2024-26671. Pesticides; Flexible Packaging; Child Resistant Packaging Requirements; Notice of Clarification

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Environmental Protection Agency

1. [EPA-HQ-OPP-2023-0607; FRL-11686-02-OCSPP]

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

SUMMARY:

In the Federal Register of February 8, 2024, the Environmental Protection Agency (EPA or Agency) announced it had determined that pesticide products marketed in flexible packaging ( e.g., pouches) 20 fluid ounces or less in size with labeling either directly recommending residential use or reasonably interpreted to permit residential use are subject to the Child Resistant Packaging (CRP) mitigation measures, regardless of acute toxicity requirements, based on the visual similarity of the packaging design to children's food products. With this document, the Agency is clarifying that the flexible packaging intended to be addressed by the determination is the packaging known as flexible spouted pouches, also known as a spouted pouch, spouted pouch and cap, or fitment pouch. The determination does not apply to non-spouted flexible packaging such as the flexible packaging of household cleaning wipes and pet spot on pipettes or applicators.

DATES:

If a registrant has a registered pesticide product in flexible packaging that is not compliant with the clarified determination, the registrant must contact the appropriate EPA Product Manager by May 14, 2025.

ADDRESSES:

The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2023-0607, is available online at https://www.regulations.gov. Additional information about dockets generally, along with instructions for visiting the docket in-person is available at https://www.epa.gov/​dockets.

FOR FURTHER INFORMATION CONTACT:

Charles Smith, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: [phone]; email address: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Does this action apply to me?

You may be affected by this action if you currently market or propose to market a pesticide in flexible spouted packages. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).

If you have questions about the applicability of this determination to you, please consult the person listed under FOR FURTHER INFORMATION CONTACT . ( print page 90281)

II. What is the Agency's authority for taking this action?

EPA is taking this action pursuant to the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq., as amended by the Pesticide Registration Improvement Act of 2022 (referred to as “PRIA 5”), Public Law 117-328, and the packaging requirements for pesticides and devices promulgated in 40 CFR part 157.

III. What action is the Agency taking?

With this document, the Agency is clarifying the scope of the determination provided in the Federal Register of February 8, 2024 (89 FR 8675) (FRL-11686-01-OCSPP), which provided EPA's determination that pursuant to 40 CFR 157.22(a)(6) and (b), pesticide products marketed in flexible packaging ( e.g., pouches) 20 fluid ounces or less in size with labeling either directly recommending residential use or reasonably interpreted to permit residential use are subject to Child Resistant Packaging (CRP) mitigation measures, regardless of acute toxicity requirements or labeling indicating the product is considered a Restricted Use Pesticide, based on the visual similarity of the packaging design to children's food products. EPA has seen an increased interest from pesticide manufacturers in the use of flexible spouted packaging to store and distribute products, especially insecticides and herbicides that residential users can dilute and apply to their lawn and garden.

Subsequent to that publication, stakeholders communicated to EPA that the notice created confusion and requested that EPA publish a notice that better defines the scope of the products affected by that determination. With this notice, EPA is providing the clarification requested by stakeholders. Specifically, EPA is clarifying that the determination applies to flexible spouted pouches, also identified as spouted pouches, spouted pouches and cap, or fitment pouches. It does not apply to flexible packaging without a spout, such as the non-spouted flexible packaging of household cleaning wipes or pet spot on pipettes or applicators.

Taken together, the determination provided in the Federal Register of February 8, 2024, and this clarification to that determination, further convey to applicants and registrants that CRP is necessary for this packaging type at the size limits specified in the determination, regardless of acute toxicity, when labeled for or reasonably interpreted to permit residential use and will be evaluated in applications for new products or for amendment of currently registered products submitted under FIFRA section 33, i.e., PRIA-5. Changes to packaging to implement CRP measures on existing products must be submitted as a PRIA R340/341, A470, or B680/681, not as a fast-track non-PRIA amendment, to allow for CRP data review. This document provides clarification for `flexible pouches' and does not change any of the requirements or recommended mitigations provided in the determination of February 8, 2024.

Authority:7 U.S.C. 136 et seq.

Dated: November 4, 2024.

Edward Messina,

Director, Office of Pesticide Programs.