[Federal Register: October 29, 2008 (Volume 73, Number 210)]
[Rules and Regulations]
[Page 64215-64228]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29oc08-15]
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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.
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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
[[Page 64216]]
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; e-
mail 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 Sec. 152.3 by adding a new definition for
``released for shipment'' and is amending Sec. 156.159, Sec. 165.20,
Sec. 165.40, and Sec. 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
[[Page 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, shrink-wrapped 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 Sec. 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 Sec. 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 Sec. 152.3, and for all purposes under
FIFRA. Accordingly, EPA is adding the definition of ``released for
shipment'' to the generally applicable definitions in Sec. 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, Sec. 156.3, consisting of introductory text, a new definition
for ``dilutable'' and the existing definition from Sec. 165.3 of
``transport vehicle''; in Sec. 156.140(a) by changing the phrase ``in
this section'' to read ``of this section.''; inSec. Sec.
156.140(a)(5), (d), and (e) by exempting certain container types from
container type label statements; in Sec. 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 Sec. Sec. 156.144(e),
(f) and (g) by exempting certain pesticide product container types from
the residue removal label requirements; inSec. Sec. 156.140(a) and (b)
and Sec. 156.144(a) by revising the introductory paragraphs to account
for the new exemptions, and in Sec. 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 Sec.
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 Sec. 156.144(g) but only defines
``transport vehicle'' in Sec. 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 Sec.
156.3, including the definition for ``dilutable'' and adding the
definition for ``transport vehicle'' from Sec. 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 Sec. 156.140(a)(5)) of
nonrefillable container types exempt from the ``identification of
container type'' labeling requirements that identify the container as
nonrefillable (Sec. 156.140(a)(1)) and prohibit or limit its reuse
(Sec. 156.140(a)(2)). The Agency also proposed a provision in Sec.
156.140(c) that would allow waivers and modifications of any of the
``container
[[Page 64218]]
type'' label requirements on a case-by-case 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
Sec. 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
Sec. 156.140(c).
EPA is also making two editorial changes to the proposed
introductory text of Sec. 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 Sec.
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 ``one-time 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 Sec. 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 Sec. Sec. 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
Sec. Sec. 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 Sec. 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 Sec. 156.140(a)(1) and
``reuse'' in Sec. 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
[[Page 64219]]
that neither the listed containers nor their outer packaging presents
the type of risks addressed by the ``Nonrefillable container''
statement in Sec. 156.140(a)(1) and the reuse statement in Sec.
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 Sec. 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 Sec. Sec.
156.140(a)(5)(x) and (a)(5)(xi).
EPA also notes that by specifying in Sec. 156.140(a)(5) certain
products as ``one-time use[rdquo,] 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 Sec.
156.140(a)(5) exemption must be one-time use containers (as the Sec.
165.3 definition of nonrefillable container specifies that they be
``designed and constructed for one-time use''). For most products
exempted by Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 156.140. This paragraph is
being added to Sec. 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 Sec. 156.140(d), the Agency proposed to exempt from the label
statements required in Sec. 156.140, pesticide-impregnated clothing or
other repellent-impregnated 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 Sec.
156.140. Note that while Sec. 152.25(a) exempts from all requirements
of FIFRA certain articles treated with a pesticide to protect the
article itself, this new Sec. 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
repellent-impregnated fabric articles, such as tents or mosquito
netting, are also exempted by the exemption for pesticidal articles in
Sec. 156.140(d).
This new exemption complements the existing exemption in Sec.
152.25(a) in that it addresses pesticidal articles that do not qualify
for the Sec. 152.25(a) exemption. Section 152.25(a) provides a
complete exemption from all requirements of FIFRA for qualifying
[[Page 64220]]
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
Sec. 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
Sec. 156.140(d) is to exempt these articles from the identification of
container type label statements in Sec. 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 Sec. 156.140(d). However, some of the pesticide
products identified by the commenter may not be exempted by Sec.
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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 156.144(f), the Agency also proposed to exempt pesticide-
impregnated objects that are registered as pesticides (and not packaged
in a container) from the residue removal requirements. The Agency is
revising the exemption in Sec. 156.144(f) in the same way as in Sec.
156.140(d), for the reasons discussed above.
EPA revised the exemption for transport vehicles in Sec.
156.144(g) for clarity and to be consistent with the format in Sec.
156.140(e) and the other exemptions in Sec. 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 Sec. 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 Sec. 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
Sec. Sec. 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
Sec. Sec. 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 Sec.
165.20(c). In Sec. 165.40(c) and Sec. 165.60(c) the Agency is
changing the language regarding ``released for shipment[rdquo,] 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
[[Page 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 Sec. Sec.
165.25(f)(2) and 165.27(b)(5).
The Agency is changing the following existing definitions in Sec.
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
``water-soluble 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 Sec. 165.20(c), Sec. 165.40(c), and Sec. 165.60(c) to be
consistent with the revision in Sec. 156.159, for the reasons
discussed above. In addition, the Agency is changing the compliance
date in Sec. 165.40(c), and Sec. 165.60(c) so that they all read
``...after August 16,...'' regardless of the year. The Agency is
correcting errors in Sec. Sec. 165.25(a), 165.25(b)(1), and
165.25(b)(2), as proposed, as well as in Sec. 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 Sec. 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 Sec. 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
Sec. 165.45(e) and adding ``or'' as in ``equal to or greater than'' in
Sec. 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 Sec. 165.45(f);
Sec. 165.85(c), (d) and (f); and Sec. 165.87(c), (d) and (f).
EPA is changing slightly the wording of Sec. 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
Sec. 165.60 contains the general provisions of Subpart D - Standards
for Repackaging Pesticide Products into Refillable Containers.
EPA is making minor editorial changes in Sec. 165.67(d) and Sec.
165.70(e)(5)(i) by replacing the word ``referenced'' with the word
``referred to.'' EPA is correcting a mistake made in proposed Sec.
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 Sec. 165.90(a)(5). The Agency's intention of requiring
lockable valves on stationary pesticide containers (if required by
Sec. 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 Sec. 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 Sec. 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.
[[Page 64222]]
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-for-profit 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
[[Page 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).
[[Page 64224]]
List of Subjects in 40 CFR Parts 152 and 156
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.
0
Therefore, 40 CFR chapter I is amended as follows:
PART 152--[AMENDED]
0
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.
0
2. Amend Sec. 152.3 by adding alphabetically a definition for
``Released for Shipment'' to read as follows:
Sec. 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]
0
3. The authority citation for part 156 continues to read as follows:
Authority: 7 U.S.C. 136 through 136y.
0
4. Add Sec. 156.3 to read as follows:
Sec. 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 cargo-carrying vehicle such as an
automobile, van, tractor, truck, semitrailer, tank car or rail car used
for the transportation of cargo by any mode.
0
5. Amend Sec. 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:
Sec. 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 Sec. 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 Sec. 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.
0
6. Amend Sec. 156.144 by revising paragraph (a), and by adding
paragraphs (e), (f), and (g) to read as follows:
Sec. 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 Sec.
156.146 and Sec. 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 Sec. 156.156.
(f) Exemption for articles. Pesticidal articles that are not
exempted from FIFRA regulation by Sec. 152.25(a) of this chapter are
exempt from the residue removal instruction requirements in this
section through Sec. 156.156.
(g) Exemption for transport vehicles. Transport vehicles are exempt
from the requirements in this section through Sec. 156.156.
0
7. 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, 2010 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.
PART 165--[AMENDED]
0
8. The authority citation for part 165 will continue to read as
follows:
Authority: 7 U.S.C. 136 through 136y.
0
9. Amend Sec. 165.3 as follows:
[[Page 64225]]
0
a. By adding an introductory paragraph.
0
b. By revising the definitions for ``Agricultural pesticide'', ``Dry
pesticide'', ``Nonrefillable container''.
0
c. By revising the introductory text of the definition of ``Pesticide
compatible'' which immediately follows the definition for the term
``Owner''.
0
d. By revising the definition of the term ``Pesticide compatible''
which immediately precedes the definition of the term ``Pesticide
dispensing area.''
0
e. By revising the definition of the terms ``Rinsate'', and
``Washwater.''
0
f. By adding alphabetically new definitions for ``Capacity,''
``Dilutable,'' and ``Suspension concentrate''.
0
g. By removing the definitions for ``Flowable concentrate,'' ``Pressure
rinse,'' and ``Triple rinse.''
Sec. 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, water-soluble 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.
0
10. Amend Sec. 165.20 by revising paragraph (c) to read as follows:
Sec. 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.
0
11. Amend Sec. 165.23 by revising the heading of paragraph (d) to read
as follows:
Sec. 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? * * *
* * * * *
0
12. Amend Sec. 165.25 by revising paragraphs (a), (b), and (f)(2) to
read as follows:
Sec. 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.
* * * * *
0
13. Amend Sec. 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:
Sec. 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 Sec. Sec.
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
[[Page 64226]]
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 Sec. 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.
0
14. Amend Sec. 165.40 by adding paragraph (b)(3), and by revising
paragraph (c) to read as follows:
Sec. 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, Sec. 165.45(a)(2) provides an
exemption from some of the requirements in Sec. 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.
0
15. Amend Sec. 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:
Sec. 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 Sec. 165.45(d) regarding marking
and Sec. 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, plant-incorporated
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 Sec. 165.43(h) through Sec. 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.
* * * * *
0
16. Amend Sec. 165.45 by revising paragraphs (a)(1), (b), (e), the
introductory text of paragraph (f) and paragraph (f)(2) to read as
follows:
Sec. 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
[[Page 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.
* * * * *
0
17. Amend Sec. 165.60 by revising paragraph (c) to read as follows:
Sec. 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.
0
18. Amend Sec. 165.63 by revising paragraph (d)(1) to read as follows:
Sec. 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 for registrants
who distribute or sell Requirement for refillers
Requirement directly in refillable who are not registrants
containers
----------------------------------------------------------------------------------------------------------------
Recordkeeping specific to each instance of Sec. 165.65(i)(2) Sec. 165.70(j)(2)
repackaging
----------------------------------------------------------------------------------------------------------------
Container inspection: criteria regarding a serial Sec. 165.65(e)(2) Sec. 165.70(f)(2)
number or other identifying code
----------------------------------------------------------------------------------------------------------------
Container inspection: criteria regarding one-way Sec. 165.65(e)(3) Sec. 165.70(f)(3)
valve or tamper-evident device
----------------------------------------------------------------------------------------------------------------
Cleaning requirement: criteria regarding one-way Sec. 165.65(f)(1) Sec. 165.70(g)(1)
valve or tamper-evident device
----------------------------------------------------------------------------------------------------------------
Cleaning if the one-way valve or tamper-evident Sec. 165.65(g) Sec. 165.70(h)
device is not intact
----------------------------------------------------------------------------------------------------------------
* * * * *
0
19. Amend Sec. 165.65 by revising paragraph (i)(2)(iii) to read as
follows:
Sec. 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.
0
20. Amend Sec. 165.67 by revising paragraphs (b)(2)(ii) and (d) to
read as follows:
Sec. 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 Sec. 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.
* * * * *
0
21. Amend Sec. 165.70 by revising paragraphs (b)(2)(ii), (e)(5)(i),
and (j)(2)(iii) to read as follows:
Sec. 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 Sec. 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.
0
22. Amend Sec. 165.80 by revising paragraph (b)(1) to read as follows:
Sec. 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).
* * * * *
0
23. Amend Sec. 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:
Sec. 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
[[Page 64228]]
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.
0
24. Amend Sec. 165.87 by revising paragraph (a)(3),the introductory
text of paragraph (c), paragraphs (c)(1), (d)and (f) to read as
follows:
Sec. 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.
0
25. Amend Sec. 165.90 by revising paragraphs (a)(2), (a)(5), (b)(1),
(b)(2), and (b)(3) to read as follows:
Sec. 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 Sec. 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.
0
26. Amend Sec. 165.97 by revising paragraph (b)(1) to read as follows:
Sec. 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