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cryolite (Kryocide) Tolerance Revocations 1/99



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[OPP-300788; FRL-6058-7]
RIN 2070-AB78

 
Partial Withdrawal of Cryolite Tolerance Revocations

 AGENCY: Environmental Protection Agency (EPA).
 ACTION: Final rule; partial withdrawal.

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SUMMARY: This final rule and order withdraws the revocation of 
tolerances for residues of cryolite (fluorine compounds) on apricots, 
blackberries, boysenberries, dewberries, kale, loganberries, 
nectarines, and youngberries made in a final rule entitled ``Revocation 
of Tolerances for Canceled Food Uses'', (October 26, 1998; (63 FR 
57067) (FRL-6035-6) which had an effective date of January 25, 1999. 
EPA is withdrawing the revocation of those specific tolerances because 
comments from Gowan Company made to the proposed rule (63 FR 5907, 
February 5, 1998) (FRL-5743-9) concerning cryolite were inadvertently 
not addressed.
DATES: This rule is effective on January 25, 1999.
FOR FURTHER INFORMATION CONTACT: For technical information contact: 
Joseph Nevola, Special Review Branch, (7508C), Special Review and 
Reregistration Division, Office of Pesticide Programs, U.S. 
Environmental Protection Agency, 401 M St., SW., Washington, DC 20460. 
Office location: Special Review Branch, CM #2, 6th floor, 1921 
Jefferson Davis Hwy., Arlington, VA. Telephone: (703) 308-8037; e-mail: 
nevola.joseph@epa.gov.
SUPPLEMENTARY INFORMATION:

[[Page 4309]]

I. Does this Notice Apply to Me?

    You may be affected by this notice if you sell, distribute, 
manufacture, or use pesticides for agricultural applications, process 
food, distribute or sell food, or implement governmental pesticide 
regulations. Pesticide reregistration and other actions [see FIFRA 
section 4(g)(2)] include tolerance and exemption reassessment under 
section 408 of the Federal Food, Drug and Cosmetic Act (FFDCA). 
Potentially affected categories and entities may include, but are not 
limited to:

------------------------------------------------------------------------
                                               Examples of Potentially
                 Category                         Affected Entities
------------------------------------------------------------------------
Agricultural Stakeholders.................  Growers/Agricultural
                                             Workers, Contractors
                                             [Certified/Commercial
                                             Applicators, Handlers,
                                             Advisors, etc.], Commercial
                                             Processors, Pesticide
                                             Manufacturers, User Groups,
                                             Food Consumers
Food Distributors.........................  Wholesale Contractors,
                                             Retail Vendors, Commercial
                                             Traders/Importers
Intergovernmental Stakeholders............  State, Local, and/or Tribal
                                             Government Agencies
Foreign Entities..........................  Governments, Growers, Trade
                                             Groups
------------------------------------------------------------------------

    This table 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 table could also be 
affected. If you have any questions regarding the applicability of this 
action to a particular entity, you can consult with the technical 
person listed in the ``FOR FURTHER INFORMATION CONTACT'' section.

II. How Can I Get Additional Information or Copies of this or Other 
Support Documents?

A. Electronically

    You may obtain electronic copies of this document and various 
support documents from the EPA Internet Home Page at http://
www.epa.gov/. On the Home Page select ``Laws and Regulations'' and then 
look up the entry for this document under ``Federal Register - 
Environmental Documents.'' You can also go directly to the ``Federal 
Register'' listings at http://www.epa.gov/homepage/fedrgstr/.

B. In Person or by Phone

    If you have any questions or need additional information about this 
action, please contact the technical person identified in the ``FOR 
FURTHER INFORMATION CONTACT'' section. In addition, the official record 
for this notice, including the public version, has been established 
under docket control number [insert the appropriate docket number], 
(including comments and data submitted electronically as described 
below). A public version of this record, including printed, paper 
versions of any electronic comments, which does not include any 
information claimed as Confidential Business Information (CBI), is 
available for inspection in Room 119, Crystal Mall (CM) #2, 1921 
Jefferson Davis Hwy., Arlington VA, from 8:30 a.m. to 4 p.m., Monday 
through Friday, excluding legal holidays. The Public Information and 
Records Integrity Branch telephone number is 703-305-5805.

III. Can I Challenge the Agency's Final Decision Presented in this 
Document?

    Yes. You can file a written objection or request a hearing by March 
29, 1999 in the following manner:

A. By Paper

    Written objections and hearing requests, identified by the docket 
control number OPP-300788], may be submitted to: Hearing Clerk (1900), 
Environmental Protection Agency, room M3708, 401 M St., SW., 
Washington, DC 20460. Fees accompanying objections and hearing requests 
shall be labeled ``Tolerance Petition Fees'' and forwarded to: EPA 
Headquarters Accounting Operations Branch, OPP (Tolerance Fees), P.O. 
Box 360277M, Pittsburgh, PA 15251. A copy of any objections and hearing 
requests filed with the Hearing Clerk should be identified by the 
document control number and submitted to the Public Information and 
Records Integrity Branch, Information Resources and Services Division 
(7502C), Office of Pesticide Programs, 401 M St., SW., Washington, DC 
20460. In person, bring a copy of objections and hearing requests to 
room 119, CM #2, 1921 Jefferson Davis Hwy., Arlington, VA 22202.

B. Electronically

    A copy of objections and hearing requests filed with the Hearing 
Clerk may also be submitted electronically by sending e-mail to opp-
docket@epamail.epa.gov, per the instructions given in ``By Paper'' 
above. Electronic copies of objections and hearing requests must be 
submitted as an ASCII file avoiding the use of special characters and 
any form of encryption. Copies of objections and hearing requests will 
also be accepted on disks in WordPerfect 5.1 or 6.1 file format or 
ASCII file format. All copies of objections and hearing requests in 
electronic form must be identified by the docket control number OPP-
300788. Do not submit CBI through e-mail. Electronic copies of 
objections and hearing requests on this rule may be filed online at 
many Federal Depository libraries.

IV. What Action Is Being Taken?

    In the Federal Register of February 5, 1998 (63 FR 5907) (FRL-5743-
9), EPA issued a proposed rule for specific pesticides announcing the 
proposed revocation of tolerances for canceled food uses and inviting 
public comment for consideration and for support of tolerance retention 
under Federal Food, Drug, and Cosmetic Act (FFDCA) standards. The 
Agency received comments, considered them, and responded to them in a 
final rule published in the Federal Register on October 26, 1998 (63FR 
57067) (FRL-6035-6), announcing the revocation of tolerances for 
residues of the pesticides listed in the regulatory text.
    In the final rule, the Agency inadvertently overlooked comments on 
cryolite (fluorine compounds) made to the proposed rule of February 5, 
1998 (63 FR 5907). This order addresses those comments and withdraws 
the revocation of tolerances for residues of cryolite on apricots, 
blackberries, boysenberries, dewberries, kale, loganberries, 
nectarines, and youngberries made on October 26, 1998.
    Gowan Company's comment letter on the proposed changes to the 
cryolite tolerances, dated April 3, 1998, did not have a notation 
indicating the docket control number OPP-300602, as the proposed rule 
instructed, and consequently the letter was not inserted into the 
docket. In November, Gowan Co. filed an objection to the final rule (63 
FR 57067) with the Hearing Clerk and provided the Agency with 
documentation that EPA received the comment letter in April, 1998. 
Gowan Co. supports the apricot and nectarine tolerances using peach 
data as outlined in 40 CFR 180.34(e)(8) and cites Sec. 180.1(h) which 
lists the tolerance for the general category ``peaches'' as applicable 
to ``nectarines''. Gowan Co. supports the kale tolerance outlined in 
Sec. 180.34(e)(19) using collard data. Had EPA seen these comments, the 
Agency would not have revoked the cryolite tolerances in question.
    Also, the Interregional Research Project No. 4 (IR-4 Project), U.S. 
Department of Agriculture's National Agricultural Program for Minor Use 
Pest Management, filed an objection to the final rule (63 FR 57067) 
with the Hearing Clerk in November. The IR-4 Project wrote that EPA was 
informed of

[[Page 4310]]

IR-4's support of cryolite use on blackberry, boysenberry, dewberry, 
loganberry, and youngberry via the crop group approach outlined in 40 
CFR 180.41 in the comment letter from Gowan dated April 3, 1998. In 
several communications to EPA from 1996 through 1998, the IR-4 Project 
announced that it was developing data to support cryolite use on 
blackberry, boysenberry, dewberry, loganberry, and youngberry via the 
crop group approach. The IR-4 Project is developing data on raspberries 
to cover caneberries. The caneberry crop subgroup is outlined in 
Sec. 180.41(c)(13)(iii). Definitions and interpretations for 
blackberries and caneberries are given in Sec. 180.1(h). In a letter 
dated May 6, 1998, the IR-4 Project declared it would petition EPA for 
cryolite use on caneberries in 1999.
    Pursuant to FFDCA section 408(g)(2)(C), when EPA wishes to revise a 
tolerance regulation based on an objection to that action, the Agency 
shall do so by issuing an order stating the action taken and setting 
forth any revision to the regulation or prior order that the Agency has 
found to be warranted.
    After reviewing the comments made by Gowan Co. and IR-4, it has 
been determined that the tolerance revocations in 40 CFR 180.145(a)(1) 
for cryolite use on apricots, blackberries, boysenberries, dewberries, 
kale, loganberries, nectarines, and youngberries made on October 26, 
1998 (63 FR 57067) should be withdrawn. Therefore, this order withdraws 
those specific tolerance revocations for cryolite. However, tolerance 
revocations for cryolite use on ``apples''; ``beans''; ``beets, tops''; 
``carrots''; ``corn''; ``mustard greens''; ``okra''; ``peanuts''; 
``pears''; ``peas''; ``quinces''; ``radish, tops''; ``rutabaga, tops''; 
and ``turnip, tops'' remain and become effective January 25, 1999 (63 
FR 57067).

V. When Does This Action Become Effective?

    EPA is publishing this action as a final rule without prior notice 
and opportunity to comment because the Agency believes that providing 
notice and an opportunity to comment is unnecessary and contrary to 
public interests. The timing of this action, i.e., withdrawal of the 
Agency's revocation of a tolerance, is critical to ensure that the 
tolerance is not revoked before the withdrawal takes effect. In 
addition, the Food Quality Protection Act (FQPA), authorizes the Agency 
to make these determinations without notice and comment. Once the 
determination is made, the final rule is issued to amend the 
regulations to incorporate the Agency's decision. Notice and an 
opportunity to comment on a final rule that merely corrects the 
regulation is unnecessary. EPA therefore finds that there is ``good 
cause'' under section 553(b)(3)(B) of the Administrative Procedure Act 
(5 U.S.C. 553(b)(3)(B)) to make this amendment without prior notice and 
comment.

VI. How Do the Regulatory Assessment Requirements Apply to this 
Action?

A. Is this a ``Significant Regulatory Action''?

    No. Under Executive Order 12866, entitled Regulatory Planning and 
Review (58 FR 51735, October 4, 1993), this action is not a 
``significant regulatory action.'' The Office of Management and Budget 
(OMB) has determined that tolerance actions, in general, are not 
``significant'' unless the action involves the revocation of a 
tolerance that may result in a substantial adverse and material affect 
on the economy. In addition, 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 this 
action is not an economically significant regulatory action as defined 
by Executive Order 12866. Nonetheless, environmental health and safety 
risks to children are considered by the Agency when determining 
appropriate tolerances. Under FQPA, EPA is required to apply an 
additional 10-fold safety factor to risk assessments in order to ensure 
the protection of infants and children unless reliable data supports a 
different safety factor.

B. Does this Action Contain Any Reporting or Recordkeeping 
Requirements?

    No. This action does not impose any information collection 
requirements subject to OMB review or approval pursuant to the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

C. Does this Action Involve Any ``Unfunded Mandates''?

    No. This action does not impose any enforceable duty, or contain 
any ``unfunded mandates'' as described in Title II of the Unfunded 
Mandates Reform Act of 1995 (Pub.L. 104-4).

D. Do Executive Orders 12875 and 13084 Require EPA to Consult with 
States and Indian Tribal Governments Prior to Taking the Action in this 
Document?

    No. Under Executive Order 12875, entitled Enhancing the 
Intergovernmental Partnership (58 FR 58093, October 28, 1993), EPA may 
not issue a regulation that is not required by statute and that creates 
a mandate upon a State, local or tribal government, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by those governments. If the mandate is unfunded, EPA 
must provide to the Office of Management and Budget (OMB) a description 
of the extent of EPA's prior consultation with representatives of 
affected State, local and tribal governments, the nature of their 
concerns, copies of any written communications from the governments, 
and a statement supporting the need to issue the regulation. In 
addition, Executive Order 12875 requires EPA to develop an effective 
process permitting elected officials and other representatives of 
State, local and tribal governments ``to provide meaningful and timely 
input in the development of regulatory proposals containing significant 
unfunded mandates.''
    Today's rule does not create an unfunded Federal mandate on State, 
local or tribal governments. The rule does not impose any enforceable 
duties on these entities. Accordingly, the requirements of section 1(a) 
of Executive Order 12875 do not apply to this rule.
    Under Executive Order 13084, entitled Consultation and Coordination 
with Indian Tribal Governments (63 FR 27655, May 19, 1998), EPA may not 
issue a regulation that is not required by statute, that significantly 
or uniquely affects the communities of Indian tribal governments, and 
that imposes substantial direct compliance costs on those communities, 
unless the Federal government provides the funds necessary to pay the 
direct compliance costs incurred by the tribal governments. If the 
mandate is unfunded, EPA must provide OMB, in a separately identified 
section of the preamble to the rule, a description of the extent of 
EPA's prior consultation with representatives of affected tribal 
governments, a summary of the nature of their concerns, and a statement 
supporting the need to issue the regulation. In addition, Executive 
Order 13084 requires EPA to develop an effective process permitting 
elected and other representatives of Indian tribal governments ``to 
provide meaningful and timely input in the development of regulatory 
policies on matters that significantly or uniquely affect their 
communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. This action

[[Page 4311]]

does not involve or impose any requirements that affect Indian Tribes. 
Accordingly, the requirements of section 3(b) of Executive Order 13084 
do not apply to this rule.

E. Does this Action Involve Any Environmental Justice Issues?

    No. This action is not expected to have any potential impacts on 
minorities and low income communities. Special consideration of 
environmental justice issues is not required under Executive Order 
12898, entitled Federal Actions to Address Environmental Justice in 
Minority Populations and Low-Income Populations (59 FR 7629, February 
16, 1994).

F. Does this Action Have a Potentially Significant Impact on a 
Substantial Number of Small Entities?

    No. The Agency has certified that tolerance actions, including the 
tolerance actions in this document, are not likely to result in a 
significant adverse economic impact on a substantial number of small 
entities. The factual basis for the Agency's determination, along with 
its generic certification under section 605(b) of the Regulatory 
Flexibility Act (RFA) (5 U.S.C. 601 et seq.), appears at 63 FR 55565, 
October 16, 1998 (FRL-6035-7). This generic certification has been 
provided to the Chief Counsel for Advocacy of the Small Business 
Administration.

G. Does this Action Involve Technical Standards?

    No. This tolerance 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), Pub. L. 104-113, section 12(d) (15 
U.S.C. 272 note). Section 12(d) directs EPA to use voluntary consensus 
standards in its regulatory activities unless to do so would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, business practices, 
etc.) that are developed or adopted by voluntary consensus standards 
bodies. The NTTAA requires EPA to provide Congress, through OMB, 
explanations when the Agency decides not to use available and 
applicable voluntary consensus standards.

H. Are There Any International Trade Issues Raised by this Action?

    EPA is working to ensure that the U.S. tolerance reassessment 
program under FQPA does not disrupt international trade. EPA considers 
Codex Maximum Residue Limits (MRLs) in setting U.S. tolerances and in 
reassessing them. MRLs are established by the Codex Committee on 
Pesticide Residues, a committee within the Codex Alimentarius 
Commission, an international organization formed to promote the 
coordination of international food standards. When possible, EPA seeks 
to harmonize U.S. tolerances with Codex MRLs. EPA may establish a 
tolerance that is different from a Codex MRL; however, FFDCA section 
408(b)(4) requires that EPA explain in a Federal Register document the 
reasons for departing from the Codex level. EPA's effort to harmonize 
with Codex MRLs is summarized in the tolerance reassessment section of 
individual REDs. The U.S. EPA is developing a guidance concerning 
submissions for import tolerance support. This guidance will be made 
available to interested stakeholders.

I. Will EPA Submit this Final Rule to Congress and the Comptroller 
General?

    Yes. 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. Section 808 allows the issuing agency to 
make 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). 
EPA has made such a good cause finding for this final rule, and 
established an effective date of January 25, 1999. Pursuant to 5 U.S.C. 
808(2), this determination is supported by the brief statement in Unit 
V of this preamble. 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 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 25, 1999.

Stephen L. Johnson,

Acting Assistant Administrator for Prevention, Pesticides and Toxic 
Substances.

    For the reasons set forth in the preamble, the amendment to 
Sec. 180.145, published at 63 FR 57073, October 26, 1998, removing the 
entries for apricots, blackberries, boysenberries, dewberries, kale, 
loganberries, nectarines, and youngberries from the table in paragraph 
(a)(1) is withdrawn. The other removals from Sec. 180.145 are not 
affected by this withdrawal.
[FR Doc. 99-2009 Filed 1-25-99; 4:23 pm]
BILLING CODE 6560-50-F