what are
the specific design requirements?* Each new containment pad in a
pesticide dispensing area must:

\(1\) Be designed and constructed to intercept leaks and spills of
pesticides which may occur in the pesticide dispensing area.

\(2\) Have enough surface area to extend completely beneath any
container on it, with the exception of transport vehicles dispensing
pesticide for sale or distribution to a stationary pesticide container.
For such vehicles, the surface area of the containment pad must
accommodate at least the portion of the vehicle where the delivery hose
or device couples to the vehicle. This exception does not apply to
transport vehicles that are used for prolonged storage or repeated
on-site dispensing of pesticides.

\(3\) Allow, in conjunction with its sump, for removal and recovery of
spilled, leaked, or discharged material and rainfall, such as by a
manually activated pump. Automatically-activated pumps which lack
automatic overflow cutoff switches for the receiving container are
prohibited.

\(4\) Have its surface sloped toward an area where liquids can be
collected for removal, such as a liquid-tight sump or a depression, in
the case of a single-pour concrete pad.

\(f\) *For new secondary containment units for stationary containers of
dry pesticides,* *what are the specific design requirements?* These are
the specific design requirements for new secondary containment units for
stationary containers of dry pesticides:

\(1\) The stationary containers of dry pesticides within the containment
unit must be protected from wind and precipitation.

\(2\) Stationary containers of dry pesticides must be placed on pallets
or a raised concrete platform to prevent the accumulation of water in or
under the pesticide.

\(3\) The storage area for stationary containers of dry pesticides must
include a floor that extends completely beneath the pallets or raised
concrete platforms on which the stationary containers of dry pesticides
must be stored.

\(4\) The storage area for stationary containers of dry pesticides must
be enclosed by a curb a minimum of 6 inches high that extends at least 2
feet beyond the perimeter of the container.

**§ 165.87 Design and capacity requirements for existing structures.**

\(a\) *For all existing containment structures, what construction
materials must I use?* These are the material specifications for an
existing containment structure:

\(1\) The containment structure must be constructed of steel, reinforced
concrete or other rigid material capable of withstanding the full
hydrostatic head, load and impact of any pesticides, precipitation,
other substances, equipment and appurtenances placed within the
structure. The structure must be liquid-tight with cracks, seams and
joints appropriately sealed.

\(2\) The structure must not be constructed of natural earthen material,
unfired clay, or asphalt.

\(3\) The containment structure must be made of materials compatible
with the pesticides stored. In this case, compatible means able to
withstand anticipated exposure to stored or transferred substances and
still provide containment of those same or other substances within the
containment area.

\(b\) *For all existing containment structures, what are the general
design requirements?* These are the general design requirements for
existing containment structures:

\(1\) You must protect appurtenances and pesticide containers against
damage from operating personnel and moving equipment. Means of
protection include, but are not limited to, supports to prevent sagging,
flexible connections, the use of guard rails, barriers, and protective
cages.

\(2\) You must seal all appurtenances, discharge outlets and gravity
drains through the base or wall of the containment structure, except for
direct interconnections between adjacent containment structures which
meet the requirements of this subpart.

\(3\) The containment structure must be constructed with sufficient
freeboard to contain precipitation and prevent water and other liquids
from seeping into or flowing onto it from adjacent land or structures.

\(4\) Multiple stationary pesticide containers may be protected within a
single secondary containment unit.

\(c\) *For existing secondary containment units for stationary
containers of liquid pesticides* *and existing containment pads in
pesticide dispensing areas, what are the capacity requirements?* These
are the capacity requirements:

\(1\) Existing secondary containment units for stationary containers of
liquid pesticides must have a capacity of at least 100 percent of the
volume of the largest stationary pesticide container plus the volume
displaced by other containers and appurtenances within the unit.

\(2\) Existing containment pads in pesticide dispensing areas which have
a pesticide container or pesticide-holding equipment with a volume of
750 gallons or greater must have a holding capacity of at least 750
gallons.

\(3\) Existing containment pads in pesticide dispensing areas which do
NOT have a pesticide container or pesticide-holding equipment with a
volume of at least 750 gallons must have a holding capacity of at least
100 percent of the volume of the largest pesticide container or
pesticide-holding equipment used on the pad.

\(d\) *For existing secondary containment units for stationary
containers of liquid pesticides, what are the specific design
requirements?* You must either anchor or elevate each stationary
container of liquid pesticides protected by an existing secondary
containment unit to prevent flotation in the event that the secondary
containment unit fills with liquid.

\(e\) *For existing containment pads in pesticide dispensing areas, what
are the specific design requirements?* Each existing containment pad in
a pesticide dispensing area must:

\(1\) Be designed and constructed to intercept leaks and spills of
pesticides which may occur in the pesticide dispensing area.

\(2\) Have enough surface area to extend completely beneath any
container on it, with the exception of transport vehicles dispensing
pesticide for sale or distribution to a stationary pesticide container.
For such vehicles, the surface area of the containment pad must
accommodate at least the portion of the vehicle where the delivery hose
or device couples to the vehicle. This exception does not apply to
transport vehicles that are used for prolonged storage or repeated
on-site dispensing of pesticides.

\(3\) Allow, in conjunction with its sump, for removal and recovery of
spilled, leaked, or discharged material and rainfall, such as by a
manually activated pump. Automatically-activated pumps which lack
automatic overflow cutoff switches for the receiving container are
prohibited.

\(f\) *For existing secondary containment units for stationary
containers of dry pesticides,* *what are the specific design
requirements?* These are the specific design requirements for existing
secondary containment units for stationary containers of dry pesticides:

\(1\) The stationary containers of dry pesticides within the containment
unit must be protected from wind and precipitation.

\(2\) Stationary containers of dry pesticides must be placed on pallets
or a raised concrete platform to prevent the accumulation of water in or
under the pesticide.

\(3\) The storage area for stationary containers of dry pesticides must
include a floor that extends completely beneath the pallets or raised
concrete platforms on which the stationary containers of dry pesticides
must be stored.

\(4\) The storage area for stationary containers of dry pesticides must
be enclosed by a curb a minimum of 6 inches high that extends at least 2
feet beyond the perimeter of the container.

**§ 165.90 Operational, inspection and maintenance requirements for all
new and existing containment structures.**

\(a\) *What are the operating procedures required for all new and
existing containment structures?*

As the owner or operator of a new or existing pesticide containment
structure, you must:

\(1\) Manage the structure in a manner that prevents pesticides or
materials containing pesticides from escaping from the containment
structure (including, but not limited to, pesticide residues washed off
the containment structure by rainfall or cleaning liquids used within
the structure.)

\(2\) Ensure that pesticide spills and leaks on or in any containment
structure are collected and recovered in a manner that ensures
protection of human health and the environment (including surface water
and ground water) and maximum practicable recovery of the pesticide
spilled or leaked. Cleanup must occur no later than the end of each day
on which pesticides have been spilled or leaked except in circumstances
where a reasonable delay would significantly reduce the likelihood or
severity of adverse effects to human health or the environment.

\(3\) Ensure that all materials resulting from spills and leaks and any
materials containing pesticide residue are managed according to label
instructions and applicable Federal, State and local laws and
regulations.

\(4\) Ensure that transfers of pesticides between containers, or between
containers and transport vehicles are attended at all times.

\(5\) Ensure that each lockable valve on a stationary pesticide
container, if it is required by § 165.45(f), is closed and locked, or
that the facility is locked, whenever the facility is unattended.

\(b\) *What are the inspection and maintenance requirements for all new
and existing containment structures?* As owner or operator of a new or
existing pesticide containment structure, you must:

\(1\) Inspect each stationary pesticide container and its appurtenances
and each containment structure at least monthly during periods when
pesticides are being stored or dispensed on the containment structure.
Your inspection must look for visible signs of wetting, discoloration,
blistering, bulging, corrosion, cracks or other signs of damage or
leakage.

\(2\) Initiate repair to any areas showing visible signs of damage and
seal any cracks and gaps in the containment structure or appurtenances
with material compatible with the pesticide being stored or dispensed no
later than the end of the day on which damage is noticed and complete
repairs within a time frame that is reasonable, taking into account
factors such as the weather, and the availability of cleanup materials,
trained staff, and equipment.

\(3\) Not store any additional pesticide on a containment structure if
the structure fails to meet the requirements of this subpart until
suitable repairs have been made.

**§ 165.92 What if I need both a containment pad and a secondary
containment unit?**

You may combine containment pads and secondary containment units as an
integrated system provided the requirements set out in this subpart for
containment pads and secondary containment units in § 165.85(a) and (b),
§ 165.87(a) and (b) and § 165.190, and as applicable, § 165.85(c)-(f)
and § 165.87(c)-(f) are satisfied separately.

**§ 165.95 What recordkeeping do I have to do as a facility owner or
operator?**

As a facility owner or operator subject to the requirements of this
subpart, you must maintain the following records, and you must furnish
these records for inspection and copying upon request by an employee of
EPA or any entity designated by EPA, such as a State, another political
subdivision or a Tribe:

\(a\) Records of inspection and maintenance for each containment
structure and for each stationary pesticide container and its
appurtenances must be kept for 3 years and must include the following
information:

\(1\) Name of the person conducting the inspection or maintenance;

\(2\) Date the inspection or maintenance was conducted;

\(3\) Conditions noted;

\(4\) Specific maintenance performed.

\(b\) Records for any non-stationary pesticide container designed to
hold undivided quantities of agricultural pesticides greater than 500
gallons (1,890 liters) of liquid pesticide or greater than 4,000 pounds
(1,818 kilograms) of dry pesticide that holds pesticide but is not
protected by a secondary containment unit meeting today's regulations
must be kept for 3 years. Records on these non-stationary pesticide
containers must include the time period that the container remains at
the same location.

c\) Records of the construction date of the containment structure must
be kept for as long as the pesticide containment structure is in use,
and for 3 years afterwards.

**§ 165.97 States with existing containment programs.**

\(a\) *What options are available to States that already have
containment regulations?* States that have promulgated containment
regulations effective prior to \[*insert today's date of publication in
the* **Federal Register**\], and which also have primary enforcement
responsibility and/or certification programs, have the option of
continuing to implement their own programs in lieu of today's Federal
regulations.

\(b\) *How may a State request authority to continue implementing its
State containment regulations?* A State with pesticide containment
regulations may request the authority to continue implementing State
containment regulations by \[*insert date one year from the publication
date of this rule in the* **Federal Register**\] in the following
manner:

\(1\) The State must submit a letter and any supporting documentation to
EPA. Supporting documentation must demonstrate that the State's program
is providing environmental protection equivalent to or more protective
than that expected to be provided by the Federal regulations in this
subpart.

\(2\) The State must identify any significant changes to State
regulations which would be necessary in order to provide environmental
protection equivalent to the EPA regulations, and develop an estimated
timetable to effect these changes. The letter must be signed by the
designated State Lead Agency.

\(c\) *How will EPA notify the State if its request is granted?* EPA's
Office of Pesticide Programs will review the State's correspondence and
determine whether the State program is adequate to provide environmental
protection equivalent to or more protective than these Federal
regulations for new and existing containment structures. EPA's Office of
Pesticide Programs will inform the State of its determination through a
letter authorizing or declining to authorize the State to continue
implementing its containment regulations and will detail any reasons for
declining authorization.

\(d\) *How must a State inform EPA of revisions to its containment
regulations?* Any state that has received authorization to continue
implementing its state containment regulations must inform EPA by letter
signed by the designated State Lead Agency within 6 months of any
revision to the state containment regulations. EPA will inform the state
by letter if it determines that the State's containment regulations are
no longer adequate based on the revisions. The state containment
regulations will remain in effect, unless and until EPA sends the state
a letter making this determination.