[Federal Register Volume 70, Number 27 (Thursday, February 10, 2005)]
[Rules and Regulations]
[Pages 7044-7047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-2614]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[OPP-2005-0025; FRL-7690-6]


Pesticides; Removal of Expired Time-limited Tolerances for 
Emergency Exemptions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is amending 40 CFR part 180 to remove time-limited 
tolerances for several pesticides that were originally established to 
support emergency exemptions issued under section 18 of the Federal 
Insecticide, Fungicide, and Rodenticide Act (FIFRA). These time-limited 
tolerances are being removed from 40 CFR part 180 because they have 
since expired. The expired time-limited tolerances are obsolete and 
therefore unnecessary and are being removed with this final rule to 
ensure that the regulatory listings of tolerances is properly updated.

DATES: This regulation is effective February 10, 2005. Objections and 
requests for hearings must be received on or before April 11, 2005.

ADDRESSES: EPA has established a docket for this action under Docket ID 
number OPP-2005-0025. All documents in the docket are listed in the 
EDOCKET index at http://www.epa.gov/edocket. Although listed in the 
index, some information is not publicly available, i.e., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically in 
EDOCKET or in hard copy at the Public Information and Records Integrity 
Branch (PIRIB), Rm. 119, Crystal Mall 2, 1801 S. Bell St., 
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.

FOR FURTHER INFORMATION CONTACT: Dan Rosenblatt, Registration Division 
(7505C), Office of Pesticide Programs, Environmental Protection Agency, 
1200 Pennsylvania Ave., NW.,Washington, DC 20460; telephone number: 
(703) 308-9366; and 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 are an 
agricultural producer, food manufacturer, or pesticide manufacturer. 
Potentially affected entities may include, but are not limited to:
     Crop production (NAICS 111)
     Animal production (NAICS 112)
     Food manufacturing (NAICS 311)
     Pesticide manufacturing (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 Industrial Classification System (NAICS) 
codes have been provided to assist you and others in determining 
whether this action might apply to certain entities. If you have any 
questions regarding the applicability of this action to a particular 
entity, consult the person listed under FOR FURTHER INFORMATION 
CONTACT.

[[Page 7045]]

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

    In addition to using EDOCKET (http://www.epa.gov/edocket/), 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 E-CFR Beta Site Two at http://www.gpoaccess.gov/ecfr/.

C. How Can I Submit an Objection or Request a Hearing Under FFDCA?

    Although section 408(g) of the Federal Food, Drug, and Cosmetic Act 
(FFDCA), as amended by the Food Quality Protection Act (FQPA), allows 
any person to file an objection or request a hearing when the Agency 
issues a final tolerance action under section 408, EPA does not expect 
that anyone will file an objection or request a hearing for this 
particular rule because the tolerances being revoked here are obsolete. 
If, for some reason, anyone wishes to file an objection or request for 
a hearing under section 408(g), please follow the EPA procedural 
regulations which govern the submission of objections and requests for 
hearings that appear in 40 CFR part 178. Note that the period for 
filing objections is now 60 days, rather than 30 days.

II. Authority

A. What is EPA's Authority for Revoking these Tolerances?

    This final rule is issued pursuant to section 408(e) of FFDCA, as 
amended by the FQPA (21 U.S.C. 346a(e)). Section 408 of FFDCA 
authorizes the establishment of tolerances, exemptions from the 
requirement of a tolerance, modifications in tolerances, and revocation 
of tolerances for residues of pesticide chemicals in or on raw 
agricultural commodities and processed foods. Without a tolerance or 
tolerance exemption, food containing pesticide residues is considered 
to be unsafe and therefore ``adulterated'' under section 402(a) of the 
FFDCA. If food containing pesticide residues is found to be 
adulterated, the food may not be distributed in interstate commerce (21 
U.S.C. 331(a) and 342(a)).

B. Why is EPA Issuing this as a Final Rule?

    Section 553 of the Administrative Procedure Act, 5 U.S.C. 
553(b)(B), provides that, when an agency for good cause finds that 
notice and public procedure are impracticable, unnecessary or contrary 
to the public interest, the agency may issue a rule without providing 
notice and an opportunity for public comment. EPA has determined that 
there is good cause for making today's rule final without prior 
proposal and opportunity for comment because the actions taken in this 
final rule represent technical corrections to the regulations and do 
not involve substantive Agency action.
    The removal of an expired time-limited tolerance from 40 CFR part 
180 represents a simple correction of the regulations, and does not 
involve any substantive Agency action. The expiration date for the 
time-limited tolerance is set when the Agency issues the final rule 
that originally establishes, or a subsequent final rule that amends, 
the specific time-limited tolerance. Once that time-limited tolerance 
expires, the associated listing in 40 CFR part 180 is obsolete and must 
be removed to reflect that expiration.
    For these reasons, notice and public procedure are unnecessary. EPA 
finds that this constitutes good cause under 5 U.S.C. 553(b)(B).

III. Overview of Today's Action

A. What Action is EPA Taking?

    For each pesticide chemical and commodity combination listed below, 
EPA previously established a time-limited tolerance, under section 408 
of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as 
amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 
104-170). 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 section 18 of FIFRA. These 
time-limited tolerances are being removed from 40 CFR part 180 today 
because they have since expired making these time-limited tolerances 
obsolete.

B. Which Time-Limited Tolerances are Obsolete?

    The time-limited tolerances for the following pesticide chemicals 
on specific commodities are being removed from 40 CFR part 180 because 
the time-limited tolerances have expired for the pesticide and 
commodity covered by the time-limited tolerance. Therefore, the time-
limited tolerance is obsolete and no longer necessary:
    1. Aluminum tris. The time-limited tolerance for succulent pea is 
being removed from Sec.  180.415 because it expired on September 31, 
2000.
    2. Azoxystrobin. Time-limited tolerances for chickpea seed, lychee 
and pepper are being removed from Sec.  180.507 because they expired on 
December 31, 2003.
    3. Bifenthrin. Time-limited tolerances for peanut and potato are 
being removed from Sec.  180.442 because they expired on or before 
December 31, 2003.
    4. Bromoxynil. Time-limited tolerances for timothy hay and forage 
are being removed from Sec.  180.324 because they expired on June 30, 
2003.
    5. Clethodim. The time-limited tolerances for tall fescue hay and 
forage are being removed from Sec.  180.458 because they expired on 
June 30, 2004.
    6. Cymoxanil. The time-limited tolerance for dried cone hop is 
being removed from Sec.  180.503 because it expired on December 31, 
2003.
    7. Cyprodinil. The time-limited tolerance for caneberries is being 
removed from Sec.  180.532 because it expired on December 31, 2003.
    8. Cyfluthrin. Time-limited tolerances for grape and raisin are 
being removed from Sec.  180.436 because they expired on June 30, 2003.
    9. Dimethomorph. Time-limited tolerances for cantaloupe, cucumber, 
squash, and watermelon are being removed from Sec.  180.493 because 
they expired on December 31, 2003.
    10. Fluroxypyr 1-methylheptyl ester. Time-limited tolerances for 
cattle kidney, goat kidney, grass forage and hay, hog kidney, horse 
kidney, milk and sheep kidney are being removed from Sec.  180.535 
because they expired on December 31, 2004.
    11. Imidacloprid. Time-limited tolerances for garden beet roots and 
tops, blueberry, cranberry, prune, and legume vegetable are being 
removed from Sec.  180.472 because they expired on or before June 30, 
2004.
    12. Metolachlor. Time-limited tolerances for grass forage and hay, 
spinach, tomato, tomato paste and tomato puree are being removed from 
Sec.  180.368 because they expired on or before December 31, 2004.
    13. Methoxyfenozide. Time-limited tolerances for field corn forage, 
grain and stover and corn oil are being removed from Sec.  180.544 
because they expired on December 31, 2003.
    14. Norflurazon. Time-limited tolerances for Bermuda grass hay and 
forage are being removed from Sec.  180.356 because they expired on 
November 30, 2002.
    15. Propamocarb. Time-limited tolerances for tomato and tomato 
paste are being removed from Sec.  180.499 because they expired on 
December 31, 2003.

[[Page 7046]]

    17. Pymetrozine. The time-limited tolerance for pecan is being 
removed from Sec.  180.556 because it expired on December 31, 2002.
    18. Pyriproxyfen. The time-limited tolerance for stone fruit (group 
12) is being removed from Sec.  180.510 because it expired on December 
31, 2002.
    19. Spinosad. The time-limited tolerance for cranberry is being 
removed from Sec.  180.495 because it expired on June 30, 2003.
    20. Sulfentrazone. The time-limited tolerance for chickpea seed is 
being removed from Sec.  180.498 because it expired on December 31, 
2004.
    21. Tebuconazole. The time-limited tolerance for hops is being 
removed from Sec.  180.474 because it expired on December 31, 2003.
    22. Tebufenozide. Time-limited tolerances for egg, grass forage and 
hay, longan, lychee, peanut, peanut hay, peanut meal, peanut oil, 
poultry fat, poultry meat, poultry meat byproducts, sunflower seed, 
foliage of legume vegetable (group 7) and legume vegetable (group 6) 
are being from Sec.  180.482 removed because they expired on or before 
December 31, 2003.
    23. Triflumizole. The time-limited tolerance for filbert is being 
removed from Sec.  180.476 because it expired on June 30, 2004.
    24. Zinc phosphide. The time-limited tolerance for wheat aspirated 
grain fractions is being removed from Sec.  180.284 because it expired 
on December 31, 2003.

IV. Regulatory Assessment Requirements

    This final rule removes obsolete time-limited tolerances that were 
previously established under FFDCA section 408 of the FFDCA. The Office 
of Management and Budget (OMB) has exempted tolerance actions like this 
revocation from review under Executive Order 12866, entitled Regulatory 
Planning and Review (58 FR 51735, October 4, 1993). Because this rule 
has been exempted from review under Executive Order 12866, this rule is 
not subject to Executive Order 13045, entitled Protection of Children 
from Environmental Health Risks and Safety Risks (62 FR 19885, April 
23, 1997), or Executive Order 13211, entitled Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use (66 FR 28355, May 22, 2001). Because the agency has made a ``good 
cause'' finding that this action is not subject to notice-and-comment 
requirements under the Administrative Procedure Act or any other 
statute (see discussion in Unit II.B. of this preamble), it is not 
subject to the regulatory flexibility provisions of the Regulatory 
Flexibility Act (RFA)(5 U.S.C. 601 et seq.), or to sections 202 and 205 
of the Unfunded Mandates Reform Act of 1995 (UMRA)(Public Law 104-4). 
In addition, this action does not significantly or uniquely affect 
small governments or impose a significant intergovernmental mandate, as 
described in sections 203 and 204 of UMRA. 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). This action will not have substantial direct effects on 
State or tribal governments, on the relationship between the Federal 
government and States or Indian tribes, or on the distribution of power 
and responsibilities between the Federal government and States or 
Indian tribes. As a result, this action does not require any action 
under Executive Order 13132, entitled Federalism (64 FR 43255, August 
10, 1999), or under Executive Order 13175, entitled Consultation and 
Coordination with Indian Tribal Governments (65 FR 67249, November 6, 
2000). Nor does it require 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 Executive Order 12630, entitled Governmental Actions and 
Interference with Constitutionally Protected Property Rights (53 FR 
8859, March 15, 1988). 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). This rule does not impose 
an information collection burden under the provisions of the Paperwork 
Reduction Act (PRA)(44 U.S.C. 3501 et seq.). In issuing this rule, EPA 
has taken the necessary steps to eliminate drafting errors and 
ambiguity, minimize potential litigation, and provide a clear legal 
standard for affected conduct, as required by section 3 of Executive 
Order 12988 (61 FR 4729, February 7, 1996).

V. Submission to Congress and the Comptroller General

    The Congressional Review Act, 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 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 in Unit 
II.B., EPA has made such a good cause finding for this rule, including 
the reasons therefor, and established an effective date of February 10, 
2005. 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 final rule in the Federal Register. This final 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: January 30, 2005.
Lois Rossi,
Director, Registration Division, Office of Pesticide Programs.

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


Sec.  180.284  [Amended]

0
2. In Sec.  180.284 in the table in paragraph (b), remove the entry for 
wheat, aspirated grain fractions.

0
3. In Sec.  180.324, paragraph (b) is removed and reserved as follows:


Sec.  180.324  Bromoxynil; tolerances for residues.

* * * * *
    (b) Section 18 emergency exemptions. [Reserved]
* * * * *

0
4. In Sec.  180.356, paragraph (b) is removed and reserved as follows:


Sec.  180.356  Norflurazon; tolerances for residues.

* * * * *
    (b) Section 18 emergency exemptions. [Reserved]
* * * * *

0
5. In Sec.  180.368, paragraph (b) is removed and reserved as follows:

[[Page 7047]]

Sec.  180.368  Metholachlor; tolerances for residues.

* * * * *
    (b) Section 18 emergency exemptions. [Reserved]
* * * * *

0
6. In Sec.  180.415, paragraph (b) is removed and reserved as follows:


Sec.  180.415  Aluminum tris (O-ethylphosphate); tolerances for 
residues.

* * * * *
    (b) Section 18 emergency exemptions. [Reserved]
* * * * *

0
7. In Sec.  180.436, paragraph (b) is removed and reserved as follows:


Sec.  180.436  Cyfluthrin; tolerances for residues

* * * * *
    (b) Section 18 emergency exemptions. [Reserved]
* * * * *


Sec.  180.442  [Amended]

0
8. In Sec.  180.442 in the table in paragraph (b), remove the entries 
for peanut and potato.

0
9. In Sec.  180.458, paragraph (b) is removed and reserved as follows:


Sec.  180.458  Clethodim; tolerances for residues.

* * * * *
    (b) Section 18 emergency exemptions. [Reserved]
* * * * *

0
10. In Sec.  180.472, the table in paragraph (b) is revised to read as 
follows:


Sec.  180.472  Imidacloprid; tolerances for residues.

    (b) * * *

------------------------------------------------------------------------
                                                             Expiration/
                   Commodity                     Parts per    revocation
                                                  million        date
------------------------------------------------------------------------
Almond........................................         0.05     12/31/05
Almond, hulls.................................          4.0     12/31/05
Soybean, seed.................................          1.0     12/31/06
------------------------------------------------------------------------

* * * * *


Sec.  180.474  [Amended]

0
11. In Sec.  180.474, in the table in paragraph (b), remove the entry 
for hop.

0
12. In Sec.  180.476, paragraph (b) is removed and reserved as follows:


Sec.  180.476  Triflumizole; tolerances for residues.

* * * * *
    (b) Section 18 emergency exemptions. [Reserved]
* * * * *

0
13. In Sec.  180.482, the table in paragraph (b) is revised to read as 
follows:


Sec.  180.482  Tebufenozide; tolerances for residues.

* * * * *
    (b) * * *

------------------------------------------------------------------------
                                                             Expiration/
                   Commodity                     Parts per    revocation
                                                  million        date
------------------------------------------------------------------------
Beet, garden, roots...........................          0.3     12/31/05
Beet, garden, tops............................          9.0     12/31/05
Grape.........................................          3.0     12/31/05
Sweet potato, roots...........................         0.25     12/31/05
------------------------------------------------------------------------

* * * * *

0
14. In Sec.  180.493, paragraph (b) is removed and reserved as follows:


Sec.  180.493  Dimethomorph; tolerances for residues.

* * * * *
    (b) Section 18 emergency exemptions. [Reserved]
* * * * *


Sec.  180.495  [Amended]

0
15. In Sec.  180.495, in the table in paragraph (b), remove the entry 
for cranberry.


Sec.  180.498  [Amended]

0
16. In Sec.  180.498, in the table in paragraph (b), remove the entry 
for chickpea, seed.

0
17. In Sec.  180.499, paragraph (b) is removed and reserved as follows:


Sec.  180.499  Propamocarb hydrochloride; tolerances for residues.

* * * * *
    (b) Section 18 emergency exemptions. [Reserved]
* * * * *

0
18. In Sec.  180.503, paragraph (b) is removed and reserved as follows:


Sec.  180.503  Cymoxanil, tolerances for residues.

* * * * *
    (b) Section 18 emergency exemptions. [Reserved]
* * * * *


Sec.  180.507  [Amended]

0
19. In Sec.  180.507, the table in paragraph (b) is Amended by removing 
the entries for chickpea, seed; lychee; and pepper.


Sec.  180.510  [Amended]

0
20. In Sec.  180.510, in the table in paragraph (b), remove the entry 
for Fruit, stone, group 12.

0
21. In Sec.  180.532, paragraph (b) is removed and reserved as follows:


Sec.  180.532  Cyprodinil; tolerances for residues.

* * * * *
    (b) Section 18 emergency exemptions. [Reserved]
* * * * *


Sec.  180.535  [Amended]

0
22. In Sec.  180.535, in the table in paragraph (b), remove the 
entries, cattle, kidney; goat, kidney; grass, forage; grass, hay; hog, 
kidney; horse, kidney; milk and sheep, kidney.


Sec.  180.544  [Amended]

0
23. In Sec.  180.544, in the table in paragraph (b), remove the 
entries, corn, field, forage; corn, field, grain; corn, field, stover; 
and corn, oil.

0
24. In Sec.  180.556, paragraph (b) is removed and reserved as follows:


Sec.  180.556  Pymetrizone; tolerances for residues.

* * * * *
    (b) Section 18 emergency exemptions. [Reserved]
* * * * *

[FR Doc. 05-2614 Filed 2-9-05; 8:45 a.m.]
BILLING CODE 6560-50-S