[Federal Register Volume 80, Number 74 (Friday, April 17, 2015)]
[Rules and Regulations]
[Pages 21187-21189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-08784]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[EPA-HQ-OPP-2005-0162; FRL-9925-70]


Carbofuran; Reinstatement of Specific Tolerances and Removal of 
Expired Tolerances

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; Order reestablishing and amending tolerances.

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SUMMARY: EPA is amending its regulations to reinstate four import 
tolerances for carbofuran, in order to comply with a DC Circuit 
decision and order vacating the Agency's revocation of those 
tolerances. EPA is also removing several carbofuran time-limited 
tolerances that have already expired. Because this action is being 
taken to conform the regulations to the court's order and to accurately 
reflect the current legal status of these tolerances, EPA is issuing 
this as a final order that is effective upon publication.

DATES: Effective April 17, 2015.

ADDRESSES: The docket for this action, identified by docket 
identification (ID) number EPA-HQ-OPP-2005-0162, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory 
Public Docket (OPP Docket) in the Environmental Protection Agency 
Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 
1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public 
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the OPP 
Docket is (703) 305-5805. Please review the visitor instructions and 
additional information about the docket available at http://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Joseph Nevola, Pesticide Re-Evaluation 
Division (7508P), Office of Pesticide Programs, Environmental 
Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-
0001; telephone number: (703) 308-8037; email address: 
nevola.joseph@epa.gov.

SUPPLEMENTARY INFORMATION:

I. 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. 
The following list of North American Industrial Classification System 
(NAICS) codes is not intended to be exhaustive, but rather provides a 
guide to help readers determine whether this document applies to them. 
Potentially affected entities may include:
     Crop production (NAICS code 111).
     Animal production (NAICS code 112).
     Food manufacturing (NAICS code 311).
     Pesticide manufacturing (NAICS code 32532).

II. What is the Agency's authority for taking this action?

    EPA is taking this action pursuant to the authority in section 
408(g)(2)(C) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 
U.S.C. 346a(g)(2)(C).

III. What action is the Agency taking?

    EPA is revising the tolerance regulations in title 40 of the Code 
of Federal Regulations (CFR) part 180 to reflect the reinstatement of 
four import tolerances for carbofuran, in compliance with a decision 
and order from the D.C. Circuit in National Corn Growers Association v. 
EPA, 613 F.3d 266 (D.C. Cir. 2010). EPA is also amending 40 CFR part 
180 to delete the listings of other carbofuran tolerances that have 
expired, and thus are no longer valid.

IV. Why is EPA taking this action?

    In the Federal Register of July 31, 2008 (73 FR 44864) (FRL-8373-
8), EPA proposed to revoke all carbofuran tolerances and provided a 60-
day public comment period. The revocations were based on an Agency 
determination that the risk from aggregate exposure from the use of 
carbofuran did not meet the safety standard of FFDCA section 408(b)(2). 
In the Federal Register of May 15, 2009 (74 FR 23046) (FRL-8413-3), EPA 
finalized the revocation of all of the carbofuran tolerances, effective 
December 31, 2009. During the objection period, the carbofuran 
registrant, FMC Corporation, and three grower associations (National 
Corn Growers Association, National Sunflower Association, and National 
Potato Council) submitted objections to EPA's tolerance revocations and 
requested an administrative hearing. EPA concluded that the regulatory 
standard for holding an evidentiary hearing had not been met and issued 
an order in the Federal Register of November 18, 2009 (74 FR 59608) 
(FRL-8797-6), which denied the objections and requests for hearing and 
included the Agency's reasons.
    FMC Corporation, in conjunction with the three grower associations, 
challenged EPA's decision in the Court of Appeals for the D.C. Circuit. 
The court upheld EPA's revocation of all carbofuran domestic tolerances 
and denial of the hearing requests, but vacated EPA's revocation of the 
four import tolerances (bananas, coffee, rice, and sugarcane). The 
Court of Appeals for the D.C. Circuit also denied the subsequent 
petition filed by FMC and

[[Page 21188]]

the three grower associations for rehearing and rehearing en banc. The 
petitioners appealed this decision to the Supreme Court. On May 31, 
2011, the Supreme Court declined to hear the request by FMC and the 
three grower associations to review EPA's 2009 decision to revoke all 
domestic tolerances for carbofuran, ending these legal challenges. For 
more information, see http://www.epa.gov/oppsrrd1/reregistration/carbofuran/carbofuran_noic.htm.
    Because the D.C. Circuit vacated EPA's revocation of the four 
import tolerances for carbofuran, they are in fact, currently in 
effect. EPA is revising the CFR to accurately reflect the current legal 
status of the four import tolerances by removing the expiration dates 
in their listings in 40 CFR 180.254(a). Specifically, EPA is removing 
the expiration date of December 31, 2009 associated with the carbofuran 
tolerances in 40 CFR 180.254(a) on banana; coffee, bean, green; rice, 
grain; and sugarcane, cane.
    Also, to eliminate potential confusion, EPA is removing other 
carbofuran tolerances that expired on December 31, 2009. Because these 
tolerances have expired, they are no longer legally valid. 
Consequently, EPA is deleting the following tolerances: (1) In 40 CFR 
180. 254(a) on alfalfa, forage (of which no more than 5 ppm are 
carbamates); alfalfa, hay (of which no more than 20 ppm are 
carbamates); barley, grain (of which no more than 0.1 ppm is 
carbamates); barley, straw (of which no more than 1.0 ppm is 
carbamates); beet, sugar, roots; beet, sugar, tops (of which no more 
than 1 ppm is carbamates); corn, field, forage (of which no more than 5 
ppm are carbamates); corn, field, grain (of which no more than 0.1 ppm 
is carbamates); corn, field, stover (of which no more than 5 ppm are 
carbamates); corn, pop, grain (of which no more than 0.1 ppm is 
carbamates); corn, pop, stover (of which no more than 5 ppm are 
carbamates); corn, sweet, forage (of which no more than 5 ppm are 
carbamates); corn, sweet, kernel plus cob with husks removed (of which 
no more than 0.2 ppm is carbamates); corn, sweet, stover (of which no 
more than 5 ppm are carbamates); cotton, undelinted seed (of which no 
more than 0.2 ppm is carbamates); cranberry (of which no more than 0.3 
ppm is carbamates); cucumber (of which no more than 0.2 ppm is 
carbamates); grape (of which no more than 0.2 ppm is carbamates); 
grape, raisin (of which no more than 1.0 ppm is carbamates); grape, 
raisin, waste (of which no more than 3.0 ppm are carbamates); melon (of 
which no more than 0.2 ppm is carbamates); milk (of which no more than 
0.02 ppm is carbamates); oat, grain (of which no more than 0.1 ppm is 
carbamates); oat, straw (of which no more than 1.0 ppm is carbamates); 
pepper (of which no more than 0.2 ppm is carbamates); potato (of which 
no more than 1 ppm is carbamates); pumpkin (of which no more than 0.6 
ppm is carbamates); rice, straw (of which no more than 0.2 ppm is 
carbamates); sorghum, forage (of which no more than 0.5 ppm is 
carbamates); sorghum, grain, grain; sorghum, grain, stover (of which no 
more than 0.5 ppm is carbamates); strawberry (of which no more than 0.2 
ppm is carbamates); soybean (of which no more than 0.2 ppm is 
carbamates); soybean, forage (of which no more than 20.0 ppm are 
carbamates); soybean, hay (of which no more than 20.0 ppm are 
carbamates); squash (of which no more than 0.6 ppm is carbamates); 
sunflower, seed (of which no more than 0.5 ppm is carbamates); wheat, 
grain (of which no more than 0.1 ppm is carbamates); and wheat, straw 
(of which no more than 1.0 ppm is carbamates); and (2) in 40 CFR 
180.254(c) on artichoke, globe (of which no more than 0.2 ppm is 
carbamates).

V. Why is this a final order?

    EPA is issuing a final order without providing either notice and an 
opportunity to comment, or an opportunity to raise objections. For a 
number of reasons, EPA has concluded that the issuance of a final order 
pursuant to FFDCA section 408(g)(2)(C) best reflects the current stage 
of the proceedings in this case, and is most appropriate to the 
circumstances under the applicable procedures of FFDCA section 408.
    With respect to the import tolerances, the court vacated only the 
portion of EPA's final order that related to the revocation of the four 
carbofuran import tolerances, not the entire underlying action 
rulemaking and objections process that preceded the order. EPA has 
already conducted the procedures required under FFDCA sections 408(e) 
and (g); the public has previously had an opportunity to comment on and 
raise objections to the EPA decisions reflected in the amendments to 
the CFR described in this document. The only revisions to the CFR 
relating to the import tolerances are those that are being taken merely 
to be consistent with the court's order, which left EPA with no 
discretion as to the actions necessary to implement the order. Finally, 
this action does not therefore affect the legal status or otherwise 
effect any substantive change to these tolerances, but merely amends 
the CFR to accurately reflect the present legal status of these 
tolerances. Because the D.C. Circuit's vacatur rendered EPA's 2009 
revocation action without effect, these tolerances are currently in 
effect.
    The deletion from the CFR of the carbofuran tolerances that have 
already expired presents essentially the same procedural and 
substantive case. EPA's action does not affect the legal status of 
these tolerances in any way. The deletion from the CFR of the currently 
expired carbofuran tolerances merely reflects the present legal status 
of these tolerances. In addition, EPA has already conducted the 
procedures required under FFDCA sections 408(e) and (g) to effectuate 
these revisions; the public has previously had an opportunity to 
comment on and raise objections to the EPA decision to establish the 
expiration dates for these particular tolerances (73 FR 44864, July 31, 
2008 (FRL-8373-8); 74 FR 23046, May 15, 2009 (FRL-8413-3); and 74 FR 
59608, November 18, 2009 (FRL-8797-6).

VI. When do these actions become effective?

    As stated in the DATES section of this document, this order and the 
corresponding changes to 40 CFR part 180 are effective April 17, 2015.

VII. Statutory and Executive Order Reviews

    In this action, EPA is amending 40 CFR part 180 to accurately 
reflect the current legal status of a number of carbofuran tolerances 
by means of an order and not a rule (21 U.S.C. 346a(f)(1)(C)). Under 
the Administrative Procedure Act (APA), orders are expressly excluded 
from the definition of a rule (5 U.S.C. 551(4)). Accordingly, the 
regulatory assessment requirements imposed on a rulemaking do not apply 
to this order, as explained further in the following discussion.
    Because this order is not a ``regulatory action'' as that term is 
defined in Executive Order 12866, entitled Regulatory Planning and 
Review (58 FR 51735, October 4, 1993), this action is not subject to 
review by the Office of Management and Budget (OMB) under Executive 
Orders 12866 and 13563, entitled Improving Regulation and Regulatory 
Review (76 FR 3821, January 21, 2011). As a result, 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), and Executive Order 13211 entitled Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use (66 FR 28355, May 22, 2001). In addition, since this order

[[Page 21189]]

is not a rule under the APA (5 U.S.C. 551(4)), and does 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 action does not contain any information collections or impose 
additional burdens that require approval by OMB under the Paperwork 
Reduction Act (PRA) (44 U.S.C. 3501 et seq.). Nor does this order 
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).
    This order 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 FFDCA section 408(n)(4). 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 State 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 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 order. In addition, this 
order does not impose any enforceable duty or contain any unfunded 
mandate as described in the Unfunded Mandates Reform Act (UMRA) (2 
U.S.C. 1531-1538).

VIII. Congressional Review Act (CRA)

    The CRA (5 U.S.C. 801 et seq.) does not apply to this action 
because this order n is not a rule as that term is defined in 5 U.S.C. 
804(3). EPA will, however, submit a courtesy copy of this document to 
each House of the Congress and to the Comptroller General of the United 
States.

List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, 
Agricultural commodities, Pesticides and pests, Reporting and 
recordkeeping requirements.

    Dated: April 9, 2015.
Jack E. Housenger,
Director, Office of Pesticide Programs.

    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.


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2. In Sec.  180.254, revise the table in paragraph (a) and revise 
paragraph (c) to read as follows:


Sec.  180.254  Carbofuran; tolerances for residues.

    (a) * * *

------------------------------------------------------------------------
                      Commodity                        Parts per million
------------------------------------------------------------------------
Banana \1\...........................................                0.1
Coffee, bean, green \1\..............................                0.1
Rice, grain \1\......................................                0.2
Sugarcane, cane \1\..................................                0.1
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\1\ There are no U.S. registrations for use of carbofuran on these
  commodities.

* * * * *
    (c) Tolerances with regional registrations. [Reserved]
* * * * *
[FR Doc. 2015-08784 Filed 4-16-15; 8:45 am]
 BILLING CODE 6560-50-P