Pesticides; tolerances in food, animal feeds, and raw agricultural commodities: Various inert ingredients; tolerance exemptions; proposed revocation,

[Federal Register: March 22, 2006 (Volume 71, Number 55)]

[Rules and Regulations]

[Page 14411-14415]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr22mr06-18]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[EPA-HQ-OPP-2005-0251; FRL-7760-6]

Inert Ingredients; Revocation of 29 Pesticide Tolerance Exemptions for 27 Chemicals

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is revoking 29 exemptions from the requirement of a tolerance that are associated with 27 inert ingredients because these substances are no longer contained in active Federal Insecticide, Fungicide,

[[Page 14412]]

and Rodenticide Act (FIFRA) pesticide product registrations. These ingredients are subject to reassessment by August, 2006 under section 408(q) of the Federal Food, Drug, and Cosmetic Act (FFDCA), as amended by the Food Quality Protection Act of 1996 (FQPA). The 29 tolerance exemptions are considered ``reassessed'' for purposes of FFDCA's section 408(q).

DATES: This regulation is effective March 22, 2006. Objections and requests for hearings must be received on or before May 22, 2006.

ADDRESSES: To submit a written objection or hearing request follow the detailed instructions as provided in Unit V. of the SUPPLEMENTARY INFORMATION. EPA has established a docket for this action under Docket identification (ID) number EPA-HQ-OPP-2005-0251. 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: Karen Angulo, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 306-0404; e-mail address: angulo.karen@epa.gov.

SUPPLEMENTARY INFORMATION:

1. General Information

   1. 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. To determine whether you or your business may be affected by this action, you should carefully examine the applicability 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.

   2. How Can I Get Electronic Documents and Other Related Information?

      In addition to using EDOCKET at (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/ .

2. What Action is the Agency Taking?

   In the Federal Register of November 16, 2005 (70 FR 69489; FRL- 7741-6), EPA issued a proposed rule to revoke 30 exemptions from the requirement of a tolerance that are associated with 28 inert ingredients because those substances are no longer contained in pesticide products. The proposed rule provided a 60-day comment period that invited public comment for consideration and for support of tolerance exemption retention under the FFDCA standards.

   In this final rule, EPA is revoking 29 exemptions from the requirement of a tolerance that are associated with 27 inert ingredients because these specific tolerance exemptions correspond to uses no longer current or registered under FIFRA in the United States. The tolerance exemptions revoked by this final rule are no longer necessary to cover residues of the relevant pesticide chemicals in or on domestically treated commodities or commodities treated outside but imported into the United States.

   EPA has historically been concerned that retention of tolerances and tolerance exemptions that are not necessary to cover residues in or on legally treated foods may encourage misuse of pesticides within the United States. Thus, it is EPA's policy to issue a final rule revoking those tolerances and tolerance exemptions for residues of pesticide chemicals for which there are no active registrations or uses under FIFRA, unless any person commenting on the proposal demonstrates a need for the tolerance to cover residues in or on imported commodities or domestic commodities legally treated.

   Generally, EPA will proceed with the revocation of these tolerances and tolerance exemptions on the grounds discussed in Unit II if one of the following conditions applies:

   1. Prior to EPA's issuance of a section 408(f) order requesting additional data or issuance of a section 408(d) or (e) order revoking the tolerances or tolerance exemptions on other grounds, commenters retract the comment identifying a need for the tolerance to be retained.

   2. EPA independently verifies that the tolerance or tolerance exemption is no longer needed.

   3. The tolerance or tolerance exemption is not supported by data that demonstrate that the tolerance or tolerance exemption meets the requirements under FQPA.

   The Agency received three comments in response to the proposed revocation notice. One commentor provided sufficient evidence to the Agency that the inert ingredient tannin is currently used in a registered pesticide product, therefore, the exemption from the requirement of a tolerance for tannin will not be revoked as part of this action and tannin will undergo tolerance reassessment. Another commenter requested that an inert ingredient be retained but did not provide to the Agency any evidence as specified in the proposed rule in the Federal Register (November 16, 2005; EPA-HQ-OPP-2005-0251;) that the inert ingredient is currently used in a registered pesticide product, therefore, the inert is being revoked as part of this action.

   The third commentor requested that the tolerance exemptions for paraformaldehyde currently found in 180.920 and 180.930 be retained for some unspecified future use. The Agency's ``Guidance for the Reregistration of Pesticide Products Containing Formaldehyde and Paraformaldehyde as the Active Ingredient'' (5/31/88; EPA publication number 540/RS-88-080; page 7) states ``This standard covers products containing formaldehyde or paraformaldehyde currently classified as either active or inert ingredients. As inert ingredients, formaldehyde and paraformaldehyde are intentionally added to preserve the pesticidal activity of formulations by preventing deterioration caused by bacteria and

   [[Page 14413]]

   fungi. As preservatives in formulations, formaldehyde or paraformaldehyde perform a pesticidal function. Therefore, the Agency has determined that formaldehyde and paraformaldehyde should be characterized as active ingredients in all products in which they are used, including those in which they currently are only intentionally added as an inert ingredient. Thus, all products containing formaldehyde and paraformaldehyde as a preservative of the formulation will be considered to contain these chemicals as active ingredients.'' The Agency's determination that paraformaldehyde is considered to be an active ingredient may explain why there are no current inert ingredient uses. Therefore, the tolerance exemptions for paraformaldehyde are being revoked now.

   Therefore, for the reasons stated herein and in the proposed rule, EPA is revoking the 29 exemptions from the requirement of a tolerance that were identified in Federal Register Notice of November 16, 2005 (EPA-HQ-OPP-2005-0251).

3. What is the Agency's Authority for Taking this Action?

   This final rule is issued pursuant to section 408(d) of FFDCA (21 U.S.C. 346a(d)). 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)).

   EPA's general practice is to revoke tolerances and tolerance exemptions for residues of pesticide chemicals on crops for which FIFRA registrations no longer exist and on which the pesticide may therefore no longer be used in the United States. EPA has historically been concerned that retention of tolerances and tolerance exemptions that are not necessary to cover residues in or on legally treated foods may encourage misuse of pesticides within the United States. Nonetheless, EPA will establish and maintain tolerances and tolerance exemptions even when corresponding domestic uses are canceled if the tolerances, which EPA refers to as ``import tolerances,'' are necessary to allow importation into the United States of food containing such pesticide residues. However, where there are no imported commodities that require these import tolerances, the Agency believes it is appropriate to revoke tolerances and tolerance exemptions for unregistered pesticide chemicals in order to prevent potential misuse.

4. When Do These Actions Become Effective?

   These actions become effective on the date of publication of this final rule in the Federal Register.

   Any commodities listed in the regulatory text of this document that are treated with the pesticide chemicals subject to this final rule, and that are in the channels of trade following the tolerance exemption revocations, shall be subject to FFDCA section 408(1)(5), as established by the FQPA. Under this section, any residues of these pesticide chemicals in or on such food shall not render the food adulterated so long as it is shown to the satisfaction of the Food and Drug Administration that:

   1. The residue is present as the result of an application or use of the pesticide chemical at a time and in a manner that was lawful under FIFRA, and

   2. The residue does not exceed the level that was authorized at the time of the application or use to be present on the food under an exemption from tolerance. Evidence to show that food was lawfully treated may include records that verify the dates that the pesticide chemical was applied to such food.

5. Objections and Hearing Requests

   Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) of the FFDCA provides essentially the same process for persons to ``object'' to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d) of the FFDCA, as was provided in the old FFDCA sections 408 and 409 of the FFDCA. However, the period for filing objections is now 60 days, rather than 30 days.

   1. What Do I Need to Do to File an Objection or Request a Hearing?

      You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2005-0251 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before May 22, 2006.

      1. Filing the request. Your objection must specify the specific provisions in the regulation that you object to, and the grounds for the objections (40 CFR 178.25). If a hearing is requested, the objections must include a statement of the factual issue(s) on which a hearing is requested, the requestor's contentions on such issues, and a summary of any evidence relied upon by the objector (40 CFR 178.27). Information submitted in connection with an objection or hearing request may be claimed confidential by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. A copy of the information that does not contain CBI must be submitted for inclusion in the public record. Information not marked confidential may be disclosed publicly by EPA without prior notice.

         Mail your written request to: Office of the Hearing Clerk (1900L), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. You may also deliver your request to the Office of the Hearing Clerk in Suite 350, 1099 14th St., NW., Washington, DC 20005. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 564-6255.

      2. Copies for the Docket. In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit V.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in ADDRESSES. Mail your copies, identified by docket ID number EPA-HQ-OPP-2005-0251, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460- 0001. In person or by courier, bring a copy to the location of the PIRIB described in ADDRESSES. Please use an

         [[Page 14414]]

         ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

   2. When Will the Agency Grant a Request for a Hearing?

      A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issue(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).

6. Statutory and Executive Order Reviews

   This final rule establishes an exemption from the tolerance requirement under section 408(d) of the FFDCA in response to a petition submitted to the Agency. 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 rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not 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, 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 tolerances and exemptions that are established on the basis of a petition under section 408(d) of the FFDCA, such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) do not apply. The Agency hereby certifies that this rule will not have significant negative economic impact on a substantial number of small entities. 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 section 408(n)(4) of the FFDCA. For these same reasons, the Agency has determined that this 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 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.

7. Congressional Review Act

   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 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: March 7, 2006, 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), 346a and 371.

   Sec. Sec. 180.1062, 180.1077, and 180.1133 [Removed]

   0 2. Sections 180.1062, 180.1077, and 180.1133 are removed.

   Sec. 180.910 [Amended]

   0 3. Section 180.910 is amended by removing from the table the entries for:

   1. Coumarone-indene resin, conforming to 21 CFR 172.215;

   2. Diacetyl tartaric acid esters of mono- and diglycerides of edible fatty acids;

   3. Methyl ester of rosin, partially hydrogenated (as defined in 21 CFR 172.615);

      [[Page 14415]]

   4. Modified polyester resin derived from ethylene glycol, fumaric acid, and rosin;

   5. Montmorillonite-type clay treated with polytetrafluoroethylene (PTFE; CAS Reg. No. 9002-84-0);

   6. Pentaerythritol ester of modified resin;

   7. Pentaerythritol stearates mixture (CAS Reg. No. 85116-93-4) which include pentaerythritol monostearate (CAS Reg. No. 78-23-9), pentaerythritol distearate (CAS Reg. No. 13081-97-5), pentaerythritol tristearate (CAS Reg. No. 28188-24-1) and pentaerythritol tetrastearate (CAS Reg. No. 115-83-3);

   8. Sodium N-lauroyl-N-methyltaurine;

   9. Sodium N-palmitoyl-N-methyltaurine; and

   10. Sodium oleyl sulfate.

       Sec. 180.920 [Amended]

       0 4. Section 180.920 is amended by removing from the table the entries for:

   1. Ammonium thiocyanate;

   2. Animal waste material (produced by the thermophilic digestion of cattle and poultry manure);

   3. Condensation product of orthophenylphenol with 5 moles of ethylene oxide;

   4. Diacetone alcohol;

   5. Isoamyl acetate;

   6. Paraformaldehyde;

   7. Phenolic resins;

   8. Sodium salt of partially or completely saponified dark wood rosin (as defined in 21 CFR 178.3870(a)(4));

   9. Toluene;

   10. Trimethylolpropane (CAS Reg. No. 77-66-9); and

   11. Woolwax alcohol.

       Sec. 180.930 [Amended]

       0 5. Section 180.930 is amended by removing from the table the entries for:

   1. Diacetyl tartaric acid esters of mono- and diglycerides of edible fatty acids;

   2. 2-[Methyl [(perfluoroalkyl)alkyl(C2- C8)sulfonyl] amino]alkyl(C2-C8) acrylate--alkyl (C2-C8)methacrylates-N- methylolacrylamide copolymer;

   3. Nitrile rubber modifed acrylonitrile methylacrylate (CAS Reg. No. 27012-62-0) conforming to 21 CFR 177.1480;

   4. Paraformaldehyde; and

   5. Wood rosin acid, potassium salts, conforming to 21 CFR 178.3870.

      [FR Doc. 06-2631 Filed 3-21-06; 8:45 am]

      BILLING CODE 6560-50-S