[Federal Register Volume 69, Number 125 (Wednesday, June 30, 2004)]
[Proposed Rules]
[Pages 39392-39394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14463]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 156 and 165
[OPP-2004-0049; FRL-7355-3]
RIN 2070-AB95
Standards for Pesticide Containers and Containment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; partial reopening of comment period.
-----------------------------------------------------------------------
SUMMARY: EPA is reopening the comment period for the following proposed
rule to solicit public input on issues or technology relating to the
proposed requirements that would not have been available or could not
have been addressed in comments submitted during previous public
comment opportunities. On February 11, 1994, EPA published a proposed
rule in the Federal Register proposing container design and residue
removal requirements for refillable and nonrefillable pesticide
containers and standards for pesticide containment structures (59 FR
6712). Subsequently, EPA issued a supplemental notice in the Federal
Register partially reopening the comment period on several specific
issues (64 FR 56918, October 21, 1999). Because significant time has
passed since the publication of the proposed rule and the supplemental
notice, EPA believes it is appropriate to reopen the comment period
prior to preparing a final rule. Specifically, EPA is reopening the
comment period to obtain public input on the proposed requirements
which would not have been available or could not have been addressed at
the time of either the notice of proposed rulemaking in 1994 or the
supplemental notice in 1999.
DATES: Comments, identified by docket ID number OPP-2004-0049, must be
received on or before August 16, 2004.
ADDRESSES: Submit your comments, identified by docket ID number OPP-
2004-0049, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov/.
Follow the on-line instructions for submitting comments.
Agency Website: http://www.epa.gov/edocket/. EDOCKET,
EPA's electronic public docket and comment system, is EPA's preferred
method for receiving comments. Follow the on-line instructions for
submitting comments.
E-mail: Comments may be sent by e-mail to [email protected], Attention: Docket ID Number OPP-2004-0049.
Mail: Public Information and Records Integrity Branch
(PIRIB) (7502C), Office of Pesticide Programs (OPP), Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460--
0001, Attention: Docket ID Number OPP-2004-0049.
Hand Delivery/carrier: Public Information and Records
Integrity Branch (PIRIB), Office of Pesticide Programs (OPP),
Environmental Protection Agency, Rm. 119, Crystal Mall 2, 1921
Jefferson Davis Hwy., Arlington, VA, Attention: Docket ID Number OPP-
2004-0049. Such deliveries are only accepted during the Docket's normal
hours of operation, and special arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to docket ID number OPP-2004-
0049. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
http://www.epa.gov/edocket/, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through EDOCKET,
regulations.gov, or e-mail. The EPA EDOCKET and the regulations.gov
websites are ``anonymous access'' systems, which means EPA will not
know your identity or contact information unless you provide it in the
body of your comment. If you send an e-mail comment directly to EPA
without going through EDOCKET or regulations.gov, your e-mail address
will be automatically captured and included as part of the comment that
is placed in the public docket and made available on the Internet. If
you submit an electronic comment, EPA recommends that you include your
name and other contact information in the body of your comment and with
any disk or CD ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit EDOCKET on-line or see the Federal Register of May 31,
2002 (67 FR 38102) (FRL-7181-7). For additional instructions, go to
Unit I.B. of the SUPPLEMENTARY INFORMATION section of this document.
Docket: All documents in the docket are listed in the EDOCKET index
at http://www.epa.gov/edocket/. Although listed in the index, some
information is not publicly available, i.e., 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 either electronically in EDOCKET or in hard
copy 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.
FOR FURTHER INFORMATION CONTACT: Nancy Fitz, Field and External Affairs
Division (7506C), Office of Pesticide Programs, Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (703) 305-7385; fax number: (703) 308-3259; e-
mail address: [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this Action Apply to Me?
The Agency included in the proposed rule and the supplemental
notice a list of those who may be potentially affected by this action.
If you have questions regarding the applicability of this action to a
particular entity, consult the person listed under the FOR FURTHER
INFORMATION CONTACT.
B. How Can I Access Electronic Copies of this Document and Other
Related Information?
In addition to using EDOCKET (http://www.epa.gov/edocket/), you may
access this Federal Register document electronically through the EPA
Internet under the ``Federal Register'' listings at http://www.epa.gov/fedrgstr/. Although not all docket materials may be available
electronically, you may still access any of the publicly available
docket materials, including the paper-only docket for the proposed rule
and the partial reopening of the comment period, through the docket
facility (OPP-190001). A frequently updated electronic version of 40
CFR part 180 is
[[Page 39393]]
available at E-CFR Beta Site Two at http://www.gpoaccess.gov/ecfr/.
II. What Action is EPA taking?
This document reopens the public comment period for the rulemaking
titled ``Standards for Pesticide Containers and Containment,'' which
was proposed on February 11, 1994 (59 FR 6712). In that document, EPA
sought comment on proposed regulations for pesticide container design
and residue removal and for containment structures at pesticide storage
and container refilling operations. Because significant time has passed
since the proposed rule in 1994 and a supplemental notice in 1999 (64
FR 56918, Oct. 21, 1999), EPA is hereby reopening the comment period
for an additional 45 days. While EPA has attempted to stay current on
developments in pesticide container and containment structure policies,
regulations, technology and practices, the Agency believes that it is
appropriate to solicit input from the regulated community, state
regulators and others to ensure that we are fully aware of the current
state of the pesticide container and containment universe before
finalizing the pesticide container and containment regulations.
The Agency has reviewed and carefully considered all of the public
comments submitted in response to the proposed rule and the
supplemental notice. Accordingly, the Agency is not soliciting comments
which are essentially repetitions of those comments or which could have
been raised at the time of either of the previous notices. In addition,
EPA will not consider submissions that are related solely to policies,
regulations and pesticide market conditions and practices that existed
in 1994 and 1999. Similarly, EPA is not interested in receiving
restated comments about which pesticide products should be exempted
from the pesticide container regulations.
EPA is soliciting public input on any policies, market practices,
technology or other issues relating to this rule's requirements which
would not have been available or could not have been addressed at the
time of either the proposed rule in 1994 or the supplemental notice in
1999. Threeexamples of the types of issues which could be addressed in
commentsto this notice are described below.
A. State Containment Regulations
Since the Agency proposed the bulk containment standards in 1994,
19 states have been implementing state containment regulations. Some
states had their own containment regulations before 1994, and have
modified and improved them over the years. These states (with the
longest standing regulations) had the majority of the bulk storage
facilities within their borders, and recognized the need for regulation
to prevent pollution from bulk storage and refilling operations. The
Agency has carefully considered all comments regarding containment that
were submitted on the 1994 proposed requirements. The 1999 supplemental
notice did not discuss changes to the proposed containment standards.
However, the additional 10 years of experience in implementing
containment regulations may have led to new suggestions, observations,
problems, market practices or other data submissions by state
regulators, registrants, dealers, commercial applicators, engineers,
other businesses, or the public. For example, the additional experience
in designing and building containment structures and inspecting,
operating, and maintaining bulk storage and refilling facilities could
have changed commenters' opinions about specific proposed containment
requirements. As another example, EPA has received anecdotal reports
that bulk storage on farms, which was very rare if not nonexistent when
the regulations were proposed, is becoming more common and may present
a risk to the environment. Comments and data on the proposed
containment standards that could not have been anticipated in 1994
because the comments are based on the additional years of experience
with state containment regulations are an example of comments that
would be appropriate to submit.
B. Pesticide Container Recycling
EPA also believes that the experiences and results of pesticide
container collection and recycling programs over the past decade could
lead to new observations, data, and comments on the proposed container
standards. The Ag Container Recycling Council (ACRC) is a non-profit
organization that promotes and supports the collection and recycling of
plastic pesticide containers in the United States. The collection and
recycling programs conducted by the ACRC grew significantly during the
past decade from the developmental stage when the proposed regulations
were being developed in the early 1990's to collecting over 6.6 million
pounds of plastic containers in each of the past few years. The ACRC,
pesticide registrants, pesticide container recyclers, State extension
agents and State and local regulators have had multiple years to
observe end users' rinsing practices, the cleanliness of containers,
the rate of rejecting containers and other container-related issues
that could lead to comments on the proposed container requirements that
are different from when the regulations were proposed.
C. Plant-Incorporated Protectants
The regulations for plant-incorporated protectants in 40 CFR parts
152 and 174 were finalized in the Federal Register on July 19, 2001 (66
FR 37771). A plant-incorporated protectant is a pesticidal substance
that is intended to be produced and used in a living plant, or in the
produce thereof, and the genetic material necessary for production of
such a pesticidal substance. As explained in the preamble to the final
rule for plant-incorporated protectants (66 FR 37774), ``[p]lant-
incorporated protectants are primarily distinguished from other types
of pesticides because they are intended to be produced and used in a
living plant. This difference in use pattern dictates in some instances
differences in approach.'' Plant-incorporated protectants are not sold
and distributed in containers as distinct substances (e.g., liquids,
solids or gels) like other pesticides; they are distributed as part of
the seeds or plants. Therefore plant-incorporated protectants do not
have containers like most pesticides.
EPA did not specifically mention plant-incorporated protectants in
either the proposed rule or the supplemental notice because there were
either no registrations for these products or they were uncommon at
that time; these types of products are relatively new to the
marketplace. In addition, the plant-incorporated protectant regulations
in 40 CFR part 174 were finalized in 2001 after the container/
containment proposed rule and supplemental notice were published.
Comments relating to regulating the containers, container-related
labeling or containment of plant-incorporated protectants, and other
types of pesticides that may be in similar situations, are the kind of
input that would be appropriate to submit in response to this notice.
III. What is the Agency's Authority for Taking this Action?
The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)
sections 19(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
[[Page 39394]]
the safe storage and disposal of pesticides.'' The regulations must
ensure, to the fullest extent practicable, that the containers:
1. Accommodate procedures used for removal of pesticides from the
containers and rinsing of the containers.
2. Facilitate safe use of the containers, including elimination of
splash and leakage.
3. Facilitate safe disposal of the containers.
4. Facilitate safe refill and reuse of the containers.
FIFRA section 19(f) requires EPA to promulgate regulations
``prescribing procedures and standards for the removal of pesticides
from containers prior to disposal.'' The regulations may:
1. Specify, for each major type of pesticide container, procedures
and standards for, at a minimum, triple rinsing or the equivalent
degree of pesticide removal.
2. Specify procedures that can be implemented promptly and easily
in various circumstances and conditions.
3. Provide for reusing, whenever practicable, or disposing of rinse
water and residue.
4. Coordinate with requirements imposed under the Resource
Conservation and Recovery Act (RCRA) for rinsing containers.
Section 19(f) provides that EPA, in its discretion, may exempt
products intended solely for household use.
Section 19(h), titled ``Relationship to Solid Waste Disposal Act,''
specifies that nothing in section 19 shall diminish the authorities or
requirements of RCRA. It also exempts certain antimicrobial pesticides
from the container regulations:
A household, industrial, or institutional antimicrobial product
that is not subject to regulation under the Solid Waste Disposal Act
... shall not be subject to the provisions of subsections (a), (e),
and (f), unless the Administrator determines that such product must
be subject to such provisions to prevent an unreasonable adverse
effect on the environment.
IV. Do Any Statutory and Executive Order Reviews Apply to this Action?
This notice neither proposes nor takes final action regarding any
substantive requirements and is procedural in nature. This notice
merely opens up the docket for further comments on a rule that has
already been proposed. Therefore, it is not subject to the statutory
and executive order reviews generally applicable to proposed and final
rules.
List of Subjects in 40 CFR Parts 156 and 165
Environmental protection, Packaging and containers, Pesticides and
pests.
Dated: June 2, 2004.
Susan B. Hazen,
Acting Assistant Administrator for Prevention, Pesticides, and Toxic
Substances.
[FR Doc. 04-14463 Filed 6-29-04; 8:45 am]
BILLING CODE 6560-50-S[FEDREG][VOL]*[/VOL][NO]*[/NO][DATE]*[/
DATE][PRORULES]