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Federal Register / Vol. 73, No. 210 / Wednesday, October 29, 2008 / Rules and Regulations 64215 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by December 29, 

2008. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this action for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Nitrogen 

dioxide, Ozone, Reporting and 

recordkeeping requirements, Sulfur 

oxides, Volatile organic compounds. 

Dated: September 16, 2008. 

Walter W. Kovalick, Jr, 

Acting Regional Administrator, Region 5. 

■ For the reasons stated in the preamble, 

part 52, chapter I, of title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart O—Illinois 

■ 2. Section 52.720 is amended by 

adding paragraph (c)(183) to read as 

follows: 

§ 52.720 Identification of plan. 

* * * * * 

(c) * * * 

(183) On January 24, 2008, the Illinois 

Environmental Protection Agency 

submitted a revision to its state 

implementation plan for the packaging 

production facility of CP–D Acquisition 

Company, LLC. The revision changes 

the source name from CromwellPhoenix, Incorporated, to CP–D 

Acquisition Company, LLC. 

(i) Incorporation by reference. 

(A) November 20, 2003, Supplemental 

Opinion and Order of the Illinois 

Pollution Control Board, AS 03–05, 

effective November 20, 2003. 

[FR Doc. E8–25657 Filed 10–28–08; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 152, 156 and 165 

[EPA–HQ–OPP–2005–0327; FRL–8387–2] 

RIN A2070–AJ37 

Pesticide Management and Disposal; 

Standards for Pesticide Containers 

and Containment 

AGENCY: Environmental Protection 


Agency (EPA). 


ACTION: Final rule. 


SUMMARY: With this final rule, EPA is 

amending the pesticide container and 

containment regulations, which provide 

for the safe storage and disposal of 

pesticides as a means of protecting 

human health and the environment 

pursuant to the Federal Insecticide, 

Fungicide, and Rodenticide Act 

(FIFRA). This final rule extends the 

labeling compliance date from August 

17, 2009 to August 17, 2010; changes 

the phrase ‘‘sold or distributed’’ to 

‘‘released for shipment’’ as associated 

with all of the compliance dates; 

provides certain exceptions to label 

language requirements; allows for 

waivers of certain label requirements; 

and makes various minor editorial 

changes. In addition, the Agency is 

amending 40 CFR part 152 by 

establishing a definition for ‘‘released 

for shipment.’’ 

DATES: This final rule is effective 

December 29, 2008. 

ADDRESSES: EPA has established a 

docket for this action under docket 

identification (ID) number EPA–HQ– 

OPP–2005–0327. 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., Confidential Business Information 

(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 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 

Docket Facility is open 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: 

Jeanne Kasai, Field and External Affairs 
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64216 Federal Register / Vol. 73, No. 210 / Wednesday, October 29, 2008 / Rules and Regulations 

Division (FEAD) (7506P), Office of 

Pesticide Programs, Environmental 

Protection Agency, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460– 

0001; telephone number: (703) 308-

3240; fax number: (703) 308-2962; email address: kasai.jeanne@epa.gov, or 

Nancy Fitz, FEAD (7506P), 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. Does This Action Apply to Me? 

You may be potentially affected by 

this action if you are a pesticide 

formulator, agrichemical dealer, an 

independent commercial applicator, or 

a custom blender. 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 

pesticides from technical chemicals or 

concentrates produced by pesticide 

manufacturing establishments. 

• Agrichemical dealers (NAICS code 

44422), e.g., retail dealers that distribute 

or sell pesticides to agricultural users. 

• Independent commercial applicators 

(NAICS code 115112), e.g., businesses 

that apply pesticides for compensation 

(by aerial and/or ground application) 

and that are not affiliated with 

agrichemical dealers. 

• Custom blenders (NAICS code 

44422), e.g., establishments that provide 

the service of mixing pesticides to a 

customer’s specification (most custom 

blenders are also dealers). 

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. To determine whether 

you or your business may be affected by 

this action, you should carefully 

examine the applicability provisions in 

Units II.D., III., V.B., VI.C., VII.B., 

VIII.C., and IX.A. of the preamble to the 

final pesticide container and 

containment rule, 71 FR 47330 (August 

16, 2006). If you have any questions 

regarding the applicability of this action 

to a particular entity, consult the person 

listed under FOR FURTHER INFORMATION 

CONTACT. 

II. Background 

A. What Action is the Agency Taking? 

On June 11, 2008, EPA published the 

‘‘Pesticide Management and Disposal; 

Standards for Pesticide Containers and 

Containment: Proposed Amendments.’’ 

(73 FR 33035). In that proposal, EPA 

proposed a number of revisions to the 

existing container and containment 

regulations, which had been finalized in 

August 2006 (71 FR 47330). 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; 

requirements for containment of 

pesticides in stationary containers; and 

procedures for container refilling 

operations. 

The public comment period for the 

NPRM closed on July 11, 2008. EPA 

received nine comments from trade 

associations and a consultant. All 

comments were generally in favor of the 

changes, with several suggestions for 

additional revisions to the container and 

containment regulations. 

With this final rule, EPA is amending 

the container and containment 

regulations by extending the labeling 

compliance date from August 17, 2009 

to August 17, 2010; changing the phrase 

‘‘sold or distributed’’ to ‘‘released for 

shipment’’ as associated with all of the 

compliance dates; providing certain 

exceptions to label language 

requirements; allowing for waivers of 

certain label requirements; and making 

various minor editorial changes. In 

addition, the Agency is amending 40 

CFR part 152 by establishing a 

definition for ‘‘released for shipment.’’ 

B. What is the Agency’s Authority for 

Taking this Action? 

These final regulations are issued 

pursuant to the authority given the 

Administrator of EPA in sections 2 

through 34 of 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. 

III. Amendments to 40 CFR Part 152— 

Pesticide Registration and 

Classification Procedures 

The Agency is amending § 152.3 by 

adding a new definition for ‘‘released 

for shipment’’ and is amending 

§ 156.159, § 165.20, § 165.40, and 

§ 165.60 to rely on this term. The 

proposed definition was as follows: 

A product is released for shipment when 

the producer has packaged and labeled it in 

the manner in which it will be shipped, or 

has stored it in an area where finished 

products are ordinarily held for shipment. 

An individual product is only released for 

shipment once, except where subsequent 

events constitute production (e.g., relabeling, 

repackaging). 

Eight commenters expressed support 

for adding a definition of ‘‘released for 

shipment.’’ Several commenters 

suggested changes to the definition for 

clarification. In particular, commenters 

said that it was confusing whether a 

product had to satisfy either one of the 

two conditions (‘‘1. Packaged and 

labeled’’ or ‘‘2. Stored in an area held 

for shipment’’) or both conditions to be 

considered ‘‘released for shipment.’’ 

Another commenter indicated that the 

definition could be interpreted to mean 

that a product could be released for 

shipment a second time. One 

commenter suggested adding language 

to the definition so that the producer 

would have to identify whether a 

product was not yet released for 

shipment. 

The Agency’s intent was that either 

one of the conditions in the first 

sentence of the definition would have to 

be satisfied in order to be ‘‘released for 

shipment.’’ A product that is ‘‘packaged 

and labeled in a manner in which it will 

be distributed or sold’’ is reasonably 

considered to be ‘‘released for 

shipment.’’ Likewise, a product stored 

in an area where finished products are 

ordinarily held for shipment is also 

reasonably considered to be ‘‘released 

for shipment.’’ EPA is keeping the 

definition as ‘‘packaged and labeled in 

a manner in which it will be distributed 

or sold, or stored in an area where 

finished products are ordinarily held for 

shipment’’ so that inspectors can take 

product samples, for enforcement 

purposes, under either condition. For 

example, if the definition required both 

conditions for a product to be 

considered ‘‘released for shipment,’’ 

inspectors might not be authorized to 

collect samples from a loading dock or 

in transit, as they would not necessarily 

be ‘‘stored in an area where products are 

ordinarily held for shipment.’’ 

Conversely, inspectors might not be able 

to collect samples of mislabeled 

products even if they were stored in an 
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Federal Register / Vol. 73, No. 210 / Wednesday, October 29, 2008 / Rules and Regulations 64217 

area where products were ordinarily 

held for shipment if, upon recognizing 

the error, a registrant announced that 

they were not ‘‘packaged and labeled in 

the manner in which it will be 

distributed or sold.’’ Therefore, the 

Agency is not changing ‘‘or’’ to ‘‘and’’ in 

the first sentence of the definition as 

suggested by commenters because EPA 

is maintaining its longstanding policy 

that either condition qualifies as 

released for shipment. 

In the final rule, EPA changed the first 

condition from ‘‘packaged and labeled 

in the manner in which it will be 

shipped’’ to ‘‘packaged and labeled in 

the manner in which it will be 

distributed or sold’’ to make it clear that 

inspectors may collect samples of 

products in their final retail packaging, 

rather than limiting them to collecting 

products in shipping boxes, shrinkwrapped pallet loads, etc. 

However, EPA is modifying the 

proposed definition as suggested by one 

commenter to allow that products not 

considered ready for shipment may be 

stored in an area where finished 

products are ordinarily held for 

shipment, provided that they are 

physically separated from products that 

are intended to be released for shipment 

and are marked as not yet released for 

shipment. The Agency is using the term 

‘‘marked’’ instead of ‘‘identified’’ as 

suggested by the commenter to signify a 

tangible, physical indication apparent to 

workers and inspectors that the 

particular products are not released for 

shipment. A mere verbal instruction not 

to release certain products is not 

sufficient. 

Also, EPA has revised the proposed 

definition to clarify that the term 

‘‘released for shipment’’ refers to the 

earliest point in time that a product 

could be said to enter into commerce, 

and that the product remains in the 

condition of ‘‘released for shipment’’ 

through all subsequent distributions or 

sales, unless the pesticide product is 

consumed through the production of a 

new pesticide product. Thus, a product 

does not cease to be ‘‘released for 

shipment’’ as it moves through its 

distribution chain to the end user. In the 

context of FIFRA, an individual product 

is only ‘‘released for shipment’’ once, 

except where subsequent activities such 

as relabeling or repackaging, constitute 

production of a new pesticide product. 

To emphasize this point, EPA has 

replaced ‘‘is released for shipment’’ 

with ‘‘becomes released for shipment’’ 

in the final definition for ‘‘released for 

shipment’’ in § 152.3 which reads as 

follows: 

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. 

One commenter suggested that a 

sentence be added to clarify that the 

term ‘‘released for shipment’’ is not 

intended to have the same meaning as 

‘‘distribute or sell.’’ It is true that it is 

not the Agency’s intention that the 

terms ‘‘released for shipment’’ and 

‘‘distribute or sell’’ have the same 

meaning. This clarification is being 

provided here and may be included in 

guidance documents, but will not be 

added to the definition in the regulatory 

text. 

The Agency also asked for comment 

on the placement of the definition in 

parts 156 and 165 of the regulations. 

Two commenters were in favor of 

placing the definition of ‘‘released for 

shipment’’ in parts 156 and 165 of the 

regulations citing the potential for 

confusion with the definition of 

‘‘distribute or sell’’ in § 152.3. These 

commenters also requested that 

language be added to clarify that for the 

purposes of implementing the container 

labeling requirements, ‘‘released for 

shipment’’ is not intended to have the 

same meaning as ‘‘distribute or sell.’’ 

The Agency has decided that the above 

definition is appropriate in the context 

of the definition of ‘‘distribute or sell’’ 

in § 152.3, and for all purposes under 

FIFRA. Accordingly, EPA is adding the 

definition of ‘‘released for shipment’’ to 

the generally applicable definitions in 

§ 152.3, rather than placing it in the 

definition sections specific to parts 156 

and 165. This revision does not give the 

term ‘‘released for shipment’’ a meaning 

identical to ‘‘distribute or sell’’. 

‘‘Released for shipment’’ has a more 

narrow definition, and is part, but not 

the whole, of the term ‘‘distribute or 

sell.’’ 

IV. Amendments to 40 CFR Part 156— 

Labeling Requirements for Pesticides 

and Devices 

The Agency is amending 40 CFR part 

156 by adding a new definitions section, 

§ 156.3, consisting of introductory text, 

a new definition for ‘‘dilutable’’ and the 

existing definition from § 165.3 of 

‘‘transport vehicle’’; in § 156.140(a) by 

changing the phrase ‘‘in this section’’ to 

read ‘‘of this section.’’; 

in§§ 156.140(a)(5), (d), and (e) by 

exempting certain container types from 

container type label statements; in 

§ 156.140(c), by providing a mechanism 

whereby the Agency can approve 

modifications to the container type label 

language on a case-by-case basis; in 

§§ 156.144(e), (f) and (g) by exempting 

certain pesticide product container 

types from the residue removal label 

requirements; in§§ 156.140(a) and (b) 

and § 156.144(a) by revising the 

introductory paragraphs to account for 

the new exemptions, and in § 156.159 

by extending the compliance date by a 

year, and changing the phrase 

‘‘distributed or sold’’ to ‘‘released for 

shipment’’ as associated with the 

compliance date. 

The rest of this unit describes the 

comments on the proposed changes to 

40 CFR part 156 and any changes EPA 

made to the proposed language in 

response to public comments. Unless 

otherwise indicated, EPA is adopting 

the changes as proposed. 

A. Definitions Section 

The Agency proposed adding a new 

definitions section at § 156.3, consisting 

of introductory text and a definition for 

‘‘dilutable.’’ One commenter supported 

the proposed definition of ‘‘dilutable.’’ 

Another commenter pointed out that 

EPA proposed an exemption for 

transport vehicles in § 156.144(g) but 

only defines ‘‘transport vehicle’’ in 

§ 165.3. To facilitate the understanding 

of the use of the term ‘‘transport 

vehicle’’ in 40 CFR part 156 subpart H, 

EPA will include the definition of 

‘‘transport vehicle’’ in 40 CFR part 156 

as well. Therefore, the Agency is 

adopting the proposed § 156.3, 

including the definition for ‘‘dilutable’’ 

and adding the definition for ‘‘transport 

vehicle’’ from § 165.3. In addition, EPA 

is making an editorial change to the 

second sentence of the introductory 

paragraph to improve clarity. In 

particular, EPA is changing the phrase 

‘‘the following terms shall apply’’ to 

‘‘the following terms shall have the 

meanings set forth below.’’ 

B. Label Language Identifying the 

Container Type 

The Agency proposed to create a list 

(in § 156.140(a)(5)) of nonrefillable 

container types exempt from the 

‘‘identification of container type’’ 

labeling requirements that identify the 

container as nonrefillable 

(§ 156.140(a)(1)) and prohibit or limit its 

reuse (§ 156.140(a)(2)). The Agency also 

proposed a provision in § 156.140(c) 

that would allow waivers and 

modifications of any of the ‘‘container 
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64218 Federal Register / Vol. 73, No. 210 / Wednesday, October 29, 2008 / Rules and Regulations 

type’’ label requirements on a case-bycase basis and asked for comments on 

the approach of specifically exempting 

certain container types while also 

allowing waivers and modifications on 

a case-by-case basis. 

Seven commenters were in support of 

adding a list of container types exempt 

from the nonrefillable container type 

and reuse statements. A few 

commenters suggested that, instead of 

having a long list of exempt container 

types, the Agency should exempt 

package types through guidance 

documents, a Pesticide Registration 

Notice, or the EPA’s web site. The 

Agency has decided to keep a list in the 

rule (in § 156.140(a)(5)) of container 

types that are exempt from the 

nonrefillable container type and reuse 

statements. The Agency intends to 

maintain on the EPA pesticide program 

web site (www.epa.gov/pesticides under 

the subject ‘‘Pesticide Container and 

Containment Rule’’) summaries of 

modification and waiver decisions made 

pursuant to § 156.140(c). 

EPA is also making two editorial 

changes to the proposed introductory 

text of § 156.140(a)(5) to improve clarity. 

Specifically, EPA is changing the phrase 

‘‘in the following nonrefillable 

containers’’ to read ‘‘in the following 

types of nonrefillable containers, and 

their packaging’’ and the phrase ‘‘in this 

section’’ to read ‘‘of this section.’’ 

Four commenters suggested changes 

and additions to the container types that 

were proposed to be exempt from the 

requirements to have ‘‘Nonrefillable 

container’’ and reuse statements on their 

labels. 

One commenter requested that the 

Agency specifically exempt products in 

polyethylene sleeve packages whose 

contents would need to be mixed with 

water. The commenter explained that 

the product user fills a container (such 

as a bucket) with water, opens a portion 

control packet and empties the entire 

contents into the water in the container. 

The portion control packet is not 

designed to be resealed and it does not 

appear likely to be reused. Although 

EPA considers this container type 

within the scope of the existing 

exemption for ‘‘any package destroyed 

by the use of the product contained,’’ 

the commenter asked EPA to 

specifically exempt this container type 

for clarity. The Agency has identified 

the rodenticide placepack as a similar 

type of product, in that it is also a 

portion control packet and in packaging 

destroyed by use of the product 

contained. 

The Agency believes that one-time 

use portion control packets are 

sufficiently common that a specific 

exemption may assist the regulated 

community, even if not strictly 

necessary. Therefore, the Agency is 

exempting ‘‘one-time use portion 

control packets, such as polyethylene 

sleeve packages or rodenticide 

placepacks’’ from the nonrefillable 

container type and reuse statements in 

the final rule by adding this container 

type to the list of exempt container 

types in § 156.140(a)(5). 

One commenter suggested that the 

proposed list lacks a major segment of 

bait station containers. This commenter 

suggested adding language to include 

‘‘prefilled, non-refillable ant, roach and 

termite insecticide bait stations not 

intended to be opened or activated in a 

manner that exposes the contents to 

human contact’’ which includes any 

child-resistant bait station. Another 

commenter suggested that the term 

‘‘tamper-resistant bait station’’ is 

generally used for rodent control 

products while ‘‘child resistant 

packaging’’ is generally used for 

insecticide bait stations. Therefore, the 

commenter suggested changing 

‘‘tamper-resistant bait stations’’ to 

‘‘tamper-resistant insecticide and 

rodenticide bait stations.’’ 

The Agency has decided to change 

‘‘tamper-resistant bait stations’’ to ‘‘onetime use bait stations.’’ One-time use 

bait stations more clearly describes the 

category of products EPA intended to 

exempt: bait stations for any pest that 

are not designed to be refilled and 

usually cannot be opened without 

causing significant damage to them. 

Distinctions between tamper-resistant 

and child-resistant packaging, or 

between target pests, are not relevant to 

this exemption. ‘‘Tamper-resistant cages 

for repellent or trapping strips’’ is also 

being changed to ‘‘one-time use cages 

for repellent or trapping strips’’ for the 

same reasons. 

For consistency, EPA is also changing 

the phrases ‘‘nonrefillable’’ and ‘‘single 

use’’ to ‘‘one-time use’’ in the 

description of other container types in 

§ 156.140(a)(5). For clarity, EPA is also 

changing the last phrase in the 

description of caulking tubes and other 

squeezable tubes from ‘‘for paste, gel, or 

other similar formulas’’ to ‘‘for paste, 

gel, or other similar substances.’’ 

Shortly after the comment period, 

EPA received questions that highlighted 

other container types that could also be 

considered inherently nonrefillable. 

First, devices are exempt from 

registration under FIFRA section 3, but 

are subject to some of the requirements 

set forth in FIFRA and 40 CFR (per 40 

CFR 152.500), including the label 

requirements in 40 CFR part 156. The 

labeling requirements added to 40 CFR 

part 156 by the container and 

containment rule were primarily 

intended to address the risks of 

chemical residues in containers, and 

generally are not relevant to devices. 

Second, another commenter pointed out 

that cattle ear tags are similar to pet flea 

and tick collars and therefore they 

should also be exempted from the 

requirements in §§ 156.140(a)(1) and 

(a)(2). For both types of products, the 

plastic matrix releases a pesticide active 

ingredient over time while on the 

animal and cannot be reused or 

‘‘reloaded’’ with the pesticide active 

ingredient. Although these two 

comments were not submitted on time, 

EPA agrees that these products should 

be exempted from the labeling 

requirements to identify a container as 

a nonrefillable container and a reuse 

statement. Accordingly, EPA is 

exempting devices and ‘‘animal ear tags, 

such as cattle ear tags’’ from 

§§ 156.140(a)(1) and (a)(2). EPA is 

exempting ‘‘animal ear tags, such as 

cattle ear tags’’ so that the same 

exemption will apply in similar 

situations for other animals. 

Therefore, EPA is revising proposed 

§ 156.140(a)(5) to exempt pesticide 

products in the following container 

types, and their packaging, from the 

requirements to have statements on the 

label regarding ‘‘Nonrefillable 

containers’’ in § 156.140(a)(1) and 

‘‘reuse’’ in § 156.140(a)(2): 

• Aerosol cans; 

• Devices as defined in 40 CFR 

152.500; 

• One-time use caulking tubes and 

other one-time use squeezable tube 

containers for paste, gel, or other similar 

substances (e.g., crack and crevice 

application devices, unit dose 

application tubes); 

• Foil packets for water soluble 

packaging, repellent wipes, and other 

one-time use products; 

• One-time use portion control 

packets, such as polyethylene sleeve 

packages or rodenticide placepacks; 

• One-time use bait stations; 

• One-time use cages for repellent or 

trapping strips; 

• Pet collars or animal ear tags, such 

as cattle ear tags; 

• One-time use semiochemical 

dispersion devices; 

• Any container that is destroyed by 

the use of the product contained; and 

• Any container that would be 

destroyed if reuse of the container were 

attempted (for example, bacteriostatic 

water filter cartridges, blister cards, etc). 

The Agency notes that for products 

described in the list above, the label 

may be on the container itself, on outer 

packaging, or both. The Agency believes 
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Federal Register / Vol. 73, No. 210 / Wednesday, October 29, 2008 / Rules and Regulations 64219 

that neither the listed containers nor 

their outer packaging presents the type 

of risks addressed by the ‘‘Nonrefillable 

container’’ statement in § 156.140(a)(1) 

and the reuse statement in 

§ 156.140(a)(2), and therefore intends 

that the exemption of these product or 

container types should apply to both the 

container itself and any outer packaging. 

To make this consistent for all of the 

exempted products, EPA has moved the 

references to packaging into the 

introductory paragraph of 

§ 156.140(a)(5), so that the outer 

packaging of any exempt container is 

also exempt. For these same reasons, the 

Agency is deleting ‘‘packaging’’ from the 

exemption for ‘‘packaging for pet 

collars,’’ as proposed and replacing the 

term ‘‘packaging’’ with the term 

‘‘container’’ in §§ 156.140(a)(5)(x) and 

(a)(5)(xi). 

EPA also notes that by specifying in 

§ 156.140(a)(5) certain products as ‘‘onetime use’’ the Agency does not intend to 

suggest that other exempted products 

are not required to be one-time use 

products. All products that are eligible 

for the § 156.140(a)(5) exemption must 

be one-time use containers (as the 

§ 165.3 definition of nonrefillable 

container specifies that they be 

‘‘designed and constructed for one-time 

use’’). For most products exempted by 

§ 156.140(a)(5) (e.g., aerosol cans, 

packaging destroyed by use), restating 

the one-time use limitation would serve 

no purpose. However, for products 

where both one-time use and multiple 

use versions are common (i.e., bait 

stations, cages and semiochemical 

dispersion devices), EPA has included 

the ‘‘one-time use’’ designation as a 

reminder for persons subject to these 

regulations. Lastly, EPA is changing the 

introductory sentence in § 156.140(a)(5) 

as proposed from ‘‘Exemptions. 

Pesticide products packaged in the 

following nonrefillable containers are 

exempt from the requirements in 

paragraphs (a)(1) and (a)(2) in this 

section:’’ to ‘‘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:’’. EPA is deleting 

‘‘...packaged...’’ from the proposed text 

and adding ‘‘...and their packaging...’’ to 

make it clear that the exemption applies 

to the container itself and any outer 

packaging, as discussed above. EPA is 

also changing the proposed text by 

adding ‘‘...types of...’’ in front of 

‘‘nonrefillable containers’’ for clarity 

and changing ‘‘in this section’’ to ‘‘of 

this section’’ for consistency. 

Also, the Agency did not propose to 

automatically exempt these container 

types from the requirement to have a 

statement about recycling/ 

reconditioning because the Agency 

wants to facilitate recycling wherever 

feasible. One commenter had a different 

opinion and remarked that a label 

statement encouraging recycling could 

conflict with the requirements of local 

recycling programs, noting that aerosol 

containers are not accepted by many 

recycling programs. EPA is aware of 

some local recycling programs that are 

designed to accept aerosol containers, 

and EPA believes that recycling 

programs generally are expanding and 

that it is important to encourage 

recycling where available. Moreover, the 

recycling statements in § 156.140(a)(3) 

take availability of a recycling program 

into account, such as ‘‘Offer for 

recycling if available.’’ Finally, as 

discussed below, registrants will now 

have the option of applying for a waiver 

from the recycling label statement 

requirement if recycling is not 

appropriate for a specific container or 

product. For these reasons, the Agency 

has decided not to automatically exempt 

these containers from the recycling/ 

reconditioning statement. 

In § 156.140(b), EPA is finalizing the 

proposed changes and one additional 

change suggested by a commenter. To 

improve clarity, EPA is changing the 

beginning of the second sentence from 

‘‘If placed on the label, it must be...’’ to 

‘‘If placed on the label, the statement 

must be...’’ 

In § 156.140(c), the Agency proposed 

to add a new paragraph that would 

allow EPA, on a case-by-case basis, to 

modify or waive any of the label 

statements required by § 156.140. This 

paragraph is being added to § 156.140(c) 

as proposed. One commenter suggested 

exempting package types through 

guidance documents or making the 

‘‘nonrefillable container’’ statement 

optional for certain package types 

because of the burden to request waivers 

and the Agency to review waivers. 

Another commenter suggested keeping a 

list through a Pesticide Registration 

Notice or on EPA’s web site so that 

repeat requests would not have to be 

made on the same container types. 

Lastly, another commenter supported 

the modification/waiver provision as 

long as it was in addition to the list of 

exempt product container types in 40 

CFR 156.140(a)(5). The Agency intends 

to maintain on the EPA pesticide 

program web site (www.epa.gov/ 

pesticides under the subject ‘‘Pesticide 

Container and Containment Rule’’), 

summaries of decisions on requests for 

modifications and waivers. 

In § 156.140(d), the Agency proposed 

to exempt from the label statements 

required in § 156.140, pesticideimpregnated clothing or other repellentimpregnated objects that are registered 

as pesticides and are not packaged in a 

container. One commenter requested 

that this exemption be expanded to all 

objects registered as pesticide products 

but not packaged in a container. The 

commenter explained that there are 

objects registered as a pesticide that are 

not ‘‘pesticide-impregnated’’ and, with 

technology advancing, there will be 

innovations in pesticide delivery 

systems. One example given was EPA’s 

registration of copper alloy as an 

antimicrobial pesticide that can be 

fabricated into objects such as hospital 

bed railings. The commenter maintained 

that the same considerations the Agency 

is giving to repellent-impregnated fabric 

objects should apply to copper alloy as 

well as other future objects. Another 

commenter recommended an editorial 

change that would generally exempt 

‘‘repellent-impregnated fabric objects’’ 

while giving clothing, tents or mosquito 

netting as examples. 

Based on these comments, EPA 

reconsidered the exemption for 

pesticide-impregnated objects that are 

registered as pesticides and are not 

packaged in a container as proposed. 

Upon re-evaluation, EPA believes that it 

is more appropriate to revise this 

paragraph to exempt pesticidal articles 

from all of the label statements required 

by § 156.140. Note that while § 152.25(a) 

exempts from all requirements of FIFRA 

certain articles treated with a pesticide 

to protect the article itself, this new 

§ 156.140(d) provides a more narrow 

exception to a broader class of articles. 

As discussed above for devices, the 

container and containment labeling 

requirements in 40 CFR part 156 were 

primarily intended to address the 

handling of chemical residues in 

containers. The Agency expects that any 

packaging or shipping containers for 

pesticidal articles would have minimal 

chemical residues, so it is not necessary 

or appropriate for the labels of these 

pesticides to have the same container 

handling statements. EPA believes that 

the specific pesticide products that were 

identified in the proposed exemption, 

including repellent-impregnated 

clothing and other repellentimpregnated fabric articles, such as 

tents or mosquito netting, are also 

exempted by the exemption for 

pesticidal articles in § 156.140(d). 

This new exemption complements the 

existing exemption in § 152.25(a) in that 

it addresses pesticidal articles that do 

not qualify for the § 152.25(a) 

exemption. Section 152.25(a) provides a 

complete exemption from all 

requirements of FIFRA for qualifying 
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64220 Federal Register / Vol. 73, No. 210 / Wednesday, October 29, 2008 / Rules and Regulations 

articles or substances treated with, or 

containing a pesticide, if: (1) the 

incorporated pesticide is registered for 

use in or on the article or substance, 

and; (2) the sole purpose of the 

treatment is to protect the article or 

substance itself. To qualify for the 

treated articles exemption, both 

conditions stated above must be met. If 

both are not met, the article or substance 

does not qualify for the exemption and 

is subject to regulation under FIFRA. 

Articles that meet both criteria in 

§ 152.25(a) are exempt from all 

requirements of FIFRA, including the 

labeling requirements in 40 CFR part 

156. Where a pesticidal article does not 

meet both criteria, the article is subject 

to regulation under FIFRA and therefore 

must be registered as a pesticide 

product and comply with all of the 

FIFRA requirements. The purpose of 

§ 156.140(d) is to exempt these articles 

from the identification of container type 

label statements in § 156.140. 

EPA acknowledges that there are 

likely to be situations where the 

identification of container type label 

statements would not be appropriate for 

a specific pesticide, such as objects 

registered as pesticide products but not 

packaged in a container, as described by 

the commenter. Some of these situations 

may be covered by the exemption for 

pesticidal articles in § 156.140(d). 

However, some of the pesticide 

products identified by the commenter 

may not be exempted by § 156.140(d). 

Because EPA expects that the number of 

these situations is small, EPA believes 

that they can be handled effectively by 

the modification/waiver provision in 

§ 156.140(c) and through the pesticide 

registration process. 

Shortly after the comment period, 

EPA received a question about why 

transport vehicles were not proposed to 

be exempted from the refillable 

container type statements in 

§ 156.140(b) similar to the proposal to 

exempt transport vehicles from the 

residue removal label statements. The 

commenter pointed out that the same 

logic applies to the refillable container 

type statement and the residue removal 

requirement – that the label language is 

not tailored to the unique nature of 

transport vehicle containers. EPA agrees 

that transport vehicles are generally 

intended to be refilled with other 

pesticides or other chemicals so it does 

not make sense for the labels of 

pesticides that are distributed only in 

transport vehicles to include the 

statement ‘‘Refillable container. Refill 

this container with pesticide [or 

common chemical name] only. Do not 

reuse this container for any other 

purpose.’’ Therefore, EPA is adding a 

new exemption in § 156.140(e) that 

exempts transport vehicles from the 

requirements in that section. 

C. Residue Removal Instructions 

As proposed, EPA is adding three 

exemptions from the residue removal 

instruction requirements in § 156.144. 

EPA has modified the proposed 

exemption for compressed gas cylinders 

to eliminate unneeded language about 

container types. In its final form, the 

exemption from the residue removal 

instruction requirements applies to all 

pesticides that are gases, regardless of 

container shape. EPA believes that this 

improves the clarity and covers all of 

the containers, including compressed 

gas cylinders that were covered by the 

proposed exemption. 

In § 156.144(f), the Agency also 

proposed to exempt pesticideimpregnated objects that are registered 

as pesticides (and not packaged in a 

container) from the residue removal 

requirements. The Agency is revising 

the exemption in § 156.144(f) in the 

same way as in § 156.140(d), for the 

reasons discussed above. 

EPA revised the exemption for 

transport vehicles in § 156.144(g) for 

clarity and to be consistent with the 

format in § 156.140(e) and the other 

exemptions in § 156.144. In addition, it 

is no longer appropriate to include the 

parenthetical example of a transport 

vehicle because the full definition of 

transport vehicle is being added to 

§ 156.3. EPA believes that the transport 

vehicle exemption in the final rule has 

the same effect as the proposed 

exemption, but is more straightforward 

and easier to understand. 

D. Compliance Date 

The Agency proposed changing the 

compliance date in § 156.159 for 

labeling requirements, from August 17, 

2009 to August 17, 2010, and replacing 

the phrase ‘‘distributed or sold’’ with 

‘‘released for shipment.’’ Section 

156.159 was proposed to read: 

As of August 17, 2010, all pesticide 

products released for shipment by a 

registrant must have labels that comply with 

§§ 156.10(d)(7), 156.10(f), 156.10(i)(2)(ix), 

156.140, 156.144, 156.146, and 156.156. 

The Agency received seven comments 

supporting the proposed 1–year 

extension of the compliance date for 

labeling requirements and replacing 

‘‘distributed or sold’’ with ‘‘released for 

shipment.’’ Several of these commenters 

were concerned that the proposed 

language could be interpreted to mean 

that on August 17, 2010 registrants 

would have to re-label all products that 

had been previously released for 

shipment. As discussed above, EPA has 

revised the proposed definition of 

‘‘released for shipment’’ to clarify that, 

for purposes of FIFRA, the action of 

releasing a product for shipment occurs 

only once for a given pesticide product, 

and that a product remains in the 

condition of ‘‘released for shipment’’ 

unless subsequent activities constitute 

production. Also, for clarity and 

consistency, EPA is changing the 

proposed language by replacing ‘‘all’’ 

with ‘‘any’’ in ‘‘...all pesticide products 

released for shipment...’’ and ‘‘have 

labels’’ with ‘‘must bear a label’’ in 

‘‘...must have labels that comply 

with...’’. In addition, the Agency is 

adopting the following language to make 

it clear that the label requirements will 

apply only to products released for 

shipment after the 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. 

Thus, pesticide products released for 

shipment on or before August 16, 2010 

are not required to comply with the 

requirements cited in the sentence 

above. Similar changes have been made 

to the compliance date and associated 

language for nonrefillable containers in 

§ 165.20(c). In § 165.40(c) and 

§ 165.60(c) the Agency is changing the 

language regarding ‘‘released for 

shipment’’ and the compliance date 

from ‘‘As of August 16, 2011...’’ to 

‘‘...after August 16, 2011.’’ The 

compliance date is being changed by 

one day so that all compliance dates 

will be ‘‘...after August 16th...’’ to help 

avoid confusion. 

V. Amendments to 40 CFR Part 165— 

Pesticide Management and Disposal 

EPA proposed a number of changes to 

the container and containment 

regulations in part 165 to provide 

clarification and to correct editorial and 

other errors. Unless otherwise indicated, 

EPA is adopting the changes as 

proposed. 

For consistency, the Agency is 

changing the proposed introductory 

language ‘‘In addition, as used in this 

part, the following terms shall apply.’’ 

by replacing the term ‘‘apply’’ with the 

phrase ‘‘have the meanings set forth 

below.’’ In addition to adopting the 

proposed changes to the definitions in 

165.3, the Agency is making editorial 

changes by renaming ‘‘Pesticide 

compatible’’ as applied to containment 

as ‘‘Pesticide compatible as applied to 

containment’’ and ‘‘Pesticide 

compatible’’ as applied to containers as 

‘‘Pesticide compatible as applied to 

containers.’’ The Agency is making 
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Federal Register / Vol. 73, No. 210 / Wednesday, October 29, 2008 / Rules and Regulations 64221 

other editorial changes as suggested by 

one commenter to the definitions of 

‘‘Pesticide compatible as applied to 

containment’’ and ‘‘Suspension 

concentrate.’’ 

EPA is adopting the language as 

proposed with one minor revision 

suggested by a commenter, by replacing 

the word ‘‘capacity’’ with ‘‘capability’’ 

to avoid confusion with the new 

definition of ‘‘capacity.’’ 

The Agency proposed to use the 

existing definition for ‘‘flowable 

concentrate’’ but rename it as 

‘‘suspension concentrate’’ as suggested 

by stakeholders. The proposed 

definition for ‘‘suspension concentrate’’ 

was ‘‘...a stable suspension of active 

ingredients in a liquid intended for 

dilution with water before use.’’ A 

commenter pointed out that as written, 

it could include capsule suspension 

(microencapsulated) as well as flowable 

concentrates, but to apply only to 

flowable concentrates it should read 

‘‘...a stable suspension of solid 

particulate active ingredients...’’ The 

Agency is making this change as 

suggested because rinsing data shows 

that microencapsulated formulations are 

not as difficult to remove as stable 

suspensions of solid particulate active 

ingredients. Also, ‘‘flowable 

concentrate’’ is being replaced with 

‘‘suspension concentrate’’ in 

§ § 165.25(f)(2) and 165.27(b)(5). 

The Agency is changing the following 

existing definitions in § 165.3 as 

suggested by a commenter: ‘‘dry 

pesticide,’’ ‘‘nonrefillable container,’’ 

‘‘rinsate,’’ and ‘‘washwater.’’ 

The original definition of ‘‘dry 

pesticide’’ was ‘‘...any pesticide that is 

in solid form and that has not been 

combined with liquids; this includes 

formulations such as dusts, wettable 

powders, dry flowable powders, 

granules, and dry baits.’’ The list is 

being changed by replacing ‘‘dry 

flowable powders’’ with ‘‘dry 

flowables’’ and by adding ‘‘watersoluble powders.’’ A commenter 

explained that pesticide formulations 

described as ‘‘dry flowable’’ are 

formulated into small granules, not 

powder. ‘‘Water-soluble powders’’ is 

being added to the list because it is an 

example of a dry pesticide. 

The original definition of 

‘‘nonrefillable container’’ provided, in 

part, that they be ‘‘for one time 

containment of a pesticide for sale or 

distribution.’’ A commenter suggested 

that the term ‘‘containment’’ was used 

inappropriately in this definition 

because ‘‘containment’’ is used 

elsewhere in the container and 

containment rule to refer to various 

structures intended to contain spills, 

washwater, etc. To avoid any confusion, 

EPA is amending the definition for 

‘‘nonrefillable container’’ by replacing 

‘‘one time containment of a pesticide for 

sale or distribution.’’ with ‘‘one-time use 

and is not intended to be filled again 

with a pesticide for sale or 

distribution.’’ 

The original definition of ‘‘rinsate’’ 

was ‘‘...the liquid produced from the 

rinsing of the interior of any equipment 

or container that has come in direct 

contact with any pesticide.’’ The 

Agency is amending the definition to 

replace ‘‘produced’’ with ‘‘resulting’’ to 

avoid any confusion with the definition 

of ‘‘produced’’ as defined in FIFRA. 

Similarly, the original definition of 

‘‘washwater’’ was ‘‘...the liquid 

produced 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.’’ The Agency 

is also amending the definition of 

‘‘washwater’’ by replacing ‘‘produced’’ 

with ‘‘resulting,’’ and by adding 

examples of such liquids (i.e., such as 

oil or antifreeze). 

The Agency is changing the language 

associated with the compliance date in 

§ 165.20(c), § 165.40(c), and § 165.60(c) 

to be consistent with the revision in 

§ 156.159, for the reasons discussed 

above. In addition, the Agency is 

changing the compliance date in 

§ 165.40(c), and § 165.60(c) so that they 

all read ‘‘...after August 16,...’’ regardless 

of the year. The Agency is correcting 

errors in §§ 165.25(a), 165.25(b)(1), and 

165.25(b)(2), as proposed, as well as in 

§ 165.45(b)(2) by changing ‘‘part 107 

subpart B’’ to read ‘‘49 CFR part 107 

subpart B.’’ 

A commenter suggested that EPA 

provide a more detailed reference for 

the EPA test procedure ‘‘Rinsing 

Procedures for Dilutable Pesticide 

Products in Rigid Containers’’ cited in 

§ 165.25(f)(1). The Agency considered 

this suggestion, but decided not to 

revise the regulatory text because the 

protocol is readily available. It is in the 

docket for the final rule and the Agency 

intends to keep it posted on the EPA 

pesticide program web site 

(www.epa.gov/pesticides under the 

subject ‘‘Pesticide Container and 

Containment Rule’’). EPA is correcting 

an error made in the proposed change 

to § 165.43(e)(1), by replacing ‘‘is’’ with 

‘‘if’’ in the phrase that reads in part 

‘‘...to prevent an unreasonable adverse 

effect on the environment is all of the 

following conditions exist:’’ 

In addition to making these changes, 

EPA is making several changes in 40 

CFR part 165 in response to a 

commenter. Those changes are: 

inserting the specific regulations 

referenced (49 CFR parts 171-180) in 

§ 165.45(e) and adding ‘‘or’’ as in ‘‘equal 

to or greater than’’ in § 165.45 (f). As 

suggested by a commenter, for 

consistency EPA is replacing ‘‘stationary 

liquid pesticide container,’’ with 

‘‘stationary container of liquid 

pesticides,’’ ‘‘stationary dry pesticide 

container’’ with ‘‘stationary container of 

dry pesticides,’’ ‘‘stationary liquid 

pesticide containment’’ with ‘‘secondary 

containment units for stationary 

containers of liquid pesticides,’’ and 

‘‘stationary dry pesticide containment’’ 

with ‘‘secondary containment units for 

stationary containers of dry pesticides’’ 

in § 165.45(f); § 165.85(c), (d) and (f); 

and § 165.87(c), (d) and (f). 

EPA is changing slightly the wording 

of § 165.60(c) as proposed. The phrase 

‘‘must have been repackaged’’ is 

changed to read ‘‘must be repackaged.’’ 

This change is being made for clarity 

since § 165.60 contains the general 

provisions of Subpart D – Standards for 

Repackaging Pesticide Products into 

Refillable Containers. 

EPA is making minor editorial 

changes in § 165.67(d) and 

§ 165.70(e)(5)(i) by replacing the word 

‘‘referenced’’ with the word ‘‘referred 

to.’’ EPA is correcting a mistake made in 

proposed § 165.85(a)(3) and 165.87(a)(3) 

where the word ‘‘able’’ had been 

omitted in the proposed language the 

phrase ‘‘compatible means to 

withstand’’ is corrected to read 

‘‘compatible means able to withstand.’’ 

In discussions with stakeholders, EPA 

was asked to consider a change to 

§ 165.90(a)(5). The Agency’s intention of 

requiring lockable valves on stationary 

pesticide containers (if required by 

§ 165.45(f)) was to mitigate the risks 

associated with vandalism and theft. 

The Agency agrees with stakeholders 

that locking the entrances to the facility 

when it is unattended would achieve 

the same purpose. Therefore, the EPA is 

amending § 165.90(a)(5) to state that, 

when lockable valves are required, the 

owner or operator of a facility must 

ensure that the lockable valves on 

stationary containers are locked or that 

the facility itself is locked, whenever the 

facility is unattended. 

EPA has also decided to amend 

§ 165.90(b)(2) to expressly include 

weather among the factors relevant to 

determining whether repairs are 

completed ‘‘within a time frame that is 

reasonable.’’ EPA has always 

understood that weather affects 

operators’ ability to seal cracks and gaps 

in a containment structure or 

appurtenances, and is making this 

explicit in the regulation. 
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64222 Federal Register / Vol. 73, No. 210 / Wednesday, October 29, 2008 / Rules and Regulations 

VI. Economic Impacts 

EPA prepared two Economic Analyses 

(EAs) of the potential costs and benefits 

associated with the August 16, 2006, 

Container and Containment Rule, one 

for the container requirements and 

another for the containment 

requirements. The EAs, entitled 

‘‘Economic Analysis of the Pesticide 

Container Design and Residue Removal 

Standards’’ and ‘‘Economic Analysis of 

the Bulk Pesticide Containment 

Structure Regulations,’’ are available in 

the docket for the pesticide container 

and containment rule at http:// 

www.regulations.gov under docket 

identification number EPA–HQ–OPP– 

2005–0327. The Agency has prepared an 

addendum to these EAs to address the 

changes in the estimated impacts 

resulting from this final rule. The 

addendum to the EA, entitled 

‘‘Addendum to the June 1, 2006, 

Economic Analysis of the Bulk Pesticide 

Container Design and Residue Removal 

Standards’’ is briefly summarized here, 

and is available in the docket for this 

rulemaking. 

EPA estimated the total annual cost of 

the August 16, 2006, Container and 

Containment Rule to be $11.3 million 

($8.37 million for containers plus $2.93 

million for containment) and the total 

annual benefits from the final rule to be 

$17 to $23.4 million. When the 

estimated cost of the August 16, 2006, 

rule is adjusted to consider the 

amendments being finalized, there is an 

annual cost reduction of approximately 

$0.23 to $0.32 million due to a 

reduction in the number of labels that 

would need to be revised. There is no 

difference in the total annual benefits 

from the August 16, 2006 rule. 

VII. FIFRA Mandated Reviews 

In accordance with FIFRA section 

25(a), the Agency submitted a draft of 

this final rule to the Committee on 

Agriculture in the House of 

Representatives, the Committee on 

Agriculture, Nutrition, and Forestry in 

the United States Senate, and the FIFRA 

Scientific Advisory Panel (SAP). The 

SAP and the Secretary of Agriculture 

waived review of this final rule. 

VIII. Statutory and Executive Order 

Reviews 

A. Executive Order 12866 

Under Executive Order 12866, 

entitled Regulatory Planning and 

Review (58 FR 51735, October 4, 1993), 

the Office of Management and Budget 

(OMB) has determined that this final 

rule is not a ‘‘significant regulatory 

action’’ because these requirements will 

not raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. As 

such, this final rule is not subject to 

review under Executive Order 12866. 

B. Paperwork Reduction Act (PRA) 

This action does not impose any new 

information collection burden or 

activities requiring approval under the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. The information collection 

activities contained in the existing 

regulations are already approved under 

OMB control number 2070–0133, and 

are also identified under 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. 

C. Regulatory Flexibility Act (RFA) 

Pursuant to section 605(b) of the 

Regulatory Flexibility Act (RFA) (5 

U.S.C. 601 et seq.), the Agency hereby 

certifies that this final rule does not 

have a significant adverse economic 

impact on a substantial number of small 

entities. This final rule is expected to 

result in a slight 2% to 3% decrease in 

the estimated total costs of the 

Container and Containment Rule. As 

such, there are not expected to be any 

adverse economic impacts of affected 

entities, regardless of their size. The 

factual basis for the Agency’s 

determination is presented in the 

addendum to the EA, entitled 

‘‘Addendum to the June 1, 2006, 

Economic Analysis of the Bulk Pesticide 

Container Design and Residue Removal 

Standards,’’ prepared for this final rule, 

which is summarized in Unit VI., and a 

copy of which is available in the docket 

for this rulemaking. The following is a 

brief summary of the factual basis for 

this certification. 

Under the RFA, small entities include 

small businesses, small organizations, 

and small governmental jurisdictions. 

For purposes of assessing the impacts of 

this final rule on small entities, small 

entity is defined in accordance with the 

RFA as: (1) A small business as defined 

by the Small Business Administration’s 

(SBA) regulations at 13 CFR 121.201; (2) 

a small governmental jurisdiction that is 

a government of a city, county, town, 

school district, or special district with a 

population of less than 50,000; and (3) 

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

Based on the industry profiles that 

EPA prepared as part of the EAs for the 

2006 rulemaking, EPA determined that 

the 2006 rulemaking was not expected 

to impact any small not-for-profit 

organizations or small governmental 

jurisdictions. Since this is an 

amendment to that rulemaking, EPA has 

determined that this determination also 

applies to this final rule. As such, 

‘‘small entity’’ for purposes of the 

addendum EA prepared for this final 

rule, is synonymous with ‘‘small 

business.’’ Using the size standards 

established by the Small Business 

Administration, ‘‘small businesses’’ 

potentially impacted by this final rule 

are expected to include the same types 

of businesses described in the EAs 

prepared for the 2006 rulemaking. As 

indicated in those EAs, the small 

business size standard varies based on 

the primary NAICS code associated with 

the business. Specifically, the small 

businesses size standards vary from 100 

or fewer workers (e.g., NAICS code 

422910, Farm Suppliers Wholesalers) to 

1,000 or fewer workers (e.g., NAICS 

code 325188, Inorganic Chemical 

Manufacturing), with the majority of 

small businesses having 500 or fewer 

workers (e.g., NAICS code 325320, 

Pesticide/Agricultural Chemical 

Manufacturing). 

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. 

D. Unfunded Mandates Reform Act 

(UMRA) 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), 2 U.S.C. 

1531-1538, requires Federal agencies, 

unless otherwise prohibited by law, to 

assess the effects of their regulatory 

actions on State, local, and tribal 

governments and the private sector. 

Federal agencies must also develop a 

plan to provide notice to small 

governments that might be significantly 

or uniquely affected by any regulatory 

requirements. The plan must enable 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates and must 

inform, educate, and advise small 

governments on compliance with the 

regulatory requirements. 

This rule 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. 

As explained in Unit VI., EPA estimates 
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Federal Register / Vol. 73, No. 210 / Wednesday, October 29, 2008 / Rules and Regulations 64223 

that the amendments being finalized 

will reduce the annual estimated costs 

of the pesticide container and 

containment regulations by 

approximately $0.23 to $0.32 million 

due to a reduction in the number of 

labels that would need to be revised. 

Thus, this rule is not subject to the 

requirements of sections 202 and 205 of 

UMRA. 

This rule is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. 

Because State, local, and tribal 

governments are rarely pesticide 

applicants or registrants, this rule is not 

expected to affect small governments. 

E. Executive Order 13132 

Pursuant to Executive Order 13132, 

entitled Federalism (64 FR 43255, 

August 10, 1999), EPA has determined 

that this final rule does not have 

‘‘federalism implications,’’ 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 levels of government, as 

specified in the Order. Thus, Executive 

Order 13132 does not apply to this rule. 

F. Executive Order 13175 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). EPA has determined that this 

action does not have tribal implications 

because it will not have substantial 

direct effects on tribal governments, on 

the relationship between the Federal 

government and the Indian tribes, or on 

the distribution of power and 

responsibilities between the Federal 

government and Indian tribes, as 

specified in the Order. EPA is not aware 

of any tribal governments which are 

pesticide registrants, refillers or dealers 

storing large quantities of pesticides. 

Thus, Executive Order 13175 does not 

apply to this action. 

G. Executive Order 13045 

Executive Order 13045, entitled 

Protection of Children from 

Environmental Health Risks and Safety 

Risks (62 FR 19885, April 23, 1997), 

does not apply to this action because it 

is not designated as a ‘‘significant’’ 

regulatory action as defined by 

Executive Order 12866 (see Unit 

VIII.A.), nor does it establish an 

environmental standard that is intended 

to have a negative or disproportionate 

effect on children. EPA interprets 

Executive Order 13045 as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5-501 of 

the Executive Order has the potential to 

influence the regulations. This action 

does not establish an environmental 

standard intended to mitigate health or 

safety risks. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355, May 22, 

2001) because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), 15 U.S.C. 272 

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, 

business practices, etc.) that are 

developed or adopted by voluntary 

consensus standards bodies. NTTAA 

directs EPA to provide Congress, 

through OMB, explanations when the 

Agency decides not to use available and 

applicable voluntary consensus 

standards. This action does not impose 

any technical standards that would 

require Agency consideration of 

voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this final 

rule will not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations because it does 

not affect the level of protection 

provided to human health or the 

environment. This final rule amends the 

existing container and containment 

regulations to extend the compliance 

date for the label changes, provide 

certain exemptions to label language 

requirements, and make changes to 

improve the clarity of the regulations. 

None of these changes affect the level of 

protection provided to human health or 

the environment by the container and 

containment regulations. 

IX. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., generally provides 

that before a rule may take effect, the 

Agency promulgating the rule must 

submit a rule report to each House of 

the Congress and the Comptroller 

General of the United States. EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. This rule is not a ‘‘major rule’’ 

as defined by 5 U.S.C. 804(2). 
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156 

64224 Federal Register / Vol. 73, No. 210 / Wednesday, October 29, 2008 / Rules and Regulations 

List of Subjects in 40 CFR Parts 152 and 

Environmental protection, Labeling, 

Pesticides and pests. 

List of Subjects in 40 CFR Part 165 

Environmental protection, Packaging 

and containers, Containment structures, 

Pesticides and pests. 

Dated: October 17, 2008. 

Stephen L. Johnson, 

Administrator. 

■ Therefore, 40 CFR chapter I is 

amended as follows: 

PART 152—[AMENDED] 

■ 1. The authority citation for part 152 

continues to read as follows: 

Authority: 7 U.S.C. 136-136y; Subpart U is 

also issued under 31 U.S.C. 9701. 

■ 2. Amend § 152.3 by adding 

alphabetically a definition for ‘‘Released 

for Shipment’’ to read as follows: 

§ 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. 

* * * * * 

PART 156—[AMENDED] 

■ 3. The authority citation for part 156 

continues to read as follows: 

Authority: 7 U.S.C. 136 through 136y. 

■ 4. Add § 156.3 to read as follows: 

§ 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 cargocarrying vehicle such as an automobile, 

van, tractor, truck, semitrailer, tank car 

or rail car used for the transportation of 

cargo by any mode. 

■ 5. Amend § 156.140 by revising the 

introductory text of paragraph (a), by 

revising the introductory text of 

paragraph (b), and by adding paragraphs 

(a)(5), (c), (d) and (e) to read as follows: 

§ 156.140 Identification of container types. 

* * * * * 

(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.’’ 

* * * * * 

(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.’’ 

* * * * * 

(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. 

■ 6. Amend § 156.144 by revising 

paragraph (a), and by adding paragraphs 

(e), (f), and (g) to read as follows: 

§ 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. 

* * * * * 

(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) Exemption 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. 

■ 7. Revise § 156.159 to read as follows: 

§ 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. 

PART 165—[AMENDED] 

■ 8. The authority citation for part 165 

will continue to read as follows: 

Authority: 7 U.S.C. 136 through 136y. 

■ 9. Amend § 165.3 as follows: 
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Federal Register / Vol. 73, No. 210 / Wednesday, October 29, 2008 / Rules and Regulations 64225 

■ a. By adding an introductory 

paragraph. 

■ b. By revising the definitions for 

‘‘Agricultural pesticide’’, ‘‘Dry 

pesticide’’, ‘‘Nonrefillable container’’. 

■ c. By revising the introductory text of 

the definition of ‘‘Pesticide compatible’’ 

which immediately follows the 

definition for the term ‘‘Owner’’. 

■ d. By revising the definition of the 

term ‘‘Pesticide compatible’’ which 

immediately precedes the definition of 

the term ‘‘Pesticide dispensing area.’’ 

■ e. By revising the definition of the 

terms ‘‘Rinsate’’, and ‘‘Washwater.’’ 

■ f. By adding alphabetically new 

definitions for ‘‘Capacity,’’ ‘‘Dilutable,’’ 

and ‘‘Suspension concentrate’’. 

■ g. By removing the definitions for 

‘‘Flowable concentrate,’’ ‘‘Pressure 

rinse,’’ and ‘‘Triple rinse.’’ 

§ 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. 

* * * * * 

Agricultural pesticide means any 

pesticide product labeled for use in or 

on a farm, forest, nursery, or 

greenhouse. 

* * * * * 

Capacity means, as applied to 

containers, the rated capacity of the 

container. 

* * * * * 

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, watersoluble powders, granules, and dry 

baits. 

* * * * * 

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. 

* * * * * 

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: 

* * * * * 

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. 

* * * * * 

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. 

* * * * * 

Suspension concentrate means a 

stable suspension of solid particulate 

active ingredients in a liquid intended 

for dilution with water before use. 

* * * * * 

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. 

■ 10. Amend § 165.20 by revising 

paragraph (c) to read as follows: 

§ 165.20 General provisions. 

* * * * * 

(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. 

■ 11. Amend § 165.23 by revising the 

heading of paragraph (d) to read as 

follows: 

§ 165.23 Scope of pesticide products 

included. 

* * * * * 

(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? *** 

* * * * * 

■ 12. Amend § 165.25 by revising 

paragraphs (a), (b), and (f)(2) to read as 

follows: 

§ 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. 

* * * * * 

(f) * * * 

(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. 

* * * * * 

■ 13. Amend § 165.27 by revising the 

introductory text of paragraph (b) and 

the introductory text of paragraph (b)(5), 

and by adding paragraphs (b)(4)(iii) and 

(b)(5)(iii) to read as follows: 

§ 165.27 Reporting and recordkeeping. 

* * * * * 

(b) What recordkeeping do I have to 

do for my nonrefillable containers? For 

each pesticide product that is subject to 

§§ 165.25 through 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 
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64226 Federal Register / Vol. 73, No. 210 / Wednesday, October 29, 2008 / Rules and Regulations 

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: 

* * * * * 

(4) * * * 

(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: 

* * * * * 

(iii) A copy of EPA’s approval of a 

request for a waiver from the residue 

removal standard requirement. 

■ 14. Amend § 165.40 by adding 

paragraph (b)(3), and by revising 

paragraph (c) to read as follows: 

§ 165.40 General provisions. 

* * * * * 

(b) * * * 

(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. 

■ 15. Amend § 165.43 by revising the 

introductory text of paragraphs (c) and 

(d) and the heading of paragraph (e) and 

(e)(1), and by revising paragraphs (f) and 

(g) to read as follows: 

§ 165.43 Scope of pesticide products 

included. 

* * * * * 

(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: 

* * * * * 

(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: 

* * * * * 

(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: 

* * * * * 

(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, plantincorporated 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 

paragraph (d) of this 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. 

* * * * * 

■ 16. Amend § 165.45 by revising 

paragraphs (a)(1), (b), (e), the 

introductory text of paragraph (f) and 

paragraph (f)(2) to read as follows: 

§ 165.45 Refillable container standards. 

(a) * * * 

(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. 

* * * * * 

(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. 

* * * * * 

(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: 

* * * * * 

(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 
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Federal Register / Vol. 73, No. 210 / Wednesday, October 29, 2008 / Rules and Regulations 64227 

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. 

* * * * * 

■ 17. Amend § 165.60 by revising 

paragraph (c) to read as follows: 

§ 165.60 General provisions. 

* * * * * 

(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. 

■ 18. Amend § 165.63 by revising 

paragraph (d)(1) to read as follows: 

§ 165.63 Scope of pesticide products 

included. 

* * * * * 

(d) * * * (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 registrants 

who distribute or sell directly in 

refillable containers 

Requirement for refillers who 

are not registrants 

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

Container inspection: criteria regarding a serial number or other identifying 

code § 165.65(e)(2) § 165.70(f)(2) 

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

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

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

* * * * * 

■ 19. Amend § 165.65 by revising 

paragraph (i)(2)(iii) to read as follows: 

§ 165.65 Registrants who distribute or sell 

pesticide products in refillable containers. 

* * * * * 

(i) * * * 

(2) * * * 

(iii) The serial number or other 

identifying code of the refillable 

container. 

■ 20. Amend § 165.67 by revising 

paragraphs (b)(2)(ii) and (d) to read as 

follows: 

§ 165.67 Registrants who distribute or sell 

pesticide products to refillers for 

repackaging. 

* * * * * 

(b) * * * 

(2) * * * 

(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. 

* * * * * 

(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. 


* * * * * 


■ 21. Amend § 165.70 by revising 

paragraphs (b)(2)(ii), (e)(5)(i), and 

(j)(2)(iii) to read as follows: 

§ 165.70 Refillers who are not registrants. 

* * * * * 

(b) * * * 

(2) * * * 

(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. 

* * * * * 

(e) * * * 

(5) * * * 

(i) The written contract referred to in 

paragraph (b)(3) of this section from the 

pesticide product’s registrant. 

* * * * * 

(j) * * * 

(2) * * * 

(iii) The serial number or other 

identifying code of the refillable 

container. 

■ 22. Amend § 165.80 by revising 

paragraph (b)(1) to read as follows: 

§ 165.80 General provisions. 

* * * * * 

(b) *** 

(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). 

* * * * * 

■ 23. Amend § 165.85 by revising 

paragraph (a)(3),the introductory text of 

paragraph (c), paragraphs (c)(1), (c)(2), 

(d)and (f) to read as follows: 

§ 165.85 Design and capacity 

requirements for new structures. 

(a) * * * 

(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. 

* * * * * 

(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 
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64228 Federal Register / Vol. 73, No. 210 / Wednesday, October 29, 2008 / Rules and Regulations 

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. 

* * * * * 

(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. 

* * * * * 

(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. 

■ 24. Amend § 165.87 by revising 

paragraph (a)(3),the introductory text of 

paragraph (c), paragraphs (c)(1), (d)and 

(f) to read as follows: 

§ 165.87 Design and capacity 

requirements for existing structures. 

(a) * * * 

(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. 

* * * * * 

(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. 

* * * * * 

(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. 

* * * * * 

(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. 

■ 25. Amend § 165.90 by revising 

paragraphs (a)(2), (a)(5), (b)(1), (b)(2), 

and (b)(3) to read as follows: 

§ 165.90 Operational, inspection and 

maintenance requirements for all new and 

existing containment structures. 

(a) * * * 

(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 groundwater) and maximum 

practicable recovery of the pesticide 

spilled or leaked. Cleanup must occur 

no later than the end of the 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. 

* * * * * 

(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) * * * 

(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. 

■ 26. Amend § 165.97 by revising 

paragraph (b)(1) to read as follows: 

§ 165.97 States with existing containment 

programs. 

* * * * * 

(b) * * * 

(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. 

* * * * * 

[FR Doc. E8–25665 Filed 10–28–08; 8:45 am] 

BILLING CODE 6560–50–S