[Federal Register Volume 61, Number 138 (Wednesday, July 17, 1996)]
[Rules and Regulations]
[Pages 37218-37222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16588]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 180

[OPP-300363B; FRL-5382-1]
RIN 2070-AC18


Folpet; Revocation of Pesticide Tolerances

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final Rule.

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SUMMARY: This rule revokes tolerances for folpet residues in or on the 
following commodities: celery, cherries, leeks, onions (green), 
shallots, blackberries, blueberries, boysenberries, crabapples, 
currants, dewberries, gooseberries, huckleberries, loganberries, 
raspberries, citrus fruits, garlic, pumpkins, summer squash, and winter 
squash. This revocation is necessary because the registrant has 
voluntarily canceled use of this fungicide on these commodities.
EFFECTIVE DATE: This final rule becomes effective September 16, 1996.

ADDRESSES: Written objections and hearing requests, identified by the 
docket, [OPP-300363B], may be submitted to: Hearing Clerk (1900), 
Environmental Protection Agency, Rm. M3708, 401 M St., SW., Washington, 
DC 20460. Fees accompanying objections and hearing requests shall be 
labeled ``Tolerance Petition Fees'' and forwarded to: EPA Headquarters 
Accounting Operations Branch, OPP (Tolerance Fees), P.O. Box 360277M, 
Pittsburgh, PA 15251. A copy of any objections and hearing requests 
filed with the Hearing Clerk should be identified by the docket number 
and submitted to: Public Response and Program Resources Branch, Field 
Operations Division (7506C), Office of Pesticide Programs, 
Environmental Protection Agency, 401 M St., SW., Washington, DC 20460. 
In person, bring copy of objections and hearing requests to: Rm. 1132, 
CM #2, 1921 Jefferson Davis Hwy., Arlington, VA 22202.
    A copy of objections and hearing requests filed with the Hearing 
Clerk may also be submitted electronically by sending electronic mail 
(e-mail) to: [email protected]. Copies of objections and 
hearing requests must be submitted as an ASCII file avoiding the use of 
special characters and any form of encryption. Copies of objections and 
hearing requests will also be accepted on disks in WordPerfect in 5.1 
file format or ASCII file format. All copies of objections and hearing 
requests in electronic form must be identified by the docket number 
[OPP-300363B]. No ``Confidential Business Information'' (CBI) should be 
submitted through e-mail. Electronic copies of objections and hearing 
requests on this rule may be filed online at many Federal Depository 
Libraries. Additional information on electronic submissions can be 
found below in this document.

FOR FURTHER INFORMATION CONTACT: By mail, Jeff Morris, Review Manager, 
Special Review Branch (7508W), Office of Pesticide Programs, 
Environmental Protection Agency, 401 M St., SW., Washington, DC 20460. 
Office location and telephone number: 3rd floor, Crystal Station, 2800 
Crystal Drive, Arlington, VA 22202, (703) 308-8029; e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: Following issuance of a proposed rule to 
revoke folpet tolerances (59 FR 61859, December 2, 1994)(FRL-4912-6) 
and considering comments that EPA received in response to the proposed 
rule, this rule serves as a final order to revoke tolerances for folpet 
residues in or on the following commodities: celery, cherries, leeks, 
onions (green), shallots, blackberries, blueberries, boysenberries, 
crabapples, currants, dewberries, gooseberries, huckleberries, 
loganberries, raspberries, citrus fruits, garlic, pumpkins, summer 
squash, and winter squash. The tolerance for folpet residues in or on 
avocados will remain as currently listed in 40 CFR 180.191, and will be 
addressed through the reregistration process (the avocado tolerance was 
not subject to the December 2, 1994 proposed rule). In a separate 
notice, EPA will address the remaining tolerances that were subject to 
the proposed rule; the registrant is currently generating data to 
support those tolerances.

 I. Legal Authorization

    The Federal Food, Drug, and Cosmetic Act (FFDCA, 21 U.S.C. 301 et 
seq.) authorizes the establishment of tolerances (maximum legal residue 
levels) and exemptions from the requirement of a tolerance for residues 
of pesticide chemicals in or on raw agricultural commodities pursuant 
to section 408 [21 U.S.C. 346(a)]. Without such tolerances or 
exemptions, a food containing pesticide residues is considered to be 
``adulterated'' under section 402 of FFDCA, and hence may not legally 
be moved in interstate commerce [21 U.S.C. 342]. To establish a 
tolerance or an exemption under section 408 of FFDCA, EPA must make a 
finding that the promulgation of the rule would ``protect the public 
health'' [21 U.S.C. 346a(b)]. For a pesticide to be sold and 
distributed, the pesticide must not only have appropriate tolerances 
under FFDCA, but also must be registered under the Federal Insecticide,

[[Page 37219]]

Fungicide, and Rodenticide Act (FIFRA, 7 U.S.C. 136 et seq.).
    In 1988, Congress amended FIFRA and required EPA to review and 
reassess the potential hazards arising from currently registered uses 
of pesticides registered prior to November 1, 1984. As part of this 
process, EPA must determine whether a pesticide is eligible for 
reregistration or whether any subsequent actions are required to fully 
attain reregistration status. EPA has chosen to include in the 
reregistration process a reassessment of existing tolerances or 
exemptions from the need for a tolerance. Through this reassessment 
process, based on more recent data, EPA can determine whether a 
tolerance must be amended, revoked, or established, or whether an 
exemption from the requirement of one or more tolerances must be 
amended or is necessary.
    Tolerance procedures are discussed in 40 CFR parts 177 through 180. 
Part 177 establishes the procedures for establishing, amending, or 
revoking tolerances or exemptions from the requirement of tolerances; 
part 178 contains procedures for filing objections and requests for 
hearings; part 179 contains rules governing formal evidentiary 
hearings; and part 180 contains regulations establishing tolerances or 
exemptions from the requirements of a tolerance. The Administrator of 
EPA, or any person by petition, may initiate an action proposing to 
establish, amend, revoke, or exempt a tolerance for a pesticide 
registered for food uses. Each petition or request for a new tolerance, 
an amendment to an existing tolerance, or a new exemption from the 
requirement of a tolerance must be accompanied by a fee. Comments 
submitted in response to EPA's published proposals are reviewed; EPA 
then publishes its final determination regarding the specific tolerance 
actions. Monitoring and enforcement of pesticide tolerances are carried 
out by the U.S. Food and Drug Administration (FDA) and the U.S. 
Department of Agriculture (USDA). This includes monitoring for 
pesticide residues in or on commodities imported into the United 
States.

II. Background

    Folpet is a broad-spectrum fungicide registered for industrial use 
in paints, stains, coatings, and plastics. In addition, two folpet 
products are registered for food use. One product is actively 
registered for use on avocados in Florida only; the other is a 
registration for all folpet food uses, including the food uses covered 
by the tolerances that are subject to this rule, that EPA suspended in 
1987 for failure of the registrant to supply the data required by EPA 
to support the continued registration of these uses. EPA has classified 
folpet as a B2 (probable) human carcinogen.

A. Proposed Revocation of Tolerances and Comment Period Extension

    At the time the proposed rule was published, with the exception of 
data to support the avocado use, the registrant had not submitted the 
following residue chemistry data, which, according to the June 1987 
folpet registration standard, are needed to support registration of the 
commodities subject to this rule: nature of the residues (metabolism) 
studies (guideline no. 171-4a) for representative crops; analytical 
method validation (guideline no. 171-4c); storage stability studies 
(guideline no. 171-4e) for representative crops; crop field trials 
(guideline no. 171-4k) for the subject commodities; and processing 
studies (guideline no. 171-4l) for applicable commodities. These data 
are required under 40 CFR part 158, and are needed to allow EPA to 
determine whether a proposed tolerance level is practical and 
achievable. Because the establishment of a tolerance under section 408 
of FFDCA requires a finding that a tolerance will protect the public 
health, and because EPA did not have adequate data to make such a 
finding, EPA issued a proposed rule to revoke all folpet tolerances, 
except the avocado tolerance. The proposed rule was published in the 
Federal Register on December 2, 1994 (59 FR 61859).
    In a Federal Register notice dated January 3, 1995 (60 FR 89)(FRL-
4982-3), EPA extended the end of the comment period for the proposed 
rule from January 3, 1995, to March 3, 1995. The January 3 notice also 
requested the following: (1) That interested parties identify which 
tolerances they were willing to support by providing the data necessary 
to maintain the tolerances, and (2) that interested parties identify 
specific existing data they were prepared to submit in support of the 
tolerances.

B. Registrant's Response to the Proposed Rule

    1. Commitment to support tolerances. In its comments to the 
December 2, 1994 proposed rule, Makhteshim-Agan, the sole folpet 
registrant, committed to generate the data necessary to establish 
tolerances in or on the following nine commodities: apples, 
cranberries, cucumbers, grapes, lettuce, melons, onions, strawberries, 
and tomatoes. (Makhteshim-Agan had previously submitted the required 
data for the use of folpet on avocados.) Makhteshim-Agan also submitted 
use information on the other nine commodities and a summary of the 
residue chemistry data that had thus far been generated for those 
commodities.
    2. Request to delete uses. In a letter to EPA dated June 11, 1995, 
Makhteshim-Agan requested that EPA delete the following uses from its 
folpet registration number 66222-8: blackberries, boysenberries, 
dewberries, loganberries, raspberries, blueberries, huckleberries, 
summer/winter squash, pumpkins, celery, cherries (red tart), citrus 
(oranges, grapefruit, lemons, limes, tangelos, and tangerines), 
gooseberries, currants, and garlic. EPA published a notice of receipt 
of this request in a Federal Register notice dated April 17, 1996 (61 
FR 16779)(FRL-5360-5). Following the 90-day comment period for this 
notice, the deletion of the uses is expected to take effect on July 16, 
1996.

III. Final Actions

    In response to comments made to the December 2, 1994 proposed rule, 
through meetings and other communication with the folpet registrant, 
and in accord with EPA's policy regarding data requirements to support 
tolerances, EPA is issuing this final order to revoke the 20 tolerances 
that have received no commitment for support.
    This final rule revokes the following folpet tolerances listed in 
40 CFR 180.191: blackberries, blueberries, boysenberries, celery, 
cherries, citrus fruits, crabapples, currants, dewberries, garlic, 
gooseberries, huckleberries, leeks, loganberries, onions (green), 
pumpkins, raspberries, shallots, summer squash, and winter squash. EPA 
is revoking these tolerances for two reasons: (1) The registrant is no 
longer supporting the uses on its folpet registrations, and (2) EPA 
does not have the data necessary to make a finding that the tolerances 
are protective of the public health, as is required by section 408 of 
FFDCA and 40 CFR part 158. The 25 ppm avocado tolerance is being 
supported through the reregistration program for domestic registrations 
and is not subject to this rule, and therefore remains unchanged. The 
remaining nine supported tolerances will be the subject of a separate 
notice that EPA will issue in the future.
    Because folpet food-use registrations have been suspended since 
1987 and therefore commodities may not be legally treated with any 
existing folpet stocks, EPA expects no folpet residues to be in or on 
the commodities associated with the tolerances subject to

[[Page 37220]]

this rule; nor, for the same reason, are folpet residues expected to 
persist in the environment. Following revocation of the tolerances, any 
imported commodities containing folpet residues will be subject to 
seizure as a result of FDA and USDA monitoring; this should prohibit 
any treated imported commodities from entering domestic channels of 
trade. Therefore, final expiration of the tolerances will occur 60 days 
from the date of publication of this rule in the Federal Register, 
barring submission of a petition for a stay of the effective date of 
this rule, and EPA will not require action levels following expiration 
of the tolerances.

IV. Comments Received on Proposed Rule and Response to Comments

    The following section summarizes the comments received to the 
December 2, 1994 proposed revocation of folpet tolerances, and EPA's 
response to those comments. The actual comments are in the folpet 
docket.

A. Revocation Will Negatively Impact Importation of Commodities

    Many commentors stated that the revocation of the U.S. folpet 
tolerances may have a significant negative impact on the present and 
future importation of agricultural products into the United States. 
Commentors were particularly concerned that revocation of the grape 
tolerance would negatively affect wine imports.
    EPA responds that the folpet registrant has committed to generate 
the necessary data for nine tolerances, including a grape tolerance. 
EPA will not revoke tolerances for those commodities if adequate data 
are submitted by the agreed-upon due date.

B. Need for an Import Tolerance Policy

    Other commentors expressed concern regarding the lack of a policy 
outlining the data necessary to establish import tolerances, and that 
the approach taken in EPA's Federal Register notice of December 2, 1994 
is not an efficient regulatory process. They stated that deciding 
complex issues, such as data requirements, on a case-by-case basis 
cannot be efficient and detracts from regulatory transparency; they 
added that an import tolerance policy presented for public comment 
would permit EPA to evaluate the appropriateness of the data required 
in the December 2, 1994 notice.
    EPA's response is that it has an import tolerance policy. EPA's May 
3, 1995 letter to Makhteshim-Agan states: ``EPA requires the same 
product chemistry and toxicology data for import tolerances as are 
required to support U.S. registrations of pesticide products and any 
resulting tolerances. In addition, EPA needs residue chemistry data 
that are representative of growing conditions in exporting countries.'' 
It is because EPA has received neither the data required in the 1987 
Registration Standard nor a commitment to generate the data necessary 
to establish tolerances, that EPA is revoking the tolerances subject to 
this rule. EPA is currently reviewing its import tolerance policy to 
address issues raised by folpet and other similar cases. In application 
of its policy, EPA is committed to consistency and, when possible, 
harmonization with international standards.

C. Potential GATT and NAFTA Violations

    Some commentors claimed that EPA's proposed action would violate 
international obligations of the United States. They stated that the 
World Trade Organizations's Sanitary and Phytosanitary (SPS) Agreement 
permits EPA to deviate from Codex in exceptional circumstances, but any 
higher level of sanitary or phytosanitary protection must have a 
scientific justification. Such justification requires a finding by EPA 
that the forthcoming Codex standard for folpet is not sufficient to 
achieve its appropriate level of protection.
    EPA responds that Codex has proposed to revoke most of the folpet 
Maximum Residue Limits (MRLs), including the grape MRL, because the 
data submitted to Codex are inadequate. The crop field trial program 
for the supported import-only tolerances initiated by the folpet 
registrant is expected to provide data adequate for setting U.S. and 
international residue levels for folpet. Since no data are available 
for the remaining tolerances subject to this rule, EPA is revoking 
those tolerances.

D. U.S. Standards Must Not Be Compromised

    One commentor argued that EPA should revoke folpet tolerances 
unless the existing data enable EPA to make the FFDCA public health 
finding, and that the unsupported tolerances should not remain in 
effect while the data are being developed and submitted. The commentor 
also stated that nothing in international trade agreements requires any 
deviation from FFDCA's public health mandate.
    EPA agrees that its mandate to protect the public health must not 
be compromised. All remaining permanent folpet tolerances will be based 
on adequate data that demonstrate that such tolerances are protective 
of the public health.

V. Effective Date and Stays of Effective Date

    This final rule shall become effective September 16, 1996. A person 
filing objections to this Order may submit with the objections a 
petition to stay the effective date of this Order. Such stay petitions 
must be submitted to the Hearing Clerk on or before August 16, 1996. A 
copy of the stay request filed with the Hearing Clerk shall be 
submitted to the Office of Pesticide Programs Public Docket. A stay may 
be requested for a specific time period or for an indefinite time 
period. The stay petition must include a citation to this Order and the 
specific food additive regulation(s) as to which the stay is sought, 
the length of time for which the stay is requested, and a full 
statement of the factual and legal grounds upon which the petitioner 
relies for the stay. If a petition for a stay is submitted, EPA will 
automatically stay the effective date of the Order as to the particular 
regulation(s) for which the stay is sought for such time as is required 
to review the stay petition, if necessary. In determining whether to 
grant a stay, EPA will consider the criteria set out in FDA's 
regulations regarding stays of administrative proceedings at 21 CFR 
10.35. Under those rules, a stay will be granted if it is determined 
that: (1) The petitioner will otherwise suffer irreparable injury; (2) 
the petitioner's case is not frivolous and is being pursued in good 
faith; (3) the petitioner has demonstrated sound public policy grounds 
supporting the stay; and (4) the delay resulting from the stay is not 
outweighed by public health or other public interests. Under FDA's 
criteria, EPA may also grant a stay if EPA finds that such action is in 
the public interest and in the interest of justice.
    If a stay petition is submitted, EPA will publish a notice of 
receipt in the Federal Register, stating that the effective date of 
this Order is stayed as to the regulation(s) to which the stay is 
requested pending EPA consideration of the stay request. Any affected 
person may submit objections to a stay request to the Hearing Clerk on 
or before 15 days after the date of publication in the Federal Register 
of the notice of receipt. Any decision lifting the stay will be 
published in the Federal Register.

VI. Hearing Request

    Any person adversely affected by this regulation may, within 30 
days after publication of this document in the Federal Register, file 
written objections to the regulation and may also request

[[Page 37221]]

a hearing on those objections. Objections and hearing requests must be 
filed with the Hearing Clerk, at the address given above (40 CFR 
178.20). A copy of the objections and/or hearing requests filed with 
the Hearing Clerk should be submitted to the OPP docket for this 
rulemaking. The objections submitted must specify the provisions of the 
regulation deemed objectionable and the grounds for the objections (40 
CFR 178.25). Each objection must be accompanied by the fee prescribed 
by 40 CFR 180.33(i). If a hearing is requested, the objections must 
include a statement of the factual issue(s) on which a hearing is 
requested, the requestor's contentions on such issues, and a summary of 
any evidence relied upon by the objector (40 CFR 178.27). A request for 
a hearing will be granted if the Administrator determines that the 
material submitted shows the following: There is genuine and 
substantial issue of fact; there is a reasonable possibility that 
available evidence identified by the requestor would, if established, 
resolve one or more of such issues in favor of the requestor, taking 
into account uncontested claims or facts to the contrary; and 
resolution of the factual issue(s) in the manner sought by the 
requestor would be adequate to justify the action requested (40 CFR 
178.32).

VII. Public Docket

    A record has been established for this rulemaking under docket 
number [OPP-300363A] (including any comments and data submitted 
electronically). A public version of this record, including printed, 
paper versions of electronic comments, which does not include any 
information claimed as CBI, is available for inspection from 8 a.m. to 
4:30 p.m., Monday through Friday, excluding legal holidays. The public 
record is located in Room 1132 of the Public Response and Program 
Resources Branch, Field Operations Division (7506C), Office of 
Pesticide Programs, Environmental Protection Agency, Crystal Mall #2, 
1921 Jefferson Davis Highway, Arlington, VA.
    Electronic comments may be sent directly to EPA at:
    [email protected].


    Electronic comments must be submitted as an ASCII file avoiding the 
use of special characters and any form of encryption.
    The official record for this rulemaking, as well as the public 
version, as described above will be kept in paper form. Accordingly, 
EPA will transfer any copies of objections and hearing requests 
received electronically into printed, paper form as they are received 
and will place the paper copies in the official rulemaking record which 
will also include all comments submitted directly in writing. The 
official rulemaking record is the paper record maintained at the 
address in ``ADDRESSES'' at the beginning of this document.

VIII. Regulatory Assessment Requirements

    To satisfy the requirements for analysis specified by Executive 
Order 12866, the Regulatory Flexibility Act, the Paperwork Reduction 
Act, the Unfunded Mandates Reform Act, and the Small Business 
Regulatory Enforcement Fairness Act, EPA has considered the impacts of 
this final rule.

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to all the requirements of the Executive Order 
(i.e., Regulatory Impact Analysis, review by the Office of Management 
and Budget (OMB)). Under section 3(f), the order defines 
``significant'' as those actions likely to lead to a rule (1) having an 
annual effect on the economy of $100 million or more, or adversely and 
materially affecting a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local or tribal governments or communities (also known as 
``economically significant''); (2) creating serious inconsistency or 
otherwise interfering with an action taken or planned by another 
agency; (3) materially altering the budgetary impacts of entitlement, 
grants, user fees, or loan programs; or (4) raising novel legal or 
policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in this Executive Order.
    Pursuant to the terms of this Executive Order, EPA has determined 
that this rule is not ``significant'' and is therefore not subject to 
OMB review.

B. Regulatory Flexibility Act

    EPA has reviewed this final rule under the Regulatory Flexibility 
Act of 1980 [5 U.S.C. 601 et seq.], and has determined that it will not 
have a significant economic impact on a substantial number of small 
businesses, small governments, or small organizations. Accordingly, I 
certify that this final rule does not require a separate regulatory 
flexibility analysis under the Regulatory Flexibility Act.

C. Paperwork Reduction Act

    This regulatory action does not contain any information collection 
requirements subject to review by OMB under the Paperwork Reduction Act 
of 1980, 44 U.S.C. 3501 et seq.

D. Unfunded Mandates Reform Act

    This final rule contains no Federal mandates under Title II of the 
Unfunded Mandates Reform Act of 1995, Pub. L. 104-4 for State, local, 
or tribal governments or the private sector, because it would not 
impose enforceable duties on them.

E. Small Business Regulatory Enforcement Fairness Act

    Under 5 U.S.C. 801(a)(1)(A) of the Administrative Procedure Act 
(APA) as amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996 (Title II of Pub. L. 104-121, 110 Stat. 847), EPA submitted 
a report containing this rule and other required information to the 
U.S. Senate, the U.S. House of Representatives, and the Comptroller 
General of the General Accounting Office prior to publication of this 
rule in today's Federal Register. This rule is not a ``major rule'' as 
defined by 5 U.S.C. 804(2) of the APA as amended.

List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, 
Agricultural commodities, Pesticides and pests, Reporting and 
recordkeeping requirements.

    Dated: June 24, 1996.
Lois A. Rossi,
Director, Special Review and Reregistration Division, Office of 
Pesticide Programs.

[[Page 37222]]

    Therefore, 40 CFR, chapter I, part 180 is amended as follows:

PART 180--[AMENDED]

    The authority citation for part 180 would continue to read as 
follows:
    Authority: 21 U.S.C. 346a and 371.


    2. Section 180.191 is revised to read as follows:


Sec. 180.191 Folpet; tolerances for residues.

    Tolerances are established for the fungicide folpet (N-
(trichloromethylthio)pthalimide) in or on raw agricultural commodities 
as follows:

------------------------------------------------------------------------
                                                              Parts per 
                         Commodity                             million  
------------------------------------------------------------------------
Apples.....................................................           25
Avocados...................................................           25
Cranberries................................................           25
Cucumbers..................................................           15
Grapes.....................................................           25
Lettuce....................................................           50
Melons.....................................................           15
Onion (dry bulb)...........................................           15
Strawberries...............................................           25
Tomatoes...................................................           25
------------------------------------------------------------------------


[FR Doc. 96-16588 Filed 7-16-96; 8:45 am]
BILLING CODE 6560-50-F