Federal Register / Vol. 73, No. 186 / Wednesday, September 24, 2008 / Rules and Regulations 54973 

* * * * * 

(4) Tolerances are established for 

residues of the isomer, beta-cyfluthrin, 

cyano(4-fluoro-3- 

phenoxyphenyl)methyl-3-(2,2- 

dichloroethenyl)-2,2-dimethylcyclopropanecarboxylate [mixture 

comprising the enantiomeric pair (R)-acyano-4-fluoro-3-phenoxybenzyl 

(1S,3S)-3-(2,2-dichlorovinyl)-2,2- 

dimethylcyclopropanecarboxylate and 

(S)-a-cyano-4-fluoro-3-phenoxybenzyl 

(1R,3R)-3-(2,2-dichlorovinyl)-2,2- 

dimethylcyclopropanecarboxylate with 

the enantiomeric pair (R)-a-cyano-4- 

fluoro-3-phenoxybenzyl (1S,3R)-3-(2,2- 

dichlorovinyl)-2,2- 

dimethylcyclopropanecarboxylate and 

(S)-a-cyano-4-fluoro-3-phenoxybenzyl 

(1R,3S)-3-(2,2-dichlorovinyl)-2,2- 

dimethylcyclopropanecarboxylate], in 

or on the following raw agricultural 

commodities: 

Commodity Parts per million 

Alfalfa .............................. 5.0 

Alfalfa, forage ................. 5.0 

Alfalfa, hay ...................... 13 

Almond, hulls .................. 0.5 

Barley, bran .................... 0.5 

Barley, grain ................... 0.15 

Beet, sugar, dried pulp ... 1.0 

Beet, sugar, roots ........... 0.10 

Brassica, head and stem, 

subgroup 5A ................ 2.5 

Brassica, leafy greens, 

subgroup 5B ................ 7.0 

Buckwheat, grain ............ 0.15 

Carrot, roots .................... 0.20 

Cattle, fat ........................ 2.0 

Cattle, meat .................... 0.10 

Cattle, meat byproducts 0.10 

Citrus, dried pulp ............ 0.3 

Citrus, oil ......................... 0.3 

Corn, field, grain ............. 0.05 

Corn, pop, grain .............. 0.05 

Corn, sweet, kernel plus 

cob with husks removed ......................... 0.05 

Cotton, hulls .................... 2.0 

Cotton, refined oil ........... 2.0 

Cotton, undelinted seed 1.0 

Egg ................................. 0.01 

Fruit, citrus, group 10 ..... 0.2 

Fruit, pome, group 11 ..... 0.5 

Fruit, stone, group 12 ..... 0.3 

Goat, fat .......................... 2.0 

Goat, meat ...................... 0.05 

Goat, meat byproducts ... 0.05 

Grain, aspirated fractions 150 

Grain, cereal, forage, 

fodder and hay, group 

16, forage, except rice 25 

Grain, cereal, forage, 

fodder and hay, group 

16, hay, except rice .... 6.0 

Grain, cereal, forage, 

fodder and hay, group 

16, stover, except rice 30 

Grain, cereal, forage, 

fodder and hay, group 

16, straw, except rice .. 7.0 

Grape .............................. 1.0 

Commodity Parts per million 

Grape, raisin ................... 3.5 

Grass, forage, fodder 

and hay, group 17, forage .............................. 12 

Grass, forage, fodder 

and hay, group 17, hay 50 

Hog, fat ........................... 0.5 

Hog, meat ....................... 0.01 

Hog, meat byproducts .... 0.01 

Hop, dried cones ............ 20.0 

Hop, vines ....................... 4.0 

Horse, fat ........................ 2.0 

Horse, meat .................... 0.05 

Horse, meat byproducts 0.05 

Lettuce, head .................. 2.0 

Lettuce, leaf .................... 3.0 

Milk ................................. 0.2 

Milk, fat ........................... 5.0 

Millet, grain ..................... 0.15 

Mustard greens ............... 7.0 

Nut, tree, group 14 ......... 0.01 

Oat, bran ......................... 0.5 

Oat, grain ........................ 0.15 

Pea and bean, dried 

shelled, except soybean, subgroup 6C ..... 0.15 

Pea, dry, seed ................ 0.15 

Pea, southern, succulent 0.25 

Peanut ............................ 0.01 

Peanut, hay .................... 6.0 

Pepper ............................ 0.50 

Pistachio ......................... 0.01 

Poultry, fat ...................... 0.01 

Poultry, meat .................. 0.01 

Poultry, meat byproducts 0.01 

Radish, roots .................. 1.0 

Rye, bran ........................ 0.5 

Rye, grain ....................... 0.15 

Sheep, fat ....................... 2.0 

Sheep, meat ................... 0.05 

Sheep, meat byproducts 0.05 

Sorghum, grain, grain ..... 3.5 

Soybean, forage ............. 8.0 

Soybean, hay .................. 4.0 

Soybean, seed ................ 0.03 

Sugarcane, cane ............ 0.05 

Sugarcane, molasses ..... 0.20 

Sunflower, forage ........... 5.0 

Sunflower, seed .............. 0.02 

Teosinte, grain ................ 0.05 

Tomato ............................ 0.20 

Tomato, paste ................. 0.5 

Tomato, pomace ............. 5.0 

Triticale, grain ................. 0.15 

Turnip, greens ................ 7.0 

Vegetable, cucurbit, 

group 9 ........................ 0.1 

Vegetable, fruiting, group 

8 .................................. 0.5 

Vegetable, leafy greens, 

except Brassica, group 

4 .................................. 6.0 

Vegetable, tuberous and 

corm, subgroup 1C ..... 0.01 

Wheat, bran .................... 0.5 

Wheat, grain ................... 0.15 

Wheat, shorts ................. 0.5 

* * * * * 

[FR Doc. E8–22477 Filed 9–23–08; 8:45 am] 

BILLING CODE 6560–50–S 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2006-0175; FRL–8382–3] 

Pesticides; Food Packaging Treated 

with a Pesticide 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This final rule excepts food 

packaging materials (e.g. paper and 

paperboard, coatings, adhesives, and 

polymers) from the definitions of 

‘‘pesticide chemical’’ and ‘‘pesticide 

chemical residue’’ under the Federal 

Food Drug and Cosmetic Act (FFDCA) 

section 201(q), when such food 

packaging materials have been treated 

with a pesticide regulated under the 

Federal Insecticide, Fungicide and 

Rodenticide Act (FIFRA). This final rule 

expands the scope of the current 

exception which applies only to food 

packaging impregnated with an insect 

repellent – one type of pesticide. This 

final rule, as with the rule it amends, 

only applies to the food packaging 

materials themselves; it does not 

otherwise limit EPA’s FFDCA 

jurisdiction over the pesticidal 

substances in or on such products or 

limit FDA’s jurisdiction over substances 

subject to FDA regulation as food 

additives. This rule eliminates 

duplicative FFDCA jurisdiction and 

economizes federal government 

resources while continuing to protect 

human health and the environment. It is 

important to note that under the Federal 

Insecticide, Fungicide and Rodenticide 

Act (FIFRA), EPA will continue to 

regulate the food packaging as an inert 

ingredient of the pesticide product and 

regulate the pesticide active ingredient 

in the treated food packaging under both 

FIFRA and the FFDCA (except as 

otherwise provided by statute). The text 

of this final rule is identical to a direct 

final rule EPA issued on December 6, 

2006. EPA received several comments 

opposing that direct final rule and 

therefore withdrew the rule on February 

2, 2007, consistent with EPA policy. 

EPA issued a subsequent proposed rule 

on April 6, 2007 for additional public 

comment. 

DATES: This final rule is effective 

September 24, 2008. 

ADDRESSES: EPA has established a 

docket for this action under docket 

identification (ID) number EPA–HQ– 

OPP–2006–0175. All documents in the 

docket are listed in the docket index 

available at http://www.regulations.gov. 


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54974 Federal Register / Vol. 73, No. 186 / Wednesday, September 24, 2008 / Rules and Regulations 

1This final rule does not include within its scope 

substances which may be regulated as pesticides 

under FIFRA that are used to prevent, destroy, repel 

or mitigate microorganisms when such substances 

are included for such use in or are applied for such 

use on food packaging (without regard to whether 

the substances are intended to have an ongoing 

effect on any portion of the packaging) (see FFDCA 

section 201(q)(1)(B)(ii) which excludes such 

substances from the definition of ‘‘pesticide 

chemical’’). Because such substances are already 

excluded from the definition of pesticide chemical 

residue, it is unnecessary to address these 

substances in this rule. 

2 It is important to understand that this final rule 

only applies to a very small subset of food 

packaging materials: pesticide-treated food 

packaging that is distributed or sold with the 

purpose of controlling pests. Food packaging that is 

not distributed or sold to control pests is not a 

pesticide and is not subject to this rule. For 

example, packaged products that are simply treated 

with pesticides by food distributors, retailers or 

homeowners solely to control pests on site do not 

themselves become pesticides simply as a result of 

such applications. Rather, the product itself must be 

distributed with the purpose of providing pest 

control to become a pesticide. The treated 

packaging materials addressed in this proposed rule 

are those that are sold for the express purpose of 

providing ongoing protection from pests that may 

contaminate the products made with the treated 

packaging. 

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: 

Cheryl Greene, Biopesticides and 

Pollution Prevention Division (7511P), 

Office of Pesticide Programs, 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460–0001; telephone number: 

(703) 308–0352; fax number: (703) 308– 

7026; e-mail address: greene.cheryl 

@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Does this Action Apply to Me? 

You may be potentially affected by 

this action if you are a manufacturer/ 

wholesaler of sanitary food packaging 

products or are a pesticide 

manufacturer. Potentially affected 

entities may include, but are not limited 

to: 

• Pesticide manufacturing (NAICS 

32532). 

• Food packaging manufacturers 

(NAICS 32222). 

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. To determine whether 

you or your business may be affected by 

this action, you should carefully 

examine the applicability provisions in 

40 CFR 180.4. If you have any questions 

regarding the applicability of this action 

to a particular entity, consult the person 

listed under FOR FURTHER INFORMATION

CONTACT. 

II. Background 

A. What Action is the Agency Taking? 

EPA has received applications for the 

registration of pesticides under FIFRA 

that, as proposed, will be applied to 

food packaging materials. These 

pesticides are generally intended to 

function as alternatives to more costly 

and more toxic applications of 

insecticides in food storage and retail 

establishments. The regulatory 

framework for this use of pesticides 

raises a number of complex 

jurisdictional issues for EPA and FDA1. 

Because the treated packaging 

materials will be sold to food 

distributors for the purpose of 

controlling pest infestations, as well as 

for packaging food, the pesticide-treated 

food packaging materials will be subject 

to the pesticide product registration 

requirements of section 3 of FIFRA. 

Under FIFRA, the components of 

pesticides are either active ingredients 

or inert ingredients. Active ingredients 

are those which, among other things, 

will ‘‘prevent, destroy, repel or mitigate 

any pest.’’ (FIFRA section 2(a)) Inert 

ingredients are ingredients ‘‘which [are] 

not active.’’ (FIFRA section 2(m)). Thus, 

the components of food packaging 

(paperboards, coatings, etc.) become 

inert ingredients of a pesticide product 

under FIFRA whenever the food 

packaging is treated with a pesticide 

active ingredient and is distributed or 

sold with the purpose of controlling 

pests2. 

Such inert ingredients are not used for 

a pesticidal purpose in the production, 

storage, processing, or transportation of 

food. However, as inert ingredients, 

these components of food packaging are 

also subject to regulation as ‘‘pesticide 

chemical residues’’ under FFDCA 

section 408. 

Under section 408 of the FFDCA, any 

pesticide chemical residue in or on food 

is deemed unsafe, unless EPA has 

established a tolerance or tolerance 

exemption that covers the pesticide 

chemical residue. This is true even 

though FDA may have previously issued 

regulations under section 409 of FFDCA 

permitting the use of these materials in 

food packaging that has not been treated 

with a pesticide. As a result, the same 

food packaging materials would be 

subject to regulation under FFDCA by 

both Agencies. EPA is today to giving 

FDA sole jurisdiction under section 409 

FFDCA over the packaging components 

(ingredients) of food packaging 

materials that have been treated with a 

pesticide by excepting these materials 

from the definition of ‘‘pesticide 

chemical’’ and ‘‘pesticide chemical 

residue.’’ Given FDA’s expertise and 

experience in regulating the 

components of food packaging, EPA and 

FDA believe this rule will eliminate the 

duplicative FFDCA jurisdiction and 

economize Federal government 

resources while continuing to protect 

human health and the environment 

without additional regulatory oversight 

by EPA. 

In 1998, EPA consciously limited the 

exception at 40 CFR 180.4 to food 

packaging materials impregnated with 

an insect repellent, since at the time of 

promulgation EPA had only received an 

application for a pesticide product 

containing an insect repellent. EPA has 

now received applications for other 

treated food packaging products that 

contain active ingredients that are not 

insect repellents and will not be applied 

through impregnation of the materials. 

EPA and FDA believe it is appropriate 

to extend the 1998 rule to give FDA sole 

jurisdiction under the FFDCA over the 

inert ingredients in such food packaging 

products without regard to the 

application technique and mode of 

action of the active ingredients in such 

products. Again, this rule will not affect 

EPA’s jurisdiction under section 408 

over ingredients other than the 

packaging materials in such products 

(including the pesticide active 

ingredient), nor does it affect EPA’s 

jurisdiction under FIFRA to regulate 

such products. 

B. What is the Agency’s Authority for 

Taking this Action? 

Section 201(q)(3) of FFDCA, as 

amended by the Food Quality Protection 


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Federal Register / Vol. 73, No. 186 / Wednesday, September 24, 2008 / Rules and Regulations 54975 

Act (FQPA), allows the Administrator, 

under specified conditions, to except 

certain substances from the definition of 

‘‘pesticide chemical’’ or ‘‘pesticide 

chemical residue’’ if— 

(A) Its occurrence as a residue on or in a 

raw agricultural commodity or processed 

food is attributable primarily to natural 

causes or human activities not involving the 

use of any substance for a pesticidal purpose 

in the production, storage, processing, or 

transportation of any raw agricultural 

commodity or processed food; and 

(B) The Administrator, after consultation 

with the Secretary, determines that the 

substance more appropriately should be 

regulated under one or more provisions of 

this Act other than sections 402(a)(2)(B) and 

408. 

With today’s action, EPA excepts from 

the definition of ‘‘pesticide chemical’’ 

substances that are inert ingredients in 

food packaging treated with a pesticide, 

when such ingredients are the 

components of the food packaging (e.g. 

paper and paperboard, coatings, 

adhesives and polymers). 

As previously explained, this final 

rule will not affect EPA’s regulation of 

such substances as inert ingredients 

under FIFRA. EPA will continue to 

exercise jurisdiction under FIFRA over 

these substances when they are used as 

inert ingredients in food packaging that 

is intended to produce a pesticidal 

effect. The materials that make up food 

packaging treated with a pesticide may 

serve one of two purposes: 

1. To control pests, or 

2. To be one of the materials that 

make up the container for food. 

As a result of this rule, EPA will 

continue to regulate the materials that 

control pests and FDA will regulate the 

substances that make up the food 

packaging material. Consistent with 

EPA’s pesticide registration regulations, 

EPA will not issue a registration under 

FIFRA for pesticide products containing 

food packaging inert ingredients if the 

presence of these ingredients in or on 

food is not authorized or permitted by 

FFDCA and the implementing 

regulations. 

EPA, in consultation with FDA, 

believes that section 201(q)(3) is 

applicable to inert ingredients in 

pesticide treated food packaging 

materials that are the components of the 

food packaging (paperboard, coatings, 

etc). When such inert ingredients are the 

components of the food packaging itself, 

EPA believes the occurrence of these 

substances as residues in or on food 

would be appropriately excepted from 

the definition of ‘‘pesticide chemical’’ or 

‘‘pesticide chemical residue’’ because 

such substances are not attributable 

primarily to the use of the substances 

for a pesticidal purpose in the 

production, storage, processing or 

transportation of food. Rather, the 

presence of such substances as residues 

in food is primarily attributable to their 

use for purposes of packaging food. For 

this reason, and because of FDA’s 

considerable experience in regulating 

such substances found in food 

packaging, EPA and FDA believe it is 

appropriate for FDA to regulate these 

inert ingredients under section 409 of 

FFDCA. 

As noted, this regulation will except 

from the definition of ‘‘pesticide 

chemical’’ and ‘‘pesticide chemical 

residue’’ any inert ingredient that is a 

component of food packaging material 

treated with a pesticide. EPA, in 

consultation with FDA, believes the 

identity of the pesticide in or on the 

packaging material is not relevant to a 

determination under section 201(q)(3) 

regarding whether it is appropriate to 

except an inert ingredient from the 

definition of pesticide chemical or 

pesticide chemical residue. As noted in 

this unit, that determination turns only 

on whether: 

1. The occurrence of the residues of 

the substance in or on food is 

attributable primarily to the use of 

substances for a pesticidal purpose in 

the production, storage, processing or 

transportation of food; and 

2. Whether it is more appropriate to 

regulate such substances under another 

provision of FFDCA other than sections 

402(a)(2)(B) and 408. 

Thus, EPA has determined that inert 

ingredients that are the components of 

the food packaging material in pesticide 

treated food packaging are more 

appropriately regulated by FDA under 

FFDCA. This final rule will therefore 

amend 40 CFR 180.4 to extend the 

exception contained therein to any food 

packaging materials treated with a 

pesticide. 

III. Response to Comments 

EPA received comments both on the 

rule when it was published as a direct 

final rule on December 6, 2006 (71 FR 

70667) (FRL–8084–2), and again, 

following withdrawal of the direct final 

(February 2, 2007 (72 FR 4963) (FRL– 

8111–3), when the rule was published 

for comment as a proposed rule on April 

6, 2007 (72 FR 17068) (FRL–8119–8). 

The majority of the comments 

opposed finalizing today’s rule. 

However, most of these comments did 

not address the substance of the rule 

itself – i.e., the transfer of authority 

under the FFDCA from EPA to FDA 

only for the purposes of regulating the 

actual packaging materials in food 

packaging products treated with 

pesticides. Rather, these comments 

objected to the inclusion of pesticides in 

treated packaging as a general matter – 

which is a matter beyond the scope of 

this rule. As discussed in Unit II. in this 

preamble, this rule does not alter the 

regulatory scheme under either FIFRA 

or the FFDCA for pesticidally active 

substances in food packaging or the 

products they are contained in. Any 

such products, including all the 

ingredients in such products, must be 

evaluated under FIFRA on a case-bycase basis. Additionally, subject to the 

limited exception for certain 

antimicrobial pesticides provided in 

FFDCA section 201(q)(1)(B)(ii)(see 

footnote 1 in Unit II.A.), the active 

ingredients in such products (as well as 

those inert ingredients that are not part 

of the food packaging itself) will 

continue to be subject to EPA regulation 

under section 408 of the FFDCA. 

EPA understands from the comments 

that there is some concern about the 

risks that may exist from the inclusion 

of pesticides in treated food packaging. 

As noted, EPA will continue to evaluate 

any applications it receives for such 

products under the stringent health and 

safety standards of both FIFRA and the 

FFDCA (except as provided by section 

201(q)(1)(B)(ii)). These laws require EPA 

to find that residues of pesticides in 

food are safe and to determine whether 

pesticide products cause unreasonable 

risk to human health or the 

environment. Further, it should be 

noted that the applications for 

registration of treated packaging 

materials EPA has received to date are 

for products that may serve to limit the 

need for food storage establishments to 

use riskier pesticides that are currently 

used to control pests in such 

establishments. To be clear, however, 

the fact that these products may serve to 

replace more risky pesticides does not 

alter EPA’s obligation to ensure that 

such products meet stringent food safety 

standards. 

EPA also received a comment that the 

rule would eliminate protections for 

infants and children and affect EPA’s 

jurisdiction to regulate pesticidal 

substances for which no pesticidal 

claims are made. EPA disagrees with 

this comment. EPA believes the 

commenter has incorrectly interpreted 

the import of today’s action. As noted in 

Unit II., this action does not alter EPA’s 

regulation of pesticidally active 

ingredients under the FFDCA – or of 

those inert ingredients that do not 

constitute food packaging materials. 

Further, under FIFRA, EPA must still 

evaluate the entire pesticide product 

(including all active and inert 

ingredients) before making a registration 

determination. And as noted, before 


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54976 Federal Register / Vol. 73, No. 186 / Wednesday, September 24, 2008 / Rules and Regulations 

EPA can register a pesticide product 

under FIFRA, it must determine that the 

product will not present unreasonable 

risk to human health or the 

environment. The only materials that 

are excepted from EPA regulation under 

FFDCA section 408 by this rule are 

those materials regulated by the FDA as 

food packaging — that is, materials that 

are now found in food packaging on 

store shelves irrespective of whether 

those products are treated with a 

pesticide. These materials include the 

paper, cardboard, adhesives and 

coatings that are found in thousands of 

food packaging products across America 

today that are currently subject to FDA 

regulation. Accordingly, this rule does 

not eliminate protections for infants and 

children. Also, as explained in Unit II., 

this rule will have no impact on the 

regulation of substances under either 

the FFDCA or FIFRA that are not 

themselves food packaging materials. 

Finally, this rule does not, as the 

commenter suggests, alter EPA’s 

jurisdiction over certain pesticidal 

substances for which no pesticidal 

claims are made. Substances or mixtures 

of substances are subject to regulation as 

pesticides under FIFRA if, among other 

things, they are intended for 

‘‘preventing, destroying, repelling, or 

mitigating any pest’’ (FIFRA section 

2(u)). EPA has developed regulations at 

40 CFR 152.15 to implement this 

standard. Nothing in today’s action 

alters EPA’s interpretation in that 

regulation of the section 2(u) ‘‘intent’’ 

test. 

EPA received two comments seeking 

clarification regarding certain aspects of 

the rule. One commenter sought 

clarification that: 

1. The rule only excepts components 

of packaging that exhibit no pesticidal 

properties; 

2. EPA will continue to regulate the 

active ingredients in such products 

under the FFDCA; and 

3. The entire treated packaging 

product as sold or distributed will be 

regulated under FIFRA. 

This is correct. As noted, this rule does 

not relieve EPA of its obligation under 

the FFDCA to evaluate active 

ingredients in treated packaging 

products – or for that matter, inert 

ingredients in such products that are not 

part of the packaging materials of such 

products. Further, the rule does not alter 

EPA’s regulation of the entire product 

under FIFRA. It simply eliminates 

duplicative federal regulation of the 

actual packaging materials in treated 

packaging products; materials already 

subject to FDA regulation under the 

FFDCA. 

Finally, to be clear, the rule only 

exempts such inert ingredients when 

found in treated packaging products. To 

the extent that these same materials can 

be expected to result in residues on food 

from use of pesticide products that are 

not treated packaging products, a 

tolerance or a tolerance exemption 

under section 408 of the FFDCA would 

still be required. 

The second commenter, who 

apparently sells treated paper wrap 

products, asked for clarification as to 

whether the rule alters EPA regulation 

of the actual products they sell. As 

noted in Unit II., today’s rule does not 

affect EPA’s regulation of the actual 

treated product under FIFRA. 

IV. Statutory and Executive Order 

Reviews 

As an exception, this action does not 

impose any regulatory obligations. 

Under Executive Order 12866 entitled 

Regulatory Planning and Review (58 FR 

51735, October 4, 1993), it has been 

determined that this rule is not 

‘‘significant’’ and is not subject to OMB 

review. This 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) 

(Pub. L. 104–4). ). This rule has no 

federalism or tribal implications, 

because it will not have substantial 

direct effects on States or Indian tribes, 

on the relationship between the Federal 

Government and the States or Indian 

tribes, or on the distribution of power 

and responsibilities among the various 

levels of government or between the 

Federal Government and Indian tribes, 

as specified in Executive Orders 13132 

(entitled Federalism, 64 FR 43255, 

August 10, 1999) and 13175 (entitled 

Consultation and Coordination with 

Indian Tribal Governments, 65 FR 

67249, November 6, 2000). Nor does this 

rule raise issues that require 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 require OMB review in 

accordance with Executive Order 13045, 

entitled Protection of Children from 

Environmental Health Risks and Safety 

Risks (62 FR 19885, April 23, 1997). 

This rule is also not subject to Executive 

Order 13211, entitled Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution or Use (66 FR 28355, May 

22, 2001), because this action is not 

expected to affect energy supply, 

distribution, or use. In addition, this 

action does not involve any standards 

that would require Agency 

consideration pursuant to section 12(d) 

of the National Technology Transfer and 

Advancement Act (NTTAA) (Pub. L. 

104–113). 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.), the Agency hereby 

certifies that this regulatory action will 

not have a significant economic impact 

on a substantial number of small 

entities, because this regulatory action is 

an exemption and imposes no 

regulatory obligations. EPA will provide 

this information to the Small Business 

Administration’s office of Advocacy 

upon request. 

V. 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: September 11, 2008. 

Janet L. Andersen, 

Director, Biopesticides and Pollution 

Prevention Division, 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), and 371. 

■ 2. Section 180.4 is amended by 

revising paragraph (a) to read as follows: 

§ 180.4 Exceptions. 

* * * * * 

(a) Inert ingredients in food packaging 

treated with a pesticide, when such 

inert ingredients are the components of 

the food packaging material (e.g. paper 


rwilkins on PROD1PC63 with RULES
Federal Register / Vol. 73, No. 186 / Wednesday, September 24, 2008 / Rules and Regulations 54977 

and paperboard, coatings, adhesives, 

and polymers). 

* * * * * 

[FR Doc. E8–21958 Filed 9–23–08; 8:45 am] 

BILLING CODE 6560–50–S 

DEPARTMENT OF THE INTERIOR 

Bureau of Reclamation 

43 CFR Part 423 

RIN 1006–AA55 

Public Conduct on Bureau of 

Reclamation Facilities, Lands, and 

Waterbodies 

AGENCY: Bureau of Reclamation, 

Interior. 

ACTION: Interim final rule. 

SUMMARY: This final rule will amend the 

regulations that govern public access to 

and conduct on Bureau of Reclamation 

(Reclamation) facilities, lands, and 

waterbodies. This action is necessary to 

clarify rules that are intended to 

maintain law and order and protect 

persons and property on Reclamation 

facilities, lands, and waterbodies. This 

action will help the public better 

understand their rights and 

responsibilities. 

DATES: This interim final rule is 

effective on September 24, 2008. 

Reclamation must receive any 

comments on this interim final 

rulemaking no later than November 24, 

2008. 

ADDRESSES: You may submit comments, 

identified by the number 1006–AA55, 

by one of the following methods: 

—Federal Rulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

This rule has been assigned Docket 

Identification Number BOR–2008– 

0003. 

—Mail: Director, Security, Safety, and 

Law Enforcement, Bureau of 

Reclamation, 6th and Kipling, 

Building 67, Denver, CO 80225. 

FOR FURTHER INFORMATION CONTACT: 

David Achterberg, Director, Security, 

Safety, and Law Enforcement, Bureau of 

Reclamation, PO Box 25007, Denver, 

Colorado 80225, telephone 303–445– 

3737. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On November 12, 2001, Congress 

enacted Public Law 107–69, which 

provides for law enforcement authority 

within Reclamation projects and on 

Reclamation lands. Section 1(a) of this 

law requires the Secretary of the Interior 

to ‘‘issue regulations necessary to 

maintain law and order and protect 

persons and property within 

Reclamation projects and on 

Reclamation lands.’’ The Secretary of 

the Interior delegated this authority to 

the Commissioner of Reclamation. 

On April 17, 2002, Reclamation 

published 43 CFR part 423, Public 

Conduct on Bureau of Reclamation 

Lands and Projects (67 FR 19092, Apr. 

17, 2002) as an interim final rule. In the 

preamble to that rule, Reclamation 

stated its intent to replace the interim 

final rule with a more comprehensive 

public conduct rule and set April 17, 

2003, as the interim final rule’s 

expiration date. In order to provide 

more time to develop the 

comprehensive public conduct rule, 

Reclamation later extended the 

expiration of the interim final rule to 

April 17, 2005 (68 FR 16214, Apr. 3, 

2003), and again to April 17, 2006 (70 

FR 15778, Mar. 29, 2005). 

On September 13, 2005, Reclamation 

published a proposed public conduct 

rule (70 FR 54214, Sep. 13, 2005) and 

asked the public to comment on that 

proposed rule. The Final Rule, 43 CFR 

Part 423, was published in the Federal 

Register on April 17, 2006 (71 FR 

19790, Apr. 17, 2006). 

Since that time, some members of the 

public and other entities have found 

certain provisions of the public conduct 

rule to be unclear. The purpose of this 

interim final rule is to amend the public 

conduct rule to clarify these provisions. 

A detailed discussion of these 

amendments follows. 

The definitions of the terms 

‘‘Disorderly conduct’’ and ‘‘Trespass’’ 

are being removed, and the language 

from those definitions is being added to 

§§ 423.22 and 423.24, respectively, 

because these are criminal acts and their 

detailed descriptions should be 

explained in the applicable sections of 

Subpart C of this rule. This change will 

facilitate reference to specific acts when 

law enforcement officers issue citations 

for disorderly conduct and trespassing. 

The definition of ‘‘Vessel’’ is being 

revised to remove the statement that 

seaplanes, when on the water, are 

considered ‘‘vessels’’ under this part. 

This change will make Reclamation 

consistent with the U.S. Coast Guard 

and the majority of western States, 

which do not consider a seaplane a 

vessel when on the water. 

A definition of the term ‘‘Closed’’ is 

being added to help resolve confusion 

concerning the use of closures under 

Subpart B as opposed to special use 

areas under Subpart E of this rule. This 

definition will clarify the distinction 

that closures are to be used only when 

all public access to a particular area or 

location is to be prohibited. When only 

a specific activity such as camping is to 

be prohibited in a certain area, but other 

public access to that area is to be 

allowed, a special use area should be 

established. 

Section 423.3(a) is being revised to 

clarify that persons on Reclamation 

facilities, lands, and waterbodies must 

comply with Federal as well as State 

and local laws. 

Section 423.3(b)(2) is being revised to 

clarify that the restrictions of part 423 

do not apply to State and local 

employees and agents when they are 

carrying out their official duties. 

In section 423.3(d), we are replacing 

the word ‘‘right’’ with ‘‘authority’’ 

because this passage refers to an 

authority which derives from Public 

Law 107–69. 

New § 423.18 is being added to 

coincide with the new definition of 

closure, and to clarify that closures are 

to be used only where all public access 

is to be prohibited in a given area. 

Section 423.21(a) is being revised to 

clarify that the public is responsible for 

awareness of all applicable laws as well 

as closures and special use areas when 

on Reclamation facilities, lands, and 

waterbodies. 

In § 423.21(b), the words ‘‘limitations, 

restrictions, closures, or special use 

areas’’ are being added to ensure public 

understanding that the government’s 

ability to issue citations must not be 

interpreted too narrowly. 

Section 423.29(b) is being revised to 

clarify that Reclamation will not issue 

permits under Subpart D of this rule to 

introduce plant or animal species into 

Reclamation lands and waterbodies. 

Governmental entities may, with proper 

authority, introduce plant or animal 

species to Reclamation lands and 

waterbodies, but these activities are not 

restricted by part 423, pursuant to 

§ 423.3(b)(3), and therefore no permits 

are needed. Furthermore, Reclamation 

has no intent to issue permits to the 

public for the introduction of plant or 

animal species. Therefore, the process of 

obtaining permits for these activities is 

inapplicable to either governmental 

entities or to the public. 

Section 423.34(c) is being reworded to 

clarify that under no circumstances can 

a latrine or toilet be placed or 

constructed at a level lower than the 

high water mark of a Reclamation 

waterbody, and to reduce the horizontal 

restriction from 200 yards to 150 feet 

from the high water mark. The 200-yard 

restriction was considered excessive. 

Sections 423.36 and 423.37 are being 

revised to clarify that posted restrictions 


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