[Federal Register: June 11, 2008 (Volume 73, Number 113)]
[Proposed Rules]
[Page 33035-33048]
[DOCID:fr11jn08-22]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 152, 156 and 165

[EPA-HQ-OPP-2005-0327; FRL-8358-1]
RIN A2070-AJ37

Pesticide Management and Disposal; Standards for Pesticide
Containers and Containment: Proposed Amendments

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to amend the container and containment
regulations to provide a 1-year extension of the labeling compliance
date from August 17, 2009 to August 17, 2010; to change the phrase
``sold or distributed'' to ``released for shipment'' as associated with
all of the compliance dates; to provide for exceptions to the language
requirements for some specific nonrefillable packages; to allow for
waivers of certain label requirements for other refillable and
nonrefillable containers on a case-by-case basis; and to correct
typographical and other minor errors. In addition, the Agency is
proposing to amend the definitions in 40 CFR part 152 to establish a
definition of ``released for shipment.'' These changes are being
proposed to address concerns raised by stakeholders and as a result of
further Agency consideration.

DATES: Comments must be received on or before July 11, 2008.

ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPP-2005-0327, by one of the following methods:
      Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
     Mail: Office of Pesticide Programs (OPP) Regulatory Public
Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460-0001.
      Delivery: OPP Regulatory Public Docket (7502P),
Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South
Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only
accepted during the Docket's normal hours of operation (8:30 a.m. to 4
p.m., Monday through Friday, excluding legal holidays). Special
arrangements should be made for deliveries of boxed information. The
Docket Facility telephone number is<PHONE_NUMBER>.
    Instructions: Direct your comments to docket ID number EPA-HQ-OPP-
2005-0327. EPA's policy is that all comments received will be included
in the docket without change and may be made available on-line at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through regulations.gov or e-
mail. The regulations.gov website is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through regulations.gov,
your e-mail address will be automatically captured and included as part
of the comment that is placed in the docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the docket index
available in regulations.gov. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other

material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either 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 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<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Nancy Fitz, Field and External Affairs
Division (FEAD) (7506P), Office of Pesticide Programs (OPP),
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460-0001; telephone number:<PHONE_NUMBER>; fax
number:<PHONE_NUMBER>; e-mail address<EMAIL_ADDRESS>or Kimberly
Nesci, FEAD (7506P), OPP, Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
703-308-8059; fax number:<PHONE_NUMBER>; e-mail address:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. 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), 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.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through
regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
    2. Tips for preparing your comments. When submitting comments,
remember to:
    i. Identify the document by docket ID number and other identifying
information (subject heading, Federal Register date and page number).
    ii. Follow directions. The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
    vi. Provide specific examples to illustrate your concerns and
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period
deadline identified.

II. Background

A. What Action is the Agency Taking?

    On August 16, 2006, EPA promulgated a final rule titled ``Pesticide
Management and Disposal; Standards for Pesticide Containers and
Containment'' (71 FR 47330) (Container and Containment Rule;
establishing 40 CFR part 165, and amending 40 CFR part 156). The
Container and Containment Rule established regulations for the safe
storage and disposal of pesticides, pursuant to the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA), to reduce the
likelihood of unreasonable adverse effects on human health and the
environment. 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; and requirements for
containment of stationary pesticide containers and procedures for
container refilling operations. The rule required that all pesticide
products distributed or sold by a registrant as of August 17, 2009,
bear labels that comply with the rule's label language requirements (40
CFR 156.159).
    EPA is proposing to amend the container and containment regulations
to provide a 1-year extension of the labeling compliance date (from
August 17, 2009 to August 17, 2010); to change the phrase ``sold or
distributed'' to ``released for shipment'' as associated with all of
the compliance dates; to provide for exceptions to the language
requirements for some specific nonrefillable packages; to allow for
waivers of certain label requirements for other refillable and
nonrefillable containers on a case-by-case basis; and to correct
typographical and other minor errors. In addition, the Agency is
proposing to establish a definition of ``released for shipment.'' These
changes are being proposed in response to subsequent requests from
stakeholders and based on further Agency consideration.

B. Statutory Authority

    These proposed 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. Proposed Changes to 40 CFR Part 152--Pesticide Registration and
Classification Procedures

    The Agency is proposing to amend Sec.  152.3 to add a new
definition for ``released for shipment.'' As discussed in subsequent
units of this proposed rule, the Agency is proposing to use this term
in Sec.  156.159, Sec. 165.20, Sec. 165.40, and Sec.  165.60. The
Agency considered putting definitions for this term in both parts 156
and 165, but notes that because the term has also been used in Sec.
167.3 and in various guidance documents, a generally applicable
definition may be appropriate. The Agency is asking for comments on
both the proposed definition itself and on the placement of the
definition in the regulations. The proposed definition is 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).

    The proposed definition is consistent with EPA's previously
published definitions of ``released for shipment''; the most recent of
these appears in PR Notice 93-11, Supplement C (August 13, 1993), and
in a 1984 proposed rule (49 FR 37916, September 26, 1984). The first
sentence is essentially that of the 1984 proposed rule, which focuses
on actions manifesting the producer's intent to introduce a product
into commerce. The second sentence would make it clear that products
already in the channels of trade are all ``released for shipment,'' and
that relabeled or reworked products must be released a second time.

IV. Proposed Changes to 40 CFR Part 156--Labeling Requirements for
Pesticides and Devices

    The Container and Containment Rule added a new subpart H titled
``Container Labeling'' to 40 CFR part 156 that requires the following
information or statements on certain pesticide product labels:
     A statement identifying the container as nonrefillable or
refillable.
     On nonrefillable containers, statements providing basic
instructions for managing the container and a batch code.
     Cleaning instructions for some nonrefillable containers.
     Cleaning instructions for refillable containers at the end
of their useful lives.
    In addition, the Container and Containment Rule modified several
existing requirements in 40 CFR 156.10, including allowing for blank
spaces on the labels of some refillable containers for the net contents
and EPA establishment number and adding a reference to the container
and containment regulations in subpart H and 40 CFR part 156.
    In this proposed rule, the Agency is proposing to amend the
labeling requirements in 40 CFR part 156 subpart H.

A. Background

    After promulgation of the Container and Containment Rule, the
Agency was contacted by stakeholders with concerns about the compliance
date associated with the labeling requirements; the implications of the
phrase ``sold or distributed'' for the handling of packaged pesticide
products that may be returned unused to a registrant at the end of a
use season; and the scope of pesticide products and containers for
which some of the labeling statements are being required.
    1. Compliance date. Some registrants have asserted that they do not
have sufficient time to change all labels for final packaging of
pesticide products in time to meet the August 17, 2009, compliance
date. These time constraints are due to the following factors:
    i. Almost all pesticide product registrations are involved.
Generally, changes to product labels are done on a product by product
basis or only for products containing one active ingredient. In the
case of changes required by the pesticide container and containment
regulations, essentially all product registrations are involved
(approaching 17,000 individual products).
    ii. Often registrants sell multiple individual package sizes (often
referred to as ``SKUs'') under one product registration number. As a
result of multiple SKUs being associated with individual registrations,
the changes will affect many more final printed packages than
individual registrations.
    iii. The labels for certain types of seasonal products and consumer
specialty products are unique and expensive to print. For example, for
some pool chemicals, labeling is printed directly on buckets that will
contain the pesticide product. Each label plate needed to print the
buckets is expensive to produce, as is each individual printed bucket.
    iv. The production of many consumer specialty products (pool
chemicals, lawn chemicals) is on an annual and seasonal basis;
therefore, for some products, there is only one opportunity each year
to print new product labels.
    v. Many registrants had delayed submitting revised product labels
that include the new requirements until the Agency provided further
guidance to explain the conditions under which registrants might submit
revised labels under an expedited review process (that is, a
notification process). Although this guidance has since published
(Pesticide Registration (PR) Notice 2007-4, published on November 7,
2007); the 15 months that passed between the publication of the August
16, 2006, final rule and the publication of the PR Notice may have
contributed to delays in amending labels.
    2. Labeling of returned products. Registrants have also expressed
concerns about how the new container and containment labeling
requirements would apply to products that are returned to the
manufacturer. The container and containment regulations provide that
products distributed or sold by a registrant after August 17, 2009,
must bear the new labeling statements. According to registrants,
contracts with many consumer retail establishments require that
seasonal consumer products remaining on the shelves at the end of the
use season be returned to the manufacturer. As a result, any products
bearing old labels and originally distributed in spring 2009 and that
did not sell might be returned to registrants in the fall of 2009 after
the August 17, 2009, compliance date. Subsequent sale or distribution
of the returned products would not be in compliance with the container
and containment regulations unless the products were relabeled.
Registrants have indicated that relabeling of the returned products
would be especially costly and difficult and that the products may
require repackaging that could result in unintentional exposures to the
pesticide; therefore, registrants would be more likely to dispose of
returned product bearing old labeling rather than relabel or repackage
the product. While the Agency believes that the label language required
by the

container and containment regulations is important, the expected
decrease in risk from improving handling practices for the relatively
small number of returned containers is likely not significant enough to
justify the cost of expensive relabeling, repackaging or disposal of
product bearing old labels, and the potential exposure from repackaging
or disposal of product. Accordingly, EPA proposes to change the phrase
``distributed or sold'' in Sec.  156.159 to ``released for shipment.''
EPA considers a product 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). Therefore, any products returned at the end of a use
season could be re-distributed or sold and remain in compliance with
the container and containment regulations.
    3. Scope of products and flexibility of requirements. Some
registrants are also concerned about the scope of products subject to
the new container-type statements (see 40 CFR 156.140). The container
and containment regulations require that either the statement
``refillable container'' or ``nonrefillable container'' be placed on
the label or container of all pesticide products except plant-
incorporated protectants. Registrants are requesting that the Agency
exempt inherently or obviously nonrefillable packaging types from this
requirement. These registrants believe that it is unduly burdensome and
not appropriate to require the phrase ``Nonrefillable container. Do not
reuse or refill'' on obviously nonrefillable packages. While the
additional language will provide extra precautions for containers that
physically could be reused or refilled, registrants maintain that these
additional precautions are not necessary for containers that are
inherently nonrefillable because existing labeling generally includes a
phrase such as ``Do not reuse this container,'' and the container and
containment regulations do not change this phrase. Examples of some
types of containers that registrants consider obviously nonrefillable
are aerosol spray cans, bait stations, and foil pouches for water
soluble packets.
    In addition, the Agency has recognized several additional types of
registered pesticides for which it makes sense to reconsider the
labeling statements described above. For example, some pesticides are
not sold in containers, such as impregnated repellent clothing
articles. In this case, the labeling consists of a clothing tag, and it
would serve no purpose for the tag to include the phrase
``nonrefillable container.''
    Finally, the Agency originally intended for the waiver/modification
statement included in the residue removal section of the container and
containment regulations (40 CFR 156.144(d)) to apply to all of the new
label language requirements. However, as written, the regulations do
not allow for waivers from the ``nonrefillable container'' or
``refillable container'' language.
    EPA is proposing several amendments to the container and
containment regulations to address these issues and to correct
typographical and other errors, as follows:
     EPA proposes to change the compliance date associated with
the container and containment labeling requirements to August 17, 2010.
     EPA proposes to change the phrase ``distributed or sold''
to ``released for shipment'' as associated with the labeling compliance
date. In addition, EPA proposes to make a similar change to the
language associated with the compliance date for the container and
repackaging requirements as well.
     EPA proposes to exempt certain container types from the
container type labeling statements required by the container and
containment regulations (40 CFR 156.140) and to allow the Agency to
approve modifications to that language on a case-by-case basis. The
specific container types that EPA proposes to exempt are described in
detail in Unit III.C. of this proposed rule.
     EPA proposes to correct typographical and other minor
errors in the container and containment regulations as described in
detail in Unit V of this proposed rule.

B. Addition of Definitions Section to Subpart A

    In this proposed rule, the Agency is proposing to add a new
definitions section (Sec.  156.3) to part 156 and to include an
introductory paragraph in the definitions section noting that the terms
used in part 156 have the same meaning as in the Act and 40 CFR part
152. This paragraph simply refers readers to the definitions in the Act
and in part 152. In addition, the Agency is proposing to add to Sec.
156.3 a definition for the term ``dilutable,'' since this term is used
in part 156.

C. Changes to Subpart H--Container Labeling

    1. Identification of container types. In this proposed rule, the
Agency is proposing to exempt certain nonrefillable container types
from the ``identification of container type'' requirements described in
40 CFR 156.140. The container types that EPA proposes to exempt are
listed in proposed Sec.  156.140(a)(5) and are as follows:
     Aerosol cans.
     Nonrefillable caulking tubes and other nonrefillable
squeezable tube containers for paste, gel, or other similar formulas
(e.g., crack and crevice application devices, unit dose application
tubes).
     Foil packets for water soluble packaging, repellent wipes,
and other single-use products.
     Tamper-resistant bait stations.
     Tamper-resistant cages for repellent or trapping strips.
     Packaging for pet collars.
     One-time use semiochemical dispersion devices.
     Any packaging that is destroyed by the use of the product
contained therein.
     Any packaging that would be destroyed if reuse of the
container were attempted (for example, bacteriostatic water filter
cartridges, blister card packaging, etc.).
    EPA proposes to exempt these container types from the requirement
to include a statement identifying the container as a nonrefillable
container in Sec.  156.140(a)(1) and the requirement to include a reuse
statement in Sec.  156.140(a)(2). These sections of the rule require
pesticide labels to include the phrase ``Nonrefillable container. Do
not reuse or refill this container'' or one of the other statements
about reuse in Sec.  156.140(a)(2). Currently, many labels already
include the statement ``Do not reuse this container.''
    EPA considers the container types listed above to be inherently
nonrefillable because, after use of the pesticide, they do not appear
to offer any practical use as containers. For most containers, the
container type and reuse statements provide additional precautions and
useful information; however, these precautions and additional
information are not necessary for containers that are either highly
unlikely or physically impossible to be reused or refilled. In
addition, the majority of pesticide labels already include a phrase
such as ``Do not reuse this container'' to prohibit any attempted
reuse.
    Registrants also requested exemptions for bags (flexible packaging)
and

syringes. EPA has not proposed an exemption for flexible packaging and
syringes because the Agency believes it is likely that persons might
consider these to be useful as containers or applicators for pesticides
or other materials after initial use. The Agency believes that the
potential for adverse effects resulting from refill and/or reuse of
these containers is greater than the burdens associated with labeling
these containers as nonrefillable containers and expressly prohibiting
reuse or refill of the containers.
    EPA requests comments on the proposed approach for exempting
certain pesticide container types from the requirement to include a
statement identifying the container as a nonrefillable container in
Sec.  156.140(a)(1) and the requirement to include a reuse statement in
Sec.  156.140(a)(2). In particular, EPA requests comments regarding
criteria that could be used to determine whether particular containers
should be exempt; the types of containers that are included in the
exemption; and whether other containers should also be exempted. This
may include any additional information on flexible packaging and
syringes that might cause the Agency to reconsider those types of
containers for exemption.
    EPA is proposing to exempt these container designs only from the
statement identifying the container as a nonrefillable container in
Sec.  156.140(a)(1) and the requirement to include a reuse statement in
Sec.  156.140(a)(2). These containers would still be required to bear a
recycling/reconditioning statement per Sec.  156.140(a)(3). EPA is not
proposing to automatically exempt these container types from the
requirement to have a statement about recycling/reconditioning because
the Agency wants to facilitate recycling wherever it is feasible. In
addition, EPA believes that most labels already comply with that
requirement because they include a statement about recycling. EPA
requests comments on this approach and specifically about whether
container types that are exempt from Sec.  156.140(a)(1) and Sec.
156.140(a)(2) should also be exempt from Sec.  156.140(a)(3).
    The Agency is also proposing to amend Sec.  156.140 to add a new
paragraph (c) that would allow EPA to modify or waive the label
statements required by Sec.  156.140. The Agency originally intended
for the waiver/modification statement included in the residue removal
section (40 CFR 156.144(d)) to apply to all label language. However, as
written, the regulations do not allow for exemptions from the
``nonrefillable container'' or ``refillable container'' language. The
Agency is proposing to allow modifications or waivers of the required
language so that the Agency can determine on a case-by-case basis
whether the requirements for the nonrefillable container, reuse,
recycling/reconditioning and refillable container label statements are
appropriate.
    There is a trade-off to exempting container types in the
regulations and dealing with registrant-requested changes on a case-by-
case basis through the waiver/modification process. Dealing with
registrant waiver/modification changes on a case-by-case basis is
flexible and can account for future container developments and non-
traditional container types for which the required label statements may
not be appropriate. However, the waiver/modification process is time-
and labor-intensive for both the Agency and registrants. EPA requests
comments on whether the proposed approach to specifically exempt
certain container types and to allow waivers/modifications results in
an appropriate balance.
    The last substantive change that the Agency is proposing to make to
Sec.  156.140 is a change to add paragraph (d), which would exempt
pesticide-impregnated objects that are registered as pesticides and not
packaged in a container from all of the requirements in Sec.  156.140.
These include such products as repellent-impregnated articles of
clothing and other repellent-impregnated fabric articles. It would not
be appropriate to refer to the pesticide container on the labels for
these types of products if no container exists. This is an unusual
situation; however, the Agency has decided to propose to include this
exemption as a general statement to eliminate the need for the
individual submission and review of exemption requests for these types
of products in the future.
    In addition, EPA is proposing minor revisions to the introductory
paragraphs in Sec.  156.140(a) and Sec.  156.140(b) to reference the
exemptions in proposed Sec.  156.140(a)(5) and Sec.  156.140(d) and the
proposed waiver/modification provision in Sec.  156.140(c).
    2. Changes to residue removal instructions. The Agency is proposing
to add Sec.  156.144(e) to exempt compressed gas cylinders from the
requirement to provide residue removal instructions. The Agency is
proposing this exemption because it may not be safe or appropriate for
end users to attempt to clean compressed gas cylinders. Generally, gas
cylinders bear label language specific to the use of a compressed
cylinder (see PR Notice 84-5), and EPA had not intended the Container
and Containment Rule to supersede any existing precautionary language
for gas cylinders. In the 2006 final rule, EPA exempted containers that
hold pesticides that are gaseous at atmospheric temperature and
pressure from the refillable container and repackaging requirements in
40 CFR part 165. The proposed exemption in this proposed rule would
make the label language requirements of Sec.  156.144 consistent with
40 CFR part 165.
    In addition, the Agency is proposing to add Sec.  156.144(f) to
exempt from the requirements of Sec.  156.144 pesticide-impregnated
objects that are registered as pesticides and not packaged in a
container. These include such products as repellent-impregnated
articles of clothing and other repellent-impregnated fabric articles,
such as tents or mosquito netting. In the absence of a container, there
is no need for residue removal instructions. The Agency proposes to
include this exemption to eliminate the need for the individual
submission and review of exemption requests for these products in the
future.
    In Sec.  156.144(g), the Agency is proposing that pesticide product
labels do not have to bear residue removal instructions applicable to
transport vehicles. Transport vehicles such as rail cars and other
cargo-carrying vehicles are classified as containers in the container
and containment regulations, but are exempt from the refillable
container and repackaging regulations in 40 CFR part 165. The Agency is
proposing that pesticide product labels do not have to bear residue
removal instructions applicable to transport vehicles because the
residue removal label language in the container and containment
regulations is not tailored to the unique nature of transport vehicle
containers. This change will make the residue removal label language
requirements consistent with the refillable container and repackaging
requirements, with regard to transport vehicles.
    Finally, EPA is proposing a minor revision to change Sec.
156.144(a) to reference the proposed exemptions in Sec.  156.144(e),
(f), and (g).
    3. Changes to compliance date. The Agency is proposing to extend
the compliance date associated with the labeling requirements of part
156, subpart H, (Sec.  156.159) from August 17, 2009, to August 17,
2010. This change will allow additional time for registrants to change
all labels for final packaging for all registered products and SKUs and

remain in compliance with the container and containment regulations.
The Agency is maintaining August 17 as the compliance date for
consistency with the other compliance dates in the container and
containment regulations. EPA believes that maintaining August 16 or 17
of varying years as a compliance date for all the different
requirements in the container and containment regulations will
facilitate compliance by the regulated community. EPA requests comments
on the proposed compliance date for the part 156, subpart H, label
requirements and specifically whether there is any advantage to
extending the date a few additional months based on the typical
schedule and activities involved with the production, distribution and
sale of pesticides.
    In addition, the Agency is proposing to change the phrase
``distributed or sold'' to ``released for shipment,'' as associated
with the compliance date. This change will allow pesticide products
that were initially distributed or sold to retailers before the
compliance date, but which may be returned unused to the producer at
the end of a use season, to be distributed or sold the following season
without relabeling. EPA believes the number of containers which would
be affected by this change is relatively small, and as a result, EPA
expects relabeling would involve both high per-unit costs and low
benefits. This change is consistent with language used by the Agency
for other situations where it seeks label changes. In addition, this
change is consistent with the decision in the Container and Containment
Rule to not finalize a 5-year channels of trade provision. The Agency
decided not to include a 5-year channels of trade provision to minimize
the disruption and burden of implementing this rule and because the
Agency does not believe that current products and containers pose
enough hazard to justify the costs of recalling them from retailers or
distributors (71 FR 47356).

V. Proposed Changes to 40 CFR Part 165--Pesticide Management and
Disposal

A. Changes to Definitions in Subpart A

    The Agency is proposing some changes to the definitions in Sec.
165.3. In particular, the Agency is proposing to include an
introductory paragraph to state that the terms used in this part have
the same meaning as the terms used in the Act and in 40 CFR part 152.
In addition, the Agency is proposing to revise two definitions, add
three new definitions, and delete three definitions.
    The Agency is proposing to change the definition of ``agricultural
pesticide'' to ``...any product labeled for use in or on a farm,
forest, nursery, or greenhouse.'' This change is being proposed in
order to be consistent with the definition of ``agricultural
establishment'' in the Worker Protection Standard (WPS) at 40 CFR
170.3. EPA believes that using this definition will facilitate
compliance with and understanding of the pesticide container and
containment regulations because the definition of agricultural
establishment in the WPS has a long history and is well-understood.
Introducing a new definition of ``agricultural pesticide'' that does
not conform exactly to the definition of ``agricultural establishment''
could cause unnecessary confusion. The Agency does not believe that
changing the definition of ``agricultural pesticide'' substantially
changes the scope of the pesticide container and containment
regulations, but requests comment on the potential impacts of revising
the definition of agricultural pesticide.
    The Agency is proposing to delete the definition of ``flowable
concentrate'' and to add a new definition for the term ``suspension
concentrate,'' as follows: ``...a stable suspension of active
ingredients in a liquid intended for dilution with water before use.''
EPA is making these changes based on input from the registrants that
``suspension concentrate'' is the term currently used in formulation
chemistry to describe the pesticide formulations that EPA originally
described with the term ``flowable concentrate.'' The Agency is also
changing references to ``flowable concentrate'' to ``suspension
concentrate'' in Sec.  165.25(f)(2) and Sec.  165.27(b)(5).
    The Agency is proposing to revise the definition of ``pesticide
compatible'' as applied to containment to delete ``secondary'' from the
two references to ``secondary containment'' and to change the word
``materials'' to ``substances,'' as applied to the substances being
contained. ``Secondary'' is misleading in this definition because the
compatibility requirement applies to both secondary containment units
and containment pads. The change from ``materials'' to ``substances''
is simply editorial since ``materials'' is also used in the phrase
``containment construction materials.''
    The Agency is proposing to add a definition for the term
``capacity'' since this term is used in part 165 to make clear that the
container capacities specified refer to the rated capacity of the
container (also known as the nominal or design capacity). In order to
allow space for thermal expansion, containers typically hold a volume
somewhat greater than the rated capacity. The rated capacity of a
container is generally readily apparent, and actual capacity generally
is not. This makes rated capacity a more useful tool for distinguishing
containers for purposes of the regulations. While EPA did specify rated
capacity in Sec.  165.65(d)(4) and Sec.  165.70(e)(4), it did not do so
consistently throughout part 165. The proposed revision would confirm
that all references to container capacity mean rated capacity.
    The Agency is proposing to add to Sec.  165.3 a definition for the
term ``dilutable'' since this term is used in part 165. This term is
defined in Sec.  165.25(f)(1), so the same definition should also
appear in Sec.  165.3.
    The Agency is proposing to remove the definitions of ``pressure
rinse'' and ``triple rinse'' because these terms are not used in part
165.

B. Changes to Subpart B--Nonrefillable Container Standards: Container
Design And Residue Removal

    1. General provisions. The Agency is proposing to change the
compliance date language in Sec.  165.20(c) to be consistent with the
proposed compliance date language in revised Sec.  156.159 by using the
phrase ``released for shipment'' instead of ``distributed or sold.''
This change will allow product that was initially distributed or sold
to retailers before the compliance date, but which may be returned
unused to the producer at the end of a use season, to be sold or
distributed the following season without changing the container. EPA
believes the number of containers that would be affected by this change
is relatively small and, as a result, EPA expects changing the
container would involve both high per-unit costs and low benefits. This
change is consistent with language used by the Agency for situations
where it seeks label changes.
    In addition, the Agency is proposing an editorial change to Sec.
165.20(c) to change ``...that complies with these regulations'' to
``...that complies with the regulations of this subpart'' to be more
precise.
    2. Changes to scope of pesticide products. The Agency is proposing
to make an editorial change to the heading in Sec.  165.23(d) to remove
quotes from the term antimicrobial.
    3. Changes to nonrefillable container standards. The Agency is
proposing to change Sec.  165.25(a) and Sec.  165.25(b) to clarify that
the requirement to comply with the adopted Department of Transportation
(DOT) standards referenced therein only applies to portable containers,
which was the

Agency's intent in the August 16, 2006 rule.
    The Agency is also proposing to clarify that the DOT regulations
which are adopted in Sec.  165.25 apply to the pesticide product as it
is packaged for transportation in commerce. This change is being
proposed to be consistent with the DOT regulations in terms of the form
of the packaging that is subject to the adopted DOT regulations. The
other nonrefillable container requirements in Sec.  165.25, including
the requirements for closures, dispensing capability and residue
removal, apply to the container used to enclose a pesticide, i.e., the
receptacle that comes into direct contact with the pesticide. However,
the DOT hazardous materials regulations apply to a package as it is
prepared for transportation in commerce. For example, 2.5-gallon jugs
are often shipped for transportation in commerce as pairs of jugs in a
cardboard box. When the jugs contain DOT hazardous materials, it is the
boxed package that would have to comply with the DOT regulations. EPA
proposes to amend Sec.  165.25 to clarify that it is the product as
packaged for transportation in commerce that must comply with those DOT
regulations that are adopted in Sec.  165.25 for pesticides that are
not hazardous materials. On the other hand, the other Sec.  165.25
requirements - for closures, dispensing capability and residue removal
- would apply to the immediate pesticide container (e.g., the 2.5-
gallon jug itself). EPA requests comments on whether the proposed
change accomplishes the goal of clarifying that the adopted DOT
requirements in Sec.  165.25(a) are intended to apply to the container
or packaging as it is transported in commerce. The Agency also requests
suggestions for alternative revisions to Sec.  165.25(a) that would
provide that clarification.
    In addition, the Agency is proposing to change Sec. Sec.
165.25(a), (b)(1) and (b)(2) to add an additional citation to the list
of DOT regulations with which non-refillable containers must comply.
The Agency is proposing this change to include the requirements of 49
CFR part 107, subpart B that are applicable to special permits because
this subpart regulates exemptions from DOT requirements. The original
intent of Sec.  165.25 was that a pesticide packaged in compliance with
DOT's requirements would meet the requirements of Sec.  165.25(a) and
(b). This proposed change is consistent with the original intent and
simply clarifies that if a pesticide is in compliance with DOT
requirements via an exemption, it is also acceptable under the
container and containment regulations.
    The Agency is also proposing to add three additional citations to
the list of DOT regulations in Sec.  165.25(a) with which a
nonrefillable container must comply. Specifically, EPA is proposing to
add 49 CFR 173.4, 173.5, and 173.6 to incorporate several additional
DOT exceptions so they would apply to pesticides that are not hazardous
materials. These proposed exceptions are for small retailers,
customers, research and sales personnel (49 CFR 173.6), small
quantities (49 CFR 173.4), and transportation of agricultural products
over local roads between fields of the same farm (49 CFR 173.5). The
proposal to add these exceptions to the pesticide container regulations
is intended to identify several situations where the DOT requirements
adopted by Sec.  165.25 would not apply. Similar to the adopted DOT
provision in 49 CFR 173.155, which provides exceptions for Class 9
(miscellaneous hazardous materials) chemicals, adopting these
provisions would clarify that certain containers and packages would not
have to comply with all of the DOT hazardous materials requirements.
Instead, the containers and packages would only have to comply with
conditions specified in those regulatory exceptions.
    The Agency is proposing these same changes to the corresponding
DOT-related requirements for refillable containers in Sec.  165.45.
    Also in Sec.  165.25, the Agency is proposing to change paragraph
(f)(2) to substitute the term ``suspension concentrate'' for ``flowable
concentrate.'' EPA is making this change based on input from the
registrants that ``suspension concentrate'' is the term currently used
in formulation chemistry to describe the pesticide formulations that
EPA originally described with the term ``flowable concentrate.''
    4. Changes to reporting and recordkeeping. The Agency is proposing
an editorial change to the introductory paragraph in Sec.  165.27(b) to
properly cite Sec.  165.25 - Sec.  165.27.
    The Agency is proposing to add new Sec. Sec.  165.27(b)(4)(iii) and
(b)(5)(iii) which would provide that evidence of an EPA-approved waiver
request shall be sufficient to demonstrate compliance with the
container dispensing capability and container residue removal
standards.
    Also in Sec.  165.27, the Agency is proposing to change paragraph
(b)(5) to substitute the term ``suspension concentrate'' for ``flowable
concentrate.'' EPA is making this change based on input from the
registrants that ``suspension concentrate'' is the term currently used
in formulation chemistry to describe the pesticide formulations that
EPA originally described with the term ``flowable concentrate.''

C. Changes to Subpart C--Refillable Container Standards: Container
Design

    1. General provisions. The Agency is proposing to add a new Sec.
165.40(b)(3) to alert refillers to the existence of a refiller-specific
exemption from some of the DOT-related requirements in Sec.  165.45(a).
    The Agency is proposing a change to the compliance date language in
Sec.  165.40(c) to be consistent with the proposed compliance date
language in Sec.  156.159 by using the phrase ``released for shipment''
instead of ``distributed or sold.'' See the discussion in Unit V.B.1.
of this proposal for the rationale behind this change.
    In addition, the Agency is proposing an editorial change to Sec.
165.40(c) to change ``...that complies with these regulations'' to
``...that complies with the regulations of this subpart'' to be more
precise.
    2. Changes to scope of pesticide products. The Agency is proposing
five editorial changes to Sec.  165.43 to remove quotes from the term
antimicrobial in the headings of paragraphs (c), (d), and (e), to
remove an extraneous ``by'' in paragraph (f), and to add a space in
paragraph (g).
    3. Changes to refillable container standards. The Agency is
proposing to change Sec.  165.45 to clarify that DOT standards only
apply to portable containers, to clarify that the DOT regulations which
are adopted in Sec.  165.45 apply to a pesticide product as it is
packaged for transportation in commerce, to add a citation to 49 CFR
part 107, subpart B for completeness and to add citations to the DOT
exceptions in 49 CFR 173.4, 173.5, and 173.6. These proposed changes
are discussed in more detail in Unit V.B.3. about the proposed
revisions to the nonrefillable container requirements in Sec.  165.25.

D. Changes to Subpart D--Standards For Repackaging Pesticide Products
Into Refillable Containers

    1. General provisions. The Agency is proposing a change to the
compliance date language in Sec.  165.60(c) to be consistent with the
proposed compliance date language in Sec.  156.159 by using the phrase
``released for shipment'' instead of ``distributed or sold.'' See the
discussion in Unit V.B.1. of this proposal for the rationale behind
this change.
    In addition, the Agency is proposing an editorial change to Sec.
165.60(c) to change ``...that complies with these

regulations'' to ``...that complies with the regulations of this
subpart'' to be more precise.
    2. Scope of pesticide products included. The Agency is proposing an
editorial correction in Sec.  165.63 to correctly cite the appropriate
regulations in the table under paragraph (d)(1). The citations in the
two rows about container inspection need to be corrected.
    3. Registrants who distribute or sell pesticide products in
refillable containers. The Agency is proposing to revise Sec.
165.65(i)(2)(iii) to allow an identifying code other than a serial
number as an acceptable mechanism to identify refillable containers in
the registrant's records. This change is needed to be consistent with
the requirement in Sec.  165.45(d), which requires refillable
containers to be marked with a serial number or other identifying code
that will distinguish between the individual container and all other
containers.
    4. Registrants who distribute or sell pesticide products to
refillers for repackaging. The Agency is proposing to revise Sec.
165.67(b)(2)(ii) for clarity. This paragraph covers the situation where
a pesticide product is repackaged by a refilling establishment at an
end user's site.
    The Agency is proposing to change Sec.  165.60(d) to clarify that
the written contract that registrants must provide to refillers is the
contract referenced in Sec.  165.67(b)(3).
    5. Refillers who are not registrants. The Agency is proposing to
revise Sec.  165.70(b)(2)(ii) for clarity, similar to the corresponding
provision in Sec.  165.67 for registrants.
    The Agency is proposing to change Sec.  165.70(e)(5)(i) to clarify
that the written contract that refillers must obtain is the contract
referenced in Sec.  165.70(b)(3). EPA is also proposing to revise Sec.
165.70(j)(2)(iii) to allow another identifying code other than a serial
number as an acceptable mechanism to track refillable containers,
similar to the corresponding requirement in Sec.  165.65 for
registrants that sell or distribute pesticides directly in refillable
containers.

E. Change to Subpart E--Standards For Pesticide Containment Structures

    1. General provisions. The Agency is proposing an editorial
correction to Sec.  165.80(b)(1) to change ``that'' to ``than.''
    2. Design and capacity requirements for new structures. The Agency
is proposing editorial changes to Sec.  165.85(a)(3) to remove
``secondary'' in this paragraph because the Agency did not intend to
limit the compatibility requirement to secondary containment structures
and to change the word ``materials'' to ``substances'' where it refers
to substances being contained.
    The Agency is proposing an editorial change to Sec.  165.85(d) to
clarify that the word ``new'' in this paragraph applies to a new
secondary containment unit and not the pesticide containers themselves.
    The Agency is proposing two changes to state that dry pesticide
container storage areas must have a floor, consistent with the original
intentions. EPA is proposing to move the existing requirement that
stationary dry pesticide container storage areas have curbs from Sec.
165.85(f)(3) to Sec.  165.85(f)(4) and to insert a new paragraph (f)(3)
that would require such areas to have floors as well. The requirement
that these areas have floors is implied in the container and
containment regulations because it does not make sense to have a curb
made out of concrete, steel, or other rigid material without also
having a floor. The proposed change would make this requirement
explicit. In addition, the Agency is proposing editorial changes to
rephrase the new Sec.  165.85(f)(4) for clarity.
    3. Design and capacity requirements for existing structures. The
Agency is proposing editorial changes to Sec.  165.87(a)(3) to remove
``secondary'' in this paragraph and to change ``materials'' to
``substances,'' similar to the proposed change in the corresponding
regulations for new containment structures in Sec.  165.85.
    The Agency is proposing an editorial change to Sec.  165.87(d) to
clarify that the word ``existing'' in paragraph (d) applies to an
existing secondary containment unit and not the pesticide containers
themselves.
    The Agency is proposing to change Sec.  165.87 to state that dry
pesticide container storage areas must have a floor, and to make
editorial changes for clarity, similar to the corresponding changes to
Sec.  165.85(f) for new structures.
    4. Operational, inspection and maintenance requirements for all new
and existing containment structures. The Agency is proposing changes to
the timing requirements for cleanup of spills in Sec.  165.90(a)(2) and
for repair of containment structures in Sec.  165.90(b)(2). The Agency
is proposing to change language that currently requires cleanup or
repair by the end of the day to allow additional time to complete
cleanup or repair in a situation in which attempting cleanup or repair
may result in hazards that may be avoided if cleanup or repair were
reasonably delayed. In most cases, and for routine spills and leaks,
the requirement for cleanup by the end of the day would still apply.
The Agency is requesting comment on this approach and the proposed
language.
    The Agency is proposing to change Sec.  165.90(b)(3), which
prohibits facilities from storing pesticide on a structure that needs
to be repaired. EPA proposes to revise this paragraph to not allow any
additional pesticide to be stored on a containment structure in need of
repair. This change was made for practical reasons, i.e., to allow
product already stored on that containment structure to remain so as
not to require movement of pesticide containers. There is potentially
greater risk from transferring pesticide products outside of a
containment structure (and then back after repairs have been made) than
to repair a structure while pesticide products remain on the
containment structure. Also, the Agency is proposing to delete the
second sentence from Sec.  165.90(b)(3) because it would not be
necessary after making this change.
    The Agency is also proposing to revise Sec.  165.90(b)(1) to
clarify that the containment structures themselves must be inspected
monthly, in addition to the containers and appurtenances. This is
implied in the existing recordkeeping requirements (see Sec.
165.95(a)), but EPA is proposing to modify this paragraph to make the
requirement explicit.
    5. States with existing containment programs. The Agency is
proposing an editorial change to Sec.  165.97(b)(1) to correct the term
``States'' to read ``State's.''

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 under docket identification number EPA-HQ-OPP-
2005-0327. The Agency has prepared an addendum to these EAs to address
the potential changes in the estimated impacts resulting from this
proposed 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 proposed, 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 sec. 25(a), the Agency submitted a draft
of this proposed 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 Secretary of Agriculture waived review of this proposed
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 proposed 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 proposed 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

     Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA)
(5 U.S.C. 601 et seq.), the Agency hereby certifies that this proposed
rule does not have a significant adverse economic impact on a
substantial number of small entities. This proposed 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 proposed 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 proposed 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 a proposed amendment to
that rulemaking, EPA has determined that this determination also
applies to this proposed rule. As such, ``small entity''for purposes of
the addendum EA prepared for this proposed rule, is synonymous with
``small business.'' Using the size standards established by the Small
Business Administration, ``small businesses'' potentially impacted by
this proposed 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 varies from 100 or fewer workers (e.g., NAICS
422910, Farm Suppliers Wholesalers) to 1,000 or fewer workers (e.g.,
NAICS 325188, Inorganic Chemical Manufacturing), with the majority of
small businesses having 500 or fewer workers (e.g., 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

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995
(Public Law 104-4), EPA has determined that this action 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. Since State,
local, and tribal governments are rarely pesticide applicants or
registrants, this rule is not expected to affect small governments and
contains no regulatory requirements that might significantly or
uniquely affect small governments. Accordingly, this action is not
subject to the requirements of sections 202 and 205 of UMRA.

E. Executive Order 13132

    Pursuant to Executive Order 13132, entitled Federalism (64 FR
43255, August 10, 1999), EPA has determined that this proposed 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 proposed rule.

F. Executive Order 13175

    As required by Executive Order 13175, entitled Consultation and
Coordination with Indian Tribal Governments (65 FR 22951, November 6,
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 an
``economically 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 regulation. This action does not
establish an environmentalstandard intended to mitigate health or
safety risks.

H. Executive Order 13211

    This proposed rule is not subject to Executive Order 13211,
entitled Actions Concerning Regulations that Significantly Affect
Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) because
it is not designated as an ``economically significant'' regulatory
action as defined by Executive Order 12866 (see Unit VII.A.), nor is it
likely to have a significant adverse effect on the supply,
distribution, or use of energy.

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

    This action does not have an adverse impact on the environmental
and health conditions in low-income and minority communities.
Therefore, under Executive Order 12898, entitled Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations (59 FR 7629, February 16, 1994), the Agency does not need
to consider environmental justice-related issues.

List of Subjects in 40 CFR Part 152

    Environmental protection, Labeling, Pesticides and pests.

List of Subjects in 40 CFR Part 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: May 30, 2008.
Stephen L. Johnson,
Administrator.
    Therefore, it is proposed that 40 CFR chapter I be amended as
follows:

PART 152-[AMENDED]

    1. The authority citation for part 152 would continue to read as
follows:

    Authority: 7 U.S.C. 136-136y; Subpart U is also issued under 31
U.S.C. 9701.
    2. Amend Sec.  152.3 to add alphabetically a definition for
``Released for Shipment'' to read as follows:

Sec.  152.3  Definitions.

* * * * *
    Released for shipment. 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).
* * * * *

PART 156-[AMENDED]

    3. The authority citation for part 156 would continue to read as
follows:

    Authority:  7 U.S.C. 136 through 136y.
    4. Add a new 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 apply.
    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.
    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) and (d) 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), and (d) 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 packaged in the following
nonrefillable containers are exempt from the requirements in paragraphs
(a)(1) and (a)(2) in this section:
    (i) Aerosol cans.
    (ii) Nonrefillable caulking tubes and other nonrefillable
squeezable tube containers for paste, gel, or other similar formulas.
    (iii) Foil packets for water soluble packaging, repellent wipes,
and other single use products.
    (iv) Tamper-resistant bait stations.
    (v) Tamper-resistant cages for repellent or trapping strips.
    (vi) Packaging for pet collars.
    (vii) One-time use semiochemical dispersion devices.
    (viii) Any packaging that is destroyed by the use of the product
contained.
    (ix) Any packaging 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)
and (d) of this section. If placed on the label, it 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 pesticide-impregnated objects that are registered
as pesticides. Pesticide-impregnated objects that are registered as
pesticides and not packaged in a container are exempt from the
identification of container type requirements in this section. These
could include such products as repellent-impregnated articles of
clothing and other repellent-impregnated fabric articles, such as tents
or mosquito netting, that are not sold in containers.
    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 compressed gas cylinders. Pesticide products that
are packaged in compressed gas cylinders or containers that hold
pesticides 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 pesticide-impregnated objects that are registered
as pesticides. Pesticide-impregnated objects that are registered as
pesticides and not packaged in a container are exempt from the residue
removal instruction requirements in this section through Sec.  156.156.
These could include such products as repellent-impregnated articles of
clothing and other repellent-impregnated fabric articles, such as tents
or mosquito netting, that are not sold in containers.
    (g) Exemption for transport vehicles. Pesticide product labels do
not have to bear residue removal instructions applicable to transport
vehicles (e.g., tank cars).
    7. Revise Sec.  156.159 to read as follows:

Sec.  156.159  Compliance date.

    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.

PART 165-[AMENDED]

    8. The authority citation for part 165 would continue to read as
follows:

    Authority:  7 U.S.C. 136 through 136y.
    9. Amend Sec.  165.3 as follows:
    a. By adding an introductory paragraph.
    b. By revising the definitions for ``Agricultural pesticide'' and
``Pesticide compatible'' as applied to containment.
    c. By adding alphabetically new definitions for ``Capacity,''
``Dilutable,'' and ``Suspension concentrate,''.
    d. 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 apply.
* * * * *
    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.
* * * * *
    Pesticide compatible means, as applied to containment, that the
containment construction materials are able to withstand anticipated
exposure to stored or transferred substances without losing the
capacity to provide the required containment of the same or other
substances within the containment area.
* * * * *
    Suspension concentrate means a stable suspension of active
ingredients in a liquid intended for dilution with water before use.
* * * * *
    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? As of August 17, 2009, any pesticide
product packaged in a nonrefillable container and released for shipment
by you must be packaged in a nonrefillable container that complies with
the regulations of this subpart.
    11. Amend Sec.  165.23 by revising the heading of paragraph (d) 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? * * *
* * * * *
    12. Amend Sec.  165.25 by revising paragraph (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 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 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 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.
* * * * *
    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 - 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 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.
    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? As of August 16, 2011, any pesticide
product packaged in a refillable container and released for shipment by
you must be packaged in a refillable container that complies with the
regulations of this subpart.
    15. Amend Sec.  165.43 by revising the introductory text of
paragraphs (c) and (d), the heading of paragrph (e), the introductory
text of pararaph (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 exempt
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 is 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 that
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.
* * * * *
    16. Amend Sec.  165.45 by revising paragraphs (a)(1) and (b), 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 part 107 subpart B. The requirements in this paragraph
apply to the pesticide product as it is packaged for transportation in
commerce.
* * * * *
    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? As of August 16, 2011, any pesticide
product repackaged into a refillable container and released for
shipment by you must have been repackaged in compliance with the
regulations of this subpart.
    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     Requirement for
            Requirement              sell directly in  refillers who are
                                        refillable      not registrants
                                        containers
------------------------------------------------------------------------
Recordkeeping specific to each                   Sec.               Sec.
 instance of repackaging                 165.65(i)(2)       165.70(j)(2)
------------------------------------------------------------------------
Container inspection: criteria                   Sec.               Sec.
 regarding a serial number or            165.65(e)(2)       165.70(f)(2)
 other identifying code
------------------------------------------------------------------------
Container inspection: criteria                   Sec.               Sec.
 regarding one-way valve or tamper-      165.65(e)(3)       165.70(f)(3)
 evident device
------------------------------------------------------------------------
Cleaning requirement: criteria                   Sec.               Sec.
 regarding one-way valve or tamper-      165.65(f)(1)       165.70(g)(1)
 evident device
------------------------------------------------------------------------
Cleaning if the one-way valve or     Sec.   165.65(g)   Sec.   165.70(h)
 tamper-evident device is not
 intact
------------------------------------------------------------------------

* * * * *
    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.
    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
referenced in paragraph (b)(3) of this section to the refiller before
you distribute or sell the pesticide product to the refiller.
* * * * *
    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 referenced 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.
    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).
* * * * *
    23. Amend Sec.  165.85 by revising paragraphs (a)(3), (d) and
(f)(3); and by adding paragraph (f)(4) 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 to withstand
anticipated exposure to stored or transferred substances and still
provide containment of those same or other substances within the
containment area.
* * * * *
    (d) For new stationary liquid pesticide containment, what are the
specific design requirements? You must either anchor or elevate each
stationary liquid pesticide container protected by a new secondary
containment unit to prevent flotation in the event that the secondary
containment unit fills with liquid.
* * * * *
    (f) * * *
    (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 dry pesticide
containers 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.
    24. Amend Sec.  165.87 by revising paragraphs (a)(3), (d) and
(f)(3); and by adding paragraph (f)(4) 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 to withstand
anticipated exposure to stored or transferred substances and still
provide containment of those same or other substances within the
containment area.
* * * * *
    (d) For existing stationary liquid pesticide containment, what are
the specific design requirements? You must either anchor or elevate
each stationary liquid pesticide container protected by an existing
secondary containment unit to prevent flotation in the event that the
secondary containment unit fills with liquid.
* * * * *
    (f) * * *
    (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 dry pesticide
containers 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.
    25. Amend Sec.  165.90 by revising paragraphs (a)(2), (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.
* * * * *
    (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 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.
    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. E8-12843 Filed 6-10-08; 8:45 am]

BILLING CODE 6560-50-S


[Federal Register Volume 83, Number 188 (Thursday, September 27, 2018)]
[Notices]
[Pages 48816-48817]
[FR Doc No: 2018-20635]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OLEM-2018-0012; FRL-9984-13-OEI]

Agency Information Collection Activities; Submission to OMB for
Review and Approval; Comment Request; State Program Adequacy
Determination (Renewal)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency has submitted an
information collection request (ICR), ``State Program Adequacy
Determination (Renewal).'' (EPA ICR No. 1608.08, OMB Control No. 2050-
0152) to the Office of Management and Budget (OMB) for review and
approval in accordance with the Paperwork Reduction Act. This is a
proposed extension of the ICR, which is currently approved through
September 30, 2018. Public comments were previously requested via the
Federal Register on May 08, 2018 during a 60-day comment period. This
notice allows for an additional 30 days for public comments. A fuller
description of the ICR is given below, including its estimated burden
and cost to the public. 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.

DATES: Additional comments may be submitted on or before October 29,
2018.

ADDRESSES: Submit your comments, referencing Docket ID Number EPA-HQ-
OLEM-2018-0012, to (1) EPA online using www.regulations.gov (our
preferred method), by email to [email protected], or by mail to: EPA
Docket Center, Environmental Protection Agency, Mail Code 28221T, 1200
Pennsylvania Ave. NW, Washington, DC 20460, and (2) OMB via email to
[email protected]. Address comments to OMB Desk Officer for
EPA.
    EPA's policy is that all comments received will be included in the
public docket without change including any personal information
provided, unless the comment includes profanity, threats, information
claimed to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute.

FOR FURTHER INFORMATION CONTACT: Craig Dufficy, Materials Recovery and
Waste Management Division, Office of Resource Conservation and
Recovery, mail code 5304P, Environmental Protection Agency, 1200
Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (703)
308-9037; fax number:<PHONE_NUMBER>; email address:
[email protected].

SUPPLEMENTARY INFORMATION: Supporting documents which explain in detail
the information that the EPA will be collecting are available in the
public docket for this ICR. The docket can be viewed online at
www.regulations.gov or in person at the EPA Docket Center, WJC West,
Room 3334, 1301 Constitution Ave. NW, Washington, DC. The telephone
number for the Docket Center is<PHONE_NUMBER>. For additional
information about EPA's public docket, visit http://www.epa.gov/dockets.
    Abstract: Section 4010(c) of the Resource Conservation and Recovery
Act (RCRA) of 1976 requires that EPA revise the landfill criteria
promulgated under paragraph (1) of Section 4004(a) and Section
1008(a)(3). Section 4005(c) of RCRA, as amended by the Hazardous Solid
Waste Amendments (HSWA) of 1984, requires states to develop and
implement permit programs to ensure that MSWLFs and non-municipal, non-
hazardous waste disposal units that receive household hazardous waste
or CESQG hazardous waste are in compliance with the revised criteria
for the design and operation of non-municipal, non-hazardous waste
disposal units under 40 CFR part 257, subpart B and MSWLFs under 40 CFR
part 258. (40 CFR part 257, subpart B and 40 CFR part 258 are
henceforth referred to as the ``revised federal criteria''.) Section
4005(c) of RCRA further mandates the EPA Administrator to determine the
adequacy of state permit programs to ensure owner and/or operator
compliance with the revised federal criteria. A state program that is
deemed adequate to ensure compliance may afford flexibility to owners
or operators in the approaches they use to meet federal requirements,
significantly reducing the burden associated with compliance.
    In response to the statutory requirement in Sec.  4005(c), EPA
developed 40 CFR part 239, commonly referred to as the State
Implementation Rule (SIR). The SIR describes the state application and
EPA review procedures and defines the elements of an adequate state
permit program.
    The collection of information from the state during the permit
program adequacy determination process allows EPA to evaluate whether a
program for which approval is requested is appropriate in structure and
authority to ensure owner or operator compliance

with the revised federal criteria. The SIR does not require the use of
a particular application form. Section 239.3 of the SIR, however,
requires that all state applications contain the following five
components:
    (1) A transmittal letter requesting permit program approval.
    (2) A narrative description of the state permit program, including
a demonstration that the state's standards for non-municipal, non-
hazardous waste disposal units that receive CESQG hazardous waste are
technically comparable to the Part 257, Subpart B criteria and/or that
its MSWLF standards are technically comparable to the Part 258
criteria.
    (3) A legal certification demonstrating that the state has the
authority to carry out the program.
    (4) Copies of state laws, regulations, and guidance that the state
believes demonstrate program adequacy.
    (5) Copies of relevant state-tribal agreements if the state has
negotiated with a tribe for the implementation of a permit program for
non-municipal, non-hazardous waste disposal units that receive CESQG
hazardous waste and/or MSWLFs on tribal lands.
    The EPA Administrator has delegated the authority to make
determinations of adequacy, as contained in the statute, to the EPA
Regional Administrator. The appropriate EPA Regional Office, therefore,
will use the information provided by each state to determine whether
the state's permit program satisfies the statutory test reflected in
the requirements of 40 CFR part 239. In all cases, the information will
be analyzed to determine the adequacy of the state's permit program for
ensuring compliance with the federal revised criteria.
    Form Numbers: None.
    Respondents/affected entities: State, Local, or Tribal Governments.
    Respondent's obligation to respond: Mandatory under Section 4005(c)
of RCRA.
    Estimated number of respondents: 12.
    Frequency of response: On occasion.
    Total estimated burden: 968 hours (per year). Burden is defined at
5 CFR 1320.03(b).
    Total estimated cost: $57,872 (per year), which includes $57,872
for annual labor and $0 for annualized capital or operation &
maintenance costs.
    Changes in the Estimates: There is no change in the total estimated
burden currently identified in the OMB Inventory of Approved ICR
Burdens.

Courtney Kerwin,
Director, Regulatory Support Division.
[FR Doc. 2018-20635 Filed 9-26-18; 8:45 am]
 BILLING CODE 6560-50-P