[Federal Register Volume 60, Number 40 (Wednesday, March 1, 1995)]
[Notices]
[Pages 11090-11093]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5020]



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ENVIRONMENTAL PROTECTION AGENCY
[OPP-30000/48F; FRL-4939-7]


Granular Carbofuran; Final Decision To Deny Reinstatement of the 
Corn and Sorghum Uses and To Grant Conditional Extension of Phase-Out 
Period for Use on Rice; Summary of Public Comment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: This Notice announces EPA's decision to deny reinstatement of 
the use of the granular insecticide carbofuran on corn and sorghum, and 
to grant a limited extension of use on rice. This Notice also 
summarizes the public comments received in response to the Agency's 
proposal of these actions (59 FR 17530, April 13, 1994).

FOR FURTHER INFORMATION CONTACT: By mail: Margaret Rice, Special Review 
and Reregistration Division (7508W), Office of Pesticide Programs, U.S. 
Environmental Protection Agency, 401 M St., SW., Washington, DC 20460. 
Office location and telephone number: Special Review Branch, Rm. 
WF32N4, Crystal Station #1, 2800 Crystal Drive, Arlington, Virginia, 
(703) 308-8039.

SUPPLEMENTARY INFORMATION:

I. Background

    In the Federal Register of April 13, 1994 (59 FR 17530), EPA 
proposed to deny reinstatement of the use of granular carbofuran on 
corn and sorghum, to extend the use on rice with restrictions, for a 
limited time period, and offered incentives for the registration of 
reduced risk alternatives to control rice water weevil. The Agency's 
proposal was in response to FMC Corporation and grower groups' requests 
that the phase-out scheduled for these three uses be extended beyond 
the limits established in the negotiated settlement agreement that 
concluded the Special Review of granular carbofuran in 1991.
    The Agency's April 1994 notice outlined the arguments put forth by 
FMC Corp in support of their request, as well as the rationale for 
EPA's proposed decision, and allowed 90 days for public comment. 
Readers are referred to the proposed decision (59 FR 17530, April 13, 
1994) for a detailed summary of the regulatory history and legal 
background of the granular carbofuran Special Review and negotiated 
settlement agreement.

II. EPA's Findings

    The following summarizes the Agency's findings regarding the risks 
and benefits resulting from the use of granular carbofuran. With regard 
to risks, the Agency finds:
    1. Carbofuran is highly acutely toxic to birds.
    2. One granule can kill a small bird.
    3. Proper agricultural use of carbofuran results in granules 
available to birds.
    4. Birds are directly exposed to carbofuran by picking up and 
ingesting granules. Predatory and scavenging birds are secondarily 
exposed when they eat the organisms that were directly exposed.
    5. Many birds have been killed by proper use of granular 
carbofuran. This has been documented in 8 field studies and over 90 
separate poisoning incidents, which demonstrate widespread and repeated 
mortality to many species, including migratory, threatened and 
endangered species. Incidents of both primary and secondary poisonings 
have been observed and documented in many different geographic areas, 
associated with many different use sites, times of year, and under 
varying environmental conditions.
    6. The Agency continues to receive reports of bird kills from 
granular carbofuran. Twenty three additional wildlife kill incidents 
have been reported to EPA since the conclusion of the Special Review in 
1991. Three were attributed to granular formulations; the other 20 
incident reports did not specify which formulation was involved. 
Species killed include a bald eagle, Canada geese, red-tailed hawks, 
and numerous other species.
    7. Based on available data, carbofuran presents a greater risk to 
birds than alternative chemical control methods.
    8. It has not been demonstrated that there are any conditions under 
which [[Page 11091]] granular carbofuran can be used without presenting 
an extremely high risk to birds.
    With regard to the benefits, the Agency finds:
    1. Efficacious alternatives to granular carbofuran exist for use on 
corn and sorghum.
    2. The absence of granular carbofuran will result in no short- or 
long-term increases in field corn production costs, nor will it cause 
significant output or yield losses, based on the current price and 
availability of pesticidal alternatives.
    3. The absence of granular carbofuran for use on sorghum will 
result in some increased production costs due to the higher cost of 
alternatives and specialized application equipment, but will not cause 
significant reduction in yield.
    4. No chemical alternatives are currently registered and no 
applications are pending for use on rice. Only limited data are 
available to characterize the effectiveness of non-chemical controls.
    5. In the absence of granular carbofuran, significant reductions in 
rice yields may occur.

III. Summary of Public Comment

    The complete text of all comments received in response to EPA's 
proposed decision (59 FR 17530), as well as a memorandum detailing 
EPA's responses to these comments can be found in the Office of 
Pesticide Program's public docket (OPP-30000/48E). See Unit VII, below, 
for more information and the location and hours of the OPP public 
docket.
    EPA received few comments and no data in support of continued use 
of granular carbofuran on corn.
    Several rice growers and rice growers' associations supported the 
Agency's proposed decision to extend the rice use. Several research 
institutions advised EPA of ongoing studies related to control of rice 
pests.
    The Agency reviewed approximately 40 letters of a testimonial 
nature from sorghum growers, and numerous letters from Senators and 
Congressmen representing sorghum producing areas, supporting the 
continued use of granular carbofuran on sorghum. The National Grain 
Sorghum Producers provided some additional efficacy and yield data for 
carbofuran and its alternatives.
    The U.S. Fish and Wildlife Service (FWS) and several environmental 
organizations commented that, in their opinion, no extensions of 
granular use were justified and that the Agency should also take action 
to eliminate use of flowable carbofuran. The Sierra Club Legal Defense 
Fund, representing a group of environmental organizations, notified the 
Agency of its intention to sue EPA for violations of the Endangered 
Species Act and other statutes.
    In response to EPA's call for safer alternatives in the April 
notice, one company, Solvay Duphar B.V., has indicated an interest in 
pursuing a registration for diflubenzuron on rice. Other companies have 
made preliminary inquiries.

IV. EPA's Final Decision and Rationale

A. Corn and Sorghum

    EPA finds no justification in the comments it has received to alter 
the Agency's proposed decision not to reinstate the use of granular 
carbofuran on corn and sorghum. EPA confirms its previous decision that 
the risks of continued use of granular carbofuran on these sites 
outweigh the benefits. Therefore, these uses will not be reinstated.
    While EPA received many comments related to the sorghum use, none 
contained persuasive evidence or new data to justify changing the 
proposed decision. Furthermore, new information supports the Agency's 
proposed decision. EPA has registered a new alternative pesticide, 
imidacloprid (trade name GAUCHO), for use on sorghum. The new compound 
is available as a seed treatment and therefore, is applied at rates 
much lower than carbofuran. Imidacloprid poses less risk both to 
pesticide handlers and to birds and wildlife than carbofuran and other 
alternatives, and the available information indicates that it is as 
effective as granular carbofuran in controlling moderate chinch bug 
infestations.
    EPA has received additional comparative efficacy and yield data 
that confirm the Agency's previous determination that the available 
alternatives, aldicarb and flowable carbofuran, perform as well as 
granular carbofuran under conditions of high chinch bug infestation.
    The state of Nebraska reports that they do currently have a special 
local needs registration for in-furrow application of flowable 
carbofuran, thereby reducing the Agency's previous concern that some 
growers in Nebraska might suffer economic impacts from the cancellation 
of the granular formulation. FMC has made available to sorghum growers 
a closed system for applying flowable carbofuran that they believe 
reduces potential exposure to pesticide handlers. The company is also 
offering partial rebates to defray the cost to farmers of switching to 
the new application equipment.
    EPA recognizes that there may not be sufficient imidacloprid 
treated sorghum seed available for the 1995 use season. The Agency also 
acknowledges that acquiring new application equipment may not be 
feasible for growers in certain circumstances. In these instances EPA 
will consider special local needs registrations, FIFRA section 24(c), 
submitted by states.

B. Rice

    EPA has determined that the short-term benefits of using granular 
carbofuran on rice outweigh the short-term risks to birds, provided the 
use restrictions and conditions listed below are observed. Neither FMC 
nor other commenters has provided data to justify the long-term 
continued use of granular carbofuran on rice. Therefore, EPA is 
granting a maximum 2-year extension of this use for the sole purpose of 
providing an orderly transition to alternative controls.
    In spite of the Agency's effort to encourage new registrations for 
alternatives to granular carbofuran for control of rice water weevil, 
none appears likely before the 1995 use season. EPA's decision to allow 
a limited extension on rice was also influenced by the Agency's concern 
that non-chemical control options, specifically draining fields and 
eliminating vegetation on levees and field edges (clean farming), could 
impede initiatives that conservation groups have implemented with rice 
growers to enhance wildlife habitat. EPA notes, however, that no data 
have been provided to the Agency that quantify the relative risks of 
continued carbofuran use compared to possible habitat losses from clean 
farming. Such data would be necessary to support any use of carbofuran 
on rice beyond that permitted by this Notice. See Unit VI, below.
    FMC's granular carbofuran product registrations must be amended to 
include the following limitations and conditions:
    1. The use of granular carbofuran on rice is subject to the overall 
sales limits as set forth below in Unit V.
    2. No production and sales by FMC will be allowed for use on rice 
during the 1996 growing season if registration of an alternative to 
control rice water weevil appears imminent at the end of the 1995 
growing season. On or before September 1, 1995, EPA will assess the 
prospect for registration of alternatives to control rice water weevil 
and advise FMC and other interested parties if 
[[Page 11092]] production and sales of granular carbofuran for use on 
rice will be allowed for the 1996 growing season. EPA assessment of the 
prospect for alternatives will include: the product's efficacy in 
controlling the rice water weevil; the completeness of the data base 
supporting the product's registration; and the Agency's finding that 
the product presents less risk to the environment and human health than 
carbofuran. If EPA determines that registration of an alternative 
appears imminent, FMC's registration for granular carbofuran use on 
rice will automatically expire on September 1, 1995, without order or 
hearing. Otherwise, FMC's registration for this use will expire 
automatically on September 1, 1996, without order or hearing.
    3. The labels of granular carbofuran products sold by FMC in 1995 
for use on rice must bear the following statements: ``FMC will sell 
this product in conformity with volume limitations agreed to with 
EPA,'' ``FMC will not sell or release for shipment this product for use 
on rice after 8/31/95,'' and ``This product cannot be used on rice 
after 8/31/96.''
    4. If no alternatives are registered and the Agency allows sales 
during 1996, labels of granular carbofuran products sold by FMC for use 
on rice must bear the following statements: ``FMC will sell this 
product in conformity with volume limitations agreed to with EPA,'' 
``FMC will not sell or release for shipment this product for use on 
rice after 8/31/96,'' and ``This product cannot be used on rice after 
8/31/97.''
    5. Granular carbofuran products sold by FMC in 1995 and 1996 for 
use on rice must bear the following restrictions to protect the bald 
eagle, a federally designated threatened species: ``Aerial application 
is prohibited within 1 mile of active bald eagle nests and within 10 
miles of eagles congregating in winter roosting or staging areas.'' 
``For ground application to unflooded fields, within 1 mile of active 
bald eagle nests and within 10 miles of eagles congregating in winter 
roosting or staging areas, granules must be incorporated immediately 
and flooding must begin within 4 hours unless application is followed 
by hazing to keep birds out of the fields. If hazing is used, the field 
must be flooded no longer than 24 hours after application.''
    In most rice growing areas, eagles vacate wintering areas prior to 
the time when granular carbofuran is applied to rice. However, the 10 
mile restriction may apply to some counties in California from April 
1st through April 15th, and to two counties in Texas from March 1st 
through March 31st.
    6. Granular carbofuran products used on rice in California only, 
must bear labeling prohibiting use in areas occupied by the giant 
garter snake, a federally designated threatened species, unless FMC or 
other interested parties can provide data to EPA demonstrating that the 
toxicity of carbofuran to snakes is sufficiently low to eliminate 
concern or that the circumstances of use preclude exposure to this 
species.
    Because toxicity data for reptiles in general and snakes in 
particular are lacking, EPA has used toxicity data for birds in their 
risk assessment. The Agency recognizes that data on a more closely 
related species such as the western aquatic garter snake (Thamnophis 
couchii) would be a better indicator of toxicity to the giant garter 
snake.
    In the absence of such data, products must bear the following 
restriction: ``This product may not be used in areas where adverse 
impact on the giant garter snake is likely. Prior to making 
applications, the user of this product must determine that no giant 
garter snakes are located in or immediately adjacent to the area to be 
treated. If the user is in doubt whether or not the giant garter snake 
may be affected, he or she should contact either the State Department 
of Fish and Game, the regional office of the FWS, or the county 
agricultural commissioner.''
    Based on the limited information currently available to the Agency, 
the area potentially affected by this restriction would be the Butte, 
Colusa, American, and Sutter basins, as well as the Willow Slough and 
Liberty Farm area of the Yolo basin.
    7. In order to protect threatened and endangered aquatic species in 
California, labels must state: ``Flood water must be held on carbofuran 
treated fields for 28 days following flooding or application before 
being released into streams, rivers or other surface water bodies.'' 
Listed species that potentially could be affected without this measure 
in California include the Delta smelt and the winter run of Chinook 
salmon.
    In the South (Arkansas, Louisiana, Mississippi, Missouri, and 
Texas), labels must state: ``Permanent flood waters may not be released 
until 42 days after application. Also, if the water level in flooded 
rice fields rises due to heavy rainfall, additional flashboards must be 
put in place to prevent carbofuran-treated water from spilling over 
levees into public waters.'' Listed species that potentially could be 
affected without these measures in the South include numerous mussels.
    8. In lieu of the measures specified on product labels to protect 
threatened and endangered species, growers have the option of 
developing ``landowner agreements'' with the appropriate state lead 
conservation agency. These agreements permit growers to tailor species 
protection measures to the specific conditions on their land.
    9. Granular carbofuran products for use on rice must contain the 
following application recommendations: ``Confine all granular 
carbofuran applications to field areas. Cut off application equipment 
to avoid treating adjacent roads, field drains, ditches, banks, and 
other non-target areas. Apply carbofuran only when weather conditions 
are calm to prevent misplacement of granules. Ground applications will 
provide more precise carbofuran placement.''
    10. Labels must contain the following recommendation for loading: 
``Ground application equipment should be loaded in areas which will be 
flooded; each refill should be in a different location in the field. To 
facilitate clean up, load material only on tarp-covered ground.''
    11. FMC must provide a toll-free phone number on their product 
labels to report bird and wildlife kill incidents. FMC must report all 
incidents reported to it which associate the use of carbofuran with 
wildlife injury or death to EPA and the appropriate wildlife management 
agencies within 24 hours, regardless of the circumstances of the 
incident.
    Should substantial avian mortality or incidental take of threatened 
or endangered species occur, EPA will be forced to consider additional 
use restrictions.
    EPA will make available through the public docket its assessment of 
the potential risk to the threatened and endangered species associated 
with the use of carbofuran in rice growing areas. The assessment 
contains, among other useful information, a listing of counties 
potentially subject to use restrictions due to nesting or wintering 
bald eagles.
    The measures that EPA is requiring are based on previous Biological 
Opinions from the FWS. EPA believes that these measures will decrease, 
but not necessarily eliminate, the likelihood of incidental take of 
eagles.

V. Sales Limits

    Domestic sales of the 2G, 3G, 5G, 10G, and 15G formulations by FMC 
will be limited to 250,000 pounds of active ingredient (ai) per year 
for the 1995 and 1996 use seasons for use only on rice and five minor 
use sites, spinach grown for seed, cucurbits, cranberries, pine 
[[Page 11093]] progeny, and bananas. Based on information received from 
the Puerto Rico Department of Agriculture, EPA acknowledges that Puerto 
Rico has an existing special local need registration for granular 
carbofuran use on bananas and plantains. This minor use will now be 
allowed in both Hawaii and Puerto Rico, subject to the overall sales 
limitations.
    FMC must direct a minimum of 2,500 pounds/ai/year, out of the total 
250,000 pounds, or more at their discretion, to areas where the five 
minor use crops are grown during the 1995 and 1996 use seasons.
    For 1997 and subsequent years, sales by FMC will be limited to 
2,500 pounds/ai/year for use only on the five minor use sites.
    For the purpose of this action, the 1995 ``use season'' begins 
September 1, 1994 and ends August 31, 1995. Similarly, the 1996 use 
season begins September 1, 1995 and ends August 31, 1996.
    Existing stocks of the 1995 production in the possession of dealers 
and growers may be sold, distributed or used until August 31, 1996. 
Existing stocks of 1996 production in the possession of dealers and 
growers may be sold, distributed, or used until August 31, 1997.
    For each use season during which FMC sells granular carbofuran for 
domestic use, FMC must submit to EPA a report by October 15 containing 
FMC's 2G, 3G, 5G, 10G, and 15G carbofuran production and sales totals 
for domestic use for the immediately preceding use season. FMC must 
also provide EPA with batch and key numbers for granular carbofuran 
products produced for the 1995 and 1996 domestic use season.
    The production and sales limits in this Notice do not include the 
10CR formulation of carbofuran, which FMC markets only for use on 
canola under FIFRA section 24(c) registrations.
    The canola use differs somewhat from other uses because of a lower 
application rate (0.25 lbs/ai/acre). The 10 CR formulation differs from 
other granular carbofuran formulations in the use of a corn cob carrier 
rather than a sand-core granule. The canola use was not included in the 
Special Review; the Agency is currently evaluating the risks and 
benefits of this use.

VI. Procedural Matters

    In order to effectuate the extension on rice, FMC must submit 
applications for amended registrations and revised product labels. 
These amendments will not be accepted by EPA until all the limitations 
and conditions in this Notice have been satisfied.
    The settlement agreement concluding the Special Review of granular 
carbofuran in 1991 provided for one opportunity for FMC Corp. to 
present additional information related to the risks and benefits of 
granular carbofuran use on corn, sorghum and rice. EPA has fulfilled 
that provision of the agreement. EPA will not consider any additional 
requests for extensions or reinstatement of use on any site under the 
provisions of the settlement agreement. By the terms of the amended 
registration, FMC's registration for use of granular carbofuran on rice 
will expire no later than September 1, 1996, without order or hearing.
    In the settlement agreement with EPA, FMC waived any right it may 
have to challenge or appeal the Office Director's decision regarding 
the extension of use of granular carbofuran to an administrative law 
judge, the EPA Administrator, or the courts. Nothing in this Notice 
affects that waiver.
    Any additional applications to amend any granular carbofuran 
registration which FMC may submit after the publication date of this 
Notice may be denied by EPA unless FMC has submitted substantial new 
evidence which materially changes the Agency's assessment of the risks 
and benefits of the use of carbofuran and which was not previously 
available to either EPA or FMC. For the rice use, for example, the new 
evidence would need to include, at a minimum, site-specific, 
scientifically sound, wildlife monitoring data, and a quantitative 
assessment of the relative effect on waterfowl and other wildlife of 
carbofuran use versus clean farming.
    Consistent with the applicable provisions of FIFRA, EPA may 
consider, on a case-by-case basis, requests for emergency uses of 
granular carbofuran under FIFRA section 18 and special local needs 
registrations submitted by states under FIFRA section 24(c).
    All provisions of the 1991 settlement agreement not specifically 
amended by this Notice remain in effect.

VII. Public Record

    The Office of Pesticide Programs' public docket is located in room 
1132, Crystal Mall 2, 1921 Jefferson Davis Highway, Arlington, Va. The 
carbofuran docket and index are available for inspection and copying 
from 8:00 a.m. to 4:30 p.m., Monday through Friday, except legal 
holidays.
    The docket for carbofuran (OPP-30000/48E) contains: the complete 
text of all comments received in response to 59 FR 17530; a memorandum 
summarizing the comments and detailing EPA's responses to them; EPA's 
assessment of the potential risk to threatened and endangered species 
associated with rice; and other documents and correspondence related to 
the granular carbofuran Special Review and negotiated settlement 
agreement.

List of Subjects

    Environmental protection, pesticides and pest.

    Dated: February 22, 1995.

Daniel M. Barolo,
Director, Office of Pesticide Programs.

[FR Doc. 95-5020 Filed 2-28-95; 8:45 am]
BILLING CODE 6560-50-F