[Federal Register Volume 69, Number 57 (Wednesday, March 24, 2004)]
[Notices]
[Pages 13836-13838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6610]


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ENVIRONMENTAL PROTECTION AGENCY

[OPP-2004-0095; FRL-7351-3]


Notice to Pesticide Retailers and State Agencies Regarding 
Washington Toxics Coalition et al. v. EPA Litigation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: Pursuant to a January 22, 2004 Court Order, EPA has developed 
a point of sale notification regarding urban use pesticide products 
containing any of seven active ingredients. As further directed by the 
January 22 Order, EPA is hereby notifying retailers of lawn and garden 
pesticides in urban areas of California, Oregon and Washington through 
which ``salmon supporting waters'' pass that they are to make the point 
of sale notification whenever pesticide products containing these 
active ingredients are sold. The notifications will be distributed to 
retailers in these urban areas on or before April 5, 2004, by 
defendant-intervenors in this case (numerous groups representing 
pesticide registrants, growers and other pesticide users). Unit III. of 
this Notice provides retailers with the names of the affected active 
ingredients, information regarding the urban areas where the 
notifications must be made, and information regarding how retailers can 
obtain the point of sale notification if they have not received 
notifications from defendant-intervenors by April 5, 2004. Finally, the 
court further directed EPA to produce and provide copies of

[[Page 13837]]

the point of sale notification to state pesticide agencies, state fish 
agencies and Land Grant University extension coordinators in the urban 
areas and to request that they, in turn, provide this information to 
certain Certified Applicators in California, Oregon and Washington. The 
notifications will be distributed to these parties by EPA on or before 
April 5, 2004. Until further judicial proceedings occur, EPA cannot 
determine the extent to which the Order will remain effective. If, 
however, the January 22, 2004 Order is stayed or modified, EPA intends 
to provide notice on its Web site (See Unit I.B.3. of the SUPPLEMENTARY 
INFORMATION for the Web site address).

FOR FURTHER INFORMATION CONTACT: Arty Williams, Field and External 
Affairs Division (7506C), Office of Pesticide Programs, Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: 703-305-5239; fax number: 703-308-3259; e-mail 
address: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    This action is directed to certain pesticide product retailers and 
registrants, state pesticide agencies, state fish agencies and Land 
Grant University extension coordinators in California, Oregon and 
Washington. This notice may also be of particular interest to persons 
in California, Oregon and Washington who may wish to use a pesticide in 
urban areas of those states through which ``salmon supporting waters'' 
pass. The Court has defined ``salmon supporting waters'' in its January 
22, 2004 Order, which is available at www.epa.gov/espp. Since other 
entities may also be interested, the Agency has not attempted to 
describe all the specific entities that may be affected by this action. 
If you have any questions regarding the applicability of this action to 
a particular entity, consult the person listed under FOR FURTHER 
INFORMATION CONTACT.

B. How Can I Get Copies of this Document and Other Related Information?

    1. Docket. EPA has established an official public docket for this 
action under docket identification (ID) number OPP-2004-0095. The 
official public docket consists of the documents specifically 
referenced in this action, any public comments received, and other 
information related to this action. Although a part of the official 
docket, the public docket does not include Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. The official public docket is the collection of materials 
that is available for public viewing at the Public Information and 
Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall 2, 
1921 Jefferson Davis Hwy., Arlington, VA. This docket facility is open 
from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal 
holidays. The docket telephone number is (703) 305-5805.
    2. Electronic access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to view public comments, 
access the index listing of the contents of the official public docket, 
and to access those documents in the public docket that are available 
electronically. Although not all docket materials may be available 
electronically, you may still access any of the publicly available 
docket materials through the docket facility identified in Unit I.B.1. 
Once in the system, select ``search,'' then key in the appropriate 
docket ID number.
    3. EPA Web site. You may also find these documents on EPA's 
Endangered Species Web site at www.epa.gov/espp.

II. Background

    On January 30, 2001, the Washington Toxics Coalition and a number 
of other public interest groups filed suit against the U.S. 
Environmental Protection Agency in the United States District Court for 
the Western District of Washington alleging that EPA had failed to 
consult with the National Marine Fisheries Service (NMFS) on whether 
certain pesticides posed jeopardy to 26 federally listed endangered and 
threatened Pacific salmon and steelhead (salmon evolutionarily 
significant units (ESUs)). Under the Endangered Species Act (ESA), EPA 
must ensure that its registration of a pesticide is not likely to 
jeopardize the continued existence of species listed as endangered and 
threatened, or to adversely modify habitat critical to those species' 
survival. In addition to the obligation to ensure that its actions do 
not jeopardize listed species, the Agency must consult, as appropriate, 
with the U.S. Fish and Wildlife Service (FWS) or NMFS if a pesticide's 
use may affect listed species or designated critical habitat for a 
listed species.
    On January 22, 2004, the District Court issued an Order granting 
interim injunctive relief pending EPA's compliance with an earlier 
Order of the Court that directed EPA to make effects determinations and 
consult, as appropriate, with NMFS regarding the effects of pesticides 
containing any of 55 active ingredients on threatened and endangered 
Pacific salmon and steelhead. Because of EPA's review and effects 
determinations made to date on many of these pesticides, the January 22 
Order applied only to 38 of these pesticides. The Order (with some 
exceptions) enjoins, vacates and sets aside EPA's authorization of use 
of these 38 pesticides within 20 yards of salmon supporting waters for 
ground applications and within 100 yards of salmon supporting waters 
for aerial applications, in California, Oregon and Washington, 
effectively establishing buffer zones around those waters. The Court 
also ordered EPA to notify a variety of entities in the affected states 
of this injunction, and of previous Orders issued by the Court in this 
case, and to instruct registrants and the affected states to inform 
certain persons who sell, distribute and use pesticides of the Order. 
In the Federal Register of February 17, 2004 (69 FR 7478) (FRL-7345-8), 
EPA provided the notification and instruction ordered by the Court. The 
Court also ordered EPA to develop and facilitate, on or before April 5, 
2004, the availability of a point of sale notification in urban areas 
in the three states for certain products containing any of seven active 
ingredients. The Court Order further directed EPA to produce and 
provide copies of the point of sale notification to state pesticide 
agencies, state fish agencies and Land Grant University extension 
coordinators in the urban areas and to request that they, in turn, 
provide this information to certain Certified Applicators in 
California, Oregon and Washington.

III. What Action is EPA Taking Today?

A. Notifications in Compliance with the Court Order of January 22, 2004

    1. As directed by the January 22, 2004 Order, EPA has developed a 
point of sale notification regarding pesticide products containing any 
of the following seven active ingredients:
     2,4-D
     Carbaryl
     Diazinon
     Diuron
     Malathion
     Triclopyr BEE
     Trifluralin
    2. As further directed by the Court, EPA is hereby notifying 
retailers of lawn

[[Page 13838]]

and garden pesticides in urban areas of California, Oregon and 
Washington through which ``salmon supporting waters'' pass that they 
are to make the point of sale notification whenever products containing 
these seven active ingredients are sold. The Court's Order also 
requires defendant-intervenors (groups representing pesticide 
manufacturers, growers and other pesticide users) to distribute the 
point of sale notifications to sales outlets in these urban areas on or 
before April 5, 2004.
    The January 22 Order does not direct defendant-intervenors to 
distribute the point of sale notifications as ``labeling'' within the 
meaning of section 2(p) of FIFRA. To the extent, however, that 
intervenors or pesticide registrants wish to distribute the point of 
sale notification developed by EPA as labeling, EPA will exercise its 
enforcement discretion authority. This will allow defendant-intervenors 
to distribute the notifications for the duration of the Court's 
injunction without notifying EPA, without seeking or obtaining approval 
from EPA and without the need for establishment registration or 
reporting regarding the production of the notification. Further, EPA 
will not take enforcement actions on the basis of misbranding under 
FIFRA, solely with respect to the point of sale notification materials 
that may be attached to or accompany any of the subject pesticide 
products. Any labeling changes different from or in addition to the 
point of sale notification developed by EPA remain subject to FIFRA's 
labeling requirements and misbranding provisions, and the existing 
procedures of 40 CFR parts 152 and 167.
    3. Through this Notice, EPA is requesting that state pesticide 
agencies, state fish agencies and Land Grant University extension 
coordinators in urban areas of California, Oregon and Washington, 
provide the point of sale notification to Certified Applicators 
certified in any category that would permit the applicator to apply 
pesticides in parks, golf courses and housing areas in the urban areas. 
EPA will provide to the state pesticide agencies, state fish agencies 
and Land Grant University extension pesticide coordinators in 
California, Oregon and Washington, copies of the point of sale 
notification on or before April 5, 2004.

B. Court's Definition of Urban Areas

    The urban areas subject to the Order are defined by the Court as 
all urbanized areas in California, Oregon and Washington with 
populations of at least 50,000 people (as defined by the 2000 U.S. 
Census) within a federally listed salmon ESU. These areas are 
identified in exhibit 2 of the January 22, 2004 Order, which can be 
accessed on EPA's Web site at www.epa.gov/espp.

C. Time Period for Which These Requirements are in Effect

    1. As explained in detail in the January 22, 2004 Order, the Order 
terminates automatically for a particular pesticide and salmon ESU upon 
the occurrence of one of the following: (i) Completion by EPA of its 
ESA section 7(a)(2) consultation obligation; (ii) the issuance by NMFS 
of a biological opinion; (iii) a finding by EPA made for ESA section 7 
compliance purposes that the pesticide is ``not likely to adversely 
affect'' that particular salmon ESU, provided that NMFS has not 
rejected or affirmatively failed to concur in that ``not likely to 
adversely affect'' determination; or (iv) a finding by EPA made for ESA 
section 7 compliance purposes that the pesticide will have ``no 
effect'' on the particular salmon ESU. EPA's findings for particular 
pesticides and salmon ESUs as of the January 22, 2004 Order are set 
forth in exhibit 1 of that Order. As EPA makes additional effects 
determinations, or as NMFS moves ahead in its review of EPA's 
determinations, pesticide registrants, retailers and users should 
review EPA's Web site, as well as any additional information updating 
the Order, to ascertain the applicability of the Order, including the 
requirement to make point of sale notifications, in their area.
    2. On February 17, 2004, CropLife America and other defendant-
intervenors in the Washington Toxics Coalition case, appealed the 
Court's Order. If further judicial proceeding occur that may affect the 
Order, EPA intends to provide notice on its Web site at www.epa.gov/espp.

D. Obtaining Additional Copies of Point of Sale Notifications

    1. Any sales outlet of lawn and garden pesticide products subject 
to the point of sale notification provisions in the January 22, 2004 
Order, in these urban areas that have not received the point of sale 
notifications from defendant-intervenors by April 5, 2004, may obtain 
such materials from defendant-intervenors through the following Web 
site: www.pestfacts.org.
    2. Any state pesticide agency, state fish agency, or Land Grant 
University extension coordinator subject to the request to distribute 
the point of sale notification to certain Certified Applicators who 
have not received the point of sale notifications from EPA by April 5, 
2004, or who need additional copies of the point of sale notification, 
may obtain such materials by contacting the person indicated in this 
Notice under FOR FURTHER INFORMATION CONTACT.

E. What is the Agency's Authority for Taking this Action?

    This action is taken pursuant to the January 22, 2004 Order of the 
Court in Washington Toxics Coalition, et al. v. EPA, CO1-0132 (W.D. 
WA).

List of Subjects

    Environmental protection, Endangered species.


    Dated: March 18, 2004.
James Jones,
Director, Office of Pesticide Programs.
[FR Doc. 04-6610 Filed 3-19-04; 2:44 pm]
BILLING CODE 6560-50-S