cryolite (Kryocide) Tolerance Revocations 1/99
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 180
Partial Withdrawal of Cryolite Tolerance Revocations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; partial withdrawal.
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
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:
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
Examples of Potentially
Category Affected Entities
Agricultural Stakeholders................. Growers/Agricultural
Advisors, etc.], Commercial
Manufacturers, User Groups,
Food Distributors......................... Wholesale Contractors,
Retail Vendors, Commercial
Intergovernmental Stakeholders............ State, Local, and/or Tribal
Foreign Entities.......................... Governments, Growers, Trade
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
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
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.
A copy of objections and hearing requests filed with the Hearing
Clerk may also be submitted electronically by sending e-mail to opp-
email@example.com, 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
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
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
VI. How Do the Regulatory Assessment Requirements Apply to this
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
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
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
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
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. This action
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
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
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
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
Dated: January 25, 1999.
Stephen L. Johnson,
Acting Assistant Administrator for Prevention, Pesticides and Toxic
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