2023-24190. Extension of Tolerances for Emergency Exemptions; Multiple Chemicals

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

This regulation extends time-limited tolerances for residues of clothianidin, kasugamycin, methyl bromide, and triclopyr in or on various commodities as identified in this document. These actions are in response to EPA's granting of emergency exemptions under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizing use of these pesticides. In addition, the Federal Food, Drug, and Cosmetic Act (FFDCA) requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under FIFRA. Additionally, EPA is removing time-limited tolerances for residues of flupyradifurone in or on sugar cane and sweet sorghum commodities.

DATES:

This regulation is effective November 3, 2023. Objections and requests for hearings must be received on or before January 2, 2024 and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION ).

ADDRESSES:

The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2023–0507, is available at https://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 and the OPP Docket is (202) 566–1744. Please review the visitor instructions and additional information about the docket available at https://www.epa.gov/​dockets.

FOR FURTHER INFORMATION CONTACT:

Charles Smith, Director, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460–0001; main telephone number: (202) 566–1030; email 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. 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).

B. How can I get electronic access to other related information?

You may access a frequently updated electronic version of 40 CFR part 180 through the Office of the Federal Register's e-CFR site at https://www.ecfr.gov/​current/​title-40.

C. How can I file an objection or hearing request?

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2023–0507 in the subject line on the first page of your submission. All requests must be in writing and must be received by the Hearing Clerk on or before January 2, 2024. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA–HQ–OPP–2023–0507, by one of the following methods:

• Federal eRulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460–0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at https://www.epa.gov/​dockets/​where-send-comments-epa-dockets.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at https://www.epa.gov/​dockets.

II. Background and Statutory Findings

EPA previously published final rules establishing time-limited tolerances in the Federal Register for the chemicals and commodities listed below under FFDCA section 408, 21 U.S.C. 346a. EPA established the tolerances because FFDCA section 408(l)(6) requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under FIFRA section 18. Such tolerances can be established without providing notice or period for public comment.

EPA received requests to extend emergency uses of clothianidin, kasugamycin, methyl bromide, and triclopyr on various commodities for this year's growing season. After having reviewed the submissions, EPA concurs that emergency conditions continue to exist. EPA assessed the potential risks presented by residues of each chemical in or on the pertinent commodities. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2) and decided that the necessary tolerances under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. The data and other relevant material have been evaluated and were discussed in the final rules originally establishing the time-limited tolerances. Based on those data and information considered, the Agency reaffirms that extensions of the time-limited tolerances will continue to meet the requirements of FFDCA section 408(l)(6). Therefore, the time-limited tolerances are extended until December 31, 2026. Although these tolerances will expire and are revoked on December 31, 2026, under FFDCA section 408(l)(5), residues of the pesticides not in excess of the amounts specified in the tolerances remaining in or on the commodities after that date will not be unlawful, provided the residues are present as a result of an application or use of a pesticide at a time and manner that was lawful under FIFRA, the tolerance was in place at the time of the application, and the residues do not exceed the level that was authorized by the tolerance. EPA will take action to revoke the tolerances earlier if any experience with, scientific data on, or other relevant information on any of these pesticides indicate that the residues are not safe. EPA will publish a document in the Federal Register to remove the revoked tolerances from the Code of Federal Regulations (CFR).

Time-limited tolerances for the use of the following pesticide chemicals on specific commodities as noted are being extended:

Clothianidin. Pursuant to a request by the Florida Department of Agriculture and Consumer Services, EPA authorized under FIFRA section 18 the use of clothianidin on citrus for control of the Asian citrus psyllid in Florida. This regulation extends a time-limited tolerance for residues of the insecticide clothianidin and its metabolites and degradates in or on fruit, citrus, group 10–10 at 0.07 parts per million (ppm) for an additional 3-year period. This tolerance will expire and is revoked on December 31, 2026. The time-limited tolerance was originally published in the Federal Register of February 25, 2015 (80 FR 10003) (FRL–9919–59).

Flupyradifurone. The time-limited tolerances are being removed at 40 CFR 180.679(b) for residues of the insecticide flupyradifurone and its metabolites in or on sorghum, syrup at 90.0 ppm and sweet sorghum, forage at 30.0 ppm which expired on December 31, 2022; and in or on sugarcane, cane at 3 ppm and sugarcane, molasses at 90 ppm, which expire on December 31, 2023. The applicant has not submitted a request for further use of flupyradifurone sugarcane; and use on sweet sorghum gained registration under Section 3 of FIFRA. The time-limited tolerances were originally published in the Federal Register of June 25, 2021 (86 FR 21944) (FRL–10029–49).

Kasugamycin. Pursuant to a request by the California Department of Pesticide Regulation, EPA authorized under FIFRA section 18 the use of kasugamycin on almonds for control of bacterial blast in California. This regulation extends time-limited tolerances for residues of the pesticide kasugamycin and its metabolites and degradates in or on almond at 0.04 (ppm); and almond hulls at 0.4 ppm for an additional 3-year period. The tolerances will expire and are revoked on December 31, 2026. The time-limited tolerances were originally published in the Federal Register of October 8, 2020 (85 FR 63450) (FRL–10013–94).

Methyl bromide. Pursuant to a request by the US Department of Agriculture, Animal and Plant Health Inspection Service, EPA authorized under FIFRA section 18 the use of methyl bromide on certain imported and domestic commodities, post-harvest for control of invasive non-indigenous quarantine plant pests and to prevent the introduction and/or spread of any new or recently introduced foreign pests to the United States. This regulation extends time-limited tolerances for residues of the pesticide methyl bromide, including its metabolites and degradates, in or on the commodities identified in 40 CFR 180.124(b) (and listed in the regulatory text section of this document) at the levels listed for an additional 3-year period. The tolerances will expire and are revoked on December 31, 2026. The time-limited tolerances were originally published in the Federal Register of March 1, 2018 (83 FR 8758) (FRL–9971–19) and October 16, 2020 (85 FR 65729) (FRL–10014–31).

Triclopyr. Pursuant to a request by the Louisiana Department of Agriculture and Forestry, EPA authorized under FIFRA section 18 the use of triclopyr on sugarcane for control of divine nightshade in Louisiana. This regulation extends a time-limited tolerance for residues of the herbicide triclopyr and its metabolites and degradates in or on sugarcane, cane at 40 ppm for an additional 3-year period. The tolerance will expire and is revoked on December 31, 2026. A time-limited tolerance was originally published in the Federal Register of June 8, 2017 (82 FR 26599) (FRL–9961–29).

III. International Residue Limits

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established any MRLs for flupyradifurone, kasugamycin, methyl bromide, or triclopyr in or on the commodities listed in this document. The Codex has established an MRL for clothianidin in or on citrus at 0.07 ppm, the same as the tolerance established for fruit, citrus, group 10–10 in the United States. Therefore, there are no harmonization issues.

IV. Statutory and Executive Order Reviews

This action establishes tolerances 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 action has been exempted from review under Executive Order 12866, this action 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) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action 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 in accordance with FFDCA sections 408(e) and 408(l)(6), such as the tolerances 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 action 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 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 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 action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

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 (NTTAA) (15 U.S.C. 272 note).

V. Congressional Review Act

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 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 action 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: October 27, 2023.

Charles Smith,

Director, Registration Division, Office of Pesticide Programs.

Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I as follows:

PART 180—TOLERANCES AND EXEMPTIONS FOR PESTICIDE CHEMICAL RESIDUES IN FOOD

1. The authority citation for part 180 continues to read as follows:

Authority: 21 U.S.C. 321(q), 346a and 371.

2. In § 180.124, revise table 2 to paragraph (b) to read as follows:

§ 180.124

Methyl bromide; tolerances for residues.

* * * * *

(b) * * *

Table 2 to Paragraph (b)

Commodity	Parts per million	Expiration/ revocation date
Berry and small fruit, group 13–07	5.0	12/31/26
Cactus	3.0	12/31/26
Coconut, copra	8.0	12/31/26
Coffee, green bean	150	12/31/26
Cola, seed	150	12/31/26
Cucurbit, seed	150	12/31/26
Fig	10	12/31/26
Fruit, citrus, group 10–10	2	12/31/26
Fruit, stone, group 12–12	5.0	12/31/26
Fruit, tropical and subtropical, edible peel, group 23	10	12/31/26
Fruit, tropical and subtropical, inedible peel, group 24	5.0	12/31/26
Herb and spice, group 19	35	12/31/26
Hibiscus, seed	150	12/31/26
Ivy gourd	5.0	12/31/26
Kaffir lime, leaves	0.50	12/31/26
Kenaf, seed	150	12/31/26
Oilseed group 20	150	12/31/26
Peppermint, tops	35	12/31/26
Pointed gourd	5.0	12/31/26
Spearmint, tops	35	12/31/26
Vegetable, bulb, group 3–07	2.0	12/31/26
Vegetable, cucurbit, group 9	5.0	12/31/26
Vegetable, foliage of legume, group 7	0.50	12/31/26
Vegetable, fruiting, group 8–10	7.0	12/31/26
Vegetable, head and stem Brassica, group 5–16	1.0	12/31/26
Vegetable, leafy, group 4–16	0.50	12/31/26
Vegetable, leaves of root and tuber, group 2	0.50	12/31/26
Vegetable, legume, group 6	3.0	12/31/26
Vegetable, root and tuber, group 1	3.0	12/31/26
Vegetable, stalk, stem and leaf petiole, group 22	0.50	12/31/26

* * * * *

3. In § 180.417, revise table 3 to paragraph (b) to read as follows:

§ 180.417

Triclopyr; tolerances for residues.

* * * * *

(b) * * *

Table 3 to Paragraph (b)

Commodity	Parts per million	Expiration/ revocation date
Sugarcane, cane	40	12/31/26

* * * * *

4. In § 180.586, add a heading to the table in paragraph (b) and revise the entry for “Fruit, citrus, group 10–10” in the table to read as follows:

§ 180.586

Clothianidin; tolerances for residues.

* * * * *

(b) * * *

Table 3 to Paragraph (b)

Commodity	Parts per million	Expiration/ revocation date
Fruit, citrus, group 10–10	0.07	12/31/26
*         *         *         *         *         *         *

* * * * *

§ 180.679

[Amended]

5. In § 180.679, remove and reserve paragraph (b).