Current through Register Vol. 49, No. 9, September, 2024
SECTION I. PUBLIC
NUISANCE DECLARED
The following plant diseases, insect pests, and noxious weeds
under the provisions of the Arkansas Plant Act (A. C.A. ' 2-16- 201 et
seq) are hereby declared to be a public nuisance, including anything
infected, infested, or contaminated therewith. The extent to which these plant
diseases, insect pests and noxious weeds are regulated is covered in this and
other Plant Board circulars. Italicized pests are intent of horticulture
inspections.
A.
Plant Disease
Pests Listed1.
Chestnut blight
(chestnut and chinquapin)
2.
Phony peach, peach mosaic and
peach rosette
3. Fusiform
and other gall rusts of pines
4.
Texas root rot (cotton and other plants)
5.
Oak wilt (oak, chestnut and other
trees and shrubs)
6.
Cedar-apple rust
7.
Fire blight (pear, apple and
other plants)
8.
Root knot nematode
9.
Soybean cyst nematode
10.
Foliar nematodes (Aphelenchoides
besseyi and others)
11.
Crown gall and other infectious galls
12.
Hairy root of apple and
rose
13.
Bacterial spot of peach
14.
Strawberry
dwarf
15.
Red
stele of strawberry
16.
Virus diseases on horticultural crops
17.
Strawberry yellows
(genetic)
18.
Infectious cankers
19.
Bacterial spot of tomato
20.
Alternaria and septoria leaf
spots of tomato
21.
Late blight of tomato
22.
Camellia petal
blight
23.
Azalea
petal blight
24. Hoja
blanca disease of rice
25.
Internal cork of sweet potato
26.
Black rot &/or Stem rot of
sweet potato
27.
Anthracnose on various host plants
28.
Pink root of
onion
29. Sting
nematode
30.
Blights and
leaf spots damaging to plants
31.
Collar rot
32.
Dutch Elm
disease
33.
Phloem necrosis
34.
Bud rot on strawberries
35.
Fusarium wilt of tomatoes (all
races)
36.
Blueberry nursery stock diseases
37.
Pinew ood
nematode
38. Blackleg of
rape
39.
Rose
Rossette
B.
Insect Pests Listed1. Pink
bollworm (cotton and okra)
2.
Sweet Potato weevil
3. Fruit flies (fruit and vegetable) does not
apply to Drosophila
4. Khapra
beetle and other stored grain insects
5. Bruchids and other pest of seeds (seeds of
crops and other plants)
6.
Japanese Beetle (trees, fruits, vegetables and other
plants)
7.
Gypsy
and Browntail moths and other leaf-feeding insects (trees, shrubs and other
plants)
8.
Fire
ant, Argentine ant, carpenter ant and other injurious ants
9.
Vegetable
weevil
10.
White-fringed beetle
11.
European chafer
12.
Termites
13. Powderpost
beetles
14.
San Jose scale
and other scale insects
15.
Wooly Aphis
16.
White flies
17.
Strawberry crown
borer
18.
Pine
tip moth and other insects attacking pine shoots
19. Oriental fruit moth
20.
Borers of all
kinds
21.
European red mite and other spider mites
22.
Bagworms and other leaf-eating
insects
23.
Thrips
24.
Aphids
25. Harlequin
bugs
26. Roaches and other
household insect pests
27.
Elm leaf beetle
28. Cereal
leaf beetle
29. Southern pine
beetle
30.
Brown garden
snail, or any other plant destroying snail
31. Asian Ambrosia Beetle
C.
Noxious Weeds
Listed1. Field bindweed
(Convolvulus arvenis)
2.
Nut grass (Cyperus
rotundus)
3.
Wild
onion and/or wild garlic (Allium spp.)
4. Johnson grass (Sorghum
halapense)
5. Dodder
(Cuscuta spp.)
6.
Bermudagrass (Cynodon dactylon)
7. Cheat or Chess (Bromus secalinus)
and/or (Bromus commutatus)
8. Darnel (Lolium
temulentum)
9. Corncockle
(Agrostemma githago)
10. Horsenettle (Solanum
carolinense)
11. Purple
nightshade (Solanum elaeagnifolium)
12. Buckhorn plantain (Plantago
lanceolata)
13. Bracted
plantain (Plantago aristata)
14.
Rumex spp.
15. Blueweed (Helianthus
ciliaris)
16. Morning Glory
(Ipomea spp.)
17.
Hedge Bindweed (C. sepium)
18. Red rice (Oryza sativa
var.)
19. Curly indigo
(Aeschynomene indica)
20. Tall indigo or coffee bean
(Sesbania exaltata)
21. Giant foxtail (Setaria
faberi)
22. Witchweed
(Striga spp.)
23.
Crotalaria (Crotalaria spp.)
24. Cocklebur (Xanthium
spp.)
25. Moonflower
(Calonyction muricatum)
26. Alligatorweed (Alternanthera
spp.)
27. Balloonvine
(Cardiospermum halicacabum)
28. Itchgrass (Rottboellia
exaltata)
29. Thistle
(Carduus, Cirsium, Onopordum, Silybum, Scolymus, Salsola and other
genera)
30. Serrated Tussock
(Nassella trichotoma)
31.
Purple Loosestrife
(Lythrum salicaria)
32. Barnyardgrass (Echinochloa
crusgalli)
33. Water
Hyacinth (Eichornia crassipes, E. azurea)
34. Japanese Blood Grass (Imperata
cylindrica)
35. Tropical
Soda Apple
(Solanum viarum)
Any foreign insect, plant disease or weed which may be brought
into Arkansas and whose habits and injuriousness under the conditions of
agriculture in Arkansas are unknown, is regarded as dangerous and is declared
to be a public nuisance.
PROHIBITED PLANT LIST
Plants contained on the following list present such a danger to
the natural ecosystems in the state that they are hereby declared prohibited.
No plant, seed or any reproductive structure may be sold or utilized in
plantings in Arkansas.
1. Purple
Loosestrife (Lythrum salicaria)
2.
Giant salvinia (Salvinia molesta)
3. Water Hyacinth (Eichornia crassipes, E.
azurea)
4. Japanese Blood Grass
(Imperata cylindrica)
SECTION VI. Regulations Governing the
Movement of Sweet Potatoes into the State from Areas Infested or Suspected of
Being Infested with
Sweet Potato Weevil.
Sweet potatoes, or plants or vines thereof, which have been
grown or stored in counties or parishes now or hereafter known to be infested
with the sweet potato weevil, must not be transported into or stored, used, or
distributed within the state of Arkansas, except as follows:
A. Sweet potatoes must be moved only to
consignee who holds a valid permit (issued on request) from the Arkansas State
Plant Board, authorizing said consignee to receive shipments of fumigated
potatoes between July 1 and January 31 of each year.
B. Sweet potatoes must be fumigated with
methyl bromide immediately prior to shipment in a manner approved by the
Director of the Arkansas State Plant Board, (a) Only sweet potatoes which have
been inspected and found apparently free of weevils will be eligible for
fumigation, (b) Fumigation certificates signed by an authorized plant
quarantine official, showing number of bushels, car number, dosage, time of
exposure, temperature, name and address of consignor and consignee and any
other information required by the Director, must be mailed to the Plant Board
at Little Rock when the shipment is made, (c) Duplicate copy of certificate
must be attached to waybill, or be in possession of the driver of vehicle, (d)
Each container in the shipment must bear an official fumigation tag. (e) Sweet
potatoes must be moved into Arkansas immediately after fumigation.
C. Permit-holder (consignee) must notify the
Plant Board, Little Rock, immediately on arrival of each shipment. With said
notification, permit-holder must remit to the Plant Board a one-cent fee for
each bushel of sweet potatoes in said shipment.
1. Sweet potato plants or vines must not be
transported into Arkansas under any condition.
2. The Plant Board will inspect on arrival as
many of the fumigated shipments as possible. Should living stages of sweet
potato weevil be found in any shipment, or should it be found that any of the
provisions of this rule are not being complied with, the Director may
invalidate any or all permits issued under this rule. The Director may cause to
be destroyed, refumigated or removed from the state, any shipment in which live
stages of the weevil are found.
Exception for Canning Plants. Sweet potatoes
fumigated as described in Paragraphs 2 and 3 may be brought to canning plants
for immediate canning at any time, provided culls and refuse are sterilized at
the plant.
A. "Unfumigated sweet
potatoes may be brought to canneries at any time provided the canner and broker
or hauler has a signed Compliance Agreement on file with the Plant Board
binding him to the following:
1. Special
permission shall be obtained from the Director of the Arkansas State Plant
Board before bringing weevil-area potatoes into the state. Permission shall be
restricted to the following area and purpose:
a.
Area - That section of
Northwest Arkansas included in the following counties: Baxter, Benton, Boone,
Carroll, Cleburne, Conway, Crawford, Faulkner, Franklin, Fulton, Independence,
Izard, Jackson, Johnson, Lawrence, Madison, Marion, Newton, Pope, Pulaski,
Randolph, Searcy, Sebastian, Sharp, Stone, Van Buren, Washington and White.
Prohibited elsewhere in the state.
b.
Purpose - Immediate canning
only. Seed, bedding, table use, etc., prohibited, entire state.
2. Each load shall be accompanied
by an official certificate of the state of origin showing apparent freedom from
weevils.
3. Each load shall be
officially sealed by the originating inspector and remain sealed until opened
for canning.
4. Certificates and
seals from each load shall be kept by cannery and surrendered to inspector upon
request.
5. If shipped by rail at
any time or truck between January 1 and July 1, certificates must show
treatment of load with a pesticide recommended and registered for such
use.
6. Shipment must be in tight
rail cars or van-type trucks with vents screened. Tarpaulin-covered loads will
not be accepted.
7. Potatoes must
be canned immediately upon arrival. In emergency cases potatoes may be unloaded
and stored for not more than 48 hours in such a way that weevils, if present,
cannot escape and cause infestation.
8. No potatoes may be carried away from
canning plant, and all must be canned except culls.
9. Culls, wastes and cleanings must be:
a. Processed through lye vat at regular plant
speed and temperature and flushed down drain, or b. Collected in a tank covered
with hot lye solution (Minimum 185 degrees F.), allowed to soak for 1 hour,
then either buried 2 feet deep, flushed down drain, or fed to livestock
immediately.
10. After
canning, plant premises must be thoroughly cleaned and sprayed with an
insecticide to kill any live weevils thereon.
11. Trucks and rail cars after unloading and
before leaving premises must also be cleaned and sprayed as in number 10 above,
and cleanings disposed of as in number 9 above.
12. Plant Board inspectors will make
periodical, unannounced inspections to check for conformity with all items
stipulated herein, but will not necessarily remain through entire canning
process each visit.
13. Inspectors
will recommend cancellation of this Agreement and withdrawal of the Director's
special permission if serious discrepancies with the stipulations are
noted.
14. An inspection fee of 5
cents per bushel will be charged, based upon duplicate load certificates, which
are received by the Plant Board office from the out-of-state inspector. These
certificates and seal numbers must match those kept by the canner from each
load and surrendered to Plant Board inspector."
Sweet potatoes grown in counties or parishes which are free or
which have been declared free of potato weevil will be admitted into Arkansas
without fumigation, provided each load is accompanied by a certificate of the
quarantine officer of the state where grown, giving name and address of grower,
number of bushels in the load, destination of load, name of county or parish
where grown, and certifying that said county or parish is free of sweet potato
weevil, and the date issued
SECTION VII. MISCELLANEOUS REGULATIONS
A. Sale or Transportation of Seed Irish
Potatoes is prohibited within the state (Irish potatoes which are represented
orally or in writing as being suitable for planting purposes) unless the
potatoes have been inspected in the field and certified as true to variety and
free from disease, by the official certification agency of the state in which
they were grown; and the official certification tag of said state must be
sealed to each bag or container thereof.
B.
Use of Misleading Words Prohibited.
Seed Irish potatoes must not be accompanied by tags, labels, or other
devices on which are used the words "Inspected or Certified" or on which are
used any other word or words which might suggest a similar meaning, unless said
potatoes have in fact been certified as to freedom from disease and as to
varietal purity by the official certification agency of the state in which they
were grown.
C.
Texas
(Phymatotrichum) Root Rot. Nursery stock, strawberry plants and
vegetable plants grown or originating in the counties of Miller and Little
River, and in any other counties in which the phymatotrichum root disease is
hereafter found to exist, which are affected with said disease, shall be
prohibited from moving into any other portion of the state or into other
states.
The Director may refuse further services of the Plant Board to
anyone who owes the Board for fees, until the fees are paid or until
satisfactory arrangements are made for paying them.
D.
Phytosanitary Certificates.
For sampling, inspecting or analyzing, and issuing phytosanitary
certificates for soybeans, rice, small grains, cottonseed, cottonseed meal,
soybean meal, lumber and other plant products or plants, the charge will be
$15.00 per certificate.
E.
Plant Destroying Snails. The Brown Garden Snail,
Helix
aspersa, has been reported in Arizona,
California, Florida, Louisiana and South Carolina. It is a
plant feeder and very destructive to many host plants. It is readily
transported on infested nursery stock. The shipment, therefore, of nursery
stock into Arkansas from infested states, or from any state hereafter found
infested with this or any other snail know to be a serious plant pest, shall be
subject to the following:
1. Nurseries
in infested states who desire to ship plants into Arkansas shall file
certificates of inspection with the Arkansas State Plant Board. As part of such
certificate, or attached to it, there shall be a declaration signed by the
state's regulatory officer stating that the nursery concerned has been
inspected and found free of the Brown Garden Snail, Helix
aspersa.
F.
Amended certificates of inspection will also be accepted for nurseries which
ship only:
1. Bare root nursery stock free of
soil.
2. Cured bulbs free of
soil.
3. Nursery stock from tightly
enclosed greenhouses or other structures where official inspections are made to
assure the enclosures are free of snails.
A valid copy of the state of origin certificate of inspection
shall be attached to each package, box or bundle of nursery stock shipped into
Arkansas, or to the invoice accompanying each bulk delivery of balled and
burlapped or container-grown stock.
G. Infested nurseries may ship plants into
Arkansas under either of the following conditions:
1.
Fumigation. Certificates and
invoices shall accompany each load showing that the stock has been fumigated in
a gastight chamber with methyl bromide, 2 1/2 pounds per 1,000 cubic feet, 70
degrees F. or above, for 2 hours; or with HCN, 25cc per 100 cubic feet, 50 to
85 degrees F., for 1 hour.
2.
Quarantine Area Certification. Nursery stock will be accepted if
accompanied by certificates and invoices showing that the plants have, under
official supervision, been:
3. Held
in a separate, designated quarantine area for at least 30 days.
4. Treated intermittently with baits and
sprays.
5. Inspected and
re-inspected for Brown Garden Snail.
6. Completely free of harmful snails for at
least 30 days.
Nursery stock or plant material arriving in Arkansas from an
infested state without proper certification will be held under Stop-Sale Order
until properly certified, or returned to the shipper at his expense, unless
found infested with living Brown Garden Snails or other snails known to be
serious plant pests.
Nursery stock or plant material found infested with Brown
Garden Snail or any other dangerous plant pest will be destroyed, or fumigated
at the shipper's expense, provided the infestation can be eliminated without
hazard of spread of the pest during treatment.
H.
Fusarium Wilt of Tomatoes. A
new race of the tomato fusarium wilt organism
(Fusarium oxysporum f.
sp
lycopersici Race 2) has been found in the pink tomato
section of Southeast Arkansas. This organism is a serious threat to commercial
tomato production anywhere in the state. To prevent the spread of Race 2, or
other new races which may hereafter develop, the following regulations shall
apply to all producers of vegetable plants in Bradley and Drew Counties, and in
every county where Race 2 or other new races may subsequently be found.
The movement of tomato plants within or from the above
described regulated area is prohibited, except when such plants are produced
under inspection of the State Plant Board and in compliance with the following
special regulations:
1. Soil used in
beds, pots, cups, flats, pot-beds and cold frames for plant production, or to
rest containers upon, shall be obtained from areas where tomatoes have not been
grown in the past.
2. Soil and/or
soil-media mixtures shall be decontaminated by one of the following methods
before use in plant production:
3.
Methyl Bromide fumigation (4 pounds per 100 cubic feet of soil for a minimum of
24 hours at 40 degrees F. or above).
a. Bulk
soil shall be confined on a concrete slab or sheet of polyethylene plastic over
the ground surface during fumigation.
b. Bulk soil shall be no more than 12 inches
deep to assure gas penetration.
c.
Holes shall be punched in the soil at 12 inch centers to facilitate gas
penetration.
d. Soil in pot-beds,
coldframes and holding areas shall be loosened as deep as practicable to assure
gas penetration.
e. Fumigation
covers shall be air tight (no holes).
f Special care shall be taken when removing
the cover to prevent recontamination with untreated soil.
4. Heat sterilization shall be acceptable if
performed according to Extension Service recommendations (Misc. Publication 64,
"Control of Disease and Insect Pests in the Plant Bed").
5. Artificial media (new or unused peat,
perlite, vermiculite, etc.) may be used without decontamination if reasonable
precautions are taken against contamination with untreated soil (i.e., mixing
on sterilized surfaces, etc.).
6.
All flats, boxes, pots, cups, tools, etc., which have been used in plant
production or which have come in contact with untreated soil must be
decontaminated, preferably by Methyl Bromide fumigation.
7. Plant house interior surfaces must be
decontaminated (all surfaces of benches, timber supports, heating and
ventilating equipment, walls, ceilings, floors, etc.).
8. This shall also apply to surfaces of
coldframes, pot-beds and holding areas.
9. An effective decontaminant spray or drench
may be prepared with 50% commercial Clorox, or with 1 gallon commercial
formaldehyde to 18 gallons water. After using either material, ventilate until
fumes can no longer be detected before growing plants (a few hours to several
days for Clorox, longer for formaldehyde, depending upon conditions).
10. Direct traffic from tomato fields to
plant production areas must not be permitted.
a. Wash hands with soap and decontaminate
shoes with 50% Clorox before entering the plant house, cold frames or holding
areas.
11. Locally grown
seed shall not be planted.
a. A tag or invoice
showing purchase of seed from an established seed firm must accompany
application for inspection.
b. In
cases of dire necessity locally grown seed may be used if hot water treated
(122 degrees F. for 25 minutes). Advance permission must be obtained from
Director of Plant Industry Division.
"These regulations shall apply in addition to and do not
replace any other regulations now given in "Regulations on Plant Diseases and
Pests" (Circular 11).
I.
Blueberry Nursery Stock. The
production of blueberries is a new and growing industry in Arkansas. Diseases
such as red ringspot, necrotic ringspot, stunt and phytophthora root rot pose a
serious threat to the blueberry industry, especially in its developing stages.
To prevent the spread of these and other diseases by blueberry nursery stock
the following regulations shall apply to all blueberry plants produced in
Arkansas for sale.
Mother Blocks. All blueberry plants produced in
Arkansas shall be grown from cuttings taken from mother blocks which have been
established as prescribed by these regulations and kept under rigid inspection
and rouging by the State Plant Board. Mother blocks shall be established by one
of the following methods:
1.
Transplanting or clearly designating and setting apart plants which have been
inspected and found to be free of serious diseases, including the above,
or
2. Setting plants which have
been indexed or otherwise officially determined to be free of harmful diseases,
or
3. Setting plants which have
been produced in an approved official certification program in Arkansas or
another state, or
4. Setting plants
which have been produced from cuttings from an officially approved mother block
established and maintained as set out in these regulations.
5.
New Varieties. When it
appears advantageous to the Arkansas blueberry industry to bring in a promising
new variety which does not qualify for entry under (1) through (4) above,
cuttings, rooted cuttings or plants may be brought into Arkansas and grown in
isolation under inspection, indexing or other testing until officially
determined to be free of harmful insects and diseases. When such official
determination has been made, said plants shall be eligible for the
establishment of mother blocks as in (1) and (2) above.
Proof of origin in the form of affidavits or sales invoices or
certification tags, shall be required for cuttings, rooted cuttings or plants
which are to be used in establishing approved mother blocks if from a source
other than the applicant nurseryman's own blocks.
Mother Blocks:
1. Shall not be fruited for production
purposes.
2. Shall be clearly
designated and set apart from fruiting fields and when possible located where
they will not receive drainage from fruiting fields.
3. Shall be inspected by the State Plant
Board as often as necessary and at optimum times for the detection of such
diseases as red ringspot, necrotic ringspot, other virus diseases, stunt,
phytophthora root rot, fungus cankers, crown gall, and harmful insects and
mites.
a. All obviously diseased or seriously
infested plants found in a mother block shall be removed and destroyed within
10 days of inspection.
b. Plants
suspected of being diseased or infested shall be submitted to the appropriate
department at the University of Arkansas for an official determination. Those
plants officially determined to be diseased or seriously infested shall be
removed and destroyed when such is determined to be necessary.
Production of Blueberry Nursery Stock.
1.
Cuttings taken from a mother
block shall be:
a. Rooted in beds on raised
benches or raised gravel to break contact with the soil. If the bedding medium
contains soil or is being reused the medium shall be fumigated with an approved
fumigant according to label directions. Heat sterilization performed according
to directions in Extension Circular 540, "Control of Diseases and Insect Pests
in the Plant Bed," shall be acceptable. Artificial media (new
peat, perlite, vermiculite, washed sand, etc.) may be used without
fumigating or heat treating if reasonable precautions are taken against
contamination.
b. Rooted in beds
located where they will not receive drainage from fruiting fields or mother
plant blocks.
2.
Rooted Cuttings. Rooted cuttings shall be transplanted to:
a. Fields which have been fumigated with an
approved fumigant according to label directions, or
b. Containers in which the growing medium, if
it contains soil or is being reused, has been fumigated or heat treated as in
III (a) 1 above. Artificial media (new peat, perlite, vermiculite,
washed sand, etc.) may be used without fumigating or heat treating if
reasonable precautions are taken against contamination. Used containers shall
be decontaminated by washing with 30% Clorox solution before reusing.
Containers shall be placed on raised benches or on raised gravel beds in such
manner as to avoid contact of the plants or containers with contaminated soil
or water. Container blocks or field blocks shall be located where they will not
receive drainage from fruiting fields or mother plant blocks.
3.
Nursery Stock.
Blueberry nursery stock when produced as prescribed herein may be sold
as:
a. Cuttings.
b. Rooted Cuttings.
c. Field-grown plants.
d. Container-grown plants.
Proof of origin must be provided to the purchaser if the
cuttings, rooted cuttings or plants are to be used in the establishment of new
mother blocks or for the production of rooted cuttings or container-grown or
field-grown plants for sale.
Application of Regulations. These regulations
shall apply in addition to and do not replace any regulations covering nursery
stock now in effect as covered by Plant Board Circular 11, "Regulations on
Plant Diseases and Pests," nor do they replace or supersede any requirement of
the Arkansas Plant Act or the Arkansas Nursery Fraud Act.
Fees. The nursery license and inspection fees described in
Circular 11, Section IV shall apply.
Effective Date. To avoid penalizing plant
production by current methods while mother blocks are being established, these
regulations shall become effective in two stages. Present plant production
practices may be continued until December 31, 1984, after which date all
cuttings shall be taken and started as prescribed in these regulations. After
December 31, 1986 all cuttings, rooted cuttings and plants produced in Arkansas
for sale shall be produced as set forth in these regulations.
J.
Lythrum Species (Including but not
limited to Purple Loosestrife). All Lythrum species including any hybrid
cross thereof is hereby declared to be a public nuisance and designated a
noxious weed. It is prohibited to transport, buy, sell, offer for sale, or to
distribute Lythrum species inter or intra state. The
planting of plants and/or plant parts including seed is strictly prohibited in
the State of Arkansas.
K.
Rules and Standards for Certification of Certified Blackberry Plants.
The production of blackberry nursery stock is an important industry in
Arkansas. Diseases such as rust, anthracnose, crown gall and viruses, as well
as pests such as cane borers and nematodes pose a threat to the blackberry
nursery industry. To prevent the spread of these problems by nursery stock, the
following certification regulations shall apply to the production and sale of
certified blackberry nursery stock in Arkansas.
1. Definitions
2. Certifying Agency Insurance of
Certificate
3. Blaeberry
Certification Standards
4.
Requirements for Production of Foundation, Registered and Certified Blackberry
Stock
5. Inspections
6. Inspection Standards
7. General Requirements for Plants
8. Blackberry Certification Fees
9. Certified Planting Stock Pre-Marketing,
Identification and Grade
10.
Blackberry Tagging or Stamping and Plant Inspection
11. Application of Regulations
1.
Definitions
a.
Board - means the Arkansas
State Plant Board.
b.
Blackberry - means cultivated Rubus species and
related plants that are considered blackberry botanically.
c.
Cane cutting - is a cane
section of two or more nodes or buds (length 4-6 inches) to be transplanted to
produce a plant.
d.
Crown
- is the persistent (perennial) base of the plant; the junction between
canes and roots (some varieties have buds that arise primarily from the
crown).
e.
Director -
means the director of the State Plant Board or his duly appointed
representative.
f
Hardwood
cutting - is taken from a mature woody stem for the purpose of
propagation.
g.
Indicator
plant - means any herbaceous or woody plant used to index or determine
virus infection.
h.
Indexing
- is a procedure to determine virus or other pathogen infection by
inoculation from the plant to be tested to an indicator plant (grafted onto
plant to be tested) or by any other approved method.
i.
Mericlones - are plants
clonally propagated from a single meristem tip.
j.
Micropropagation - is plant
multiplication in vitro. Blackberry is propagated in tissue
culture by aseptic transfer of meristem tip cultures to produce Nuclear
stocks.
k.
Nodal cutting
- is a cane cutting with a single node to produce a plant.
l.
One-year-old plants - means
well rooted plants that have developed during one growing season.
m.
Primocane - (succulent
plants) is the current season's growth that develops from root or basal crown
buds.
n.
Root cuttings
- is a root section with one or more buds.
o.
Softwood - cutting is taken
from a green, immature, actively growing stem of a woody plant during spring or
early summer for the purpose of propagation.
p.
Succulent plant - means a
small, actively growing plant that is developing from root buds, not having
passed through a dormant period.
q.
Virus infected (affected) - means presence of a virus (es) or
yellows disease agent in a plant or plant part. The word "virus" shall be used
hereafter to include yellows disease.
r.
Virus-like - means a disorder
of genetic or non transmissible origin, or a graft-transmissible disorder
resembling a virus disease, including but not limited to diseases caused by
viroids and phytoplasmas
2.
Certifying Agency Issuance of
Certificate
The issuance of a certified state of Arkansas plant tag or
stamp under this chapter affirms solely that the tagged or stamped blackberry
stock has been subjected to certification standards and procedures by the
department. The Board disclaims all expressed or implied warranties, including
without limitation, implied warranties of merchantability and fitness for
particular purpose, regarding all plants, and plant materials under this
chapter.
The Board is not responsible for disease, genetic disorder,
off-type, failure of performance, mislabeling, or otherwise, in connection with
this chapter. No grower, nursery dealer, government official, or other person
is authorized to give any expressed or implied warranty, or to accept financial
responsibility on behalf of the Plant Board regarding this chapter.
Parti cipation in the blackberry planting stock certification
program is voluntary.
3.
Blackberry Certification Standards
The following specific rules constitute the requirements and
standards for classes and sources of blackberry certified stock:
a.
Nuclear stock shall be
derived from plants that have been micropropagated, indexed,
apparently free from other pests, and evaluated in field tests
for trueness-to-variety. Nuclear stock may exist as in-vitro
tissue culture plantlets or potted plants in a screened greenhouse.
Sources of plants grown as nuclear stock must be approved by the State Plant
Board.
b.
Foundation
stock is produced from Nuclear stock and grown in a greenhouse or
screenhouse to exclude insects.
c.
Registered stock is produced from Foundation stock in greenhouse,
screenhouse, or field.
d.
Certified stock is produced from Registered stock in greenhouse,
screenhouse, or field.
4.
Requirements for the Production of Foundation, Registered and Certified
Blackberry Stocka.
Facilities
(greenhouse, screenhouse, water, equipment, etc.) for plant production
must be approved by the Board before Foundation stock is procured by the
producer.
b.
Foundation
stock1. Foundation plants may be
maintained indefinitely if grown in an insect-proof facility (greenhouse), in
sanitized substrate, and indexed every three years by the United States
Department of Agriculture or other personnel approved by the Board.
2. Growers may use micro-propagation
techniques to multiply foundation plants prior to planting in a foundation
greenhouse provided the micro-propagated plants are isolated from other
non-indexed blackberry plants, and the micro-propagation facilities are
approved by the Board.
3. In
greenhouse or screenhouse, Foundation plants shall be produced in separate
sanitized containers with labeling of cultivar name and lot number (if
applicable).
4. Non-certified
Rubus species must not exist within 152 meters (500 feet) of
the perimeter of the greenhouse. Weeds that host disease of major concern must
be controlled within 152 meters (500 feet) of the perimeter of the greenhouse.
Insects that vector diseases of major concern should be controlled in isolation
areas.
5. Non-certified
Rubus species must not exist within the greenhouse or
screenhouse.
6. Blossoms shall be
removed before the blossoms open.
c.
Registered stock
1. Registered plants may be maintained
indefinitely if grown in an insect-proof facility (greenhouse), in sanitized
substrate, and indexed every three years.
2. In greenhouse or screenhouse, Registered
plants shall be produced in separate sanitized containers with labeling of
cultivar name and lot number (if applicable).
3. Non-certified Rubus
species must not exist within 152 meters (500 feet) of the perimeter
of the greenhouse. Weeds that host disease of major concern must be controlled
within 152 meters (500 feet) of the perimeter of the greenhouse. Insects that
vector diseases of major concern should be controlled in isolation
area.
4. Non-certified
Rubus species must not exist within the greenhouse or
screenhouse.
5. For field
production, soil treatment is required with an approved method (ex. solid soil
fumigation with methyl bromide + chloropicrin). Weeds that host diseases of
major concern will be controlled. Insects that vector diseases of major concern
should be controlled in isolation area.
6. Non-certified Rubus
species must not exist within 152 meters (500 feet) of the perimeter
of the field used to produce certified blackberry stock. Each lot and/or
different cultivars are labeled and separated by a distance of 4.25 meters (14
feet) or a physical barrier that prevents intermingling of roots.
7. Field produced Registered stock shall not
be harvested beyond one year.
8.
Blossoms shall be removed before the blossoms open.
d.
Certified stock
1. Certified plants may be maintained
indefinitely if grown in an insect-proof facility (greenhouse), in sanitized
substrate, and indexed every three years.
2. In greenhouse or screenhouse, Certified
plants shall be produced in separate sanitized containers with labeling of
cultivar name and lot number (if applicable).
3. Non-certified Rubus
species must not exist within 152 meters (500 feet) of the perimeter
of the greenhouse. Weeds that host disease of major concern must be controlled
within 152 meters (500 feet) of the perimeter of the greenhouse. Insects that
vector diseases of major concern should be controlled in isolation
area.
4. Non-certified
Rubus species must not exist within the greenhouse or
screenhouse.
5. For field
production, soil treatment is required with an approved method (ex. solid soil
fumigation with methyl bromide + chloropicrin). Weeds that host diseases of
major concern will be controlled. Insects that vector diseases of major concern
should be controlled in isolation area.
6. Non-certified Rubus
species must not exist within 152 meters (500 feet) of the perimeter
of the field used to produce certified blackberry stock. Each lot and/or
different cultivars are labeled and separated by a distance of 4.25 meters (14
feet) or a physical barrier that prevents intermingling of roots.
7. Field-produced Certified stock shall not
be harvested beyond one year.
8.
Blossoms shall be removed before blossoms open.
e. Documentation of soil treatments and use
of plant protectants shall be made available to the Board.
f. A map identifying cultivars and lots must
be provided to the Board.
5.
Inspections
a.
Greenhouse/Screenhouse
1. Grower will regularly inspect plants. All
plants that are symptomatic of disease will be removed and destroyed. The
grower will keep a logbook recording cultivar and number of destroyed plants
and make it available to Board inspectors.
2. Grower will inspect in and around the
greenhouse perimeters to ensure isolation standards are being met.
3. Board inspectors must inspect and approve
any greenhouse that has not been used for successful production of indexed
blackberry plants.
4. During the
production of certified plants, Board inspectors will do at least one
inspection during the growing period when plants are likely to express symptoms
of virus infection, crown and cane gall infections and other disorders. The
Board may conduct additional inspections if deemed necessary.
5. All plants that are of off-types, crown
gall infected, virus infected, or exhibiting virus-like symptoms during
inspections will be flagged by Board inspectors.
6. Grower will remove all flagged plants
immediately after inspection by the Board inspector. Effective roguing
techniques must include removing the undesirable plant and all of its
roots.
b.
Field1. The grower should
inspect fields regularly during the growing season and rogue all plants with
symptoms of disease, etc. The Board should be informed if any problems are
found.
2. The Board inspector will
perform three inspections of fields for certified plant production:
a. First inspection during April
b. Second inspection during July
c. Third inspection during October.
Additional inspections may be performed if deemed
necessary.
3. All
plants that are of off-types, crown gall infected, virus infected, or
exhibiting virus-like symptoms during inspections will be flagged by Board
inspectors.
4. Grower will remove
all flagged plants immediately after inspection by the Board inspector.
Effective roguing techniques must include removing the undesirable plant and
all of its roots as well as all the plants and plant parts within ten feet of
the undesirable plant.
6.
Inspection Standards
a.
Greenhouse, General
Requirements1. Unit of certification
shall be the entire greenhouse.
2.
Isolation: Non-certified Rubus species must not exist within
the greenhouse. Non-certified Rubus species must not exist
within 152 meters (500 feet) of the perimeter of the greenhouse. Weeds that
host disease of major concern must be controlled within 152 meters (500 ft) of
the perimeter of the greenhouse. Insects that vector diseases of major concern
should be controlled in isolation area.
b.
Field, General Requirements
1. Unit of certification shall be the field
or a portion of field. Any portion of the field that does not meet inspection
standards may be delimited if it will not jeopardize the remainder of the
field.
2. Isolation: Non-certified
Rubus species must not exist within 152 meters (500 feet) of
the certified plants. Weeds that host diseases of maj or concern must be
controlled within 152 meters (500 feet) of the certified plants. Insects that
vector diseases of major concern should be controlled in isolation
area.
c.
Specific
Greenhouse and Field Tolerance, maximum % of factor
|
Factor
|
Foundation Stock
|
Registered Stock
|
Certified Stock
|
|
Anthracnose
|
0
|
2.0
|
5.0
|
|
Crown and cane gall
|
0
|
0.1
|
1.0
|
|
Nematodes
|
0
|
0.05
|
0.1
|
|
Rust, systemic
|
0
|
0
|
0
|
|
Virus diseases
|
0
|
0.05
|
0.5
|
|
Other diseases
|
0
|
0.2
|
0.5
|
|
Varietal mixture
|
0
|
0
|
0
|
|
Root, cane or
|
|
crown inhabiting insects
|
0
|
0.05
|
0.1
|
7.
General Requirements for
Plants
a. Growers may sell Foundation,
Registered or Certified stock as certified plants.
b. An official certificate will accompany
each sale of certified Blackberry plants or stock.
This certificate will list the viruses indexed and other
details. Each container/plant will be labeled with variety and certification
information.
c. A complete
record of the number of certified Blackberry plant/stock sales will be
maintained and made available to the official certifying agency. The record
will include
1. Class
2. Cultivar
3. Date of Shipment
4. Number of Plants or Stock
Shipped.
d. General
Inspection Standards for Plants:
1. Apparently
free of biotic and abiotic diseases, insects, and other pests.
2. True-to-variety characteristics.
3. Good leaf color and plant size.
4. Satisfactory plant size to meet the
expectations of the customer.
5.
Plants will not be shipped with non-certified plants.
8. Blackberry
Certification
Fees
a. Blackberry certification
application fee. Applicant will be required to obtain a valid Nurserymans
license and pay the required fees as prescribed for the Nurseryman category.
The blackberry certification application and fee is in addition to
the Nurseryman fee. The certification fee is assessed for the sole
purpose of defraying expenses incurred in the additional inspection and
certification requirements protocol. The applicant must furnish all information
requested on the Application for Inspection
Form and must allow the inspector to take samples of plants or
plant parts from any certified planting for inspection and testing purposes. A
separate application is required and a $50.00 fee shall be paid for each
cultivar/variety unit entered for certification. Each lot or field of each
cultivator shall be listed separately on the application. Application for
certification inspection for the following year must be filed with the Arkansas
State Plant Board, Post Office Box 1069, Little Rock, Arkansas 72203 by
Oct. 31, accompanied by the appropriate fees.
b. A grower desiring to produce certified
blackberry plants as herein provided shall establish with the Board facts
evidencing sufficient experience to produce healthy, high quality
stock.
c. The Board will remove any
applicant failing to renew certification by the designated due date of the
certification program. Failure to pay fees by the designated due date shall
also result in removing the applicant from the certification program.
d. The Board will not accept applications
from growers owing the Board for previous services.
9.
Certified Planting Stock
Pre-marketing, Identification and Grade
a. All blackberry planting stock meeting the
requirements of this chapter can be identified by the State Plant Board tag or
stamp issued under by the Board.
b.
All containers must be new and marked with the name and address of the grower,
class of certified stock, variety and lot number.
c. The quality and grading of the stock is
the responsibility of the grower.
10.
Blackberry tagging or stamping and
plant inspectiona. "Certified" stock
shall be identified with the state of Arkansas official certified blackberry
plant tag or stamp under the supervision of the Board after plants have passed
inspection.
b. Only plants meeting
Arkansas standards for blackberry plants shall be tagged or stamped.
c. All containers shall be marked with the
name and address of the grower, grade or class of stock, and variety.
11.
Application of
Regulations
This certification program is strictly voluntary and these
regulations shall apply in addition to and do not replace any regulations
covering nursery stock now in effect as covered by Plant Board Circular 11,
"Regulations on Plant Diseases and Pests", nor do they replace or supersede any
requirement of the Arkansas Plant Act of 1917, A.C.A.
2-16-201 thru 214 or the
Arkansas Nursery Fraud Act of 1919, A.C.A.
2-21-101 thru 113.
L. RULES AND
REGULATIONS FOR THE ARKANSAS BOLL WEEVIL ERADICATION PROGRAM
Section I:
Purpose. Pursuant to
Ark. Code Ann. §
2-16-605,
the purpose of these rules is to develop and establish procedures for the
eradication of Boll Weevil within and applying uniformly to the whole State of
Arkansas, to establish per acre annual Assessments that offset program costs,
to provide procedures for the collection of such Assessments, to specify
conditions for the movement of regulated articles, and to provide penalties for
violations of these rules.
Section
II:
Declaration of Boll Weevil as a Plant Pest.
Pursuant to Ark. Code Ann. §
2-16-602(a),
the Boll Weevil (Anthonomus grandis
Boheman) is declared to be a plant pest and a nuisance, as is any
plant or other regulated article infested therewith or that has been exposed to
infestation and is likely to lead to additional infestation.
Section III
: Definitions. For
the purpose of these rules, the following definitions shall apply:
1.
APHIS - means United States
Department of Agriculture, Animal and Plant Health Inspection
Service.
2.
Arkansas Cotton
Grower's Organization, Incorporated, d/b/a Arkansas Boll Weevil Eradication
Foundation - means the nonprofit organization comprised of Arkansas
Cotton
Growers to provide guidance and assist in policy decisions
during the eradication program, and certified by the Plant Board pursuant to
Ark. Code Ann. §
2-16-612.
3.
Assessment - means
the amount charged to each Cotton Grower to finance, in whole or part, a
program to suppress or eradicate the Boll Weevil in this state and calculated
on a per-acre basis pursuant to Ark. Code Ann. §
2-16-614(b).
4.
Boll Weevil - means
Anthonomus grandis
Boheman in any
stage of development.
5.
Boll
Weevil Eradication Program - means the program initiated under Ark. Code
Ann. §
2-16-601 etseq.
6.
Certificate - means a
document issued or authorized by the Plant Board indicating that a regulated
article is not contaminated with Boll Weevils.
7.
Grower's Compliance Certificate
- means a document issued or authorized by the Plant Board indicating
that a Cotton Grower has complied with the requirements of these rules and the
Cotton Grower's cotton may be ginned in Arkansas.
8.
Compliance Agreement - means
a written agreement required between the Plant Board and any person engaged in
growing cotton, dealing in, or moving regulated articles wherein the latter
agrees to comply with specified provisions to prevent dissemination of the Boll
Weevil.
9.
Cotton -
means any cotton plant or cotton plant product upon which the Boll Weevil is
dependent for completion of any portion of its life cycle.
10.
Cotton Grower - means any
person, other than a cash rent landlord, who is engaged in or has as economic
risk in the business of producing, or causing cotton to be produced, for
market.
11.
Eradication Zone
- means a geographical area designated by the Plant Board in which the
Boll Weevil Eradication Programs will be undertaken and managed pursuant to
Ark. Code Ann. §
2-16-610.
12.
Exposed - means any area or
location subjected to Boll Weevil infestation.
13.
Gin Trash - means all waste
material produced during the cleaning and ginning of seed cotton. It does not
include the lint, cottonseed, or gin waste.
14.
Gin Waste - means all forms
of unmanufactured cotton fiber (including gin motes) produced at cotton gins,
other than baled cotton lint.
15.
Infested - means actually infested with a Boll Weevil or so
exposed to infestation that it would be reasonable to believe that an
infestation exists.
16.
Inspector - means any employee of the Plant Board or any other
person authorized by the Plant Board to enforce the provision of these
rules.
17.
Non-Commercial
Cotton - means cotton intended for any purposes other than sale or
scientific purposes under Section XII of these rules.
18.
Permit - means a document
issued or authorized by the Plant Board to provide for the movement of
regulated articles to restricted designation for limited handling, utilization,
or processing.
19.
Person
- means any individual, partnership, corporation, company, society, or
association, or other business entity.
20.
Plant Board - means the
Arkansas State Plant Board, which is the agricultural plant regulatory agency
of the State of Arkansas.
21.
Quarantine Area - means any portion of the State of Arkansas
designated as such pursuant to Ark. Code Ann. §
2-16-609.
22.
Regulated Area - means any
portion of an eradication zone designated for any purpose necessary to the
execution of the Boll Weevil Eradication Program.
23.
Regulated Article - means
any article of any character carrying or capable of carrying the Boll Weevil,
including, but not limited to, cotton plants, seed cotton, cottonseed, other
hosts, gin trash, gin equipment, mechanical cotton pickers, and other equipment
associated with cotton production, harvesting, or processing.
24.
Seed Cotton - means cotton
as it comes from the field prior to ginning.
25.
Shipment or Shipments -
means the items to be transferred or moved, or the act or process of
transferring or moving items from one point to another.
26.
USDA - means the United
States Department of Agriculture.
27.
Used Cotton Equipment -
means any equipment used previously to harvest, strip, transport or process
cotton.
28.
Waiver -
means a written authorization which exempts a Person or any organization from
compliance with one or more requirements of these rules.
Section IV:
Eradication Zones.
The eradication zones for the State of Arkansas are defined as follows:
1.
Southwest Zone shall consist
of the following counties: Bradley, Calhoun, Clark, Cleveland, Columbia,
Dallas, Garland, Grant, Hempstead, Hot Springs, Howard, Lafayette, Little
River, Miller, Montgomery, Nevada, Ouachita, Pike, Polk, Saline, Scott, Sevier,
and Union.
2.
Southeast Zone
shall consist of the following counties: Arkansas, Ashley, Chicot,
Conway, Crawford, Desha (that portion lying south of the Arkansas river), Drew,
Faulkner, Franklin, Jackson, Jefferson, Johnson, Lincoln, Logan, Lonoke, Perry,
Phillips, Pope, Prairie, Pulaski, Sebastian, St. Francis, Woodruff, and
Yell.
3.
Central Zone Area
lshall consist of the following counties: Baxter, Benton, Boone,
Carroll, Cleburne, Desha (that portion lying north of the Arkansas river),
Fulton, Izard, Lawrence, Lee, Madison, Marion, Monroe, Newton, Poinsett ((that
portion lying east of the St. Francis River (administered as central zone but
operationally handled as part of the Northeast Ridge zone)), Randolph, Searcy,
Sharp, Stone, Van Buren, Washington and White.
4.
Central Zone Area 2 shall
consist of the following counties: Crittenden, Cross, and
Independence.
5.
Northeast
Ridge Zone shall consist of the following counties: Clay, Craighead
(that portion lying west of the St. Francis river), Green and Poinsett (that
portion lying west of the St. Francis river.)
6.
Northeast Delta Zone shall
consist of the following counties: Craighead (that portion lying east of the
St. Francis river) and Mississippi.
Zones have been designated in accordance with the Boll Weevil
Eradication and Suppression Act (Ark. Code Ann. §§
2-16-601
etseq.)
Section V:
Submission of Reporting
Forms, Assessments, Penalties for Late Payment, Cotton Destruction, and
Exemptions.1. Pursuant to Ark. Code
Ann. §
2-16-608, upon passage of
the grower referendum, all Cotton Growers in the eradication zones shall be
required to participate in the eradication program as set forth herein.
Pursuant to Ark. Code Ann. §
2-16-610,
where mandated, all Cotton Growers in an eradication zone shall be required to
participate in the eradication program as set forth herein.
2.
Cotton Acreage
Reporting. Each Cotton Grower shall submit annual cotton acreage
reporting information, listing the acreage and location of all cotton being
grown by the Cotton Grower in this state. Personnel of the Cotton Grower's
Organization will be responsible for determining by use of global positioning
systems or other appropriate technology the exact amount of acreage planted by
individual growers.
3.
Cotton Acreage. Cotton Growers shall report their
cotton acreage to the Plant Board, or its designated agent, no later than June
15 of each year in which field operations of the Boll Weevil Eradication
Program are in effect in their eradication zone ("Cotton Acreage"). The Plant
Board may formulate and institute a method of assessing and collecting the fees
associated with the Cotton Acreage. Any Cotton Grower who fails to file the
Cotton Acreage report in the manner prescribed by the Plant Board by June 15
shall be subj ect to a penalty of up to Three Dollars ($3.00) per acre. Failure
to pay the cotton acreage assessment could result in late payment fees of Three
Dollars ($3.00) per acre if payment is not received by the deadline set by the
invoice.
4.
Assessments. The per acre Assessment shall be as
determined by the applicable referendum or by action of the State Plant Board.
The per acre Assessment payable by the Cotton Grower shall be based on the
Cotton Grower's Cotton Acreage report. As of the date of these rules,
the Assessment for each eradication zone may be or have been up
to the amounts shown below.
|
Southwest
|
Southeast
|
Central 1
|
Central 2
|
NE Ridge*
|
NE Delta
|
|
Year 1
|
$15.00
|
$15.00
|
$15.00
|
$15.00
|
$10.00
|
$8.00
|
|
Year 2
|
$35.00
|
$35.00
|
$30.00
|
$25.00
|
$25.00
|
$14.00
|
|
Year 3
|
$35.00
|
$30.00
|
$35.00
|
$30.00
|
$24.00
|
$14.00
|
|
Year 4
|
$25.00
|
$35.00
|
$35.00
|
$30.00
|
$24.00
|
$TBD
|
|
Year 5
|
$20.00
|
$35.00
|
$35.00
|
$30.00
|
$22.00
|
$TBD
|
NE Ridge Zone (E. Poinsett assessment is same as NE
Ridge but instituted a year later.)
During the years (the maintenance period) following the years
specified above, the per acre annual Assessment in the Southwest Zone shall not
exceed $10 per acre, and the per acre annual assessment in the Southeast and
Central Zones shall not exceed $12 per acre. Maintenance assessments in the NE
Ridge zone shall not exceed $8 per acre. Establishment of a maintenance program
in the N E Delta zone will be determined at the end of the eradication
program.
Upon recommendation of the Arkansas Cotton Grower's
Organization, Inc., the Plant Board may adjust the annual Assessments within
the limits allowed by the referendum then in effect. In the NE Delta zone,
annual assessments will be established by Plant Board action. Assessments for
2011 and possibly for additional years, will be set at $14.00 per acre. Such
Adjustments may be made at the time and in the manner determined by the Plant
Board to be in the best interest of the Boll Weevil Eradication Program. In
making such adjustments, the Plant Board may consider facts and information it
determines to be relevant, including, but not limited to, climate and
environmental conditions, finances and the overall state of the cotton
industry.
5.
Collection of Assessments. Assessments shall be
payable by the Cotton Grower in one (1) installment, as provided below:
a. The payment shall be paid by the payment
date established by the appropriate invoice.
The payment shall be an amount equal to the Cotton Grower's
Cotton Acreage multiplied by the per acre assessment fee or such amount as is
established by the appropriate invoice. Cotton Growers in the Southwest,
Southeast, Central, and NE Ridge zones shall make such payments payable to the
"Arkansas Boll Weevil Eradication Foundation" and cotton growers in the NE
Delta zone shall make payments to "Arkansas State Plant Board" and deliver the
payment to the Plant Board, or its designated agent, no later than the payment
date established by the invoice, of each year in which such Assessments are
payable. Cotton Growers who fail to make the payment by the payment date
established by the invoice, shall be subject to a penalty of up to Three
Dollars ($3.00) per acre for unpaid acreage, based on planted cotton
acreage.
b. An Assessment
will be paid by one person. That person, the producer (the person responsible
for planning, managing and/or performing the cultural practices associated with
producing the crop), or their respective attorney-in-fact, shall execute the
applicable reports prescribed by these rules. All billing information must be
provided, by producers to Cotton Growers Organization employees who will be
collecting assessment invoicing information. The information will be recorded
by the Cotton Growers Organization employee on a form developed specifically
for this purpose. The producer is responsible for insuring that information
delivered to the Plant Board is correct. The Producer is held ultimately
responsible for payment of the assessment and will be subject to appropriate
penalties and late fees if assessments are not received. Grower's Compliance
Certificates, described below, shall not be issued until the entire Assessment,
and any applicable penalty, is paid as required.
c. In the event a Cotton Grower fails to pay
Assessments and/or penalties as required under these rules, pursuant to Ark.
Code Ann. §
2-16-617(c)
and (d)(2), the Plant Board may file a lien
with the appropriate county office and the Arkansas Secretary of State on the
cotton, subject to such assessments, and on the Cotton Grower's subsequent
cotton crops until all such amounts are paid in full.
6.
Cotton
Destruction. Pursuant to Ark. Code Ann. §§
2-16-610(e)
and
2-16-617(a),
any Cotton Grower who fails to pay all Assessments and/or penalties within
thirty (30) days after notice from the Plant Board shall, upon direction of the
Plant Board, destroy all cotton plants in which the Cotton Grower has an
interest and which are subject to Assessment. Any such cotton plant not
destroyed shall be deemed a public nuisance. The Plant Board may apply to any
court of competent jurisdiction for the issuance of a judgment and order for
condemnation and destruction of the nuisance. The Cotton Grower shall be liable
for all court costs, fees, and other expenses incurred in any action taken
under this paragraph 9.
7.
Grower's Compliance Certificate. Pursuant to Ark. Code
Ann. §
2-16-617(d),
no gins in the State of Arkansas shall gin any cotton grown in an eradication
zone in which field operations of the Boll Weevil Eradication Program are in
effect, or from any other state, unless and until that Cotton Grower files with
the gin a Grower's Compliance Certificate issued by the Plant Board certifying
that said Cotton Grower has paid all fees, Assessments, penalties, and costs
imposed and required pursuant to §
2-16-601 et seq., as
amended, or proof of exemption there from as provided in paragraph 12 below. It
is the responsibility of each Cotton Grower to procure a Grower's Compliance
Certificate for the crop year for each FSA farm number on which cotton is
planted, or proof that an exemption for compliance has been granted from the
Plant Board. The Cotton Grower must file the Grower's Compliance Certificate
with their gin each crop year.
8.
Ginner's Penalty. Any gin that gins cotton for any
Cotton Grower who has not filed a current valid Grower's Compliance Certificate
or proof of exemption issued by the Plant Board shall be subject to a penalty
in the amount of $50.00 per bale for each bale ginned for such non-complying
Cotton Grower. This provision does not prohibit the movement of seed cotton
within the State of Arkansas for protection from loss or efficient storage
prior to ginning.
9.
Exemption Due to Hardship. Pursuantto Ark. Code Ann.
§ 2-16-217(e), Cotton Growers may apply for exemption from payment of any
Assessment or penalty imposed by these rules, on the basis that such payment
will impose undue financial hardship on the Cotton Grower. Criteria for
hardship may include, but are not limited to:
a. late or unavailable financing through no
fault of the Cotton Grower,
b.
regional economic conditions, and c. regional climate/environmental conditions.
Any Cotton Grower who wishes to request an exemption from
payment of the Assessment or the penalty or both shall apply for the exemption
on forms prescribed by the Plant Board. Except for instances beyond the control
of the Cotton Grower, the application for this exemption must be received by
the Plant Board at least thirty (30) days before the due date of the Assessment
for which exemption is requested. A separate application must be filed for each
calendar year for which the Cotton Grower seeks an exemption. Each such
application shall contain information on which the Cotton Grower relies to
justify an exemption on the basis of undue financial hardship. In the event the
application for exemption is not filed within the time prescribed herein, the
application shall include information that describes the circumstances that
prevented a timely filing. The application form shall include an oath or
affirmation of the applicant as to the truth of all information in the
application. The Plant Board shall forward each completed exemption application
form and any information accompanying the form to the Arkansas Cotton Grower's
Organization, Inc. The Arkansas Cotton Grower's Organization, Inc. shall
determine whether each applicant qualifies for a hardship exemption based on
the information contained in or accompanying the application form. If the
Arkansas Cotton Grower's Organization, Inc. determines that the payment of the
Assessment or the penalty or both would impose undue financial hardship on a
Cotton Grower who has applied for an exemption, the Arkansas Cotton Grower's
Organization, Inc. may:
a. exempt the
Cotton Grower from payment of the Assessment or the penalty or both, or b.
permit the Cotton Grower to pay the Assessment or penalty or both on an
installment payment plan and prescribe the payment schedule.
Upon making a determination on any application for exemption,
the Arkansas Cotton Grower's Organization, Inc. shall notify the Plant Board of
its determination, which shall be binding on the applicant. The Plant Board
shall then promptly notify the affected Cotton Grower in writing of the
determination. If an exemption is denied, the Assessment and penalties for the
year in which the application is made will be due at the time they would
otherwise have been due if the application had not been filed, or within thirty
(30) days after the date of the notice of the determination, whichever is
later.
10.
Penalties. The
Plant Board shall assess Cotton Growers penalties for failure to comply with
the reporting and/or payment requirements of these Regulations. Penalties are
payable in full to the Arkansas Boll Weevil Eradication Foundation within
thirty (30) days of the date of the penalty assessment. Any such penalties
assessed must be paid before the Plant Board may issue a Grower's Compliance
Certificate under Section V, Paragraph 10 of these Regulations. Penalties must
be paid as provided herein even if the Cotton Grower appeals the penalty under
subparagraph 14 below.
11.
Appeal of Penalties. Unless specifically provided for
elsewhere in these rules, any person (Cotton Grower, gin or otherwise) assessed
a penalty under these rules may appeal the penalty assessment to the Plant
Board within thirty (30) days of the date of the penalty assessment. Such
appeal must include all information upon which the appealing party bases its
appeal. The Plant Board Director may revoke, modify, or affirm the penalty and
shall rule on the appeal within forty-five (45) days of the Plant Board's
receipt of the appeal. The Director's ruling shall be in writing and mailed to
the appealing party via first class United States mail. Any refunds due on the
penalty assessment shall be paid promptly in compliance with the applicable
fiscal rules and regulations. The Director may seek the recommendation of the
Arkansas Cotton Grower's Organization on any appeals under this Paragraph 14.
Provided, however, any such recommendation from the Arkansas Cotton Grower's
Organization shall not be binding on the Plant Board Director.
12.
Limit on
Penalties. Section V provides for various penalties in connection
with reporting acreage and paying assessments, each of which is a separate
violation and cause for penalty. Notwithstanding the type of penalties imposed
under Section V, the total amount of penalties assessed against a particular
Cotton Grower shall not exceed $15.00 per acre of cotton for the crop year and
acreage in issue.
Section
VI:
Cotton Stalk Destruction Incentive.
If during the Boll Weevil Eradication Program seasonal growing
conditions promote early maturation and harvesting of cotton in Arkansas, the
Plant Board may, upon recommendation from the Arkansas Cotton Grower's
Organization, Inc., establish a per acre incentive credit for early stalk
destruction. Such incentive credit shall be applied to the Cotton Grower's
Assessment for the following year. In the event a Cotton Grower's Certified
Acreage in the following year is not sufficient to fully consume the incentive
credit in such following year, the Cotton Grower may apply to the Plant Board
for a refund of the unused incentive credit, using forms prescribed by the
Plant Board. The rate per acre of any such incentive credit, whether uniform
for the entire State, or variable, shall be established and made available to
all participating Cotton Growers no later than September 1 of the current
growing year. No incentive credit established under this paragraph shall be
credited or paid to the Cotton Grower by the Plant Board until the date of the
Cotton Grower's stalk destruction has been confirmed to the Plant Board by
eradication program personnel.
Section
VII
: Planting Cotton in the Eradication Zone.
1.
Prohibited
Planting. Pursuant to Ark. Code Ann. §
2-16-610(b)(1),
the Plant Board may prohibit the planting of cotton in designated areas where
Boll Weevil eradication treatments cannot be effectively or legally applied due
to factors concerning the public welfare if determined by the Plant Board that
planting cotton jeopardizes the success of the program (Prohibited Planting
Area). The Plant Board shall identify all Prohibited Planting Areas no later
than March 1 of each year. Notice of the Prohibited Planting Area shall be
published in a local newspaper of general circulation covering the Prohibited
Planting Area at least once a week for four (4) consecutive weeks in the month
of March. In the event a Prohibited Planting Area is not designated by March 1
of the year in issue, the Plant Board's purchase or destruction of cotton shall
be in accordance with Section IX below.
2.
Notice of
Destruction. Pursuant to Ark. Code Ann. §
2-16-611(b),
the Plant Board may by written order require the destruction of cotton planted
in a Prohibited Planting Area after publication of the first notice required in
paragraph 1 above. Said order shall be delivered to the Cotton Grower via
certified United States mail. The order shall identify the cotton to be
destroyed by Township, Range, and Section, or portion thereof. The order shall
specify the date by which the Cotton Grower must destroy the crop at the Cotton
Grower's expense, which date shall be at least ten (10) calendar days after the
date of the order. The order shall further state that in the event the Cotton
Grower does not destroy the cotton by the specified date, the Plant Board will
destroy the cotton and assess the cost of destruction against the Cotton
Grower. The Assessment under this section shall be payable within thirty (30)
calendar days after destruction and shall be treated as any Assessment for
purpose of enforcing these rules. Provided, however, the Cotton Grower may
appeal an order under this paragraph to the Director of the Plant Board. The
appeal must be received by the Plant Board within ten (10) calendar days of the
date of the order. The Director of the Plant Board shall issue an order on the
appeal within ten (10) calendar days of the Plant Board's receipt of the
appeal.
3.
Non-Commercial Cotton. Non-commercial cotton shall not
be planted in an eradication zone in which field operations of the Boll Weevil
Eradication Program are in effect without a waiver issued in writing by the
Plant Board. Application for a waiver shall be submitted in writing and the
Plant Board's decision to grant or deny the waiver may be based on all of the
following:
a. Location of growing area b. Pest
conditions in the growing area c. Size of the growing area d. Accessibility of
the growing area e. Any stipulations set forth in a compliance agreement
between the applicant and the Plant Board that are necessary to the Boll Weevil
Eradication Program.
Section VIII
: Treatment of Boll Weevil
in the Eradication Zones.
The eradication of the Boll Weevil in an eradication zone shall
be in accordance with the USDA National Boll Weevil Cooperative Control Program
and shall be executed by the Plant Board and the Arkansas Cotton Grower's
Organization, Inc., with the assistance of the USDA Animal and Plant Health
Inspection Service. The Final Environmental Impact Statement, dated 1991,
issued by the USDA Animal and Plant Health Inspection Service for the National
Boll Weevil Cooperative Program is incorporated into these rules.
Section IX:
Purchase of
Cotton for Effectuation of Program Objectives.
Pursuant to Ark. Code Ann. §
2-16-611(a),
in the event Prohibited Planting Areas are not identified by the date
prescribed in Section VII above, or the Plant Board otherwise determines it to
be in the best interest of the Boll Weevil Eradication Program, the Plant Board
or the Arkansas Cotton Grower's Organization, Inc. may purchase growing cotton.
The Arkansas Cotton Grower's Organization, Inc. shall determine the purchase
price for such cotton. After such purchase, the Plant Board may manage or
dispose of the purchased cotton as it determines best. If the Cotton Grower
objects to the purchase price determined by the Arkansas Cotton Grower's
Organization, Inc., the Cotton Grower may appeal the determination to the Plant
Board within 15 days of the date of such determination. Such appeal must
include all information upon which the appealing Cotton Grower bases its
appeal. The Plant Board Director shall rule on the appeal within thirty (30)
days of the Plant Board's receipt of the appeal. The Director's ruling shall be
in writing and mailed to the Cotton Grower and the Arkansas Cotton Grower's
Organization, Inc. via first class United States mail.
Section X:
Quarantine.
Establishing Quarantine. In carrying out the
purpose of these rules, the Plant Board may designate a quarantine area in
accordance Ark. Code Ann. §
2-16-609.
Section XI:
Issuance of Certificates
and Compliance Agreements, Cancellations, Attachments and Cotton Gin
Certificates. Certificates may be issued for the movement of regulated
articles from, into or through a regulated area, as determined to be necessary
by the Plant Board.
Section XII
: Scientific Purposes.
All cotton planted within the state of Arkansas notwithstanding
the size of the acreage or plant is subj ect to the coverage of these rules,
provided, however, the Plant Board may designate experimental areas for
experiments designed to contribute to the development of scientific knowledge
deemed of importance to the production of cotton. Cotton Growers in designated
experimental areas and affected thereby, may be exempted from specified
requirements of these rules, provided, however, that such Cotton Growers abide
by a Compliance Agreement applicable to the experimental areas.
Section XIII
: Entry of
Authorized Personnel Upon Properties.
Pursuant to Ark. Code Ann. §
2-16-607(b),
Plant Board personnel are authorized to inspect any fields or premises and any
property located therein or thereon for the purpose of determining whether such
property is infested with the Boll Weevil. Such inspections must be conducted
between sunrise and sunset. Such inspections include, but are not limited to,
taking of specimens, examining and obtaining records, and applying or
supervising treatments to the soil, plants or any regulated articles. This may
include removal and destruction of plants, plant parts, or other regulated
articles.
Section XIV
Restricting Access to Eradication Zone and Regulated Area.
Pursuant to Ark. Code Ann. §
2-16-605,
the Plant Board may issue rules that restrict entry by unauthorized persons or
any other activities affecting, or affected by, the Boll Weevil Eradication
Program on any premises in an eradication zone or in any regulated area.
M.
FOREST TREE SEEDLING
FUMIGATION.a. All forest tree
seedlings shall meet the requirements of all applicable state and federal plant
pest quarantines.
b. All certified
tree seedlings offered for sale or imported under permit into the State of
Arkansas shall meet the following requirements:
a. Seedlings shipped within and into the
state used for aforestation and reforestation shall be healthy vigorous stock
and must be apparently free of injurious plant pests, including but not limited
to infectious diseases, nematodes, insects, and quarantined pests.
b. To aid in ensuring apparent freedom from
injurious plant pests, the grower shall make appropriate use of approved
pesticides or other alternate practices during the growing of planting stock.
This includes, but is not limited to, a pre-sowing tarped soil application of
methyl bromide.
c. All plants shall
be field inspected by the state plant inspector prior to the initiation of
lifting operations
N.
REGULATIONS FOR THE PRODUCTION OF
RICE HAVING COMMERCIAL IMPACT
These regulations are established to carry out the provisions
as specified in Act 1238 (An Act to Assign To The Arkansas State Plant Board
Specified Powers, Duties and Responsibilities, Including The Duty To Develop
And Enforce Regulations Relating To Rice Identified As Having Characteristics
Of Commercial Impact; And For Other Purposes.)
1.
Definitions.
a.
Rice - plants and grain from
plants of the genus Oryza.
b.
Characteristics of Commercial Impact
- Characteristics that may adversely affect the marketability of rice in
the event of commingling with any other rice and includes, but is not limited
to those characteristics:
1. That cannot be
identified without the aid of specialized equipment or testing
2. That create a significant economic impact
in their removal from commingled rice
3. Whose removal from commingled rice is not
feasible.
c.
Commingle - the mixing of two or more quantities of grain that
have different characteristics. These characters may or may not have direct
commercial value but may have an effect on the commercial value of the total
commingled lot.
d.
Characteristic - a chemical component (including the plant DNA),
physical appearance, physical structure or other ingredient that could
adversely affect the production and marketing for potential profit by persons
involved in crop production.
e.
Producer - a person, corporation, partnership, association or
other legal entity involved in the production of a crop for the purpose of
placing the harvest of that crop in commerce.
f
State Plant Board - the agency
charged with developing and enforcing regulations relative to, but not limited
to, matters affecting agricultural plant production.
g.
Certification - in the
context of these regulations, shall mean the approval of specific varieties,
strains, selections or lots of rice for production in the state.
h.
Scientific Review Committee -
a group of individuals each of whom is known by the Plant Board Director to
have knowledge of scientific, industrial or business elements that would aid in
the evaluation of the material under consideration.
i.
Research - activities that
involve growing rice plants, harvesting rice grain and/or performing chemical,
mechanical or other pertinent operations on the plants and/or grain in order to
accurately measure/define/develop the characteristics exhibited by the
material.
4.
Product Ownership
Ownership of the characteristic with commercial impact must be
declared in documents filed with the Plant Board. The appropriate forms for
making such declaration will be provided by the Plant Board. All regulatory
activities will be handled through that declared owner or such other person or
entity as dictated by the owner.
5.
Eligibility Requirements
a. Eligibility requirements are such that a
detailed description of the morphological, physiological and other
characteristics that distinguish it from other varieties or related processes
must be provided to the Plant Board. A suitable test for the purposes of
detection/validation of the proposed characteristic must be provided.
Information, designated as Confidential Business Information, collected in the
process of administering these regulations will be considered exempt from
Freedom Of Information Act due to the Trademark Exclusion contained in that
act.
b. Rice possessing
characteristics of commercial impact must have been registered and received
commercial production approval from all appropriate federal agencies that have
regulatory interest in the characteristics. These agencies include but may not
be limited to:
1. Environmental Protection
Agency
2. Department of
Agriculture
3. Food and Drug
Administration.
c. Any
variety, line, strain or other designated selection of rice that had ever
required a USDA or other agency permit for research or production will be
required to submit to these regulations.
d. Eligibility for research exemption will be
determined by the Plant Board through a review of laboratory management
practices and production protocols by Plant Board staff.
6.
Scientific Review Committee
a. A Scientific Review Committee may be
appointed by The Plant Board to evaluate applications received under these
regulations. The Scientific Review Committee shall consist of producers, not
employed by or be on the board of any other entity represented on the
committee, scientists from Arkansas educational entities, such as colleges and
universities or the University of Arkansas Cooperative Extension Service;
representative(s) of rice mills operating in Arkansas; representative(s) from
the regulated companies; representative(s) of merchandisers located in
Arkansas; the director of the Dale Bumpers National Rice Research Center; and
the Director of the Arkansas State Plant Board shall be a permanent ex-officio
standing member of the committee.
b. The committee shall review and make
recommendations to the board concerning, but not limited to:
1) Identifying rice that has characteristics
of commercial impact;
2) Reviewing
rice identified as having characteristics of commercial impact upon receipt of
a petition from the purveyor of the rice;
3) Recommending rules establishing terms and
conditions for planting, producing, harvesting, selling, transporting,
processing, storing, or otherwise handling rice identified pursuant to c, 1 of
this paragraph, and 4) Reviewing the efficacy of terms, condition, and identity
preservation programs imposed on the planting, producing, harvesting,
transporting, drying, storing, or other handling of rice identified under
section c, 1 of this paragraph using the most current industry standards and
generally accepted scientific principles.
c. The criterion for evaluation for
suitability for production shall encompass but not necessarily be limited to:
1. The characteristic of economic
impact
2. Potential impact of
characteristic on value of other crops
3. Potential for accidental introduction of
characteristic into other crops
4.
Quantity of production requested
5.
Benefit expected to be brought to society from the characteristic
6. Ability of the owner of the characteristic
to comply with all regulations
7.
Ability of the owner of the characteristic to bear financial obligations for
fees, fines and regulatory costs if contaminations are discovered
8. Other concerns arising in the committee
deliberations.
7. Fees
a.
An application fee will be charged to each owner/applicant for each and every
characteristic considered, even if the same characteristic had been previously
considered for the same or different applicant.
b. The application fee will be established at
One Thousand ($1000.00) Dollars and will be due with the appropriate form when
application is made to the Plant Board for consideration of
production.
c. The application fee
is non-refundable in the event the production application is denied or the
application abandoned.
d. Fees will
be charged for each applicable inspection that is required to comply with these
regulations.
e. Inspection fees
will be established at $100.00 per visit. One re-inspection will be provided
(for a specific visit) at no additional charge if the initial inspection
detects conditions that result in an order to cease operations. Additional
inspections that are required due to failure to correct unacceptable conditions
will be assessed an inspection charge equal to the initial inspection fee for
each and every visit made by the inspector. The frequency of these
re-inspections will be determined by the Plant Board. The re-inspections will
be scheduled to insure compliance with the regulations and permit
conditions.
f Any rice developed at
Public Institutions and/or the research programs from those institutions shall
not be subject to application fees as referenced in section (a) above but will
adhere to all other items in these regulations.
8.
Permits
a.
Production Permit -
Application for a production permit shall be made to the Plant Board
sufficiently in advance (minimum of four (4) months) of the expected first
planting to allow full evaluation by Plant Board staff and, if deemed
appropriate by the Plant Board Director, by a Scientific Review
Committee.
b.
Permit
Application Form - The appropriate form will be supplied by the Plant
Board for making the application.
c.
Functional Permits -
Depending on the characteristic of economic impact, a determination may be made
by the Plant Board Director that other functions, such as planting, harvesting,
transporting, processing and storage, associated with the production of rice
having the characteristic, may also need to be permitted. To accommodate this
effort, the owner of the characteristic of economic impact should be prepared
to identify all parties that are expected to handle any of the rice in any form
or function.
d.
Fees for
Functional Permits - Functions that are deemed to present a risk of
causing/allowing a cross contamination to occur and as a result necessitate
inspections, may be required to pay a fee for securing the permit and for
having the inspections made.
Restrictions specific to the characteristic of economic impact
will be contained in the permit.
9.
Violations
a. Failure to secure permit. Failure to
secure a permit prior to engaging in activities to initiate any facet of the
process of production of a crop, including but not limited to:
1. Marketing of planting seed
2. Movement of any viable seed containing a
target characteristic into Arkansas
3. Movement of viable seed from storage to an
area that might support production of the crop
4. Placement of a seed lot (bulk, bagged or
tote) into any type storage facility in Arkansas
5. Planting (or placement of viable seed into
contact with any substance that might support germination and growth of the
resulting plants), will be considered a violation.
b. Non-adherence to any and all conditions of
an issued permit, any of the published regulations and any section of the
enabling legislation will be considered a violation.
c. Penalties for Violations. Penalties will
be administered according to the provisions contained in §
2-15-208 of ACT 1238.
The appended Penalty Matrix (Appendix A) outlines the violations and the
appropriate penalty for each of those violations. Each day of a continuing
violation will be considered a separate violation.
d. Level of Violation. Violations may be
judged to be of Major or Minor level for enforcement actions. The enforcement
level classification will be determined by any of the following factors
individually or in combination:
1. length of
time violation occurred before permit was issued (30 days or more is
major)
2. Nature of the
characteristic involved
3. Economic
consequences resulting from violation (impacts of more than $1000.00 are
major)
4. Number of entities
impacted by violation (more than 3 would be major)
5. Quantity of previously approved rice
impacted by the violation (more than 500 bushels would be major)
6. Other factors deemed appropriate by the
State Plant Board Director.
10.
2011 Planting Seed Testing
All seed (including pre-commercial lots of seed, commonly known
as breeder seed or parental lines of hybrids prior to production of Foundation
Grade seed) used for any planting in 2011 shall undergo testing prior to April
1, 2011 for the purpose of identifying seed lots that contain variants of
LLRice.
a.
Testing Labs.
All seed samples shall be submitted to a lab that has validated the 3 5
S bar test.
b.
Sampling.
Any seed sample collected for the purpose of complying with these
regulations must be "officially drawn" samples under supervision of Plant Board
Inspectors or an employee of another state's AOSCA member. The Plant Board (or
cooperating state representative) shall be responsible for submitting the
samples for testing, receiving and disbursing test results and maintaining the
chain of custody of the samples throughout the sampling and testing
process.
c.
Seed Source.
Any seed anticipated to be used for planting rice must be tested. Seed
produced inside Arkansas as well as any seed produced in other states but
entering Arkansas through a purchase must be sampled and tested. Purchased seed
from other states that has undergone testing under the same protocol as
outlined in these regulations and receiving a "not detected within the
specified detection limits" and has documentation to present the results shall
be exempt from additional testing. All lots of seed, be they bagged or in bulk,
shall be subject to these regulations.
1.
Carryover Seed. Any seed tested in a previous year in a manner
compliant with these regulations, held in a sealed bag, is not required to
undergo new GMO testing. Any seed, to be used for planting, held over in any
container, structure or vessel that is open and/or would not prevent
introduction of untested seed (such as but not limited to bins, tote bags,
superbags, open barrels, grain trucks, grain wagons, or grain carts) must be
re-sampled and undergo current year testing.
d.
Participation. Entities
having seed, saved from their own production, that is to be used for planting
seed, are responsible for contacting the Plant Board and requesting having a
sample collected for submission for testing.
e.
Testing. The testing protocol
(commonly referred to as the 35S bar test) shall be conducted by a lab that
uses a validated protocol.
f Detection Level. Testing shall be conducted to
effect detection at the .01% level with a 95% confidence interval. Any sample
that has a detection in any portion of the submitted sample shall be ruled as
being positive or having a detection within the detection limits.
g.
Records Retention.
Sample submission forms, results reports and any other records developed
in carrying out this testing, shall be retained by the applicant (those
entities owning and having the seed lot submitted for testing) and made
available for review upon request by a authorized representative of the
Arkansas State Plant Board.
h.
Transfer of Seed. Copies of testing results for individual lots of
seed shall be provided to anyone who purchases any portion of the tested lot.
Results for all lots, of which any portion was purchased, shall be provided to
the purchaser.
i.
Authorized
for Sale. Any lot of seed tested, utilizing proper protocols, that
received a "not detected within the specified detection limits" result, shall
be legal for sale.
j.
Failed
Seed. Any lot of seed that tests "detected within the specified
detection limits" for LLRice shall immediately be removed from the seed market
and must be moved through the grain marketing channels with proper
identification as containing GMO characteristics or be destroyed.
k.
Exemption. "Specialty" rice
producers and millers who handle ONLY those rice varieties with
characteristics, such as aromatic qualities, that do not enter the grain
marketing channels may be exempt from these regulations under specific
conditions (including but maybe not limited to):
1. Their seed source can be documented and
verified.
2. Records that confirm
the specialty rice will not enter the long grain market channels.
11.
Rough Rice
Testing.
Testing of rough rice produced from crops planted with seed
subjected to the prescribed testing may be carried out in the normal course of
commerce. All positive detections arising from that testing shall be forwarded
to the Plant Board. Any and all records pertaining to post harvest rough rice
testing by any entity, business or individual, shall be made available to the
Plant Board upon request.
a. Upon
notification of a positive test on post harvest rough rice, the Plant Board
will immediately initiate an investigation to determine if the source of the LL
Rice can be isolated.
b. Records
relating to testing of planting seed will be reviewed and the testing lab will
be contacted to confirm results in hand.
1.
Any errors found in the testing and reporting on the planting seed will be
subject to review by the Plant Board and consideration of assessment of civil
penalties as outlined in the Enforcement Response Penalty Matrix.
2. The receiving facility, of the positive
post harvest rough rice, will be asked to follow any USDA protocol for handling
positive rough rice that insures proper disposition/usage of that lot of rough
rice.
12.
Random Testing.
The Plant Board may undertake random sampling of grain holding
facilities (including but not limited to farm storage, seed bins or elevator
grain bins) and in seed facilities to enforce the prohibition on planting seed
with LL traits.
SECTION VIII. QUARANTINES
A.
GYPSY MOTH QUARANTINE
Revoked December 9, 1983 after two (2) successive years of
negative annual surveys.
B.
IMPORTED FIRE ANT QUARANTINE
Whereas, it has been determined, and so declared, that a
serious insect pest, the imported fire ant, (Solenopsis saevissima
richteri Forel), is known to exist in Arkansas, and is known to be a
serious pest of humans, crops, livestock, and wildlife.
Whereas, the fire ant may be disseminated by the transportation
or movement of the following products or substances:
a. Soil and unprocessed sand or gravel,
separately or with other things b. Forest, field, or nursery-grown woody or
herbaceous plants with soil attached c. Plants in pots or containers d. Grass
sod e. Unmanufactured forest products such as stump wood or timbers if soil is
attached f Any product or substance which may hereafter be found capable of
spreading the imported fire ant.
1. Movement
of said products or substances from areas which are now or may hereafter be
designated by the U.S. Department of Agriculture as imported fire ant regulated
areas is prohibited except under regulations which have been or may hereafter
be made by the U.S. Department of Agriculture.
2. Areas which are found infested or which
are so situated as to be subj ect to infestation with the imported fire ant
must be treated to eradicate it. In lieu of requiring the property to be
treated by the owner, or at the owner's expense, the Board may elect to apply
the treatment, in cooperation with USDA at no cost to the owners. Property
owners will be notified when treatment is to begin through newspapers, radio,
television, and by personal contact where feasible.
C.
PEACH MOSAIC
QUARANTINE
Revoked November 10, 1972, after eight (8) successive years of
negative annual surveys.
D.
PHONY PEACH DISEASE QUARANTINE
Standard State Quarantine Order No. 2, as Revised June 13,
1951
Effective on and after July 2, 1951
DISEASE: Phony Peach, a virus disease of peach and certain
other stone fruits.
State & Counties Currently Affected by Phony Peach
Disease
|
All and
|
Alabama
|
Entire State
|
Regulated Products:
peach,
plum,
apricot,
nectarine almond
nursery stock.
Conditions Governing Shipment:
|
|
Flordia
|
Entire State
|
|
Georgia
|
Entire State
|
|
Louisiana
|
Entire State
|
|
Mississippi
|
Entire State
|
|
Arkansas
|
Counties of Arkansas, Ashley, Bradley, Chicot,
Columbia, Crittenden, Cross, Desha, Drew, Hempstead, Howard, Jefferson,
Lafayette, Lee, Lincoln, Little River, Miller, Monroe, Nevada, Phillips, Pike,
Poinsett, St. Francis, Sevier, Union, & Woodruff
|
|
Missouri
|
Dunklin
|
|
North Carolina
|
Counties of Anson, Cumberland, Gaston, Hoke, Polk,
& Rutherford
|
|
South Carolina
|
Counties Aiken, Allendale, Bamberg, Barnwell, Cherokee,
Chesterfield, Edgefield, Greenville, Lancaster, Laurens, Lexington, Marlboro,
Orangeburg, Richland, Saluda, Spartanburg, Sumter, & York
|
|
Tennessee
|
Counties of Chester, Crockett, Dyer, Fayette, Hardeman,
Hardin, Lake, Lauderdale, McNairy, Madison, & Weakley
|
|
Texas
|
Counties of Anderson, Bexar, Brazos, Camp, Cherokee,
Freestone, Limestone, McLennan, Milam, Rusk, San Augustine, Smith &
Upshur.
|
Transportation by any means whatsoever of the regulated
products from any regulated area either into, or within, or from the State of
Arkansas, is permitted only when there is securely attached to the outside of
each shipment a valid nursery inspection certificate issued by an authorized
official of the state of origin and bearing the name and address of the
consignor of the regulated articles contained therein.
Requirements for Certification:
Certificates or permits shall be issued only on the following
conditions:
1. That each nursery in
the phony peach infested areas producing the regulated products shall apply to
the State quarantine official for approval of the proposed nursery-growing site
on or before August 15 of each year
2. Selected nursery sites shall be at least
300 yards from wild or domesticated plum, 1/2 mile from phony-infested
commercial orchards, and 1/2 mile from urban area
3. The one-half environs of the nursery site
shall be inspected prior to October 1, and all phony trees found within such
environs removed prior to November 1
4. All budding shall be restricted to the
slip-bud method.
Removal of Areas from
Regulations:
When satisfactory evidence has been presented that no phony
peach disease has been found for a period of three years in any county or state
affected by this quarantine, said county or state shall be removed from these
regulations.
Shipment of Regulated Products for Scientific
Purposes:
Regulations of this quarantine do not apply to shipments of
regulated products to the United States Department of Agriculture or to other
recognized institutions for scientific purposes except that a special permit
must be secured for the entry into or movement within the State of Arkansas of
such products.
E.
PINK BOLLWORM
QUARANTINE
For information concerning Pink Bollworm quarantine, request
Circular 16.
F. SOUTHERN
PINE BEETLE QUARANTINE
Revoked December 2, 1982.
G.
SOYBEAN CYST NEMATODE
QUARANTINE
Revoked December 4, 1981.
H.
SWEET POTATO WEEVIL
QUARANTINE
Adopted March 11, 1983 after proclamation of a State Emergency
by Governor Bill Clinton. For information request a copy of the quarantine.
I.
WHITE-FRINGED
BEETLE QUARANTINE
Revoked June 30, 1975 at the same time the Federal quarantine
was revoked.
J.
GIBBERELLA FUJIKUROI (BAKANAE STRAINS) QUARANTINE
The Arkansas State Plant Board has found and determined and
does hereby declare the fungus Gibberellafujikuroi (bakanae
strains), causal agent of the rice disease Bakanae, commonly known
as "foolish seedling disease", a public nuisance, a pest and a menace to the
rice industry.
The purpose of this quarantine is to prohibit introduction of
the disease and its causal agent into rice production areas of Arkansas. The
movement of Gibberellafujikuroi (bakanae strains) regulated
articles from infested areas into Arkansas is hereby restricted.
Quarantine Implementation:
The Arkansas State Plant Board will implement the
Gibberellafujikuroi (bakanae strains)/Bakanae or Foolish
Seedling Disease of Rice-quarantine immediately upon adoption of the
regulations. Regulatory action will be implemented at the discretion of the
Board.
Definitions:
1.
Certificate - A document
issued or authorized by the Arkansas State Plant Board, or regulatory official
of the state of origin, indicating that a regulated article is not contaminated
with Gibberella fujikuroi (bakanae strains), or has been
treated in such a manner as to eliminate the organism. Such articles may be
moved to any destination.
2.
Compliance Agreement - A written agreement between the Arkansas
State Plant Board and any person engaged in growing, dealing in or moving
regulated articles wherein the latter agrees to comply with conditions
specified in the agreement to prevent the dissemination of
Gibberellafujikuroi (bakanae strains).
3.
Exemptions - Provisions
contained in these Regulations which allow for modifications in conditions of
movement of regulated articles from regulated areas under specified
conditions.
4.
Farm Operator
- Person responsible for the production and sale of a rice crop on any
individual farm.
5.
Infected
- Presence of the causal organism on or in seed or any plant part that
may or may not sustain and support the living and reproduction of the
organism.
6.
Infested
- Actually infested with the organism or so exposed to infestation that
it would be reasonable to believe that an infestation exists.
7.
Inoculum - Spores or any
other part of the causal organism that might serve to cause the organism to
survive and reproduce on any plant or plant part that it comes into contact
with.
8.
Inspector -
Any authorized employee of the Arkansas State Plant Board, or any other person
authorized by the Arkansas State Plant Board to enforce the provisions of these
rules.
9.
Limited Permit
- A document issued or authorized by the Arkansas State Plant Board or a
designated regulatory official to provide for the movement of regulated
articles to restricted destination for limited handling, utilization or
processing or for treatment.
10.
Mill Operator - A person responsible for the operation of a
manufacturing plant, and all facilities of that plant, involved in the
processing, packaging or handling of rough rice and rice products.
11.
Milled Rice - Rice that has
been subj ected to processing to produce products from rough rice.
12.
Milling Rice - Rice that has
been produced, handled, acquired and destined for processing through a
mill.
13.
Person - Any
individual, corporation, company, society, association or other business
entity.
14.
Regulated Area
- Any state or any portion of such state that is known to be infested
with Gibberellafujikuroi (bakanae strains).
15.
Research Rice - Any rice
seed or rice plant parts that are to be used in a recognized research project
conducted by a state or federal program under the supervision of a trained and
credentialed professional staff that has in place proper safety programs to
prevent the accidental release and/or spread of the disease.
16.
Rice Mill - Any
manufacturing plants and all associated facilities that are involved in
processing rough rice to produce rice related products.
17.
Rice - All parts of rice and
wild rice plants of the genera Oryza.
18.
Rice Hulls - The outer
covering of the rice seed that usually is removed in the milling
process.
19.
Rice Production
Area - Any area utilized in the growing of rice plants for production of
the plant and/or subsequent seed for harvesting.
20.
Rice Products - Any
commodity or product that has been produced from any part of the rice plant and
may contain parts of the original plant structure or they may be unrecognizable
as having originated from the rice plant because of being subjected to
additional processing.
21.
Rice Mill Waste - Any trash or discarded material that was
originally contained or in contact with rice plants, seed or other plant parts
utilized in a milling process.
22.
Rough Rice - Rice seed harvested, handled and transported in the
same form it was in immediately following harvest and removal from the rice
plant.
23.
Seed Assay
- Any test available to be applied to a sample, lot or other quantity of
seed to determine the presence of Gibberellafujikuroi (bakanae
strains).
24.
Seed Rice
- Seed removed from the rice plant and subj ected to such processing as
to make the seed suitable for use as planting material for subsequent rice
crops. This processing may include but is not limited to cleaning, treating and
bagging. Depending on the handling and products applied to this seed it may or
may not be suitable for human consumption.
25.
Treatment - Any process that
may be applied to rice seed or other plant parts in an attempt to modify/or
affect the presence ofGibber■ellafujikuroi (bakanae
strains).
26.
Used Rice
Equipment - Any equipment previously used to harvest, strip, transport,
destroy or process rice.
Regulated Articles:
The following are regulated under the provisions of this
Section:
1. The causal agent,
Gibberella fujikuroi (bakanae strains), in any living stage of
development
2. Rice
3. Rough Rice
4. Seed Rice
5. Research Rice
6. Milling Rice
7. Rice Hulls
8. Rice Mill Waste
9. Used Rice Equipment
10. Any other products, articles or means of
conveyance, not covered by subparagraphs (1) to (9) of this Rule, when
determined by an inspector they present a hazard of spread of
Gibberella fujikuroi (bakanae strains) and the person in
possession thereof has been so notified.
Conditions Governing the Movement of Regulated
Articles:
The following conditions govern the movement of regulated
articles:
1. A certificate or limited
permit is required to transport regulated articles from a regulated area into
or through any rice production area.
2. A certificate or limited permit for
movement of regulated articles may be obtained from the Arkansas State Plant
Board or an authorized cooperator/collaborator agency.
3. A certificate or limited permit may be
issued by an inspector if a regulated article:
a. Has originated in the non-infested area of
this state or in a non-infested area of any other state and has not been
exposed to infestation at any time; or b. Has been treated to eliminate
infestation; or c. Has been subj ected to a seed assay to determine if the
causal agent is present and none is found; or d. Has been grown, manufactured,
stored or handled in such a manner that in the judgment of the inspector no
infestation will be transmitted thereby.
4. Limited permits may be issued by an
inspector to allow the movement of non-certified regulated articles for
specified handling, utilization, processing or treatment in accordance with
approved procedures, provided the inspector has determined that such movement
will not result in the spread of Gibberellaffujikuroi (bakanae
strains).
5. When certificates or
limited permits are required, they shall be securely fastened to the regulated
article or to the outside of the container in which the regulated article is
being moved.
6. Any certificate or
limited permit which has been issued or authorized may be withdrawn by the
inspector if he determines that the holder thereof has not complied with any
conditions for the use of such documents or with any conditions contained in a
compliance agreement.
7. Persons
requesting certification or a limited permit must request the services from an
inspector(s) at least 48 hours before the services are needed. The regulated
articles must be assembled at the place and manner in which the inspector
designates outside the rice production area. The following information must be
provided at the time the request is submitted:
a. The quantity of the regulated article to
be moved b. The location of the regulated article c. The names and addresses of
the consignee and consignor d. The method of shipment e. The scheduled date of
shipment.
Quarantine Area:
Any rice production area where Gibberella fujikuroi
(bakanae strains) and/or Bakanae (Foolish Seedling Disease) have been
confirmed to occur.
Inspection and Disposal:
An inspector is authorized to stop and inspect any regulated
article moving into a rice production area. Any article found to be infested
with Gibberellafujikuori (bakanae strains) or having
originated in an area where Gibberella fujikuori (bakanae
stains) is known to occur and not certified, shall be subject to treatment or
confiscation and destruction, without compensation, as required by the Arkansas
State Plant Board.
Compliance Agreement:
As a condition of issuance of certificates or limited permits
for the movement of regulated articles, any person engaged in purchasing,
assembling, exchanging, handling, processing, utilizing, treating or moving
such articles may be required to sign a compliance agreement stipulating that
he/she:
1. Maintain such safeguards
against the establishment and spread of any infestation;
2. Comply with such conditions as to the
maintenance of identity, handling and subsequent movement of such articles;
and
3. Cleaning and treatment of
means of conveyance and the containers used in the transportation of such
articles as may be require by the inspector.
Any compliance agreement may be cancelled by the inspector who
is supervising its enforcement whenever he finds, after notice and opportunity
to present views has been accorded to the other party thereto, that such other
party has failed to comply with the conditions of the agreement. Any compliance
agreement may be cancelled when compliance is no longer required.
Violations and Penalties:
Any violation of these rules may be subj ect to civil penalties
under the authority of the Arkansas Plant Act of 1917, A.C. A. Section
2-16-203.
K. ARKANSAS THOUSAND CANKER DISEASE OF BLACK
WALNUT QUARANTINE
Thousand Cankers Disease (TCD) is a disease complex involving
the Walnut Twig Beetle (Pityophthorus juglandis) and a Geosmithia fungus. These
organisms attack and eventually kill walnut trees. The disease has spread
across the Western United States and poses a serious threat to the native black
walnut trees of Arkansas. Black Walnut trees are prized for their edible nuts,
valuable lumber, ornamental shade qualities, and as a vital component in the
forest ecosystem. This quarantine is in place to keep the disease from
spreading into Arkansas from infested areas.
The Thousand Cankers Disease Quarantine shall be effective on
filing of the rule. The specific requirements of the quarantine are as
follows:
1. Quarantine Areas:
Quarantined areas shall consist of the entire states of
Arizona, California, Colorado, Idaho, Nevada, New Mexico, Oregon, Tennessee,
Utah, and Washington; and any other state or foreign country known to be
infested.
2. Regul ated
Arti cl e s:
a. all plants and plant parts of
the genera Juglans including but not limited to nursery stock,
budwood, scionwood, green lumber, and other material living, dead, cut or
fallen, including logs, stumps, roots, branches, and composted and uncomposted
chips.
b. all life stages of the
walnut twig beetle {Pityophthorus juglandis); all life stages
of the Geosmithia fungus {Geosmithia morbida).
c. firewood of any non-coniferous (hardwood)
species.
3.
Restrictions:
Except as otherwise provided herein, all commodities and
articles covered are prohibited entry into or through Arkansas from areas under
quarantine unless specifically listed as exempt (see list below); no person,
firm, corporation or other entity shall import, plant, receive for delivery, or
otherwise accept or bring into Arkansas any regulated articles from any
Thousand Canker Disease of Black Walnut infested area designated by the
Arkansas
State Plant Board.
4. Commodities exempt from quarantine
requirements:
a. All nuts, nut meat and hulls
of the genera Juglans.
b. Milled lumber 100% bark-free, kiln-dried
with squared edges.
c. Finished
walnut wood products without bark, including walnut furniture, instruments, and
gun stocks.
d. Nonviable, preserved
specimens of the walnut twig beetle {Pityophthorus
juglandis).
5.
Penalties: Per existing penalty matrix in Circular 11.
The quarantine is effective until the Arkansas State Plant
Board amends the quarantine or determines that the quarantine is no longer
necessary.
ADDENDUM "A"
ENFORCEMENT RESPONSE PLAN
PENALTY MATRIX
NURSERY INSPECTION QUARANTINE SECTIONRange
of $50.00 to $1,000.00
Other: A: License Review
ENFORCEMENT POLICY
ARKANSAS ADMINISTRATIVE PROCEDURES ACT A.C.A.
25-15-201
C:
lnvahdatl0n
ot License
* Minor Violation: A violative incident which does not involve
human health, safety, or endanger the environment; or other incidents of
non-compliance which do not create a competitive disadvantage for licensees in
full compliance.
* Major Violation: A violative incident which affects human
health, safety, or the environment; or other incidents of non-compliance which
create a competitive disadvantage over licensees in full compliance; or a
history of repetitive violative incidents.
|
VIOLATION
|
VIOLATION LEVEL
|
1st Level of
Enforcement
|
2nd Level of
Enforcement
|
3rd Level of
Enforcement
|
4th Level of
Enforcement
|
|
Failure to Secure a License or Permit
Number
|
Minor
|
50- 100
|
101-200
|
201-400
|
401-600
|
|
Major
|
100-400
|
401-600
|
601 - 800
|
801 - 1000
|
|
Other
|
A-B-C
|
c
|
|
Failure to Fulfill Contracts or Other Related
replacements or adjustments
|
Minor
|
50- 100
|
101-200
|
201-400
|
401-600
|
|
Major
|
100-400
|
401-600
|
601 - 800
|
801 - 1000
|
|
Other
|
A-B-C
|
c
|
|
Misrepresentation for the
purpose of
deceiving or defrauding
|
Minor
|
50- 100
|
101-200
|
201-400
|
401-600
|
|
Major
|
100-400
|
401-600
|
601 - 800
|
801 - 1000
|
|
Other
|
A-B-C
|
c
|
|
Repeated sales of poor quality
|
Minor
|
50- 100
|
101-200
|
201-400
|
401-600
|
|
Major
|
100-400
|
401-600
|
601 - 800
|
801 - 1000
|
|
Other
|
A-B-C
|
c
|
|
Unable to produce required records
|
Minor
|
50- 100
|
101-200
|
201-400
|
401-600
|
|
Major
|
100-400
|
401-600
|
601 - 800
|
801 - 1000
|
|
Other
|
A-B-C
|
C
|
|
Buying, digging, or possessing Ginseng out of
season without proper documentation
|
Minor
|
50- 100
|
101-200
|
201-400
|
401-600
|
|
Major
|
100-400
|
401-600
|
601 - 800
|
801 - 1000
|
|
Other
|
A-B-C
|
c
|
|
Shipped or moved regulated articles from a
quarantine area without proper treatment or certificate
|
Minor
|
50- 100
|
101-200
|
201-400
|
401-600
|
|
Major
|
100-400
|
401-600
|
601 - 800
|
801 - 1000
|
|
Other
|
Material will be returned to seller at seller's
expense, or treated on site with a labeled and approved pesticide by a licensed
Pest Control operator.
|
Material will be returned to seller at seller's
expense, or treated on site with a labeled and approved pesticide by a
licensed
Pest Control operator.
|
A-B-C
Material will be returned to seller at seller's
expense, or treated on site with a labeled and approved pesticide by a
licensed
Pest Control operator.
|
c
Material will be returned to seller at seller's
expense, or treated on site with a labeled and approved pesticide by a
licensed
Pest Control operator.
|
|
Failure to label in accordance with the law and
regulations
|
Minor
|
50- 100
|
101-200
|
201-400
|
401-600
|
|
Major
|
100-400
|
401-600
|
601 - 800
|
801 - 1000
|
|
Other
|
A-B-C
|
C
|
|
Selling, transporting or disposing of in anyway,
plants and nursery stock covered by a stop-sale notice
|
Minor
|
50- 100
|
101-200
|
201-400
|
401-600
|
|
Major
|
100-400
|
401-600
|
601 - 800
|
801 - 1000
|
|
Other
|
A-B-C
|
c
|
|
Violating a compliance
|
Minor
|
50- 100
|
101-200
|
201-400
|
401-600
|
|
agreement
|
100-400
|
401-600
|
601 - 800
|
801 - 1000
|
|
A-B-C
|
c
|
ADDENDUM "B" ENFORCEMENT RESPONSE PLAN
PENALTY MATRIX CHENIERE RICE REGULATIONS
|
VIOLATION
|
Violation Level
|
1st Level of Enforcement
|
2nd Level of Enforcement
|
3rd Level of Enforcement
|
4th Level of Enforcement
|
|
Enforcement Action
|
Civil Penalty Fine
|
Enforcement Action
|
Civil Penalty Fine
|
Enforcement Action
|
Civil Penalty Fine
|
Enforcement Action
|
Civil Penalty Fine
|
|
1. Sells, offers for sale, plants, produces, harvests,
stores, distributes, transports, or processes (conditions) for planting
Cheniere or other Rice seed identified as having characteristics of commercial
impact.
|
Minor*
|
A
|
|
Major*
|
A, B
|
$30,000 - $50,000 per unit per day violation
continues
|
A,B,C
|
$50,000 - $75,000 per unit per day violation
continues
|
A,B,C
|
$75,000 - $100,000
per unit per day violation continues
|
A,B,C
|
$100,000 per unit per day
|
|
2. Transporting any rice seed identified as having
characteristics of commercial impact across state lines
|
Minor
|
A
|
|
Major
|
A,B
|
$30,000 - $50,000 per unit per day violation
continues
|
A,B,C
|
$50,000 - $75,000 per unit per day violation
continues
|
A,B,C
|
$75,000 - $100,000
per unit per day violation continues
|
A,B,C
|
$100,000 per unit per day
|
|
3.Representing rice seeds/grain which is
indistinguishable by seed characteristics to be a variety without
characteristics of commercial impact, without having adequate information for
such representation.
|
Minor*
|
A
|
|
Major*
|
A,B
|
$30,000 - $50,000 per unit per day violation
continues
|
A,B,C
|
$50,000 - $75,000 per unit per day violation
continues
|
A,B,C
|
$75,000 - $100,000
per unit per day violation continues
|
A,B,C
|
$100,000 per unit per day
|
|
4. Failure to obtain required test data on planting
rice seed sold, offered for sale or distributed within or into Arkansas.
|
Minor
|
|
Major
|
A,B
|
$30,000 - $50,000 per unit per day violation
continues
|
A,B,C
|
$50,000 - $75,000 per unit per day violation
continues
|
A,B,C
|
$75,000 - $100,000
per unit per day violation continues
|
A,B,C
|
$100,000 per unit per day
|
*Minor or Major determined by:
Enforcement actions:
A. Seizure, stop-sale,
stop-movement
B. Board/Committee
Hearing
C. Referral to Prosecuting
Attorney
* Nature of the characteristic involved
* Number of entities impacted by violation (more than 3 would
be major)
* Other Factors deemed appropriate by the State Plant Board
Director
* Economic consequences resulting from violation (impacts of
more than $1,000.00 are major)
* Quantity of previously approved rice impacted by the
violation (more than 500 bushels would be major)
ATTACHMENT I
PART 165 -PESTICIDE MANAGEMENT AND DISPOSAL
Subpart A-General
Subpart A - General
§165.1 Scope.
The Part 165 regulations establish standards and requirements
for pesticide containers, repackaging pesticides, and pesticide containment
structures.
§165.3
Definitions.
Agricultural pesticide means any pes ticide
product labeled for use in or on a_
farm, forest, nursery or greenhouse
Appurtenance means any equipment or device
which is used for the purpose of transferring a pesticide from a stationary
pesticide container or to any refillable container, including but not limited
to, hoses, fittings, plumbing, valves, gauges, pumps and metering
devices.
Capacity means, as applied to containers, the
rated capacity of the container.
Container means any package, can, bottle, bag,
barrel, drum, tank, or other containing-device (excluding any application
tanks) used to enclose a pesticide. Containers that are used to sell or
distribute a pesticide product and that also function in applying the product
(such as spray bottles, aerosol cans and containers that become part of a
direct injection system) are considered to be containers for the purposes of
this part.
Containment pad means any structure that is
designed and constructed to intercept and contain pesticides, rinsates, and
equipment wash water at a pesticide dispensing area
Containment structure means either a secondary
containment unit or a containment pad.
Custom blending means the service of mixing
pesticides to a customer's specifications usually a pesticide(s)-fertilizer(s),
pesticide-pesticide, or a pesticide-animal feed mixture when:
(1) The blend is prepared to the order of the
customer and is not held in inventory by the blender,
(2) The blend is to be used on the customer's
property (including leased or rentedproperty);
(3) The pesticide(s) used in the blend bears
end-use labeling directions which do not prohibit use of the product in such a
blend,
(4) The blend is prepared
from registered pesticides; and
Terms used in this part have the same meaning as in the Act and
part 152 of this chapter. In addition, as used in this part, the following
terms shall have the meanings set forth below.
Act means the Federal Insecticide, Fungicide,
and Rodenticide Act.
(5)
The blend is delivered to the end-user along with a copy of the end-use
labeling of each pesticide used in the blend and a statement specifying the
composition of the mixture.
Dilutable means that the pesticide product's
labeling allows or requires the pesticide product to be mixed with a liquid
diluent prior to application or use.
Dry pesticide means any pesticide that is in
solid form and that has not been combined with liquids; this includes
formulations such as dusts wettable powders, dry flowable powders, water
soluble powders, granules, and dry baits.
Establishment means any site where a
pesticidal product active ingredient, or device is produced, regardless of
whether such site is independently owned or operated, and regardless of whether
such site is domestic and producing a pesticidal product for export only, or
whether the site is foreign and producing any pesticidal product for import
into the United States.
Facility means all buildings, equipment,
structures, and other stationary items which are located on a single site or on
contiguous or adjacent sites and which are owned or operated by the same person
(or by any person who controls, who is controlled by, or who is under common
control with such person).
Nonrefillable container means a container that
is not a refillable container and that is designed and constructed for one time
use and is not intended to be filled again with a pesticide for sale or
distribution. Reconditioned containers are considered to be non-refillable
containers.
One-way valve means a valve that is designed
and constructed to allow virtually unrestricted flow in one direction and no
flow in the opposite direction thus allowing the withdrawal of material from,
but not the introduction of material into, a container.
Operator means any person in control of, or
having responsibility for, the daily operation of a facility at which a
containment structure is located.
Owner means any person who owns a facility at
which a containment structure is required.
Pesticide compatible as applied to containers
means that the container construction materials will not chemically
react with the formulation. A container is not compatible with the formulation
if, for example, the formulation:
(1)
Is corrosive to the container;
(2)
Causes softening, premature aging, or embrittlement of the container;
(3) Otherwise causes the container to weaken
or to create the risk of discharge,
(4) Reacts in a significant chemical,
electrolytic, or galvanic manner with the container, or
(5) Interacts in a way, such as the active
ingredient permeating the container wall, that would cause the formulation to
differ from its composition as described in the statement required
in connection with its registration under HFRA section
3,
Pesticide compatible as applied to containment
means that the containment construction materials are able to
withstand anticipated exposure to stored or transferred substances without
losing the capability to provide the required containment of the same or other
substances within the containment area.
Pesticide dispensing area means an area in
which pesticide is transferred out of or into a container.
Portable pesticide container means a
refillable container that is not a stationary pesticide container.
Produce means to manufacture, prepare,
propagate, compound, or process any pesticide, including any pesticide produced
pursuant to section 5 of the Act, and any active ingredient or device, or to
package, repackage, label, relabel, or otherwise change the container of any
pesticide or device.
Producer means any person, as defined by the
Act, who produces any pesticide, active ingredient or device (including
packaging, repackaging, labeling and relabeling),
Refillable container means a container that is
intended to be filled with a pesticide more than once for sale or
distribution.
Refiller means a person who engages in the
activity of repackaging pesticide product into refillable containers. This
could include a registrant or a person operating under contract to a
registrant.
Refilling establishment means an establishment
where the activity of repackaging pesticide product into refill-able containers
occurs.
Repackage means, for the purposes of this
part, to transfer a pesticide formulation from one container to another without
a change in the composition of the formulation, the labeling content, or the
product's EPA registration number, for sale or distribution.
Rinsate means the liquid resulting from the
rinsing of the interior of any equipment or container that has come in direct
contact with any pesticide.
Runoff means surface water leaving the target
site.
Secondary containment unit means any
structure, including rigid diking, that is designed and constructed to
intercept and contain pesticide spills and leaks and to prevent runoff and
leaching from stationary pesticide containers.
Stationary pesticide container means a
refillable container that is fixed at a single facility or establishment or, if
not fixed, remains at the facility or establishment for at least 30 consecutive
days, and that holds pesticide during the entire time.
Suspension concentrate means a stable
suspension of solid particulate active ingredients in a liquid intended for
dilution with water before use.
Tamper-evident device means a device, which
can be visually inspected to determine if a container has been opened.
Transport vehicle means a cargo-carrying
vehicle such as an automobile, van, tractor, truck, semitrailer, tank car or
rail car used for the transportation of cargo by any mode.
Washwater means the liquid resulting from the
rinsing of the exterior of any equipment or containers that have or may have
come in direct contact with any pesticide or system maintenance compound, such
as oil or antiireeze.
[71 FR 47422, Aug. 16, 2006, as amended at 73 FR 64224, Oct.
29, 2008]
§§ 165.4-165.19 [Reserved]
Subpart B-Nonrefillable Container Standards: Container Design
and Residue Removal
§ 165.20 General provisions.
(a)
What is the purpose of the
regulations in this subpart? The regulations in this subpart establish
design and construction requirements for nonrefillable containers used for the
distribution or sale of some pesticide products.
(b)
Do I have to comply with the
regulations in this subpart? You must comply with the regulations in
this subpart if you are a registrant who distributes or sells a pesticide
product in nonrefillable containers. If your pesticide product is subject to
the regulations in this subpart as set out in §165.23, your pesticide
product must be distributed or sold in a nonrefillable container that meets the
standards of these regulations.
(c)
When do I have to comply? Any pesticide product packaged in a
nonrefillable container and released for shipment by you after August 16 2009
must be packaged in a nonrefillable container that complies with the
regulations of this subpart.
[71 FR 47422, Aug. 16, 2006, as amended at 73 FR 64225, Oct.
29, 2008]
§
165.23 Scope of pesticide products included.
(a)
Are manufacturing use products
subject to the regulations in this subpart? No', the regulations in
this subpart do not apply to manufacturing use products, as defined in
§158.153(h) of this chapter.
(b)
Are plant-incorporated
protectants subject to the regulations in this subpart? No. the
regulations in this subpart do not apply to plant-incorporated protectants, as
defined in §174.3 of this chapter.
(c)
Which antimicrobial pesticide
products are not subject to the regulations in this subpart? The
regulations in this subpart do not apply to a pesticide product if it satisfies
all of the following conditions:
(1) The
pesticide product meets one of the following two criteria:
(i) The pesticide product is an antimicrobial
pesticide as defined in FIFRA section 2(mm); or
(ii) The pesticide product:
(A) Is intended to: disinfect, sanitize,
reduce or mitigate growth or development of microbiological organisms; or
protect inanimate objects, industrial processes or systems, surfaces, water, or
other chemical substances from contamination, fouling, or deterioration caused
by bacteria, viruses, fungi, protozoa, algae, or slime; and
(B) In the intended use is subject to a
tolerance under section 408 of the Federal Food, Drug, and Cosmetic Act or a
food additive regulation under section 409 of such Act.
(2) The labeling of the pesticide
product includes directions for use on a site in at least one of the following
antimicrobial
Eroduct use categories: food andling/storage establishments
premises and equipment; commercial, institutional, and industrial premises and
equipment; residential and public access premises; medical premises and
equipment; human drinking water systems; materials preservatives; industrial
processes and water systems; antifouling coatings; wood preservatives; or
swimming pools.
(3) The
pesticide product is not a hazardous waste as set out in part 261 of this
chapter when the pesticide product is intended to be disposed.
(4) EPA has not specifically determined that
the pesticide product must be subject to the regulations in this subpart to
prevent an unreasonable adverse effect on the environment according to the
provisions of paragraph (d) of this section.
(d)
How will EPA determine if an
"antimicrobial" pesticide product otherwise exempted must be subject to the
regulations in this subpart to prevent an unreasonable adverse effect on the
environment? (1) EPA may determine
that an antimicrobial pesticide product otherwise exempted by paragraph (c) of
this section must be subject to the nonrefillable container regulations in this
subpart to prevent an unreasonable adverse effect on the environment if all of
the following conditions exist:
(i) EPA
obtains information, data or other evidence of a problem with the containers of
a certain pesticide product or related group of products.
(ii) The information, data or other evidence
is reliable and factual.
(iii) The
problem causes or could reasonably be expected to cause an unreasonable adverse
effect on the environment.
(iv)
Complying with the container regulations could reasonably be expected to
eliminate the problem.
(2) If EPA determines that an antimicrobial
pesticide product otherwise exempted by paragraph (c) of this section must be
subject to the nonrefillable-able container regulations in this sub-part to
prevent an unreasonable adverse effect on the environment, EPA may require, by
rule, that the product be distributed or sold in nonrefillable containers that
comply with all or some of the requirements in this sub-part. Alternatively,
EPA may notify the applicant or registrant of its intent to make such a
determination. After allowing the applicant or registrant a reasonable amount
of time to reply EPA may require, by notification and as a condition of
registration that the product be distributed or sold in nonrefillable
containers that comply with all or some of the requirements in this subpart.
For the purpose of the previous sentence, 60 days would be a reasonable amount
of time to reply, although EPA may, in its discretion, provide more time. EPA
may deny registration or initiate cancellation proceedings if the registrant
fails to comply with the nonrefillable container regulations within the time
frames established by EPA in the rule or in its notification.
(e)
What other pesticide
products are subject to the regulations in this subpart?
(1) Except for manufacturing use
prod1 ucts, plant-incorporated protectants, and
antimicrobial products that are exempt under paragraph (c) of this section, all
of the regulations in this sub-part apply to a pesticide product if it
satisfies at least one of the following criteria:
(i) The pesticide product meets the criteria
of Toxicity Category I as set out in § 156.62 of this chapter.
(ii) The pesticide product meets the criteria
of Toxicity Category II as set out in § 156.62 of this chapter.
(iii) The pesticide product is classified for
restricted use as set out in §§152.160-152.175 of this
chapter.
(2) Except for
manufacturing use products, plant-incorporated protectants, antimicrobial
products that are exempt under (c) of this section, and other pesticide
products that are regulated under paragraph (e) (1) of this section, a
pesticide product must be packaged in compliance with
49 CFR
173.24. If the pesticide product meets the
definition of a hazardous material in
49 CFR
171.8, the Department of Transportation
requires it to be packaged according to 49 CFR parts 171-180.
(f)
What does "pesticide
product" or "pesticide" mean in the rest of this subpart In
§§165.25 through 165.27, the term "pesticide product" or "pesticide"
refers only to a pesticide product or a pesticide that is subject to the
regulations in this subpart as described in paragraphs (a) through (e) of this
section. [71 FR 47422, Aug. 16, 2006, as amended at 73 FR 64225, Oct. 29,
2008]
§165.25
Nonrefillable container standards.
(a)
What Department of Transportation (DuT) standards do my nonrefillable
containers have to meet under this part if my pesticide product is not a DOT
hazardous material? A pesticide product that does not meet the
definition of a hazardous material in
49 CFR
171.8 must be packaged in a nonrefillable
container that if portable, is designed, constructed, and marked to comply with
the requirements of
49 CFR
173.4,
173.5,
173.6,
173, 24,
173.24a,
173.24b,
173.28,
173.155,
173.203,
173.213,
173.240(c),
173.240(d),
173.241(c)
173.241(d),
part 178, and part 180 that are applicable to a Packing Group III material, or,
if subject to a special permit, according to the applicable requirements of 49
CFR part 10 7 subpart B. The requirements in this paragraph apply to the
pesticide product as it is packaged for transportation in commerce.
(b)
What DOT standards do my
nonrefillable containers have to meet under this part if my pesticide product
is a DOT hazardous material"? (1) If
your pesticide product meets the definition of a hazardous material in
49 CFR
171.8, the DOT requires your pesticide
product to be packaged according to 49 CFR parts 171-180 or, if subject to a
special permit, according to the applicable requirements of 49
CFR part 107 subpartB.
(2)
For the purposes of these regulations, a pesticide product that meets the
definition of a hazardous material in
49 CFR
171.8 must be packaged in a nonrefillable
container that if portable, is designed, constructed, and marked to comply with
the requirements of 49 CFR parts 171-180 or, if subject to a special permit
according to applicable requirements of 49 CFR part lOTsubpart B. The
requirements in this paragraph apply to the pesticide product as it is packaged
for transportation in commerce.
(c)
What will EPA do if DOT proposes
to change jmy of the cross-referenced regulations 4? If the DOT
proposes to change any of the regulations that are incorporated in paragraphs
(a) and (b) of this section, EPA will provide notice of the proposed changes
and an opportunity to comment in the Federal Register. Following notice and
comment, EPA will take final action regarding whether or not to revise its
rules and the extent to which any such revision will correspond with revised
DOT regulations.
(d)
What
standards for closures do my nonrefillable containers have to meet? ff
your nonrefillable container is a rigid container with a capacity equal to or
greater than 3.0 liters (0.79 gallons), if the container is not an aerosol
container or a pressurized container, and if the container is used to
distribute or sell a liquid agricultural pesticide, each nonrefillable
container must have at least one of the following standard closures:
(1) Bung, 2 inch pipe size (2.375 inches in
diameter), external threading, 11.5 threads per inch, National Pipe Straight
(NPS)standard.
(2) Bung, 2-inch
pipe size (2.375 inches in diameter), external threading, 5 threads per inch,
buttress threads.
(3) Screw cap, 63
millimeters, at least one thread revolution at 6 threads per inch.
(4) Screw cap, 38 millimeters, at least one
thread revolution at 6 threads per inch. The cap may fit on a separate rigid
spout or on a flexible pull-out plastic spout.
(e)
What standards for dispensing do
my nonrefillable containers have to meet1?
If your nonrefillable container has a capacity of 5 gallons (18.9
liters) or less, if the container is not an aerosol container, a pressurized
container, or a spray bottle, and if the container holds a liquid pesticide
your nonrefillable container must do both of the following:
(1) Allow the contents of the nonrefillable
container to pour in a continuous, coherent stream.
(2) Allow the contents of the nonrefillable
container to be poured with a minimum amount of dripping down the outside of
the container.
(f)
What standards for residue removal do my nonrefillable containers have
to meet? Each nonrefillable container and pesticide formulation
combination must meet the applicable residue removal standard of this section.
(1) If the nonrefillable container is rigid
and has a capacity less than or equal to 5 gallons (18.9 liters) for liquid
formulations or 50 pounds (22.7 kilograms) for solid formulations and if the
pesticide product's labeling allows or requires the pesticide product to be
mixed with a liquid diluent prior to application (that is, if the pesticide is
dilutable), each container/formulation combination must be capable of attaining
at least 99.99 percent removal of each active ingredient when tested using the
EPA test procedure "Rinsing Procedures for Dilutable Pesticide Products in
Rigid Containers."
(2) The test
must be conducted only if the pesticide product is a suspension concentrate or
if EPA specifically requests the records on a case-by-case basis.
(3) For the rigid container/dilutable product
standard in paragraph (f) (1) of this section, percent removal represents the
percent or the original concentration of the active ingredient in the pesticide
product when compared to the concentration of that active ingredient in the
fourth rinse. Percent removal is calculated by the formula:
percent removal = [ 1.0 - RR] x 100.0, where
RR = rinsate ratio = Active Ingredient concentration in fourth
rinsate/Qriginal concentration of active ingredient in the product
(g)
Can I
obtain a waiver from or a modification to any of the nonrefillable container
standards Yes, it is possible for you to obtain a waiver from or a
modification to the nonrefillable container standards, as follows:
(1) EPA may waive or modify the requirements
of paragraph (a) of this section regarding the DOT standards for Eesticide
products that are not DOT azardous materials if EPA determines that an
alternative (partial or modified) set of standards or pre-existing requirements
achieves a level of safety that is at least equal to that specified in the
requirements of paragraph (a) of this section.
(2) EPA may waive or modify the requirements
of paragraph (b) of this section regarding the DOT standards for pesticide
products that are DOT hazardous materials if EPA determines that an alternative
(partial or modified) set of standards or pre-existing requirements achieves a
level of safety that is at least equal to that specified in the requirements of
paragraph (b) of this section. EPA will modify or waive the requirements of
paragraph (b) of this section only after consulting with DOT to ensure
consistency with DOT regulations and exemptions.
(3) EPA may approve a non-standard closure
(that is, a closure not listed in paragraph (d) of this section) if EPA
determines that both of the following conditions are satisfied:
(i) The non-standard closure is necessary for
the proper mixing, loading, or application of the pesticide product.
(ii) The non-standard closure offers exposure
protection to handlers during mixing and loading that is the same or greater
than that provided by the standard closures.
(4) EPA may waive or modify the container
dispensing capability standards in paragraph (e) of this section if EPA
determines that at least one of the following conditions is satisfied:
(i) The product is typically removed from the
container by a method other than pouring.
(ii) compliance with the container dispensing
capability standards would increase exposure to the pesticide container
handler.
(5) EPA may
waive or modify the requirements of paragraph (f) of this section regarding the
residue removal standard if EPA determines that both of the following
conditions are satisfied:
(i) The residue
remaining in the container would not cause an unreasonable adverse effect on
the environment; and
(ii) The
product offers significant benefits and cannot be economically reformulated or
repackaged.
(h)
How do I obtain a waiver from or
a modification to any of the nonrefillable container standards? To
obtain a waiver from or a modification to any of the nonrefillable container
standards, you must submit a written request for a waiver or a modification to
the EPA to the following address: Office of Pesticide Programs (7504P); U.S.
Environmental Protection Agency; Ariel Rios Building; 1200 Pennsylvania Avenue,
N.W., Washington, DC 20460. You cannot distribute or sell the pesticide product
in a nonrefillable container that does not comply with all of the nonrefillable
container standards unless and until EPA approves the request for the waiver or
modification in writing. You must include two copies of the following
information (which may be part of an application for registration or amended
registration) with your written request:
(1)
The name and address of the registrant; the date; and the name, title,
signature, and phone number of the company official making the
request.
(2) The name and EPA
registration number of the pesticide product for which the waiver or
modification is requested.
(3) A
statement specifying the requirement or requirements from which you are
requesting a waiver or a modification.
(4) A description of the nonrefillable
container or containers for which the waiver or modification is
requested.
(5) Documentation or
justification to demonstrate that the applicable waiver or modification
criteria in paragraph (g) of this section are satisfied.
[71 FR 47422, Aug. 16,2006, as amended at 73 FR 64225, Oct. 29,
2008]
§
165.27
Reporting and recordkeeping.
(a)
What information must I report
about my nonrefillable containers?1 !- You
are not required to report to EPA with information about your nonrefillable
containers under the regulations in this subpart. You should refer to the
reporting standards in part 159 of this chapter to determine if information on
container failures or other incidents involving pesticide containers must be
reported to EPA under FIFRA section 6(aX2X
7U.S.C.
136d(a)(2)).
(b)
What recordkeeping do I have to
do for my nonrefillable containers'? For each pesticide product that
is subject to §165.25 - 165.27 and is distributed or sold in nonrefillable
containers you must maintain the records listed in this section for as long as
a nonrefillable container is used to distribute or sell the pesticide product
and for 3 years after that. You must furnish these records for inspection and
copying upon request by an employee of EPA or any entity designated by EPA,
such as a State, another political subdivision or a Tribe. You must keep the
following records:
(1) The name and EPA
registration number of the pesticide product.
(2) A description of the nonrefillable
container(s) in which the pesticide product is distributed or sold.
(3) At least one of the following records to
document compliance with the requirement for closures in § 165.25(d) for
each nonrefillable container used to distribute or sell the pesticide product
that must comply with § 165.25(d):
(i) A
letter of document from the container supplier that describes the
closure.
(ii) A specification about
the closure in the contract between the registrant or applicant and the
container supplier.
(iii) A copy of
EPA's approval of any non-standard closure.
(4) At least one of the following records
pertaining to the container dispensing capability requirements in §
165.25(e) for each nonrefillable container used to distribute or sell the
pesticide product that must comply with § 165.25(e):
(i) Test data of documentation demonstrating
that the nonrefillable container meets the standards in § 165.25(e) when
it contains the pesticide product.
(ii) Test data or documentation demonstrating
that a different nonrefillable container meets the standards in §165.25(e)
when it contains the pesticide product or even a different pesticide product
and a written explanation of why such data or documentation demonstrates that
the container meets the standards in § 165.25(e) for the pesticide
product.
(iii) A copy of EPA's
approval of a request for a waiver from the container dispensing
requirement.
(5) At
least one of the following records pertaining to the nonrefillable container
residue removal requirement in §165.25(f) if the pesticide product is a
suspension concentrate or if EPA specifically requests the records on a case by
case basis:
(i) Test data showing that the
nonrefillable container and pesticide formulation meet the standard in
§165.25(f).
(ii) Test data
showing that a different nonrefillable container with the same or a different
pesticide formulation meets the standard in § 165.25(f), together with a
written explanation of why such data demonstrate that the nonrefillable
container and pesticide formulation meet the standard in
§165.25(f).
(iii) A copy of
EPA's approval of arequest for a waiver from the residue removal standard
requirement.
[71FR 47422, Aug. 16,2006, as amended at
73 FR 64225, Oct. 29,2008]
§§ 165.28-165.39 [Reserved]
Subpart C-Refillable Container Standards: Container
Design
§ 165.40 General
provisions.
(a)
What is the purpose of
the regulations in this subpart? The regulations in this subpart
establish design and construction requirements for refillable containers used
for the distribution or sale of some pesticide products.
(b)
Do I have to comply with the
regulations in this subpart-?(1) You
must comply with all of the regulations in this subpart if you are a registrant
who distributes or sells a pesticide product in refillable containers. If your
pesticide product is subject to the regulations in this subpart as set out in
§165.43, your pesticide product must be distributed or sold in a
refillable container that meets the standards of these regulations. This
includes your pesticide products that are repackaged according to subpart D of
this part.
(2) You must comply with
the regulations in §165.45(f) for stationary pesticide containers if you
are a re filler of a pesticide product and you are not the registrant of the
pesticide product. If the pesticide product is subject to the regulations in
this subpart as set out in §165.43, the stationary pesticide containers
used to distribute or sell the product must meet the standards of
8165.45(f).
(3) If you are a
refiller of a pesticide product and you are not a registrant of the pesticide
product, § 165.45(a) (2) provides an exemption from some of the
requirements in §165.45(a) (1).
(c)
When do I have to comply?
Any pesticide product packaged in a refillable container and released
for shipment by you after August 16 2011 must be packaged in a refillable
container that complies with the regulations of this subpart.
[71 FR 47422, Aug. 16,2006, as amended at 73 FR 64226, Oct.
29,2008]
(a)
Are
manufacturing use products subject to the regulations in this subpart?
No, the regulations in this subpart do not apply to manufacturing use
products, as defined in § 15 8.153 (h) of this chapter.
(b)
Are plant-incorporated
protectants subject to the regulations in this subpart?! No, the
regulations in this subpart do not apply to plant-incorporated protectants, as
defined in § 174.3 of this chapter.
(c)
Which antimicrobial pesticide
products are not subject to the regulations in this subpart?! The
regulations in this subpart do not apply to a pesticide product if it satisfies
all of the following conditions:
(1) The
pesticide product meets one of the following two criteria:
(i) The pesticide product is an antimicrobial
pesticide as defined in FIFRA section 2(mm); or
(ii) The pesticide product:
(A) Is intended to: disinfect, sanitize,
reduce or mitigate growth or development of microbiological organisms; or
protect inanimate ob)ects, industrial processes or systems surfaces, water, or
other chemical substances from contamination, fouling, or deterioration caused
by bacteria, viruses, fungi, protozoa, algae, or slime; and
(B) In the intended use is subject to a
tolerance under section 408 of the Federal Food, Drug, and Cosmetic Act or a
food additive regulation under section 409 of such Act.
(2) The labeling of the pesticide
product includes directions for use on a site in at least one of the following
antimicrobial
Eroduct use categories: food andling/storage establishments
premises and equipment; commercial, institutional, and industrial premises and
equipment; residential and public access premises; medical premises and
equipment; human drinking water systems; materials preservatives; industrial
processes and water systems; antifouling coatings; wood preservatives; or
swimming pools.
(3) The
pesticide product is not a hazardous waste as set out in part 261 of this
chapter when the pesticide product is intended to be disposed.
(4) EPA has not specifically determined that
the pesticide product must be subject to the regulations in this subpart to
prevent an unreasonable adverse effect on the environment ac-cording to the
provisions of paragraph
(e) of this section.
(d)
Which requirements must an
antimicrobial swimming pool product comply with if it is not exempt from these
regulations? An antimicrobial swimming pool product that is not exempt
by paragraph (a), (b), or (c) of this section must comply with all of the
regulations in this subpart except 5165.45(d) regarding marking and
§165.45(e) regarding openings. For the purposes of this subpart, an
antimicrobial swimming pool product is a pesticide product that satisfies both
of the following conditions:
(1) The pesticide
product is intended to: disinfect, sanitize, reduce or mitigate growth or
development of microbiological organisms; or protect inanimate objects,
industrial processes or systems, surfaces, water, or other chemical substances
from contamination, fouling, or deterioration caused by bacteria, viruses,
fungi, protozoa, algae, or slime.
(2) The labeling of the pesticide product
includes directions for use on only a site or sites in the antimicrobial
product use category of swimming pools.
(e)
How will EPA determine if an
antimicrobial pesticide product otherwise exempted must be subject to the
regulations in this subpart to prevent an unreasonable adverse effect on the
environment? (1) EPA may determine
that an antimicrobial pesticide product otherwise exempted by paragraph (c) of
this section must be subject to the refill-able container regulations in this
sub-part to prevent an unreasonable adverse effect on the environment if all of
the following conditions exist:
(i) EPA
obtains information, data or other evidence of a problem with the containers of
a certain pesticide product or related group of products.
(ii) The information, data or other evidence
is reliable and factual.
(iii) The
problem causes or could reasonably be expected to cause an unreasonable adverse
effect on the environment.
(iv)
Complying with the container regulations could reasonably be expected to
eliminate the problem.
(2) If EPA determines that an antimicrobial
pesticide product otherwise exempted by paragraph (c) of this section must be
subject to the refillable container regulations in this subpart to prevent an
unreasonable adverse effect on the environment EPA may require, by rule, that
the product be distributed or sold in refillable containers that comply with
all or some of the requirements in this subpart. Alternatively, EPA may notify
the applicant or registrant of its intent to make such a determination. After
allowing the applicant or registrant a reasonable amount of time to reply, EPA
may require, by notification and as a condition of registration, that the
product be distributed or sold in re fillable containers that comply with all
or some of the requirements in this subpart. For the purpose of the previous
sentence, 60 days would be a reasonable amount of time to reply, although EPA
.may in its discretion, provide more time. EPA may deny registration or
initiate cancellation proceedings if the registrant fails to comply with the
refillable container regulations within the time frames established by EPA in
the rule or in its notification.
(f)
What other pesticide products are
subject to the regulations in this subpart? The regulations in this
subpart apply to all pesticide products other than manufacturing use products,
plant-incorporated protectants, and antimicrobial products that are exempt by
paragraph (c) of this section. Antimicrobial products covered under paragraph
(d) of this section are subject to the regulations indicated in paragraph (d)
of this section.
(g)
What
does "pesticide product" or "pesticide" mean in the rest of this sub-part?
In §§ 165.43(h) through 165.47, the term 'pesticide product"
or "pesticide" refers only to a pesticide product or a pesticide that is
subject to the regulations in this subpart as described in paragraphs (a)
through (f) of this section.
(h)
Are there any other exceptions-?
(1) The regulations in this subpart do not
apply to transport vehicles that contain pesticide in pesticide-holding tanks
that are an integral part of the transport vehicle and that are the primary
containment for the pesticide.
(2)
The regulations in this subpart do not apply to containers that hold pes-
ticides that are gaseous at atmospheric temperature and
pressure. [71 FR 47422, Aug. 16, 2006, as amended at 73 FR 64226, Oct. 29,
2008]
§165.45 Refillable container standards.
(a)
What Department of Transportation
(DOT) standards do my refillable containers have to meet under this part if my
pesticide product is not a DOT hazardous material? (44 A pesticide
product that does not meet the definition of a hazardous material in
49 CFR
171.8 must be packaged in a refillable
container that, if portable, is designed, constructed, and marked to comply
with the requirements of
49 CFR
173.4, 1735173.6,
173, 24,
173.24a,
173.24b,
173.28,
173.155,
173.203,
173.213,
173.240(c),
173.240(d),
173.241(c)
173.241(d),
part 178, and part 180 that are applicable to a Packing Group III material, or,
if subject to a special permit, according to the applicable requirements of 49
CFR part 10/ subpart B. The requirements in this paragraph apply to the
pesticide product as it is packaged for transportation in commerce.
(b)
What DOT standards do my
refill-able containers have to meet under this part if my pesticide product is
a DOT hazardous material? (1) If
your pesticide product meets the definition of a hazardous material in
49 CFR
171.8, the DOT requires your pesticide
product to be packaged according to 49 CFR parts 171-180 or, if subject to a
special permit according to the applicable requirements of 49 CFR part 107
subpart B.
(2) For the purposes of
these regulations, a pesticide product that meets the definition of a hazardous
material in
49 CFR
171.8 must be packaged in a nonrefillable
container that, if portable, is designed, constructed, and marked to comply
with the requirements of 49 CFR parts 171 -180 or, if subject to a special
permit according to the applicable requirements of 49 CFR part 107 subpart
B.
(c)
What will
EPA do if DOT proposes to change any of the cross-referenced regulations?
If the DOT proposes to change any of the regulations that are
incorporated in paragraphs (a) and (b) of this section, EPA will provide notice
of the proposed changes and an opportunity to comment in the Federal Register.
Following notice and comment, EPA will take final action regarding whether or
not to revise its rules, and the extent to which any such revision will
correspond with revised DOT regulations.
(d)
What standards for marking, do my
refillable containers have to meet? Each refillable container must be
marked in a durable and clearly visible manner with a serial number or other
identifying code that will distinguish the individual container from all other
containers. Durable marking includes, but is not limited to, etching,
embossing, ink jetting, stamping, heat stamping, mechanically attaching
abplate, molding and marking with durable ink. The serial number or other
identifying code must be located on the outside part of the container except on
a closure. Placement on the label or labeling is not sufficient unless the
label is an integral, permanent part of or permanently stamped on the
container.
(e)
What
standards for openings do my refillable containers have to meet? If
your refillable container is a portable pesticide container that is designed to
hold liquid pesticide formulations and is not a cylinder that complies with the
DOT Hazardous Materials Regulations in 49 CFR parts 171-180, each opening of
the container other than a vent must have a one-way valve, a tamper-evident
device or both. A one-way valve may be located in a device or system separate
from the container if the device or system is the only reasonably foreseeable
way to withdraw pesticide from the container. A vent must be designed to
minimize the amount of material that could be introduced into the container
through it.
(f)
What
standards do my stationary pesticide containers have to meet If a
stationary pesticide container designed to hold undivided quantities of
pesticides equal to greater than 500 gallons (1,890 liters) of liquid pesticide
or equal to or greater than 4,000 pounds (1,818 kilograms) of dry pesticide is
located at the refilling establishment of a refiller operating under written
contract to you, the stationary pesticide container must meet the following
standards:
(1) Except during a civil emergency
or any unanticipated grave natural disaster or other natural phenomenon of an
exceptional, inevitable and irresistible character, the effects of which could
not have been prevented or avoided by the exercise of due care or foresight,
each stationary pesticide container (for liquid and dry pesticides) and its
appurtenances must meet both of the following standards:
(i) Each stationary pesticide container and
its appurtenances must be resistant to extreme changes in temperature and
constructed of materials that are adequately thick to not fail and that are
resistant to corrosion, puncture, or cracking.
(ii) Each stationary pesticide container must
be capable of withstanding all operating stresses, taking into account static
heat, pressure buildup from pumps and compressors, and any other foreseeable
mechanical stresses to which the container may be subjected in the course of
operations.
(2) Each
stationary container of liquid pesticides must meet all of the following
standards:
(i) Each stationary container of
liquid pesticides must be equipped with a vent or other device designed to
relieve excess pressure, prevent losses by evaporation, and exclude
precipitation.
(ii) External sight
gauges, which are pesticide-containing hoses or tubes that run vertically along
the exterior of the container from the top to the bottom, are prohibited on
stationary containers of liquid pesticides.
(iii) Each connection on a stationary
container of liquid pesticides that is below the normal liquid level must be
equipped with a shutoff valve which is capable of being locked closed. A
shutoff valve must be located within a secondary containment unit if one is
required by subpart E of this part.
(g)
Can I obtain a waiver from or a
modification to any of the refillable container
standards1? Yes, it is possible for you to
obtain a waiver from or a modification to some of the refillable container
standards, as follows:
(1) EPA may waive or
modify the requirements of paragraph (a) of this section regarding the DOT
standards for pesticide products that are not DOT hazardous materials if EPA
determines that an alternative (partial or modified) set of standards or
pre-existing requirements achieves a level of safety that is at least equal to
that specified in the requirements of paragraph (a) of this section.
(2) EPA may waive or modify the requirements
of paragraph (b) of this section regarding the DOT standards for pesticide
products that are DOT hazardous materials if EPA determines that an alternative
(partial or modified) set of standards or pre-existing requirements achieves a
level of safety that is at least equal to that specified in the requirements of
paragraph (b) of this section. EPA will modify or waive the requirements of
paragraph (b) of this section only after consulting with DOT to ensure
consistency with DOT regulations and exemptions.
(h)
How do 1 obtain a waiver from or
a modification to any of the refutable container standards/ To obtain
a waiver from or a modification to any of the re-fillable container standards,
you must submit a written request for a waiver or a modification to the EPA to
the following address: Office of Pesticide Programs (7504P); U.S. Environmental
Protection Agency; Ariel Rios Building; 1200 Pennsylvania Avenue, N.W.,
Washington, DC 20460. You cannot distribute or sell the pesticide product in a
refillable container that does not comply with all of the refillable container
standards unless and until EPA approves the request for the waiver or
modification in writing. You must include two copies of the following
information (which may be part of an application for registration or amended
registration) with your written request:
(1)
The name and address of the registrant; the date; and the name, title,
signature, and phone number of the company official making the
request.
(2) The name and EPA
registration number of the pesticide product for which the waiver or
modification is requested
(3) A
statement specifying the requirement or requirements from which you are
requesting a waiver or a modification.
(4) A description of the refillable container
or containers for which the waiver or modification is requested.
(5) Documentation or justification to
demonstrate that the applicable waiver or modification criteria in paragraph
(g) of this section are satisfied.
[71 FR 47422, Aug. 16, 2006, as amended at 73 FR 64226, Oct.
29, 20081]
§165.47
What information must I
report about my refillable containers?
You are not required to report to EPA with information about
your refillable containers under the regulations in this subpart. You should
refer to the reporting standards in part 159 of this chapter to determine if
information on container failures or other incidents involving pesticide
containers must be reportedto EPA under FIFRA section 6(aX2)(7U.S.C.
136d(a)(2) >
§§
165.4 8-165.59
[Reserved]
Subpart D-Standards for Repackaging Pesticide Products into
Refillable Containers
§
165.60 General provisions.
(a)
What is the purpose of the
regulations in this subpart? The regulations in this subpart establish
requirements for repackaging some pesticide products into refillable containers
for distribution or sale.
(b)
Do I have to comply with the regulations in this subpart? You
must comply with the regulations in this subpart if you are a registrant who
distributes or sells a pesticide product in refillable containers, if you are a
registrant who distributes or sells pesticide products to a refiller (that is
not part of your company) for repackaging into refill-able containers, or ii
you are a refiller of a pesticide product and you are not the registrant of the
pesticide product. Each pesticide product that is subject to the regulations in
this subpart as set out in § 165.63 and that is distributed or sold in a
refillable container must be distributed or sold in compliance with the
standards of these regulations.
(c)
When do I have to comply? Any
pesticide
product repackaged into a refillable container and released for
shipment by you after August 16, 2011 must be repackaged in compliance with the
regulations of this subpart.
[71 FR 47422, Aug. 16, 2006, as amended at 73 FR 64227, Oct.
29, 2008]
§
165.63
Scope of pesticide products included.
(a)
Are manufacturing use products
subject to the regulations in this subpart? No, the regulations in
this subpart do not apply to manufacturing use products, as defined in §
158.153(h) of
this chapter.
(b)
Are
plant-incorporated protectants subject to the regulations in this subpart?
No, the regulations in this subpart do not apply to plant-incorporated
protectants, as defined in §
174.3 of this chapter.
(c)
Which antimicrobial pesticide
products are not subject to the regulations in this subpart? The
regulations in this subpart do not apply to a pesticide product if it satisfies
all of the following conditions:
(1) The
pesticide product meets one of the following two criteria:
(i) The pesticide product is an antimicrobial
pesticide as defined in FIFRA section 2(mm); or
(ii) The pesticide product:
(A) Is intended to: disinfect, sanitize,
reduce or mitigate growth or development of microbiological organisms; or
protect inanimate objects, industrial processes or systems, surfaces, water, or
other chemical substances from contamination, fouling, or deterioration caused
by bacteria, viruses, fungi, protozoa, algae, or slime; and
(B) In the intended use is subject to a
tolerance under section 408 of the Federal Food, Drug, and Cosmetic Act or a
food additive regulation under section 409 of such Act.
(2) The labeling of the pesticide
product includes directions for use on a site in at least one of the following
antimicrobial product use categories: food handling/storage establishments
premises and equipment; commercial, institutional, and industrial premises and
equipment; residential and public access premises; medical premises and
equipment; human drinking water systems; materials preservatives; industrial
processes and water systems; antifouling coatings; wood preservatives; or
swimming pools.
(3) The pesticide
product is not a hazardous waste as set out in part 261 of this chapter when
the pesticide product is intended to be disposed.
(4) EPA has not specifically determined that
the pesticide product must be subject to the regulations in this subpart to
prevent an unreasonable adverse effect on the environment according to the
provisions of paragraph (e) of this section.
(d)
Which requirements must an
antimicrobial swimming pool product comply
with if it is not exempt from these regulations?
(1) An antimicrobial swimming
pool product that is not exempt by paragraph (a), (b), or (c) of this section
must comply with all of the regulations in this subpart except for the
following
requirements:________________________
|
Requirement
|
Requirement tor registrants who distribute or sell
directly in refillable containers
|
Requirement tor retillers who are not
registrants
|
|
Recordkeeping specific to each instance of
repackaging
|
§165.65(i)(2)
|
§165.70(0(2)
|
|
Container inspection: criteria regarding a serial
number or other identifying code
|
§ 165.65(e)(2)
|
§ 165.70(f)(2)
|
|
Container inspection: criteria regarding one-way valve
or tamper-evident device
|
§ 165.65(e)(3)
|
S 165.70(f)(3)
|
|
Cleaning requirement: criteria regarding one-way valve
or tamper-evident device
|
§165.65(f|(l)
|
§165.70(g)(l)
|
|
Cleaning if the one-way valve or tamper-evident device
is not intact
|
§165.65(g)
|
§165.70(h)
|
(2)
For the purposes of this subpart, an antimicrobial swimming pool product is a
pesticide product that satisfies both of the following conditions:
(i) The pesticide product is intended to:
disinfect, sanitize, reduce or mitigate growth or development of
microbiological organisms; or protect inanimate objects, industrial processes
or systems, surfaces, water, or other chemical substances from contamination,
fouling, or deterioration caused by bacteria, viruses, fungi, protozoa, algae,
or slime.
(ii) The labeling of the
pesticide product includes directions for use on only a site or sites in the
antimicrobial product use category of swimming pools.
(e)
How will EPA determine
if an antimicrobial pesticide product otherwise exempted must be subject to the
regulations
in this subpart to prevent an unreasonable adverse
effect on the environment?
(1) EPA may determine that an antimicrobial
pesticide product otherwise exempted by paragraph (c) of this section must be
subject to the repackaging regulations in this subpart to prevent an
unreasonable adverse effect on the environment if all of the following
conditions exist:
(i) EPA obtains information,
data or other evidence of a problem with the containers of a certain pesticide
product or related group of products.
(ii) The information, data or other evidence
is reliable and factual.
(iii) The
problem causes or could reasonably be expected to cause an unreasonable adverse
effect on the environment.
(iv)
Complying with the container regulations could reasonably be expected to
eliminate the problem.
(2) If EPA determines that an antimicrobial
pesticide product otherwise exempted by paragraph (c) of this section must be
subject to the repackaging regulations in this subpart to prevent an
unreasonable adverse effect on the environment, EPA may require, by rule, that
the product be repackaged in compliance with all or some of the requirements in
this subpart. Alternatively, EPA may notify the applicant or registrant of its
intent to make such a determination. After allowing the applicant or registrant
a reasonable amount of time to reply, EPA may require, by notification and as a
condition of registration, that the product be repackaged in compliance with
all or some of the requirements in this subpart. For the purpose of the
previous sentence, 60 days would be a reasonable amount of time to reply,
although EPA may, in its discretion, provide more time. EPA may deny
registration or initiate cancellation proceedings if the registrant fails to
comply with the repackaging regulations within the time frames established by
EPA in the rule or in its notification.
(f)
What other pesticide products are
subject to the regulations in this subpart? The regulations in this
subpart apply to all pesticide products other than manufacturing use products,
plant-incorporated protectants, and antimicrobial products that are exempt
paragraph (c) of this section. Antimicrobial products covered under paragraph
(d) of this section are subject to the regulations indicated in that
section.
(g)
What does
"pesticide product" or "pesticide" mean in the rest of this sub-part?
In §§165.63(h) through 165.70, the term "pesticide product"
or "pesticide" refers only to a pesticide product or a pesticide that is
subject to the regulations in this subpart as described in paragraphs (a)
through (f) of this section.
(h)
Are there any other exceptions'?
(1) The regulations in this subpart do not
apply to transport vehicles that contain pesticide in pesticide-holding tanks
that are an integral part of the transport vehicle and that are the primary
containment for the pesticide.
(2)
Custom blending is not subject to the regulations in this subpart.
(3) The regulations in this subpart do not
apply to containers that hold pesticides that are gaseous at atmospheric
temperature and pressure.
[71 FR 47422, Aug. 16, 2006, as amended at 73 FR 64227, Oct.
29, 2008]
§
165.65 Registrants who distribute or sell pesticide products in
reflllable containers.
(a)
Must I
comply with the standards in this section? You must comply with the
standards in this section if you are a registrant who distributes or sells
pesticide products in reflllable containers. This means that you conduct all of
the repackaging for a pesticide product and that you do not distribute or sell
the pesticide product to a refiller that is not part of your company for
repackaging into reflllable containers. If you are a registrant that repackages
a product directly into reflllable containers for sale or distribution and you
also sell or distribute other quantities of that product to an independent
re-filler for repackaging, then you must meet the requirements in this section
for those quantities you distribute or sell directly and the requirements in
§165.67 for those quantities that you distribute or sell to an independent
re-filler.
(b)
Am I
responsible for product integrity? Yes, you are responsible for the
pesticide product that you distribute or sell in reflllable containers not
being adulterated or different from the composition described in its
confidential statement of formula that is required under FEFRA section
3.
(c)
What information
must I develop? For each pesticide product distributed or sold in
refillable containers, you must develop both of the following documents in
writing.
(1) You must develop a refilling
residue removal procedure that describes how to remove pesticide residue from a
refillable container (portable or stationary pesticide container) before it is
refilled.
(i) The refilling residue removal
procedure must be adequate to ensure that the composition of the pesticide
product does not differ at the time of its distribution or sale from the
composition described in its confidential statement of
formula that is required under FIFRA section3.
(ii) If the refilling residue removal
procedure requires the use of a solvent other than the diluent used for
applying the pesticide as specified on the labeling under "Directions for Use,"
or if there is no diluent used for application, the refilling residue removal
procedure must describe how to manage any rinsate resulting from the procedure
in accordance with applicable Federal and State regulations.
(2) You must develop a description
of acceptable refillable containers (portable or stationary pesticide
containers) that can be used for distributing or selling that pesticide
product.
(i) An acceptable container is one
that you have determined meets the standards in subpart C of this part and is
compatible with the pesticide formulation intended to be distributed and sold
using the refillable container.
(ii) You must identify the containers by
specifying the container materials of construction that are compatible with the
pesticide formulation and specifying information necessary to confirm
compliance with the refillable container requirements in subpart C of this
part.
(d)
What requirements must my individual establishments follow regarding
repackaging a pesticide product into refill-able containers'? A
refiller at your individual establishment that repackages a pesticide product
into refillable containers for distribution or sale must comply with all of the
following provisions.
(1) The establishment
must be registered with EPA as a producing establishment as required by
§167.20 of this chapter.
(2)
The refiller must not change the pesticide formulation unless the refiller has
a registration for the new formulation.
(3) The refiller must repackage a pesticide
product only into a refillable container that is identified on your description
of acceptable containers for that pesticide product.
(4) The refiller may repackage any quantity
of a pesticide product into a refillable container up to the rated capacity of
the container. In addition there are no general limits on the size of the
refillable containers that the re-filler can use.
(5) The refiller must have all of the
following items at the establishment before repackaging a pesticide product
into any refillable container for distribution or sale:
(i) The pesticide product's label and
labeling.
(ii) The written
refilling residue removal procedure for the pesticide product
(iii) The written description of acceptable
containers for the pesticide product
(6) Before repackaging a pesticide product
into any refillable container for distribution or sale, the refiller must
identify the pesticide product previously contained in the refillable container
to determine whether a residue removal procedure must be conducted in
accordance with paragraph (f) of this section. The refiller may identify the
previous pesticide product by referring to the label or labeling.
(7) The refiller must inspect each refillable
container according to paragraph (e) of this section.
(8) The refiller must clean each refill-able
container according to paragraph (f) or (g) of this section, if required by
either paragraph.
(9) The refiller
must ensure that each refillable container is properly labeled according to
paragraph (h) of this section.
(10)
The establishment must maintain records in accordance with paragraph (i) of
this section.
(11) The
establishment must maintain records as required by part 169 of this
chapter.
(12) The establishment
must report as required by part 167 of this chapter.
(e)
How must my individual
establishments inspect refillable containers'? Before repackaging a
pesticide product into any refillable container, a refiller at your
establishment must visually inspect the exterior and (if possible) the interior
of the container and the exterior of appurtenances. The purpose of the
inspection is to determine whether the container meets the necessary criteria
with respect to continued container integrity, required markings, and openings.
If the condition in paragraph (e) (1) of this section exists, the container
fails the inspection and must not be refilled unless the container is repaired
reconditioned, or remanufactured in compliance with the relevant DOT
requirement. If the condition in paragraph (e)(2) or (e)(3) of this section
exists (or both) the container fails the inspection and must not be refilled
until the container meets the standards specified in sub-part C of this part.
The conditions are:
(1) The integrity of the
container is compromised in at least one of the fol-lowingways:
(i) The container shows signs of rupture or
other damage which reduces its structural integrity.
(ii) The container has visible pitting
significant reduction in material thickness, metal fatigue, damaged threads or
closures, or other significant defects.
(iii) The container has cracks,
warp age, corrosion or any other damage which might
render it unsafe for transportation.
(iv) There is damage to the fittings, valves,
tamper-evident devices or other appurtenances that may cause failure of the
container.
(2) The
container does not bear the markings required by §165.45(a) (b) and (d) or
such markings are not legible.
(3)
The container does not have an intact and functioning one-way valve or
tamper-evident device on each opening other than a vent, if required.
(f)
How must my individual
establishments clean refillable containers? A refiller at your
establishment must clean each refillable container by conducting the pesticide
product's refilling residue removal procedure before repackaging the pesticide
product into the refillable container, unless the conditions in paragraph
(f)(1) of this section and either paragraph (f)(2) or (f)(3) of this section
are satisfied:
(1) If required, each
tamper-evident device and one-way valve is intact
(2) The refillable container is being
refilled with the same pesticide product.
(3) Both of the following conditions are
satisfied:
(i) The container previously held a
pesticide product with a single active mgredient and is being used to repackage
a pesticide product with the same single active ingredient.
(ii) There is no change that would cause the
composition of the product being repackaged to differ from the composition
described in its confidential statement of formula that is required under FIFRA
section 3. Examples of unallowable changes include the active ingredient
concentration increasing or decreasing beyond the limits established by the
confidential statement of formula or a reaction or interaction between the
pesticide product being repackaged and the residue remaining in the
container.
(g)
How must my individual
establishments clean a refillable container that has a broken (non-intact)
tamper-evident device or one-way valve? As required in paragraph (f)
of this section, a refiller at your establishment must clean each refillable
container that has a tamper-evident device or one-way valve that is not intact
by conducting the pesticide product's refilling residue removal procedure
before repackaging the pesticide product into the refillable container. In
addition, other procedures may be necessary to assure that product integrity is
maintained in such cases, (h) How must my individual establishments
label refillable containers? Before distributing or selling a
pesticide product in a refillable container, a refiller at your establishment
must ensure that the label of the pesticide product is securely attached to the
refillable container such that the label can reasonably be expected to remain
affixed during the foreseeable conditions and period of use. The label and
labeling must comply in all respects with the requirements of part 156 of this
chapter. In particular, the refiller at your establishment must ensure that the
net contents statement and EPA establishment number appear on the
label.
(i)
What
recordkeeping must my individual establishments do? Each of your
individual establishments that repackages a pesticide product into refillable
containers for distribution or sale must maintain all of the records listed in
this section in addition to the applicable records identified in parts 167 and
169 of this chapter. The establishment must furnish these records for
inspection and copying upon request by an employee of EPA or any entity
designated by EPA, such as a State, another political subdivision or a Tribe.
(1) For each pesticide product distributed or
sold in refillable containers, both of the following records must be maintained
for the current operating year and for 3 years after that:
(i) The written refilling residue removal
procedure for the pesticide product
(ii) The written description of acceptable
containers for the pesticide product
(2) Each time a refiller at your
establishment repackages a pesticide product into a refillable container and
distributes or sells the product, the following records must be generated and
maintained for at least 3 years after the date of repackaging:
(i) The EPA registration number of the
pesticide product distributed or sold in the refillable container.
(ii) The date of the repackaging.
(iii) The serial number or other identifying
code of the refill-able container.
[71 FR 47422, Aug. 16, 2006, as amended at 73 FR 64227, Oct.
29,20081
§165.67 Registrants who distribute or
sell pesticide products to refillers for repackaging.
(a)
Must I comply with the standards
in this section? You must comply with the standards in this section if
you are a registrant who distributes or sells pesticide products to a refiller
that is not part or your company for repackaging into refillable
containers.
(b)
Under what
conditions can I allow a refiller to repackage my pesticide product into
refillable containers? You may allow a refiller to repackage your
pesticide product into refillable containers and to distribute or sell such
repackaged product under your existing registration if all of the following
conditions are satisfied:
(1) The repackaging
results in no change to the pesticide formulation.
(2) One of the following conditions regarding
a registered refilling establishment is satisfied:
(i) The pesticide product is repackaged at a
refilling establishment registered with EPA as required by § 167.20 of
this chapter.
(ii) The pesticide
product is repackaged by a refilling establishment registered with EPA as
required by § 167.20 of this chapter at the site of a user who intends to
use or apply the product.
(3) You have entered into a written contract
with the refiller to repackage the pesticide product and to use the label of
your pesticide product.
(4) The
pesticide product is repackaged only mto refillable containers that meet the
standards of subpart C of this part.
(5) The pesticide product is labeled with the
product's label with no changes except the addition of an appropriate net
contents statement and the refiller's EPA establishment number.
(c)
What violations are
applicable to illegal repackaging? Repackaging a pesticide product for
distribution or sale without either obtaining a registration or meeting all of
the conditions in paragraph (b) of this section is a violation of section 12 of
the Act. Both you and the refiller that is repackaging your pesticide product
under written contract with you may be liable for violations pertaining to the
repackaged product.
(d)
When must I provide the written contract to the refiller? If
you allow a re-filler to repackage your product as specified in paragraph
(b)(3) of this section you must provide the written contract to the refiller
before you distribute or sell the pesticide product to the refiller.
(e)
Am I responsible for product
integrity! Yes, for a product that you distribute or sell to a
refiller that is not part of your company for repackaging into refillable
containers, you are responsible for the pesticide product not being adulterated
or different from the composition described in its confidential
statement of formula that is required under FIFRA
section 3.
(f)
What
information must I develop? For each pesticide product distributed or
sold in refillable containers, you must develop both of the following documents
in writing.
(1) You must develop a refilling
residue removal procedure that describes how to remove pesticide residue from a
refillable contamer (portable or stationary pesticide container) before it is
refilled.
(i) The refilling residue removal
procedure must be adequate to ensure that the composition of the pesticide
product does not differ at the time of its distribution or sale from the
composition described in its confidential statement of formula that is required
under FIFRA section 3.
(ii) If the
refilling residue removal procedure requires the use of a solvent other than
the diluent used for applying the pesticide as specified on the labeling under
"Directions for Use," or if there is no diluent used for application, the
refilling residue removal procedure must describe how to manage any rinsate
resulting from the procedure in accordance with applicable Federal and State
regulations.
(2) You
must develop a description of acceptable refillable containers (portable or
stationary pesticide containers) that can be used for distributing or selling
that pesticide product.
(i) An acceptable
container is one that you have determined meets the standards in subpart C of
this part and is compatible with the pesticide formulation intended to be
distributed and sold using the refillable container.
(ii) You must identify the containers by
specifying the container materials of construction that are compatible with the
pesticide formulation and specifying information necessary to confirm
compliance with the refillable container requirements in subpart C of this
part.
(g)
When must I provide the information to the refiller? You must
provide the refiller with all of the following information and documentation
before or at the time of distribution or sale of your pesticide product to the
refiller:
(1) Your written refilling residue
removal procedure for the pesticide product
(2) Your written description of acceptable
containers for the pesticide product
(3) The pesticide product's label and
labeling
(h)
What recordkeeping must I do? You must maintain all of the
records listed in this section for the current operating year and for 3 years
after that. You must furnish these records for inspection and copying upon
request by an employee of EPA or any entity designated by EPA such as a State,
another political subdivision or a Tribe:
(1)
Each written contract entered into with a refiller for repackaging your
pesticide product into refillable containers.
(2) Your written refilling residue removal
procedure for the pesticide product
(3) Your written description of acceptable
containers for the pesticide product
\7\ FR 47422, Aug. 16, 2006, as amended at 73
FR 64227, Oct. 29,2008]
§165.70 Reflllers who are not
registrants.
(a)
Must 1 comply with
the standards in this section"? You must comply with the standards in
this section if you are a refiller of a pesticide product and you are not the
registrant of the pesticide product.
(b)
Under what conditions can I
repackage a, registrant's pesticide product into refillable containers'? A
registrant may allow you to repackage the registrant s pesticide
product into refillable containers and to distribute or sell such repackaged
product under the registrant's existing registration if all of the following
conditions are satisfied:
(1) The repackaging
results in no change to the pesticide formulation.
(2) One of the following conditions regarding
a registered refilling establishment is satisfied:
(i) The pesticide product is repackaged at a
refilling establishment registered with EPA as required by § 167.20 of
this chapter.
(ii) The pesticide
product is repackaged by a refilling establishment registered with EPA as
required by § 167.20 of this chapter at the site of a user who intends to
use or apply the product.
(3) The registrant has entered into a written
contract with you to repackage the pesticide product and to use the label of
the registrant's pesticide product
(4) The pesticide product is repackaged only
into refillable containers that meet the standards of subpart C of this
part.
(5) The pesticide product is
labeled with the product's label with no changes except the addition of an
appropriate net contents statement and the refillers EPA establishment
number.
(c)
What
violations are applicable to illegal repackaging? Repackaging a
pesticide product for distribution or sale without either obtaining a
registration or meeting all of the conditions in paragraph (b) of this section
is a violation of section 12 of the Act. Both you and the pesticide product's
registrant may be liable for violations pertaining to the repackaged
product.
(d)
Am I
responsible for product integrity? Yes, you are responsible for the
pesticide product that you distribute or sell in refillable
containers not being adulterated or different from the composition described in
its confidential statement of formula that is required
under FIFRA section 3.
(e)
What requirements must I follow regarding repackaging a pesticide
product into renllable containers? You must comply with all of the
following provisions.
(1) Your establishment
must be registered with EPA as a producing establishment as required by
§167.20of this chapter.
(2)
You must not change the pesticide formulation unless you have a registration
for the new formulation.
(3) You
must repackage a pesticide product only into a refillable container that is
identified on the description of acceptable containers for that pesticide
product provided by the registrant.
(4) You may repackage any quantity of a
pesticide product into a refillable container up to the rated capacity of the
container. In addition, there are no general limits on the size of the
refillable containers that you can use.
(5) You must have all of the following items
at your establishment before repackaging a pesticide product into any
refillable container for distribution or sale:
(i) The written contract referred to in
paragraph (b) (3) of this section from the pesticide products
registrant.
(ii) The pesticide
product's label and labeling
(iii)
The registrant's written refilling residue removal procedure for the pesticide
product.
(iv) The registrant's
written description of acceptable containers for the pesticide
product.
(6) Before
repackaging a pesticide product into any refillable container for distribution
or sale, you must identify the pesticide product previously contained in the
refillable container to determine whether a residue removal procedure must be
conducted in accordance with paragraph (g) of this section. You may identify
the previous pesticide product by referring to the label or labeling.
(7) You must inspect each refillable
container according to paragraph (f) of this section.
(8) You must clean each refillable container
according to paragraph (g) or (h) of this section, if required by either
paragraph.
(91 You must ensure that each refillable container is properly
labeled according to paragraph (i) of this section.
(10) You must maintain records in accordance
with paragraph (j) of this section.
(11) You must maintain records as required by
part 169 of this chapter.
(12) You
must report as required by part 167 of this chapter.
(13) The stationary pesticide containers at
your establishment must meet the standards in §
165.45(f).
(14) You may be required to comply with the
containment standards in sub-part E of this part.
(f)
How must 1 inspect refillable
containers? Before repackaging a pesticide product into any refillable
contamer, you must visually inspect the exterior and (if possible) the interior
of the container and the exterior of appurtenances. The purpose of the
inspection is to determine whether the container meets the necessary criteria
with respect to continued container integrity, required markings, and openings,
rf the condition in paragraph (f) (IT of this section exists, the container
fails the inspection and must not be refilled unless the container is repaired,
reconditioned, or remanufactured in compliance with the relevant DOT
requirement. If the condition in paragraph (f)(2) or (f)(3) of this section
exists (or both), the container fails the inspection and must not be refilled
until the container meets the standards specified in subpart C of this part.
The conditions are:
(1) The integrity of the
container is compromised m at least one of the fol-lowingways:
(i) The container shows signs of rupture or
other damage which reduces its structural integrity.
(ii) The container has visible pitting
significant reduction in material thickness, metal fatigue, damaged threads or
closures, or other significant defects.
(iii) The container has cracks, warpage,
corrosion or any other damage which might render it unsafe for
transportation,
(iv) There is
damage to the fittings, valves, tamper-evident devices or other appurtenances
that may cause failure of the container.
(2) The container does not bear the markings
required by §
165.45(a), (b)
and (d) or such markings are not legible.
(3) The container does not have an intact and
functioning one-way valve or tamper-evident device on each opening other than a
vent, if required.
(g)
How must I clean refillable containers ? You must clean each
refillable container by conducting the pesticide product's refilling residue
removal procedure before repackaging the pesticide product into the refillable
container, unless the conditions in paragraph (g)(1) of this section and either
paragraph (g)(2) or (g)(3) of this section are satisfied:
(1) If required, each tamper-evident device
and one-way valve is intact.
(2)
The refillable container is being refilled with the same pesticide
product
(3) Both of the following
conditions are satisfied.
(i) The container
previously held a pesticide product with a single active ingredient and is
being used to repackage a pesticide product with the same single active
ingredient.
(ii) There is no change
that would cause the composition of the product being repackaged to differ from
the composition described in its confidential statement of formula that is
required under FIFRA section 3. Examples of unallowable changes include the
active ingredient concentration increasing or decreasing beyond the limits
established by the confidential statement of formula or a reaction or
interaction between the pesticide product being repackaged and the residue
remaining m the container.
(h)
How must I clean a refillable
container that has a broken (non-intact) tamper-evident device or one-way
valve? As required in paragraph (g) of this section, you must clean
each refillable container that has a tamper-evident device or one-way valve
that is not intact by conducting the pesticide product's refilling residue
removal procedure before repackaging the pesticide product into the refillable
container. In addition, other procedures may be necessary to assure that
product integrity is maintained in such cases.
(i)
How must I label refillable
containers? Before distributing or selling a pesticide product in a
re: Bllable container, you must ensure that the label of the pesticide product
is securely attached to the refillable container such that the label can
reasonably be expected to remain affixed during the foreseeable conditions and
period of use. The label and labeling must comply in all respects with the
requirements of part 156 of this chapter. In particular, you must ensure that
the net contents statement and EPA establishment number appear on the
label.
(j)
What
recordkeeping must I do? You must maintain all of the records listed
in this section in addition to the applicable records identified in parts 167
and 169 of this chapter. You must furnish these records for inspection and
copying upon request by an employee of EPA or any entity designated by EPA,
such as a State, another political subdivision or a Tribe.
(1) For each pesticide product distributed or
sold in refillable containers, all of the following records must be maintained
for the current operating year and for 3 years after that:
(i) The written contract from the pesticide
product's registrant for the pesticide product.
(ii) The written refilling residue removal
procedure for the pesticide product.
(iii) The written description of acceptable
containers for the pesticide product
(2) Bach time you repackage a pesticide
product into a refillable container and distribute or sell the product the
following records must be generated and maintained for at least 3 years after
the date of repackaging:
(i) The EPA
registration number of the pesticide product distributed or sold in the
refillable container.
(ii) The date
of the repackaging.
(iii) The
serial number of the refillable container.
§§ 165.71-165.79 [Reserved]
Subpart E-Standards for Pesticide Containment Structures
§
165.80 General provisions.
(a)
What is the purpose of the regulations in this subpart? The
purpose of the containment regulations in this sub-part is to protect human
health and the environment from exposure to agricultural pesticides which may
spill or leak from stationary pesticide containers. This protection is achieved
by the construction of secondary containment units or pads at certain
facilities handling agricultural pesticides. These regulations will also reduce
waste generation associated with:
(1) Storage
and handling of large quantities of pesticide products.
(2) Pesticide dispensing and
container-refilling operations.
(b)
Do I have to comply with the
regulations in this subpart? You must comply with the regulations in
this subpart if you are an owner or operator of one of the following businesses
and if you also have a stationary pesticide container or a pesticide dispensing
(including container refilling) area:
(1)
Refilling establishments who repackage agricultural pesticides and whose
principal business is retail sale (i.e., more that 50% of total annual revenue
comes from retail operations).
(2)
Custom blenders of agricultural pesticides.
(3) Businesses which apply an agricultural
pesticide for compensation (other than trading of personal services between
agricultural producers).
(c)
When do I have to comply"?
You must comply with all applicable containment regulations for new
and existing structures as of August 17,2009.
[71 FR 42422, Aug, 16, 2006, as amended at 73 FR 64227, Oct.
29,2008]
§
165.81 Scope of stationary pesticide containers included.
(a)
What is a stationary pesticide
container? A stationary pesticide container is a refillable container
that is fixed at a single facility or establishment, or, if not fixed, remams
at the facility or establishment for at least 30 consecutive days, and that
hold pesticide during the entire time.
(b)
What stationary pesticide
containers are subject to the regulations in this sub-part? Statiomry
pesticide containers designed to hold undivided quantities of
agricultural pesticides equal to or greater than 500 gallons (1,890 liters) of
liquid pesticide or equal to or greater than 4,000 pounds (1,818 kilograms) of
dry pesticide are subject to the regulations in this subpart and must have a
secondary containment unit that complies with the provisions of this sub-part
unless any of the following conditions exists:
(1) The container is empty, that is, all
pesticide that can be removed by methods such as draining, pumping or
aspirating has been removed (whether or not the container has been rinsed or
washed),
(2) The container holds
only pesticide rinsates or wash waters, and is labeled accordingly.
(3) The container holds only pesticides which
would be gaseous when released at atmospheric temperature and
pressure.
(4) The container is
dedicated to non-pesticide use, and is labeled accordingly.
§165.82 Scope of
pesticide dispensing areas included.
(a)
What pesticide dispensing areas are subject to the regulations in this
subpart? A pesticide dispensing area is subject to the containment
regulations in this subpart and must have a containment pad that complies with
the requirements of this subpart if any of the fol-lowingactivities occur:
(1) Refillable containers of agricultural
pesticide are emptied, cleaned or rinsed.
(2) Agricultural pesticides are dispensed
from a stationary pesticide container designed to hold undivided quantities of
agricultural pesticides equal to or greater than 500 gallons (1,890 liters) of
liquid pesticide or equal to or greater than 4,000 pounds (1,818 kilograms) of
dry pesticide for any purpose, including refilling or emptying for cleaning.
This applies when pesticide is dispensed from the container into any vessel,
including, but not limited to:
(i) Refillable
containers;
(ii) Service
containers;
(iii) Transport
vehicles;
(iv) Application
equipment.
(3)
Agricultural pesticides are dispensed from a transport vehicle for purposes of
filling a refillable container.
(4)
Agricultural pesticides are dispensed from any other container for the purpose
of refilling a refillable container for sale or distribution. Containment
requirements do not apply if the agricultural pesticide is dispensed from such
a container for use application or purposes other than refilling for sale or
distribution.
(b)
What pesticide dispensing areas are exempt from the regulations in this
sub-part? A pesticide dispensing area is exempt from the regulations
in this sub-part if any of the following conditions exist:
(1) The only pesticides in the dispensing
area would be gaseous when released at atmospheric temperature and
pressure.
(2) The only pesticide
containers refilled or emptied within the dispensing area are stationary
pesticide con-
tainers which are already protected by a secondary containment
unit that complies with the provisions of this subpart.
(3) The pesticide dispensing area is used
solely for dispensing pesticide from a rail car which does not remain at a
facility long enough to meet the definition of a stationary pesticide
container; that is, 30 days.
§ 165.83 Definition of new and existing
structures.
(a)
What is a new
containment structure? A new containment structure is one whose
installation began after November 16, 2006. Installation is considered to have
begun if:
(1) You, as the owner or operator
have obtained all Federal, State, and local approvals or permits necessary to
begin physical construction of the containment structure; AND
(2) You have either begun a continuous
on-site physical construction or installation program OR you have entered into
contractual obligations. The contract must be such that it cannot be canceled
or modified without substantial loss, and must be for the physical construction
or installation of the containment structure within a specific and reasonable
time frame.
(b)
What is an existing containment structure? An existing
containment structure is defined as one whose installation began on or before
November 16,2006.
§
165.85 Design and capacity requirements for new structures.
(a)
For all new containment
structures, what construction materials must I use? These are the
material specifications for a new containment structure:
(1) The containment structure must be
constructed of steel, reinforced concrete or other rigid material capable of
withstanding the full hydrostatic head, load arid impact of any pesticides,
precipitation, other substances, equipment and appurtenances placed within the
structure. The structure must be liquid-tight with cracks, seams and joints
appropriately sealed.
(2) The
structure must not be constructed of natural earthen material, unfired clay, or
asphalt.
(3) The containment
structure must be made of materials compatible with the pesticides stored. In
this case, compatible means able to withstand anticipated exposure to stored or
transferred substances and still provide secondary containment of those same or
other substances within the containment area.
(b)
For all new containment
structures what are the general design requirements? These are the
general design requirements for new containment structures:
(1) You must protect appurtenances and
pesticide containers against damage from operating personnel and moving
equipment. Means of protection include, but are not limited to, supports to
prevent sagging flexible connections, the use of guard rails, barriers, and
protective cages.
(2)
Appurtenances, discharge outlets or gravity drains must not be configured
through the base or wall of the containment structure, except for direct
interconnections between adjacent containment structures which meet the
requirements of this subpart. Appurtenances must be configured in such a way
that spills or leaks are easy to see.
(3) The containment structure must be
constructed with sufficient freeboard to contain precipitation and prevent
water and other liquids from seeping into or flowing onto it from adjacent land
or structures.
(4) Multiple
stationary pesticide containers may be protected within a single secondary
containment unit.
(c)
For new stationary liquid pesticide containment and new containment
pads in pesticide dispensing areas what are the capacity requirements?
These are the capacity requirements:
(1) New secondary containment units for
stationary liquid pesticide containers, if protected from precipitation, must
have a capacity of at least 100 percent of the volume of the largest stationary
pesticide container plus the volume displaced by other containers and
appurtenances within the unit.
(2)
New secondary containment units for stationary liquid pesticide containers, if
exposed to or unprotected from precipitation, must have a capacity of at least
110 percent of the volume of the largest stationary pesticide container plus
the volume displaced by other containers and appurtenances within the
unit.
(3) New containment pads in
pesticide dispensing areas which have a pesticide container or
pesticide-holding equipment with a volume of 750 gallons or greater must have a
holding capacity of at least 750 gallons.
(4) New containment pads in pesticide
dispensing areas which do not have a pesticide container or pesticide-holding
equipment with a volume of at least 750 gallons must have a holding capacity of
at least 100 percent of the volume of the largest pesticide container or
pesticide-holding equipment used on the pad.
(d)
For new secondary containment
units for stationary containers ofjiquid pesticides, what are the specific
design requirements? You must either anchor or elevate each stationary
liquid pesticide container protected by a secondary containment unit to prevent
flotation in the event that the secondary containment unit fills with
liquid.
(e)
For new
containment pads in pesticide dispensing areas, what are the specific design
requirements? Each new containment pad in a pesticide dispensing area
must:
(1) Be designed and constructed to
intercept leaks and spills of pesticides which may occur in the pesticide
dispensing area.
(2) Have enough
surface area to extend completely beneath any container on it with the
exception of transport vehicles dispensing pesticide for sale or distribution
to a stationary pesticide container. For such vehicles, the surface area of the
containment pad must accommodate at least the portion of the vehicle where the
delivery hose or device couples to the vehicle. This exception does not apply
to transport vehicles that are used for prolonged storage or repeated on-site
dispensing of pesticides.
(3)
Allow, in conjunction with its sump, for removal and recovery of spilled,
leaked, or discharged material and rainfall, such as by a manually activated
pump. Automatically-activated pumps which lack automatic overflow cutoff
switches for the receiving container are prohibited.
(4) Have its surface sloped toward an area
where liquids can be collected for removal, such as a liquid-tight sump or a
depression, in the case of a single-pour concrete pad.
(f)
For new secondary containment
units for stationary containers of dry pesticides, what are the specific design
requirements? These are the specific design requirements for new
secondary containment units for stationary containers of dry pesticides
(1) The stationary containers of dry
pesticides containers within the containment unit must be protected from wind
and precipitation.
(2) Stationary
containers of dry pesticides must be placed on pallets or a raised concrete
platform to prevent the accumulation of water in or under the
pesticide.
(3) The storage area for
stationary containers of dry pesticides must include a floor that extends
completely beneath the pallets or raised concrete platforms on which the
stationary containers of dry pesticides must be stored.
(4) The storage area for stationary
containers of dry pesticides must be enclosed by a curb a minimum of 6 inches
high that extends at least 2 feet beyond the perimeter of the container.
[71 FR 42422, Aug, 16, 2006, as amended at 73 FR 64227, Oct.
29, 2008]
§165.87 Design and capacity requirements
for existing structures.
(a)
For all
existing containment structures, what construction materials must I use?
These are the material specifications for an existing containment
structure:
(1) The containment structure must
be constructed of steel, reinforced concrete or other rigid material capable of
withstanding the full hydrostatic head, load and impact of any pesticides,
precipitation, other substances, equipment and appurtenances placed within the
structure. The structure must be liquid-tight with cracks, seams and joints
appropnately sealed.
(2) The
structure must not be constructed of natural earthen material, unfired clay, or
asphalt.
(3) The containment
structure must be made of materials compatible with the pesticides stored. In
this case compatible means able to withstand anticipated exposure to stored or
transferred substances and still provide secondary containment of those same or
other substances within the containment area.
(b)
For all existing containment
struc
tures, what are the general design re-
quirements? These are the general design
requirements for existing containment structures:
(1) You must protect appurtenances and
pesticide containers against damage from operating personnel and moving
equipment. Means of protection include, but are not limited to, supports to
prevent sagging flexible connections, the use of guard rails, barriers, and
protective cages.
(2) You must seal
all appurtenances, discharge outlets and gravity drains through the base or
wall of the containment structure except for direct interconnections between
adjacent containment structures which meet the requirements of this
subpart
(3) The containment
structure must be constructed with sufficient freeboard to contain
precipitation and prevent water and other liquids from seeping into or flowing
onto it from adjacent land or structures.
(4) Multiple stationary pesticide containers
may be protected within a single secondary containment unit.
(c)
For existing secondary
containment units for stationary containers of liquid pesticides and existing
containment pads in pesticide dispensing areas what are the capacity
requirements? These are the capacity requirements:
(1) Existing secondary containment units for
stationary containers of liquid pesticides must have a capacity of at least 100
percent of the volume of the largest stationary pesticide container plus the
volume displaced by other containers and appurtenances within the
unit.
(2) Existing containment pads
in pesticide dispensing areas which have a pesticide container or
pesticide-holding equipment with a volume of 750 gallons or greater must have a
holding capacity of at least 750 gallons.
(3) Existing containment pads in pesticide
dispensing areas which do not have a pesticide container or pesticide-holding
equipment with a volume of at least 750 gallons must have a holding capacity of
at least 100 percent of the volume of the largest pesticide container or
pesticide-holding equipment used on the pad.
(d)
For existing secondary
containment units for stationary containers of liquid pesticides, what are the
specific design requirements? You must either anchor or elevate each
stationary container of liquid pesticides container protected by a secondary
containment unit to prevent flotation in the event that the secondary
containment unit fills with liquid.
(e)
For existing containment pads in
pesticide dispensing areas what are the specific design requirements?
Each existing containment pad in a pesticide dispensing area must:
(1) Be designed and constructed to intercept
leaks and spills of pesticides which may occur in the pesticide dispensing
area.
(2) Have enough surface area
to extend completely beneath any container on it with the exception of
transport vehicles dispensing pesticide for sale or distribution to a
stationary pesticide container. For such vehicles, the surface area of the
containment pad must accommodate at least the portion of the vehicle where the
delivery hose or device couples to the vehicle. This exception does not apply
to transport vehicles that are used for prolonged storage or repeated on-site
dispensing of pesticides.
(3)
Allow, in conjunction with its sump, for removal and recovery of spilled,
leaked, or discharged material and rainfall, such as by a manually activated
pump. Automatically-activated pumps which lack automatic overflow cutoff
switches for the receiving container are prohibited.
(f)
For existing secondary
containment units for stationary containers of dry pesticides what are the
specific design requirements? These are the specific design
requirements for existing secondary containment units for stationary containers
of dry pesticides:
(1) The stationary dry
pesticide containers within the containment unit must be protected from wind
and precipitation.
(2) Stationary
dry pesticide containers must be placed on pallets or a raised concrete
platform to prevent the accumulation of water in or under the
pesticide.
(3) The storage area for
stationary containers of dry pesticides must include a floor that extends
completely beneath the pallets or raised concrete platforms on which the
stationary containers of dry pesticides must be stored.
(4) The storage area for stationary
containers of dry pesticides must be enclosed by a curb a minimum of 6 inches
high that extends at least 2 feet beyond the perimeter of the container.
[71 FR 42422, Aug, 16, 2006, as amended at 73 FR 64227, Oct.
29, 2008]
§
165.90 Operational, inspection and maintenance requirements for
all new and existing containment structures.
(a)
What are the operating procedures
required for all new and existing containment structures? As the owner
or oper-
ator of a new or existing pesticide containment structure, you
must:
(1) Manage the structure in a
manner that prevents pesticides or materials containing pesticides from
escaping from the containment structure (including, but not limited to,
pesticide residues washed off the containment structure by rainfall or cleaning
liquids used within the structure.)
(2) Ensure that pesticide spills and leaks on
or in any containment structure are collected and recovered in a manner that
ensures protection of human health and the environment (including surface water
and ground water) and maximum practicable recovery of the pesticide spilled or
leaked. Cleanup must occur no later than the end of the day on which pesticides
have been spilled or leaked -except in circumstances where a reasonable delay
would significantly reduce the likelihood or severity of adverse effects to the
human health or the environment.
(3) Ensure that all materials resulting from
spills and leaks and any materials containing pesticide residue are managed
according to label instructions and applicable Federal, State and local laws
and regulations.
(4) Ensure that
transfers of pesticides between containers or between containers and transport
vehicles are attended at all times.
(5) Ensure that each lockable valve on a
stationary pesticide container, if it is required by §
165.45(f) is
closed and locked whenever the facility is unattended
(b)
What are the inspection and
maintenance requirements for all new and existing containment structures?
As owner or operator of a new or existing pesticide containment
structure, you must:
(1) Inspect each
stationary pesticide container and its appurtenances and each containment
structure at least monthly during periods when pesticides are being stored or
dispensed on the containment structure. Your inspection must look for visible
signs of wetting, discoloration, blistering, bulging, corrosion, cracks or
other signs of damage or leakage.
(2) Initiate repairs to any areas showing
visible signs of damage and seal any cracks and gaps in the containment
structure or appurtenances with material compatible with the pesticide being
stored or dispensed no later than the end of the day on which the damage is
notices and complete repairs within a time frame that is reasonable, taking
into account factors such as the weather, and the availability of clean up
materials, trained staff, and equipment.
(3) Not store any pesticide on a containment
structure if the structure fails to meet the requirements of this subpart until
suitable repairs have been made.
[71 FR 42422. Aug, 16,2006, as amended at 73 FR 64227, Oct.
29,2008]
§
165.92 What if I need both a containment pad and a secondary
containment unit?
You may combine containment pads and secondary containment
units as an integrated system provided the requirements set out in this subpart
for containment pads and secondary containment units in §§
165.85(a) and
(b),
165.87(a) and
(b) and'§
165.90, and as applicable, §
8165.85 (cT-(f) and 165.87(c)-(f)
are satisfied separately.
§
165.95 What recordkeeping do I have to do as a facility owner or
operator?
As a facility owner or operator subject to the requirements of
this subpart, you must maintain the following records, and you must furnish
these records for inspection and copying upon request by an employee of EPA or
any entity designated by EPA, such as a State, another political subdivision or
a Tribe:
(a) Records of inspection and
maintenance for each containment structure and for each stationary pesticide
container and its appurtenances must be kept for 3 years and must include the
following information:
(1) Name of the person
conducting the inspection or maintenance;
(2) Date the inspection or maintenance was
conducted;
(3) Conditions
noted;
(4) Specific maintenance
performed.
(b) Records
for any non-stationary pesticide container designed to hold undivided
quantities of agricultural pesticides equal to or greater than 500 gallons
(1,890 liters) of liquid pesticide or equal to or greater than 4,000 pounds
(1,818 kilograms) of dry pesticide that holds pesticide but is not protected by
a secondary containment unit meeting these regulations must be kept for 3
years. Records on these non-stationary pesticide containers must include the
time period that the container remains at the same location.
(c) Records of the construction date of the
containment structure must be kept for as long as the pesticide containment
structure is in use, and for 3 years afterwards.
§165.97 States with existing containment
programs.
(a)
What options are
available to States that already have containment regulations? States
that have promulgated containment regulations effective prior to August 16,
2006, and which also have primary enforcement responsibility and/or
certification programs, have the option of continuing to implement their own
programs in lieu of these Federal regulations,
(b)
How may a State request authority
to continue implementing its State containment regulations? A State
with pesticide containment regulations may request the authority to continue
implementing State containment regulations by August 16, 2007 in the following
manner:
(1) The State must submit a letter and
any supporting documentation to EPA. Supporting documentation must demonstrate
that the States program is providing environmental protection equivalent to or
more protective than that expected to be provided by the Federal regulations in
this subpart.
(2) The State must
identify, any significant changes to State regulations which would be necessary
in order to provide environmental protection equivalent to the EPA regulations,
and develop an estimated timetable to effect these changes. The letter must be
signed by the designated State Lead Agency.
(c)
How will EPA notify the State if
its request is granted? EPA s Office of Pesticide Programs will review
the State's correspondence and determine whether the State program is adequate
to provide environmental protection equivalent to or more protective than these
Federal regulations for new and existing containment structures. EPA's Office
of Pesticide Programs will inform the State of its determination through a
letter authorizing or declining to authorize the State to continue implementing
its containment regulations and will detail any reasons for declining
authorization.
(d)
How must
a State inform EPA of revisions to its containment regulations? Any
state that has received authorization to continue implementing its state
containment regulations must inform EPA by letter signed by 1he designated
State Lead Agency within 6 months of any revision to the State's containment
regulations. EPA will inform the state by letter if it determines that the
State's containment regulations are no longer adequate based on 1he revisions.
The State's containment regulations will remain in effect, unless and until EPA
sends the state a letter making this determination.
