1 **UNITED STA TES ENVIRONMENTA**  **L PROTECTION A GENCY** 

WA SHINGTON, D.C. 20460 OFFICE OF PREVENTION, PESTICIDES AND TOXIC SUBSTANCES

**CERTIFIED MAIL Return Receipt Requested**  Jacqueline Romano Regulatory

Affairs Manager The Fountainhead Group, Inc. 23 Garde n Street New York Mills, NY 13417 Subject: Suspension of Registration of Pesticide Product(s) Containing R esmethrin for

Failure ( EPA Reg. Number 53853

- 1 ) to comply with the R esmethrin Section 4 Phase 5 Reregistration Eligibility Document Data Call

- InNoti ce dated J une 14 , 20 06

. Dear Sir/Madam: This letter gives you notice that the pesticide product registration(s) listed in Attachment I will be suspended 30 day s from y our receipt of this letter unless y ou take steps within that time to prevent this Not ice from automatically becoming a final and effective order of suspension. The Agency 's authorit y for suspending the registrations of y our products is section 3(c)(2)(B) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Upon becoming a final and effective order of suspension, any violation of the order will be an unlawful act under section 12(a)(2)(J) of FIFRA. You are receiving this Notice of Intent to Suspend because you have failed to comply with the terms of the Phase 5 Reregistrati on Eligibility Decision Document Data Call

- In Notice imposed pursuant to section 4(g)(2)(B) and section 3(c)(2)(B) of FIFRA. The specific basis for issuance of this Notice is stated in the Explanatory Appendix (Attachment III) to this Notice. The affecte d product(s) and the requirement(s) which y ou failed to satisfy are listed and described in the following three attachments: Attachment I Suspension Report

- Product L ist Attachment II Suspension Report

- Requirement L ist Attachment III Suspension Report

- Explanatory Appendix The suspension of the registration of each product listed in Attachment Iwill become final unless at least one of the following actions is completed.
1. You may

avoid suspension under this Notice if you or another person adverse ly affected by this Notice properl y request a hearing within 30 days of your receipt of this Notice. If2

yo u request a hearing, it will be conducted in accordance with the requirements of section 6(d) of FIFRA and the Agency 's Procedural Regulations in 40 CFR Part 164. Section 3(c)(2)(B), however, provides that the only allowable issues which may be addressed at the hearing are whether you have failed to take the actions which are the bases of this Notice and whether the Agency 's decision regarding the disposition of existing stocks is consistent with FIFRA. Therefore, no substantive allegation or legal argument concerning other issues, including but not limited to the Agency 's original decision to require the submission of data or other informati on, the need for or utility of any of the required data or other information or deadlines imposed, any allegations of errors or unfairness in any proceedings before an arbitrator, and the risks and benefits associated with continued registration of the affected product, may be considered in the proceeding. The Administrative Law Judge shall by order dismiss any

objections which have no bearing on the allowable issues which may be considered in the proceeding. Section 3(c)(2)(B)(iv) of FIFRA provides that an y hearing must be held and a determination issued within 75 day s after receipt of a hearing request. This 75

- day p eriod may

not be extended unless all parties in the proceeding stipulate to such an extension. I f a hearing is properl y requested, the Agency will issue a final order at the conclusion of the hearing governing the suspension of y our product(s). A request for a hearing pursuant to this Notice must 1) include specific objections which pertain to the allowable issues which may be heard at the hearing, 2) identify the registrations for which a hearing is requested, and 3) set forth all necessary supporting facts pertaining to an y of the objections which yo u have identified in your request for a hearing. If a hearing is requested b y any person other than the registrant, that person must also state specifically wh y he asserts that he would be adversel y affected by the suspension action described in this Notice. Three copies of the request must be submitted to: Hearing Clerk, 1900

U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460
An a dditional copy

should be sent to the signatory listed below. The request must be received b y the Hearing Clerk by the 30th day from y our receipt of this Noti ce in order to be legally

effective. The 30

- day

time limit is established by FIFRA and cannot be extended for an y reason. Failure to meet the 30

- day time limit will result in automatic suspension of y our registration(s) by operation of law and, under such circumstances, the suspension of the registration for y our affected product(s) will be final and effective at the close of business 30 day s after your receipt of this Notice and will not be subject to further administrative review. The Agency's R

ules of Practice at 40 CFR 164.7 forbid any one who may take part in deciding this case, at an y stage of the proceeding, from discussing the merits of the proceeding ex parte with any part y or with an y person who has been connected with the3

preparation o r presentation of the proceeding as an advocate or in an y investigative or expert capacit y, or with any of their representatives. Accordingl y, the following EPA offices, and the staffs thereof, are designated as judicial staff to perform the judicial f unction of EPA in an y administrative hearings on this Notice of Intent to Suspend: the Office of the Administrative Law Judges, the Office of the Environmental Appeals Board, the Administrator, the Deput y Administrator, and the members of the staff in th e immediate offices of the Administrator and Deputy Administrator. None of the persons designated as the judicial staff shall have an y ex parte communication with trial staff or any other interested person not employ ed b y EPA on the merits of an y of th e issues involved in this proceeding, without fully complying with the applicable regulations.
2. You may

also avoid suspension if, within 30 day s of y our receipt of this Notice, the Agency determines that y ou have taken appropriate steps to comply with the section 3(c)(2)(B) Data Call

- In Notice. In order to avoid suspension under this option, y ou must satisfactoril y compl y with Attachment II, Requirement L ist, for each product by submitting all required supporting data/information described in Atta chment II and in the Explanatory

Appendix (Attachment III) to the following address (preferably by certified mail): Office of Pesticide Programs Pesticide Re

- evaluation Division (PRD) (7508P) U.S. Environmental Protection Agency 1200 Pennsy lvania Avenue, NW Washington, DC 20460
For you to avoid automatic suspension under this Notice, the Agency must also determine within the applicable 30

- day period that y ou have satisfied the requirements that are the bases of this Notice and so notify y ou i n writing. You should submit the necessary data/information as quickly as possible for there to be an y chance the Agency will be able to make the necessary determination in time to avoid suspension of yo ur product(s). The suspension of the registrati on(s) of y our company 's product(s) pursuant to this Notice will be rescinded when the Agency determines y ou have complied full y with the requirements which were the bases of this Notice. Such compliance may only be achieved b y submission of the data/in formation described in the attachments to the signatory below. Your product will remain suspended, however, until the Agency determines y ou are in compliance with the requirements which are the bases of this Notice and so informs y ou in writing. Aft er the suspension becomes final and effective, the registrant subject to this Notice, including all supplemental registrants of product(s) listed in Attachment I, may not legally distribute, sell, use, offer for sale, hold for sale, ship, deliver for sh ipment, or receive and (having so received) deliver or offer to deliver, to an y person, the product(s) listed in Attachment I

.4

Persons other than the registrant subject to this Notice, as defined in the preceding sentence, may

continue to distribute, sell, use, offer for sale, hold for sale, ship, deliver for shipment, or receive and (having so received) deliver or offer to deliver, to any person, the product(s) listed in Attachment I. Nothing in this Notice authorizes any person to distribute, sel l, use, offer for sale, hold for sale, ship, deliver for shipment, or receive and (having so received) deliver or offer to deliver, to an y person, the product(s) listed in Attachment I in an y manner which would have been unlawful prior to the suspension

. If the registration(s) for your product(s) listed in Attachment I are currentl y suspended as a result of failure to comply with another section 3(c)(2)(B) Data Call

- In Notice or Section 4 Data Requirements Notice, this Notice, when it becomes a final and effective order of suspension, will be in addition to any existing suspension, i.e., all requirements which are the bases of the suspension must be satisfied before the registration will be reinstated. You are reminded that it is y our responsibility as the basic registrant to notify all supplementary

registered distributors of y our basic registered product that this suspension action also applies to their supplementary registered products and that y ou may be held liable for violations committed by y our distributors.
If you have an y questions about the requirements and procedures set forth in this suspension N otice or in the subject section 3(c)(2)(B) Data Call

- In Notice, please contact Patricia Moe at (703) 305

- 0744. Sincerel y yours,

Richard P. Keigwin, Jr., Director Pesticide Re

- evaluation Division

Attachments: Attachment I

- Product List Attachment II

- Requirement L ist Attachment III

- Explanatory Appendix