Attachment C

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• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by December 29,
2008. Filing a petition for
reconsideration by the Administrator of
this final rule does not affect the finality
of this action for the purposes of judicial
review nor does it extend the time

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within which a petition for judicial
review may be filed, and shall not
postpone the effectiveness of such rule
or action. This action may not be
challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)

ENVIRONMENTAL PROTECTION
AGENCY

List of Subjects in 40 CFR Part 52

Pesticide Management and Disposal;
Standards for Pesticide Containers
and Containment

Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Nitrogen
dioxide, Ozone, Reporting and
recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Dated: September 16, 2008.
Walter W. Kovalick, Jr,
Acting Regional Administrator, Region 5.

For the reasons stated in the preamble,
part 52, chapter I, of title 40 of the Code
of Federal Regulations is amended as
follows:

■

PART 52—[AMENDED]
1. The authority citation for part 52
continues to read as follows:

■

Authority: 42 U.S.C. 7401 et seq.

Subpart O—Illinois
2. Section 52.720 is amended by
adding paragraph (c)(183) to read as
follows:

■

§ 52.720 Identification of plan.

*

*
*
*
*
(c) * * *
(183) On January 24, 2008, the Illinois
Environmental Protection Agency
submitted a revision to its state
implementation plan for the packaging
production facility of CP–D Acquisition
Company, LLC. The revision changes
the source name from CromwellPhoenix, Incorporated, to CP–D
Acquisition Company, LLC.
(i) Incorporation by reference.
(A) November 20, 2003, Supplemental
Opinion and Order of the Illinois
Pollution Control Board, AS 03–05,
effective November 20, 2003.
[FR Doc. E8–25657 Filed 10–28–08; 8:45 am]
BILLING CODE 6560–50–P

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40 CFR Parts 152, 156 and 165
[EPA–HQ–OPP–2005–0327; FRL–8387–2]
RIN A2070–AJ37

Environmental Protection

Agency (EPA).

ACTION: Final rule.

AGENCY:

With this final rule, EPA is
amending the pesticide container and
containment regulations, which provide
for the safe storage and disposal of
pesticides as a means of protecting
human health and the environment
pursuant to the Federal Insecticide,
Fungicide, and Rodenticide Act
(FIFRA). This final rule extends the
labeling compliance date from August
17, 2009 to August 17, 2010; changes
the phrase ‘‘sold or distributed’’ to
‘‘released for shipment’’ as associated
with all of the compliance dates;
provides certain exceptions to label
language requirements; allows for
waivers of certain label requirements;
and makes various minor editorial
changes. In addition, the Agency is
amending 40 CFR part 152 by
establishing a definition for ‘‘released
for shipment.’’
DATES: This final rule is effective
December 29, 2008.
ADDRESSES: EPA has established a
docket for this action under docket
identification (ID) number EPA–HQ–
OPP–2005–0327. All documents in the
docket are listed in the docket index
available at http://www.regulations.gov.
Although listed in the index, some
information is not publicly available,
e.g., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available in the electronic docket at
http://www.regulations.gov, or, if only
available in hard copy, at the OPP
Regulatory Public Docket in Rm. S–
4400, One Potomac Yard (South Bldg.),
2777 S. Crystal Dr., Arlington, VA. The
Docket Facility is open from 8:30 a.m.
to 4 p.m., Monday through Friday,
excluding legal holidays. The Docket
Facility telephone number is (703) 305–
5805.
FOR FURTHER INFORMATION CONTACT:
Jeanne Kasai, Field and External Affairs
SUMMARY:

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Division (FEAD) (7506P), Office of
Pesticide Programs, Environmental
Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460–
0001; telephone number: (703) 3083240; fax number: (703) 308-2962; email address: kasai.jeanne@epa.gov, or
Nancy Fitz, FEAD (7506P), OPP,
Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington,
DC 20460-0001; telephone number:
(703) 305-7385; fax number: (703) 3082962; e-mail address:
fitz.nancy@epa.gov.
SUPPLEMENTARY INFORMATION:

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I. Does This Action Apply to Me?
You may be potentially affected by
this action if you are a pesticide
formulator, agrichemical dealer, an
independent commercial applicator, or
a custom blender. Potentially affected
entities may include, but are not limited
to:
• Pesticide formulators (NAICS code
32532), e.g., establishments that
formulate and prepare insecticides,
fungicides, herbicides or other
pesticides from technical chemicals or
concentrates produced by pesticide
manufacturing establishments.
• Agrichemical dealers (NAICS code
44422), e.g., retail dealers that distribute
or sell pesticides to agricultural users.
• Independent commercial applicators
(NAICS code 115112), e.g., businesses
that apply pesticides for compensation
(by aerial and/or ground application)
and that are not affiliated with
agrichemical dealers.
• Custom blenders (NAICS code
44422), e.g., establishments that provide
the service of mixing pesticides to a
customer’s specification (most custom
blenders are also dealers).
This listing is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to be
affected by this action. Other types of
entities not listed in this unit could also
be affected. The North American
Industrial Classification System
(NAICS) codes have been provided to
assist you and others in determining
whether this action might apply to
certain entities. To determine whether
you or your business may be affected by
this action, you should carefully
examine the applicability provisions in
Units II.D., III., V.B., VI.C., VII.B.,
VIII.C., and IX.A. of the preamble to the
final pesticide container and
containment rule, 71 FR 47330 (August
16, 2006). If you have any questions
regarding the applicability of this action
to a particular entity, consult the person
listed under FOR FURTHER INFORMATION
CONTACT.

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II. Background
A. What Action is the Agency Taking?
On June 11, 2008, EPA published the
‘‘Pesticide Management and Disposal;
Standards for Pesticide Containers and
Containment: Proposed Amendments.’’
(73 FR 33035). In that proposal, EPA
proposed a number of revisions to the
existing container and containment
regulations, which had been finalized in
August 2006 (71 FR 47330). The
container and containment regulations
include requirements for pesticide
container design; procedures, standards,
and label language to facilitate removal
of pesticides from containers prior to
their being used, recycled, or discarded;
requirements for containment of
pesticides in stationary containers; and
procedures for container refilling
operations.
The public comment period for the
NPRM closed on July 11, 2008. EPA
received nine comments from trade
associations and a consultant. All
comments were generally in favor of the
changes, with several suggestions for
additional revisions to the container and
containment regulations.
With this final rule, EPA is amending
the container and containment
regulations by extending the labeling
compliance date from August 17, 2009
to August 17, 2010; changing the phrase
‘‘sold or distributed’’ to ‘‘released for
shipment’’ as associated with all of the
compliance dates; providing certain
exceptions to label language
requirements; allowing for waivers of
certain label requirements; and making
various minor editorial changes. In
addition, the Agency is amending 40
CFR part 152 by establishing a
definition for ‘‘released for shipment.’’
B. What is the Agency’s Authority for
Taking this Action?
These final regulations are issued
pursuant to the authority given the
Administrator of EPA in sections 2
through 34 of FIFRA, 7 U.S.C. 136—
136y. Sections 19(e) and (f) of FIFRA, 7
U.S.C. 136a(e) and (f), grant EPA broad
authority to establish standards and
procedures to assure the safe use, reuse,
storage, and disposal of pesticide
containers. FIFRA section 19(e) requires
EPA to promulgate regulations for the
design of pesticide containers that will
promote the safe storage and disposal of
pesticides. FIFRA section 19(f) requires
EPA to promulgate regulations
prescribing procedures and standards
for the removal of pesticides from
containers prior to disposal. FIFRA
section 25(a), 7 U.S.C. 136w(a),
authorizes EPA to issue regulations to
carry out provisions of FIFRA.

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III. Amendments to 40 CFR Part 152—
Pesticide Registration and
Classification Procedures
The Agency is amending § 152.3 by
adding a new definition for ‘‘released
for shipment’’ and is amending
§ 156.159, § 165.20, § 165.40, and
§ 165.60 to rely on this term. The
proposed definition was as follows:
A product is released for shipment when
the producer has packaged and labeled it in
the manner in which it will be shipped, or
has stored it in an area where finished
products are ordinarily held for shipment.
An individual product is only released for
shipment once, except where subsequent
events constitute production (e.g., relabeling,
repackaging).

Eight commenters expressed support
for adding a definition of ‘‘released for
shipment.’’ Several commenters
suggested changes to the definition for
clarification. In particular, commenters
said that it was confusing whether a
product had to satisfy either one of the
two conditions (‘‘1. Packaged and
labeled’’ or ‘‘2. Stored in an area held
for shipment’’) or both conditions to be
considered ‘‘released for shipment.’’
Another commenter indicated that the
definition could be interpreted to mean
that a product could be released for
shipment a second time. One
commenter suggested adding language
to the definition so that the producer
would have to identify whether a
product was not yet released for
shipment.
The Agency’s intent was that either
one of the conditions in the first
sentence of the definition would have to
be satisfied in order to be ‘‘released for
shipment.’’ A product that is ‘‘packaged
and labeled in a manner in which it will
be distributed or sold’’ is reasonably
considered to be ‘‘released for
shipment.’’ Likewise, a product stored
in an area where finished products are
ordinarily held for shipment is also
reasonably considered to be ‘‘released
for shipment.’’ EPA is keeping the
definition as ‘‘packaged and labeled in
a manner in which it will be distributed
or sold, or stored in an area where
finished products are ordinarily held for
shipment’’ so that inspectors can take
product samples, for enforcement
purposes, under either condition. For
example, if the definition required both
conditions for a product to be
considered ‘‘released for shipment,’’
inspectors might not be authorized to
collect samples from a loading dock or
in transit, as they would not necessarily
be ‘‘stored in an area where products are
ordinarily held for shipment.’’
Conversely, inspectors might not be able
to collect samples of mislabeled
products even if they were stored in an

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area where products were ordinarily
held for shipment if, upon recognizing
the error, a registrant announced that
they were not ‘‘packaged and labeled in
the manner in which it will be
distributed or sold.’’ Therefore, the
Agency is not changing ‘‘or’’ to ‘‘and’’ in
the first sentence of the definition as
suggested by commenters because EPA
is maintaining its longstanding policy
that either condition qualifies as
released for shipment.
In the final rule, EPA changed the first
condition from ‘‘packaged and labeled
in the manner in which it will be
shipped’’ to ‘‘packaged and labeled in
the manner in which it will be
distributed or sold’’ to make it clear that
inspectors may collect samples of
products in their final retail packaging,
rather than limiting them to collecting
products in shipping boxes, shrinkwrapped pallet loads, etc.
However, EPA is modifying the
proposed definition as suggested by one
commenter to allow that products not
considered ready for shipment may be
stored in an area where finished
products are ordinarily held for
shipment, provided that they are
physically separated from products that
are intended to be released for shipment
and are marked as not yet released for
shipment. The Agency is using the term
‘‘marked’’ instead of ‘‘identified’’ as
suggested by the commenter to signify a
tangible, physical indication apparent to
workers and inspectors that the
particular products are not released for
shipment. A mere verbal instruction not
to release certain products is not
sufficient.
Also, EPA has revised the proposed
definition to clarify that the term
‘‘released for shipment’’ refers to the
earliest point in time that a product
could be said to enter into commerce,
and that the product remains in the
condition of ‘‘released for shipment’’
through all subsequent distributions or
sales, unless the pesticide product is
consumed through the production of a
new pesticide product. Thus, a product
does not cease to be ‘‘released for
shipment’’ as it moves through its
distribution chain to the end user. In the
context of FIFRA, an individual product
is only ‘‘released for shipment’’ once,
except where subsequent activities such
as relabeling or repackaging, constitute
production of a new pesticide product.
To emphasize this point, EPA has
replaced ‘‘is released for shipment’’
with ‘‘becomes released for shipment’’
in the final definition for ‘‘released for
shipment’’ in § 152.3 which reads as
follows:
A product becomes released for shipment
when the producer has packaged and labeled

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it in the manner in which it will be
distributed or sold, or has stored it in an area
where finished products are ordinarily held
for shipment. Products stored in an area
where finished products are ordinarily held
for shipment, but which are not intended to
be released for shipment must be physically
separated and marked as not yet released for
shipment. Once a product becomes released
for shipment, the product remains in the
condition of being released for shipment
unless subsequent activities, such as
relabeling or repackaging, constitute
production.

One commenter suggested that a
sentence be added to clarify that the
term ‘‘released for shipment’’ is not
intended to have the same meaning as
‘‘distribute or sell.’’ It is true that it is
not the Agency’s intention that the
terms ‘‘released for shipment’’ and
‘‘distribute or sell’’ have the same
meaning. This clarification is being
provided here and may be included in
guidance documents, but will not be
added to the definition in the regulatory
text.
The Agency also asked for comment
on the placement of the definition in
parts 156 and 165 of the regulations.
Two commenters were in favor of
placing the definition of ‘‘released for
shipment’’ in parts 156 and 165 of the
regulations citing the potential for
confusion with the definition of
‘‘distribute or sell’’ in § 152.3. These
commenters also requested that
language be added to clarify that for the
purposes of implementing the container
labeling requirements, ‘‘released for
shipment’’ is not intended to have the
same meaning as ‘‘distribute or sell.’’
The Agency has decided that the above
definition is appropriate in the context
of the definition of ‘‘distribute or sell’’
in § 152.3, and for all purposes under
FIFRA. Accordingly, EPA is adding the
definition of ‘‘released for shipment’’ to
the generally applicable definitions in
§ 152.3, rather than placing it in the
definition sections specific to parts 156
and 165. This revision does not give the
term ‘‘released for shipment’’ a meaning
identical to ‘‘distribute or sell’’.
‘‘Released for shipment’’ has a more
narrow definition, and is part, but not
the whole, of the term ‘‘distribute or
sell.’’
IV. Amendments to 40 CFR Part 156—
Labeling Requirements for Pesticides
and Devices
The Agency is amending 40 CFR part
156 by adding a new definitions section,
§ 156.3, consisting of introductory text,
a new definition for ‘‘dilutable’’ and the
existing definition from § 165.3 of
‘‘transport vehicle’’; in § 156.140(a) by
changing the phrase ‘‘in this section’’ to

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read ‘‘of this section.’’;
in§§ 156.140(a)(5), (d), and (e) by
exempting certain container types from
container type label statements; in
§ 156.140(c), by providing a mechanism
whereby the Agency can approve
modifications to the container type label
language on a case-by-case basis; in
§§ 156.144(e), (f) and (g) by exempting
certain pesticide product container
types from the residue removal label
requirements; in§§ 156.140(a) and (b)
and § 156.144(a) by revising the
introductory paragraphs to account for
the new exemptions, and in § 156.159
by extending the compliance date by a
year, and changing the phrase
‘‘distributed or sold’’ to ‘‘released for
shipment’’ as associated with the
compliance date.
The rest of this unit describes the
comments on the proposed changes to
40 CFR part 156 and any changes EPA
made to the proposed language in
response to public comments. Unless
otherwise indicated, EPA is adopting
the changes as proposed.
A. Definitions Section
The Agency proposed adding a new
definitions section at § 156.3, consisting
of introductory text and a definition for
‘‘dilutable.’’ One commenter supported
the proposed definition of ‘‘dilutable.’’
Another commenter pointed out that
EPA proposed an exemption for
transport vehicles in § 156.144(g) but
only defines ‘‘transport vehicle’’ in
§ 165.3. To facilitate the understanding
of the use of the term ‘‘transport
vehicle’’ in 40 CFR part 156 subpart H,
EPA will include the definition of
‘‘transport vehicle’’ in 40 CFR part 156
as well. Therefore, the Agency is
adopting the proposed § 156.3,
including the definition for ‘‘dilutable’’
and adding the definition for ‘‘transport
vehicle’’ from § 165.3. In addition, EPA
is making an editorial change to the
second sentence of the introductory
paragraph to improve clarity. In
particular, EPA is changing the phrase
‘‘the following terms shall apply’’ to
‘‘the following terms shall have the
meanings set forth below.’’
B. Label Language Identifying the
Container Type
The Agency proposed to create a list
(in § 156.140(a)(5)) of nonrefillable
container types exempt from the
‘‘identification of container type’’
labeling requirements that identify the
container as nonrefillable
(§ 156.140(a)(1)) and prohibit or limit its
reuse (§ 156.140(a)(2)). The Agency also
proposed a provision in § 156.140(c)
that would allow waivers and
modifications of any of the ‘‘container

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type’’ label requirements on a case-bycase basis and asked for comments on
the approach of specifically exempting
certain container types while also
allowing waivers and modifications on
a case-by-case basis.
Seven commenters were in support of
adding a list of container types exempt
from the nonrefillable container type
and reuse statements. A few
commenters suggested that, instead of
having a long list of exempt container
types, the Agency should exempt
package types through guidance
documents, a Pesticide Registration
Notice, or the EPA’s web site. The
Agency has decided to keep a list in the
rule (in § 156.140(a)(5)) of container
types that are exempt from the
nonrefillable container type and reuse
statements. The Agency intends to
maintain on the EPA pesticide program
web site (www.epa.gov/pesticides under
the subject ‘‘Pesticide Container and
Containment Rule’’) summaries of
modification and waiver decisions made
pursuant to § 156.140(c).
EPA is also making two editorial
changes to the proposed introductory
text of § 156.140(a)(5) to improve clarity.
Specifically, EPA is changing the phrase
‘‘in the following nonrefillable
containers’’ to read ‘‘in the following
types of nonrefillable containers, and
their packaging’’ and the phrase ‘‘in this
section’’ to read ‘‘of this section.’’
Four commenters suggested changes
and additions to the container types that
were proposed to be exempt from the
requirements to have ‘‘Nonrefillable
container’’ and reuse statements on their
labels.
One commenter requested that the
Agency specifically exempt products in
polyethylene sleeve packages whose
contents would need to be mixed with
water. The commenter explained that
the product user fills a container (such
as a bucket) with water, opens a portion
control packet and empties the entire
contents into the water in the container.
The portion control packet is not
designed to be resealed and it does not
appear likely to be reused. Although
EPA considers this container type
within the scope of the existing
exemption for ‘‘any package destroyed
by the use of the product contained,’’
the commenter asked EPA to
specifically exempt this container type
for clarity. The Agency has identified
the rodenticide placepack as a similar
type of product, in that it is also a
portion control packet and in packaging
destroyed by use of the product
contained.
The Agency believes that one-time
use portion control packets are
sufficiently common that a specific

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exemption may assist the regulated
community, even if not strictly
necessary. Therefore, the Agency is
exempting ‘‘one-time use portion
control packets, such as polyethylene
sleeve packages or rodenticide
placepacks’’ from the nonrefillable
container type and reuse statements in
the final rule by adding this container
type to the list of exempt container
types in § 156.140(a)(5).
One commenter suggested that the
proposed list lacks a major segment of
bait station containers. This commenter
suggested adding language to include
‘‘prefilled, non-refillable ant, roach and
termite insecticide bait stations not
intended to be opened or activated in a
manner that exposes the contents to
human contact’’ which includes any
child-resistant bait station. Another
commenter suggested that the term
‘‘tamper-resistant bait station’’ is
generally used for rodent control
products while ‘‘child resistant
packaging’’ is generally used for
insecticide bait stations. Therefore, the
commenter suggested changing
‘‘tamper-resistant bait stations’’ to
‘‘tamper-resistant insecticide and
rodenticide bait stations.’’
The Agency has decided to change
‘‘tamper-resistant bait stations’’ to ‘‘onetime use bait stations.’’ One-time use
bait stations more clearly describes the
category of products EPA intended to
exempt: bait stations for any pest that
are not designed to be refilled and
usually cannot be opened without
causing significant damage to them.
Distinctions between tamper-resistant
and child-resistant packaging, or
between target pests, are not relevant to
this exemption. ‘‘Tamper-resistant cages
for repellent or trapping strips’’ is also
being changed to ‘‘one-time use cages
for repellent or trapping strips’’ for the
same reasons.
For consistency, EPA is also changing
the phrases ‘‘nonrefillable’’ and ‘‘single
use’’ to ‘‘one-time use’’ in the
description of other container types in
§ 156.140(a)(5). For clarity, EPA is also
changing the last phrase in the
description of caulking tubes and other
squeezable tubes from ‘‘for paste, gel, or
other similar formulas’’ to ‘‘for paste,
gel, or other similar substances.’’
Shortly after the comment period,
EPA received questions that highlighted
other container types that could also be
considered inherently nonrefillable.
First, devices are exempt from
registration under FIFRA section 3, but
are subject to some of the requirements
set forth in FIFRA and 40 CFR (per 40
CFR 152.500), including the label
requirements in 40 CFR part 156. The
labeling requirements added to 40 CFR

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part 156 by the container and
containment rule were primarily
intended to address the risks of
chemical residues in containers, and
generally are not relevant to devices.
Second, another commenter pointed out
that cattle ear tags are similar to pet flea
and tick collars and therefore they
should also be exempted from the
requirements in §§ 156.140(a)(1) and
(a)(2). For both types of products, the
plastic matrix releases a pesticide active
ingredient over time while on the
animal and cannot be reused or
‘‘reloaded’’ with the pesticide active
ingredient. Although these two
comments were not submitted on time,
EPA agrees that these products should
be exempted from the labeling
requirements to identify a container as
a nonrefillable container and a reuse
statement. Accordingly, EPA is
exempting devices and ‘‘animal ear tags,
such as cattle ear tags’’ from
§§ 156.140(a)(1) and (a)(2). EPA is
exempting ‘‘animal ear tags, such as
cattle ear tags’’ so that the same
exemption will apply in similar
situations for other animals.
Therefore, EPA is revising proposed
§ 156.140(a)(5) to exempt pesticide
products in the following container
types, and their packaging, from the
requirements to have statements on the
label regarding ‘‘Nonrefillable
containers’’ in § 156.140(a)(1) and
‘‘reuse’’ in § 156.140(a)(2):
• Aerosol cans;
• Devices as defined in 40 CFR
152.500;
• One-time use caulking tubes and
other one-time use squeezable tube
containers for paste, gel, or other similar
substances (e.g., crack and crevice
application devices, unit dose
application tubes);
• Foil packets for water soluble
packaging, repellent wipes, and other
one-time use products;
• One-time use portion control
packets, such as polyethylene sleeve
packages or rodenticide placepacks;
• One-time use bait stations;
• One-time use cages for repellent or
trapping strips;
• Pet collars or animal ear tags, such
as cattle ear tags;
• One-time use semiochemical
dispersion devices;
• Any container that is destroyed by
the use of the product contained; and
• Any container that would be
destroyed if reuse of the container were
attempted (for example, bacteriostatic
water filter cartridges, blister cards, etc).
The Agency notes that for products
described in the list above, the label
may be on the container itself, on outer
packaging, or both. The Agency believes

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that neither the listed containers nor
their outer packaging presents the type
of risks addressed by the ‘‘Nonrefillable
container’’ statement in § 156.140(a)(1)
and the reuse statement in
§ 156.140(a)(2), and therefore intends
that the exemption of these product or
container types should apply to both the
container itself and any outer packaging.
To make this consistent for all of the
exempted products, EPA has moved the
references to packaging into the
introductory paragraph of
§ 156.140(a)(5), so that the outer
packaging of any exempt container is
also exempt. For these same reasons, the
Agency is deleting ‘‘packaging’’ from the
exemption for ‘‘packaging for pet
collars,’’ as proposed and replacing the
term ‘‘packaging’’ with the term
‘‘container’’ in §§ 156.140(a)(5)(x) and
(a)(5)(xi).
EPA also notes that by specifying in
§ 156.140(a)(5) certain products as ‘‘onetime use’’ the Agency does not intend to
suggest that other exempted products
are not required to be one-time use
products. All products that are eligible
for the § 156.140(a)(5) exemption must
be one-time use containers (as the
§ 165.3 definition of nonrefillable
container specifies that they be
‘‘designed and constructed for one-time
use’’). For most products exempted by
§ 156.140(a)(5) (e.g., aerosol cans,
packaging destroyed by use), restating
the one-time use limitation would serve
no purpose. However, for products
where both one-time use and multiple
use versions are common (i.e., bait
stations, cages and semiochemical
dispersion devices), EPA has included
the ‘‘one-time use’’ designation as a
reminder for persons subject to these
regulations. Lastly, EPA is changing the
introductory sentence in § 156.140(a)(5)
as proposed from ‘‘Exemptions.
Pesticide products packaged in the
following nonrefillable containers are
exempt from the requirements in
paragraphs (a)(1) and (a)(2) in this
section:’’ to ‘‘Exemptions. Pesticide
products in the following types of
nonrefillable containers, and their
packaging, are exempt from the
requirements in paragraphs (a)(1) and
(a)(2) of this section:’’. EPA is deleting
‘‘...packaged...’’ from the proposed text
and adding ‘‘...and their packaging...’’ to
make it clear that the exemption applies
to the container itself and any outer
packaging, as discussed above. EPA is
also changing the proposed text by
adding ‘‘...types of...’’ in front of
‘‘nonrefillable containers’’ for clarity
and changing ‘‘in this section’’ to ‘‘of
this section’’ for consistency.
Also, the Agency did not propose to
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types from the requirement to have a
statement about recycling/
reconditioning because the Agency
wants to facilitate recycling wherever
feasible. One commenter had a different
opinion and remarked that a label
statement encouraging recycling could
conflict with the requirements of local
recycling programs, noting that aerosol
containers are not accepted by many
recycling programs. EPA is aware of
some local recycling programs that are
designed to accept aerosol containers,
and EPA believes that recycling
programs generally are expanding and
that it is important to encourage
recycling where available. Moreover, the
recycling statements in § 156.140(a)(3)
take availability of a recycling program
into account, such as ‘‘Offer for
recycling if available.’’ Finally, as
discussed below, registrants will now
have the option of applying for a waiver
from the recycling label statement
requirement if recycling is not
appropriate for a specific container or
product. For these reasons, the Agency
has decided not to automatically exempt
these containers from the recycling/
reconditioning statement.
In § 156.140(b), EPA is finalizing the
proposed changes and one additional
change suggested by a commenter. To
improve clarity, EPA is changing the
beginning of the second sentence from
‘‘If placed on the label, it must be...’’ to
‘‘If placed on the label, the statement
must be...’’
In § 156.140(c), the Agency proposed
to add a new paragraph that would
allow EPA, on a case-by-case basis, to
modify or waive any of the label
statements required by § 156.140. This
paragraph is being added to § 156.140(c)
as proposed. One commenter suggested
exempting package types through
guidance documents or making the
‘‘nonrefillable container’’ statement
optional for certain package types
because of the burden to request waivers
and the Agency to review waivers.
Another commenter suggested keeping a
list through a Pesticide Registration
Notice or on EPA’s web site so that
repeat requests would not have to be
made on the same container types.
Lastly, another commenter supported
the modification/waiver provision as
long as it was in addition to the list of
exempt product container types in 40
CFR 156.140(a)(5). The Agency intends
to maintain on the EPA pesticide
program web site (www.epa.gov/
pesticides under the subject ‘‘Pesticide
Container and Containment Rule’’),
summaries of decisions on requests for
modifications and waivers.
In § 156.140(d), the Agency proposed
to exempt from the label statements

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required in § 156.140, pesticideimpregnated clothing or other repellentimpregnated objects that are registered
as pesticides and are not packaged in a
container. One commenter requested
that this exemption be expanded to all
objects registered as pesticide products
but not packaged in a container. The
commenter explained that there are
objects registered as a pesticide that are
not ‘‘pesticide-impregnated’’ and, with
technology advancing, there will be
innovations in pesticide delivery
systems. One example given was EPA’s
registration of copper alloy as an
antimicrobial pesticide that can be
fabricated into objects such as hospital
bed railings. The commenter maintained
that the same considerations the Agency
is giving to repellent-impregnated fabric
objects should apply to copper alloy as
well as other future objects. Another
commenter recommended an editorial
change that would generally exempt
‘‘repellent-impregnated fabric objects’’
while giving clothing, tents or mosquito
netting as examples.
Based on these comments, EPA
reconsidered the exemption for
pesticide-impregnated objects that are
registered as pesticides and are not
packaged in a container as proposed.
Upon re-evaluation, EPA believes that it
is more appropriate to revise this
paragraph to exempt pesticidal articles
from all of the label statements required
by § 156.140. Note that while § 152.25(a)
exempts from all requirements of FIFRA
certain articles treated with a pesticide
to protect the article itself, this new
§ 156.140(d) provides a more narrow
exception to a broader class of articles.
As discussed above for devices, the
container and containment labeling
requirements in 40 CFR part 156 were
primarily intended to address the
handling of chemical residues in
containers. The Agency expects that any
packaging or shipping containers for
pesticidal articles would have minimal
chemical residues, so it is not necessary
or appropriate for the labels of these
pesticides to have the same container
handling statements. EPA believes that
the specific pesticide products that were
identified in the proposed exemption,
including repellent-impregnated
clothing and other repellentimpregnated fabric articles, such as
tents or mosquito netting, are also
exempted by the exemption for
pesticidal articles in § 156.140(d).
This new exemption complements the
existing exemption in § 152.25(a) in that
it addresses pesticidal articles that do
not qualify for the § 152.25(a)
exemption. Section 152.25(a) provides a
complete exemption from all
requirements of FIFRA for qualifying

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articles or substances treated with, or
containing a pesticide, if: (1) the
incorporated pesticide is registered for
use in or on the article or substance,
and; (2) the sole purpose of the
treatment is to protect the article or
substance itself. To qualify for the
treated articles exemption, both
conditions stated above must be met. If
both are not met, the article or substance
does not qualify for the exemption and
is subject to regulation under FIFRA.
Articles that meet both criteria in
§ 152.25(a) are exempt from all
requirements of FIFRA, including the
labeling requirements in 40 CFR part
156. Where a pesticidal article does not
meet both criteria, the article is subject
to regulation under FIFRA and therefore
must be registered as a pesticide
product and comply with all of the
FIFRA requirements. The purpose of
§ 156.140(d) is to exempt these articles
from the identification of container type
label statements in § 156.140.
EPA acknowledges that there are
likely to be situations where the
identification of container type label
statements would not be appropriate for
a specific pesticide, such as objects
registered as pesticide products but not
packaged in a container, as described by
the commenter. Some of these situations
may be covered by the exemption for
pesticidal articles in § 156.140(d).
However, some of the pesticide
products identified by the commenter
may not be exempted by § 156.140(d).
Because EPA expects that the number of
these situations is small, EPA believes
that they can be handled effectively by
the modification/waiver provision in
§ 156.140(c) and through the pesticide
registration process.
Shortly after the comment period,
EPA received a question about why
transport vehicles were not proposed to
be exempted from the refillable
container type statements in
§ 156.140(b) similar to the proposal to
exempt transport vehicles from the
residue removal label statements. The
commenter pointed out that the same
logic applies to the refillable container
type statement and the residue removal
requirement – that the label language is
not tailored to the unique nature of
transport vehicle containers. EPA agrees
that transport vehicles are generally
intended to be refilled with other
pesticides or other chemicals so it does
not make sense for the labels of
pesticides that are distributed only in
transport vehicles to include the
statement ‘‘Refillable container. Refill
this container with pesticide [or
common chemical name] only. Do not
reuse this container for any other
purpose.’’ Therefore, EPA is adding a

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new exemption in § 156.140(e) that
exempts transport vehicles from the
requirements in that section.
C. Residue Removal Instructions
As proposed, EPA is adding three
exemptions from the residue removal
instruction requirements in § 156.144.
EPA has modified the proposed
exemption for compressed gas cylinders
to eliminate unneeded language about
container types. In its final form, the
exemption from the residue removal
instruction requirements applies to all
pesticides that are gases, regardless of
container shape. EPA believes that this
improves the clarity and covers all of
the containers, including compressed
gas cylinders that were covered by the
proposed exemption.
In § 156.144(f), the Agency also
proposed to exempt pesticideimpregnated objects that are registered
as pesticides (and not packaged in a
container) from the residue removal
requirements. The Agency is revising
the exemption in § 156.144(f) in the
same way as in § 156.140(d), for the
reasons discussed above.
EPA revised the exemption for
transport vehicles in § 156.144(g) for
clarity and to be consistent with the
format in § 156.140(e) and the other
exemptions in § 156.144. In addition, it
is no longer appropriate to include the
parenthetical example of a transport
vehicle because the full definition of
transport vehicle is being added to
§ 156.3. EPA believes that the transport
vehicle exemption in the final rule has
the same effect as the proposed
exemption, but is more straightforward
and easier to understand.
D. Compliance Date
The Agency proposed changing the
compliance date in § 156.159 for
labeling requirements, from August 17,
2009 to August 17, 2010, and replacing
the phrase ‘‘distributed or sold’’ with
‘‘released for shipment.’’ Section
156.159 was proposed to read:
As of August 17, 2010, all pesticide
products released for shipment by a
registrant must have labels that comply with
§§ 156.10(d)(7), 156.10(f), 156.10(i)(2)(ix),
156.140, 156.144, 156.146, and 156.156.

The Agency received seven comments
supporting the proposed 1–year
extension of the compliance date for
labeling requirements and replacing
‘‘distributed or sold’’ with ‘‘released for
shipment.’’ Several of these commenters
were concerned that the proposed
language could be interpreted to mean
that on August 17, 2010 registrants
would have to re-label all products that
had been previously released for
shipment. As discussed above, EPA has

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revised the proposed definition of
‘‘released for shipment’’ to clarify that,
for purposes of FIFRA, the action of
releasing a product for shipment occurs
only once for a given pesticide product,
and that a product remains in the
condition of ‘‘released for shipment’’
unless subsequent activities constitute
production. Also, for clarity and
consistency, EPA is changing the
proposed language by replacing ‘‘all’’
with ‘‘any’’ in ‘‘...all pesticide products
released for shipment...’’ and ‘‘have
labels’’ with ‘‘must bear a label’’ in
‘‘...must have labels that comply
with...’’. In addition, the Agency is
adopting the following language to make
it clear that the label requirements will
apply only to products released for
shipment after the compliance date:
Any pesticide product released for
shipment by a registrant after August 16,
2010 must bear a label that complies with
§§ 156.10(d)(7), 156.10(f), 156.10(i)(2)(ix),
156.140, 156.144, 156.146, and 156.156.

Thus, pesticide products released for
shipment on or before August 16, 2010
are not required to comply with the
requirements cited in the sentence
above. Similar changes have been made
to the compliance date and associated
language for nonrefillable containers in
§ 165.20(c). In § 165.40(c) and
§ 165.60(c) the Agency is changing the
language regarding ‘‘released for
shipment’’ and the compliance date
from ‘‘As of August 16, 2011...’’ to
‘‘...after August 16, 2011.’’ The
compliance date is being changed by
one day so that all compliance dates
will be ‘‘...after August 16th...’’ to help
avoid confusion.
V. Amendments to 40 CFR Part 165—
Pesticide Management and Disposal
EPA proposed a number of changes to
the container and containment
regulations in part 165 to provide
clarification and to correct editorial and
other errors. Unless otherwise indicated,
EPA is adopting the changes as
proposed.
For consistency, the Agency is
changing the proposed introductory
language ‘‘In addition, as used in this
part, the following terms shall apply.’’
by replacing the term ‘‘apply’’ with the
phrase ‘‘have the meanings set forth
below.’’ In addition to adopting the
proposed changes to the definitions in
165.3, the Agency is making editorial
changes by renaming ‘‘Pesticide
compatible’’ as applied to containment
as ‘‘Pesticide compatible as applied to
containment’’ and ‘‘Pesticide
compatible’’ as applied to containers as
‘‘Pesticide compatible as applied to
containers.’’ The Agency is making

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other editorial changes as suggested by
one commenter to the definitions of
‘‘Pesticide compatible as applied to
containment’’ and ‘‘Suspension
concentrate.’’
EPA is adopting the language as
proposed with one minor revision
suggested by a commenter, by replacing
the word ‘‘capacity’’ with ‘‘capability’’
to avoid confusion with the new
definition of ‘‘capacity.’’
The Agency proposed to use the
existing definition for ‘‘flowable
concentrate’’ but rename it as
‘‘suspension concentrate’’ as suggested
by stakeholders. The proposed
definition for ‘‘suspension concentrate’’
was ‘‘...a stable suspension of active
ingredients in a liquid intended for
dilution with water before use.’’ A
commenter pointed out that as written,
it could include capsule suspension
(microencapsulated) as well as flowable
concentrates, but to apply only to
flowable concentrates it should read
‘‘...a stable suspension of solid
particulate active ingredients...’’ The
Agency is making this change as
suggested because rinsing data shows
that microencapsulated formulations are
not as difficult to remove as stable
suspensions of solid particulate active
ingredients. Also, ‘‘flowable
concentrate’’ is being replaced with
‘‘suspension concentrate’’ in
§ § 165.25(f)(2) and 165.27(b)(5).
The Agency is changing the following
existing definitions in § 165.3 as
suggested by a commenter: ‘‘dry
pesticide,’’ ‘‘nonrefillable container,’’
‘‘rinsate,’’ and ‘‘washwater.’’
The original definition of ‘‘dry
pesticide’’ was ‘‘...any pesticide that is
in solid form and that has not been
combined with liquids; this includes
formulations such as dusts, wettable
powders, dry flowable powders,
granules, and dry baits.’’ The list is
being changed by replacing ‘‘dry
flowable powders’’ with ‘‘dry
flowables’’ and by adding ‘‘watersoluble powders.’’ A commenter
explained that pesticide formulations
described as ‘‘dry flowable’’ are
formulated into small granules, not
powder. ‘‘Water-soluble powders’’ is
being added to the list because it is an
example of a dry pesticide.
The original definition of
‘‘nonrefillable container’’ provided, in
part, that they be ‘‘for one time
containment of a pesticide for sale or
distribution.’’ A commenter suggested
that the term ‘‘containment’’ was used
inappropriately in this definition
because ‘‘containment’’ is used
elsewhere in the container and
containment rule to refer to various
structures intended to contain spills,

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washwater, etc. To avoid any confusion,
EPA is amending the definition for
‘‘nonrefillable container’’ by replacing
‘‘one time containment of a pesticide for
sale or distribution.’’ with ‘‘one-time use
and is not intended to be filled again
with a pesticide for sale or
distribution.’’
The original definition of ‘‘rinsate’’
was ‘‘...the liquid produced from the
rinsing of the interior of any equipment
or container that has come in direct
contact with any pesticide.’’ The
Agency is amending the definition to
replace ‘‘produced’’ with ‘‘resulting’’ to
avoid any confusion with the definition
of ‘‘produced’’ as defined in FIFRA.
Similarly, the original definition of
‘‘washwater’’ was ‘‘...the liquid
produced from the rinsing of the
exterior of any equipment or containers
that have or may have come in direct
contact with any pesticide or system
maintenance compound.’’ The Agency
is also amending the definition of
‘‘washwater’’ by replacing ‘‘produced’’
with ‘‘resulting,’’ and by adding
examples of such liquids (i.e., such as
oil or antifreeze).
The Agency is changing the language
associated with the compliance date in
§ 165.20(c), § 165.40(c), and § 165.60(c)
to be consistent with the revision in
§ 156.159, for the reasons discussed
above. In addition, the Agency is
changing the compliance date in
§ 165.40(c), and § 165.60(c) so that they
all read ‘‘...after August 16,...’’ regardless
of the year. The Agency is correcting
errors in §§ 165.25(a), 165.25(b)(1), and
165.25(b)(2), as proposed, as well as in
§ 165.45(b)(2) by changing ‘‘part 107
subpart B’’ to read ‘‘49 CFR part 107
subpart B.’’
A commenter suggested that EPA
provide a more detailed reference for
the EPA test procedure ‘‘Rinsing
Procedures for Dilutable Pesticide
Products in Rigid Containers’’ cited in
§ 165.25(f)(1). The Agency considered
this suggestion, but decided not to
revise the regulatory text because the
protocol is readily available. It is in the
docket for the final rule and the Agency
intends to keep it posted on the EPA
pesticide program web site
(www.epa.gov/pesticides under the
subject ‘‘Pesticide Container and
Containment Rule’’). EPA is correcting
an error made in the proposed change
to § 165.43(e)(1), by replacing ‘‘is’’ with
‘‘if’’ in the phrase that reads in part
‘‘...to prevent an unreasonable adverse
effect on the environment is all of the
following conditions exist:’’
In addition to making these changes,
EPA is making several changes in 40
CFR part 165 in response to a
commenter. Those changes are:

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inserting the specific regulations
referenced (49 CFR parts 171-180) in
§ 165.45(e) and adding ‘‘or’’ as in ‘‘equal
to or greater than’’ in § 165.45 (f). As
suggested by a commenter, for
consistency EPA is replacing ‘‘stationary
liquid pesticide container,’’ with
‘‘stationary container of liquid
pesticides,’’ ‘‘stationary dry pesticide
container’’ with ‘‘stationary container of
dry pesticides,’’ ‘‘stationary liquid
pesticide containment’’ with ‘‘secondary
containment units for stationary
containers of liquid pesticides,’’ and
‘‘stationary dry pesticide containment’’
with ‘‘secondary containment units for
stationary containers of dry pesticides’’
in § 165.45(f); § 165.85(c), (d) and (f);
and § 165.87(c), (d) and (f).
EPA is changing slightly the wording
of § 165.60(c) as proposed. The phrase
‘‘must have been repackaged’’ is
changed to read ‘‘must be repackaged.’’
This change is being made for clarity
since § 165.60 contains the general
provisions of Subpart D – Standards for
Repackaging Pesticide Products into
Refillable Containers.
EPA is making minor editorial
changes in § 165.67(d) and
§ 165.70(e)(5)(i) by replacing the word
‘‘referenced’’ with the word ‘‘referred
to.’’ EPA is correcting a mistake made in
proposed § 165.85(a)(3) and 165.87(a)(3)
where the word ‘‘able’’ had been
omitted in the proposed language the
phrase ‘‘compatible means to
withstand’’ is corrected to read
‘‘compatible means able to withstand.’’
In discussions with stakeholders, EPA
was asked to consider a change to
§ 165.90(a)(5). The Agency’s intention of
requiring lockable valves on stationary
pesticide containers (if required by
§ 165.45(f)) was to mitigate the risks
associated with vandalism and theft.
The Agency agrees with stakeholders
that locking the entrances to the facility
when it is unattended would achieve
the same purpose. Therefore, the EPA is
amending § 165.90(a)(5) to state that,
when lockable valves are required, the
owner or operator of a facility must
ensure that the lockable valves on
stationary containers are locked or that
the facility itself is locked, whenever the
facility is unattended.
EPA has also decided to amend
§ 165.90(b)(2) to expressly include
weather among the factors relevant to
determining whether repairs are
completed ‘‘within a time frame that is
reasonable.’’ EPA has always
understood that weather affects
operators’ ability to seal cracks and gaps
in a containment structure or
appurtenances, and is making this
explicit in the regulation.

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VI. Economic Impacts
EPA prepared two Economic Analyses
(EAs) of the potential costs and benefits
associated with the August 16, 2006,
Container and Containment Rule, one
for the container requirements and
another for the containment
requirements. The EAs, entitled
‘‘Economic Analysis of the Pesticide
Container Design and Residue Removal
Standards’’ and ‘‘Economic Analysis of
the Bulk Pesticide Containment
Structure Regulations,’’ are available in
the docket for the pesticide container
and containment rule at http://
www.regulations.gov under docket
identification number EPA–HQ–OPP–
2005–0327. The Agency has prepared an
addendum to these EAs to address the
changes in the estimated impacts
resulting from this final rule. The
addendum to the EA, entitled
‘‘Addendum to the June 1, 2006,
Economic Analysis of the Bulk Pesticide
Container Design and Residue Removal
Standards’’ is briefly summarized here,
and is available in the docket for this
rulemaking.
EPA estimated the total annual cost of
the August 16, 2006, Container and
Containment Rule to be $11.3 million
($8.37 million for containers plus $2.93
million for containment) and the total
annual benefits from the final rule to be
$17 to $23.4 million. When the
estimated cost of the August 16, 2006,
rule is adjusted to consider the
amendments being finalized, there is an
annual cost reduction of approximately
$0.23 to $0.32 million due to a
reduction in the number of labels that
would need to be revised. There is no
difference in the total annual benefits
from the August 16, 2006 rule.
VII. FIFRA Mandated Reviews
In accordance with FIFRA section
25(a), the Agency submitted a draft of
this final rule to the Committee on
Agriculture in the House of
Representatives, the Committee on
Agriculture, Nutrition, and Forestry in
the United States Senate, and the FIFRA
Scientific Advisory Panel (SAP). The
SAP and the Secretary of Agriculture
waived review of this final rule.

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VIII. Statutory and Executive Order
Reviews
A. Executive Order 12866
Under Executive Order 12866,
entitled Regulatory Planning and
Review (58 FR 51735, October 4, 1993),
the Office of Management and Budget
(OMB) has determined that this final
rule is not a ‘‘significant regulatory
action’’ because these requirements will
not raise novel legal or policy issues

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arising out of legal mandates, the
President’s priorities, or the principles
set forth in the Executive Order. As
such, this final rule is not subject to
review under Executive Order 12866.
B. Paperwork Reduction Act (PRA)
This action does not impose any new
information collection burden or
activities requiring approval under the
Paperwork Reduction Act, 44 U.S.C.
3501 et seq. The information collection
activities contained in the existing
regulations are already approved under
OMB control number 2070–0133, and
are also identified under EPA ICR No.
1632. An agency may not conduct or
sponsor, and a person is not required to
respond to a collection of information
unless it displays a currently valid OMB
control number. The OMB control
numbers for EPA’s regulations in 40
CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act (RFA)
Pursuant to section 605(b) of the
Regulatory Flexibility Act (RFA) (5
U.S.C. 601 et seq.), the Agency hereby
certifies that this final rule does not
have a significant adverse economic
impact on a substantial number of small
entities. This final rule is expected to
result in a slight 2% to 3% decrease in
the estimated total costs of the
Container and Containment Rule. As
such, there are not expected to be any
adverse economic impacts of affected
entities, regardless of their size. The
factual basis for the Agency’s
determination is presented in the
addendum to the EA, entitled
‘‘Addendum to the June 1, 2006,
Economic Analysis of the Bulk Pesticide
Container Design and Residue Removal
Standards,’’ prepared for this final rule,
which is summarized in Unit VI., and a
copy of which is available in the docket
for this rulemaking. The following is a
brief summary of the factual basis for
this certification.
Under the RFA, small entities include
small businesses, small organizations,
and small governmental jurisdictions.
For purposes of assessing the impacts of
this final rule on small entities, small
entity is defined in accordance with the
RFA as: (1) A small business as defined
by the Small Business Administration’s
(SBA) regulations at 13 CFR 121.201; (2)
a small governmental jurisdiction that is
a government of a city, county, town,
school district, or special district with a
population of less than 50,000; and (3)
a small organization that is any not-forprofit 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

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2006 rulemaking, EPA determined that
the 2006 rulemaking was not expected
to impact any small not-for-profit
organizations or small governmental
jurisdictions. Since this is an
amendment to that rulemaking, EPA has
determined that this determination also
applies to this final rule. As such,
‘‘small entity’’ for purposes of the
addendum EA prepared for this final
rule, is synonymous with ‘‘small
business.’’ Using the size standards
established by the Small Business
Administration, ‘‘small businesses’’
potentially impacted by this final rule
are expected to include the same types
of businesses described in the EAs
prepared for the 2006 rulemaking. As
indicated in those EAs, the small
business size standard varies based on
the primary NAICS code associated with
the business. Specifically, the small
businesses size standards vary from 100
or fewer workers (e.g., NAICS code
422910, Farm Suppliers Wholesalers) to
1,000 or fewer workers (e.g., NAICS
code 325188, Inorganic Chemical
Manufacturing), with the majority of
small businesses having 500 or fewer
workers (e.g., NAICS code 325320,
Pesticide/Agricultural Chemical
Manufacturing).
In general, EPA strives to minimize
potential adverse impacts on small
entities when developing regulations to
achieve the environmental and human
health protection goals of the statute
and the Agency. EPA solicits comments
specifically about potential small
business impacts.
D. Unfunded Mandates Reform Act
(UMRA)
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538, requires Federal agencies,
unless otherwise prohibited by law, to
assess the effects of their regulatory
actions on State, local, and tribal
governments and the private sector.
Federal agencies must also develop a
plan to provide notice to small
governments that might be significantly
or uniquely affected by any regulatory
requirements. The plan must enable
officials of affected small governments
to have meaningful and timely input in
the development of EPA regulatory
proposals with significant Federal
intergovernmental mandates and must
inform, educate, and advise small
governments on compliance with the
regulatory requirements.
This rule does not contain a Federal
mandate that may result in expenditures
of $100 million or more for State, local,
and tribal governments, in the aggregate,
or for the private sector in any one year.
As explained in Unit VI., EPA estimates

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that the amendments being finalized
will reduce the annual estimated costs
of the pesticide container and
containment regulations by
approximately $0.23 to $0.32 million
due to a reduction in the number of
labels that would need to be revised.
Thus, this rule is not subject to the
requirements of sections 202 and 205 of
UMRA.
This rule is also not subject to the
requirements of section 203 of UMRA
because it contains no regulatory
requirements that might significantly or
uniquely affect small governments.
Because State, local, and tribal
governments are rarely pesticide
applicants or registrants, this rule is not
expected to affect small governments.
E. Executive Order 13132
Pursuant to Executive Order 13132,
entitled Federalism (64 FR 43255,
August 10, 1999), EPA has determined
that this final rule does not have
‘‘federalism implications,’’ because it
would not have substantial direct effects
on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government, as
specified in the Order. Thus, Executive
Order 13132 does not apply to this rule.
F. Executive Order 13175

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This action does not have tribal
implications, as specified in Executive
Order 13175 (65 FR 67249, November 9,
2000). EPA has determined that this
action does not have tribal implications
because it will not have substantial
direct effects on tribal governments, on
the relationship between the Federal
government and the Indian tribes, or on
the distribution of power and
responsibilities between the Federal
government and Indian tribes, as
specified in the Order. EPA is not aware
of any tribal governments which are
pesticide registrants, refillers or dealers
storing large quantities of pesticides.
Thus, Executive Order 13175 does not
apply to this action.

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G. Executive Order 13045
Executive Order 13045, entitled
Protection of Children from
Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997),
does not apply to this action because it
is not designated as a ‘‘significant’’
regulatory action as defined by
Executive Order 12866 (see Unit
VIII.A.), nor does it establish an
environmental standard that is intended
to have a negative or disproportionate
effect on children. EPA interprets
Executive Order 13045 as applying only
to those regulatory actions that concern
health or safety risks, such that the
analysis required under section 5-501 of
the Executive Order has the potential to
influence the regulations. This action
does not establish an environmental
standard intended to mitigate health or
safety risks.
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not subject to Executive
Order 13211 (66 FR 28355, May 22,
2001) because it is not a significant
regulatory action under Executive Order
12866.
I. National Technology Transfer
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (NTTAA), 15 U.S.C. 272
note) directs EPA to use voluntary
consensus standards in its regulatory
activities unless to do so would be
inconsistent with applicable law or
otherwise impractical. Voluntary
consensus standards are technical
standards (e.g., materials specifications,
test methods, sampling procedures,
business practices, etc.) that are
developed or adopted by voluntary
consensus standards bodies. NTTAA
directs EPA to provide Congress,
through OMB, explanations when the
Agency decides not to use available and
applicable voluntary consensus
standards. This action does not impose
any technical standards that would

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require Agency consideration of
voluntary consensus standards.
J. Executive Order 12898: Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order (EO) 12898 (59 FR
7629 (Feb. 16, 1994)) establishes Federal
executive policy on environmental
justice. Its main provision directs
Federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has determined that this final
rule will not have disproportionately
high and adverse human health or
environmental effects on minority or
low-income populations because it does
not affect the level of protection
provided to human health or the
environment. This final rule amends the
existing container and containment
regulations to extend the compliance
date for the label changes, provide
certain exemptions to label language
requirements, and make changes to
improve the clarity of the regulations.
None of these changes affect the level of
protection provided to human health or
the environment by the container and
containment regulations.
IX. Congressional Review Act
The Congressional Review Act, 5
U.S.C. 801 et seq., generally provides
that before a rule may take effect, the
Agency promulgating the rule must
submit a rule report to each House of
the Congress and the Comptroller
General of the United States. EPA will
submit a report containing this rule and
other required information to the U.S.
Senate, the U.S. House of
Representatives, and the Comptroller
General of the United States prior to
publication of the rule in the Federal
Register. This rule is not a ‘‘major rule’’
as defined by 5 U.S.C. 804(2).

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List of Subjects in 40 CFR Parts 152 and
156
Environmental protection, Labeling,
Pesticides and pests.
List of Subjects in 40 CFR Part 165
Environmental protection, Packaging
and containers, Containment structures,
Pesticides and pests.

Therefore, 40 CFR chapter I is
amended as follows:

■

PART 152—[AMENDED]
1. The authority citation for part 152
continues to read as follows:

■

Authority: 7 U.S.C. 136-136y; Subpart U is
also issued under 31 U.S.C. 9701.

2. Amend § 152.3 by adding
alphabetically a definition for ‘‘Released
for Shipment’’ to read as follows:

■

Definitions.

*

*
*
*
*
Released for shipment. A product
becomes released for shipment when
the producer has packaged and labeled
it in the manner in which it will be
distributed or sold, or has stored it in an
area where finished products are
ordinarily held for shipment. Products
stored in an area where finished
products are ordinarily held for
shipment, but which are not intended to
be released for shipment must be
physically separated and marked as not
yet released for shipment. Once a
product becomes released for shipment,
the product remains in the condition of
being released for shipment unless
subsequent activities, such as relabeling
or repackaging, constitute production.
*
*
*
*
*
PART 156—[AMENDED]
3. The authority citation for part 156
continues to read as follows:

■

Authority: 7 U.S.C. 136 through 136y.
■

4. Add § 156.3 to read as follows:

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§ 156.3

Definitions.

Terms used in this part have the same
meaning as in the Act and part 152 of
this chapter. In addition, as used in this
part, the following terms shall have the
meanings set forth below.
Dilutable means that the pesticide
product’s labeling allows or requires the
pesticide product to be mixed with a
liquid diluent prior to application or
use.
Transport vehicle means a cargocarrying vehicle such as an automobile,

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§ 156.140 Identification of container types.

*

Dated: October 17, 2008.
Stephen L. Johnson,
Administrator.

§ 152.3

van, tractor, truck, semitrailer, tank car
or rail car used for the transportation of
cargo by any mode.
■ 5. Amend § 156.140 by revising the
introductory text of paragraph (a), by
revising the introductory text of
paragraph (b), and by adding paragraphs
(a)(5), (c), (d) and (e) to read as follows:

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*
*
*
*
(a) Nonrefillable container. For
nonrefillable containers, the statements
in paragraphs (a)(1) through (a)(4) of this
section are required except as provided
in paragraphs (a)(5), (c), (d), and (e) of
this section. If placed on the label, the
statements in paragraphs (a)(1) through
(a)(3) of this section must be under an
appropriate heading under the heading
‘‘Storage and Disposal.’’ If any of the
statements in paragraphs (a)(1) through
(a)(3) of this section are placed on the
container, an appropriate referral
statement such as ‘‘See container for
recycling [or other descriptive word]
information.’’ must be placed on the
label under the heading ‘‘Storage and
Disposal.’’
*
*
*
*
*
(5) Exemptions. Pesticide products in
the following types of nonrefillable
containers, and their packaging, are
exempt from the requirements in
paragraphs (a)(1) and (a)(2) of this
section:
(i) Aerosol cans.
(ii) Devices as defined in § 152.500 of
this chapter.
(iii) One-time use caulking tubes and
other one-time use squeezable tube
containers for paste, gel, or other similar
substances.
(iv) Foil packets for water soluble
packaging, repellent wipes, and other
one-time use products.
(v) One-time use portion control
packets, such as polyethylene sleeve
packages, or rodenticide placepacks.
(vi) One-time use bait stations.
(vii) One-time use cages for repellent
or trapping strips.
(viii) Pet collars or animal ear tags,
such as cattle ear tags.
(ix) One-time use semiochemical
dispersion devices.
(x) Any container that is destroyed by
the use of the product contained.
(xi) Any container that would be
destroyed if reuse of the container were
attempted.
(b) Refillable container. For refillable
containers, one of the following
statements is required, except as
provided in paragraphs (c), (d), and (e)
of this section. If placed on the label, the
statement must be under the heading
‘‘Storage and Disposal.’’ If the statement
is placed on the container, an

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appropriate referral statement, such as
‘‘Refilling limitations are on the
container.’’ must be placed under the
heading ‘‘Storage and Disposal.’’
*
*
*
*
*
(c) Modification. EPA may, on its own
initiative or based on data or
information submitted by any person,
modify or waive the requirements of
this section or permit or require
alternative labeling statements.
(d) Exemption for articles. Pesticidal
articles that are not exempted from
FIFRA regulation by § 152.25(a) of this
chapter are exempt from the
requirements of this section.
(e) Exemption for transport vehicles.
Transport vehicles are exempt from the
requirements of this section.
■ 6. Amend § 156.144 by revising
paragraph (a), and by adding paragraphs
(e), (f), and (g) to read as follows:
§ 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
§ 156.146 and § 156.156. The residue
removal instructions are required for
both nonrefillable and refillable
containers.
*
*
*
*
*
(e) Exemption for gases. Pesticide
products that are gaseous at atmospheric
temperature and pressure are exempt
from the residue removal instruction
requirements in this section through
§ 156.156.
(f) Exemption for articles. Pesticidal
articles that are not exempted from
FIFRA regulation by § 152.25(a) of this
chapter are exempt from the residue
removal instruction requirements in this
section through § 156.156.
(g) Exemption for transport vehicles.
Transport vehicles are exempt from the
requirements in this section through
§ 156.156.
■ 7. Revise § 156.159 to read as follows:
§ 156.159 Compliance date.

Any pesticide product released for
shipment by a registrant after August 16,
2010 must bear a label that complies
with §§ 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
will continue to read as follows:

■

Authority: 7 U.S.C. 136 through 136y.
■

9. Amend § 165.3 as follows:

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a. By adding an introductory
paragraph.
■ b. By revising the definitions for
‘‘Agricultural pesticide’’, ‘‘Dry
pesticide’’, ‘‘Nonrefillable container’’.
■ c. By revising the introductory text of
the definition of ‘‘Pesticide compatible’’
which immediately follows the
definition for the term ‘‘Owner’’.
■ d. By revising the definition of the
term ‘‘Pesticide compatible’’ which
immediately precedes the definition of
the term ‘‘Pesticide dispensing area.’’
■ e. By revising the definition of the
terms ‘‘Rinsate’’, and ‘‘Washwater.’’
■ f. By adding alphabetically new
definitions for ‘‘Capacity,’’ ‘‘Dilutable,’’
and ‘‘Suspension concentrate’’.
■ g. By removing the definitions for
‘‘Flowable concentrate,’’ ‘‘Pressure
rinse,’’ and ‘‘Triple rinse.’’
■

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§ 165.3

Definitions.

Terms used in this part have the same
meaning as in the Act and part 152 of
this chapter. In addition, as used in this
part, the following terms shall have the
meanings set forth below.
*
*
*
*
*
Agricultural pesticide means any
pesticide product labeled for use in or
on a farm, forest, nursery, or
greenhouse.
*
*
*
*
*
Capacity means, as applied to
containers, the rated capacity of the
container.
*
*
*
*
*
Dilutable means that the pesticide
product’s labeling allows or requires the
pesticide product to be mixed with a
liquid diluent prior to application or
use.
Dry pesticide means any pesticide
that is in solid form and that has not
been combined with liquids; this
includes formulations such as dusts,
wettable powders, dry flowables, watersoluble powders, granules, and dry
baits.
*
*
*
*
*
Nonrefillable container means a
container that is not a refillable
container and that is designed and
constructed for one-time use and is not
intended to be filled again with a
pesticide for sale or distribution.
Reconditioned containers are
considered to be nonrefillable
containers.
*
*
*
*
*
Pesticide compatible as applied to
containers means that the container
construction materials will not
chemically react with the formulation.
A container is not compatible with the

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Jkt 217001

formulation if, for example, the
formulation:
*
*
*
*
*
Pesticide compatible as applied to
containment means that the
containment construction materials are
able to withstand anticipated exposure
to stored or transferred substances
without losing the capability to provide
the required containment of the same or
other substances within the
containment area.
*
*
*
*
*
Rinsate means the liquid resulting
from the rinsing of the interior of any
equipment or container that has come in
direct contact with any pesticide.
*
*
*
*
*
Suspension concentrate means a
stable suspension of solid particulate
active ingredients in a liquid intended
for dilution with water before use.
*
*
*
*
*
Washwater means the liquid resulting
from the rinsing of the exterior of any
equipment or containers that have or
may have come in direct contact with
any pesticide or system maintenance
compound, such as oil or antifreeze.
■ 10. Amend § 165.20 by revising
paragraph (c) to read as follows:
§ 165.20 General provisions.

*

*
*
*
*
(c) When do I have to comply? Any
pesticide product packaged in a
nonrefillable container and released for
shipment by you after August 16, 2009
must be packaged in a nonrefillable
container that complies with the
regulations of this subpart.
■ 11. Amend § 165.23 by revising the
heading of paragraph (d) to read as
follows:
§ 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 § 165.25 by revising
paragraphs (a), (b), and (f)(2) to read as
follows:
§ 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

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64225

CFR 171.8 must be packaged in a
nonrefillable container that, if portable,
is designed, constructed, and marked to
comply with the requirements of 49 CFR
173.4, 173.5, 173.6, 173.24, 173.24a,
173.24b, 173.28, 173.155, 173.203,
173.213, 173.240(c), 173.240(d),
173.241(c), 173.241(d), part 178, and
part 180 that are applicable to a Packing
Group III material, or, if subject to a
special permit, according to the
applicable requirements of 49 CFR part
107 subpart B. The requirements in this
paragraph apply to the pesticide
product as it is packaged for
transportation in commerce.
(b) What DOT standards do my
nonrefillable containers have to meet
under this part if my pesticide product
is a DOT hazardous material? (1) If your
pesticide product meets the definition
of a hazardous material in 49 CFR 171.8,
the DOT requires your pesticide product
to be packaged according to 49 CFR
parts 171-180 or, if subject to a special
permit, according to the applicable
requirements of 49 CFR part 107 subpart
B.
(2) For the purposes of these
regulations, a pesticide product that
meets the definition of a hazardous
material in 49 CFR 171.8 must be
packaged in a nonrefillable container
that, if portable, is designed,
constructed, and marked to comply with
the requirements of 49 CFR parts 171180 or, if subject to a special permit,
according to the applicable
requirements of 49 CFR part 107 subpart
B. The requirements in this paragraph
apply to the pesticide product as it is
packaged for transportation in
commerce.
*
*
*
*
*
(f) * * *
(2) The test must be conducted only
if the pesticide product is a suspension
concentrate or if EPA specifically
requests the records on a case by case
basis.
*
*
*
*
*
■ 13. Amend § 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:
§ 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
§§ 165.25 through 165.27 and is
distributed or sold in nonrefillable
containers, you must maintain the
records listed in this section for as long
as a nonrefillable container is used to
distribute or sell the pesticide product

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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 § 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 § 165.40 by adding
paragraph (b)(3), and by revising
paragraph (c) to read as follows:
§ 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, § 165.45(a)(2)
provides an exemption from some of the
requirements in § 165.45(a)(1) .
(c) When do I have to comply? Any
pesticide product packaged in a
refillable container and released for
shipment by you after August 16, 2011
must be packaged in a refillable
container that complies with the
regulations of this subpart.
■ 15. Amend § 165.43 by revising the
introductory text of paragraphs (c) and
(d) and the heading of paragraph (e) and
(e)(1), and by revising paragraphs (f) and
(g) to read as follows:

§ 165.45 Refillable container standards.

§ 165.43 Scope of pesticide products
included.

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*

*
*
*
*
(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
§ 165.45(d) regarding marking and
§ 165.45(e) regarding openings. For the
purposes of this subpart, an

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antimicrobial swimming pool product is
a pesticide product that satisfies both of
the following conditions:
*
*
*
*
*
(e) How will EPA determine if an
antimicrobial pesticide product
otherwise exempted must be subject to
the regulations in this subpart to
prevent an unreasonable adverse effect
on the environment? (1) EPA may
determine that an antimicrobial
pesticide product otherwise exempted
by paragraph (c) of this section must be
subject to the refillable container
regulations in this subpart to prevent an
unreasonable adverse effect on the
environment if all of the following
conditions exist:
*
*
*
*
*
(f) What other pesticide products are
subject to the regulations in this
subpart? The regulations in this subpart
apply to all pesticide products other
than manufacturing use products, plantincorporated protectants, and
antimicrobial products that are exempt
by paragraph (c) of this section.
Antimicrobial products covered under
paragraph (d) of this section are subject
to the regulations indicated in
paragraph (d) of this section.
(g) What does ‘‘pesticide product’’ or
‘‘pesticide’’ mean in the rest of this
subpart? In § 165.43(h) through
§ 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 § 165.45 by revising
paragraphs (a)(1), (b), (e), the
introductory text of paragraph (f) and
paragraph (f)(2) to read as follows:
(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.
*
*
*
*
*

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(b) What DOT standards do my
refillable containers have to meet under
this part if my pesticide product is a
DOT hazardous material? (1) If your
pesticide product meets the definition
of a hazardous material in 49 CFR 171.8,
the DOT requires your pesticide product
to be packaged according to 49 CFR
parts 171-180 or, if subject to a special
permit, according to the applicable
requirements of 49 CFR part 107 subpart
B.
(2) For the purposes of these
regulations, a pesticide product that
meets the definition of a hazardous
material in 49 CFR 171.8 must be
packaged in a refillable container that,
if portable, is designed, constructed, and
marked to comply with the
requirements of 49 CFR parts 171-180
or, if subject to a special permit,
according to the applicable
requirements of 49 CFR part 107 subpart
B. The requirements in this paragraph
apply to the pesticide product as it is
packaged for transportation in
commerce.
*
*
*
*
*
(e) What standards for openings do
my refillable containers have to meet? If
your refillable container is a portable
pesticide container that is designed to
hold liquid pesticide formulations and
is not a cylinder that complies with the
DOT Hazardous Materials Regulations
in 49 CFR parts 171-180, each opening
of the container other than a vent must
have a one-way valve, a tamper-evident
device or both. A one-way valve may be
located in a device or system separate
from the container if the device or
system is the only reasonably
foreseeable way to withdraw pesticide
from the container. A vent must be
designed to minimize the amount of
material that could be introduced into
the container through it.
(f) What standards do my stationary
pesticide containers have to meet? If a
stationary pesticide container designed
to hold undivided quantities of
pesticides equal to or greater than 500
gallons (1,890 liters) of liquid pesticide
or equal to or greater than 4,000 pounds
(1,818 kilograms) of dry pesticide is
located at the refilling establishment of
a refiller operating under written
contract to you, the stationary pesticide
container must meet the following
standards:
*
*
*
*
*
(2) Each stationary container of liquid
pesticides must meet all of the following
standards:
(i) Each stationary container of liquid
pesticides must be equipped with a vent
or other device designed to relieve

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excess pressure, prevent losses by
evaporation, and exclude precipitation.
(ii) External sight gauges, which are
pesticide-containing hoses or tubes that
run vertically along the exterior of the
container from the top to the bottom, are
prohibited on stationary containers of
liquid pesticides.
(iii) Each connection on a stationary
container of liquid pesticides that is
below the normal liquid level must be
equipped with a shutoff valve which is
capable of being locked closed. A
shutoff valve must be located within a

secondary containment unit if one is
required by subpart E of this part.
*
*
*
*
*
■ 17. Amend § 165.60 by revising
paragraph (c) to read as follows:
§ 165.60 General provisions.

*

*
*
*
*
(c) When do I have to comply? Any
pesticide product repackaged into a
refillable container and released for
shipment by you after August 16, 2011
must be repackaged in compliance with
the regulations of this subpart.

§ 165.63 Scope of pesticide products
included.

*

*
*
*
*
(d) * * * (1) An antimicrobial
swimming pool product that is not
exempt by paragraph (a), (b), or (c) of
this section must comply with all of the
regulations in this subpart except for the
following requirements:

Requirement for registrants
who distribute or sell directly in
refillable containers

Requirement
Recordkeeping specific to each instance of repackaging

Requirement for refillers who
are not registrants

§ 165.65(i)(2)

§ 165.70(j)(2)

Container inspection: criteria regarding a serial number or other identifying
code

§ 165.65(e)(2)

§ 165.70(f)(2)

Container inspection: criteria regarding one-way valve or tamper-evident de­
vice

§ 165.65(e)(3)

§ 165.70(f)(3)

Cleaning requirement: criteria regarding one-way valve or tamper-evident de­
vice

§ 165.65(f)(1)

§ 165.70(g)(1)

§ 165.65(g)

§ 165.70(h)

Cleaning if the one-way valve or tamper-evident device is not intact

*

*
*
*
*
19. Amend § 165.65 by revising
paragraph (i)(2)(iii) to read as follows:

■

§ 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 § 165.67 by revising
paragraphs (b)(2)(ii) and (d) to read as
follows:

*

*

*
*
*
*
(b) * * *
(2) * * *
(ii) The pesticide product is
repackaged by a refilling establishment
registered with EPA as required by
§ 167.20 of this chapter at the site of a
user who intends to use or apply the
product.
*
*
*
*
*
(d) When must I provide the written
contract to the refiller? If you allow a
refiller to repackage your product as
specified in paragraph (b) of this section
you must provide the written contract
referred to in paragraph (b)(3) of this
section to the refiller before you

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17:40 Oct 28, 2008

Jkt 217001

distribute or sell the pesticide product

to the refiller.

*
*
*
*
*

■ 21. Amend § 165.70 by revising
paragraphs (b)(2)(ii), (e)(5)(i), and
(j)(2)(iii) to read as follows:
§ 165.70 Refillers who are not registrants.

§ 165.67 Registrants who distribute or sell
pesticide products to refillers for
repackaging.

mstockstill on PROD1PC66 with RULES9

18. Amend § 165.63 by revising
paragraph (d)(1) to read as follows:

■

*
*
*
*
(b) * * *
(2) * * *
(ii) The pesticide product is
repackaged by a refilling establishment
registered with EPA as required by
§ 167.20 of this chapter at the site of a
user who intends to use or apply the
product.
*
*
*
*
*
(e) * * *
(5) * * *
(i) The written contract referred to in
paragraph (b)(3) of this section from the
pesticide product’s registrant.
*
*
*
*
*
(j) * * *
(2) * * *
(iii) The serial number or other
identifying code of the refillable
container.
■ 22. Amend § 165.80 by revising
paragraph (b)(1) to read as follows:
§ 165.80 General provisions.

*

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*
*
(b) ***

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*

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*

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(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 § 165.85 by revising
paragraph (a)(3),the introductory text of
paragraph (c), paragraphs (c)(1), (c)(2),
(d)and (f) to read as follows:
§ 165.85 Design and capacity
requirements for new structures.

(a) * * *
(3) The containment structure must be
made of materials compatible with the
pesticides stored. In this case,
compatible means able to withstand
anticipated exposure to stored or
transferred substances and still provide
containment of those same or other
substances within the containment area.
*
*
*
*
*
(c) For new secondary containment
units for stationary containers of liquid
pesticides and new containment pads in
pesticide dispensing areas, what are the
capacity requirements? These are the
capacity requirements:
(1) New secondary containment units
for stationary containers of liquid
pesticides, if protected from
precipitation, must have a capacity of at
least 100 percent of the volume of the
largest stationary pesticide container
plus the volume displaced by other

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containers and appurtenances within
the unit.
(2) New secondary containment units
for stationary containers of liquid
pesticides, if exposed to or unprotected
from precipitation, must have a capacity
of at least 110 percent of the volume of
the largest stationary pesticide container
plus the volume displaced by other
containers and appurtenances within
the unit.
*
*
*
*
*
(d) For new secondary containment
units for stationary containers of liquid
pesticides, what are the specific design
requirements? You must either anchor
or elevate each stationary container of
liquid pesticides protected by a new
secondary containment unit to prevent
flotation in the event that the secondary
containment unit fills with liquid.
*
*
*
*
*
(f) For new secondary containment
units for stationary containers of dry
pesticides, what are the specific design
requirements? These are the specific
design requirements for new secondary
containment units for stationary
containers of dry pesticides:
(1) The stationary containers of dry
pesticides within the containment unit
must be protected from wind and
precipitation.
(2) Stationary containers of dry
pesticides must be placed on pallets or
a raised concrete platform to prevent the
accumulation of water in or under the
pesticide.
(3) The storage area for stationary
containers of dry pesticides must
include a floor that extends completely
beneath the pallets or raised concrete
platforms on which the stationary
containers of dry pesticides must be
stored.
(4) The storage area for stationary
containers of dry pesticides must be
enclosed by a curb a minimum of 6
inches high that extends at least 2 feet
beyond the perimeter of the container.
■ 24. Amend § 165.87 by revising
paragraph (a)(3),the introductory text of
paragraph (c), paragraphs (c)(1), (d)and
(f) to read as follows:

mstockstill on PROD1PC66 with RULES9

§ 165.87 Design and capacity
requirements for existing structures.

(a) * * *
(3) The containment structure must be
made of materials compatible with the
pesticides stored. In this case,
compatible means able to withstand
anticipated exposure to stored or
transferred substances and still provide
containment of those same or other
substances within the containment area.
*
*
*
*
*

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(c) For existing secondary
containment units for stationary
containers of liquid pesticides and
existing containment pads in pesticide
dispensing areas, what are the capacity
requirements? These are the capacity
requirements:
(1) Existing secondary containment
units for stationary containers of liquid
pesticides must have a capacity of at
least 100 percent of the volume of the
largest stationary pesticide container
plus the volume displaced by other
containers and appurtenances within
the unit.
*
*
*
*
*
(d) For existing secondary
containment units for stationary
containers of liquid pesticides, what are
the specific design requirements? You
must either anchor or elevate each
stationary container of liquid pesticides
protected by an existing secondary
containment unit to prevent flotation in
the event that the secondary
containment unit fills with liquid.
*
*
*
*
*
(f) For existing secondary
containment units for stationary
containers of dry pesticides, what are
the specific design requirements? These
are the specific design requirements for
existing secondary containment units
for stationary containers of dry
pesticides:
(1) The stationary containers of dry
pesticides within the containment unit
must be protected from wind and
precipitation.
(2) Stationary containers of dry
pesticides must be placed on pallets or
a raised concrete platform to prevent the
accumulation of water in or under the
pesticide.
(3) The storage area for stationary
containers of dry pesticides must
include a floor that extends completely
beneath the pallets or raised concrete
platforms on which the stationary
containers of dry pesticides must be
stored.
(4) The storage area for stationary
containers of dry pesticides must be
enclosed by a curb a minimum of 6
inches high that extends at least 2 feet
beyond the perimeter of the container.
■ 25. Amend § 165.90 by revising
paragraphs (a)(2), (a)(5), (b)(1), (b)(2),
and (b)(3) to read as follows:
§ 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

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that ensures protection of human health
and the environment (including surface
water and groundwater) and maximum
practicable recovery of the pesticide
spilled or leaked. Cleanup must occur
no later than the end of the day on
which pesticides have been spilled or
leaked except in circumstances where a
reasonable delay would significantly
reduce the likelihood or severity of
adverse effects to human health or the
environment.
*
*
*
*
*
(5) Ensure that each lockable valve on
a stationary pesticide container, if it is
required by § 165.45(f), is closed and
locked, or that the facility is locked,
whenever the facility is unattended.
*
*
*
*
*
(b) * * *
(1) Inspect each stationary pesticide
container and its appurtenances and
each containment structure at least
monthly during periods when pesticides
are being stored or dispensed on the
containment structure. Your inspection
must look for visible signs of wetting,
discoloration, blistering, bulging,
corrosion, cracks or other signs of
damage or leakage.
(2) Initiate repair to any areas showing
visible signs of damage and seal any
cracks and gaps in the containment
structure or appurtenances with
material compatible with the pesticide
being stored or dispensed no later than
the end of the day on which damage is
noticed and complete repairs within a
time frame that is reasonable, taking
into account factors such as the weather,
and the availability of cleanup
materials, trained staff, and equipment.
(3) Not store any additional pesticide
on a containment structure if the
structure fails to meet the requirements
of this subpart until suitable repairs
have been made.
■ 26. Amend § 165.97 by revising
paragraph (b)(1) to read as follows:
§ 165.97 States with existing containment
programs.

*

*
*
*
*
(b) * * *
(1) The State must submit a letter and
any supporting documentation to EPA.
Supporting documentation must
demonstrate that the State’s program is
providing environmental protection
equivalent to or more protective than
that expected to be provided by the
Federal regulations in this subpart.
*
*
*
*
*
[FR Doc. E8–25665 Filed 10–28–08; 8:45 am]
BILLING CODE 6560–50–S

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