2011-25694. Fenamiphos; Amendment To Use Deletion and Product Cancellation Order

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

SUMMARY:

This notice announces EPA's amendment to 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 amendment follows a July 13, 2011 Federal Register Notice of Receipt of Request to Amend Use Deletion and Product Cancellation Order. In the July 13, 2011 notice, EPA indicated that it would issue an order implementing the amendment, after the 30-day comment period. One comment was received during the 30-day comment period. After consideration, the Agency has granted the requested amendment. Accordingly, 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, until October 5, 2012. Additionally, the Agency will prohibit use of existing stocks of all fenamiphos products after October 6, 2014.

DATES:

This amendment is effective October 5, 2011.

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: miederhoff.eric@ epa.gov.

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

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].

II. What action is the agency taking?

This notice announces the 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 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 affects all fenamiphos product registrations.

On December 10, 2003, EPA published a Use Deletion and Product Cancellation Order (FRL-7332-5) (68 FR 68901). 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 (FRL-8368-2) (73 FR 33082), 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 (FRL-8389-8) (73 FR 75097) Federal Register 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 Insecticide-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 does not conflict with the Agency's application of the guidelines outlined in PR Notice 97-7, nor does it introduce more fenamiphos into the pesticide use cycle than had been stipulated by the terms of the 5-year phase-out. The extension allows for a redistribution of existing material already in the hands of end users and no new fenamiphos products will enter the marketplace. The Agency is extending 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 this amended order until October 5, 2012.

The Agency is also prohibiting use of all fenamiphos products in the United States 3 years from the date of publication of this amended order in the Federal Register. Accordingly, all use of fenamiphos products in the United States will be prohibited after October 6, 2014. 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, 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 Environmental Protection Agency (EPA or the Agency), 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 cancelled 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 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 comprehensive scientific risks assessments of its domestic use, which were completed for the 2002 Fenamiphos Reregistration Eligibility Decision. Therefore, the Agency is prohibiting all use of pesticide products containing fenamiphos after October 6, 2014.

III. Summary of Public Comments Received and Agency Response to Comments

During the public comment period provided, EPA received one comment in response to the July 13, 2011, Federal Register notice announcing the Agency's proposal to amend the fenamiphos use deletion and product cancellation order, (76 FR 41248) (FRL-8879-5). The comment, from the Arizona Department of Agriculture, supported the Agency's proposal to allow sale and distribution for an additional year. However, the comment also stated that it would be preferable to continue to allow use of fenamiphos products already in the hands of users until exhaustion. The comment describes the disposal of unusable pesticide products as expensive and time consuming. The Agency acknowledges the difficulties inherent in the safe disposal of pesticide products. However, as stated in Unit III, the Agency has concerns that, if the previous existing stocks provision allowing use until exhaustion were not amended, the use of fenamiphos would continue for an extended period of time beyond the most recent comprehensive scientific risk assessments of its domestic use. After consideration, the Agency has concluded that, with the additional 3 years provided by this order, an adequate period of time has been provided for existing stocks of fenamiphos products to have been used.

IV. Amended Order

Pursuant to FIFRA section 6(a), EPA is amending 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, until October 5, 2012. Accordingly, the Agency orders 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 orders that end users with existing stocks of any products containing fenamiphos may continue to use these products for 3 years, until October 6, 2014, provided that the use complies with EPA-approved product label requirements for the respective products. After October 6, 2014, all use of products containing fenamiphos is prohibited.

V. 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 of FIFRA, 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.

List of Subjects

• Environmental protection
• Pesticides and pests

Dated: September 27, 2011.

Richard P. Keigwin, Jr.,

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