Dichlorodifluoromethane (Freon 12) - CAS No. 75-71-8
Dichlorotetrafluoroethane (Freon 114)- CAS No. 76-14-2
Trichlorofluoromethane (Freon 11) - CAS No. 75-69-4
Inert ingredients; Revocation of Pesticide Tolerance Exemptions for Three CFC Chemicals.
August 3, 2005. FINAL RULE. Federal Register.
 
 

http://www.epa.gov/fedrgstr/EPA-PEST/2005/August/Day-03/p15334.htm

[Federal Register: August 3, 2005 (Volume 70, Number 148)]
[Rules and Regulations]
[Page 44492-44496]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03au05-11]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 180
[OPP-2005-0068; FRL-7728-5]

Inert ingredients; Revocation of Pesticide Tolerance Exemptions
for Three CFC Chemicals
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is revoking exemptions from the requirement of a tolerance
for three inert ingredients (dichlorodifluoromethane,
dichlorotetrafluoroethane, and trichlorofluoromethane) because these
substances no longer have active Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA) pesticide product registrations and/or because
their use in pesticide products sold in the United States (U.S.) has
been prohibited under the Clean Air Act (CAA) for over a decade due to
EPA's ban on the sale or distribution, or offer for sale or
distribution in interstate commerce of certain nonessential products
that contain or are manufactured with ozone depleting compounds.
The
regulatory actions in this document contribute toward the Agency's
tolerance reassessment requirements of the Federal Food, Drug, and
Cosmetic Act (FFDCA) section 408(q), as amended by the Food Quality

[[Page 44493]]

Protection Act (FQPA) of 1996. By law, EPA is required by August 2006
to reassess the tolerances in existence on August 2, 1996. The
regulatory actions in this document pertain to the revocation of five
tolerance exemptions of which five count as tolerance reassessments
toward the August, 2006 review deadline.

DATES: This regulation is effective August 3, 2005. Objections and
requests for hearings must be received on or before October 3, 2005.

ADDRESSES: To submit a written objection or hearing request follow the
detailed instructions as provided in Unit IV. of the SUPPLEMENTARY
INFORMATION. EPA has established a docket for this action under Docket
identification (ID) number OPP-2005-0068
. All documents in the docket
are listed in the EDOCKET index at http://www.epa.gov/edocket . Although
listed in the index, some information is not publicly available, i.e.,
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 electronically
in EDOCKET or in hard copy at the Public Information and Records
Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1801 S.
Bell St., Arlington, VA. This docket facility is open from 8:30 a.m. to
4 p.m., Monday through Friday, excluding legal holidays. The docket
telephone number is (703) 305-5805.

FOR FURTHER INFORMATION CONTACT: Karen Angulo, Registration Division
(7505C), Office of Pesticide Programs, Environmental Protection Agency,
1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone
number: (703) 306-0404; e-mail address: angulo.karen@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. How Can I Access Electronic Copies of this Document and Other
Related Information?
In addition to using EDOCKET ( http://www.epa.gov/edocket/ ), you may
access this Federal Register document electronically through the EPA
Internet under the ``Federal Register'' listings at http://www.epa.gov/
fedrgstr/ . A frequently updated electronic version of 40 CFR part 180
is available at E-CFR Beta Site Two at http://www.gpoaccess.gov/ecfr/ .

II. Background
A. What Action is the Agency Taking?

In the Federal Register of April 27, 2005 (70 FR 21713) (FRL-7709-
1), EPA issued a proposed rule to revoke five tolerance exemptions for
residues of dichlorodifluoromethane, dichlorotetrafluoroethane, and
trichlorofluoromethane because those substances are either no longer
contained in pesticide products and/or because their use in pesticide
products sold in the U.S. has been prohibited for over a decade due to
EPA's ban on the sale or distribution, or offer for sale or
distribution in interstate commerce of certain nonessential products
that contain or are manufactured with ozone depleting compounds. EPA
believes this rationale also extends to ingredients whose use in
pesticide products is prohibited as a result of EPA's 1994 ban, under
the CAA, on certain non-essential aerosol and pressurized products
containing ozone depleting compounds (see 40 CFR part 82, subpart C).

Also the proposal of April 27, 2005 (70 FR 21713) provided a 60-day
comment period that invited public comment for consideration and for
support of tolerance exemption retention under the FFDCA standards.
In this final rule, EPA is revoking five tolerance exemptions for
residues of dichlorodifluoromethane, dichlorotetrafluoroethane, and
trichlorofluoromethane because these specific tolerance exemptions
correspond to uses no longer current or registered under FIFRA in the
United States. The tolerance exemptions revoked by this final rule are
no longer necessary to cover residues of the relevant pesticide
chemicals in or on domestically treated commodities or commodities
treated outside but imported into the United States.
It is EPA's
general practice to revoke those tolerances and tolerance exemptions
for residues of pesticide chemicals on crop uses for which there are no
active registrations under FIFRA, unless any person commenting on the
proposal indicates a need for the tolerance or tolerance exemption to
cover residues in or on imported commodities or domestic commodities
legally treated.
EPA has historically been concerned that retention of tolerances
and tolerance exemptions that are not necessary to cover residues in or
on legally treated foods may encourage misuse of pesticides within the
United States.
Thus, it is EPA's policy to issue a final rule revoking
those tolerances and tolerance exemptions for residues of pesticide
chemicals for which there are no active registrations or uses under
FIFRA, unless any person commenting on the proposal demonstrates a need
for the tolerance to cover residues in or on imported commodities or
domestic commodities legally treated.
Generally, EPA will proceed with the revocation of these tolerances
and tolerance exemptions on the grounds discussed in Unit II.A. if one
of the following conditions applies:

1. Prior to EPA's issuance of a section 408(f) order requesting
additional data or issuance of a section 408(d) or (e) order revoking
the tolerances or tolerance exemptions on other grounds, commenters
retract the comment identifying a need for the tolerance to be retained.
2. EPA independently verifies that the tolerance or tolerance
exemption is no longer needed.
3. The tolerance or tolerance exemption is not supported by data
that demonstrate that the tolerance or tolerance exemption meets the
requirements under FQPA.

EPA received one comment on the proposal to revoke these tolerance
exemptions, and the commenter supported this revocation action.
Therefore, for the reasons stated herein and in the proposed rule,
EPA is revoking the exemptions from the requirement of a tolerance in
40 CFR 180.910 for residues of dichlorodifluoromethane,
dichlorotetrafluoroethane, and trichlorofluoromethane, and in 40 CFR
180.930 for residues of dichlorodifluoromethane and trichlorofluoromethane.

[[Page 44494]]

B. What is the Agency's Authority for Taking this Action?

This final rule is issued pursuant to section 408(d) of FFDCA (21
U.S.C. 346a(d)). Section 408 of FFDCA authorizes the establishment of
tolerances, exemptions from the requirement of a tolerance,
modifications in tolerances, and revocation of tolerances for residues
of pesticide chemicals in or on raw agricultural commodities and
processed foods. Without a tolerance or tolerance exemption, food
containing pesticide residues is considered to be unsafe and therefore
``adulterated'' under section 402(a) of the FFDCA. If food containing
pesticide residues is found to be adulterated, the food may not be
distributed in interstate commerce (21 U.S.C. 331(a) and 342 (a)).
EPA's general practice is to revoke tolerances and tolerance
exemptions for residues of pesticide chemicals on crops for which FIFRA
registrations no longer exist and on which the pesticide may therefore
no longer be used in the United States. EPA has historically been
concerned that retention of tolerances and tolerance exemptions that
are not necessary to cover residues in or on legally treated foods may
encourage misuse of pesticides within the United States. Nonetheless,
EPA will establish and maintain tolerances and tolerance exemptions
even when corresponding domestic uses are canceled if the tolerances,
which EPA refers to as ``import tolerances,'' are necessary to allow
importation into the United States of food containing such pesticide
residues.
However, where there are no imported commodities that require
these import tolerances, the Agency believes it is appropriate to
revoke tolerances and tolerance exemptions for unregistered pesticide
chemicals in order to prevent potential misuse.

C. When Do These Actions Become Effective?
These actions become effective on the date of publication of this
final rule in the Federal Register. Any commodities listed in the
regulatory text of this document that are treated with the pesticide
chemicals subject to this final rule, and that are in the channels of
trade following the tolerance exemption revocations, shall be subject
to FFDCA section 408(1)(5), as established by the FQPA. Under this
section, any residues of these pesticide chemicals in or on such food
shall not render the food adulterated so long as it is shown to the
satisfaction of the Food and Drug Administration that: (1) The residue
is present as the result of an application or use of the pesticide
chemical at a time and in a manner that was lawful under FIFRA, and (2)
the residue does not exceed the level that was authorized at the time
of the application or use to be present on the food under an exemption
from tolerance. Evidence to show that food was lawfully treated may
include records that verify the dates that the pesticide chemical was
applied to such food.

III. Are There Any International Trade Issues Raised by this Final 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 Reregistration Eligibility Decision Documents (REDs). The
EPA has developed guidance concerning submissions for import tolerance
support (65 FR 35069, June 1, 2000) (FRL-6559-3). This guidance will be
made available to interested persons. Electronic copies are available
on the internet at http://www.epa.gov/. On the Home Page select ``Laws
and Regulations,'' then select ``Regulations and Proposed Rules'' 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/fedrgstr/.

IV. Objections and Hearing Requests
Under section 408(g) of FFDCA, as amended by FQPA, any person may
file an objection to any aspect of this regulation and may also request
a hearing on those objections. The EPA procedural regulations which
govern the submission of objections and requests for hearings appear in
40 CFR part 178. Although the procedures in those regulations require
some modification to reflect the amendments made to FFDCA by FQPA, EPA
will continue to use those procedures, with appropriate adjustments,
until the necessary modifications can be made. The new section 408(g)
of FFDCA provides essentially the same process for persons to
''object'' to a regulation for an exemption from the requirement of a
tolerance issued by EPA under new section 408(d) of FFDCA, as was
provided in the old sections 408 and 409 of FFDCA. However, the period
for filing objections is now 60 days, rather than 30 days.

A. What Do I Need to Do to File an Objection or Request a Hearing?
You must file your objection or request a hearing on this
regulation in accordance with the instructions provided in this unit
and in 40 CFR part 178. To ensure proper receipt by EPA, you must
identify docket ID number OPP-2005-0068 in the subject line on the
first page of your submission. All requests must be in writing, and
must be mailed or delivered to the Hearing Clerk on or before October
3, 2005.

1. Filing the request. Your objection must specify the specific
provisions in the regulation that you object to, and the grounds for
the objections (40 CFR 178.25). If a hearing is requested, the
objections must include a statement of the factual issues(s) on which a
hearing is requested, the requestor's contentions on such issues, and a
summary of any evidence relied upon by the objector (40 CFR 178.27).
Information submitted in connection with an objection or hearing
request may be claimed confidential by marking any part or all of that
information as CBI. Information so marked will not be disclosed except
in accordance with procedures set forth in 40 CFR part 2. A copy of the
information that does not contain CBI must be submitted for inclusion
in the public record. Information not marked confidential may be
disclosed publicly by EPA without prior notice.
Mail your written request to: Office of the Hearing Clerk (1900L),
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460-0001. You may also deliver your request to the
Office of the Hearing Clerk in Suite 350, 1099 14th St., NW.,
Washington, DC 20005. The Office of the Hearing Clerk is open from 8
a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Office of the Hearing Clerk is (202) 564-6255.

2. Copies for the Docket. In addition to filing an objection or
hearing request with the Hearing Clerk as described in Unit IV.A.1.,
you should also send a copy of your request to the PIRIB for its
inclusion in the official record that is described in ADDRESSES. Mail your

[[Page 44495]]

copies, identified by docket ID number OPP-2005-0068, to: Public
Information and Records Integrity Branch, Information Resources and
Services Division (7502C), Office of Pesticide Programs, Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001. In person or by courier, bring a copy to the location of the
PIRIB described in ADDRESSES. You may also send an electronic copy of
your request via e-mail to: opp-docket@epa.gov. Please use an ASCII
file format and avoid the use of special characters and any form of
encryption. Copies of electronic objections and hearing requests will
also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format.
Do not include any CBI in your electronic copy. You may also submit an
electronic copy of your request at many Federal Depository Libraries.

B. When Will the Agency Grant a Request for a Hearing?
A request for a hearing will be granted if the Administrator
determines that the material submitted shows the following: There is a
genuine and substantial issue of fact; there is a reasonable
possibility that available evidence identified by the requestor would,
if established resolve one or more of such issues in favor of the
requestor, taking into account uncontested claims or facts to the
contrary; and resolution of the factual issues(s) in the manner sought
by the requestor would be adequate to justify the action requested (40
CFR 178.32).

V. Statutory and Executive Order Reviews
In this final rule, EPA revokes specific tolerance exemptions
established under FFDCA section 408. EPA establishes tolerances under
FFDCA section 408(e), and also modifies and revokes specific tolerances
established under FFDCA section 408. The Office of Management and
Budget (OMB) has exempted this type of action (i.e., a tolerance
revocation for which extraordinary circumstances do not exist) from
review under Executive Order 12866, entitled Regulatory Planning and
Review (58 FR 51735, October 4, 1993). Because this rule has been
exempted from review under Executive Order 12866 due to its lack of
significance, this 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). 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., or 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). Nor does it require any special considerations as required by
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 other
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 104-13, section 12(d)
(15 U.S.C. 272 note). Pursuant to the Regulatory Flexibility Act (RFA)
(5 U.S.C. 601 et seq.), the Agency previously assessed whether
revocations of exemptions from tolerances might significantly impact a
substantial number of small entities and concluded that, as a general
matter, these actions do not impose a significant economic impact on a
substantial number of small entities. This analysis was published on
December 17, 1997 (62 FR 66020), and was provided to the Chief Counsel
for Advocacy of the Small Business Administration. Taking into account
this analysis, and available information concerning the pesticide
chemicals listed in this rule, the Agency hereby certifies that this
final rule will not have a significant economic impact on a substantial
number of small entities. Specifically, as per the 1997 notice, EPA has
reviewed its available data on imports and foreign pesticide usage and
concludes that there is a reasonable international supply of food not
treated with canceled pesticides. Furthermore, for the pesticide
chemicals named in this final rule, the Agency knows of no
extraordinary circumstances that exist as to the present revocations
that would change EPA's previous analysis. 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 final
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 FFDCA.
For these same reasons, the Agency has determined that this rule does
not have any ``tribal implications'' as described in Executive Order
13175, entitled Consultation and Coordination with Indian Tribal
Governments (59 FR 22951, November 6, 2000). Executive Order 13175,
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 responsibilities between the
Federal Government and Indian tribes.'' This 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 rule.

VI. Congressional Review Act
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. 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

[[Page 44496]]

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: July 27, 2005.
Donald R. Stubbs,
Acting Director, Registration Division, Office of Pesticide Programs.

• Therefore, 40 CFR chapter I is 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.

Sec. 180.910 [Amended]
• 2. Section 180.910 is amended by removing the following exemptions and
any associated Limits and Uses from the table: Dichlorodifluoromethane,
Dichlorotetrafluoroethane, and Trichlorofluoromethane.

Sec. 180.930 [Amended]
• 3. Section 180.930 is amended by removing the following exemptions and
any associated Limits and Uses from the table: Dichlorodifluoromethane
and Trichlorofluoromethane.

[FR Doc. 05-15334 Filed 8-2-05; 8:45 am]
BILLING CODE 6560-50-S

 
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