
[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
