Department of Pesticide Regulation

UPDATE: ALUMINUM AND MAGNESIUM PHOSPHIDE RODENTICIDES/NEW APPROVED LABELING AMENDMENTS AND QUESTIONS AND ANSWERS

In April 2010, the U.S. Environmental Protection Agency (U.S. EPA) announced expanded use restrictions for rodenticide uses of aluminum and magnesium phosphide products in response to two deaths in Utah. U.S. EPA directed all registrants to amend their product labeling.

The Products

To date, only two registrants have revised their labeling in California. The following aluminum phosphide rodenticide products include the expanded use restrictions and are approved and now registered in California:

• D&D Holdings has 4 aluminum phosphide products registered in California:
  1. Fumitoxin® Tablets, 72959-1-ZA
  2. Fumitoxin® Pellets, 72959-2-ZA
  3. Degesch Phostoxin® Tablets, 72959-4-ZB
  4. Degesch Phostoxin® Pellets, 72959-5-AA

• United Phosphorus Inc. has 3 aluminum phosphide products registered in California:
  1. Weevil-cide® Tablets, 70506-13-AA
  2. Weevil-cide® Pellets, 70506-14-AA
  3. Weevil-cide® Gas Bags, 70506-15-AA

The following product registrations were inactivated December 2010:

• Pestcon Systems, Inc. has 2 aluminum phosphide products with inactivated registrations in California:
  1. Fumitoxin® Tablets, 72959-1-AA-5857
  2. Fumitoxin® Pellets, 72959-2-AA-5857

The Department of Pesticide Regulation (DPR) anticipates that the remaining revised aluminum phosphide rodenticide product labels will be submitted soon.

The only currently registered magnesium phosphide product for burrowing rodent control in California is United Phosphorus Inc - Magnaphos® Gas Bags, 7056-17-AA. However, revised labeling has not yet been submitted to DPR. The registrant informed DPR that when they determine that their magnesium phosphide will be distributed in the U.S., and prior to any potential sales in California, the updated label will be submitted to DPR for approval.

Issuing Restricted Materials Permits

Aluminum and magnesium phosphide products have been restricted in California since 2005. DPR does not have any recommended permit conditions.

However, prior to issuing permits, please note the new revised aluminum and magnesium phosphide product labeling changes. Registrants were directed by U.S. EPA to include the following use restrictions on their labels:

• Use is strictly prohibited around all residential areas, including single and multi-family residential properties, nursing homes, schools (except athletic fields, where use may continue), day care facilities, and hospitals.
• The products must only be used outdoors for control of burrowing pests, and are for use only on agricultural areas, orchards, non-crop areas (such as pasture and rangeland), golf courses, athletic fields, parks and recreational areas, cemeteries, airports, rights-of-way, earthen dams, and other non-residential institutional or industrial sites.
• Products must not be applied in a burrow system that is within 100 feet of a building that is or may be occupied by people or domestic animals. This buffer zone for treatment around non-residential buildings that could be occupied by people or animals has been increased from 15 feet to 100 feet.
• When this product is used in athletic fields or parks, the applicator must post a sign at entrances to the treated site containing the signal word DANGER/PELIGRO, skull and crossbones, the words: DO NOT ENTER/NO ENTRE, FIELD NOT FOR USE, the name and EPA registration number of the fumigant, and a 24- hour emergency response number. Signs may be removed 2 days after the final treatment.
• When this product is used out-of-doors in a site frequented by people, other than an athletic field or park, the applicator shall post a sign at the application site containing the signal word DANGER/PELIGRO, skull and crossbones, the name and EPA registration number of the fumigant, and a 24-hour emergency response number. Signs may be removed 2 days after the final treatment.
• Fumigant Management Plans must be written before all applications of phosphine products, including all burrowing pest fumigations. A Fumigant Management Plan is a written description of the steps designed to plan for a safe, legal and effective fumigation. The certified applicator and owner of the property to be fumigated must characterize the area to be treated and include all safety requirements in the plan before application.

Background on U.S. EPA-Directed Label Changes

Questions and Answers

The revised aluminum phosphide product labeling has given rise to several questions. The following answers pertain to the new aluminum phosphide labeling and will also apply to magnesium phosphide products if they are distributed in the future with revised labeling:

Question 1:
Will there be an issue (e.g., old and revised labeling with the same EPA registration number) of dealing with older product labeling without the expanded burrowing rodent requirements that may still be in the channels of trade?

Answer:
Some older product will remain in the channels of trade because U.S. EPA did not require registrants to stop distribution and sale of existing stocks. Labeling on the container in use will determine applicable restrictions.

Question 2:
What use sites are allowed by the revised aluminum phosphide product labeling?

Answer:
The revised aluminum phosphide product labeling under the Directions for Use for "Burrowing Pest Control" allows use on the list of use sites found in the following paragraph that states:

"This product must be used out-of-doors only for control of burrowing pests and for use ONLY on agricultural areas, orchards, non-crop areas (such as pasture and rangeland), golf courses, athletic fields, airports, cemeteries, rights-of-ways, earthen dams, parks and recreational areas and other non-residential institutional sites."

Question 3:
The aluminum phosphide product labeling states: "The use of this product is strictly prohibited on single and multi-family residential properties and nursing homes, schools (except athletic fields) and hospitals." Is there a definition of residential property?

Answer:
The California Code of Regulation section 6000 - defines home use as pertaining to a household and its immediate environment. This definition includes household, home, garden, and residential use (sites) situations. (Reference: DPR compendium, Volume 8, Section 1.1).

Additionally, the federal definition of "Residential use" means "the use of a pesticide or device in, on, or around any structure, vehicle, article, surface or area associated with the household, including but not limited to areas such as non-commercial outbuildings, non-commercial greenhouses, pleasure boats, and recreational vehicles; or in or around any preschool or day care facility." (Reference: Code of Federal Regulations, Title 40 (CFR 40), Part 157, !---->Section 157.21)

Answer:
The answer depends on whether or not the area being treated is an agricultural use. (See AGRICULTURAL USE definition in Volume 8).

Aluminum phosphide product labeling strictly prohibits use on any residential property (see Question 3). The fact that the property is used to produce commodities for personal consumption (including livestock or poultry raised for personal use) doesn't change the home use designation. This guidance is based on the fact that the commodities produced in these situations are being used for personal consumption and will not enter the channels of trade.

The use of aluminum phosphide is allowed on the portion of property used for agricultural use, as long as the labeling requirements (including the 100 foot restriction), can be followed. The following situations are considered agricultural use regardless of the size of the area:

• A small producer who is growing a commodity, such as berries, that will be made into a product, such as jam, that will then be sold to a consumer. This situation is identical to hay growers who market their own hay and wineries that grow and market their own grapes.
• Individuals who produce their commodities in a "back yard" type setting to sell at farmers markets, roadside stands, etc.
• Commercially raised livestock regardless of the number.
• Commercial equine operations.

Question 5:
When aluminum phosphide is applied in a park setting, if only a portion of the park is treated, would the entrances to the park have to be posted or would only the entrances to the treated area of the park treated need to be posted?

Answer:
The Applicator's Manual for newly revised aluminum phosphide product labels, under the " Directions for Use" states:

"When this product is used in athletic fields or parks, the applicator shall post a sign at entrances to the treated site containing the signal word DANGER/PELIGRO shall and crossbones, the works: DO NOT ENTER/NO ENTRE, FIELD NOT FOR USE, the name and EPA registration number of the fumigant, and a 24-hour emergency response number. Sign may be removed 2 days after the final treatment."

The entrances of the "treated site" would have to be posted. If only a portion of the park is treated then only the entrances of the treated site would have to be posted. If the treated site consists of an open area within the park, the treated site would have to be posted on each side.

Question 6:
Using the newly revised labels, can a pest control business legally apply aluminum phosphide for burrowing rodent control in multi-family settings such as home owner association (HOA), apartment, and condo complexes to the open common areas on the property, as long as they are over 100 feet from any structure?

Answer:
No. The revised labeling Directions for Use for "Burrowing Pest Control" allows use on agricultural areas, orchards, non-crop areas (such as pasture and rangeland), golf courses, athletic fields, airports, cemeteries, rights-of-ways, earthen dams, parks and recreational areas and other non-residential institutional sites.

Multi-family settings (sites) in home owner associations, apartment, and condo complexes are residential sites and, therefore, not allowed by the revised product labeling for this use. Applications to these sites would be in conflict with labeling and a violation of FAC section 12973.

However, if a non-residential portion of the HOA, apartment or condo complex property includes sites such as a golf course, greenbelt, park, or recreational area (non-production agricultural use) and rodent burrows are over 100 feet from any structure, the revised aluminum phosphide product labeling would allow use on these sites.

Question 7:
The new revised labeling requires use by a certified applicator, or person under their direct supervision, for control of burrowing rodents. Would cell phone contact between a certified applicator (supervisor), and the non-certified person applying aluminum phosphide suffice for "direct supervision?"

Answer:
Yes, for use to control burrowing rodents, this is allowed. The "physically present" standard required in the section entitled "Requirements for Certified Applicator to be Present and Responsible for All Workers" does not apply to the section entitled "Application Directions for Control of Burrowing Pests."

The California Code of Regulations, section 6406 must be followed.

Additionally, the Code of Federal Regulations, Title 40 (CFR 40), Part 171 entitled "Certification of Pesticide Applicators" Section 171.2 (a) (28) defines the term "under the direct supervision of" to mean:

"the act or process whereby the application of a pesticide is made by a competent person acting under the instructions and control of a certified applicator who is responsible for the actions of that person and who is available if and when needed, even though such certified applicator is not physically present at the time and place the pesticide is applied."

If you need further assistance in this matter, please contact the Enforcement Branch Liaison assigned to your county.

cc:       Mr. Thomas Babb, DPR Agricultural Commissioner Liaison
            Enforcement Branch Liaisons