[Federal Register Volume 63, Number 174 (Wednesday, September 9, 1998)]
[Rules and Regulations]
[Pages 48113-48116]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24148]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 180
[OPP-300692; FRL 6020-2]
RIN 2070-AB78
Fenpropathrin; Extension of Tolerance for Emergency Exemptions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This rule extends a time-limited tolerance for residues of the
insecticide fenpropathrin and its metabolites in or on currants at 15
parts per million (ppm) for an additional 18 months, to June 30, 2000.
This action is in response to EPA's granting of an emergency exemption
under section 18 of the Federal Insecticide, Fungicide, and Rodenticide
Act authorizing use of the pesticide on currants. Section 408(l)(6) of
the Federal Food, Drug, and Cosmetic Act (FFDCA) requires EPA to
establish a time-limited tolerance or exemption from the requirement of
a tolerance for pesticide chemical residues in food that will result
from the use of a pesticide under an emergency exemption granted by EPA
under section 18 of FIFRA.
DATES: This regulation becomes effective September 9, 1998. Objections
and requests for hearings must be received by EPA, on or before
November 9, 1998.
ADDRESSES: Written objections and hearing requests, identified by the
docket control number, OPP-300692, must 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
[[Page 48114]]
filed with the Hearing Clerk identified by the docket control number,
[OPP-300692], must also be submitted to: Public Information and Records
Integrity Branch, Information Resources and Services Division (7502C),
Office of Pesticide Programs, Environmental Protection Agency, 401 M
St., SW., Washington, DC 20460. In person, bring a copy of objections
and hearing requests to Rm. 119, Crystal Mall #2, 1921 Jefferson Davis
Hwy., Arlington, VA.
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]. Follow the instructions in
Unit II. of this preamble. No Confidential Business Information (CBI)
should be submitted through e-mail.
FOR FURTHER INFORMATION CONTACT: By mail: Jacqueline Mosby-Gwaltney,
Registration Division (7505C), Office of Pesticide Programs,
Environmental Protection Agency, 401 M St., SW., Washington, DC 20460.
Office location, telephone number, and e-mail address: Rm. 274, CM#2,
1921 Jefferson Davis Hwy., Arlington, VA, (703) 305-6792; e-mail:
[email protected].
SUPPLEMENTARY INFORMATION: EPA issued a final rule (40 CFR 180.466),
published in the Federal Register of July 14, 1997 (62 FR 37516) (FRL
5731-3), which announced that on its own initiative and under section
408(e) of the FFDCA, 21 U.S.C. 346a(e) and (l)(6), it established a
time-limited tolerance for the residues of fenpropathrin and its
metabolites in or on currants at 15 ppm, with an expiration date of
December 31, 1998. EPA established the tolerance because section
408(l)(6) of the FFDCA requires EPA to establish a time-limited
tolerance or exemption from the requirement of a tolerance for
pesticide chemical residues in food that will result from the use of a
pesticide under an emergency exemption granted by EPA under section 18
of FIFRA. Such tolerances can be established without providing notice
or period for public comment.
Subsequently, EPA issued a revision to 40 CFR 180.466 in the
Federal Register November 26, 1997 (62 FR 63027)(FRL-5755-1). In this
revision, the time-limited tolerance for currants which had been
established in the July 14, 1997 final rule was inadvertently left out.
The July 14, 1997 tolerance for currants has an expiration date of
December 31, 1998, such that the tolerance has not expired. Therefore,
with this final rule, EPA is adding currants back into 40 CFR
180.466(b) and extending the expiration date for the tolerance.
EPA received a request to extend the use of fenpropathrin on
currants for this year's growing season due to currant borer being a
serious pest in Washington. The Washington Department of Agriculture
stated that the currant borer adults emerge during mid May in central
Washington and lay their eggs on the currant canes over a period of 4
to 5 weeks. Newly hatched larvae bore into the center of the cane and
feed in the pith creating a tunnel. Borer damage increases each year
when no control measures are taken. With the cancellation of parathion
there are no registered pesticides that will provide adequate control.
The applicant state that presently, cane stands have dead canes ranging
from 10 to 30% and if left uncontrolled, the perennial plantings will
be lost. EPA has authorized under FIFRA section 18 the use of
fenpropathrin on currants for control of the currant borer in
Washington. After having reviewed the submission, EPA concurs that
emergency conditions exist for this state. EPA has authorized under
FIFRA section 18 the use of fenpropathrin on currants for control of
currant borer in currants.
EPA assessed the potential risks presented by residues of
fenpropathrin in or on currants. In doing so, EPA considered the new
safety standard in FFDCA section 408(b)(2), and decided that the
necessary tolerance under FFDCA section 408(l)(6) would be consistent
with the new safety standard and with FIFRA section 18. The data and
other relevant material have been evaluated and discussed in the final
rule of July 14, 1997 (62 FR 37516). Based on that data and information
considered, the Agency reaffirms that extension of the time-limited
tolerance will continue to meet the requirements of section 408(l)(6).
Therefore, the time-limited tolerance is extended for an additional 18
months. Although this tolerance will expire and is revoked on June 30,
2000, under FFDCA section 408(l)(5), residues of the pesticide not in
excess of the amounts specified in the tolerance remaining in or on
currants after that date will not be unlawful, provided the pesticide
is applied in a manner that was lawful under FIFRA and the application
occurred prior to the revocation of the tolerance. EPA will take action
to revoke this tolerance earlier if any experience with, scientific
data on, or other relevant information on this pesticide indicate that
the residues are not safe.
I. Objections and Hearing Requests
The new FFDCA section 408(g) provides essentially the same process
for persons to ``object'' to a tolerance regulation issued by EPA under
new section 408(e) and (l)(6) as was provided in the old section 408
and in section 409. However, the period for filing objections is 60
days, rather than 30 days. EPA currently has procedural regulations
which govern the submission of objections and hearing requests. These
regulations will require some modification to reflect the new law.
However, until those modifications can be made, EPA will continue to
use those procedural regulations with appropriate adjustments to
reflect the new law.
Any person may, by November 9, 1998, file written objections to any
aspect of this regulation and may also request 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 issues on which a hearing is requested, the
requestor's contentions on such issues, and a summary of any evidence
relied upon by the requestor (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 issues in the manner sought by the requestor would be adequate
to justify the action requested (40 CFR 178.32). Information submitted
in connection with an objection or hearing request may be claimed
confidential by marking any part or all of that information as CBI.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2. A copy of the information that
does not contain CBI must be submitted for inclusion in the public
record. Information not marked confidential
[[Page 48115]]
may be disclosed publicly by EPA without prior notice.
II. Public Record and Electronic Submissions
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
Virginia address in ``ADDRESSES''at the beginning of this document.
Electronic comments may be sent directly to EPA at: opp-
[email protected].
Electronic objections and hearing requests must be submitted as an
ASCII file avoiding the use of special characters and any form of
encryption. Objections and hearing requests will also be accepted on
disks in WordPerfect 5.1/6.1 or ASCII file format. All copies of
objections and hearing requests in electronic form must be identified
by the docket control number [OPP-300692]. No 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.
III. Regulatory Assessment Requirements
A.Certain Acts and Executive Orders
This final rule extends a time-limited tolerance that was
previously extended by EPA under FFDCA section 408(d) in response to a
petition submitted to the Agency. The Office of Management and Budget
(OMB) has exempted these types of actions from review under Executive
Order 12866, entitled Regulatory Planning and Review (58 FR 51735,
October 4, 1993). In addition, this final rule does not contain any
information collections subject to OMB approval under the Paperwork
Reduction Act (PRA), 44 U.S.C. 3501 et seq., or impose any enforceable
duty or contain any unfunded mandate as described under Title II of the
Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Nor does
it require any prior consultation as specified by Executive Order
12875, entitled Enhancing the Intergovernmental Partnership (58 FR
58093, October 28, 1993), or special considerations as required by
Executive Order 12898, entitled Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations (59 FR 7629, February 16, 1994), or require OMB review in
accordance with Executive Order 13045, entitled Protection of Children
from Environmental Health Risks and Safety Risks (62 FR 19885, April
23, 1997).
Under Executive Order 12875, entitled Enhancing Intergovernmental
Partnerships (58 FR 58093, October 28, 1993), EPA may not issue a
regulation that is not required by statute and that creates a mandate
upon a State, local or tribal government, unless the Federal government
provides the funds necessary to pay the direct compliance costs
incurred by those governments. If the mandate is unfunded, EPA must
provide to the Office of Management and Budget (OMB) a description of
the extent of EPA's prior consultation with representatives of affected
State, local and tribal governments, the nature of their concerns,
copies of any written communications from the governments, and a
statement supporting the need to issue the regulation. In addition,
Executive Order 12875 requires EPA to develop an effective process
permitting elected officials and other representatives of State, local
and tribal governments ``to provide meaningful and timely input in the
development of regulatory proposals containing significant unfunded
mandates.''
Today's rule does not create an unfunded Federal mandate on State,
local or tribal governments. The rule does not impose any enforceable
duties on these entities. Accordingly, the requirements of section 1(a)
of Executive Order 12875 do not apply to this rule.
C. Executive Order 13084
Under Executive Order 13084, entitled Consultation and Coordination
with Indian Tribal Governments (63 FR 27655, May 19,1998), EPA may not
issue a regulation that is not required by statute, that significantly
or uniquely affects the communities of Indian tribal governments, and
that imposes substantial direct compliance costs on those communities,
unless the Federal government provides the funds necessary to pay the
direct compliance costs incurred by the tribal governments. If the
mandate is unfunded, EPA must provide OMB, in a separately identified
section of the preamble to the rule, a description of the extent of
EPA's prior consultation with representatives of affected tribal
governments, a summary of the nature of their concerns, and a statement
supporting the need to issue the regulation. In addition, Executive
Order 13084 requires EPA to develop an effective process permitting
elected and other representatives of Indian tribal governments ``to
provide meaningful and timely input in the development of regulatory
policies on matters that significantly or uniquely affect their
communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. This action does not involve
or impose any requirements that affect Indian Tribes. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this rule.
Since this extension of an existing time-limited tolerance does not
require the issuance of a proposed rule, the requirements of the
Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) do not apply.
Nevertheless, the Agency has previously assessed whether establishing
tolerances, exemptions from tolerances, raising tolerance levels or
expanding exemptions might adversely impact small entities and
concluded, as a generic matter, that there is no adverse economic
impact. The factual basis for the Agency's generic certification for
tolerance actions published on May 4, 1981 (46 FR 24950), and was
provided to the Chief Counsel for Advocacy of the Small Business
Administration.
IV. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by
the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the Agency
promulgating the rule must submit a rule report, which includes a copy
the rule, to each House of the Congress and to the Comptroller General
of the United States. EPA will submit 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 United States prior
to publication of this rule in the Federal Register. This is not a
``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 180
Environmental protection, Administrative practice and procedure,
Agricultural commodities, Pesticides and pests, Reporting and
recordkeeping requirements.
[[Page 48116]]
Dated: August 6, 1998.
Arnold E. Layne,
Acting Director, Registration Division, Office of Pesticide Programs.
Therefore, 40 CFR chapter I is amended as follows:
PART 180 -- [AMENDED]
1. The authority citation for part 180 continues to read as
follows:
Authority: 21 U.S.C. 346a and 371.
2. In Sec. 180.466, by revising paragraph (b) to read as follows:
Sec. 180.466 Fenpropathrin; tolerances for residues.
* * * * *
(b) Section 18 emergency exemptions. Time-limited tolerances are
established for residues of the herbicide fenpropathrin in connection
with use of the pesticide under section 18 emergency exemptions granted
by EPA. The tolerance will expire and is revoked on the date specified
in the following table.
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Parts per
Commodity million Expiration/Revocation Date
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Currants..................... 15 6/30/00
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[FR Doc. 98-24148 Filed 9-8-98; 8:45 am]
BILLING CODE 6560-50-F