[Federal Register Volume 69, Number 52 (Wednesday, March 17, 2004)]
[Rules and Regulations]
[Pages 12542-12544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6008]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[OPP-2004-0084; FRL-7349-7]


Pesticide Tolerance Fees; Suspension of Collection

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is amending its regulations governing payment of fees for 
tolerance petitions and related activities to reflect the statutory 
requirement that the fees for tolerance petitions and related tolerance 
activities will not be collected during the period beginning on October 
1, 2003, and ending September 30, 2008. Under new legislation signed by 
the President on January 23, 2004, the collection of such fees is 
prohibited until after September 30, 2008. Collection is expected to 
resume on October 1, 2008. EPA is issuing this final rule without 
notice and opportunity for public comment because there is good cause 
to do so within the meaning of the Administrative Procedure Act (APA).

DATES: This final rule is effective March 11, 2004.

FOR FURTHER INFORMATION CONTACT: Jean M. Frane, Field and External 
Affairs Division (7506C), Office of Pesticide Programs, Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (703) 305-5944; fax number: (703) 305-5884; e-
mail address: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    You may be potentially affected by this action if you register 
pesticide products for food or feed uses, or submit petitions for 
pesticide tolerances. Additionally, this action may be of interest to 
agricultural producers, food manufacturers, or other pesticide 
manufacturers. Potentially affected categories and entities may 
include, but are not limited to:
     Crop production (NAICS 111)
     Animal production (NAICS 112)
     Food processing (NAICS 311)
     Pesticide manufacturers (NAICS 32532)
    This listing is not intended to be exhaustive, but rather provides 
a guide for readers regarding entities likely to be affected by this 
action. Other types of entities not listed in this unit could also be 
affected. The North American

[[Page 12543]]

Industrial Classification System (NAICS) codes have been provided to 
assist you and others in determining whether this action might apply to 
certain entities. To determine whether you or your business may be 
affected by this action, you should carefully examine the provisions in 
Unit II. If you have any questions regarding the applicability of this 
action to a particular entity, consult the person listed under FOR 
FURTHER INFORMATION CONTACT.

B. How Can I Get Copies of this Document and Other Related Information?

    1. Docket. EPA has established an official public docket for this 
action under docket identification (ID) number OPP-2004-0084. The 
official public docket consists of the documents specifically 
referenced in this action, any public comments received, and other 
information related to this action. Although a part of the official 
docket, the public docket does not include Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. The official public docket is the collection of materials 
that is available for public viewing at the Public Information and 
Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall 2, 
1921 Jefferson Davis Hwy., Arlington, VA. This docket facility is open 
from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal 
holidays. The docket telephone number is (703) 305-5805.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/. A frequently updated 
electronic version of 40 CFR part 180 is available at http://www.gpoaccess.gov/ecfr/, a beta site currently under development.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to view public comments, 
access the index listing of the contents of the official public docket, 
and to access those documents in the public docket that are available 
electronically. Although not all docket materials may be available 
electronically, you may still access any of the publicly available 
docket materials through the docket facility identified in Unit I.B.1. 
Once in the system, select ``search,'' then key in the appropriate 
docket ID number.

II. Current Tolerance Fees

    Under the Federal Food, Drug, and Cosmetic Act (FFDCA) (21 U.S.C. 
346a), EPA establishes pesticide tolerances and exemptions from the 
requirement of a tolerance for pesticide chemical residues in food and 
feed. Under section 408(d) of FFDCA, tolerances are established upon 
the petition of interested parties, such as pesticide producers or user 
groups. Under section 408(e) of FFDCA, EPA may also establish 
tolerances on its own initiative.
    Section 408(m) of FFDCA requires EPA to establish a fee system to 
support the tolerance program. Prior to the 1996 enactment of 
amendments to the FFDCA under the Food Quality Protection Act, this 
same authority was found in section 408(o) of FFDCA. Under that prior 
authority, EPA issued regulations establishing fees for pesticide 
petitions. The primary fee regulations are located in 40 CFR 180.33, 
and are referred to in Sec.  180.31 (pertaining to temporary 
tolerances) and in Sec.  180.32 (pertaining to amendment and repeal of 
tolerances). The fee regulations are updated annually to reflect the 
cost of government salary increases.
    In general, under Sec.  180.33, fees are prescribed for the 
submission and review of petitions for a permanent tolerance or 
exemption, temporary tolerance or exemption, or amendment or repeal 
(revocation) of a tolerance. Fees are also prescribed for the filing of 
objections to a tolerance or exemption, and for the costs of preparing 
a record for judicial review of an Agency order. Sections 180.31 and 
180.32 cross-reference the fees in Sec.  180.33.

III. New Registration Service Fees and Suspension of Collection of 
Current Tolerance Fees

    On January 23, 3004, President Bush signed into law the 
Consolidated Appropriations Act of 2004. This bill included provisions 
entitled the ``Pesticide Registration Improvement Act of 2003,'' which 
amends the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 
among other things, to establish a registration service fee system for 
covered pesticide registration applications and certain other 
registration-related actions
    Section 501(d)(2) of the Consolidated Appropriations Act of 2004 
prohibits EPA from collecting any tolerance fees under section 
408(m)(1) of FFDCA beginning on October 1, 2003, and ending on 
September 30, 2008. Accordingly, EPA will no longer collect fees as 
prescribed in 40 CFR 180.31, 180.32, or 180.33, for any tolerance 
petition, or petition-associated tolerance activity covered by section 
408(m)(1) of FFDCA.

IV. Good Cause Exemption under the APA

    EPA has determined that notice and comment on this amendment to the 
tolerance fee regulations is not required. Under the APA (5 U.S.C. 
553(b)(3)(B)), a rule is exempt from notice and public comments 
requirements ``when the agency for a good cause finds (and incorporates 
the finding and a brief statements of reasons therefor in the rule 
issued) that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest.''
    Section 501(d)(2) of the Consolidated Appropriations Act of 2004 
suspends the collection of fees under the authority of section 
408(m)(1) of FFDCA. Accordingly, this rule is merely a housekeeping 
measure that conforms the regulatory text to the statute. Because the 
requirement is imposed by statute, the revisions to the regulatory text 
do not have any substantive effect.
    Since the tolerance fee prohibition is statutory, public comment 
could not change the result dictated by the statute, and is therefore 
unnecessary and impracticable. In addition, delay in issuing this rule 
amending the existing regulations could result in confusion on the part 
of potential petitioners as to what fees are required. Notice and 
comment would therefore be contrary to the public interest. 
Accordingly, EPA has concluded that notice and comment on this rule 
would be impracticable, unnecessary, and contrary to the public 
interest, within the meaning of 5 U.S.C. 553(b)(3)(B).
    EPA also believes that there is good cause to make this rule 
effective immediately, rather than effective within 30 days, within the 
meaning of 5 U.S.C. 553(d)(3). For the reasons stated above, EPA has 
determined that it is unnecessary, impracticable and contrary to the 
public interest to delay revisions to the text of the regulations to 
incorporate the statutory requirement that the collection of such fees 
be suspended. In addition, EPA has balanced the necessity for immediate 
implementation against principles of fundamental fairness, which 
require that all affected persons be afforded a reasonable amount of 
time to prepare for the effective date of this rule. In so doing, EPA 
has concluded that, because the fee suspension is imposed by statute 
and is effective on October 1, 2003, the benefit to the public of 
making conforming changes to the regulatory text immediately outweighs 
the need, if

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any, to give affected parties time to adjust their behavior 
accordingly. Indeed, EPA has determined that, on balance, making this 
rule effective immediately is in the public interest and affected 
parties will better be served by the avoidance of confusion (as a 
result of a discrepancy between the statute and the regulatory text) 
with regard to such fees. Thus, EPA has concluded that good cause 
exists to make this rule effective immediately, within the meaning of 5 
U.S.C. 553(d)(3).

V. Statutory and Executive Order Reviews

    This final rule merely conforms the codified regulatory text to the 
terms of the recently enacted statute. Because the prohibition to 
collect the tolerance fees in the regulation is imposed by statute, the 
revisions to the regulatory text do not have any substantive effect. As 
such, under Executive Order 12866, entitled Regulatory Planning and 
Review (58 FR 51735, October 4, 1993), this action is not a 
``significant regulatory action'' and is therefore not subject to OMB 
review. This action does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.). Because this action is not subject to notice and comment 
requirements under the APA or any other statute, it is not subject to 
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) or sections 202 
and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 
104-4). Nor does this action significantly or uniquely affect small 
governments. This rule does not have tribal implications, as specified 
in Executive Order 13175, entitled Consultation and Coordination with 
Indian Tribal Governments (65 FR 67249, November 6, 2000). This action 
will not have federalism implications, as specified in Executive Order 
13132, entitled Federalism (64 FR 43255, August 10, 1999). This action 
is not subject to Executive Order 13045, entitled Protection of 
Children from Environmental Health Risks and Safety Risks (62 FR 19885, 
April 23, 1997), because it is not economically significant under 
Executive Order 12866. This action is not subject to Executive Order 
13211, Actions concerning Regulations that Significantly Affect Energy 
Supply, Distribution, or Use (66 FR 28355, May 22, 2001), because it is 
not a significant regulatory action under Executive Order 12866. This 
action does not involve technical standards; thus, the requirements of 
section 12(d) of the National Technology Transfer and Advancement Act 
of 1995 (15 U.S.C. 272 note) do not apply.

VI. Congressional Review Act

    The Congressional Review Act (CRA) (5 U.S.C. 801 et seq.) 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. Section 808 of the CRA allows the issuing agency to make 
a rule effective sooner than otherwise provided by the CRA if the 
agency makes a good cause finding that notice and public procedure is 
impracticable, unnecessary or contrary to the public interest. This 
determination must be supported by a brief statement (5 U.S.C. 808(2)). 
As stated previously, EPA has made such a good cause finding, including 
the reasons therefor, and established an effective date of March 11, 
2004. 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 action 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 11, 2004.
Susan B. Hazen,
Acting Assistant Administrator, Office of Prevention, Pesticides and 
Toxic Substances.

0
Therefore, 40 CFR chapter I is amended as follows:

PART 180--[AMENDED]

0
1. The authority citation for part 180 continues to read as follows:

    Authority: 21 U.S.C. 321q, 346a and 371.


0
2. In Sec.  180.31, paragraph (b)(1) is revised to read as follows:


Sec.  180.31  Temporary tolerances.

* * * * *
    (b) (1) A request for a temporary tolerance or a temporary 
exemption from a tolerance by a person who has obtained an experimental 
permit for a pesticide chemical under the Federal Insecticide, 
Fungicide, and Rodenticide Act shall be accompanied by a copy of such 
experimental permit, such data as are available on subjects outlined in 
clauses (A), (B), (C), (D), (E), (F), and (G) of section 408(d)(1) of 
FFDCA, and an advance deposit to cover fees as provided in Sec.  
180.33(d), except that no fee under this section shall be levied during 
the period beginning on October 1, 2003, and ending on September 30, 
2008.
* * * * *

0
3. In Sec.  180.32, paragraph (a) is revised to read as follows:


Sec.  180.32  Procedure for amending and repealing tolerances or 
exemptions from tolerances.

    (a) The Administrator on his own initiative or on request from an 
interested person furnishing reasonable ground therefor, may propose 
the issuance of a regulation amending or repealing a tolerance for a 
pesticide chemical on one or more raw agricultural commodities or 
granting or repealing an exemption from tolerance for such chemical. 
Requests for such amendment or repeal shall be made in writing and be 
accompanied by an advance deposit to cover fees as provided in Sec.  
180.33, except that no fee under this section shall be levied during 
the period beginning on October 1, 2003, and ending on September 30, 
2008.
* * * * *

0
4. Section 180.33 is amended by adding new paragraph (p) to read as 
follows:


Sec.  180.33  Fees.

* * * * *
    (p) No fee required by this section shall be levied during the 
period beginning on October 1, 2003, and ending September 30, 2008.
[FR Doc. 04-6008 Filed 3-16-04; 8:45 am]
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