58322 Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Rules and Regulations 

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 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). Since 

tolerances and exemptions that are 

established on the basis of a petition 

under section 408(d) of FFDCA, such as 

the tolerance 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. 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 (65 FR 

67249, 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.

VIII. 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 

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: September 21, 2004.

James Jones,

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. Section 180.569 is amended by 

redesignating paragraph (a) as paragraph 

(a)(2), by removing the entries for grape 

and kiwifruit from the table in newly 

designated paragraph (a)(2), and by 

adding new paragraph (a)(1) to read as 

follows:

§ 180.569 Forchlorfenuron; tolerances for 

residues.

(a) General. (1) Tolerances are 

established for residues of the plant 

growth regulator forchlorfenuron; N-(2-

chloro-4-pyridinyl)-N′phenyl urea in or 

on the following commodities:

Commodity Parts per

million 

Grape .................................... 0.03

Grape, raisin ......................... 0.06

Kiwifruit ................................. 0.04

* * * * *

[FR Doc. 04–21932 Filed 9–29–04; 8:45 am]

BILLING CODE 6560–50–S

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 300

[FRL–7821–8] 

National Oil and Hazardous 

Substances Pollution Contingency 

Plan; National Priorities List

AGENCY: Environmental Protection 

Agency.

ACTION: Final rule; Notice of deletion of 

the Love Canal Superfund site from the 

National Priorities List. 

SUMMARY: The United States 

Environmental Protection Agency (EPA) 

Region II Office announces the deletion 

of the Love Canal Superfund site (Love 

Canal site) from the National Priorities 

List (NPL). The Love Canal site is 

located in the City of Niagara Falls, 

Niagara County, New York. The NPL 

constitutes appendix B to the National 

Oil and Hazardous Substances Pollution 

Contingency Plan (NCP), 40 CFR part 

300, which EPA promulgated pursuant 

to section 105 of the Comprehensive 

Environmental Response, 

Compensation, and Liability Act of 1980 

(CERCLA), as amended. 

EPA and the State of New York, 

through the Department of 

Environmental Conservation (NYSDEC), 

have determined that all appropriate 

response actions have been 

Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Rules and Regulations 58323

implemented at the Love Canal site and 

that no further response actions, other 

than operation, maintenance, and 

monitoring, are required. In addition, 

EPA and NYSDEC have determined that 

the remedial action taken at the Love 

Canal site is protective of public health 

and the environment and that the 

operation, monitoring, and maintenance 

of such remedial action will confirm 

that it continues to be protective of 

public health and the environment. 

Even though the Love Canal site will 

be deleted from the NPL, these ongoing 

monitoring activities will ensure 

NYSDEC and EPA involvement during 

the annual monitoring of the Love Canal 

site conditions, as well as the annual 

review of existing institutional controls.

DATES: Effective, September 30, 2004.

FOR FURTHER INFORMATION CONTACT:

Damian J. Duda, Remedial Project 

Manager, U.S. Environmental Protection 

Agency, Region II, 290 Broadway, 20th 

Floor, New York, New York 10007–

1866, (212) 637–4269.

SUPPLEMENTARY INFORMATION: To be 

deleted from the NPL is: the Love Canal 

Superfund site, City of Niagara Falls, 

Niagara County, New York. A Notice of 

Intent to Delete for the Love Canal site 

was published in the Federal Register

on March 17, 2004. The closing date for 

comments on the Notice of Intent to 

Delete was April 16, 2004. 

EPA received comments, including 

the two major comments discussed 

below, on the proposed deletion and 

addressed these comments in a 

Responsiveness Summary. Several 

commenters expressed concern that the 

wastes that were originally disposed of 

in the Love Canal landfill have not been 

removed. The containment, leachate 

collection, and treatment and 

monitoring remedy at the Site was 

selected consistent with the 

requirements of the Federal Superfund 

law. Excavation and removal of 

hazardous materials from landfills can 

potentially create more contaminant 

exposure to human health and the 

environment than a containment 

remedy. Moreover the large volumes of 

contaminated soils from an excavated 

landfill must be treated and redisposed 

of at other secure hazardous waste 

facilities, requiring either utilization of 

limited existing landfill capacity or the 

creation of new landfills to 

accommodate the excavated waste from 

old landfills. The excavated landfill 

requires filling with clean backfill 

materials and still must be subject to 

engineering controls due to residual 

contamination that could not 

practicably be removed. For these 

reasons, EPA developed a presumptive 

remedy for large landfills consisting of 

containment through capping and 

leachate collection and treatment. The 

Love Canal site remedy is a permanent 

remedy that is consistent with the 

requirements of the Superfund law. 

Several commenters were also 

concerned that the deletion of the Love 

Canal site from the NPL would imply 

that EPA will not have any further 

involvement at the Love Canal site and 

that, if there were to be a need for 

further Superfund response at the Love 

Canal site, such a response could not be 

provided since the Love Canal site 

would no longer be on the NPL. EPA 

confirmed in the Responsiveness 

Summary that its responsibility for the 

Love Canal site does not cease after the 

deletion from the NPL.

The NCP (40 CFR 300.425 (e)) states 

that a site that is deleted from the NPL 

is eligible for further fund-financed 

remedial actions should future 

conditions warrant such action. A 

Superfund site can be deleted from the 

NPL when one of the following criteria, 

as identified in the NCP (40 CFR 

300.425(e)), is met. These criteria are as 

follows: (1) Responsible or other parties 

have implemented all appropriate 

response actions required; (2) all 

appropriate Fund-financed response 

under CERCLA has been implemented 

and no further response action by 

responsible parties is appropriate; or, (3) 

the remedial investigation has shown 

that the release poses no significant 

threat to human health or the 

environment, and therefore, taking 

remedial measures is not appropriate. In 

the case of the Love Canal site, the first 

two criteria have been met. The third 

criterion is not applicable, since 

remedial measures were taken. 

All of the comments received and 

EPA’s responses are contained in the 

Responsiveness Summary, a copy of 

which is available at the EPA Public 

Information Office, Niagara Falls, New 

York at (716) 285–8842. The 

Responsiveness Summary is also 

available in the Administrative Record 

File, located in the EPA Regional Office. 

As part of EPA’s policy for Superfund 

sites where the remedy will result in 

substances remaining on-site above 

health-based levels that would allow for 

unrestricted use or unlimited exposure, 

EPA conducts five-year reviews to 

confirm that the remedy continues to 

adequately protect human health and 

the environment. In the case of the Love 

Canal site, the institutional controls in 

place do not allow for unrestricted use 

or unlimited exposure. In September 

2003, EPA issued the first five-year 

review report for the Love Canal site 

operations. NYSDEC provided technical 

oversight for the preparation of EPA’s 

five-year review report and concurred 

with EPA’s findings that the 

containment and barrier drain system 

were working properly. EPA concludes 

that the Site does not pose a significant 

threat to public health or the 

environment. 

EPA identifies sites that appear to 

present a significant risk to public 

health or the environment, and it 

maintains the NPL as the list of those 

sites. As described in § 300.425(e)(3) of 

the NCP, any site or portion thereof 

deleted from the NPL remains eligible 

for remedial actions in the unlikely 

event that conditions at the site warrant 

such action in the future. Deletion of a 

site from the NPL does not affect 

potentially responsible party liability or 

impede agency efforts to recover costs 

associated with response efforts.

List of Subjects in 40 CFR Part 300 

Environmental protection, Air 

pollution controls, Chemicals, 

Hazardous substances, Hazardous 

waste, Intergovernmental relations, 

Penalties, Reporting and recordkeeping 

requirements, Superfund, Water 

pollution control, Water supply.

Dated: September 23, 2004. 

Jane M. Kenny, 

Regional Administrator—Region II.

■ For the reasons set out in the preamble, 

Part 300, Chapter I of Title 40 of the Code 

of Federal Regulations, is amended as 

follows:

PART 300—[AMENDED]

■ 1. The authority citation for part 300 

continues to read as follows:

Authority: 42 U.S.C. 9601–9675; 33 U.S.C. 

1321(c)(2); E.O. 12777, 56 FR 54757, 3 CFR., 

1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 

3 CFR, 1987 Comp., p. 193.

Appendix B [Amended]

■ 2. Table 1 of Appendix B to part 300 

is amended by removing the site for 

‘‘Love Canal, Niagara Falls, New York.’’

[FR Doc. 04–21806 Filed 9–29–04; 8:45 am] 

BILLING CODE 6560–50–P

DEPARTMENT OF THE INTERIOR

43 CFR Part 2 

RIN 1090–AA61 

Revision of the Freedom of Information 

Act Regulations and Implementation of 

the Electronic Freedom of Information 

Act Amendments of 1996

AGENCY: Department of the Interior.