Receipt of Petition Requesting EPA to Classify all Rodenticide Products Containing Strychnine as Restricted Use Pesticides; Opening of Comment Period

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

SUMMARY:

EPA is publishing for public comment a July 9, 2009 petition from the State FIFRA Issues Research and Evaluation Group (SFIREG), available in docket number EPA-HQ-OPP-2009-0815, requesting that the Agency classify all rodenticide products containing strychnine as Restricted Use Pesticides.

DATES:

Comments must be received on or before March 18, 2010.

ADDRESSES:

Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2009-0815, 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.
• 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 (703) 305-5805.

Instructions: Direct your comments to docket ID number EPA-HQ-OPP-2009-0815. 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 website 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 of which 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 (703) 305-5805.

FOR FURTHER INFORMATION CONTACT:

William W. Jacobs, Registration Division, Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-6406; fax number: (703) 308-0029; e-mail address: jacobs.bill@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: Various environmental groups, farmers, ranchers, foresters, State regulatory agencies, other interested Federal agencies, members of the public interested in the sale, distribution, or use of pesticides, registrants of strychnine alkaloid pesticide products, and other pesticide registrants and pesticide users.

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. 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.

II. Background

What Action is the Agency Taking?

EPA is providing an opportunity for public comment on a petition received from the State FIFRA Issues Research and Evaluation Group that asks the Agency “to classify all strychnine-containing rodenticides as Restricted Use Pesticides (RUPs).”

EPA regulates pesticides under the authority of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Under FIFRA, EPA registers a pesticide after determining that the use of the pesticide will not cause “unreasonable adverse effects” to human health or the environment. This standard is a risk-benefit standard that takes into account social, economic, and environmental costs and benefits. Section 3(d)(1)(C) of FIFRA authorizes EPA to classify a product as a restricted use pesticide if the Agency finds that only through such classification could its use be permitted without unreasonable adverse effects on the environment.

Restricted use pesticides may only be sold to and applied by certified applicators or persons acting under the direct supervision of certified applicators. End-use pesticide products that are not classified as restricted use pesticides are considered to be unclassified. Products registered and labeled only for use in the manufacture of other pesticide products are not subject to requirements pertaining to classification.

Through a Federal regulation promulgated in 1978, (43 FR 5782-5791, February 9, 1978) “dry baits, pellets and powder formulations” containing strychnine compounds are classified as restricted use pesticides if:

1. The concentration of active ingredient claimed on the label exceeds 0.5%

2. The label permits applications that are not “subsoil,” and/or

3. The label includes “uses calling for burrow builders.” The same rule allows strychnine end-use “dry baits, pellets and powder formulations” limited to “subsoil uses” not involving burrow-builder applications to remain unclassified. Such products may be purchased and used by persons who are neither certified applicators nor supervised by certified applicators.

In 1983, EPA completed a Special Review of above-ground uses of strychnine alkaloid and strychnine sulfate products. In 1988, a U.S. District Court in Minnesota issued an injunction prohibiting the registration of above-ground uses of strychnine products. In 1989, the 1988 decision was reversed in part on appeal but was upheld on matters related to the Endangered Species Act. The injunction against above-ground uses of pesticides containing strychnine compounds was sustained and remains in effect. Also in 1989, EPA and various concerned parties reached a settlement agreement pursuant to the Special Review for strychnine products.

By the early 1990's, the registrations of many strychnine alkaloid products and all strychnine sulfate products had been canceled. The strychnine alkaloid products that remained registered at that time primarily included:

1. Restricted use products labeled for below-ground applications to control pocket gophers, including applications using burrow builders;

2. Unclassified end-use products labeled for manual below-ground applications to control pocket gophers; and

3. Manufacturing-use products.

In 1996, EPA issued a Reregistration Eligibility Decision (RED) document pertaining to strychnine. Labels for all currently registered strychnine products bear risk mitigation text developed through the reregistration process. All but one of the remaining strychnine products subject to the RED have been reregistered. All nine of the remaining unclassified strychnine end-use products have been reregistered.

Through a petition, SFIREG seeks to have all strychnine products classified as restricted use pesticides. Due to the regulatory exemption afforded to manufacturing use products, the SFIREG petition would directly affect only the currently unclassified products which are labeled for manual, below-ground applications to control various types of pocket gophers.

The petitioner reports that member States have noted incidents of misuse of strychnine products, including use to control “black-tailed prairie dogs and other pests not found on the product labeling.” Petitioner states that uses against prairie dogs typically consist of “broadcast applications of bait products on the soil surface” and thereby increase the likelihood of primary and secondary exposures to non-target species. Petitioner expresses concern that sales of unclassified strychnine products, including “many products sold in small packages,” make it difficult for State regulatory agencies to investigate misuse cases involving strychnine due to the lack of recordkeeping requirements for transactions involving unclassified products. Petitioner contends that classifying all strychnine products as restricted use pesticides would:

1. Provide tighter controls over the distribution, sale, and use of these products

2. Improve documentation of sales, facilitate investigations of misuse cases; and

3. Better mitigate risk to the environment.

For this Notice, EPA has posted petitioner's request in the public docket accompanying this topic at EPA-HQ-OPP-2009-0815. EPA is providing an opportunity for public comment and submission of additional information pertinent to this petition that commenters would like the Agency to consider as it develops a response to the petition. The Agency would find particularly useful information relating to misuse of strychnine products, including misuse by non-certified applicators and by, or under the direct supervision of, certified applicators. Commenters are asked to provide available information regarding the products involved, the incidence of misuse, and the environmental impacts that have or could reasonably have resulted from misuse.

List of Subjects

• Environmental protection, pesticides, restricted use, rodenticides, strychnine