E9-8117. Modification of Pesticide Tolerance Revocation for Diazinon

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

This final rule resolves an objection filed by the California Grape and Tree Fruit League in response to a final rule on diazinon tolerances published on September 10, 2008 (73 FR 52607) by granting the objection and modifying the revocation of the diazinon tolerance on grapes to expire on September 10, 2010.

DATES:

This final rule is effective April 15, 2009.

ADDRESSES:

EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2007-1170. 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., 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 [phone].

FOR FURTHER INFORMATION CONTACT:

Jane Smith, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: [phone]; fax number: [phone]; e-mail address: [e-mail].

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?

In addition to accessing electronically available documents 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 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at http://www.gpoaccess.gov/​ecfr.

II. Prior Diazinon Tolerance Rulemaking

On May 21, 2008 (73 FR 29456) (FRL-8362-1), EPA proposed the revocation of the tolerance for residues of diazinon, O, O-diethyl O-[6-methyl-2-(1-methylethyl)-4-pyrimidinyl]phosphorothioate; (CAS Reg. No. 333-41-5), in or on the food commodity grape at 0.75 parts per million (ppm) in 40 CFR 180.153(a) because the use on grapes had been canceled. The proposal neither discussed nor took into account the fact that an existing stocks provision in the cancellations allowed continued use of existing diazinon stocks until December 2008. No comments were received in response to the proposal expressing objections to the revocation of the diazinon tolerance on grapes. EPA published a final rulemaking on September 10, 2008 (73 FR 52607) (FRL-8379-3) revoking the diazinon tolerance on grapes.

III. The California Grape and Tree Fruit League Objection

On November 10, 2008, the California Grape and Tree Fruit League filed an objection to the tolerance rulemaking pursuant to 21 U.S.C. 346a(g)(2)(A), objecting to the revocation of the diazinon tolerance on grapes. The basis of the California Grape and Tree Fruit League objection is that although the use on grapes has been canceled the tolerance is “still necessary to allow for the orderly exhaustion of existing stocks.” The California Grape and Tree Fruit League argued that a tolerance is therefore required for grapes treated with existing stocks of diazinon to allow the legally treated commodity to clear the channels of trade and preventing seizure of the treated grapes by the Food and Drug Administration.

IV. Order on Objection

Despite the fact that the California Grape and Tree Fruit League did not comment on this issue with respect to the proposed rule, because the proposal erroneously failed to take into account the existing stock provision, EPA in its discretion has considered the objection and found it to be sound. Accordingly, EPA, by this rule and order, and pursuant to section 408(g)(2)(C) of the Federal Food, Drug, and Cosmetic Act (FFDCA), is amending the diazinon tolerance in 40 CFR 180.153(a) to add a tolerance for grape at at 0.75 ppm. The tolerance will remain in effect until September 10, 2010. The Agency anticipates this should allow a reasonable period of time for the depletion of existing diazinon stocks and the clearance of diazinon treated grapes from the channels of trade.

V. Conclusion

Therefore, pursuant to section 408(g)(2)(C) of FFDCA, a tolerance for the residues of diazinon, O, O-diethyl O-[6-methyl-2-(1-methylethyl)-4-pyrimidinyl]phosphorothioate; (CAS Reg. No. 333-41-5), in or on the food commodity grapes is added at 0.75 ppm until September 10, 2010.

VI. Statutory and Executive Order Reviews

EPA included the required statutory discussion in the September 10, 2008 final rule (72 FR 52610).

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 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 the rule in the Federal Register. This 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: April 2, 2009.

Debra Edwards,

Director, 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.

2. In § 180.153, is amended by alphabetically adding the commodity to the table in paragraph (a) to read as follows:

§ 180.153

Diazinon; tolerances for residues.

(a) General. * * *

Commodity	Parts per million
*    *    *    *    *
Grape2	0.75
*    *    *    *    *

* * * * *