[Federal Register Volume 73, Number 229 (Wednesday, November 26, 2008)]
[Rules and Regulations]
[Pages 71944-71945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28188]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[EPA-HQ-OPP-2007-1170; FRL-8390-7]


Modification of Pesticide Tolerance Revocation for Diazinon

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This final rule amends the pesticide tolerance regulation for 
diazinon by modifying the revocation of the tolerance for mushrooms. 
Pesticide tolerances are established under the Federal Food, Drug, and 
Cosmetic Act (FFDCA). This final rule resolves an objection filed by 
the American Mushroom Institute in response to a final rule on diazinon 
tolerances published on September 10, 2008, by granting the objection 
and modifying the revocation of the diazinon tolerance on mushrooms to 
expire on September 10, 2010.

DATES: This final rule is effective November 26, 2008.

ADDRESSES: EPA has established a docket for this action under docket 
identification (ID) number EPA-HQ-OPP-2007-1170. All documents in the 
docket are listed in the docket index available at http://www.regulations.gov. Although listed in the index, some information is 
not publicly available, e.g., Confidential Business Information (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 in the electronic 
docket at http://www.regulations.gov, or, if only available in hard 
copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac 
Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket 
Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, 
excluding legal holidays. The Docket Facility telephone number is (703) 
305-5805.

FOR FURTHER INFORMATION CONTACT: Jane Smith, Special Review and 
Reregistration Division (7508P), Office of Pesticide Programs, 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460-0001; telephone number: (703) 308-0048; fax 
number: (703) 308-8005; 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 code 111).
     Animal production (NAICS code 112).
     Food manufacturing (NAICS code 311).
     Pesticide manufacturing (NAICS code 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 underFOR FURTHER INFORMATION CONTACT.

B. How Can I Access Electronic Copies of this Document?

    In addition to accessing electronically available documents at 
http://www.regulations.gov, you may access this Federal Register 
document electronically through the EPA Internet under the ``Federal 
Register'' listings at http://www.epa.gov/fedrgstr. You may also access 
a frequently updated electronic version of 40 CFR part 180 through the 
Government Printing Office's e-CFR site at http://www.gpoaccess.gov/ecfr.

II. Prior Diazinon Tolerance Rulemaking

    On May 21, 2008 (73 FR 29456) (FRL-8362-1), EPA proposed the 
revocation of the tolerance for residues of diazinon, (O, O-diethyl O-
(6-methyl-2-(1-methylethyl)-4-pyrimidinyl]- phosphorothioate; CAS Reg. 
No. 333-41-5) in/on the food commodity mushroom at 0.75 parts per 
million (ppm) in 40 CFR 180.153(a) because a previous registration for 
the use of diazinon in mushroom houses had been canceled due in part to 
worker risk concerns.
    The preamble of the proposed rule stated the following:
    This proposed rule provides a comment period of 60 days for any 
person to state an interest in retaining a tolerance proposed for 
revocation. If EPA receives a comment within the 60-day period to 
that effect, EPA will not proceed to revoke the tolerance 
immediately.

    Within the 60-day comment period, the American Mushroom Institute 
(AMI) submitted a comment in response to the proposed rule requesting 
the Agency retain the diazinon tolerance on mushrooms stating that AMI 
is working to submit a new registration reinstating the use of diazinon 
in mushroom houses. AMI also stated that diazinon remains a valuable 
and unique pest management tool in mushroom production facilities, and 
indicated that an application would be filed to reinstate the canceled 
mushroom house use.
    On September 10, 2008 (73 FR 52607) (FRL-8379-9), EPA issued a 
final rule revoking the tolerance for residues of diazinon on mushrooms 
at 0.75 ppm (among others), effective immediately. The Agency 
acknowledged AMI's comment, nonetheless declining to maintain the 
tolerance because AMI had not stated an immediate need for the 
tolerance, stating that ``there are no current or pending uses of 
diazinon in mushroom houses and no resolution of the exposure risk to 
workers during application at this time.''

III. AMI Objection

    On November 4, 2008, AMI filed an objection to the tolerance 
rulemaking pursuant to 21 U.S.C. 346a(g)(2)(A), objecting to the 
revocation of the mushroom tolerance. AMI's basis for the objection is 
the statement in Unit I.C. of the proposed rule that EPA would not 
proceed to immediately revoke a tolerance where someone indicates an 
interest in retaining the tolerance.

IV. Order on Objection

    The basis for AMI's objection is sound. Given EPA's commitment in 
the proposed rule not to immediately

[[Page 71945]]

revoke the tolerance if a comment was filed requesting that the 
tolerance be retained, EPA erred by immediately revoking the mushroom 
tolerance for diazinon notwithstanding AMI's comment expressing an 
interest in retaining the tolerance. However, EPA did not commit in the 
proposed rule to an indefinite retention of the tolerance. Accordingly, 
EPA, by this final rule, and pursuant to FFDCA section 408(g)(2)(C), is 
amending the diazinon tolerance in 40 CFR 180.153(a) to reflect that 
the tolerance for mushrooms at 0.75 ppm is reinstated and will remain 
in effect until September 10, 2010. This will allow a reasonable period 
of time for either a person to successfully apply for a registration to 
bring back the use in mushroom houses, or for some existing registrant 
to obtain an amendment to an existing registration to bring back this 
use. If EPA approves an application reinstating the mushroom house use 
before the expiration date of September 10, 2010, EPA will either amend 
the tolerance to remove the expiration date or promulgate a new 
tolerance as appropriate. If no such registration action has occurred 
prior to that date, the revocation of the tolerance on mushrooms will 
become effective on September 10, 2010.

V. Conclusion

    Therefore, pursuant to FFDCA section 408(g)(2)(C), the tolerance 
for the residues of diazinon, (O, O-diethyl O-(6-methyl-2-(1-
methylethyl)-4-pyrimidinyl]- phosphorothioate; CAS Reg. No. 333-41-5), 
in or on the food commodity mushroom at 0.75 ppm is reinstated until 
September 10, 2010.

VI. Statutory and Executive Order Reviews

    EPA included the required statutory discussion in the September 10, 
2008 final rule (72 FR 52607).

VII. Congressional Review Act

    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 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: November 18, 2008.
Martha Monell,
Acting Director, 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), 346a and 371.


0
2. Section 180.153, is amended by alphabetically adding the following 
entry and a footnote to the table in paragraph (a) to read as follows:


Sec.  180.153  Diazinon; tolerances for residues.

    (a) General. * * *

------------------------------------------------------------------------
                                                              Parts per
                         Commodity                             million
------------------------------------------------------------------------
                                * * * * *
Mushroom...................................................     0.75 \2\
                                * * * * *
------------------------------------------------------------------------
\1\ * * *
\2\ The expiration/revocation date for this tolerance is 9/10/2010.

* * * * *
[FR Doc. E8-28188 Filed 11-25-08; 8:45 am]
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