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[Federal Register: October 8, 2010 (Volume 75, Number 195)]
[Rules and Regulations]               
[Page 62323-62326]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08oc10-4]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 156

[EPA-HQ-OPP-2005-0327; FRL-8848-8]
RIN 2070-AJ74

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is amending the pesticide container and containment 
regulations to provide an 8-month extension of the labeling compliance 
date from December 16, 2010 to August 16, 2011. This change is being 
made to provide additional time for pesticide registrants to revise 
labels to bring them into compliance with the regulations and for EPA 
and states to review and approve the revised labels.

DATES: This final rule is effective December 7, 2010.

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,

[[Page 62324]]

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: Nancy Fitz, Field and External Affairs 
Division (FEAD) (7506P), Office of Pesticide Programs, 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. 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, antimicrobials or other pesticides from technical chemicals 
or concentrates produced by pesticide manufacturing establishments.
    This listing is not intended to be exhaustive, but rather provides 
a guide for readers regarding entities likely to be affected by this 
action. Other types of entities not listed in this unit could also be 
affected. The North American Industrial Classification System (NAICS) 
codes have been provided to assist you and others in determining 
whether this action might apply to certain entities. If you have any 
questions regarding the applicability of this action to a particular 
entity, consult the person listed under FOR FURTHER INFORMATION 
CONTACT.

II. Background

    On August 16, 2006, EPA promulgated a final rule titled ``Pesticide 
Management and Disposal; Standards for Pesticide Containers and 
Containment'' (71 FR 47330) (container and containment rule), 
establishing 40 CFR part 165 and amending 40 CFR part 156. The 
container and containment rule established regulations for the safe 
storage and disposal of pesticides to reduce the likelihood of 
unreasonable adverse effects on human health and the environment. The 
container and containment regulations include requirements for 
pesticide container design; procedures, standards, and label language 
to facilitate removal of pesticides from containers prior to their 
being reused, recycled, or discarded; and requirements for containment 
of stationary pesticide containers and procedures for container 
refilling operations. The 2006 rule required that all pesticide 
products distributed or sold by a registrant as of August 16, 2009, 
bear labels that comply with the rule's label language requirements (40 
CFR 156.159). On October 29, 2008, EPA promulgated a final rule that 
made various amendments to the container and containment rule, 
including extending the original labeling compliance date from August 
16, 2009 to August 16, 2010.
    On June 15, 2010 (75 FR 33705), EPA promulgated a final rule that 
extended the labeling compliance date from August 16, 2010 to December 
16, 2010 to avoid the temporary removal of a significant number of 
pesticides from the market while a 1-year extension proposal moves 
through the rulemaking process and while pesticide registrants work to 
update pesticide labels to comply with the labeling requirements in the 
container and containment regulations and EPA and states work to review 
and approve those revised labels.
    Also on June 15, 2010 (75 FR 33744), EPA published a proposed rule 
to provide a 1-year extension of the labeling compliance date from 
August 16, 2010 to August 16, 2011 to address concerns raised by 
stakeholders and as a result of further Agency consideration. The 
public comment period for this proposed rule closed on July 15, 2010. 
EPA received five comments from trade associations and a pesticide 
registrant. Four of the comments supported the proposed 1-year 
extension while one comment, submitted by a trade association, 
supported a longer extension of 18 months to 2 years.

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

IV. What action is the Agency taking?

    EPA is amending the pesticide container and containment regulations 
to provide an 8-month extension of the labeling compliance date (40 CFR 
156.159) from December 16, 2010 to August 16, 2011. This change is 
being made to provide additional time for pesticide registrants to 
revise labels to bring them into compliance with the regulations and 
for EPA and states to review and approve the revised labels.
    As discussed in the June 15, 2010 proposed rule, EPA concluded that 
there was not sufficient time to change all labels by August 2010 
because of several factors, including:
    1. More antimicrobial products labels than expected require 
alterative rinsing instructions, so the label amendments cannot be made 
by notification and require more in depth reviews by EPA;
    2. EPA's position on the appropriate container-related statements 
(particularly rinsing and treatment of rinsate) for certain pesticides 
has changed over time as a result of experience with product-by-product 
label reviews; and
    3. The length of time for states to review and approve labels is 
understood to be increasing due to the furlough days for staff in some 
states and staffing reductions due to budget shortfalls in others.
    Since registrants can decide which registered products they wish to 
market at any given time, the Agency does not have a precise count of 
the total number of label changes that ultimately will be submitted to 
EPA for review. However, based upon a review of Agency actions through 
May 2010 and discussions with registrants, EPA estimates that the 
majority of label changes have already been submitted and approved. On 
the other hand, EPA estimates that there were at least 1,000, and 
potentially several thousand, remaining pesticide product labels that 
EPA still needed to review. Even taking into account the applications 
that have already been submitted, there is not enough time for the 
necessary label changes to be approved by EPA, then submitted to and 
approved by the states, printed, and

[[Page 62325]]

applied to all products that will be released for shipment after August 
16, 2010.
    Because EPA contributed to the large number of outstanding label 
changes, EPA is extending the compliance date in 40 CFR 156.159 by a 
total of 1 year, so that pesticide products released for shipment by a 
registrant after August 16, 2011 would have to bear a label that 
complies with the container requirements. EPA continues to believe that 
one additional year will provide enough time for EPA and the states to 
review the label changes and for registrants to incorporate the changes 
into their labels, provided that the outstanding applications were 
submitted in a timely fashion. Beginning in April 2010 and repeated in 
the June 15, 2010 Federal Register notices, EPA encouraged pesticide 
registrants to submit applications for label changes for their products 
prior to the previous deadline of August 16, 2010. EPA said that the 
Agency would give priority to applications submitted prior to August 
16, 2010 and that applications submitted after August 16, 2010 would be 
processed on a non-priority basis only after all applications submitted 
prior to that date have been processed.
    EPA disagrees with the commenter who argued for an 18-month to 2-
year extension. This commenter said a longer extension is necessary to 
avoid an interruption in the supply of antimicrobial products because 
of ``the need for these products for public health and the industrial 
economy, the need for particularized language for antimicrobial 
pesticides necessitating amendment instead of notification, the 
potential for multiple review cycles, the significant workload facing 
the EPA, and state pesticide registration agencies.''
    Based on an evaluation of the resources and time it would take for 
EPA to undertake a concerted effort to complete the review of these 
remaining labels and discussions with State regulatory agencies who 
estimated a range of 3 to 6 months for them to review and approve the 
label revisions, EPA continues to believe that label changes that were 
submitted by August 16, 2010 will be reviewed by EPA and states in 
sufficient time to allow the registrants to make the necessary changes 
in their labels in time to comply with the revised compliance date of 
August 16, 2011. The number of pesticide product labels submitted by 
the August 16, 2010 deadline is comparable to the average number of 
label changes that have been reviewed, approved and changed over each 
of the past few years. Therefore, EPA believes that EPA, states and 
registrants can readily accomplish the steps necessary in order for the 
affected products to be in compliance with the pesticide container and 
containment regulations by August 16, 2011.
    EPA believes that a longer extension is unjustified because 
registrants have had a reasonable amount of time to prepare and submit 
their label modification requests. The rule was published over 4 years 
ago and EPA has already extended the deadline by 1 year and 4 months. 
The prior extension was based on EPA's concern that without an 
extension, the prior compliance date of August 16, 2010 could 
temporarily remove from the market a significant number of pesticides 
important to the protection of public health and the nation's food 
supply, without comparable benefits to public health or the 
environment. Extending the compliance date to August 2011 was expected 
to allow time for the labels of the vast majority of these products to 
work through the review and revision process so there should not be a 
significant number of non-compliant products by August 16, 2011. While 
the number of non-compliant products is still significant, the number 
of applications submitted and processed to date gives EPA confidence 
that users will have adequate access to compliant products by August 
16, 2011.
    EPA continues to believe that the pesticide container labeling 
requirements serve important roles in the management of pesticide 
risks, as explained in the August 16, 2006, pesticide container and 
containment final rule (71 FR 47330). Absent compelling competing 
public interests, EPA believes that it is essential for the labels to 
clearly identify containers as nonrefillable containers or refillable 
containers by August 16, 2011 when compliance is required with the 
refillable container and repackaging requirements. Having the label 
identify a container as a refillable container is essential to the 
successful implementation of the refillable container and repackaging 
regulations.

V. Statutory and Executive Order Reviews

    This action only amends an existing regulation to extend the 
current compliance date, it does not otherwise amend or impose any 
other requirements. As such, this action is not subject to review by 
the Office of Management and Budget (OMB) as a ``significant regulatory 
action'' under Executive Order 12866, entitled Regulatory Planning and 
Review (58 FR 51735, October 4, 1993). Nor does it impose or change any 
information collection burden that requires additional review by OMB 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.). The information collection activities contained in the 
regulations are already approved under OMB control number 2070-0133 
(EPA ICR No. 1632). An agency may not conduct or sponsor, and a person 
is not required to respond to a collection of information unless it 
displays a currently valid OMB control number. The OMB control numbers 
for EPA's regulations in 40 CFR are listed in 40 CFR part 9.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) 
(5 U.S.C. 601 et seq.), the Agency hereby certifies that this final 
rule does not have a significant adverse economic impact on a 
substantial number of small entities. The extension of the compliance 
date is not expected to have any adverse economic impacts on affected 
entities, regardless of their size. The factual basis for the Agency's 
determination is presented in the 2006 addendum to the economic 
analysis, a copy of which is available in the docket for this 
rulemaking. In general, EPA strives to minimize potential adverse 
impacts on small entities when developing regulations to achieve the 
environmental and human health protection goals of the statute and the 
Agency. EPA solicits comments specifically about potential small 
business impacts.
    State, local, and tribal governments are rarely pesticide 
applicants or registrants, so this final rule is not expected to affect 
these governments. Accordingly, pursuant to Title II of the Unfunded 
Mandates Reform Act (UMRA) (2 U.S.C. 1531-1538), EPA has determined 
that this action is not subject to the requirements in sections 202 and 
205 because it does not contain a Federal mandate that may result in 
expenditures of $100 million or more for State, local, and tribal 
governments, in the aggregate, or for the private sector in any one 
year. In addition, this action does not significantly or uniquely 
affect small governments or impose a significant intergovernmental 
mandate, as described in sections 203 and 204 of UMRA. For the same 
reasons, EPA has determined that this final rule does not have 
``federalism implications'' as specified in Executive Order 13132, 
entitled Federalism (64 FR 43255, August 10, 1999), because it would 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and

[[Page 62326]]

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

VI. FIFRA Mandated Reviews

    In accordance with FIFRA section 25(a) and (d), 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, the Secretary of Agriculture, 
and the FIFRA Scientific Advisory Panel (SAP). The SAP and the 
Secretary of Agriculture waived review of this final rule.

VII. 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).

List of Subjects in 40 CFR Part 156

    Environmental protection, Labeling, Pesticides and pests.

    Dated: September 29, 2010.
Lisa P. Jackson,
Administrator.

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Therefore, 40 CFR chapter I is amended as follows:

PART 156--[AMENDED]

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

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

0
2. Revise Sec.  156.159 to read as follows:

Sec.  156.159  Compliance date.

    Any pesticide product released for shipment by a registrant after 
August 16, 2011 must bear a label that complies with Sec. Sec.  
156.10(d)(7), 156.10(f), 156.10(i)(2)(ix), 156.140, 156.144, 156.146 
and 156.156.

[FR Doc. 2010-25425 Filed 10-7-10; 8:45 am]
BILLING CODE 6560-50-P
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