[Federal Register Volume 76, Number 61 (Wednesday, March 30, 2011)]
[Proposed Rules]
[Pages 17611-17613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7462]
[[Page 17611]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 180
[EPA-HQ-OPP-2005-0253; FRL-8866-6]
Propylene Oxide; Proposed Pesticide Tolerance
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: This document proposes to amend the propylene oxide tolerance
on ``nut, tree, group 14'' to ``nutmeat, processed, except peanuts'' to
correct an error in a prior rulemaking.
DATES: Comments must be received on or before April 14, 2011.
ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPP-2005-0253, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
Mail: Office of Pesticide Programs (OPP) Regulatory Public
Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460-0001.
Delivery: OPP Regulatory Public Docket (7502P),
Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South
Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only
accepted during the Docket Facility's normal hours of operation (8:30
a.m. to 4 p.m., Monday through Friday, excluding legal holidays).
Special arrangements should be made for deliveries of boxed
information. The Docket Facility telephone number is (703) 305-5805.
Instructions: Direct your comments to docket ID number EPA-HQ-OPP-
2005-0253. EPA's policy is that all comments received will be included
in the docket without change and may be made available on-line at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through regulations.gov or e-
mail. The regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through regulations.gov,
your e-mail address will be automatically captured and included as part
of the comment that is placed in the docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: 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., 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 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 hours of
operation of this Docket Facility are 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: Heather Garvie, Registration Division
(7505P), Office of Pesticide Programs, Environmental Protection Agency,
1200 Pennsylvania Ave, NW., Washington, DC 20460-0001; telephone
number: (703) 308-0034; 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 under FOR FURTHER INFORMATION
CONTACT.
B. What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for preparing your comments. When submitting comments,
remember to:
i. Identify the document by docket ID number and other identifying
information (subject heading, Federal Register date and page number).
ii. Follow directions. The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information
and/or data that you used.
v. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
vi. Provide specific examples to illustrate your concerns and
suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
viii. Make sure to submit your comments by the comment period
deadline identified.
II. This Proposal
In this action, EPA is proposing to amend the propylene oxide
tolerance
[[Page 17612]]
(40 CFR 180.491) on ``nut, tree, group 14'' to read ``nutmeat,
processed, except peanuts.'' A final rule published in the Federal
Register of September 24, 2008 (73 FR 54954) (FRL-8382-2). EPA took the
opposite action--amending the propylene oxide tolerance by replacing
``nutmeat, processed, except peanuts'' with ``nut, tree, group 14.''
EPA explained that its 2008 action was taken to ``conform'' the
commodity terms in the propylene oxide tolerances with ``current Agency
practice.'' A proposed rule was published in the Federal Register of
June 4, 2008 (73 FR 31788, 317990) (FRL-8363-9). The Reregistration
Eligibility Decision for propylene oxide further explained that
although ``no change to the current tolerance level is required for
nutmeat (processed, except peanuts),'' * * * ``corrections need to be
made to some of the existing commodity definitions'' including changing
the nutmeats tolerance to a tree nut group tolerance. EPA, published a
notice, Reregistration Eligibility Decision for Propylene Oxide, in the
Federal Register of August 9, 2006 (71 FR 45555) (FRL-8066-9).
Despite these explanations that the change to the nutmeats
tolerance was a conforming technical correction without substantive
effect, the changed tolerance terminology is significantly different
than the commodity term it replaced. Crop Group 14 (tree nuts) applies
to a specific list of raw nuts. On its face, ``nutmeat, processed,
except peanuts'' applies to all processed nutmeats other than peanuts.
Such a substantive change to the scope of a tolerance cannot be
effected unless the Agency makes the necessary statutory findings under
FFDCA section 408. Because no such findings were made, EPA considers
the prior action to have been without effect and the pre-existing
tolerance covering ``nutmeat, processed, except peanuts'' to define the
scope of the propylene oxide tolerance as to nuts. Accordingly, EPA is
proposing in this action to correct the propylene oxide tolerance in
the CFR by returning to the status quo prior to rulemaking of September
24, 2008. Under this proposal, the nutmeat tolerance for propylene
oxide would read ``nutmeat, processed, except peanuts,'' which is
exactly as it did prior to the September 24, 2008 rulemaking.
EPA requests comment on whether its proposed action adequately
addresses the error included in its September 24, 2008 rulemaking.
III. Shortened Comment Period
FFDCA section 408(e)(2) requires a comment period of not less than
60 days on EPA tolerance actions proposed on the Agency's initiative
unless EPA ``for good cause finds that a shorter comment period would
be in the public interest * * *.'' EPA has determined that such good
cause exists here. The September 2008 rulemaking was intended, among
other things, to make a minor, routine change to one of the commodity
terms in the propylene oxide tolerance for the purpose of conforming
the propylene oxide tolerance to the standard list of commodity terms
used by EPA. Due to its own mistake, EPA did not merely make a
conforming change but substituted a new commodity term that was not co-
extensive with the existing commodity term. This has led to confusion
as to the scope of the propylene oxide tolerance and was unfair to
propylene oxide registrants who relied on EPA assertions that it was
making a technical conforming change. EPA is now proposing to return
the CFR to the status quo prior to its error. It is in the public
interest to remove the confusion arising from EPA's error with dispatch
and thus EPA concludes there is good cause to limit the comment period
to 15 days.
IV. Statutory and Executive Order Reviews
This proposed rule amends a tolerance under section 408(d) of
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). Because
this proposed rule has been exempted from review under Executive Order
12866 due to its lack of significance, this proposed rule is not
subject to Executive Order 13211, entitled Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use (66 FR 28355, May 22, 2001). This proposed 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 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,
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). Pursuant to the
requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et
seq.), the Agency hereby certifies that this proposed action will not
have significant negative economic impact on a substantial number of
small entities. In fact, this rule will have no impact because it
merely corrects an error in the propylene oxide tolerance regulation
that was inserted in the regulation without proper authority and thus
was without legal effect. 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 proposed 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 section 408(n)(4) of the FFDCA. For these same reasons, the Agency
has determined that this proposed 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 9, 2000). Executive Order 3175, 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
[[Page 17613]]
responsibilities between the Federal Government and Indian tribes.''
This proposed 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 proposed rule.
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 21, 2011.
Lois Rossi,
Director, Registration Division, Office of Pesticide Programs.
Therefore, it is proposed that 40 CFR chapter I be 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 180.491 is amended by revising the ``Nut, tree, group
14'' commodity in the tables in paragraphs (a)(1) and (a)(2) to read as
follows:
Sec. 180.491 Propylene oxide; tolerances for residues.
(a) General. (1) * * *
------------------------------------------------------------------------
Parts per
Commodity million
------------------------------------------------------------------------
* * * * *
Nutmeat, processed, except peanuts.......................... 300
* * * * *
------------------------------------------------------------------------
(2) * * *
------------------------------------------------------------------------
Parts per
Commodity million
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* * * * *
Nutmeat, processed, except peanuts.......................... 10.0
* * * * *
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* * * * *
[FR Doc. 2011-7462 Filed 3-29-11; 8:45 am]
BILLING CODE 6560-50-P