[Federal Register: September 5, 2008 (Volume 73, Number 173)]
[Rules and Regulations]
[Page 51736-51738]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05se08-9]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 180
[EPA-HQ-OPP-2005-0097; FRL-8376-7]
Tebuconazole; Pesticide Tolerances
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; final order.
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SUMMARY: This order amends the pesticide tolerance regulation for
tebuconazole by establishing a tolerance for pistachios. Pesticide
tolerances are established under the Federal Food, Drug, and Cosmetic
Act (FFDCA). This order resolves an objection filed by Bayer
CropScience in response to a final rule on tebuconazole tolerances
published on May 14, 2008.
DATES: This regulation is effective September 5, 2008.
ADDRESSES: EPA has established a docket for this action under docket
identification (ID) number EPA-HQ-OPP-2005-0097. To access the
electronic docket, go to http://www.regulations.gov, select ``Advanced
Search,'' then ``Docket Search.'' Insert the docket ID number where
indicated and select the ``Submit'' button. Follow the instructions on
the regulations.gov website to view the docket index or access
available documents. All documents in the docket are listed in the
docket index available in regulations.gov. Although listed in the
[[Page 51737]]
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: Tracy Keigwin, Registration Division
(7505P), Office of Pesticide Programs, Environmental Protection Agency,
1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone
number: (703) 305-6605; e-mail address: keigwin.tracy@epa.gov.
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 those
engaged in the following activities:
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 to
provide 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. How Can I Access Electronic Copies of this Document?
In addition to accessing an electronic copy of this Federal
Register document through the electronic docket 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 EPA's tolerance regulations at
40 CFR part 180 through the Government Printing Office's pilot e-CFR
site at http://www.gpoaccess.gov/ecfr.
II. Prior Tebuconazole Tolerance Rulemaking
In the Federal Register of May 14, 2008, (73 FR 27748) (FRL-8364-
6), EPA established tolerances for the residues of tebuconazole, alpha-
[2-(4-Chlorophenyl)ethyl]-alpha-(1,1-dimethylethyl)-1H-1,2,4-triazole-
1-ethanol, in or on the food commodities nut, tree, group 14 at 0.05
ppm; almond, hulls at 6.0 ppm; barley, grain at 0.15 ppm; barley, hay
at 7.0 ppm; barley, straw at 3.5 ppm; wheat, forage at 3.0 ppm; wheat,
grain at 0.05 ppm; wheat, hay at 7.0 ppm; and wheat, straw at 1.5 ppm.
These tolerances were established in response to a petition from Bayer
CropScience. In addition to the tolerances granted in that rule, Bayer
CropScience had also petitioned for a tebuconazole tolerance on
pistachios. EPA declined to establish that tolerance concluding that
pistachios were covered by the crop group tolerance for tree nuts.
III. Bayer CropScience Objection
On July 1, 2008, Bayer CropScience filed an objection to the
tolerance rulemaking pursuant to 21 U.S.C. 346a(g)(2)(A). Bayer
CropScience argued that EPA had erred in not establishing a separate
tolerance for pistachios. Bayer CropScience noted that pistachios are
not listed as a member of tree nut crop group in 40 CFR 180.41(c)(14).
IV. Order on Objections
Bayer CropScience's objection is well-taken. Although EPA is
planning to amend the tree nut crop group to include pistachios, such
amendment has not yet been accomplished. Therefore, EPA erred in
concluding that a pistachio tolerance was made unnecessary by
establishment of a tree nut crop group tolerance for tebuconazole.
Accordingly, EPA, by this order and pursuant to FFDCA section
408(g)(2)(C), is amending the tebuconzole tolerance at 40 CFR 180.474
to establish a tolerance for pistachios at 0.05 ppm. Because EPA
assumed that pistachios were covered by the tree nut crop group
tolerance in its prior action, creating a separate pistachio tolerance
will in no way affect the safety finding made in that action.
V. Conclusion
Therefore, pursuant to FFDCA section 408(g)(2)(C), a tolerances is
established for the residues of tebuconazole, alpha-[2-(4-
Chlorophenyl)ethyl]-alpha-(1,1-dimethylethyl)-1H-1,2,4-triazole-1-
ethanol, in or on the food commodity pistachios at 0.05 ppm.
VI. Statutory and Executive Order Reviews
This final rule establishes a tolerance under section 408(g)(2)(C)
of FFDCA in response to a petition submitted to the Agency under FFDCA
section 408(d). 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 final rule has been exempted from review under Executive
Order 12866, this final 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) or Executive Order
13045, entitled Protection of Children from Environmental Health Risks
and Safety Risks (62 FR 19885, April 23, 1997). 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., 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).
Since tolerances and exemptions that are established on the basis
of a petition under section 408(d) of FFDCA, such as the tolerance 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.
This final rule directly regulates growers, food processors, food
handlers, and food retailers, not States or tribes, nor does this
action alter the relationships or distribution of power and
responsibilities established by Congress in the preemption provisions
of section 408(n)(4) of FFDCA. As such, the Agency has determined that
this action will not have a substantial direct effect on States or
tribal governments, on the relationship between the national government
and the States or tribal governments, or on the distribution of power
and responsibilities among the various levels of government or between
the Federal Government and Indian tribes. Thus, the Agency has
determined
[[Page 51738]]
that Executive Order 13132, entitled Federalism (64 FR 43255, August
10, 1999) and Executive Order 13175, entitled Consultation and
Coordination with Indian Tribal Governments (65 FR 67249, November 9,
2000) do not apply to this final rule. In addition, this final rule
does not 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).
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).
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 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: August 25, 2008.
Lois Rossi,
Director, Registration Division, Office of Pesticide Programs.
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Therefore, 40 CFR chapter I is amended as follows:
PART 180--[AMENDED]
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1. The authority citation for part 180 continues to read as follows:
Authority: 21 U.S.C. 321(q), 346a and 371.
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2. Section 180.474 is amended in paragraph (a)(1) by alphabetically
adding the commodity pistachio to the table to read as follows:
Sec. 180.474 Tebuconazole; tolerances for residues.
(a) General. (1) * * *
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Parts per
Commodity million
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* * * * *
Pistachio.................................................. 0.05
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[FR Doc. E8-20625 Filed 9-4-08; 8:45 am]
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