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Notice

Intent to Suspend Certain Pesticide Registrations

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Information about this document as published in the Federal Register.

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Start Preamble

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of issuance of notice of intent to suspend.

SUMMARY:

This Notice, pursuant to section 6(f)(2) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq., announces that EPA issued Notices of Intent to Suspend pursuant to section 3(c)(2)(B) of FIFRA. The Notices of Intent to Suspend were issued following issuance of Data Call-In Notices (DCI). The DCIs required registrants of products containing bensulide, boric acid and its salts, and/or methyl nonyl ketone used as an active ingredient to develop and submit certain data. These data were Start Printed Page 54445determined to be necessary to maintain the continued registration of affected products. Failure to comply with the data requirements of a DCI is a basis for suspension under section 3(c)(2)(B) of FIFRA. This Notice includes the text of the Notices of Intent to Suspend issued to Care Flex One-Year Guarantee Company, The Scotts Company, and Voluntary Purchasing Group. As required by section 6(f)(2), the Notice of Intent to Suspend was sent by certified mail, return receipt requested to each affected registrant at its address of record.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Harold Day, Agriculture Division, 2225A, Office of Enforcement and Compliance Assurance, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: 202-564-4133; fax number: 202-564-0029; e-mail address: day.harold@epa.gov.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

You may be potentially affected by this action if you hold EPA registrations for products that contain bensulide, boric acid and its salts, and/or methyl nonyl ketone. Potentially affected entities may include, but are not limited to pesticide registrants. Other types of entities not listed in this unit could also be affected. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in the above-mentioned Data Call-Ins and FIFRA, specifically section 3(c)(2)(B). 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?

1. Docket. EPA has established an official public docket for this action under docket identification (ID) number OPP-2003-0277. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. This docket facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The docket telephone number is (703) 305-5805.

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/​.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/​edocket/​ to view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. Once in the system, select “search,” then key in the appropriate docket ID number.

II. What Action is the Agency Taking?

This Notice, pursuant to section 6(f)(2) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq., announces that EPA issued Notices of Intent to Suspend pursuant to section 3(c)(2)(B) of FIFRA to Care Flex One-Year Guarantee Company, The Scotts Company, and the Voluntary Purchasing Group. The Notices of Intent to Suspend were issued on July 23, 2003.

III. Text of the Notice to Suspend

The text of the Notices of Intent to Suspend absent specific chemical, product, or factual information issued to Care Flex One-Year Guarantee Company, The Scotts Company, and Voluntary Purchasing Group follows:

United States Environmental Protection Agency

Office of Prevention, Pesticides and Toxic Substances

Washington, DC 20460

November 27, 2002

Certified Mail

Return Receipt Requested

SUBJECT: Suspension of Registration of Pesticide Product(s) ContainingXXXX for Failure to Comply with the XXXX Section 4 Phase 5 Reregistration Eligibility Document Data Call-In Notice IssuedXXXX

Dear Sir/Madam:

This letter gives you notice that the pesticide product registration(s) listed in Attachment I will be suspended 30 days from your receipt of this letter unless you take steps within that time to prevent this Notice from automatically becoming a final and effective order of suspension. The Agency's authority for suspending the registrations of your products is section 3(c)(2)(B) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Upon becoming a final and effective order of suspension, any violation of the order will be an unlawful act under section 12(a)(2)(J) of FIFRA.

You are receiving this Notice of Intent to Suspend because you have failed to comply with the terms of the 3(c)(2)(B) Data Call-In Notice. The specific basis for issuance of this Notice is stated in the Explanatory Appendix (Attachment III) to this Notice. The affected product(s) and the requirement(s) which you failed to satisfy are listed and described in the following three attachments:

Attachment I Suspension Report - Product List

Attachment II Suspension Report - Requirement List

Attachment III Suspension Report - Explanatory Appendix

The suspension of the registration of each product listed in Attachment I will become final unless at least one of the following actions is completed.

1. You may avoid suspension under this Notice if you or another person adversely affected by this Notice properly request a hearing within 30 days of your receipt of this Notice. If you request a hearing, it will be conducted in accordance with the requirements of section 6(d) of FIFRA and the Agency's Procedural Regulations in 40 CFR part 164.

Section 3(c)(2)(B), however, provides that the only allowable issues which may be addressed at the hearing are whether you have failed to take the actions which are the bases of this Notice and whether the Agency's decision regarding the disposition of existing stocks is consistent with FIFRA. Therefore, no substantive allegation or legal argument concerning other issues, including but not limited to the Agency's original decision to require the submission of data or other information, the need for or utility of any of the required data or other information or deadlines imposed, any allegations of errors or unfairness in any proceedings before an arbitrator, and the risks and benefits associated with continued registration of the affected product, may be considered in the proceeding. The Administrative Law Judge shall by order dismiss any objections which have no bearing on the allowable issues which may be considered in the proceeding.

Section 3(c)(2)(B)(iv) of FIFRA provides that any hearing must be held and a determination issued within 75 days after receipt of a hearing request. This 75-day period may not be extended unless all parties in the proceeding stipulate to such an extension. If a hearing is properly requested, the Agency will issue a final order at the conclusion of the hearing governing the suspension of your product(s).

A request for a hearing pursuant to this Notice must: (1) include specific objections which pertain to the allowable issues which may be heard at the hearing, (2) identify the registrations for which a hearing is requested, and (3) set forth all necessary supporting facts pertaining to any of the objections Start Printed Page 54446which you have identified in your request for a hearing. If a hearing is requested by any person other than the registrant, that person must also state specifically why he asserts that he would be adversely affected by the suspension action described in this Notice. Three copies of the request must be submitted to:

Hearing Clerk, 1900

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue, NW

Washington, DC 20460

An additional copy should be sent to the signatory listed below. The request must be received by the Hearing Clerk by the 30th day from your receipt of this Notice in order to be legally effective. The 30-day time limit is established by FIFRA and cannot be extended for any reason. Failure to meet the 30-day time limit will result in automatic suspension of your registration(s) by operation of law and, under such circumstances, the suspension of the registration for your affected product(s) will be final and effective at the close of business 30 days after your receipt of this Notice and will not be subject to further administrative review.

The Agency's Rules of Practice at 40 CFR 164.7 forbid anyone who may take part in deciding this case, at any stage of the proceeding, from discussing the merits of the proceeding ex parte with any party or with any person who has been connected with the preparation or presentation of the proceeding as an advocate or in any investigative or expert capacity, or with any of their representatives. Accordingly, the following EPA offices, and the staffs thereof, are designated as judicial staff to perform the judicial function of EPA in any administrative hearings on this Notice of Intent to Suspend: the Office of the Administrative Law Judges, the Office of the Environmental Appeals Board, the Administrator, the Deputy Administrator, and the members of the staff in the immediate offices of the Administrator and Deputy Administrator. None of the persons designated as the judicial staff shall have any ex parte communication with trial staff or any other interested person not employed by EPA on the merits of any of the issues involved in this proceeding, without fully complying with the applicable regulations.

2. You may also avoid suspension if, within 30 days of your receipt of this Notice, the Agency determines that you have taken appropriate steps to comply with the section 3(c)(2)(B) Data Call-In Notice. In order to avoid suspension under this option, you must satisfactorily comply with Attachment II, Requirement List, for each product by submitting all required supporting data/information described in Attachment II and in the Explanatory Appendix (Attachment III) to the following address (preferably by certified mail):

Office of Compliance (2225A)

Agriculture Division

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue, NW

Washington, DC 20460

For you to avoid automatic suspension under this Notice, the Agency must also determine within the applicable 30-day period that you have satisfied the requirements that are the bases of this Notice and so notify you in writing. You should submit the necessary data/information as quickly as possible for there to be any chance the Agency will be able to make the necessary determination in time to avoid suspension of your product(s).

The suspension of the registration(s) of your company's product(s) pursuant to this Notice will be rescinded when the Agency determines you have complied fully with the requirements which were the bases of this Notice. Such compliance may only be achieved by submission of the data/information described in the attachments to the signatory below.

Your product will remain suspended, however, until the Agency determines you are in compliance with the requirements which are the bases of this Notice and so informs you in writing.

After the suspension becomes final and effective, the registrant subject to this Notice, including all supplemental registrants of product(s) listed in Attachment I, may not legally distribute, sell, use, offer for sale, hold for sale, ship, deliver for shipment, or receive and (having so received) deliver or offer to deliver, to any person, the product(s) listed in Attachment I.

Persons other than the registrant subject to this Notice, as defined in the preceding sentence, may continue to distribute, sell, use, offer for sale, hold for sale, ship, deliver for shipment, or receive and (having so received) deliver or offer to deliver, to any person, the product(s) listed in Attachment I.

Nothing in this Notice authorizes any person to distribute, sell, use, offer for sale, hold for sale, ship, deliver for shipment, or receive and (having so received) deliver or offer to deliver, to any person, the product(s) listed in Attachment I in any manner which would have been unlawful prior to the suspension.

If the registration(s) for your product(s) listed in Attachment I are currently suspended as a result of failure to comply with another section 3(c)(2)(B) Data Call-In Notice or Section 4 Data Requirements Notice, this Notice, when it becomes a final and effective order of suspension, will be in addition to any existing suspension, i.e., all requirements which are the bases of the suspension must be satisfied before the registration will be reinstated.

You are reminded that it is your responsibility as the basic registrant to notify all supplementary registered distributors of your basic registered product that this suspension action also applies to their supplementary registered products and that you may be held liable for violations committed by your distributors.

If you have any questions about the requirements and procedures set forth in this suspension notice or in the subject section 3(c)(2)(B) Data Call-In Notice, please contact Frances Liem at (202) 564-2365.

Sincerely yours,

Director, Agriculture Division, Office of Compliance.

Attachment I Suspension Report - Product List

Attachment II Suspension Report - Requirement List

Attachment III Suspension Report - Explanatory Appendix

IV. Registrants Receiving and Affected by Notice of Intent to Suspend

The following is a list of products for which a letter of notification has been sent:

Table A.—Product List

Registrant AffectedEPA Registration NumberActive IngredientName of ProductDate DCI Issued
Care-Flex One-Year Guarantee Company66680-1Boric acid and its sodium saltsCare-Flea Home Treatment2/16/94
The Scotts Company538-164BensulideProturf Goosegrass/Crabgrass Control7/11/00
Voluntary Purchasing Group7401-439Methyl nonyl ketoneFert-Pro Dog-Gon and Cat Repellent2/28/96

V. Basis for Issuance of Notice of Intent; Requirement List

The following companies failed to submit the following required data or information:Start Printed Page 54447

Table B.—Requirement List

Registant AffectedActive IngredientRequirement NameGuideline Reference NumberDue Date
Care-Flex One-Year Guarantee CompanyBoric acid and its sodium salts90-Day response---06/11/94
Confidential Statement of Formula---11/11/94
8-Month response---11/11/94
Product identity and composition61-111/11/94
Description starting materials, production & formulation process61-2(a)11/11/94
Discussion of formation of impurities61-2(b)11/11/94
Preliminary analysis62-111/11/94
Certification of limits62-211/11/94
Analytical method62-311/11/94
Color63-211/11/94
Physical state63-311/11/94
Odor63-411/11/94
Density63-711/11/94
PH63-1211/11/94
Oxidizing or reducing action63-1411/11/94
Explodability63-1611/11/94
Storage stability63-1711/11/94
Viscosity63-1811/11/94
Corrosion characteristics63-2011/11/94
Acute oral toxicity-rat81-111/11/94
Acute dermal toxicity-rabbit/rat81-211/11/94
Acute inhalation-toxicity-rat81-311/11/94
Primary eye irritation-rabbit81-411/11/94
Primary dermal irritation81-511/11/94
Dermal sensitization81-611/11/94
Treatments95-2,311/11/94
Manmade premises95-1011/11/94
Premises treatment95-1111/11/94
Treatments95-1211/11/94
Stored products treatment95-1311/11/94
The Scotts CompanyBensulideProduct identity and composition158.15512/30/01
Description of starting materials158.16012/30/01
Start Printed Page 54448
Description of production process158.16212/30/01
Description of formulation process158.16512/30/01
Discussion of impurity formation158.16712/30/01
Preliminary analysis158.17012/30/01
Certification of limits158.17512/30/01
Enforcement analytical method158.18012/30/01
Color63-212/30/01
Physical state63-312/30/01
Odor63-412/30/01
Density63-712/30/01
pH63-1212/30/01
Oxidation/reduction63-1412/30/01
Flammability63-1512/30/01
Explodability63-1612/30/01
Storage stability63-1712/30/01
Viscosity63-1812/30/01
Miscibility63-1912/30/01
Corrosion characteristics63-2012/30/01
Dielectric breakdown voltage63-2112/30/01
Acute oral toxicity81-106/30/01
Acute dermal toxicity81.206/30/01
Acute inhalation toxicity81-306/30/01
Primary eye irritation81-406/30/01
Primary dermal irritation81-506/30/01
Skin sensitization81-606/30/01
Voluntary Purchasing GroupMethyl nonyl ketoneStorage stability63-17 (830-6317)8/28/00
Corrosion characteristics63-20 (830-6320)8/28/00

VI. Attachment III Suspension Report-Explanatory Appendix

The Explanatory Appendix provides a discussion of the basis for the Notice of Intent to Suspend issued herewith.

A. Bensulide

On July 11, 2000, the Agency issued the Phase 5 Reregistration Eligibility Document Data Call-In Notice pursuant to sections 4(g)(2)(B)and 3(c)(2)(B) of FIFRA which required the registrants of products containing bensulide used as an active ingredient to develop and submit certain data. These data/information were determined to be necessary to satisfy reregistration requirements of section 4(g). Failure to comply with the requirements of a Phase 5 Reregistration Eligibility Document Data Call-In Notice is a basis for suspension under section 3(c)(2)(B) of FIFRA.

The Scotts Company (Scotts) received the Bensulide Reregistration Eligibility Document (RED) on July 20, 2000, as evidenced by a U.S. Postal Service domestic return receipt card. Therefore, the 90-day response was due on October 20, 2000, and the 8-month response was due on March 20,2001.

In its 90-day response, dated October 30, 2000 (received by the Agency on November 2, 2000), Scotts requested a time extension to submit their product-specific data. For the acute toxicity date, the company requested a time extension until June 30, 2001, and for the product chemistry data, it requested an extension until December 30, 2001. The Agency in a letter dated December 18, 2000 granted Scotts time extension requests.

To date, no product chemistry or acute toxicity data have been submitted to the Agency for EPA Registration No. 538-164.Because Scott has failed to submit the Start Printed Page 54449required data, this Notice of Intent to Suspend is being issued.

B. Boric Acid and its Sodium Salts

On February 16, 1994, the Agency issued the Phase 5 Reregistration Eligibility Document Data Call-In Notice pursuant to sections 4(g)(2)(B)and 3(c)(2)(B) of FIFRA which required the registrants of products containing boric acid and its sodium salts used as an active ingredient to develop and submit certain data. These data/information were determined to be necessary to satisfy reregistration requirements of section 4(g).Failure to comply with the requirements of a Phase 5 Reregistration Eligibility Document Data Call-In Notice is a basis for suspension under section 3(c)(2)(B) of FIFRA.

Care-Flex One-Year Guarantee Company received the Boric Acid and Its Sodium Salts Reregistration Eligibility Document (RED) on March 11, 1994,as evidenced by a U.S. Postal Service green card. The Agency has not received either the 90-day response or the 8-month response to the Boric Acid and Its Sodium Salts RED for the product EPA Registration Number 66680-1. The 90-day response was due on June 11, 1994, and the 8-month response was due on November 11, 1994. The Agency has sent two follow-up letters to the registrant dated April 22, 2002 and August 19, 2002,respectively, and those letters were received by the registrant on April 27, 2002, and August 23, 2002, respectively, as evidenced by the U.S.Postal Service green cards. To date, the registrant has not responded.

Because Care-Flex One-Year Guarantee Company has not submitted the required DCI/RED responses and data, the Agency is issuing this Notice of Intent to Suspend.

C. Methyl Nonyl Ketone

On February 28, 1996, the Agency issued the Phase 5 Reregistration Eligibility Document Data Call-In Notice pursuant to sections 4(g)(2)(B)and 3(c)(2)(B) of FIFRA which required the registrants of products containing Methyl Nonyl Ketone used as an active ingredient to develop and submit certain data. These data/information were determined to be necessary to satisfy reregistration requirements of section 4(g). Failure to comply with the requirements of a Phase 5 Reregistration Eligibility Document Data Call-In Notice is a basis for suspension under section 3(c)(2)(B) of FIFRA.

Voluntary Purchasing Group received the Methyl Nonyl Ketone Reregistration Eligibility Document Data Call-In Notice (RED) on March 9,1996, as evidenced by a U.S. Postal Service Domestic return receipt card.The 90-day response was received on June 26, 1996.

The Agency completed its review of the product chemistry data on February 28, 2002. The data requirements for Guideline 63-17 (Storage Stability) and Guideline 63-20 (Corrosion Characteristics) were not satisfied. The interim report submitted by Voluntary Purchasing Group by letter dated February 18, 2002 related to an unacceptable study and the data requirements remain unsatisfied. In an Agency letter dated March 6,2002 to Michael Jackson (consultant for Voluntary Purchasing Group) a time extension was granted since a new study had been reportedly initiated in December 2001, according to information provided to the Agency by Mr.Jackson. The new deadline for submission of the storage stability and corrosion characteristics data was January 2003. Subsequently, the Agency sent a letter dated January 15, 2003, as no data addressing these two outstanding requirements had been received as of that date. That letter, which was received by Mr. Jackson on January 21, 2003 (as evidenced by a U.S. Postal Service domestic return receipt card), informed him and his client that a Notice of Intent to Suspend would be initiated if the outstanding data were not received by January 31, 2003.

To date, the Agency has not received the required data. Because the required data have not been received, the Agency is issuing this Notice of Intent to Suspend.

VII. What is the Agency's Authority for Taking this Action?

The Agency's authority for taking this action is section 6(f)(2) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq.

Start List of Subjects

List of Subjects

End List of Subjects Start Signature

Dated: September 4, 2003.

Richard Colbert,

Director, Agriculture Division, Office of Compliance, Office of Enforcement and Compliance Assurance.

End Signature End Supplemental Information

[FR Doc. 03-23754 Filed 9-16-03; 8:45 am]

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