[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

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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

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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.



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    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.

------------------------------------------------------------------------
                                Parts per                               
          Commodity              million     Expiration/Revocation Date 
------------------------------------------------------------------------
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