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Revised Guidance: Entering FIFRA Notices of Refusal of Admission (NORAs) and FIFRA Notices of Warning (NOWs) into ICIS (06.13.2017)

Revised Guidance: Entering FIFRA Notices of Refusal of Admission (NORAs) and FIFRA Notices of Warning (NOWs) into ICIS

 In FY 2016, during the End-of-Year reporting process, an issue arose regarding the proper reporting and counting of FIFRA Notices of Refusal of Admission (NORAs) and FIFRA Notices of Warning (NOWs). In order to properly account for these FIFRA-specific formal enforcement actions and to ensure national consistency in reporting enforcement outcomes and environmental benefits related to these actions, it is necessary to provide additional clarification to assist the regions when entering this data into ICIS. The following revised guidance describes the process by which FIFRA NORAs and NOWs should be entered into ICIS. Please note that neither NORAs nor NOWs will be counted as Administrative Compliance Orders (ACOs) in the annual results.  

FIFRA Notices of Refusal of Admission (NORAs)

 As outlined in the FY 2014 Case Conclusion Data Sheet (CCDS) guidance, FIFRA NORAs (commonly referred to as “import denials”) are non-penalty, final agency actions, and should be recorded in ICIS along with complying action values and environmental benefits resulting from these enforcement actions, as follows:

  •              Final Order Type:  EPA/Customs Import Enforcement Action
  •             Enforcement Action Type: FIFRA 17(c) Importation
  •             Enforcement Action Type Code: 17(c)

 Environmental Benefits

 Under the FY 2014 guidance, NORA actions that result in reduction or elimination of an ongoing release of pollutants into the environment should be recorded in ICIS under the environmental benefit category “Reduction of On-going Releases.” The pesticide complying action type for these particular actions is entitled, “Import Pesticide Returned to Foreign Origin.”

 In some cases, it may be possible to document that the initial entry denial also resulted in a “Prevention of Future Releases.” In these situations, because the respondent typically requests to work with EPA to bring their violative product(s) back into compliance, the Agency has access to the documents underlying the environmental benefit. Depending on the facts of the case the complying action can fall within one or more of the following complying action types: “Pesticide Label Revised,” “Production Ceased,” Manufacturing Change,” and “Container Change” (e.g., child resistant packaging). If the complying action has a preventive impact on future anticipated shipments of the same product coming into the US, calculate the pounds prevented for future releases. In order to calculate the pounds reduced, annualize the company’s one-year production (based on FIFRA Section 7 reporting data) and count that quantity as “Prevention of Future Releases.” However, since annualized production data would be considered FIFRA Confidential Business Information (CBI), this preventive quantity cannot be entered directly into ICIS and must be submitted with the Regional Administrator/Office Director end-of-year certification.

 Annual Results

    • The initiation and conclusion of NORAs counts will not be counted in the Agency's GPRA enforcement action Annual Results.
    • Environmental benefits from NORAs will be included in the Agency's Annual Results in both the “Estimated Toxics and Pesticides Reduced, Treated or Eliminated (pounds)” and the “Toxic Chemicals and Pesticides Prevented from Misuse/Environmental Release (Pounds)” measures.  The “Estimated Toxics and Pesticides Treated or Eliminated (pounds)” is a FY 2017 GPRA measure. FIFRA Notices of Warning (NOWs)FIFRA §§ 9(c)(3), 14(a)(2), and 14(a)(4) provide the EPA with the authority to issue Notices of Warning (NOWs) to resolve noncompliance. A FIFRA NOW is neither a notice of violation nor a notice of noncompliance. These statutorily required FIFRA NOWs are used in lieu of assessing penalties, resolve the violations and are considered final agency actions. Beginning in FY 2017, they will be entered into ICIS as formal administrative actions using the following steps:
  • Administrative Formal (Note the change to Administrative Formal: Previously, FIFRA NOWs were entered as informal actions)
  • Enforcement Action Type: FIFRA – Formal Notice of Warning (NOW)
  • Final Order Type:  Administrative Non-Penalty Order
  • Enforcement Action Type: FIFRA 14A (non-penalty)
  • Enforcement Type Code: 14A (non-penalty)

Environmental Benefits

 FIFRA NOWs that result in the reduction or elimination of a release of pollutants into the environment should be recorded in ICIS under the environmental benefit category “Reduction of On-going Releases.”  Depending on the facts of the case, the pesticide complying action types for FIFRA NOWs are the same complying action types used for administrative penalty orders.

In some cases, the action may result in a “Prevention of Future Releases.” The pesticide complying actions for formal FIFRA NOWs are the same complying action types used for administrative penalty orders. If the complying action has a preventive impact, annualize the one-year production, if the data is available, and count that quantity as, “Prevention of Future Releases.” Annualized production data is considered FIFRA CBI and therefore the preventive quantity cannot be entered directly into ICIS and must be submitted separately with the Regional Administrator/Office Director end-of-year certification.

 Annual Results

    • The initiation and conclusion of FIFRA NOWs will not be counted in the Agency's GPRA enforcement action Annual Results.
    • Environmental Benefits from FIFRA NOWs will not be included in the Agency's GPRA Annual Results, but will be tracked for the next two years. The Agency will subsequently evaluate whether these environmental benefits should be included in the Agency’s GPRA Annual Results.
    • If you have any questions concerning FIFRA NORAs or FIFRA NOWs, please contact Yolaanda Walker at: Walker.Yolaanda@epa.gov or (202) 564-4281.

SOURCE:  FY 2017 Reporting Plan, June 13, 2017

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