[Federal Register Volume 63, Number 35 (Monday, February 23, 1998)]
[Rules and Regulations]
[Pages 9078-9083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4562]
[[Page 9077]]
_______________________________________________________________________
Part IV
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 156
Flammability Labeling Requirements for Total Release Fogger Pesticides;
Final Rule
Federal Register / Vol. 63, No. 35 / Monday, February 23, 1998 /
Rules and Regulations
[[Page 9078]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 156
[OPP-36189; FRL-5748-7]
RIN 2070-AC60
Flammability Labeling Requirements for Total Release Fogger
Pesticides
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: This rule requires specific precautionary labeling relating to
the flammability of total release fogger pesticides. EPA has found
that, as currently labeled, total release foggers pose an unreasonable
risk to property and pesticide users from fires and explosions that can
be caused by a build up of extremely flammable propellants. EPA expects
that the additional flammability label warnings required by this rule
will reduce the potential for fires and explosions by alerting
consumers to the dangers of total release foggers. The required
labeling will also provide specific directions for proper use of these
products with minimal costs to industry or consumers. Although EPA
issued a proposed rule and received public comments in 1994, this
action includes some labeling requirements that differ from those
discussed in the proposal. EPA is therefore issuing this action as a
direct final rule in order to provide an opportunity for affected
entities to submit adverse comments on the new labeling requirements.
If EPA receives any adverse comments on the addition of these labeling
requirements for pesticides within 30 days from the date of this final
rule, EPA will withdraw that paragraph of the rule to which adverse
comments pertain. At that point, EPA will issue a proposed rule
addressing this issue and will provide a 30-day period for public
comment. If no adverse comments are received, the rule will become
effective on the date specified.
DATES: This rule will become effective on April 24, 1998. Comments must
be received by March 25, 1998.
ADDRESSES: By mail, submit written comments to: Public Information and
Records Integrity Branch, Information Resources and Services Division
(7502C), Office of Pesticide Programs, Environmental Protection Agency,
401 M St., SW., Washington, DC 20460. In person, deliver comments to:
Rm. 119, CM #2, 1921 Jefferson Davis Highway, Arlington, VA.
Comments and data may also be submitted electronically to: docket@epamail.epa.gov. Follow the instructions under Unit VIII. of
this document. No Confidential Business Information (CBI) should be
submitted through e-mail.
Information submitted as a comment concerning this document may be
claimed confidential by marking any part or all of that information as
CBI. Information so marked will not be disclosed except in accordance
with procedures set forth in 40 CFR part 2. A copy of the comment that
does not contain CBI must be submitted for inclusion in the public
record. Information not marked confidential will be included in the
public docket by EPA without prior notice. The public docket is
available for public inspection in Rm. 119 at the Virginia address
given above, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding
legal holidays.
FOR FURTHER INFORMATION CONTACT: By mail: Jim Downing, Labeling Team,
Field and External Affairs Division (7506C), Office of Pesticide
Programs, Environmental Protection Agency, 401 M St., SW., Washington,
DC 20460. Office location, telephone number, and e-mail address:
Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington VA, 703-308-
9071, e-mail: downing.jim@epamail.epa.gov.
SUPPLEMENTARY INFORMATION:
I. Regulated Entities
------------------------------------------------------------------------
Examples of Regulated
Category Entities
------------------------------------------------------------------------
Industry Persons who sell and
distribute total release
fogger products.
------------------------------------------------------------------------
This table is not exhaustive, but is a guide to the entities EPA
believes are regulated by this action. Read carefully the applicability
criteria in Sec. 156.10(h)(2)(iii)(C) of the regulatory text to decide
whether this rule applies to you.
II. Background
A. Authority
This amendment to the labeling requirements for pesticides and
devices (40 CFR 156.10) is issued under the authority of sections 3, 6,
12, and 25 of the Federal Insecticide, Fungicide, and Rodenticide Act,
as amended (FIFRA), 7 U.S.C. 136 through 136y. FIFRA section 25(a)
authorizes the Administrator of EPA to prescribe regulations to carry
out the provisions of FIFRA. The statutory standard that is the basis
for Agency regulation of pesticide labeling is contained in section
2(q) of FIFRA, which defines a ``misbranded'' pesticide and enumerates
specific labeling deficiencies that constitute misbranding. EPA's
labeling regulations interpret and elaborate upon the statutory
standard.
Under FIFRA section 3(c)(5), the labeling of the pesticide must
comply with the requirements of FIFRA. Sections 12(a)(1)(E) and (F) of
FIFRA provide that it is unlawful to distribute or sell a pesticide or
device that is misbranded. Under FIFRA section 2(q), a pesticide may be
considered misbranded in a number of circumstances. Sections 2(q)(1)(E)
through (G) provide part of the basis for EPA's authority to impose
label restrictions to protect health and the environment. Specifically,
sections 2(q)(1)(F) and (G) provide that a pesticide is misbranded if
its labeling does not contain directions for use or if the label does
not contain a warning or caution statement adequate to protect health
and the environment. Under FIFRA section 2(x), the term ``protect
health and the environment'' means protect against any unreasonable
adverse effects on the environment. FIFRA section 2(bb) defines the
term ``unreasonable adverse effects on the environment'' to include any
unreasonable risk to humans or the environment, taking into account the
economic, social, and environmental costs and benefits of the use of
any pesticide. With this final rule, EPA is giving notice of its
determination that total release fogger pesticides that are not labeled
in accordance with the directions for use and warning statements
required by this rule will be considered misbranded and subject to
possible enforcement action.
Each provision described above is designed to prevent the sale or
distribution of pesticides that, due to inadequate labeling, might
cause unreasonable adverse effects to the environment.
B. Proposed Rule
EPA issued in the Federal Register of April 15, 1994 (59 FR 18058)
(FRL-4186-4), a proposal to require additional precautionary labeling
relating to the flammability of total release fogger pesticides. From
the review of the fire/explosion incidents involving total release
foggers, EPA found that foggers as currently labeled present a risk of
unreasonable adverse effects from fires and/or explosions caused by a
build up of extremely
[[Page 9079]]
flammable propellants. EPA concluded that this risk is not adequately
addressed in current labeling of total release foggers. To mitigate
this risk, EPA proposed specific label requirements including physical
and chemical hazards warning statements, graphic symbols, and specific
directions for total release foggers, which if complied with, would be
adequate to human health and the environment. Comments about the scope
of the proposed rule were also solicited.
Because comments received in response to the proposal have caused
the Agency to include in this final rule certain requirements which
were not discussed in the proposal (see discussion in Unit III.B., of
this preamble), EPA is issuing this action as a direct final rule in
order to provide an opportunity for affected entities to submit adverse
comments on the new labeling requirements.
C. Hazards Caused by Total Release Foggers
For several years EPA has received reports of incidents of fires
and explosions involving total release foggers. For instance, the New
York City Fire Department (NYCFD) reported 40 incidents of fires or
explosions (28% resulting in personal injuries) reported to be caused
by total release foggers over a 12-year period. Fifteen of the 40
reported incidents occurred in 1990 and 1991 alone. In 32 of those 40
documented incidents, the specific total release fogger product
involved was identified. In its proposal, the Agency identified many
incidents, and solicited for additional incidents involving foggers.
However, no additional incidents were submitted in the comments, but
the Agency did receive reports of several incidents connected with use
of foggers from various other locations around the country from states
and media articles which revealed extensive property damage. These
reports are in the public information docket for this rule.
Fire experts have indicated to the Agency that the actual number of
such incidents occurring around the country is much higher. Due to the
lack of a nationwide reporting system that could capture these type of
fire incidents, EPA believes the reports it has received are only the
``tip of the iceberg''; annually, there are many more such incidents
occurring for which EPA does not receive reports.
III. Comments Received on the Proposed Rule
Twenty-two comments from registrants, trade associations, public
interest groups, and others were received on the proposed rule. Most of
the comments generally agreed with the need for label improvement for
total release foggers. The significant comments are presented below
with EPA's response to the comment. A detailed response to comments is
available in the public record.
A. Graphic Symbols
EPA proposed the use of graphic symbols (one symbol depicting fire
and one symbol representing explosive potential) to alert users of the
potential dangers of misuse of total release foggers. Six commenters
expressed concern with the use of graphic symbols or they were
definitely opposed to the use of graphic symbols. Their biggest
concerns were that the proposed symbols would be confusing, and could
unduly alarm consumers or that consumers might ``misunderstand or
misinterpret'' the meaning of the symbols. One commenter stated, ``We
have a strong concern that users will not understand the graphic
symbols. For example, the bursting symbol may actually portray to a
person that the product is meant to burst to disperse the product
properly during usage when such, of course, is not the case. On the
other hand, the symbol may be interpreted by others to mean that it
presents far more of a danger than actually exists. Unlike an
industrial worker audience, consumers are not generally educated as to
the meaning of symbols.''
As an alternative, one of the six commenters suggested using the
fire symbol, but not the proposed explosion (bursting) symbol. One of
the commenters supporting the use of symbols encouraged the use of the
internationally accepted graphic symbol for fire.
The Agency has decided to retain the use of the fire symbol, but to
eliminate the proposed explosion symbol. The Agency believes the fire
symbol is widely recognized and is necessary to capture the pesticide
user's attention to alert the user to the potential hazards of these
products. EPA's fire symbol is similar to many other fire symbols used
by other agencies for many years. The U.S. Department of
Transportation, the European Community, and Canada use a fire symbol
that incorporates a fire as a symbol of flammability. Because there are
slight variations in the presentation of the fire symbol among various
authorities, and to allow maximum flexibility, EPA has decided to allow
use of an ``equivalent'' fire symbol as an alternative to the one in
the proposed rule. Since a fire graphic is widely understood by the
public, EPA believes that slight variations among existing symbols will
not reduce the value of the information conveyed by the symbol. On the
other hand, the Agency agreed with several commenters that the
explosion symbol on total release foggers could be misunderstood or
misinterpreted or that it might not be effective. Therefore the
proposed explosion symbol was omitted from the final rule.
B. Number of Foggers to be Used and Pilot Lights
EPA proposed to limit the number of foggers to be used. By limiting
the use to one fogger per room and eliminating all ignition sources,
the risks of fire and/or explosions can be substantially reduced, if
not eliminated. From an evaluation of the incidents, the Agency
recognizes that fires/explosions are generally due to excessively high
concentrations of highly flammable gases (propellent in the foggers) in
the area being fogged. This is caused by too many foggers being used
with the presence of an ignition source. Furthermore, the Agency has
learned from fire officials that the elimination of ignition sources is
very important to safe use of foggers containing highly flammable
propellants. Several fire officials EPA talked with acknowledged the
risk of consumers extinguishing and relighting their pilot lights.
However, they agreed that those risks were far outweighed by the risks
associated with activation of foggers with pilot lights unextinguished.
A record of these conversations is available in the public information
docket. Therefore, EPA has concluded that limiting the number of
foggers to be used and eliminating all ignition sources are paramount
to continued safe use of total release foggers. No commenter disagreed
with the proposal to eliminate all ignition sources before using a
total release fogger. In fact, two commenters recommended the label
instruct users to extinguish pilot lights and other ignition sources.
In earlier comments on a previous notice dated February 19, 1991 (56 FR
6856), a commenter had raised the issue of the hazard of instructing
fogger users (consumers) to turn off their gas pilot lights; the danger
of consumers extinguishing and relighting their own pilot lights was
emphasized.
After consultation with fire safety professionals and gas industry
representatives, the Agency has decided to instruct users to turn off
all ignition sources such as pilot lights, other open flames and
running electrical appliances. One fire professional suggested
referring fogger users to their
[[Page 9080]]
gas utility or management company for assistance in extinguishing and
relighting pilot lights. The Agency believes the risks of consumers
improperly extinguishing and relighting pilot lights are outweighed by
the benefits of eliminating all ignition sources before total release
foggers are used; and that instructing consumers to contact their gas
utility or management company for assistance will further reduce any
risks.
This approach of limiting the number of foggers used and
extinguishing pilot lights will also eliminate the issues from the
proposed rule of the six-foot ``buffer zone'' and the square footage
limitation. As was pointed out by one commenter, the flammability of
total release fogger use is not a function of distance from an ignition
source, but a function of the concentration of the highly flammable
(propellant) gas. By eliminating sources of ignition altogether, risks
can be reduced without complex decisions by consumers about distances
between foggers and ignition sources. By simplifying the label
instructions, EPA believes consumers are more likely to be able to
comply.
One commenter, S.C. Johnson Son, Inc. conducted a consumer-based
label testing and development program to determine the most effective
method of improving consumer comprehension regarding the proper use of
total release foggers. This study included qualitative research to
decide which fogger labeling best communicates proper use and safety
information and evaluated consumers' perceptions of room size.
Quantitative research, also a part of the study program, tested various
fogger labels, including a fogger label amended according to the
proposed rule. An ``optimized label'' developed from the quantitative
research was also tested, which included the simpler instructions ``Do
not use more than one fogger in a room.'' and ``Extinguish All Flames
and Pilot Lights.''
The results of the S.C. Johnson study suggested limiting the user
to only one fogger per room, as is shown in the final rule language.
The study showed that consumers have difficulty accurately estimating
room size. Less than 10% of consumers could accurately estimate cubic
feet. Therefore, the approach (``DO NOT use more than one fogger per
____ square feet.'') of the proposed rule was judged by EPA not to be
very effective after all. However, limiting the use to one fogger per
room to manage the concentration of highly flammable gases in the area
to be fogged was judged to be the most effective. Furthermore, EPA has
determined that a limit of one fogger per room will be adequately
protective. An added safety factor is the limit of ``Do not use in a
room 5 ft. x 5 ft. or smaller. . .'', as was shown on the ``optimized
label'' used in the S.C. Johnson study. This limit would help a fogger
user avoid using too many foggers in a dwelling with many small rooms.
This limit of a room 5 ft. x 5 ft. (the typical ``walk-in'' closet or
small bathroom) or smaller was judged to be appropriate.
The Agency has attempted to allow efficacious, but not excessive
use, while creating a restriction that can be easily understood and
carried out by the typical fogger user. The circumstances in which
foggers can be used vary widely. Room size, natural ventilation,
ambient temperatures, humidity, presence and proximity of ignition
sources, etc. are different from structure to structure, yet each
factor can have an impact on risk. While the one fogger per room
approach may allow for more concentrated use than that permitted by the
language of the proposed rule, it is still within a safe level of use
considering the fact that the ignition sources will be eliminated as
well. EPA also believes that the efficacy of foggers will be unaffected
by this requirement. Users are far more likely to understand and
successfully follow the one fogger per room approach than would have
been the case from the formula approach of the proposed rule (``DO NOT
use more than one fogger per ____ square feet.''). Based on the above,
EPA has determined that the ``one fogger per room'' label language
achieves equivalent risk mitigation as the language of the proposed
rule and has adopted this language and included it in the final rule.
C. Flammability Terminology
EPA proposed the use of the term ``extremely flammable'' to
describe the hazard of the hydrocarbon propellant. Several commenters
opposed the use of this term, stating that it would conflict with
required flammability labeling already required in the Physical and
Chemical Hazards statement for the product as a whole. EPA currently
requires that a pressurized product bear a hazard statement of either
``Flammable'' or ``Extremely Flammable'' based on flash point and flame
extension test results. The commenter's point is that a fogger that
bears the statement ``Extremely Flammable'' under the proposal because
it contains a flammable propellant might, based upon flammability
characteristics of the product as a whole, bear only the term
``Flammable.''
EPA acknowledges that sometimes this could be true. However, EPA
also believes it likely that total release foggers containing
significant levels of hydrocarbon propellant requiring ``Extremely
Flammable'' labeling under this rule would also require ``Extremely
Flammable'' labeling under the current regulations. The ``Extremely
Flammable'' term is required only when the propellant has a flash point
of <20 deg.f.="" the="" same="" flash="" point="" triggers="" the="" flammability="" hazard="" warning="" for="" the="" product="" as="" a="" whole.="" thus,="" a="" product="" would="" have="" to="" have="" a="" significant="" amount="" of="" non-propellant="" ingredients="" with="" flash="" points="" above="" 20="" deg.f="" to="" compensate="" for="" the="" extremely="" flammable="" nature="" of="" the="" propellant.="" even="" if="" this="" were="" the="" case,="" some="" number="" of="" products="" would="" likely="" fail="" the="" flame="" extension="" test="" for="" pressurized="" products="" (flashback="" to="" the="" valve="" opening)="" and="" would="" still="" require="" the="" ``extremely="" flammable''="" statement.="" because="" of="" the="" potential="" for="" confusion="" with="" some="" fogger="" products,="" epa="" has="" decided="" to="" require="" the="" term="" ``highly="" flammable''="" instead="" of="" ``extremely="" flammable.''="" the="" agency="" believes="" that="" most="" consumers="" would="" not="" distinguish="" between="" the="" two="" terms="" and="" believes="" the="" same="" message="" would="" be="" conveyed="" to="" the="" fogger="" user.="" epa="" recognizes="" that="" it="" is="" very="" important="" that="" the="" user="" know="" the="" product="" contains="" highly="" or="" very="" flammable="" ingredients.="" this="" terminology,="" in="" addition="" to="" the="" fire="" symbol,="" is="" extremely="" important="" in="" communicating="" to="" the="" user="" the="" hazards="" of="" total="" release="" foggers="" containing="" extremely="" flammable="" propellants.="" d.="" format="" epa="" did="" not="" propose="" specific="" formatting="" or="" presentation="" criteria="" for="" the="" required="" label="" language.="" however,="" several="" commenters="" suggested="" setting="" off="" the="" warning="" language="" contained="" in="" the="" final="" rule="" with="" boxes,="" contrasting="" colors,="" and="" pictograms="" on="" the="" total="" release="" fogger="" labels.="" many="" of="" these="" formatting="" ideas="" were="" a="" part="" of="" the="" s.c.="" johnson="" consumer="" study="" mentioned="" earlier.="" epa="" is="" not="" prescribing="" such="" formatting="" in="" this="" rule.="" however,="" registrants="" are="" encouraged="" to="" use="" formatting="" appropriate="" for="" the="" hazard="" statement="" that="" will="" highlight="" the="" statement="" for="" consumers.="" e.="" general="" comments="" epa="" solicited="" comments="" concerning="" the="" scope="" of="" the="" proposed="" rule,="" i.e.,="" for="" total="" release="" foggers="" only.="" most="" comments="" concurred="" with="" epa's="" decision="" to="" limit="" labeling="" changes="" to="" the="" total="" release="" foggers.="" two="" comments="" indicated="" that="" regulatory="" changes="" should="" be="" extended="" to="" aerosol="" pesticide="" products="" overall.="" however,="" no="" additional="" data="" were="" submitted="" [[page="" 9081]]="" indicating="" unreasonable="" adverse="" effects="" from="" other="" aerosol="" pesticide="" products,="" so="" epa="" has="" decided="" to="" limit="" the="" scope="" of="" this="" rule="" to="" total="" release="" foggers="" as="" proposed.="" iv.="" provisions="" of="" the="" final="" rule="" this="" final="" rule="" amends="" 40="" cfr="" 156.10="" to="" add="" required="" label="" language="" to="" the="" ``directions="" for="" use''="" and="" the="" ``physical="" and="" chemical="" hazards''="" warning="" statements.="" this="" new="" language="" warns="" fogger="" users="" about="" the="" hazard="" of="" a="" concentration="" of="" gases="" that="" could="" cause="" a="" fire="" or="" explosion.="" these="" warnings="" limit="" the="" number="" of="" foggers="" that="" can="" be="" released="" within="" the="" dwelling.="" the="" precautionary="" label="" language="" reads="" as="" outlined="" in="" units="" iv.a.="" and="" iv.b.="" of="" this="" preamble.="" a.="" labeling="" changes="" to="" the="" ``physical="" and="" chemical="" hazards''="" section="" this="" product="" contains="" a="" highly="" flammable="" ingredient.="" it="" may="" cause="" a="" fire="" or="" explosion="" if="" not="" used="" properly.="" follow="" the="" ``directions="" for="" use''="" on="" this="" label="" very="" carefully.="" this="" wording="" is="" slightly="" different="" from="" that="" which="" was="" contained="" in="" the="" proposed="" rule.="" in="" the="" final="" rule,="" the="" agency="" decided="" to="" alter="" the="" wording="" to="" improve="" communication.="" in="" addition="" to="" the="" above="" label="" language,="" epa="" is="" requiring="" on="" all="" total="" release="" foggers="" the="" use="" of="" a="" standard="" graphic="" symbol="" representing="" fire.="" b.="" labeling="" changes="" to="" the="" ``directions="" for="" use''="" section="" do="" not="" use="" more="" than="" one="" fogger="" per="" room.="" do="" not="" use="" in="" small,="" enclosed="" spaces="" such="" as="" closets,="" cabinets,="" or="" under="" counters="" or="" tables.="" do="" not="" use="" in="" a="" room="" 5="" ft.="" x="" 5="" ft.="" or="" smaller;="" instead,="" allow="" fog="" to="" enter="" from="" other="" rooms.="" turn="" off="" all="" ignition="" sources="" such="" as="" pilot="" lights="" (shut="" off="" gas="" valves),="" other="" open="" flames,="" or="" running="" electrical="" appliances="" that="" cycle="" off="" and="" on="" (i.e.,="" refrigerators,="" thermostats,="" etc.).="" call="" your="" gas="" utility="" or="" management="" company="" if="" you="" need="" assistance="" with="" your="" pilot="" lights.="" v.="" risks/benefits="" of="" this="" rule="" as="" discussed="" in="" the="" proposed="" rule,="" the="" agency="" recognizes="" the="" benefits="" of="" total="" release="" foggers="" and="" has="" taken="" into="" consideration="" these="" benefits="" regarding="" the="" agency's="" assessment="" of="" the="" risks="" of="" total="" release="" foggers.="" the="" agency="" has="" determined="" that="" these="" label="" changes="" will="" be="" adequate="" to="" reduce="" the="" risks="" from="" total="" release="" foggers.="" epa="" believes="" fewer="" fires/explosions="" with="" loss="" of="" life="" or="" property="" will="" result="" from="" the="" better="" labeling="" of="" these="" products.="" further,="" these="" labeling="" requirements="" do="" not="" reduce="" the="" benefits="" of="" these="" products,="" but="" provide="" for="" safer="" use.="" overall,="" as="" was="" concluded="" in="" the="" proposed="" rule,="" epa="" believes="" these="" label="" changes="" are="" needed="" and="" that="" the="" benefits="" of="" such="" changes="" outweigh="" the="" risks.="" the="" modification="" to="" the="" required="" label="" language="" mentioned="" above="" does="" not="" change="" in="" any="" way="" the="" agency's="" risk-benefit="" determination.="" labeling="" for="" improved="" hazard="" warnings="" of="" foggers="" does="" not="" affect="" the="" sale="" or="" use="" of="" such="" products.="" vi.="" implementation="" under="" 40="" cfr="" 152.130,="" epa="" may="" prescribe="" timeframes="" for="" the="" implementation="" of="" agency="" directed="" label="" changes.="" this="" unit="" describes="" how="" epa="" will="" implement="" the="" changes="" in="" this="" rule.="" epa="" will="" provide="" detailed="" instructions="" directly="" to="" registrants.="" after="" the="" effective="" date="" of="" the="" final="" rule,="" applications="" for="" new="" registrations="" of="" total="" release="" foggers="" will="" not="" be="" approved="" unless="" they="" comply="" with="" these="" labeling="" requirements.="" further,="" no="" total="" release="" fogger="" products="" containing="" an="" extremely="" flammable="" propellant="" may="" be="" distributed="" or="" sold="" by="" registrants="" after="" october="" 1,="" 1999,="" unless="" the="" product="" bears="" the="" amended="" label="" language="" required="" by="" this="" rule.="" thereafter,="" epa="" may="" initiate="" cancellation="" proceedings="" under="" fifra="" section="" 6,="" or="" an="" enforcement="" action="" for="" misbranding="" under="" fifra="" section="" 12(a)(1)(e),="" for="" any="" total="" release="" fogger="" product="" not="" in="" compliance="" with="" the="" requirements="" of="" fifra="" and="" this="" rule.="" vii.="" statutory="" review="" a="" draft="" of="" this="" rule="" was="" provided="" to="" the="" secretary="" of="" agriculture="" (usda),="" the="" committee="" on="" agriculture,="" nutrition,="" and="" forestry="" of="" the="" united="" states="" senate,="" and="" to="" the="" committee="" on="" agriculture,="" of="" the="" u.s.="" house="" of="" representatives.="" the="" fifra="" scientific="" advisory="" panel="" waived="" its="" review="" of="" this="" rule.="" viii.="" public="" record="" and="" electronic="" submissions="" the="" official="" record="" for="" this="" rulemaking,="" as="" well="" as="" the="" public="" version,="" has="" been="" established="" for="" this="" rulemaking="" under="" docket="" control="" number="" ``opp-36189''="" (including="" comments="" and="" data="" submitted="" electronically="" as="" described="" below).="" a="" public="" version="" of="" this="" record,="" including="" printed,="" paper="" versions="" of="" electronic="" comments,="" which="" does="" not="" include="" any="" information="" claimed="" as="" cbi,="" is="" available="" for="" inspection="" from="" 8:30="" a.m.="" to="" 4="" p.m.,="" monday="" through="" friday,="" excluding="" legal="" holidays.="" the="" official="" rulemaking="" record="" is="" located="" at="" the="" virginia="" address="" in="" addresses="" at="" the="" beginning="" of="" this="" document.="" electronic="" comments="" can="" be="" sent="" directly="" to="" epa="" at:="">opp-docket@epamail.epa.gov
Electronic comments must be submitted as an ASCII file avoiding the
use of special characters and any form of encryption. Comment and data
will also be accepted on disks in Wordperfect 5.1/6.1 or ASCII file
format. All comments and data in electronic form must be identified by
the docket control number ``OPP-36189.'' Electronic comments on this
final rule may be filed online at many Federal Depository Libraries.
IX. Regulatory Assessment Requirements
A. Executive Order 12866
Under Executive Order 12866, entitled Regulatory Planning and
Review (58 FR 51735, October 4, 1993), this action is not a
``significant regulatory action'' subject to review by the Office of
Management and Budget (OMB).
According to the Economic Assessment conducted by the Agency, the
costs per product of this rule were between $8,000 and $13,000. The
total costs for the industry would be between $1.87 million and $3
million (net present value). A copy of the Economic Assessment is
available in the public docket for this rule.
B. Regulatory Flexibility Act
Under section 605(b) of the Regulatory Flexibility Act (5 U.S.C.
601 et seq.), the Agency hereby certifies that this action will not
have a significant economic impact on a substantial number of small
entities. This action does not impact any small entities. Information
relating to this determination is provided upon request to the Chief
Counsel for Advocacy of the Small Business Administration, and is
included in the docket for this rulemaking.
The label changes for aerosol pesticides, known as total release
foggers, will not impose a significant adverse economic impact on a
substantial number of small entities. The estimated cost impacts
associated with the label changes are less than 1% (0.07%) of the
annual revenues for small businesses. One of the main benefits of the
rule is to reduce the number of accidents that occur from the misuse of
total release foggers.
EPA will allow all registrants almost 2 years to incorporate the
label changes. This compliance time will allow all registrants,
including those that are small businesses, to revise labels in the
[[Page 9082]]
normal course of business, thus minimizing the economic impact.
Therefore, no regulatory flexibility analysis was prepared. However,
the economic assessment for this rule is available in the public docket
for this rule.
C. Paperwork Reduction Act
OMB has approved the information collection requirements contained
in this rule under the provisions of the Paperwork Reduction Act (PRA),
44 U.S.C. 3501 et seq. In accordance with the procedures at 5 CFR
1320.11, OMB has assigned OMB control number 2070-0060 (EPA ICR No.
277.10) to this activity. An Agency may not conduct or sponsor, and a
person is not required to respond to a collection of information
subject to OMB approval under the PRA unless it displays a currently
valid OMB control number. The OMB control numbers for EPA's
regulations, after initial publication in the Federal Register, are
maintained in a list at 40 CFR part 9.
Public reporting burden for this collection of information is
estimated to average 0.85 hours per product, including time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection information.
Under the PRA, ``burden'' means the total time, effort, or
financial resources expended by persons to generate, maintain, retain,
or disclose or provide information to or for a Federal agency. This
includes the time needed to review instructions; develop, acquire,
install, and utilize technology and systems for the purposes of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.
Send any comments on the burden estimates and any suggested methods
for minimizing respondent burden, including through the use of
automated collection techniques within 30 days to EPA at the address
provided above, with a copy to the Office of Information and Regulatory
Affairs, Office of Management and Budget, 725 17th St., NW.,
Washington, DC 20503, marked ``Attention: Desk Officer for EPA.''
Please remember to include the ICR number in any correspondence.
D. Unfunded Mandates Reform Act and Executive Order 12875
Under Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L.
104-4), this action does not result in the expenditure of $100 million
or more by any State, local, or tribal governments, or by anyone in the
private sector, and will not result in any ``unfunded mandates'' as
defined by Title II. The costs associated with this action are
described in the Executive Order 12866 unit above.
Under Executive Order 12875 (58 FR 58093, October 28, 1993), EPA
must consult with representatives of affected State, local, and tribal
governments before promulgating a discretionary regulation containing
an unfunded mandate. This action does not contain any mandates on
States, localities, or tribes and is therefore not subject to the
requirements of Executive Order 12875.
E. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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 this rule in today's Federal
Register. This rule is not a ``major rule'' as defined by 5 U.S.C.
804(2).
List of Subjects in 40 CFR Part 156
Environmental protection, Labeling, Occupational safety and health,
Pesticides and pests, Reporting and recordkeeping requirements.
Dated: February 4, 1998.
Carol M. Browner
Administrator.
Therefore, 40 CFR part 156 is amended as follows:
PART 156--[AMENDED]
1. The authority citation for part 156 continues to read as
follows:
Authority: 7 U.S.C. 136 - 136y.
2. In Sec. 156.10, by revising paragraph (h)(2)(iii) and adding
paragraph (i)(2)(x)(D) to read as follows:
Sec. 156.10 Labeling requirements.
* * * * *
(h) * * *
(2) * * *
(iii) Physical or chemical hazards. (A) Warning statements on the
flammability or explosive characteristics of all pesticides are
required as set out in Table 1 and Table 2 of this paragraph as
follows:
Table 1.--Pressurized Containers
------------------------------------------------------------------------
Flash Point Required Text
------------------------------------------------------------------------
Flash point at or below 20 deg.F; if Extremely flammable. Contents
there is a flashback at any valve under pressure. Keep away from
opening fire, sparks, and heated
surfaces. Do not puncture or
incinerate container. Exposure
to temperatures above 130
deg.F may cause bursting
Flash point above 20 deg.F and not Flammable. Contents under
over 80 deg.F or if the flame pressure. Keep away from heat,
extension is more than 18 inches long sparks, and open flame. Do not
at a distance of 6 inches from the puncture or incinerate
flame container. Exposure to
temperatures above 130 deg.F
may cause bursting
All other pressurized containers Contents under pressure. Do not
use or store near heat or open
flame. Do not puncture or
incinerate container. Exposure
to temperatures above 130
deg.F may cause bursting.
------------------------------------------------------------------------
Table 2.--Nonpressurized Containers
------------------------------------------------------------------------
Flash Point Required Text
------------------------------------------------------------------------
At or below 20 deg.F Extremely flammable. Keep away
from fire, sparks, and heated
surfaces.
Above 20 deg.F and not over 80 deg.F Flammable. Keep away from heat
and open flame.
[[Page 9083]]
Above 80 deg.F and not over 150 deg.F Do not use or store near heat
or open flame.
------------------------------------------------------------------------
(B) A ``total release fogger'' is defined as a pesticide product in
a pressurized container designed to automatically release the total
contents in one operation, for the purpose of creating a permeating fog
within a confined space to deliver the pesticide throughout the space.
(C)(1) If the pesticide product is a total release fogger
containing a propellant with a flash point at or below 20 deg.F, then
the following special instructions must be added to the ``Physical and
Chemical Hazards'' warning statement:
This product contains a highly flammable ingredient. It may
cause a fire or explosion if not used properly. Follow the
``Directions for Use'' on this label very carefully.
(2) A graphic symbol depicting fire such as illustrated in this
paragraph or an equivalent symbol, must be displayed along with the
required language adjoining the ``Physical and Chemical Hazards''
warning statement. The graphic symbol must be no smaller than twice the
size of the first character of the human hazard signal word.
[GRAPHIC] [TIFF OMITTED] TR23FE98.000
(i) * * *
(2) * * *
(x) * * *
(D) For total release foggers as defined in paragraph
(h)(2)(iii)(B) of this section, the following statements must be
included in the ``Directions for Use'':
DO NOT use more than one fogger per room. DO NOT use in small,
enclosed spaces such as closets, cabinets, or under counters or
tables. Do not use in a room 5 ft. x 5 ft. or smaller; instead,
allow fog to enter from other rooms. Turn off ALL ignition sources
such as pilot lights (shut off gas valves), other open flames, or
running electrical appliances that cycle off and on (i.e.,
refrigerators, thermostats, etc.). Call your gas utility or
management company if you need assistance with your pilot lights.''
* * * * *
[FR Doc. 98-4562 Filed 2-20-98; 8:45 am]
BILLING CODE 6560-50-F
