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[Federal Register Volume 77, Number 40 (Wednesday, February 29, 2012)]
[Rules and Regulations]
[Pages 12205-12207]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-4065]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[EPA-HQ-OPP-2010-0423; FRL-9338-3]

Mevinphos; Order Revoking Tolerances

AGENCY: Environmental Protection Agency (EPA).

ACTION: Order of revocation.

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SUMMARY: EPA is revoking all the tolerances for the pesticide 
mevinphos. EPA previously required data to be submitted to support 
these tolerances. However, no person submitted timely notice to EPA of 
intent to provide the required data.

DATES: This order of revocation is effective February 29, 2012. 
Objections and requests for hearings must be received on or before 
April 30, 2012, and must be filed in accordance with the instructions 
provided in 40 CFR part 178 (see also Unit I.B. of the SUPPLEMENTARY 
INFORMATION).

ADDRESSES: EPA has established a docket for this action under docket 
identification (ID) number EPA-HQ-OPP-2010-0423. 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 (703) 
305-5805.

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. 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 file an objection or hearing request?

    Under the Federal Food, Drug, and Cosmetic Act (FFDCA) section 
408(g), 21 U.S.C. 346a, any person may file an objection to any aspect 
of this order and may also request a hearing on those objections. You 
must file your objection

[[Page 12206]]

or request a hearing on this order 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-2010-0423 in the subject line on 
the first page of your submission. All objections and requests for a 
hearing must be in writing, and must be received by the Hearing Clerk 
on or before April 30, 2012. 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 that does not contain any 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 a copy of 
your non-CBI objection or hearing request, identified by docket ID 
number EPA-HQ-OPP-2010-0423, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Mail: Office of Pesticide Programs (OPP) Regulatory Public 
Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave. 
NW., Washington, DC 20460-0001.
     Delivery: OPP Regulatory Public Docket (7502P), 
Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South 
Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only 
accepted during the Docket Facility's normal hours of operation (8:30 
a.m. to 4 p.m., Monday through Friday, excluding legal holidays). 
Special arrangements should be made for deliveries of boxed 
information. The Docket Facility telephone number is (703) 305-5805.

II. EPA's Order To Revoke Tolerances

A. What action is the Agency taking?

    Pursuant to FFDCA section 408(f), EPA determined that additional 
data are reasonably required to support the continuation of the 
tolerances for mevinphos which are codified at 40 CFR 180.157. In the 
Federal Register of June 29, 2011 (76 FR 38037) (FRL-8879-2), EPA 
issued a final data call-in order in follow-up to a proposed order 
which published in the Federal Register on July 28, 2010 (75 FR 44181) 
(FRL-8835-7). In the final data call-in order of June 29, 2011, EPA 
required the submission of various data to support the continuation of 
the tolerances for the pesticide mevinphos. Because there are currently 
no domestic registrations for mevinphos, these tolerances are referred 
to as ``import tolerances.'' According to the terms of the order, if 
the Agency did not receive a section 408(f) Response Form identifying a 
person who agrees to submit the required data within 90 days after 
publication of the final order (September 27, 2011), EPA would proceed 
to revoke the mevinphos tolerances at 40 CFR 180.157.
    On July 11, 2011 (76 FR 40628) (FRL-8879-2), EPA published a notice 
in the Federal Register in which the Agency made a minor correction 
regarding the final data call-in order of June 29, 2011. Subsequently, 
EPA received no submissions of the ``Sec.  408(f) Order Response'' form 
within the required 90-day period. Therefore, in this order, EPA is 
revoking all the tolerances for the pesticide mevinphos in 40 CFR 
180.157, which includes tolerances for the following commodities: 
Broccoli, cabbage, cauliflower, celery, cucumber, grape, lettuce, melon 
(determined on the edible portion with rind removed), pea, pepper, 
spinach, squash, summer; strawberry, tomato, and watermelon.
    This tolerance revocation order for mevinphos is subject to the 
objection and hearing procedure in FFDCA section 408(g)(2) but the only 
material issue in such a procedure is whether a submission required by 
the order was made in a timely fashion.

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

    Under FFDCA section 408(f)(2), if no response is received to an 
order issued pursuant to section 408(f)(1), EPA may by order published 
in the Federal Register revoke the tolerance or exemption in question.

C. When do these actions become effective?

    As stated in the DATES section, this order is effective on the date 
of publication in the Federal Register. An order issued under FFDCA 
section 408(f)(2) shall take effect upon publication unless the 
regulation or order specifies otherwise. However, the Agency may stay 
the effectiveness of the regulation or order if, after issuance of such 
regulation or order, objections are filed with respect to such 
regulation or order pursuant to FFDCA section 408(g)(2). (21 U.S.C. 
346a(g)(1)).
    Any commodities listed in the regulatory text of this document that 
are treated with the pesticide subject to this order, and that are in 
the channels of trade following the tolerance revocations, shall be 
subject to FFDCA section 408(l)(5), as established by the Food Quality 
Protection Act (FQPA). Under this unit, any residues of the pesticide 
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 at a time and in a manner that was lawful under the 
Federal Insecticide, and Rodenticide Act.
    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 a 
tolerance or exemption from tolerance. Evidence to show that food was 
lawfully treated may include records that verify the dates that the 
pesticide was applied to such food.

III. Statutory and Executive Order Reviews

    This action, which revokes tolerances due to a failure to comply 
with a data call-in order, is in the form of an order and not a rule. 
(21 U.S.C. 346a(f)(1)(C)). Under the Administrative Procedures 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 action, as explained 
further in the following discussion.

A. Executive Order 12866 and Executive Order 13563

    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),

B. Paperwork Reduction Act

    This action does not impose additional burdens that require 
approval by OMB under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 
et seq.). The information collection activities associated with the 
prior order requesting data from any party interested in supporting the 
tolerances being revoked today were approved by OMB under OMB Control 
No. 2070-0174, and are identified by EPA ICR No. 2288.01. Burden is 
defined at 5 CFR 1320.3(b). Under the PRA, an Agency may not conduct or 
sponsor, and a person is not required to respond to a collection of 
information that requires OMB approval under PRA, unless it has been 
approved by OMB and displays a currently valid OMB control number. The 
OMB control numbers for EPA's

[[Page 12207]]

regulations in title 40 of the CFR, after appearing in the Federal 
Register, are listed in 40 CFR part 9, and included on the related 
collection instrument, or form, if applicable.

C. Regulatory Flexibility Act

    Since this order 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.

D. Unfunded Mandates Reform Act; and Executive Orders 13132, and 13175

    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 section 
408(n)(4) of FFDCA. 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 order. In addition, this order 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. 1531-1538).

E. Executive Orders 13045, 13211 and 12898

    As indicated previously, this action is not a ``regulatory action'' 
as defined by Executive Order 12866. 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, this order also does 
not 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).

F. National Technology Transfer and Advancement Act

    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).

IV. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq. does not apply 
because this action is not a rule as that term is defined in 5 U.S.C. 
804(3).

List of Subjects in 40 CFR Part 180

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

    Dated: February 10, 2012.
Steven Bradbury,
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.

Sec.  180.157  [Removed]

0
2. Remove Sec.  180.157.

[FR Doc. 2012-4065 Filed 2-28-12; 8:45 am]
BILLING CODE 6560-50-P
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