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[Federal Register: June 15, 2010 (Volume 75, Number 114)]
[Proposed Rules]               
[Page 33744-33747]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15jn10-29]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 156

[EPA-HQ-OPP-2005-0327; FRL-8830-8]
RIN 2070-AJ74

 
Pesticide Management and Disposal; Standards for Pesticide 
Containers and Containment; Proposed Change to Labeling Compliance Date

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to amend the pesticide container and 
containment regulations to provide a 1-year extension of the 40 CFR 
156.159 labeling compliance date from August 16, 2010 to August 16, 
2011. This change is being proposed to address concerns raised by 
stakeholders and as a result of further Agency consideration.

DATES: Comments must be received on or before July 15, 2010.

ADDRESSES: Submit your comments, identified by docket identification 
(ID) number EPA-HQ-OPP-2005-0327, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Mail: Office of Pesticide Programs (OPP) Regulatory Public 
Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460-0001.
     Delivery: OPP Regulatory Public Docket (7502P), 
Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South 
Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only 
accepted during the Docket Facility's normal hours of operation (8:30 
a.m. to 4 p.m., Monday through Friday, excluding legal holidays). 
Special arrangements should be made for deliveries of boxed 
information. The Docket Facility telephone number is (703) 305-5805.
    Instructions: Direct your comments to docket ID number EPA-HQ-OPP-
2005-0327. EPA's policy is that all comments received will be included 
in the docket without change and may be made available on-line at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through regulations.gov or e-
mail. The regulations.gov website is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through regulations.gov, 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the docket index 
available at http://www.regulations.gov. Although listed in the index, 
some information is not publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either in the electronic 
docket at http://www.regulations.gov, or, if only available in hard 
copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac 
Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The hours of 
operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday 
through Friday, excluding legal holidays. The Docket Facility telephone 
number is (703) 305-5805.

FOR FURTHER INFORMATION CONTACT: Nancy Fitz, Field and External Affairs 
Division (FEAD) (7506P), Office of Pesticide Programs (OPP), 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460-0001; telephone number: (703) 305-7385; fax 
number: (703) 308-2962; e-mail address: fitz.nancy@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    You may be potentially affected by this action if you are a 
pesticide formulator. Potentially affected entities may include, but 
are not limited to:
     Pesticide formulators (NAICS code 32532), e.g., 
establishments that formulate and prepare insecticides, fungicides, 
herbicides or other

[[Page 33745]]

pesticides from technical chemicals or concentrates produced by 
pesticide manufacturing establishments.
    This listing is not intended to be exhaustive, but rather provides 
a guide for readers regarding entities likely to be affected by this 
action. Other types of entities not listed in this unit could also be 
affected. The North American Industrial Classification System (NAICS) 
codes have been provided to assist you and others in determining 
whether this action might apply to certain entities. If you have any 
questions regarding the applicability of this action to a particular 
entity, consult the person listed under FOR FURTHER INFORMATION 
CONTACT.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit CBI to EPA through regulations.gov 
or e-mail. Clearly mark the part or all of the information that you 
claim to be CBI. For CBI in a disk or CD-ROM that you mail to EPA, mark 
the outside of the disk or CD-ROM as CBI and then identify 
electronically within the disk or CD-ROM the specific information that 
is claimed as CBI. In addition to one complete version of the comment 
that includes information claimed as CBI, a copy of the comment that 
does not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
    i. Identify the document by docket ID number and other identifying 
information (subject heading, Federal Register date and page number).
    ii. Follow directions. The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    vi. Provide specific examples to illustrate your concerns and 
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period 
deadline identified.

II. Background

    On August 16, 2006, EPA promulgated a final rule titled ``Pesticide 
Management and Disposal; Standards for Pesticide Containers and 
Containment'' (71 FR 47330) (container and containment rule), 
establishing 40 CFR part 165 and amending 40 CFR part 156. The 
container and containment rule established regulations for the safe 
storage and disposal of pesticides to reduce the likelihood of 
unreasonable adverse effects on human health and the environment. The 
container and containment regulations include requirements for 
pesticide container design; procedures, standards, and label language 
to facilitate removal of pesticides from containers prior to their 
being used, recycled, or discarded; and requirements for containment of 
stationary pesticide containers and procedures for container refilling 
operations. The 2006 rule required that all pesticide products 
distributed or sold by a registrant as of August 16, 2009, bear labels 
that comply with the rule's label language requirements (40 CFR 
156.159). On October 29, 2008, EPA promulgated a final rule that made 
various amendments to the container and containment rule, including 
extending the original labeling compliance date from August 16, 2009 to 
August 16, 2010.
    Specifically, 40 CFR part 156, subpart H, titled ``Container 
Labeling,'' requires the following information or statements on certain 
pesticide product labels:
     A statement identifying the container as nonrefillable or 
refillable.
     On nonrefillable containers, statements providing basic 
instructions for managing the container and a batch code.
     Cleaning instructions for some nonrefillable containers.
     Cleaning instructions for refillable containers at the end 
of their useful lives.
    In addition, the container and containment rule modified several 
existing requirements in 40 CFR 156.10, including allowing for blank 
spaces on the labels of some refillable containers for the net contents 
and EPA establishment number, and adding a reference to the container 
and containment regulations in 40 CFR part 156, subpart H.
    The 2008 rule that amended the container and containment rule by 
extending the original labeling compliance date to August 16, 2010, 
also changed the phrase ``sold or distributed'' to ``released for 
shipment'' as associated with all of the compliance dates, and made 
several other changes to the label requirements and various minor 
editorial changes.

III. What is the Agency's Authority for Taking this Action?

    These proposed regulations are issued pursuant to the authority 
given the Administrator of EPA in sections 2 through 34 of the Federal 
Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136-136y. 
Sections 19(e) and (f) of FIFRA, 7 U.S.C. 136a(e) and (f), grant EPA 
broad authority to establish standards and procedures to assure the 
safe use, reuse, storage, and disposal of pesticide containers. FIFRA 
section 19(e) requires EPA to promulgate regulations for the design of 
pesticide containers that will promote the safe storage and disposal of 
pesticides. FIFRA section 19(f) requires EPA to promulgate regulations 
prescribing procedures and standards for the removal of pesticides from 
containers prior to disposal. FIFRA section 25(a), 7 U.S.C. 136w(a), 
authorizes EPA to issue regulations to carry out provisions of FIFRA.

IV. What Action is the Agency Taking?

    EPA is proposing to amend the container and containment regulations 
to provide a 1-year extension of the 40 CFR 156.159 labeling compliance 
date from August 16, 2010 to August 16, 2011. This change is being 
proposed to address concerns raised by stakeholders and as a result of 
further Agency consideration.
    Accomplishing the label amendments required in 40 CFR part 156 
subpart H is a multistep process. Registrants must identify the changes 
appropriate for their particular products and apply to EPA for an 
amended registration. EPA must review the proposed changes and 
determine whether they are consistent with the regulations, and advise 
the registrant of the Agency's findings. If the EPA approves the 
changes, the registrant must then seek approval of the various state 
pesticide regulatory agencies. Upon approval of the state agencies, the 
registrant must have the new labels printed and applied to its 
products.
    In March 2010, EPA was contacted by stakeholders with concerns 
about being able to have all labels changed by the label compliance 
date of August 16, 2010. Some registrants have asserted that they will 
not have sufficient time to change all labels for pesticides that are 
released for shipment after August 16, 2010 despite efforts by 
registrants, EPA's Office of Pesticide Programs

[[Page 33746]]

(OPP) and state agencies. The time constraints are due to several 
factors, including:
     More antimicrobial product labels than expected require 
alternate rinsing instructions, rather than the standard text in the 
regulations. Therefore, these amendments cannot be made by 
notification, and require more time consuming reviews by EPA.
     EPA's position on the appropriate container-related 
statements (particularly rinsing and treatment of rinsate) for certain 
pesticides has changed over time as a result of experience with 
product-by-product label reviews. This has resulted in reconsideration 
of some decisions, and has caused some confusion in the regulated 
community.
     The length of time for states to review and approve labels 
is understood to be increasing due to the furlough days for staff in 
some states and staffing reductions due to budget shortfalls.
    EPA has concluded that there is insufficient time to change all 
labels by August 16, 2010. Since registrants can decide which 
registered products they wish to market at any given time, the Agency 
does not have a precise count of the total number of label changes that 
ultimately will be submitted to EPA for review. However, based upon a 
review of recent Agency actions and discussions with registrants, EPA 
estimates that the majority of label changes already have been 
submitted and approved. On the other hand, EPA estimates that there are 
at least 1,000 labels and potentially several thousand remaining 
pesticide product labels that EPA still needs to review. Even if all of 
those applications were submitted immediately, there would not be 
enough time for the label changes to be approved by EPA and the states, 
printed, and applied to all products that will be released for shipment 
after August 16, 2010.
    Because EPA actions contributed to the large number of outstanding 
label changes, EPA is proposing to extend the compliance date in 
Sec. 156.159 by 1 year, so that pesticide products released for 
shipment by a registrant after August 16, 2011 would have to bear a 
label that complies with the container requirements. EPA believes that 
one additional year will provide enough time for EPA and the states to 
review the label changes and for registrants to incorporate the changes 
into their labels, provided that all applications are submitted soon. 
This is based on an evaluation of the resources and the time it would 
take for EPA to undertake a concerted effort to complete the review of 
these remaining labels and discussions with State regulatory agencies 
who estimated a range of 3 to 6 months for them to review and approve 
the label revisions. EPA believes that a longer extension is 
unjustified because the rule was published 4 years ago so registrants 
have had a reasonable amount of time to prepare and submit their label 
modification requests and because EPA has already extended the deadline 
by 1 year.
    Because this proposed 1-year extension could not become final and 
effective before the current compliance date of August 16, 2010, EPA is 
also issuing in today's Federal Register a final rule providing for a 
4-month extension of the Sec. 156.159 compliance date. EPA believes 
that 4 months will be sufficient to allow this proposed rule to become 
final and effective, and will avoid the temporary removal of a 
significant number of pesticides from the market while the rulemaking 
process for this 1-year extension is completed.
    While this rulemaking process moves forward, pesticide registrants 
should continue to submit applications for label changes for their 
products prior to the current deadline of August 16, 2010. EPA will 
give priority to applications submitted prior to August 16, 2010, with 
the goal of processing them to allow sufficient time for the registrant 
to obtain state approvals of the new labeling by the revised compliance 
date. Applications submitted after August 16, 2010 will be processed on 
a non-priority basis only after all applications submitted prior to 
that date have been processed. Registrants should carefully consider 
this and the timing of their submission to ensure that they have 
sufficient time to obtain state approvals by the revised compliance 
date.

V. FIFRA Mandated Reviews

    In accordance with FIFRA section 25(a) and (d), the Agency 
submitted a draft of this proposed rule to the Committee on Agriculture 
in the House of Representatives, the Committee on Agriculture, 
Nutrition, and Forestry in the United States Senate, the Secretary of 
Agriculture, and the FIFRA Scientific Advisory Panel (SAP). The SAP and 
the Secretary of Agriculture waived review of this proposed rule.

VI. Statutory and Executive Order Reviews

    This action only proposes to amend an existing regulation to extend 
the current compliance date, it does not otherwise propose to amend or 
impose any other requirements. As such, this action is not subject to 
review by the Office of Management and Budget (OMB) as a ``significant 
regulatory action'' under Executive Order 12866, entitled Regulatory 
Planning and Review (58 FR 51735, October 4, 1993). Nor does it impose 
or change any information collection burden that requires additional 
review by OMB under the provisions of the Paperwork Reduction Act of 
1995 (44 U.S.C. 3501 et seq.). The information collection activities 
contained in the regulations are already approved under OMB control 
number 2070-0133 (EPA ICR No. 1632). An agency may not conduct or 
sponsor, and a person is not required to respond to a collection of 
information unless it displays a currently valid OMB control number. 
The OMB control numbers for EPA's regulations in 40 CFR are listed in 
40 CFR part 9.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) 
(5 U.S.C. 601 et seq.), the Agency hereby certifies that this proposed 
rule does not have a significant adverse economic impact on a 
substantial number of small entities. The proposed extension of the 
compliance date is not expected to have any adverse economic impacts on 
affected entities, regardless of their size. In general, EPA strives to 
minimize potential adverse impacts on small entities when developing 
regulations to achieve the environmental and human health protection 
goals of the statute and the Agency. EPA solicits comments specifically 
about potential small business impacts.
    State, local, and tribal governments are rarely pesticide 
applicants or registrants, so this proposed rule is not expected to 
affect these governments. Accordingly, pursuant to Title II of the 
Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1531-1538), EPA has 
determined that this action is not subject to the requirements in 
sections 202 and 205 because it does not contain a Federal mandate that 
may result in expenditures of $100 million or more for State, local, 
and tribal governments, in the aggregate, or for the private sector in 
any one year. In addition, this action does not significantly or 
uniquely affect small governments or impose a significant 
intergovernmental mandate, as described in sections 203 and 204 of 
UMRA. For the same reasons, EPA has determined that this proposed rule 
does not have ``federalism implications'' as specified in Executive 
Order 13132, entitled Federalism (64 FR 43255, August 10, 1999), 
because it would not have substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various

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levels of government, as specified in the Order. Thus, Executive Order 
13132 does not apply to this proposed rule. Nor does it have ``tribal 
implications'' as specified in Executive Order 13175, entitled 
Consultation and Coordination with Indian Tribal Governments (65 FR 
22951, November 9, 2000). EPA is not aware of any tribal governments 
which are pesticide registrants. Thus, Executive Order 13175 does not 
apply to this action.
    Since this action is not economically significant under Executive 
Order 12866, it is not subject to Executive Order 13045, entitled 
Protection of Children from Environmental Health Risks and Safety Risks 
(62 FR 19885, April 23, 1997), and Executive Order 13211, entitled 
Actions Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (66 FR 28355, May 22, 2001). In addition, EPA 
interprets Executive Order 13045 as applying only to those regulatory 
actions that concern health or safety risks, which is not the case in 
this proposed rule.
    This action does not involve technical standards that would require 
the consideration of voluntary consensus standards pursuant to section 
12(d) of the National Technology Transfer and Advancement Act (NTTAA) 
(15 U.S.C. 272).
    This action does not have an adverse impact on the environmental 
and health conditions in low-income and minority communities. 
Therefore, this action does not involve special consideration of 
environmental justice related issues as specified in Executive Order 
12898, entitled Federal Actions to Address Environmental Justice in 
Minority Populations and Low-Income Populations (59 FR 7629, February 
16, 1994).

List of Subjects in 40 CFR Part 156

    Environmental protection, Labeling, Pesticides and pests.

    Dated: June 9, 2010.
Lisa P. Jackson,
Administrator.

    Therefore, it is proposed that 40 CFR chapter I be amended as 
follows:

PART 156--[AMENDED]

    1. The authority citation for part 156 continues to read as 
follows:

    Authority: 7 U.S.C. 136 through 136y.
    2. Revise Sec.  156.159 to read as follows:

Sec.  156.159  Compliance date.

    Any pesticide product released for shipment by a registrant after 
August 16, 2011 must bear a label that complies with Sec. Sec.  
156.10(d)(7), 156.10(f), 156.10(i)(2)(ix), 156.140, 156.144, 156.146 
and 156.156.
[FR Doc. 2010-14401 Filed 6-14-10; 8:45 am]
BILLING CODE 6560-50-S
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