[Federal Register Volume 64, Number 81 (Wednesday, April 28, 1999)]
[Rules and Regulations]
[Pages 22797-22799]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-10521]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[OPP-300845; FRL-6073-7]
RIN 2070-AB78


Fluroxypyr 1-Methylheptyl Ester; Extension of Tolerance for 
Emergency Exemptions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This regulation extends time-limited tolerances for the 
combined residues of the herbicide fluroxypyr 1-methylheptyl ester and 
its metabolite fluroxypyr in or on corn, sweet, K + CWHR at 0.05 ppm; 
corn, sweet, forage at 2.0 ppm; corn, sweet, stover at 2.5 ppm; corn, 
field, grain at 0.05 ppm; corn, field, forage at 2.0 ppm; corn, field, 
stover at 2.5 ppm for an additional 2-year period. These tolerances 
will expire and are revoked on December 1, 2001. This action is in 
response to EPA's granting of an emergency exemption under section 18 
of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) 
authorizing use of the pesticide on field corn and sweet corn. Section 
408(l)(6) of the Federal Food, Drug, and Cosmetic Act requires EPA to 
establish a time-limited tolerance or exemption from the requirement 
for 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 FIFRA section 18.

DATES: This regulation becomes effective April 28, 1999. Objections and 
requests for hearings must be received by EPA, on or before June 28, 
1999.
ADDRESSES: Written objections and hearing requests, identified by the 
docket control number [OPP-300845], 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 filed with the Hearing Clerk identified by the docket control 
number, [OPP-300845], 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: opp-
[email protected]. Copies of electronic 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 5.1/6.1 or ASCII 
file format. All copies of electronic objections and hearing requests 
must be identified by the docket control number [OPP-300845]. No 
Confidential Business Information (CBI) should be submitted through e-
mail. Copies of electronic objections and hearing requests on this rule 
may be filed online at many Federal Depository Libraries.

FOR FURTHER INFORMATION CONTACT: By mail: Andrew Ertman, 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. 280, Crystal Mall 
#2, 1921 Jefferson Davis Hwy., Arlington, VA, (703)308-9367; 
[email protected].

SUPPLEMENTARY INFORMATION: EPA issued a final rule, published in the 
Federal Register of August 5, 1998 (63 FR 41727) (FRL-6018-4), which 
announced that on its own initiative under section 408 of the Federal 
Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(e) and (l)(6), as 
amended by the Food Quality Protection Act of 1996 (FQPA) (Pub. L. 104-
170) it established time-limited tolerances for the combined residues 
of fluroxypyr 1-methylheptyl ester and its metabolite fluroxypyr in or 
on corn, sweet, K + CWHR at 0.05 ppm; corn, sweet, forage at 2.0 ppm; 
corn, sweet, stover at 2.5 ppm; corn, field, grain at 0.05 ppm; corn, 
field, forage at 2.0 ppm; corn, field, stover at 2.5 ppm, with an 
expiration date of December 1, 1999. EPA established the tolerances 
because section 408(l)(6) of the FFDCA requires EPA to establish a 
time-limited tolerance or exemption from the requirement for 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 FIFRA section 18. Such tolerances can be established without 
providing notice or period for public comment.
    EPA received a request to extend the use of fluroxypyr on field 
corn and sweet corn to control volunteer potatoes for this year's 
growing season due to the continuation of the emergency condition. The 
applicants stated that volunteer potatoes are one of the main sources 
for overwintering of obligate pests of potatoes including late blight 
and leafroll virus. The populations of volunteer potatoes in are 
closely related to the severity of winter temperature conditions. When 
soil temperatures reach levels low enough to freeze tubers remaining in 
the soil after harvest, volunteer potatoes are generally not a problem. 
However, following mild winters, volunteer potatoes are always present 
in crops following potatoes in the rotation. Sustained temperatures of 
28 deg.F or less are required to kill the tubers and prevent emergence 
of volunteers.
    The applicants stated that volunteer potato populations will be 
high in 1999 and that volunteer potato plants will act as a source of 
infection from both late blight and leafroll virus. After having 
reviewed the submission, EPA concurs that emergency conditions exist. 
EPA has authorized under FIFRA section 18 the use of fluroxypyr on 
field corn and sweet corn for control of volunteer potatoes in Oregon 
and Washington.
    EPA assessed the potential risks presented by residues of 
fluroxypyr in or on field corn and sweet corn. In doing so, EPA 
considered the safety standard in FFDCA section 408(b)(2), and decided 
that the necessary tolerances under FFDCA section 408(l)(6) would be 
consistent with the safety standard and with FIFRA section 18. The data 
and other relevant material have been evaluated and discussed in the 
final rule of August 5, 1998 (63 FR 41727) (FRL-6018-4). Based on that 
data and information considered, the Agency reaffirms that extension of 
the time-limited tolerances will continue to meet the requirements of 
section 408(l)(6). Therefore, the time-limited tolerances are extended 
for an additional 2-year period. EPA will publish a document in the 
Federal Register to remove the revoked tolerances from the Code of 
Federal Regulations (CFR). Although these tolerances will expire and 
are revoked on December 1, 2001, under FFDCA section 408(l)(5), 
residues of the pesticide not in excess of the amounts specified in the 
tolerances remaining in or on field corn and sweet corn 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 tolerances. EPA will

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take action to revoke these tolerances 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 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 June 28, 1999, 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 under the ``ADDRESSES'' section (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). EPA is authorized to waive any fee requirement 
``when in the judgement of the Administrator such a waiver or refund is 
equitable and not contrary to the purpose of this subsection.'' For 
additional information regarding tolerance objection fee waivers, 
contact James Tompkins, 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. 239, Crystal Mall 2, 1921 Jefferson Davis Hwy., 
Arlington, VA, (703) 305-5697, [email protected]. Requests for 
waiver of tolerance objection fees should be sent to James Hollins, 
Information Resources and Services Division (7502C), Office of 
Pesticide Programs, Environmental Protection Agency, 401 M St., SW., 
Washington, DC 20460.
    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 may be disclosed publicly by EPA without prior notice.

II. Public Record and Electronic Submissions

    EPA has established a record for this regulation under docket 
control number [OPP-300845] (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 8:30 a.m. 
to 4 p.m., Monday through Friday, excluding legal holidays. The public 
record is located in Room 119 of the Public Information and Records 
Integrity Branch, Information Resources and Services Division (7502C), 
Office of Pesticide Programs, Environmental Protection Agency, Crystal 
Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA.
    Objections and hearing requests may be sent by e-mail directly to 
EPA at:
    [email protected].


    E-mailed objections and hearing requests must be submitted as an 
ASCII file avoiding the use of special characters and any form of 
encryption.
    The official record for this regulation, as well as the public 
version, as described in this unit 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 record which 
will also include all comments submitted directly in writing. The 
official record is the paper record maintained at the Virginia address 
in ``ADDRESSES'' at the beginning of this document.

III. Regulatory Assessment Requirements

A. Certain Acts and Executive Orders

    This final rule establishes a tolerance under section 408 of the 
FFDCA. 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). 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 
specficed 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).
    In addition, since tolerances and exemptions that are established 
under section 408(l)(6) of FFDCA, such as the tolerances in this final 
rule, do 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 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.

B. Executive Order 12875

    Under Executive Order 12875, entitled Enhancing the 
Intergovernmental Partnership (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,

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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 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 officials 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.

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 of the rule, 
to each House of the Congress and 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 the rule in the Federal Register. This rule 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.

    Dated: April 16, 1999.

James Jones,
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. 321(q), 346a, and 371.


Sec. 180.535   [Amended]

    2. In Sec. 180.535, by amending the table in paragraph (b), by 
revising the date ``12/01/99'' to read ``12/01/01.''

[FR Doc. 99-10521 Filed 4-27-99; 8:45 am]
BILLING CODE 6560-50-F