
[Federal Register: November 26, 2008 (Volume 73, Number 229)]
[Notices]               
[Page 72047-72050]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26no08-72]                         

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPP-2008-0387; FRL-8365-9]

 
Intent to Suspend Certain Pesticide Registrations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of issuance of Notice of Intent to Suspend; Suspension 
Order.

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SUMMARY: This Notice, pursuant to section 6(f)(2) of the Federal 
Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 et 
seq., announces that EPA has issued a Notice of Intent to Suspend 
pursuant to sections 3(c)(2)(B) and 4 of FIFRA. The Notice was issued 
following issuance of a Section 4 Reregistration Data Requirements 
Notice by the Agency and the failure of the registrant subject to the 
Section 4 Reregistration Data Requirements Notice to take appropriate 
steps to secure the data required to be submitted to the Agency. This 
Notice includes the text of a Notice of Intent to Suspend, absent 
specific chemical, product, or factual information. Table 1 of this 
Notice further identifies the registrant to whom the Notice of Intent 
to Suspend was issued, the date the Notice of Intent to Suspend was 
issued, the active ingredient(s) involved, and the EPA registration 
numbers and names of the registered product(s) which are affected by 
the Notice of Intent to Suspend. Moreover, Table 2 of this Notice 
identifies the basis upon which the Notice of Intent to Suspend was 
issued. Finally, matters pertaining to the timing of requests for 
hearing are specified in the Notice of Intent to Suspend and are 
governed by the deadlines specified in section 3(c)(2)(B). As required 
by section 6(f)(2), the Notice of Intent to Suspend was sent by 
certified mail, return receipt requested, to the affected registrant at 
its address of record. The Notice of Intent to Suspend described in 
this Notice was received by the registrant and the products have been 
suspended by operation of law. The Notice of Intent to Suspend has 
become an effective suspension order.

FOR FURTHER INFORMATION CONTACT: Bonnie Adler, Special Review and 
Reregistration Division, 7508P, Office of Pesticide Programs, 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460-0001; telephone number: (703) 308-8523; fax 
number: (703) 308-8005; e-mail address: adler.bonnie@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    This action is directed to the public in general. Although this 
action may be of particular interest to persons who produce or use 
pesticides, the Agency has not attempted to describe all the specific 
entities that may be affected by this action. If you have any questions 
regarding the applicability of this action to a particular entity, 
consult the person listed under FOR FURTHER INFORMATION CONTACT.

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

    1. Docket. EPA has established a docket for this action under 
docket identification (ID) number EPA-HQ-OPP-2008-0387. Publicly 
available docket materials are available either in the electronic 
docket at http://www.regulations.gov, or, if only available in hard 
copy, at the Office of Pesticide Programs (OPP) Regulatory Public 
Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal 
Dr., Arlington, VA. The hours of operation of this Docket Facility are 
from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal 
holidays. The Docket Facility telephone number is (703) 305-5805.
    2. Electronic access. You may access this Federal Register document 
electronically through the EPA Internet under theFederal Register 
listings athttp://www.epa.gov/fedrgstr.

II. Text of a Notice of Intent to Suspend

    The text of a Notice of Intent to Suspend, absent specific 
chemical, product, or factual information follows:
United States Environmental Protection Agency
Office of Prevention, Pesticides and Toxic Substances
Washington, DC 20460

Certified Mail
Return Receipt Requested

SUBJECT: Suspension of Registration of Pesticide Product(s) 
Containing ------------------for Failure to Comply with the Section 
4 Phase 5 Reregistration Eligibility Decision Data Call-In Notice

    Dear Sir/Madam:
    This letter gives you notice that the pesticide product 
registration(s) listed in Attachment I will be suspended 30 days 
from your receipt of this letter unless you take steps within that 
time to prevent this Notice from automatically becoming a final and 
effective order of suspension. The Agency's authority for suspending 
the registrations of your products is section 3(c)(2)(B) of the 
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Upon 
becoming a final and effective order of suspension, any violation of 
the order will be an unlawful act under section 12(a)(2)(J) of 
FIFRA.
    You are receiving this Notice of Intent to Suspend because you 
have failed to comply with the terms of the Phase 5 Reregistration 
Eligibility Decision Data Call-In Notice imposed pursuant to section 
4(g)(2)(B) and section 3(c)(2)(B) of FIFRA. The specific basis for 
issuance of this Notice is stated in the Explanatory Appendix 
(Attachment III) to this Notice. The affected product(s) and the 
requirement(s) which you failed to satisfy are listed and described 
in the following three attachments:
    Attachment I Suspension Report -- Product List
    Attachment II Suspension Report -- Requirement List
    Attachment III Suspension Report -- Explanatory Appendix
    The suspension of the registration of each product listed in 
Attachment I will become final unless at least one of the following 
actions is completed.
    1. You may avoid suspension under this Notice if you or another 
person adversely affected by this Notice properly request a hearing 
within 30 days of your receipt of this Notice. If you request a 
hearing, it will be conducted in accordance with the requirements of 
section 6(d) of FIFRA and the Agency's Procedural Regulations in 40 
CFR Part 164.
    Section 3(c)(2)(B), however, provides that the only allowable 
issues which may be addressed at the hearing are whether you have 
failed to take the actions which are the bases of this Notice and 
whether the Agency's decision regarding the disposition of existing 
stocks is consistent with FIFRA. Therefore, no substantive 
allegation or legal argument concerning other issues, including but 
not limited to the Agency's original decision to require the 
submission of data or other information, the need for or utility of 
any of the required data or other information or deadlines imposed, 
any allegations of errors or unfairness in any proceedings before an 
arbitrator, and the risks and benefits associated with continued 
registration of the affected product, may be considered in the 
proceeding. The Administrative Law Judge shall by order dismiss any 
objections which have no bearing on the allowable issues which may 
be considered in the proceeding.
    Section 3(c)(2)(B)(iv) of FIFRA provides that any hearing must 
be held and a determination issued within 75 days after receipt of a 
hearing request. This 75-day period may not be extended unless all 
parties in the proceeding stipulate to such an extension. If a 
hearing is properly requested, the Agency will issue a final order 
at the conclusion of the hearing governing the suspension of your 
product(s).
    A request for a hearing pursuant to this Notice must 1) include 
specific objections

[[Page 72048]]

which pertain to the allowable issues which may be heard at the 
hearing, 2) identify the registrations for which a hearing is 
requested, and 3) set forth all necessary supporting facts 
pertaining to any of the objections which you have identified in 
your request for a hearing. If a hearing is requested by any person 
other than the registrant, that person must also state specifically 
why he asserts that he would be adversely affected by the suspension 
action described in this Notice. Three copies of the request must be 
submitted to:
    Hearing Clerk, 1900
    U.S. Environmental Protection Agency
    1200 Pennsylvania Avenue, NW
    Washington, DC 20460
and an additional copy should be sent to the signatory listed below. 
The request must be received by the Hearing Clerk by the 30th day 
from your receipt of this Notice in order to be legally effective. 
The 30-day time limit is established by FIFRA and cannot be extended 
for any reason. Failure to meet the 30-day time limit will result in 
automatic suspension of your registration(s) by operation of law 
and, under such circumstances, the suspension of the registration 
for your affected product(s) will be final and effective at the 
close of business 30 days after your receipt of this Notice and will 
not be subject to further administrative review.
    The Agency's Rules of Practice at 40 CFR 164.7 forbid anyone who 
may take part in deciding this case, at any stage of the proceeding, 
from discussing the merits of the proceeding ex parte with any party 
or with any person who has been connected with the preparation or 
presentation of the proceeding as an advocate or in any 
investigative or expert capacity, or with any of their 
representatives. Accordingly, the following EPA offices, and the 
staffs thereof, are designated as judicial staff to perform the 
judicial function of EPA in any administrative hearings on this 
Notice of Intent to Suspend: the Office of the Administrative Law 
Judges, the Office of the Environmental Appeals Board, the 
Administrator, the Deputy Administrator, and the members of the 
staff in the immediate offices of the Administrator and Deputy 
Administrator. None of the persons designated as the judicial staff 
shall have any ex parte communication with trial staff or any other 
interested person not employed by EPA on the merits of any of the 
issues involved in this proceeding, without fully complying with the 
applicable regulations.
    2. You may also avoid suspension if, within 30 days of your 
receipt of this Notice, the Agency determines that you have taken 
appropriate steps to comply with the section 3(c)(2)(B) Data Call-In 
Notice. In order to avoid suspension under this option, you must 
satisfactorily comply with Attachment II, Requirement List, for each 
product by submitting all required supporting data/information 
described in Attachment II and in the Explanatory Appendix 
(Attachment III) to the following address (preferably by certified 
mail):

    Office of Pesticide Programs
    Special Review and Reregistration Division (7508P)
    U.S. Environmental Protection Agency
    1200 Pennsylvania Avenue, NW
    Washington, DC 20460
    For you to avoid automatic suspension under this Notice, the 
Agency must also determine within the applicable 30-day period that 
you have satisfied the requirements that are the bases of this 
Notice and so notify you in writing. You should submit the necessary 
data/information as quickly as possible for there to be any chance 
the Agency will be able to make the necessary determination in time 
to avoid suspension of your product(s).
    The suspension of the registration(s) of your company's 
product(s) pursuant to this Notice will be rescinded when the Agency 
determines you have complied fully with the requirements which were 
the bases of this Notice. Such compliance may only be achieved by 
submission of the data/information described in the attachments to 
the signatory below.
    Your product will remain suspended, however, until the Agency 
determines you are in compliance with the requirements which are the 
bases of this Notice and so informs you in writing.
    After the suspension becomes final and effective, the registrant 
subject to this Notice, including all supplemental registrants of 
product(s) listed in Attachment I, may not legally distribute, sell, 
use, offer for sale, hold for sale, ship, deliver for shipment, or 
receive and (having so received) deliver or offer to deliver, to any 
person, the product(s) listed in Attachment I.
    Persons other than the registrant subject to this Notice, as 
defined in the preceding sentence, may continue to distribute, sell, 
use, offer for sale, hold for sale, ship, deliver for shipment, or 
receive and (having so received) deliver or offer to deliver, to any 
person, the product(s) listed in Attachment I.
    Nothing in this Notice authorizes any person to distribute, 
sell, use, offer for sale, hold for sale, ship, deliver for 
shipment, or receive and (having so received) deliver or offer to 
deliver, to any person, the product(s) listed in Attachment I in any 
manner which would have been unlawful prior to the suspension.
    If the registration(s) for your product(s) listed in Attachment 
I are currently suspended as a result of failure to comply with 
another section 3(c)(2)(B) Data Call-In Notice or Section 4 Data 
Requirements Notice, this Notice, when it becomes a final and 
effective order of suspension, will be in addition to any existing 
suspension, i.e., all requirements which are the bases of the 
suspension must be satisfied before the registration will be 
reinstated.
    You are reminded that it is your responsibility as the basic 
registrant to notify all supplementary registered distributors of 
your basic registered product that this suspension action also 
applies to their supplementary registered products and that you may 
be held liable for violations committed by your distributors.
    If you have any questions about the requirements and procedures 
set forth in this suspension notice or in the subject section 
3(c)(2)(B) Data Call-In Notice, please contact Linda S. Propst at 
(703) 308-8165.

III. Registrant Receiving and Affected by Notices of Intent to Suspend; 
Date of Issuance; Active Ingredient and Products Affected

    The following is a list of products for which a letter of 
notification has been sent.

                                           Table 1.--List of Products
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                                 EPA Registration
      Registrant Affected             Number       Active Ingredient     Product Name          Date Issued
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The Scotts Company              538-160            MCPA               Turf Builder Plus                  4/3/08*
                                                                       2 W/S For Grass
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The Scotts Company              538-218            MCPA               Scott's Lawn Pro                   4/3/08*
                                                                       Lawn Weed
                                                                       Control Plus
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The Scotts Company              538-222            MCPA               Scott's Lawn Pro                   4/3/08*
                                                                       Weed N' Feed
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* The Notice was received by The Scotts Company on April 14, 2008, as evidenced by the signed and dated U.S.
  Postal Service return receipt. The Notice of Intent to Suspend has since become an effective order of
  suspension as of May 14, 2008, as the registrant has neither requested a hearing nor brought its affected
  registrations into compliance within the statutory time period.

IV. Basis for Issuance of Notice of Intent; Requirement List

    The Scotts Company failed to submit the following required data 
or information.

[[Page 72049]]



                                         Table 2.--List of Requirements
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 OPPTS Harmonized Guideline       Requirement Name          Test Substance              Due Date
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830.1550                               Product Identity and     TGAI, MP, EP             November 15, 2006
                                        Composition
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830.1600                               Description of           TGAI, MP, EP             November 15, 2006
                                        Materials Used to
                                        Produce the Product
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830.1620                               Description of           TGAI                     November 15, 2006
                                        Production Process
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830.1650                               Description of           MP, EP                   November 15, 2006
                                        Formulation Process
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830.1670                               Discussion of Formation  TGAI                     November 15, 2006
                                        Impurities
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830.1700                               Preliminary Analysis     TGAI                     November 15, 2006
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830.1750                               Certified Limits         TGAI, MP, EP             November 15, 2006
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830.1800                               Enforcement Analytical   TGAI, MP, EP             November 15, 2006
                                        Method
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830.6302                               Color                    TGAI, MP, EP             November 15, 2006
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830.6303                               Physical State           TGAI, MP, EP             November 15, 2006
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830.6304                               Odor                     TGAI, MP, EP             November 15, 2006
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830.6313                               Stability to Sunlight,   TGAI                     November 15, 2006
                                        Normal and Elevated
                                        Temperatures, Metals
                                        and Metal Ions
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830.6314                               Oxidation/Reduction:     MP, EP                   November 15, 2006
                                        Chemical
                                        Incompatibility
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830.6315                               Flammability/Flame       MP, EP                   November 15, 2006
                                        Extension
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830.6316                               Explodability            MP, EP                   November 15, 2006
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830.6317                               Storage Stability of     MP, EP                   November 15, 2006
                                        Product
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830.6319                               Miscibility              MP, EP                   November 15, 2006
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830.6320                               Corrosion                MP, EP                   November 15, 2006
                                        Characteristics
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830.6321                               Dielectric Breakdown     EP                       November 15, 2006
                                        Voltage
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830.7000                               pH of Water Solution or  TGAI, MP, EP             November 15, 2006
                                        Suspensions
830.7100                               Viscosity                MP, EP                   November 15, 2006
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830.7200                               Melting Point/Melting    TGAI                     November 15, 2006
                                        Range (only required
                                        if product is a solid)
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830.7220                               Boiling Point/Boiling    TGAI                     November 15, 2006
                                        Range (only required
                                        if product is a
                                        liquid)
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830.7300                               Density/Relative         TGAI, MP, EP             November 15, 2006
                                        Density
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870.1100                               Acute Oral Toxicity      TGAI, MP, EP             November 15, 2006
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870.1200                               Acute Dermal Toxicity    TGAI, MP, EP             November 15, 2006
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870.1300                               Acute Inhalation         TGAI, MP, EP             November 15, 2006
                                        Toxicity
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870.2400                               Acute Eye Irritation     TGAI, MP, EP             November 15, 2006
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870.2500                               Acute Dermal Irritation  TGAI, MP, EP             November 15, 2006
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870.2600                               Skin Sensitization       TGAI, MP, EP             November 15, 2006
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EP = End Use Product
MP = Manufacturing Product
TGAI = Technical Grade Active Ingredient


[[Page 72050]]

V. Attachment III Suspension Report-Explanatory Appendix

    A discussion of the basis for the Notices of Intent to Suspend 
follows.
    On March 3, 2006, the Agency issued the Phase 5 Reregistration 
Eligibility Decision (RED) Data Call-In Notice pursuant to sections 
4(g)(2)(B) of FIFRA which required registrants of products containing 
MCPA used as an active ingredient to develop and submit certain data. 
The data/information was determined to be necessary to satisfy the 
reregistration requirements of section 4(g) of FIFRA. Failure to comply 
with the requirements of a Phase 5 Reregistration Eligibility Decision 
Product Data Call-In Notice (PDCI) is a basis for suspension under 
section 3(c)(2)(B) of FIFRA.
    The Scotts Company (Scotts) received the MCPA RED on March 6, 2006 
(as evidenced by the signed and dated U.S. Postal Service domestic 
return receipt card). They did not respond to the PDCI with the 
required 90-day PDCI response for any of the three products, nor with 
the required 8-month responses with the required data. A letter from 
Linda Propst to Sheila Kendricks of Scotts was sent on November 14, 
2006, which indicated that the Agency had not received the required 
data by the established due dates. It also stated that if data were not 
submitted within 15 days, a Notice of Intent to Suspend would be 
initiated. The return receipt for that letter was postmarked on 
November 20, 2006. On March 20, 2007, a second letter from Linda Propst 
to Sheila Kendricks of Scotts was sent indicating that data had still 
not been received and a Notice of Intent to Suspend will be forthcoming 
if data were not received in 10 days. The return receipt for that 
letter was postmarked on March 27, 2007. That letter was our second and 
final attempt to obtain the necessary documentation to support these 
products.
    Since neither the required 90-day nor 8-month responses have been 
submitted for the MCPA PDCI, this Notice of Intent to Suspend is being 
issued.

VI. Conclusions

    EPA issued a Notice of Intent to Suspend on the date indicated and 
the Notice of Intent to Suspend was received by the registrant on April 
14, 2008. The Notice of Intent to Suspend became an effective 
suspension order on May 14, 2008. Any further information regarding 
this Notice or the suspension order may be obtained from the contact 
person noted above.

List of Subjects

    Environmental protection.


    Dated: November 13, 2008.
Steven Bradbury
Director, Special Review and Reregistration Division, Office of 
Pesticide Programs.

[FR Doc. E8-28128 Filed 11-25-08; 8:45 am]

BILLING CODE 6560-50-S
