2011-17615. Fenamiphos; Notice of Receipt of Request to Amend Use Deletion and Product Cancellation Order

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

SUMMARY:

This notice announces EPA's notice of receipt of a request to amend the order for the cancellation of products, voluntarily requested by the registrant and accepted by the Agency, containing the pesticide fenamiphos, pursuant to section 6(f)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended. This request follows a December 10, 2008 Federal Register Amendment to Use Deletion and Product Cancellation Order, which extended the deadline for persons other than the registrant to sell and distribute one fenamiphos product, Nemacur 3 Emulsifiable Systemic Insecticide-Nematicide, from November 30, 2008 until March 31, 2009. The Agency subsequently received a request from an end user to extend the sale and distribution deadline for Nemacur 3. If this request is granted, the Agency will extend the deadline for persons other than the registrant to sell and distribute Nemacur 3 Emulsifiable Systemic Insecticide-Nematicide (EPA Reg. No. 264-731) for 1 year from the date of publication of the amended order. Additionally, the Agency intends to prohibit use of existing stocks of all fenamiphos products 3 years from the date of publication of the amended order.

DATES:

Comments must be received on or before August 12, 2011.

ADDRESSES:

Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2003-0200, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.
• Mail: Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

Submit written withdrawal request by mail to: Pesticide Re-evaluation Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. ATTN: Eric Miederhoff.

• Delivery: OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket Facility's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is [phone].

Instructions: Direct your comments to docket ID number EPA-HQ-OPP-2003-0200. EPA's policy is that all comments received will be included in the docket without change and may be made available on-line at http://www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov or e-mail. The regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the docket are listed in the docket index available at http://www.regulations.gov. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either in the electronic docket at http://www.regulations.gov,, or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is [phone].

FOR FURTHER INFORMATION CONTACT:

Eric Miederhoff, Pesticide Re-evaluation Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: [phone]; fax number: [phone]; e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; fenamiphos pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT.

B. What should I consider as I prepare my comments for EPA?

1. Submitting CBI. Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When submitting comments, remember to:

i. Identify the document by docket ID number and other identifying information (subject heading, Federal Register date and page number).

ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

iv. Describe any assumptions and provide any technical information and/or data that you used.

v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

vi. Provide specific examples to illustrate your concerns and suggest alternatives.

vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

viii. Make sure to submit your comments by the comment period deadline identified.

C. How can I get copies of this document and other related information?

1. Docket. EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2003-0200. Publicly available docket materials are available either in the electronic docket at http://www.regulations.gov,, or, if only available in hard copy, at the Office of Pesticide Programs (OPP) Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is [phone].

2. Electronic access. You may access this Federal Register document electronically through the EPA Internet under the Federal Register listings at http://www.epa.gov/​fedrgstr.

II. What action is the agency taking?

This notice announces the proposed amendment of the December 10, 2003 use deletion and product cancellation order of fenamiphos products registered under section 3 of FIFRA, as amended on June 11, 2008 and December 10, 2008. The only registration that would be affected by the extension of the sale and distribution date is Nemacur 3 Emulsifiable Systemic Insecticide-Nematicide, EPA Registration Number 264-731. The prohibition on the use of fenamiphos products 3 years after publication of the amended order would affect all fenamiphos product registrations.

On December 10, 2003, EPA published a Use Deletion and Product Cancellation Order in the Federal Register (68 FR 68901) (FRL-7332-5). The order prohibited, among other things, the manufacture and distribution of fenamiphos by Bayer Corporation, the sole technical registrant, after May 31, 2007, the effective cancellation date for the fenamiphos product registrations. The deadline established for Bayer Corporation followed a production cap on the manufacture of fenamiphos, which limited fenamiphos production to 500,000 pounds of active ingredient for the year ending May 31, 2003, and reduced production by 20% each subsequent year during the 5 year phase-out period. The order also prohibited the sale and distribution of fenamiphos by persons other than the registrant after May 31, 2008. These provisions were intended to provide a reasonable amount of time for the material to move through the channels of trade following the cessation of sale and distribution of fenamiphos products by the registrant on May 31, 2007.

In a June 11, 2008 Federal Register Amendment to Use Deletion and Product Cancellation Order (73 FR 33082) (FRL-8368-2), the Agency extended the May 31, 2008 deadline on the sale and distribution by persons other than the registrant through November 30, 2008. This action was taken in response to a request from the sole fenamiphos technical registrant, Bayer Environmental Science, to extend the deadline to allow distributors to sell existing stockpiles of Nemacur 10% Turf and Ornamental Nematicide (EPA Reg. No. 432-1291) and Nemacur 3 Emulsifiable Systemic Insecticide-Nematicide (EPA Reg. No. 264-731) to end users.

In a December 10, 2008 Federal Register (73 FR 75097) (FRL-8389-8) Amendment to Use Deletion and Product Cancellation Order, the Agency further extended the November 30, 2008 deadline for the sale and distribution of Nemacur 3 Emulsifiable Systemic Insceticide-Nematicide (EPA Reg. No. 264-731) through March 31, 2009. This action was taken in response to a request from an end user, Maui Pineapple, to extend the deadline for sale and distribution of Nemacur 3 Emulsifiable Systemic Insecticide-Nematicide (EPA Reg. No. 264-731) from November 30, 2008 to March 31, 2009.

On August 20, 2010 the Agency received another request from Maui Pineapple to extend the deadline for sale and distribution of Nemacur 3 Emulsifiable Systemic Insecticide-Nematicide (EPA Reg. No. 264-731) to allow a transfer of its remaining stocks of Nemacur 3 to other end users.

The original May 31, 2008 deadline for fenamiphos was established to provide a reasonable amount of time for the material to move through the channels of trade following the cessation of sale and distribution of fenamiphos products by the registrant, Bayer Environmental Science, on May 31, 2007. Extending the deadline for distributors to sell and distribute Nemacur 3 Emulsifiable Systemic Insecticide-Nematicide would neither conflict with the Agency's application of the guidelines outlined in PR Notice 97-7, nor would it introduce more fenamiphos into the pesticide use cycle than had been stipulated by the terms of the 5 year phase-out. The extension would allow for a redistribution of existing material already in the hands of end users and no new fenamiphos products would enter the marketplace. If this request is granted, the Agency will extend the deadline for persons other than the registrant to sell and distribute Nemacur 3 Emulsifiable Systemic Insecticide-Nematicide (EPA Reg. No. 264-731) for 1 year from the date of publication of the amended order.

However, the Agency also intends to prohibit use of all fenamiphos products in the United States 3 years from the date of publication of the amended order in the Federal Register. Previously, the Agency had allowed end users with existing stocks of products containing fenamiphos to continue to use these products until their stocks were exhausted, provided that the use complied with previously EPA-approved product label requirements for the respective products. Considering the initial Product Cancellation Order for fenamiphos was issued in 2003, if the Agency permits a further extension, 11 years will have elapsed since the initial cancellation order was issued, and approximately 7 years will have elapsed from the effective cancellation of the fenamiphos products. When the Agency specified in the initial Product Cancellation Order that users may use existing stocks until exhausted, it did not anticipate that fenamiphos products would not move through the channels of trade and be depleted by end users in a timely manner.

Moreover, all pesticides sold or distributed in the United States generally must be registered by the EPA, based on scientific data showing that they will not cause unreasonable risks to human health or the environment when used as directed on product labeling. Due to the fact that fenamiphos product registrations were canceled as part of the voluntary phase-out, the Agency has determined that the registration review program, the periodic evaluation of pesticide safety, is not applicable to fenamiphos. The registration review of fenamiphos would have begun in 2008 if fenamiphos had active product registrations at that time. The Agency is concerned that the use of existing stocks of fenamiphos products has continued for an extended period since the last scientific risks assessments of its use, which were completed for the 2002 Fenamiphos Reregistration Eligibility Decision. Therefore, the Agency intends to prohibit all use of pesticide products containing fenamiphos 3 years from the date of publication of the amended order in the Federal Register.

III. What is the agency's authority for taking this action?

Section 6(a)(1) of FIFRA provides that the Administrator may permit the continued sale and use of existing stocks of a pesticide whose registration is suspended or canceled under this section, or section 3 or 4, to such extent, under such conditions, and for such uses as the Administrator determines that such sale or use is not inconsistent with the purposes of this Act.

IV. Proposed Order Amendment

Pursuant to FIFRA section 6(a), EPA is proposing to amend the December 10, 2008 order to allow persons other than the registrant to sell and distribute the fenamiphos product, Nemacur 3 Emulsifiable Systemic Insecticide-Nematicide (EPA Registration Number 264-731), for 1 year from the publication of the amended order. Accordingly, the Agency is proposing to order that the sale and distribution of products containing fenamiphos is prohibited, except for proper disposal or export pursuant to section 17 of FIFRA, provided, however, that persons other than the registrant are permitted to sell and distribute existing stocks of Nemacur 3 Emulsifiable Systemic Insecticide-Nematicide (EPA Registration Number 264-731) for 1 year from the publication of the amended order. The Agency further proposes to order that end users with existing stocks of any products containing fenamiphos may continue to use these products for 3 years from the date of publication of the amended order in the Federal Register, provided that the use complies with EPA-approved product label requirements for the respective products.

List of Subjects

• Environmental protection
• Pesticides and pests

Dated: July 1, 2011.

Richard P. Keigwin, Jr.,

Director, Pesticide Re-evaluation Division, Office of Pesticide Programs.