[Federal Register Volume 67, Number 49 (Wednesday, March 13, 2002)]
[Rules and Regulations]
[Pages 11248-11251]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5868]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR PART 180

[OPP-30118; FRL-6774-3]
RIN 2070-AB78


Pesticide Tolerance Processing Fees

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Final rule.

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SUMMARY: This rule increases fees charged for processing tolerance 
petitions for pesticides under the Federal Food, Drug, and Cosmetic Act 
(FFDCA). The revision reflects a 4.94%, 3.81%, and 4.77% increase in 
locality pay for civilian Federal General Schedule employees working in 
the Washington, DC and Baltimore, MD metropolitan area in 2000, 2001, 
and 2002, respectively. Fees have not been adjusted since 1999 in 
anticipation of the tolerance fee revision rule proposed by EPA, which 
has not occured.

DATES: This rule is effective April 12, 2002.

FOR FURTHER INFORMATION CONTACT: For general information concerning 
this rule contact: Ed Setren, Resources Management Staff (7501C), 
Office of Pesticide Programs, Environmental Protection Agency, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460; telephone: (703) 305-
5927; fax: (703) 305-5060; e-mail address: [email protected].
    For technical information concerning tolerance petitions and 
individual fees contact: Sonya Brooks, Resources Management Staff 
(7501C), Office of Pesticide Programs, Environmental Protection Agency, 
1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone: (703) 
308-6423; fax: (703) 305-5060; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Does this Rule Apply to Me?

    This rule may directly affect any person who might petition the 
Agency for new tolerances, hold a pesticide registration with existing 
tolerances, or anyone who is interested in obtaining or retaining a 
tolerance in the absence of a registration. This group can include 
pesticide manufacturers or formulators, companies that manufacture 
chemicals used in formulating pesticides, importers of food, grower 
groups, or any person who seeks a tolerance. The vast majority of 
potentially affected categories and entities may include, but are not 
limited to:

[[Page 11249]]



----------------------------------------------------------------------------------------------------------------
                                                                                         Examples of potentially
              Categories                     NAICS codes               SIC codes            affected entities
----------------------------------------------------------------------------------------------------------------
Chemical industry                      325320                   0286                     Pesticide chemical
                                                                                          manufacturers
                                       115112                   0287                     Formulators, chemical
                                                                                          manufacturers of inert
                                                                                          ingredients
----------------------------------------------------------------------------------------------------------------

    This listing is not intended to be exhaustive, but rather provides 
a guide for readers regarding entities likely to be regulated by this 
action. Other types of entities not listed above could also be 
regulated. If available, the four-digit Standard Industrial 
Classification (SIC) codes or the six-digit North American Industrial 
Classification System (NAICS) codes have been provided to assist you 
and others in determining whether or not this rule applies to certain 
entities. To determine whether you or your business may be affected by 
this action, you should carefully examine the applicability provisions 
in the rule (see Unit IV). If you have any questions regarding the 
applicability of this action to a particular entity, consult the 
technical person listed under FOR FURTHER INFORMATION CONTACT.

II. How Can I Get Additional Information or Copies of this Document 
or Other Documents?

    1. Electronically. You may obtain electronic copies of this 
document and various support documents from the EPA Internet Home Page 
at http://www.epa.gov/. On the Home Page select ``Laws and 
Regulations'' ``Regulations and Proposed Rules'' and then look up the 
entry for this document under the ``Federal Register--Environmental 
Documents.'' You can also go directly to the ``Federal Register'' 
listings at http://www.epa.gov/homepage/fedrgstr/.
    2. In person or by phone. If you have any questions or need 
additional information about this action, you may contact the technical 
person identified under FOR FURTHER INFORMATION CONTACT. In addition, 
the official record for this rule, including the public version, has 
been established under docket control number OPP-30118. A public 
version of this record, including printed, paper versions of any 
electronic comments, which does not include any information claimed as 
CBI, is available for inspection in Rm. 119, Crystal Mall #2, 1921 
Jefferson Davis Highway, Arlington, VA, from 8:30 a.m. to 4 p.m., 
Monday through Friday, excluding legal holidays. The Public Information 
and Records Integrity Branch telephone number is (703) 305-5805.

III. What Action is the Agency Taking in this Rule?

    With this rule, the Agency is increasing the fees charged for 
processing tolerance petitions for pesticides under the Federal Food, 
Drug, and Cosmetic Act (FFDCA). The pay raise in 2000, 2001, and 2002 
for Federal General Schedule (GS) employees working in the Washington, 
DC/Baltimore, MD metropolitan pay area is 4.94%, 3.81%, and 4.77%, 
respectively. This increase in the fees charged for processing 
tolerance petitions reflects these recent pay raises.

IV. Why is the Agency Taking this Action?

    EPA is charged with the administration of section 408 of FFDCA. 
Section 408 authorizes the Agency to establish tolerance levels and 
exemptions from the requirements for tolerances for raw agricultural 
commodities. Section 408(o) requires the Agency to collect fees that 
will, in the aggregate, be sufficient to cover the costs of processing 
petitions for pesticide products. EPA is publishing this action 
pursuant to 40 CFR 180.33(o).
    The current fee schedule for tolerance petitions published in the 
Federal Register of May 26, 1999 (64 FR 28384) (FRL-6056-6), codified 
at 40 CFR 180.33, and became effective on June 26, 1999. At that time 
the fees were increased 3.68% in accordance with a provision in the 
regulation that provides for automatic annual adjustments to the fees 
based on annual percentage changes in Federal salaries (40 CFR 
180.33(o)).
    The Federal Employees Pay Comparability Act of 1990 (FEPCA) 
initiated locality-based comparability pay, known as ``locality pay.'' 
The intent of the legislation is to make Federal pay more responsive to 
local labor market conditions by adjusting General Schedule salaries on 
the basis of a comparison with non-Federal rates on a geographic, 
locality basis. The processing and review of tolerance petitions is 
conducted by EPA employees working in the Washington, DC/Baltimore, MD 
pay area.
    The pay raise in 2000, 2001, and 2002 for Federal General Schedule 
employees working in the Washington, DC/Baltimore, MD metropolitan pay 
area is 4.94%, 3.81%, and 4.77%, respectively; therefore, the tolerance 
petition fees are being increased by 4.94%, 3.81%, and 4.77%, 
respectively. The entire revised fee schedule is presented in 
Sec. 180.33 of the regulatory text for the reader's convenience. (All 
fees have been rounded to the nearest $25.00.)

V. Why is EPA Issuing this Action as a Final Rule?

    EPA is publishing this action as a final rule pursuant to 40 CFR 
180.33(o), which reads in part:
    (o) This fee schedule will be changed annually by the same 
percentage as the percent change in the Federal General Schedule 
(GS) pay scale [. . .]. When automatic adjustments are made based on 
the GS pay scale, the new fee schedule will be published in the 
Federal Register as a final rule to become effective 30 days or more 
after publication, as specified in the rule.

VI. What Regulatory Assessment Requirements Apply to this Action?

    This final rule amends the fees charged for processing tolerance 
petitions under FFDCA to reflect automatic adjustments based on the GS 
pay scale and is issued as a final rule pursuant to 40 CFR 180.33(o). 
Under Executive Order 12866, entitled Regulatory Planning and Review 
(58 FR 51735, October 4, 1993), this action is not a ``significant 
regulatory action'' subject to review by the Office of Management and 
Budget (OMB), nor is this final rule subject to Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use (66 FR 28355, May 22, 2001).
    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) (Public Law 104-4).
    Nor does it require any special considerations under Executive 
Order 12898, entitled Federal Actions to Address Environmental Justice 
in Minority Populations and Low-Income Populations (59 FR 7629, 
February 16, 1994); or OMB review or any Agency action under Executive 
Order 13045,

[[Page 11250]]

entitled Protection of Children from Environmental Health Risks and 
Safety Risks (62 FR 19885, April 23, 1997).
    This action does not involve any technical standards that would 
require Agency consideration of voluntary consensus standards pursuant 
to section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 
note).
    Since the Agency is authorized to make automatic adjustments based 
on the GS pay scale by issuing a final rule under 40 CFR 180.33(o), and 
is not required to issue a proposed rule, the requirements of the 
Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) do not apply.
    In addition, the Agency has determined that this action will not 
have a substantial direct effect on States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132, entitled Federalism (64 FR 43255, 
August 10, 1999). Executive Order 13132 requires EPA to develop an 
accountable process to ensure ``meaningful and timely input by State 
and local officials in the development of regulatory policies that have 
federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' This final rule directly regulates growers, food 
processors, food handlers and food retailers, not States. This action 
does not alter the relationships or distribution of power and 
responsibilities established by Congress in the preemption provisions 
of FFDCA section 408(n)(4).
    For these same reasons, the Agency has determined that this final 
rule does not have any ``tribal implications'' as described in 
Executive Order 13175, entitled Consultation and Coordination with 
Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive 
Order 13175, requires EPA to develop an accountable process to ensure 
``meaningful and timely input by tribal officials in the development of 
regulatory policies that have tribal implications.'' ``Policies that 
have tribal implications'' is defined in the Executive Order to include 
regulations that have ``substantial direct effects on one or more 
Indian tribes, on the relationship between the Federal government and 
the Indian tribes, or on the distribution of power and responsibilities 
between the Federal government and Indian tribes.''
    This final rule will not have substantial direct effects on tribal 
governments, on the relationship between the Federal government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal government and Indian tribes, as specified in 
Executive Order 13175. Thus, Executive Order 13175 does not apply to 
this rule.

VII. Must EPA Submit this Action to Congress and the General 
Accounting Office?

    Yes. 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 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.


    Dated: March 5, 2002.
Stephen L. Johnson,
Assistant Administrator, Office of Prevention, Pesticides and Toxic 
Substances.

    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.


    2. Section 180.33 is revised to read as follows:


Sec. 180.33  Fees.

    (a) Each petition or request for the establishment of a new 
tolerance or a tolerance higher than already established, shall be 
accompanied by a fee of $77,625, plus $1,950 for each raw agricultural 
commodity more than nine on which the establishment of a tolerance is 
requested, except as provided in paragraphs (b), (d), and (h) of this 
section.
    (b) Each petition or request for the establishment of a tolerance 
at a lower numerical level or levels than a tolerance already 
established for the same pesticide chemical, or for the establishment 
of a tolerance on additional raw agricultural commodities at the same 
numerical level as a tolerance already established for the same 
pesticide chemical, shall be accompanied by a fee of $17,750 plus 
$1,175 for each raw agricultural commodity on which a tolerance is 
requested.
    (c) Each petition or request for an exemption from the requirement 
of a tolerance or repeal of an exemption shall be accompanied by a fee 
of $14,325.
    (d) Each petition or request for a temporary tolerance or a 
temporary exemption from the requirement of a tolerance shall be 
accompanied by a fee of $31,000 except as provided in paragraph (e) of 
this section. A petition or request to renew or extend such temporary 
tolerance or temporary exemption shall be accompanied by a fee of 
$4,400.
    (e) A petition or request for a temporary tolerance for a pesticide 
chemical which has a tolerance for other uses at the same numerical 
level or a higher numerical level shall be accompanied by a fee of 
$15,425, plus $1,175 for each raw agricultural commodity on which the 
temporary tolerance is sought.
    (f) Each petition or request for repeal of a tolerance shall be 
accompanied by a fee of $9,700. Such fee is not required when, in 
connection with the change sought under this paragraph, a petition or 
request is filed for the establishment of new tolerances to take the 
place of those sought to be repealed and a fee is paid as required by 
paragraph (a) of this section.
    (g) If a petition or a request is not accepted for processing 
because it is technically incomplete, the fee, less $1,950 for handling 
and initial review, shall be returned. If a petition is withdrawn by 
the petitioner after initial processing, but before significant Agency 
scientific review has begun, the fee, less $1,950 for handling and 
initial review, shall be returned. If an unacceptable or withdrawn 
petition is resubmitted, it shall be accompanied by the fee that would 
be required if it were being submitted for the first time.
    (h) Each petition or request for a crop group tolerance, regardless 
of the number of raw agricultural commodities involved, shall be 
accompanied by a fee equal to the fee required by the

[[Page 11251]]

analogous category for a single tolerance that is not a crop group 
tolerance, i.e., paragraphs (a) through (f) of this section, without a 
charge for each commodity where that would otherwise apply.
    (i) Objections under section 408(d)(5) of the Act shall be 
accompanied by a filing fee of $3,875.
    (j)(1) In the event of a referral of a petition or proposal under 
this section to an advisory committee, the costs shall be borne by the 
person who requests the referral of the data to the advisory committee.
    (2) Costs of the advisory committee shall include compensation for 
experts as provided in Sec. 180.11(c) and the expenses of the 
secretariat, including the costs of duplicating petitions and other 
related material referred to the committee.
    (3) An advance deposit shall be made in the amount of $38,750 to 
cover the costs of the advisory committee. Further advance deposits of 
$38,750 each shall be made upon request of the Administrator when 
necessary to prevent arrears in the payment of such costs. Any deposits 
in excess of actual expenses will be refunded to the depositor.
    (k) The person who files a petition for judicial review of an order 
under section 408(d)(5) or (e) of the Act shall pay the costs of 
preparing the record on which the order is based unless the person has 
no financial interest in the petition for judicial review.
    (l) No fee under this section will be imposed on the Interregional 
Research Project Number 4 (IR-4 Program).
    (m) The Administrator may waive or refund part or all of any fee 
imposed by this section if the Administrator determines in his or her 
sole discretion that such a waiver or refund will promote the public 
interest or that payment of the fee would work an unreasonable hardship 
on the person on whom the fee is imposed. A request for waiver or 
refund of a fee shall be submitted in writing to the Environmental 
Protection Agency, Office of Pesticide Programs, Registration Division 
(7505C), 1200 Pennsylvania Avenue, NW., Washington, DC 20460. A fee of 
$1,950 shall accompany every request for a waiver or refund, except 
that the fee under this sentence shall not be imposed on any person who 
has no financial interest in any action requested by such person under 
paragraphs (a) through (k) of this section. The fee for requesting a 
waiver or refund shall be refunded if the request is granted.
    (n) All deposits and fees required by the regulations in this part 
shall be paid by money order, bank draft, or certified check drawn to 
the order of the Environmental Protection Agency. All deposits and fees 
shall be forwarded to the Environmental Protection Agency, Headquarters 
Accounting Operations Branch, Office of Pesticide Programs (Tolerance 
Fees), P.O. Box 360277M, Pittsburgh, PA 15251. The payments should be 
specifically labeled ``Tolerance Petition Fees'' and should be 
accompanied only by a copy of the letter or petition requesting the 
tolerance. The actual letter or petition, along with supporting data, 
shall be forwarded within 30 days of payment to the Environmental 
Protection Agency, Office of Pesticide Programs, Registration Division 
(7505C), 1200 Pennsylvania Avenue, NW., Washington, DC 20460. A 
petition will not be accepted for processing until the required fees 
have been submitted. A petition for which a waiver of fees has been 
requested will not be accepted for processing until the fee has been 
waived or, if the waiver has been denied, the proper fee is submitted 
after notice of denial. A request for waiver or refund will not be 
accepted after scientific review has begun on a petition.
    (o) This fee schedule will be changed annually by the same 
percentage as the percent change in the Federal General Schedule (GS) 
pay scale. In addition, processing costs and fees will periodically be 
reviewed and changes will be made to the schedule as necessary. When 
automatic adjustments are made based on the GS pay scale, the new fee 
schedule will be published in the Federal Register as a final rule to 
become effective 30 days or more after publication, as specified in the 
rule. When changes are made based on periodic reviews, the changes will 
be subject to public comment.
[FR Doc. 02-5868 Filed 3-12-02; 8:45 am]
BILLING CODE 6560-50-S