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

Subject: Pesticide Management and Disposal; 

Standards for Pesticide Containers and Containment Final Rule

	

Dear Mr. Diamond:

RISE (Responsible Industry for a Sound Environment)®, on behalf of its
member companies, would like to highlight a serious problem with the
current language of the subject final rule, which is inappropriate for
many of the container types common in the specialty pesticide market. 
We request that the Agency reconsider our previous comments as well as
those in this letter, and amend this language as soon as possible

 

Statement of Interest

RISE is a national not-for-profit trade association representing over
220 producers and suppliers of specialty pesticide and fertilizer
products to both the professional and consumer (do-it-yourself) markets.
 Established in 1991, RISE serves as a resource and provides current and
accurate information on issues and research affecting the specialty
pesticide and fertilizer industries.  RISE member companies manufacture
over 90 percent of domestically produced conventional specialty
pesticides utilized in the United States, including consumer household,
lawn and garden, professional pest control, golf course and other
professional turf and lawn care, greenhouse and nursery, mosquito
repellents and control products.  Pesticide labels supplied and used in
these market segments are greatly affected by the Container and
Containment rule.

Comments on the Final Rule

Section 156.159 of the rules states that “As of August 17, 2009, all
pesticides products distributed or sold by a registrant must have labels
that comply with §156.10(d)(7), 156.10(f), 156.10(i)(2)(ix), 156.140,
156.144 and 156.156.”

We have been told by Agency personnel this section means our members can
not sell or distribute products with non-conforming labels on or after
August 17, 2009.  Further, we are told by Agency personnel this section
means any pesticide products “released for shipment” in our
warehouses on or after August 17, 2009 must be relabeled prior to
shipment.  This interpretation of the rule reverses a long held Agency
position, creates unnecessary compliance issues for state enforcement
officials and has significant financial impacts to registrants.

According to Federal Register Notice 40 CFR Parts 152, 153, 156, 158 and
162 Pesticide Registration Procedure; Pesticide Data Requirements Final
Rule (Vol.53, No.86, page 15953, May 4, 1988) EPA stated…“A product
that has been 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 (emphasis added).”

Therefore, to be consistent, and avoid a compliance issue for both
registrants and state enforcement agencies; the Agency could simply
amend the language of the final rule via technical correction and
provide appropriate guidance in the forthcoming PR Notice.  We would
suggest the following “All pesticides products released for shipment
by a registrant after August 17, 2009, must have labels…(emphasis
added).” 

This amendment would be consistent with the Agency’s label change
directive in PR Notice 2001-6 (page 7) which states “To give
sufficient time for pesticide products in the channels of trade to be
distributed or sold to users or otherwise disposed of, the Agency is
providing a period of time for companies to make changes to their
labeling, if necessary.   Therefore, pesticide products released for
shipment prior to October 1, 2003 will be considered existing stocks in
the channels of trade which may be sold, used or otherwise disposed of
until exhausted emphasis added).”  Once again the Agency uses the term
“released for shipment,” which will allow finished products already
in inventory to be sold without the need for relabeling.

When EPA reopened the comment period with Federal Register Notice 40
CFR Parts 156 and 165 Standards for Pesticide Containers and
Containment; Proposed rule; partial reopening of comment period (Vol.
69, No. 125, pages 39392-39394) back in 2004, the Agency never solicited
comments on the devastating financial impact the words “distributed or
sold” have on the specialty industry, as opposed to standard EPA
terminology “released for shipment.”

Due to the impracticality of overlabeling, the only feasible recourse
for registrants would be disposal of non-compliant product.  This
disposal will result in unnecessary negative impact to the environment
in order to comply with a rule that is not addressing an imminent
hazard.

We believe the Agency can resolve this issue quickly by amending the
final rule via a technical correction and including a detailed
explanation of this issue in the forthcoming PR Notice. 

As most pesticide labels already have the other language under Storage
and Disposal, only four new words [§156.140(a)(1) "Nonrefillable
container" and §156.140(a)(2)(i) "…or refill”] are required to be
added to existing labels, No unreasonable costs should be incurred by
registrants to comply with this rule and existing inventories should be
allowed to be sold without relabeling.

"Non-refillable container" is obvious and redundant on certain types of
packaging common in the specialty pesticide marketplace that cannot be
refilled; it makes no sense and presents a significant financial burden
for registrants to have to add these words to their labels. Therefore,
we would like to reiterate our request for an exemption from the
labeling requirements at §156.140(a)(1) and §156.140(a)(2)(i) for the
following package types:

1)  Flexible packaging (paper or plastic bags): These package types are
the predominant packaging for granular products used on professional and
consumer turf and landscapes areas.  The majority of these packages are
made of plastic and are typically 3-5 mil in thickness. Most of these
packages also already meet the PG III requirements. 

a)  Unlike rigid plastic containers, these packages do not lend
themselves to refilling and re-use.  These packages are discarded
according to the Disposal instructions that were updated per PRN 2001-6.

b)  the Disposal Statement on these packages already contains a
statement that they are not reusable (i.e., “Do not reuse this
container.  Place in trash or offer for recycling if available”) per
PRN 2001-6,.  An additional statement would be redundant.

2) Aerosol Cans:  Refilling an aerosol can is physically impossible. 
Per PRN 2001-6,  the Disposal Statement on these containers already
contains the following statements “Do not Puncture or Incinerate! If
empty: Place in trash or offer for recycling.”  The newly mandated
language will not improve these labels and additional text will require
a smaller font size on an already-small label.  In addition, requiring
redundant wording is contrary to the recommendations of the Agency's
Consumer Labeling Initiative, which called for larger font size,
simplified labels, and "no needless words".  It would also require
printing plate changes for every aerosol pesticide can in commerce at a
very significant cost with no benefit.

3) Plastic Bait Stations.  In order to refill a bait station, the
consumer would have to physically destroy the container.  The Disposal
Statement on these containers already contains the following statement
“Do not reuse this container.”  The newly mandated language will not
improve these labels and additional text will require a smaller font
size on an already tiny label.

4) Other Miscellaneous Non-refillable Containers such as pre-filled
syringes, impregnated insect strips, sealed shaker cans, pheromone
lures, repellent wipes in foil packets, citronella candles, etc.  Again,
per PRN 2001-6, these product labels already state "Do not reuse this
container".  Adding redundant words with no benefit would result in
"unreasonable costs", contrary to the Agency's intent.

We request the Agency consider addressing this issue in its upcoming
guidance documents by either exempting these package types or making the
"non-refillable container" statement optional for these package types.
While the final rule does permit registrants to seek waivers for some of
the requirements, it would be overly burdensome to registrants to
formally request waivers, and for Agency personnel to review and respond
to each waiver request, for the thousands of registrations currently
utilizing non-refillable packaging.  

If you have any questions please do not hesitate to contact me.

Sincerely,

James M. Skillen

James M. Skillen

Director of Science and Regulatory Affairs

202 872-3845	

