The policy statement regarding the "Use of Registered Pesticide Against Pests Not Named On Labels" to which you refer in your letter was designed to begin this notice process. The publication of this document has awaited a determination by the Agency's Office of General Counsel regarding whether such policy statements define the Agency's regulatory jurisdiction, or define the application of the Agency's prosecutorial discretion. OGC has determined that where Agency policy defines the scope of FIFRA jurisdiction, the Agency should provide public notice by means of regulations. Where Agency policy defines the application of its prosecutorial discretion, the Agency should provide public notice by means of published guidelines. To implement this system of regulations and guidelines, the Office of Enforcement has drafted a Federal Register notice which announces its initiation of a series of Pesticides Enforcement Policy Statements. This series will include policy statements regarding topics of particular interest to the structural pest control industry such as the use of a pesticide at less than the label dosage rate, the use of pesticides in structural pest control against unnamed target pests, the use of service containers for the transportation and storage of pesticides, approved pesticide disposal practices, and the custom blending of pesticide combinations. The series will also include policy statements regarding the regulation of products which move only in intrastate commerce and the implementation of new enforcement remedies of the 1972 amendments. Proceeding with the publication of appropriate regulations or guidelines is an important priority of the Office of Enforcement and the Office of Pesticide Programs. I anticipate that the notice announcing the initiation of the series of Pesticide Enforcement Policy Statements will be published by mid-April 1975. Subsequent policy statements dealing with the substantive questions of pesticide use or application will follow immediately. I appreciate your solicitation of our views in this matter. A. E. CONROY II, Director, Pesticides Enforcement Division. NATIONAL PEST CONTROL ASSOCIATION, INC., Mr. RUSSELL E. TRAIN, Environmental Protection Agency, Washington, D.C. DEAR MR. TRAIN: We write with concern for the trend we see in the enforcement programs of the Office of Enforcement and General Counsel and that Office's apparent role in the delay of Federal Register Notices pertaining to our Industry. For a time we were optimistic about living with the Agency's enforcement program because of Assistant Administrator Kirk's description of a "strategy designed to foster voluntary compliance with requirements" in his testimony before the Whitten Sub-Committee on Appropriations, April 2, 1974. We were eager to learn about, and to participate in, efforts at voluntary compliance. Our record of positive cooperation with the government in such activities is well-known. We were disappointed, therefore, to have had no response to our request to Mr. Kirk of April 5th (see attached copy) or to have any other indication of EPA's intention to engender voluntary compliance with regulations. Instead, as we read Mr. Kirk's report of July 26th, the effectiveness of the recent pesticides enforcement program has been measured purely in numbers of citations issued and in dollars collected. Penalties have been, and continue to be imposed upon small formulators who undoubtedly have had some quality control problems but who make few registerable products-mostly as a convenience to their neighbors and customers-not as a principal profit making activity. We are confident that members would make a strenuous effort at voluntary compliance if they were informed of the need and of the compliance required. Being primarily users, rather than producers, of pesticides the members of the National Pest Control Association are alarmed at the prospects of the regulatory actions which may be taken under Section 12(a) (2) (G) of Amended FIFRA. Enforcement of literal wording of the directions for use on the labels of presently available products will deny much of the public the benefits of pesticides without compensatory safety or protection of the environment. In fact, there will be serious depreciation to the environment of all who live and work in build ings, if strict enforcement of the letter of the label is pursued. The details of the problem together with pertinent legislative history are described in the attached file of correspondence. The file also shows that it is nearly a year since the problem was first discussed with EPA. We are still without guidance or relief. Congress made clear in the legislative history of Public Law 93-516 that solution of the problem of use "inconsistent with the label" was left to the common sense and good judgment of the Administrator. The draft Federal Register Notice mentioned in recent correspondence between Mr. Agee and myself seems to be a practical and realistic document. It would allow safe and effective use if pesticides to control pests not named on labels. Mr. Agee's letter of January 31st indicates that the proposed document has been awaiting review and concurrence for more than a month in the Office of the Assistant Administrator for Enforcement and General Counsel. In view of Mr. Kirk's departure from the Agency, may we have the current views of EPA concerning voluntary compliance and your assistance in expediting release of the policy on Use of Registered Pesticides Against Pests of Structures Not Named On Labels? Thank you for your courtesy. PHILIP J. SPEAR, Ph. D., Senior Director, Research. Mr. ALAN G. KIRK, II, NATIONAL PEST CONTROL ASSOCIATION, Assistant Administrator for Enforcement and General Counsel, Environmental Protection Agency, Washington, D.C. DEAR MR. KIRK: I was interested to read in your testimony before the Subcommittee on Agriculture-Environment Consumer Protection Committee on Appropriations on April 2nd, that your functions have included the fostering of voluntary compliance with requirements of EPA. The National Pest Control Association has had a long standing record of activity in the areas of education and information. We would appreciate being alerted to opportunities to learn of and profit from your strategies with regard to fostering voluntary compliance with the requirements of amended FIFRA. Sincerely, PHILIP J. SPEAR, Ph. D., Senior Director, Research. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, PHILIP J. SPEAR, Ph. D.. Senior Director, Research, DEAR DR. SPEAR: Thank you for your letter of January 23, 1975, concerning the use of registered pesticides for control of pests not listed on registered labels. Although we are encouraged by the draft of the Federal Register Notice to which you refer, it must be added that several fundamental problems remain to be resolved before a first interpretation can be issued. Please be assured that we will continue vigorous pursuit of an Agency policy in response to your request; in this regard, it is possible that we may have something firm to pass on to you in the near future. Your concern in this matter is appreciated. JAMES L. AGEE, Assistant Administrator for Water and Hazardous Materials. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Washington, D.C., February 3, 1975. PHILIP J. SPEAR, Ph. D., Senior Director, Research, National Pest Control Association, Inc., Vienna, Va. DEAR DR. SPEAR: Thank you for your letter of November 26 in which you express your concern that Mr. Train may not be fully informed of the "use inconsistent with the label" problems being faced by your industry. 54-495-75--11 Let me assure you, first of all, that Mr. Train is aware of the concerns of the pest control industry in this important area. As far as personal involvement in resolving this issue is concerned, however, Mr. Train is trusting this office to work toward finding the proper solution. That is one job-as I am sure you understand, the Administrator cannot personally attend to every problem which confronts the Agency. I hope that you will agree that we are making every effort to bring the "use inconsistent with the label" matter to a rapid conclusion. I understand that you have seen the proposed policy statement developed by the Office of Pesticide Programs concerning "use inconsistent" policy as it pertains to structural pests. You, in fact, offered some very constructive suggestions which facilitated the development of this policy. As you know, our proposals are presently before our Office of Enforcement and General Counsel for its review and concurrence. We, of course, are hopeful that the issue can be quickly resolved. As far as receiving "boilerplate" responses is concerned, I hope that the members of your industry realize that when we receive hundreds of letters essentially alike, the only way we can respond on a timely basis is to provide each individual with the same basic letter. After all, there would have been little point in varying wording when we had the same message to all concerned: that we realize that the problem facing your industry is a real one and an important one, and that we were doing our best to find an expeditious resolution. We mentioned our liaison with the NPCA merely to point out that we were in close contact with the thoughts and problems of your industry, and that we were anxious to work together to discover realistic solutions. In no way were we implying that this liaison was an excuse of any sort for delaying policy in this area; on the contrary, we feel that the liaison helped to expedite the policy planning in this area, as your own contributions to the proposed interpretative statement will serve to illustrate. I thank you for your offer to meet with me at any time, and for your able articulation of the problems facing your industry. I hope that we can continue to work together to bring all outstanding concerns to a speedy resolution. Sincerely yours, JAMES L. AGEE. Assistant Administrator for Water and Hazardous Materials. ENVIRONMENTAL PROTECTION AGENCY [OPP-120002] PESTICIDE PROGRAMS NOTICE OF INTERIM ENFORCEMENT POLICY USE OF REGISTERED PESTICIDES AT LABEL SITES FOR CONTROL OF UNNAMED TARGET PESTS IN STRUCTURAL PEST CONTROL On January 9, 1973, the Administrator of the U.S. Environmental Protection Agency (hereinafter the "Agency") published in the Federal Register (39 FR 1142) a timetable for the implementation of the Federal Environmental Pesticide Control Act of 1972 (P.L. 516, 86 Stat. 973) which amended the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). This document set forth the Agency's plan for implementing the amendments to the FIFRA, informed the public as to the date when the amendments became or would become effective, and indicated the general form and content that various regulations would take. This Implementation Plan noted that Section 12(a)(2) (G) of the amended FIFRA, which prohibits the use of a registered pesticide in a manner inconsistent with its labeling, became effective on the date of enactment. With regard to the enforcement of Section 12(a) (2) (G), the Plan noted that: The Agency will entertain requests to issue pesticide use rulings on a case-by-case basis and furnish its interpretation of the Act. While such rulings will, after notice, be subject to revocation, they will assist the publie in understanding the Agency's interpretation of the Act. It was the intent of the Administrator in instituting a case-by-case review of pesticide use cases to provide a mechanism for the development of a uniform national policy regarding the enforcement of Section 12 (a) (2) (G). The language of the Implementation Plan acknowledges the unique enforcement status of cases involving pesticide misuse. In fact, Section 12(a) (2) (G) is the only provision of Section 12 which was deemed to require specialized policy interpretation by the Agency. Background Representatives of the Structural Pest Control Industry have sought permission from the Agency to use registered pesticides for control of unnamed target pests not specified on the label. Professionals engaged in the field of pest management, particularly those involved in structural pest control,' in the past have used pesticides at recom mended label dosages and at label recommended sites of application to control pests related to those pests specifically enumerated on the registered labeling but which are considered controllable by the particular pesticide. Professionals have relied on experience, interchange of information as through trade association bulletins and recommendations by experts in the field of pest control for advice on control of such pests. In addition, representatives of the Structural Pest Control Industry have further explained to the Agency that occupants of homes and places of business have need for control of minor or infrequent pests which are not named on registered pesticide labels. Such pests are limited and sporadic in their occurrence. They are of too little importance to justify and, in most cases to even permit, collection of data sufficient to meet Agency criteria for registration. Appearance of such pests may have such severe adverse effects on man and his belongings that the public could demand prompt relief. Legislative History The Senate Committee on Agriculture and Forestry while addressing the issue of use inconsistent with the label noted that: This bill would regulate the use of a pesticide for the first time. It is not the intention of the Committee to prohibit any use which is in no way harmful, and which has only beneficial effects on man and his environment. The Committee considered an amendment to the bill to assure that such use would not be prohibited, but concluded that this was a matter which would have to be left to the good sense of the Administrator, the manufacturers, and the users. It is the hope of the Committee that by proper administration of the labeling requirements and administrative interpretations of the law and the labels approved by him, the Administrator will be able to make it clear to users that such uses are not prohibited. Further, it is the belief of the Committee that the use of the word "inconsistent" should be read and administered in a way so as to visit penalties only upon those individuals who have disregarded instructions on a label that would indicate to a man of ordinary intelligence that use not in accordance with such instructions might endanger the safety of others or the environment. Thus, for example, it would be expected that use of a general unrestricted pesticide registered for use on enumerated household pests to exterminate a pest not specified on the label would not be inconsistent with the labeling. On the other hand, the use of even a general use pesticide in a manner inconsistent with a specified caution or restriction on the label should be considered inconsistent with the labeling. For example, the use in the home of a general use pesticide labeled "for use outdoors", or "not for use in enclosed areas", would be prohibited under this provision. [S. Rep. #92-838, supra, 15-16 (1972)] Use of a registered pesticide in a manner inconsistent with its registered labeling constitutes an enforceable violation of the FIFRA and may subject the violator to civil or criminal sanctions thereunder. The Agency recognized, however, that the enforcement policy must reflect the intent of Congress to establish a workable and reasonable law in regard to the safe and effective use of pesticides. Therefore, it is concluded that the intent of Congress in regulating pesticide use by product labeling was to allow beneficial uses which are not harmful to man or the environment. Agency Policy Upon examination of this situation, the Agency finds, with the exception of food areas in food establishments as defined in the definition and policy statement concerning insecticides in food handling establishments, published in the Federal Register August 10, 1973 (38 FR 21685), that the use of pesticides at label sites for control of unnamed target pests in structural pest control should not be deemed inconsistent with the label providing: 1. A pesticide registered for use in the specific environmental situation is selected. 1 Persons who are expected to be certified under the provisions of Part 171.3(b) (7), 4 CFR, as published in Federal Register, October 9, 1974 (39 FR 36446). 2. Appropriate label instructions are followed (except for the unnamed target pest). 3. No other registered pesticide product is available for control of the unwanted target pests. 4. Professionals adhere to industry established good practice in pesticide usage. It must be recognized that the Agency has not assessed nor approved the efficacy of use of such pesticides at label specified application rates and sites for use on pests which are not included on the label and that the user applies them at his own risk with respect to effects on the unnamed target pest. The above stated policy of deeming such use not inconsistent with the label must not be construed as Agency approval in the same sense as indicated by an approved label. This policy and interpretation will remain in effect until modified by further statements or regulations by a notice published in the Federal Register. This document is published as a notice in the Federal Register in the interest of the open administration of the Agency's regulatory responsibilities. The document constitutes "interpretive rules" or "general statements of policy” and as such is not required to be published for public comment (5 U.S.C. 553 (b) (a)). The position has been reviewed and is considered acceptable under the amended FIFRA. The Office of Enforcement and General Counsel is of the opinion that this interpretation is consistent with the purposes and the provisions of the Act and reflects the will of Congress as revealed in the legislative history of the 1972 amendments. This interpretation buttresses the narrow construction which the Agency has consistently applied to the provision of the FIFRA which makes it unlawful for any person to “. use any registered pesticide in a manner inconsistent with its labeling" (7 U.S.C. 136 J (a) (2) (G)). Assistant Administrator for Water and Hazardous Materials. Assistant Administrator for Enforcement and General Counsel. NATIONAL PEST CONTROL ASSOCIATION, INC., Mr. JAMES L. AGEE, Assistant Administrator, Hazardous Materials Control, Environmental Protection Agency, Washington, D.C. DEAR MR. AGEE: The January 21, 1975 draft of the Federal Register Notice of "Interim Enforcement Policy concerning Use of Registered Pesticides at Label Sites for Control of Unnamed Target Pests in Structural Pest Control” gives us great encouragement. In my opinion it gives the relief needed by our Industry to a problem for which a legislative history was established during the hearings on Public Law 92-516 and which has been the subject of a series of communications with EPA. (Spear to Ritch, May 21, 1974; Spear to Agee, Oct. 4 and Oct. 30; Agee to Spear, Nov. 14 and Spear to Agee, Nov. 26, 1974.) Also as you know, several members of our Industry have written to their Senators and/or Congressmen concerning this matter. They represent only a small fraction of the thousands of pest control operators who wish to serve the public and, too frequently, cannot do so legally. In large part these letters to Congress were intended to bring to the attention of EPA and particularly its Office of Enforcement and General Counsel that there are good practical reasons and a solid legislative history for the requested policy statement. Unfortunately none of the Agency's responses which I have seen to the Congressional correspondence has originated with the Office of General Counsel. We would appreciate your efforts to expedite issuance of the policy on Use of Registered Pesticides at Label Sites for Control of Unnamed Target Pests in Structural Pest Control. Please let me know of any steps I can take to hasten its progress. Sincerely, PHILIP J. SPEAR, PH. D., Senior Director, Research. |