[Federal Register Volume 76, Number 61 (Wednesday, March 30, 2011)]
[Proposed Rules]
[Pages 17611-17613]
From the Federal Register Online via the Government Printing 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: garvie.heather@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:
     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
------------------------------------------------------------------------
 
                                * * * * *
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