Response to Requests to Cancel Certain Creosote Wood Preservative Products, and/or to Amend to Terminate Certain Uses of Other Creosote Products

AGENCY:

Environmental Protection Agency (EPA)

ACTION:

Notice of Cancellations

SUMMARY:

This notice announces that cancellation orders were signed on August 11, 2004, in response to the use terminations and cancellations voluntarily requested by the registrants of certain wood preservative products containing creosote pursuant to section 6(f)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended. EPA issued final cancellation order letters to the five registrants of creosote products accepting their voluntary use termination requests/product cancellation requests to either amend current label language to delete non-pressure treatment uses of creosote or to cancel the affected products. Both the use terminations and the product cancellations are effective December 31, 2004. In addition to stating the Agency's response to the requests, this notice also addresses the comments received in response to the Agency's requests for public comments on the above stated requests.

DATES:

The effective date of the voluntary product cancellations and/or use terminations for the affected creosote products is December 31, 2004.

FOR FURTHER INFORMATION CONTACT:

Jacqueline McFarlane, Antimicrobials Division (7510C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-6416; e-mail address: Campbell.jackie@epa.gov.

SUPPLEMENTARY INFORMATION:

The registrants who are members of the Creosote Council III requested cancellation of the registrations for their creosote non-pressure treatment end-use products and/or to amend to terminate all non-pressure treatment uses of other creosote products. These include all uses that are not applied to treated wood inside of the pressure treatment cylinder, such as thermal treatment, dipping, brush-on, etc. The Agency agreed to allow registrants to voluntarily cancel all non-pressure treatment uses of creosote. These registrants requested that these voluntary product cancellations and/or use terminations become effective December 31, 2004. All registrants waived the 180-day comment period (i.e., any comment period in excess of 30 days). The Agency issued a notice of receipt of the aforementioned requests along with a solicitation for public comments (September 29, 2003), followed by another notice on November 26, 2003, to extend the comment period until December 26, 2003.

This announcement consists of five parts. The first part contains general information. The second part addresses public comments received during both comment periods. The third part describes action taken by the Agency. The fourth part describes the Agency's legal authority for the action announced in this notice. The fifth part addresses existing stocks provisions.

I. General Information

A. Does this Action Apply to Me?

This action is directed to the public in general. Although this action may be of particular interest to persons who produce or use pesticides, 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 information in this notice, 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-2004-0250. 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, 1801 S. Bell Street, Arlington, VA 22202. 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 submit or 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. Summary of Action, Public Comments Received and Agency Response to Comments

The Agency issued a notice of receipt of the aforementioned requests along with a solicitation for public comments (September 29, 2003), followed by another notice on November 26, 2003, to extend the comment period until December 26, 2003. Nine comments were submitted by members of the wood preservative industry, attorneys for various stakeholders, potential registrants, associations, and city officials. No comments, however, were received relating to creosote. Because these notices included creosote and Acid Copper Chromate (ACC), seven of the comments received were related to ACC. Because ACC is not included in this cancellation order, those comments will be addressed in a later Federal Register notice. Two comments from the same association (Florida Fruit & Vegetable Association) addressed the importance of Chromated Copper Arsenate (CCA) as a product used to treat the stakes for fruiting vegetable crops, particularly tomatoes (comments seemingly misplaced in response to this notice, which did not include CCA; additionally, it should be noted that the treating of these stakes is disallowed under current CCA supplemental guidance). Therefore, there were no comments received which had to be factored into this decision.

III. What Action is the Agency Taking?

This notice announces the final issuance of cancellation orders for creosote registrations/terminations of non-pressure treatment uses. The Agency hereby cancels the registrations of three pesticide registrations and amends to terminate certain uses of seven other pesticide registrations listed below, effective December 31, 2004 (Tables 1 and 2).

Amendments to the product labels should be made via notification to the Agency in accordance with section 3(c)(9) of FIFRA on or before December 31, 2004, to delete the use directions for the uses subject to this cancellation order. Labels incorporating these amendments must be forwarded along with this notification.

Table 3 includes the names and addresses of record for all registrants of the products in Tables 1 and 2, in sequence by EPA company number:

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

Section 6(f)(1) of FIFRA provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be canceled or amended to terminate uses. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the Federal Register. Thereafter, the Administrator may approve such a request.

V. Provisions for Disposition of Existing Stocks

The registrants of affected creosote products have requested that the voluntary product cancellation and/or use terminations become effective December 31, 2004, with no provisions for existing stocks for the registrants. Consequently, the Agency is not allowing for any existing stocks provisions for those products in the hands of the registrant on the effective date of the cancellation/use termination. Any sale, distribution, or use by the registrant of these affected products on or after the effective date of this order is prohibited.

Existing stocks already in the hands of persons other than the registrant can be distributed, sold, or used legally until they are exhausted, provided that such further sale and use comply with the EPA-approved label of the affected product.

For purposes of this order, the term “existing stocks” is defined, pursuant to EPA's existing stocks policy (56 FR 29362, June 26, 1991), as those stocks of a registered pesticide product which are currently in the United States and which have been packaged, labeled, and released for shipment prior to the effective date of the cancellation or amendment. Any distribution, sale or use of existing stocks in a manner inconsistent with the terms of the cancellation order or the existing stocks provisions contained in the order will be considered a violation of section 12(a)(2)(K) and/or section 12(a)(1)(A) of FIFRA.

List of Subjects

• Environmental Protection
• Creosote
• Pesticides and pests