37218 Federal Register / Vol. 61, No. 138 / Wednesday, July 17, 1996 / Rules and Regulations

action must be filed in the United States

Court of Appeals for the appropriate

circuit by September 16, 1996. Filing a

petition for reconsideration by the

Administrator of this final rule does not

affect the finality of this rule for the

purposes of judicial review, nor does it

extend the time within which a petition

for judicial review may be filed and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements (see Section

307(b)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Hydrocarbons,

Incorporation by reference,

Intergovernmental relations, Ozone,

Reporting and recordkeeping

requirements.

Dated: June 17, 1996.

David A. Ullrich,

Acting Regional Administrator.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

Subpart YY—Wisconsin

2. Section 52.2570 is amended by

adding paragraph (c)(95) to read as

follows:

§ 52.2570 Identification of plan.

* * * * *

(c) * * *

(95) On March 15, 1996, Wisconsin

submitted a site-specific SIP revision in

the form of a consent order for

incorporation into the federally

enforceable ozone SIP. This consent

order establishes an alternate volatile

organic compound control system for a

cold cleaning operation at the General

Electric Medical Systems facility located

at 4855 West Electric Avenue in

Milwaukee.

(i) Incorporation by reference. The

following items are incorporated by

reference.

(A) State of Wisconsin Consent Order

AM–96–200, dated February 20, 1996.

(B) September 15, 1995 letter from

Michael S. Davis, Manager—Air and

Chemical Management Programs,

General Electric Medical Systems to

Denese Helgeland, Wisconsin

Department of Natural Resources, along

with the enclosed system diagram. (This

letter is referenced in Consent Order

AM–96–200.)

[FR Doc. 96–17990 Filed 7–16–96; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 180

[OPP–300363B; FRL–5382–1]

RIN 2070–AC18

Folpet; Revocation of Pesticide

Tolerances

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final Rule.

SUMMARY: This rule revokes tolerances

for folpet residues in or on the following

commodities: celery, cherries, leeks,

onions (green), shallots, blackberries,

blueberries, boysenberries, crabapples,

currants, dewberries, gooseberries,

huckleberries, loganberries, raspberries,

citrus fruits, garlic, pumpkins, summer

squash, and winter squash. This

revocation is necessary because the

registrant has voluntarily canceled use

of this fungicide on these commodities.

EFFECTIVE DATE: This final rule becomes

effective September 16, 1996.

ADDRESSES: Written objections and

hearing requests, identified by the

docket, [OPP–300363B], may be

submitted to: Hearing Clerk (1900),

Environmental Protection Agency, Rm.

M3708, 401 M St., SW., Washington, DC

20460. Fees accompanying objections

and hearing requests shall be labeled

‘‘Tolerance Petition Fees’’ and

forwarded to: EPA Headquarters

Accounting Operations Branch, OPP

(Tolerance Fees), P.O. Box 360277M,

Pittsburgh, PA 15251. A copy of any

objections and hearing requests filed

with the Hearing Clerk should be

identified by the docket number and

submitted to: Public Response and

Program Resources Branch, Field

Operations Division (7506C), Office of

Pesticide Programs, Environmental

Protection Agency, 401 M St., SW.,

Washington, DC 20460. In person, bring

copy of objections and hearing requests

to: Rm. 1132, CM #2, 1921 Jefferson

Davis Hwy., Arlington, VA 22202.

A copy of objections and hearing

requests filed with the Hearing Clerk

may also be submitted electronically by

sending electronic mail (e-mail) to: oppdocket@epamail.epa.gov. Copies of

objections and hearing requests must be

submitted as an ASCII file avoiding the

use of special characters and any form

of encryption. Copies of objections and

hearing requests will also be accepted

on disks in WordPerfect in 5.1 file

format or ASCII file format. All copies

of objections and hearing requests in

electronic form must be identified by

the docket number [OPP–300363B]. No

‘‘Confidential Business Information’’

(CBI) should be submitted through email. Electronic copies of objections and

hearing requests on this rule may be

filed online at many Federal Depository

Libraries. Additional information on

electronic submissions can be found

below in this document.

FOR FURTHER INFORMATION CONTACT: By

mail, Jeff Morris, Review Manager,

Special Review Branch (7508W), Office

of Pesticide Programs, Environmental

Protection Agency, 401 M St., SW.,

Washington, DC 20460. Office location

and telephone number: 3rd floor,

Crystal Station, 2800 Crystal Drive,

Arlington, VA 22202, (703) 308–8029; email: morris.jeffrey@epamail.epa.gov.

SUPPLEMENTARY INFORMATION: Following

issuance of a proposed rule to revoke

folpet tolerances (59 FR 61859,

December 2, 1994)(FRL–4912–6) and

considering comments that EPA

received in response to the proposed

rule, this rule serves as a final order to

revoke tolerances for folpet residues in

or on the following commodities: celery,

cherries, leeks, onions (green), shallots,

blackberries, blueberries, boysenberries,

crabapples, currants, dewberries,

gooseberries, huckleberries,

loganberries, raspberries, citrus fruits,

garlic, pumpkins, summer squash, and

winter squash. The tolerance for folpet

residues in or on avocados will remain

as currently listed in 40 CFR 180.191,

and will be addressed through the

reregistration process (the avocado

tolerance was not subject to the

December 2, 1994 proposed rule). In a

separate notice, EPA will address the

remaining tolerances that were subject

to the proposed rule; the registrant is

currently generating data to support

those tolerances.

I. Legal Authorization

The Federal Food, Drug, and Cosmetic

Act (FFDCA, 21 U.S.C. 301 et seq.)

authorizes the establishment of

tolerances (maximum legal residue

levels) and exemptions from the

requirement of a tolerance for residues

of pesticide chemicals in or on raw

agricultural commodities pursuant to

section 408 [21 U.S.C. 346(a)]. Without

such tolerances or exemptions, a food

containing pesticide residues is

considered to be ‘‘adulterated’’ under

section 402 of FFDCA, and hence may

not legally be moved in interstate

commerce [21 U.S.C. 342]. To establish

a tolerance or an exemption under

section 408 of FFDCA, EPA must make

a finding that the promulgation of the

rule would ‘‘protect the public health’’

[21 U.S.C. 346a(b)]. For a pesticide to be

sold and distributed, the pesticide must

not only have appropriate tolerances

under FFDCA, but also must be

registered under the Federal Insecticide,
Federal Register / Vol. 61, No. 138 / Wednesday, July 17, 1996 / Rules and Regulations 37219

Fungicide, and Rodenticide Act (FIFRA,

7 U.S.C. 136 et seq.).

In 1988, Congress amended FIFRA

and required EPA to review and reassess

the potential hazards arising from

currently registered uses of pesticides

registered prior to November 1, 1984. As

part of this process, EPA must

determine whether a pesticide is eligible

for reregistration or whether any

subsequent actions are required to fully

attain reregistration status. EPA has

chosen to include in the reregistration

process a reassessment of existing

tolerances or exemptions from the need

for a tolerance. Through this

reassessment process, based on more

recent data, EPA can determine whether

a tolerance must be amended, revoked,

or established, or whether an exemption

from the requirement of one or more

tolerances must be amended or is

necessary.

Tolerance procedures are discussed in

40 CFR parts 177 through 180. Part 177

establishes the procedures for

establishing, amending, or revoking

tolerances or exemptions from the

requirement of tolerances; part 178

contains procedures for filing objections

and requests for hearings; part 179

contains rules governing formal

evidentiary hearings; and part 180

contains regulations establishing

tolerances or exemptions from the

requirements of a tolerance. The

Administrator of EPA, or any person by

petition, may initiate an action

proposing to establish, amend, revoke,

or exempt a tolerance for a pesticide

registered for food uses. Each petition or

request for a new tolerance, an

amendment to an existing tolerance, or

a new exemption from the requirement

of a tolerance must be accompanied by

a fee. Comments submitted in response

to EPA’s published proposals are

reviewed; EPA then publishes its final

determination regarding the specific

tolerance actions. Monitoring and

enforcement of pesticide tolerances are

carried out by the U.S. Food and Drug

Administration (FDA) and the U.S.

Department of Agriculture (USDA). This

includes monitoring for pesticide

residues in or on commodities imported

into the United States.

II. Background

Folpet is a broad-spectrum fungicide

registered for industrial use in paints,

stains, coatings, and plastics. In

addition, two folpet products are

registered for food use. One product is

actively registered for use on avocados

in Florida only; the other is a

registration for all folpet food uses,

including the food uses covered by the

tolerances that are subject to this rule,

that EPA suspended in 1987 for failure

of the registrant to supply the data

required by EPA to support the

continued registration of these uses.

EPA has classified folpet as a B2

(probable) human carcinogen.

A. Proposed Revocation of Tolerances

and Comment Period Extension

At the time the proposed rule was

published, with the exception of data to

support the avocado use, the registrant

had not submitted the following residue

chemistry data, which, according to the

June 1987 folpet registration standard,

are needed to support registration of the

commodities subject to this rule: nature

of the residues (metabolism) studies

(guideline no. 171–4a) for representative

crops; analytical method validation

(guideline no. 171–4c); storage stability

studies (guideline no. 171–4e) for

representative crops; crop field trials

(guideline no. 171–4k) for the subject

commodities; and processing studies

(guideline no. 171–4l) for applicable

commodities. These data are required

under 40 CFR part 158, and are needed

to allow EPA to determine whether a

proposed tolerance level is practical and

achievable. Because the establishment

of a tolerance under section 408 of

FFDCA requires a finding that a

tolerance will protect the public health,

and because EPA did not have adequate

data to make such a finding, EPA issued

a proposed rule to revoke all folpet

tolerances, except the avocado

tolerance. The proposed rule was

published in the Federal Register on

December 2, 1994 (59 FR 61859).

In a Federal Register notice dated

January 3, 1995 (60 FR 89)(FRL–4982–

3), EPA extended the end of the

comment period for the proposed rule

from January 3, 1995, to March 3, 1995.

The January 3 notice also requested the

following: (1) That interested parties

identify which tolerances they were

willing to support by providing the data

necessary to maintain the tolerances,

and (2) that interested parties identify

specific existing data they were

prepared to submit in support of the

tolerances.

B. Registrant’s Response to the Proposed

Rule

1. Commitment to support tolerances.

In its comments to the December 2, 1994

proposed rule, Makhteshim-Agan, the

sole folpet registrant, committed to

generate the data necessary to establish

tolerances in or on the following nine

commodities: apples, cranberries,

cucumbers, grapes, lettuce, melons,

onions, strawberries, and tomatoes.

(Makhteshim-Agan had previously

submitted the required data for the use

of folpet on avocados.) MakhteshimAgan also submitted use information on

the other nine commodities and a

summary of the residue chemistry data

that had thus far been generated for

those commodities.

2. Request to delete uses. In a letter to

EPA dated June 11, 1995, MakhteshimAgan requested that EPA delete the

following uses from its folpet

registration number 66222–8:

blackberries, boysenberries, dewberries,

loganberries, raspberries, blueberries,

huckleberries, summer/winter squash,

pumpkins, celery, cherries (red tart),

citrus (oranges, grapefruit, lemons,

limes, tangelos, and tangerines),

gooseberries, currants, and garlic. EPA

published a notice of receipt of this

request in a Federal Register notice

dated April 17, 1996 (61 FR

16779)(FRL–5360–5). Following the 90–

day comment period for this notice, the

deletion of the uses is expected to take

effect on July 16, 1996.

III. Final Actions

In response to comments made to the

December 2, 1994 proposed rule,

through meetings and other

communication with the folpet

registrant, and in accord with EPA’s

policy regarding data requirements to

support tolerances, EPA is issuing this

final order to revoke the 20 tolerances

that have received no commitment for

support.

This final rule revokes the following

folpet tolerances listed in 40 CFR

180.191: blackberries, blueberries,

boysenberries, celery, cherries, citrus

fruits, crabapples, currants, dewberries,

garlic, gooseberries, huckleberries,

leeks, loganberries, onions (green),

pumpkins, raspberries, shallots, summer

squash, and winter squash. EPA is

revoking these tolerances for two

reasons: (1) The registrant is no longer

supporting the uses on its folpet

registrations, and (2) EPA does not have

the data necessary to make a finding

that the tolerances are protective of the

public health, as is required by section

408 of FFDCA and 40 CFR part 158. The

25 ppm avocado tolerance is being

supported through the reregistration

program for domestic registrations and

is not subject to this rule, and therefore

remains unchanged. The remaining nine

supported tolerances will be the subject

of a separate notice that EPA will issue

in the future.

Because folpet food-use registrations

have been suspended since 1987 and

therefore commodities may not be

legally treated with any existing folpet

stocks, EPA expects no folpet residues

to be in or on the commodities

associated with the tolerances subject to
37220 Federal Register / Vol. 61, No. 138 / Wednesday, July 17, 1996 / Rules and Regulations

this rule; nor, for the same reason, are

folpet residues expected to persist in the

environment. Following revocation of

the tolerances, any imported

commodities containing folpet residues

will be subject to seizure as a result of

FDA and USDA monitoring; this should

prohibit any treated imported

commodities from entering domestic

channels of trade. Therefore, final

expiration of the tolerances will occur

60 days from the date of publication of

this rule in the Federal Register, barring

submission of a petition for a stay of the

effective date of this rule, and EPA will

not require action levels following

expiration of the tolerances.

IV. Comments Received on Proposed

Rule and Response to Comments

The following section summarizes the

comments received to the December 2,

1994 proposed revocation of folpet

tolerances, and EPA’s response to those

comments. The actual comments are in

the folpet docket.

A. Revocation Will Negatively Impact

Importation of Commodities

Many commentors stated that the

revocation of the U.S. folpet tolerances

may have a significant negative impact

on the present and future importation of

agricultural products into the United

States. Commentors were particularly

concerned that revocation of the grape

tolerance would negatively affect wine

imports.

EPA responds that the folpet

registrant has committed to generate the

necessary data for nine tolerances,

including a grape tolerance. EPA will

not revoke tolerances for those

commodities if adequate data are

submitted by the agreed-upon due date.

B. Need for an Import Tolerance Policy

Other commentors expressed concern

regarding the lack of a policy outlining

the data necessary to establish import

tolerances, and that the approach taken

in EPA’s Federal Register notice of

December 2, 1994 is not an efficient

regulatory process. They stated that

deciding complex issues, such as data

requirements, on a case-by-case basis

cannot be efficient and detracts from

regulatory transparency; they added that

an import tolerance policy presented for

public comment would permit EPA to

evaluate the appropriateness of the data

required in the December 2, 1994 notice.

EPA’s response is that it has an

import tolerance policy. EPA’s May 3,

1995 letter to Makhteshim-Agan states:

‘‘EPA requires the same product

chemistry and toxicology data for

import tolerances as are required to

support U.S. registrations of pesticide

products and any resulting tolerances.

In addition, EPA needs residue

chemistry data that are representative of

growing conditions in exporting

countries.’’ It is because EPA has

received neither the data required in the

1987 Registration Standard nor a

commitment to generate the data

necessary to establish tolerances, that

EPA is revoking the tolerances subject to

this rule. EPA is currently reviewing its

import tolerance policy to address

issues raised by folpet and other similar

cases. In application of its policy, EPA

is committed to consistency and, when

possible, harmonization with

international standards.

C. Potential GATT and NAFTA

Violations

Some commentors claimed that EPA’s

proposed action would violate

international obligations of the United

States. They stated that the World Trade

Organizations’s Sanitary and

Phytosanitary (SPS) Agreement permits

EPA to deviate from Codex in

exceptional circumstances, but any

higher level of sanitary or phytosanitary

protection must have a scientific

justification. Such justification requires

a finding by EPA that the forthcoming

Codex standard for folpet is not

sufficient to achieve its appropriate

level of protection.

EPA responds that Codex has

proposed to revoke most of the folpet

Maximum Residue Limits (MRLs),

including the grape MRL, because the

data submitted to Codex are inadequate.

The crop field trial program for the

supported import-only tolerances

initiated by the folpet registrant is

expected to provide data adequate for

setting U.S. and international residue

levels for folpet. Since no data are

available for the remaining tolerances

subject to this rule, EPA is revoking

those tolerances.

D. U.S. Standards Must Not Be

Compromised

One commentor argued that EPA

should revoke folpet tolerances unless

the existing data enable EPA to make

the FFDCA public health finding, and

that the unsupported tolerances should

not remain in effect while the data are

being developed and submitted. The

commentor also stated that nothing in

international trade agreements requires

any deviation from FFDCA’s public

health mandate.

EPA agrees that its mandate to protect

the public health must not be

compromised. All remaining permanent

folpet tolerances will be based on

adequate data that demonstrate that

such tolerances are protective of the

public health.

V. Effective Date and Stays of Effective

Date

This final rule shall become effective

September 16, 1996. A person filing

objections to this Order may submit

with the objections a petition to stay the

effective date of this Order. Such stay

petitions must be submitted to the

Hearing Clerk on or before August 16,

1996. A copy of the stay request filed

with the Hearing Clerk shall be

submitted to the Office of Pesticide

Programs Public Docket. A stay may be

requested for a specific time period or

for an indefinite time period. The stay

petition must include a citation to this

Order and the specific food additive

regulation(s) as to which the stay is

sought, the length of time for which the

stay is requested, and a full statement of

the factual and legal grounds upon

which the petitioner relies for the stay.

If a petition for a stay is submitted, EPA

will automatically stay the effective date

of the Order as to the particular

regulation(s) for which the stay is

sought for such time as is required to

review the stay petition, if necessary. In

determining whether to grant a stay,

EPA will consider the criteria set out in

FDA’s regulations regarding stays of

administrative proceedings at 21 CFR

10.35. Under those rules, a stay will be

granted if it is determined that: (1) The

petitioner will otherwise suffer

irreparable injury; (2) the petitioner’s

case is not frivolous and is being

pursued in good faith; (3) the petitioner

has demonstrated sound public policy

grounds supporting the stay; and (4) the

delay resulting from the stay is not

outweighed by public health or other

public interests. Under FDA’s criteria,

EPA may also grant a stay if EPA finds

that such action is in the public interest

and in the interest of justice.

If a stay petition is submitted, EPA

will publish a notice of receipt in the

Federal Register, stating that the

effective date of this Order is stayed as

to the regulation(s) to which the stay is

requested pending EPA consideration of

the stay request. Any affected person

may submit objections to a stay request

to the Hearing Clerk on or before 15

days after the date of publication in the

Federal Register of the notice of receipt.

Any decision lifting the stay will be

published in the Federal Register.

VI. Hearing Request

Any person adversely affected by this

regulation may, within 30 days after

publication of this document in the

Federal Register, file written objections

to the regulation and may also request
Federal Register / Vol. 61, No. 138 / Wednesday, July 17, 1996 / Rules and Regulations 37221

a hearing on those objections.

Objections and hearing requests must be

filed with the Hearing Clerk, at the

address given above (40 CFR 178.20). A

copy of the objections and/or hearing

requests filed with the Hearing Clerk

should be submitted to the OPP docket

for this rulemaking. The objections

submitted must specify the provisions

of the regulation deemed objectionable

and the grounds for the objections (40

CFR 178.25). Each objection must be

accompanied by the fee prescribed by

40 CFR 180.33(i). If a hearing is

requested, the objections must include a

statement of the factual issue(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). A

request for a hearing will be granted if

the Administrator determines that the

material submitted shows the following:

There is 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

issue(s) in the manner sought by the

requestor would be adequate to justify

the action requested (40 CFR 178.32).

VII. Public Docket

A record has been established for this

rulemaking under docket number [OPP–

300363A] (including any comments and

data submitted electronically). A public

version of this record, including

printed, paper versions of electronic

comments, which does not include any

information claimed as CBI, is available

for inspection from 8 a.m. to 4:30 p.m.,

Monday through Friday, excluding legal

holidays. The public record is located in

Room 1132 of the Public Response and

Program Resources Branch, Field

Operations Division (7506C), Office of

Pesticide Programs, Environmental

Protection Agency, Crystal Mall #2,

1921 Jefferson Davis Highway,

Arlington, VA.

Electronic comments may be sent

directly to EPA at:

opp-docket@epamail.epa.gov.

Electronic comments must be

submitted as an ASCII file avoiding the

use of special characters and any form

of encryption.

The official record for this

rulemaking, as well as the public

version, as described above will be kept

in paper form. Accordingly, EPA will

transfer any copies of objections and

hearing requests received electronically

into printed, paper form as they are

received and will place the paper copies

in the official rulemaking record which

will also include all comments

submitted directly in writing. The

official rulemaking record is the paper

record maintained at the address in

‘‘ADDRESSES’’ at the beginning of this

document.

VIII. Regulatory Assessment

Requirements

To satisfy the requirements for

analysis specified by Executive Order

12866, the Regulatory Flexibility Act,

the Paperwork Reduction Act, the

Unfunded Mandates Reform Act, and

the Small Business Regulatory

Enforcement Fairness Act, EPA has

considered the impacts of this final rule.

A. Executive Order 12866

Under Executive Order 12866 (58 FR

51735, October 4, 1993), the Agency

must determine whether the regulatory

action is ‘‘significant’’ and therefore

subject to all the requirements of the

Executive Order (i.e., Regulatory Impact

Analysis, review by the Office of

Management and Budget (OMB)). Under

section 3(f), the order defines

‘‘significant’’ as those actions likely to

lead to a rule (1) having an annual effect

on the economy of $100 million or

more, or adversely and materially

affecting a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local or tribal governments or

communities (also known as

‘‘economically significant’’); (2) creating

serious inconsistency or otherwise

interfering with an action taken or

planned by another agency; (3)

materially altering the budgetary

impacts of entitlement, grants, user fees,

or loan programs; or (4) raising novel

legal or policy issues arising out of legal

mandates, the President’s priorities, or

the principles set forth in this Executive

Order.

Pursuant to the terms of this

Executive Order, EPA has determined

that this rule is not ‘‘significant’’ and is

therefore not subject to OMB review.

B. Regulatory Flexibility Act

EPA has reviewed this final rule

under the Regulatory Flexibility Act of

1980 [5 U.S.C. 601 et seq.], and has

determined that it will not have a

significant economic impact on a

substantial number of small businesses,

small governments, or small

organizations. Accordingly, I certify that

this final rule does not require a

separate regulatory flexibility analysis

under the Regulatory Flexibility Act.

C. Paperwork Reduction Act

This regulatory action does not

contain any information collection

requirements subject to review by OMB

under the Paperwork Reduction Act of

1980, 44 U.S.C. 3501 et seq.

D. Unfunded Mandates Reform Act

This final rule contains no Federal

mandates under Title II of the Unfunded

Mandates Reform Act of 1995, Pub. L.

104–4 for State, local, or tribal

governments or the private sector,

because it would not impose

enforceable duties on them.

E. Small Business Regulatory

Enforcement Fairness Act

Under 5 U.S.C. 801(a)(1)(A) of the

Administrative Procedure Act (APA) as

amended by the Small Business

Regulatory Enforcement Fairness Act of

1996 (Title II of Pub. L. 104–121, 110

Stat. 847), EPA submitted 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 General

Accounting Office prior to publication

of this rule in today’s Federal Register.

This rule is not a ‘‘major rule’’ as

defined by 5 U.S.C. 804(2) of the APA

as amended.

List of Subjects in 40 CFR Part 180

Environmental protection,

Administrative practice and procedure,

Agricultural commodities, Pesticides

and pests, Reporting and recordkeeping

requirements.

Dated: June 24, 1996.

Lois A. Rossi,

Director, Special Review and Reregistration

Division, Office of Pesticide Programs.
37222 Federal Register / Vol. 61, No. 138 / Wednesday, July 17, 1996 / Rules and Regulations

Therefore, 40 CFR, chapter I, part 180

is amended as follows:

PART 180—[AMENDED]

The authority citation for part 180

would continue to read as follows:

Authority: 21 U.S.C. 346a and 371.

2. Section 180.191 is revised to read

as follows:

§ 180.191 Folpet; tolerances for residues.

Tolerances are established for the

fungicide folpet (N-

(trichloromethylthio)pthalimide) in or

on raw agricultural commodities as

follows:

Commodity Parts per

million

Apples ....................................... 25

Avocados .................................. 25

Cranberries ............................... 25

Cucumbers ................................ 15

Grapes ...................................... 25

Lettuce ...................................... 50

Melons ...................................... 15

Onion (dry bulb) ........................ 15

Strawberries .............................. 25

Tomatoes .................................. 25

[FR Doc. 96–16588 Filed 7–16–96; 8:45 am]

BILLING CODE 6560–50–F

DEPARTMENT OF TRANSPORTATION

Office of the Secretary of

Transportation

49 CFR Part 40

Federal Aviation Administration

14 CFR Part 121

Research and Special Programs

Administration

49 CFR Part 199

Federal Railroad Administration

49 CFR Part 219

Federal Highway Administration

49 CFR Part 382

Federal Transit Administration

49 CFR Parts 653 and 654

[OST Docket No. OST–96–1533]

RIN 2105–AC33

Amendment to Definition of

‘‘Substance Abuse Professional’’

AGENCIES: Office of the Secretary,

Federal Aviation Administration,

Research and Special Programs

Administration, Federal Highway

Administration, Federal Railroad

Administration, Federal Transit

Administration, DOT.

ACTION: Final rule.

SUMMARY: Each of the Department’s

alcohol testing rules include a definition

of a substance abuse professional. By

this action, the Department is

consolidating these definitions into its

Department-wide testing procedures

rule and adding to the definition

substance abuse professionals certified

by the International Certification

Reciprocity Consortium.

EFFECTIVE DATE: This rule is effective

July 17, 1996.

FOR FURTHER INFORMATION CONTACT: Jim

Swart, Program Analyst, Office of Drug

Enforcement and Program Compliance,

Room 10317 (202–366–3784); or Robert

C. Ashby, Deputy Assistant General

Counsel for Regulation and

Enforcement, Room 10424, (202–366–

9306); 400 7th Street, SW., Washington,

DC 20590.

SUPPLEMENTARY INFORMATION:

Background

The Omnibus Transportation

Employees Testing Act of 1991 required

that an opportunity for treatment be

made available to covered employees.

To implement this requirement in its

alcohol and drug testing rules issued in

February 1994, the Department of

Transportation established the role of

the ‘‘substance abuse professional’’

(SAP). The DOT rules require an

employer to advise a covered employee,

who engages in conduct prohibited

under these rules, of the resources

available for evaluation and treatment of

substance abuse problems, including the

names, addresses, and telephone

numbers of SAPs and counseling and

treatment programs. The rules also

provide for SAP evaluation to identify

the assistance needed by employees

with substance abuse problems. In many

cases (e.g., the Federal Highway

Administration and Federal Transit

Administration rules), this process and

the role of the SAP apply to drug testing

as well as alcohol testing.

The primary safety objective of the

DOT rules is to prevent, through

deterrence and detection, alcohol and

controlled substance users from

performing transportation safetysensitive functions. The SAP is

responsible for several duties important

to the evaluation, referral, and treatment

of employees identified through breath

and urinalysis testing as being positive

for alcohol and/or controlled substance

use, or who refuse to be tested, or who

have violated other provisions of the

DOT rules.

The SAP’s fundamental responsibility

is to provide a comprehensive face-toface assessment and clinical evaluation

to determine if the employee needs

assistance resolving problems associated

with alcohol use or prohibited drug use.

If the employee is found to need

assistance as a result of this evaluation,

the SAP recommends a course of

treatment with which the employee

must demonstrate successful

compliance prior to returning to DOT

safety-sensitive duty. Assistance

recommendations can include, but are

not limited to: In-patient treatment,

partial in-patient treatment, out-patient

treatment, education programs, and

aftercare. Upon the determination of the

best recommendation for assistance, the

SAP will serve as a referral source to

assist the employee’s entry into an

acceptable treatment or education

program.

In general, the DOT rules prohibit a

covered employee who has engaged in

conduct prohibited by the rules from

performing any safety-sensitive

functions until meeting the conditions

for returning to work, which include a

SAP evaluation, demonstration of

successful compliance with any

required assistance program, and a

successful return-to-duty test result

(below 0.02 for alcohol test and/or a

negative drug test). Therefore, the SAP

follow-up evaluation is needed to

determine if the employee demonstrates

successful compliance with the original

treatment recommendation. In addition,

the SAP directs the employee’s followup testing program.

The DOT rules define the SAP to be

a licensed physician (Medical Doctor or

Doctor of Osteopathy), a licensed or

certified psychologist, a licensed or

certified social worker, or a licensed or

certified employee assistance

professional. In addition, alcohol and

drug abuse counselors certified by the

National Association of Alcoholism and

Drug Abuse Counselors (NAADAC)

Certification Commission, a national

organization that imposes qualification

standards for treatment of alcohol and

drug related disorders, are included in

the SAP definition. All must have

knowledge of and clinical experience in

the diagnosis and treatment of substance

abuse-related disorders (the degrees and

certificates alone do not confer this

knowledge). The rules do not authorize

individuals to be SAPs who meet only

state certification criteria because

qualifications vary greatly by state. In

some states, certified counselors do not

have the experience or training deemed