August 29, 2007

Bill Diamond

Division Director

Field External Affairs Division

Office of Pesticide Programs

U.S. Environmental Protection Agency (7506P)

1200 Pennsylvania Avenue, NW

Washington, DC  20460

Re:	Pesticide Management and Disposal; Standards for Pesticide 
Containers and Containment Final Rule

	

Dear Mr. Diamond:

The Consumer Specialty Products Association (“CSPA”), appreciates
this opportunity to provide additional comments concerning certain
aspects of the Pesticide Management and Disposal; Standards for
Pesticide Containers and Containment final rule. CSPA is a national
nonprofit trade association that promotes the mutual interest of almost
260 companies engaged in the manufacture, formulation, distribution and
sale of consumer specialty products. Consumer specialty products are
formulated from basic chemicals or chemical compounds and are used by
household, commercial, institutional, and industrial consumers for
specific and specialized purposes.  CSPA has seven separate divisions
that reflect the breadth of its membership:  Aerosol Products, Air Care
Products, Antimicrobial Products, Cleaning Products, Industrial and
Automotive Specialty Products, Pest Management Products, and Polishes
and Floor Maintenance Products.  

On behalf of its members whose products are affected by this rule, CSPA
is raising three aspects that will have deleterious impacts on the
members’ ability to bring into commerce products that protect human
health:  1) Section 156.140, which mandates language for reuse or
refilling of containers and for ready to use containers whose directions
for use allow a different product to be poured in and diluted by the end
user; 2) alternatively, §156.140 does not contain a waiver provision as
does §156.144(d); and, 3)  the August 17, 2009 compliance deadline in
§156.159 for label changes to pesticide products “distributed or
sold” by a registrant on or after that date is inconsistent with prior
EPA practice and will have devastating financial impacts on the consumer
specialty industry.

I.	Aerosol Cans and Plastic Bait Stations Should be Exempted 	from
§156.140

	Aerosol cans and plastic bait stations are nonrefillable containers. 
Reuse of them is impossible. Breaking open either container makes it
inoperable.  The aerosol cans cannot be taken apart and reassembled; the
container would be destroyed.  The plastic bait stations would have to
be cracked open to replace the bait, thereby destroying their delivery
system.  Aerosol cans and plastic bait stations are not resealable. They
are not amenable to reuse and refilling.  Neither of these containers
have the physical attributes that the rule contemplates and regulates.  

In addition, the Disposal Statement on aerosol cans already admonishes
the user not to puncture or incinerate the empty container, and to
dispose of the empty container in the trash or to recycle if possible. 
The bait station Storage and Disposal Statement mandates “Do not
reuse” an empty container and instructs the user to call for disposal
instructions if it is partially filled.  These admonitions are mirror
images of those mandated by §156.140 and in some instances are more
inclusive.  Requiring registrants to make the changes contemplated by
§156.140 will not improve the labels, but will have the unintended
consequence of requiring a smaller font to accommodate the new language,
thereby diminishing the visibility of the current completely adequate
label language. Requiring this additional language is contrary to the
findings of the Agency's Consumer Labeling Initiative, which called for
more "white space" and "no needless words" on consumer labels.  There
also would be a significant financial impact, with no benefit to
consumers, if registrants had to change printing plates for every
aerosol can and bait station label.

II.	Other Single Use and Uniquely Nonrefillable or Nonreusable 
Containers should be Exempted from §156.140

	The scope of §156.140 should be more finely tuned to exempt single use
nonrefillable containers and nonreusable containers.  Such containers do
not have the attributes giving rise to the concerns that the rule seeks
to regulate because the products involved are one time use products that
can be neither refilled or reused, or are nonrefillable containers with
discrete unit doses.  For example, the containers in which single
application pet topicals in unit dose application tubes, cardboard boxes
in which pet collars and pet wipes are sold, and pesticides sold in
containers similar to plastic bait stations, such as insect strips, will
not be reused or refilled.  The more probable outcome is that the
consumer will dispose of the container, as the current label language
advises. Similarly, blister card and shaker can containers by their
nature cannot be reused; the blister card is partially destroyed when it
is opened, and an empty shaker can would have to be broken apart to
refill, but could not be securely closed again.  Pesticides sold in
water soluble bag containers and pesticides used in cattle mineral block
supplements wrapped in plastic by definition cannot be reused or
refilled because the container is destroyed as the product is used or is
destroyed before use.  In each of these examples, the label admonishes
the user not only to refrain from refilling or reusing the container,
but to follow the Storage and Disposal information on the label.  As is
true with the containers discussed in Section I above, requiring
registrants to make the changes contemplated by §156.140 will not
improve the labels, but will have the unintended consequence of
requiring a smaller font to accommodate the new language, thereby
diminishing the visibility of the current completely adequate label
language.

III.	In the Alternative, EPA should add a Waiver Provision to 	§156.140
that Mirrors §156.144(d)

EPA should only consider adding a waiver provision to §156.140 as a
distant second choice to granting the exemptions for container types
discussed above in Sections I and II.  Utilizing a waiver provision for
some of the requirements for each of these registered products in a
nonrefillable container is neither efficient nor efficacious in these
circumstances since the products already bear the prescribed language. 
Formally requesting a waiver for each registration would be overly
burdensome for the registrant to gather and submit supporting data, and
for EPA staff to evaluate and respond to each request.

However, EPA did include a waiver provision in §156.144(d), Residue
Removal Instructions, which enables EPA to modify or waive requirements
of the section on its own initiative or in response to submitted data. 
This flexibility allows EPA to tailor the regulation to fit the
circumstances as it reviews data concerning compliance with residue
removal instructions.  This flexibility is especially warranted for
nonrefillable aerosol cans and plastic bait stations and other
containers discussed above that fall under §156.140, since these
products, due to the nature of their containers, will not run afoul of
the newly mandated language, and in most instances bear more
comprehensive statements. 

IV.	EPA should make a Technical Amendment to §156.159

This Section prohibits the sale or distribution on or after August 17,
2009 of all pesticide products that do not have labels that conform to
the requirements in the sections identified, including §156.140. 
Discussions with EPA indicate that the agency will interpret this
provision as meaning that pesticide products “released for shipment”
in warehouses on or after August 17, 2009 must be relabeled prior to
shipment.  If this understanding of those discussions is correct, it is
contrary to a long standing EPA position, creates unnecessary compliance
issues for state officials, and has a substantial financial impact on
registrants.

This interpretation is contrary to the 1988 final rule language, which
states that a product “released for shipment by its producer is
considered to have been distributed or sold as defined in the Act (which
includes holding for sale).  A producer cannot reasonably assert that
two batches of registered product, identical in packaging and labeling
and located in the same area of a warehouse or producing establishment,
are different merely because one allegedly has been released for
shipment and another has not.  The Agency, in inspecting for compliance,
will assume that a product that is packaged, labeled and stored in an
area where finished products are normally stored has been released for
shipment.”  In light of this language and practice, EPA should amend
the section to read: “As of August 17, 2009, all pesticide products
released for shipment by a registrant must have labels….” (Emphasis
added).  

	The proposed amendment is consistent with PR Notice 2001-6,  Disposal
Instructions on Non-Antimicrobial Residential/Household Use Pesticide
Product Labels, dated September 7, 2001, which provided time for
registrants to make changes to labeling.  The PR Notice stated that
“pesticide products released for shipment prior to October 1, 2003
will be considered existing stocks in the channels or trade which may be
sold, used or otherwise disposed of until exhausted.”  (Emphasis
added).  EPA did not solicit comments on the change from this PR Notice
language to that in the current rule, so industry has not had an
opportunity to comment on the devastating financial consequences of
using “distributed or sold” versus the “released for shipment”
terminology and practice EPA has followed in the past. 

V.	Conclusion 

	For these reasons, CSPA urges EPA to make the following changes or
technical amendments to the final rule:

1)	Amend §156.140 to read, “For products other than
plant-incorporated protectants, aerosol cans, plastic bait stations, and
other containers that, due to the unique nature of the container cannot
be refilled or reused,….”; 

2) 	Alternatively, insert a new subpart:  “§156.140(a) (5)
Modification.  EPA may, on its own initiative or based on data submitted
by any person, modify or waive the requirements of this section or
permit or require alternative labeling statements.”; and

3) 	Make a technical amendment to §156.159 to change “distributed or
sold” to “released for shipment.”

We appreciate the agency’s willingness to consider our concerns.  Do
not hesitate to contact me with any questions.

Very truly yours,

	

Beth L. Law

Senior Regulatory Counsel

(202) 833-7307

cc:	Nancy Fitz

	Kimberly Nesci

 

