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Metolachlor, S-Metolachlor, Bifenazate, Buprofezin, and 2,4-D; Tolerance Actions

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Information about this document as published in the Federal Register.

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AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is modifying, establishing and revoking certain tolerances for the herbicides metolachlor and S-metolachlor and correcting the tolerance for guava (from guave) on bifenazate and buprofezin and 2,4-D on cranberry. The regulatory actions finalized in this document are in follow-up to the Agency's reregistration program under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and tolerance reassessment program under the Federal Food, Drug, and Cosmetic Act (FFDCA), section 408(q).

DATES:

This regulation is effective September 23, 2009. Objections and requests for hearings must be received on or before November 23, 2009, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

ADDRESSES:

EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2009-0239. 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 either 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 hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is (703) 305-5805.

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FOR FURTHER INFORMATION CONTACT:

Jane Smith, Pesticide Re-evaluation Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-0048; e-mail address: smith.jane-scott@epa.gov.

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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 Access Electronic Copies of this Document?

In addition to accessing electronically available documents at http://www.regulations.gov, you may access this Federal Register document electronically through the EPA Internet under the “Federal Register” listings at http://www.epa.gov/​fedrgstr. You may also access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.gpoaccess.gov/​ecfr.Start Printed Page 48409

C. Can I File an Objection or Hearing Request?

Under section 408(g) of FFDCA, 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2009-0239 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before November 23, 2009.

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 that is described in ADDRESSES. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2009-0239, by one of the following methods.

  • Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line 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. Background

A. What Action is the Agency Taking?

In the Federal Register of (June 26, 2009) (74 FR 30487) (FRL-8411-5), EPA issued a proposal to revoke, modify, and establish specific tolerances for residues of the herbicides metolachlor, S-metolachlor, 2,4-D; and the insecticides bifenazate and buprofezin. Also, the proposal of June 26, 2009, provided a 60-day comment period which invited public comment for consideration and for support of tolerance retention under FFDCA standards.

In this final rule, EPA is revoking, modifying, and establishing specific tolerances for residues of metolachlor, S-metolahclor, 2,4-D, bifenazate, and buprofezin in or on commodities listed in the regulatory text of this document.

EPA is finalizing these tolerance actions in order to implement the tolerance recommendations made during the reregistration and tolerance reassessment processes (including follow-up on canceled or additional uses of pesticides). As part of these processes, EPA is required to determine whether each of the amended tolerances meets the safety standard of FFDCA. The safety finding determination of “reasonable certainty of no harm” is discussed in detail in each Reregistration Eligibility Decision (RED) and Report on FQPA Tolerance Reassessment Progress and Interim Risk Management Decision (TRED) for the active ingredient. REDs and TREDs recommend the implementation of certain tolerance actions, including modifications, to reflect current use patterns, to meet safety findings and change commodity names and groupings in accordance with new EPA policy. Printed copies of many REDs and TREDs may be obtained from EPA's National Service Center for Environmental Publications (EPA/NSCEP), P.O. Box 42419, Cincinnati, OH 45242-2419; telephone number: 1-800-490-9198; fax number: 1-513-489-8695; Internet at http://www.epa.gov/​ncepihom and from the National Technical Information Service (NTIS), 5285 Port Royal Rd., Springfield, VA 22161; telephone number: 1-800-553-6847 or (703) 605-6000; Internet at http://www.ntis.gov. Electronic copies of REDs and TREDs are available on the Internet at http://www.regulations.gov and http://www.epa.gov/​pesticides/​reregistration/​status.htm.

In this final rule, EPA is revoking certain tolerances and/or tolerance exemptions because either they are no longer needed or are associated with food uses that are no longer registered under FIFRA in the United States. Those instances where registrations were canceled were because the registrant failed to pay the required maintenance fee and/or the registrant voluntarily requested cancellation of one or more registered uses of the pesticide active ingredient. The tolerances revoked by this final rule are no longer necessary to cover residues of the relevant pesticides in or on domestically treated commodities or commodities treated outside but imported into the United States. It is EPA's general practice to issue a final rule revoking those tolerances and tolerance exemptions for residues of pesticide active ingredients on crop uses for which there are no active registrations under FIFRA, unless any person in comments on the proposal indicates a need for the tolerance or tolerance exemption to cover residues in or on imported commodities or legally treated domestic commodities.

EPA has historically been concerned that retention of tolerances that are not necessary to cover residues in or on legally treated foods may encourage misuse of pesticides within the United States.

Generally, EPA will proceed with the revocation of these tolerances on the grounds discussed in Unit II.A. if one of the following conditions applies:

1. Prior to EPA's issuance of a FFDCA section 408(f) order requesting additional data or issuance of a FFDCA section 408(d) or (e) order revoking the tolerances on other grounds, commenters retract the comment identifying a need for the tolerance to be retained.

2. EPA independently verifies that the tolerance is no longer needed.

3. The tolerance is not supported by data that demonstrate that the tolerance meets the requirements under FQPA.

This final rule does not revoke those tolerances for which EPA received comments stating a need for the tolerance to be retained. In response to the proposal published in the Federal Register of June 26, 2009 (74 FR 30487), EPA received no comments during the 60-day public comment period.

B. What is the Agency's Authority for Taking this Action?

EPA may issue a regulation establishing, modifying, or revoking a tolerance under FFDCA section 408(e). In this final rule, EPA is establishing, modifying, and revoking tolerances to implement the tolerance recommendations made during the reregistration and tolerance reassessment processes, and as follow-up on canceled uses of pesticides. As part of these processes, EPA is required to determine whether each of the amended tolerances meets the safety standards under FFDCA. The safety finding determination is found in detail in each post-FQPA RED and TRED for the active ingredient. REDs and TREDs recommend the implementation of certain tolerance actions, including modifications to reflect current use patterns, to meet safety findings, and change commodity names and groupings in accordance with new EPA policy. Printed and electronic copies of Start Printed Page 48410the REDs and TREDs are available as provided in Unit II.A.

EPA has issued a TRED for metolachlor, whose RED was completed prior to FQPA and made a safety finding which reassessed its tolerances according to FFDCA standard, maintaining them when new tolerances were established as noted in Unit II.A. REDs and TREDs contain the Agency's evaluation of the database for these pesticides, including statements regarding additional data on the active ingredients that may be needed to confirm the potential human health and environmental risk assessments associated with current product uses, and REDs state conditions under which these uses and products will be eligible for reregistration. The REDs and TREDs recommended the establishment, modification, and/or revocation of specific tolerances. RED and TRED recommendations such as establishing or modifying tolerances, and in some cases revoking tolerances, are the result of assessment under the FFDCA standard of “reasonable certainty of no harm.” However, tolerance revocations recommended in REDs and TREDs that are made final in this document do not need such assessment when the tolerances are no longer necessary.

EPA's general practice is to revoke tolerances for residues of pesticide active ingredients on crops for which FIFRA registrations no longer exist and on which the pesticide may therefore no longer be used in the United States. EPA has historically been concerned that retention of tolerances that are not necessary to cover residues in or on legally treated foods may encourage misuse of pesticides within the United States. Nonetheless, EPA will establish and maintain tolerances even when corresponding domestic uses are canceled if the tolerances, which EPA refers to as “import tolerances,” are necessary to allow importation into the United States of food containing such pesticide residues. However, where there are no imported commodities that require these import tolerances, the Agency believes it is appropriate to revoke tolerances for unregistered pesticides in order to prevent potential misuse.

C. When Do These Actions Become Effective?

These actions become effective on the date of publication of this final rule in the Federal Register. For this final rule, the tolerances that were revoked because registered uses did not exist concerned uses which have been canceled, in some cases, for many years. The Agency believes that existing stocks of pesticide products labeled for the uses associated with the tolerances revoked herein have been completely exhausted and that treated commodities have had sufficient time for passage through the channels of trade.

Any commodities listed in the regulatory text of this document that are treated with the pesticides subject to this final rule, and that are in the channels of trade following the tolerance revocations, shall be subject to FFDCA section 408(1)(5), as established by FQPA. Under this unit, any residues of these pesticides 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 FIFRA.

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. Are There Any International Trade Issues Raised by this Final Action?

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international Maximum Residue Limits (MRLs) established by the Codex Alimentarius Commission, as required by section 408(b)(4) of FFDCA. The Codex Alimentarius is a joint U.N. Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level in a notice published for public comment. EPA's effort to harmonize with Codex MRLs is summarized in the tolerance reassessment section of individual REDs and TREDs, and in the Residue Chemistry document which supports the RED and TRED, as mentioned in the proposed rule cited in Unit II.A. Specific tolerance actions in this final rule and how they compare to Codex MRLs (if any) is discussed in Unit II.A.

IV. Statutory and Executive Order Reviews

In this final rule, EPA establishes tolerances under FFDCA section 408(e), and also modifies and revokes specific tolerances established under FFDCA section 408. The Office of Management and Budget (OMB) has exempted these types of actions (e.g., establishment and modification of a tolerance and tolerance revocation for which extraordinary circumstances do not exist) from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866 due to its lack of significance, this final rule is not subject to Executive Order 13211, entitled Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). 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 as required by 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 other 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). Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), the Agency previously assessed whether establishment of tolerances, exemptions from tolerances, raising of tolerance levels, expansion of exemptions, or revocations might significantly impact a substantial number of small entities and concluded that, as a general matter, these actions do not impose a significant economic impact on a substantial number of small entities. These analyses for tolerance establishments and modifications, and for tolerance revocations were published on May 4, 1981 (46 FR 24950) and on December Start Printed Page 4841117, 1997 (62 FR 66020) (FRL-5753-1), respectively, and were provided to the Chief Counsel for Advocacy of the Small Business Administration. Taking into account this analysis, and available information concerning the pesticides listed in this final rule, the Agency hereby certifies that this final rule will not have a significant negative economic impact on a substantial number of small entities. In a memorandum dated May 25, 2001, EPA determined that eight conditions must all be satisfied in order for an import tolerance or tolerance exemption revocation to adversely affect a significant number of small entity importers, and that there is a negligible joint probability of all eight conditions holding simultaneously with respect to any particular revocation. (This Agency document is available in the docket of this final rule). Furthermore, for the pesticide named in this final rule, the Agency knows of no extraordinary circumstances that exist as to the present action that would change EPA's previous analysis. 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 final 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 9, 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 final 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 final rule.

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 final rule must submit a rule report 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).

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List of Subjects in 40 CFR Part 180

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Dated: September 16, 2009.

Debra Edwards,

Director, Office of Pesticide Programs.

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Therefore, 40 CFR chapter I is amended as follows:

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PART 180—[AMENDED]

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

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

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2. Section 180.142 is amended by adding alphabetically the following commodity to the table in paragraph (a) to read as follows:

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2,4-D; tolerances for residues.

(a) General. * * *

CommodityParts per million
*   *   *   *   *
Cranberry0.5
*   *   *   *   *
* * * * *
Start Amendment Part

3. Section 180.368 is amended by revising the table in paragraph (a)(1), (a)(2), (d)(1) and (d)(2) to read as follows:

End Amendment Part
Metolachlor; tolerances for residues.

(a) General. (1) * * *

CommodityParts per million
Almond, hulls0.30
Animal feed, nongrass, group 181.0
Cattle, fat0.02
Cattle, kidney0.20
Cattle, liver0.05
Cattle, meat0.02
Cattle, meat byproducts, except kidney and liver0.04
Corn, field, forage6.0
Corn, field, grain0.10
Corn, field, stover6.0
Corn, sweet, forage6.0
Corn, sweet, kernel plus cob with husks removed0.10
Corn, sweet, stover6.0
Cotton, gin byproducts4.0
Cotton, undelinted seed0.10
Dillweed0.50
Egg0.02
Goat, fat0.02
Goat, kidney0.20
Goat, liver0.05
Goat, meat0.02
Goat, meat byproducts, except kidney and liver0.04
Grass, forage10
Grass, hay0.20
Horse, fat0.02
Horse, kidney0.20
Horse, liver0.05
Horse, meat0.02
Horse, meat byproducts, except kidney and liver0.04
Milk0.02
Nut, tree, group 140.10
Okra0.50
Peanut0.20
Peanut, hay20
Peanut, meal0.40
Potato0.20
Poultry, fat0.02
Poultry, meat0.02
Poultry, meat byproducts0.05
Safflower, seed0.10
Sheep, fat0.02
Sheep, kidney0.20
Sheep, liver0.05
Sheep, meat0.02
Sheep, meat byproducts, except kidney and liver0.04
Sorghum, grain, forage1.0
Sorghum, grain, grain0.30
Sorghum, grain, stover4.0
Soybean, forage5.0
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Soybean, hay8.0
Soybean, seed0.20
Tomato0.10
Vegetable, foliage of legume, subgroup 7A, except soybean15.0
Vegetable, legume, group 60.30

(2) * * *

CommodityParts per million
Asparagus0.10
Beet, sugar, molasses2.0
Beet, sugar, roots0.5
Beet, sugar, tops15.0
Brassica, head and stem, subgroup 5A0.60
Cattle, fat0.02
Cattle, kidney0.20
Cattle, liver0.05
Cattle, meat0.02
Cattle, meat byproducts, except kidney and liver0.04
Corn, field, grain0.10
Corn, field, forage6.0
Corn, field, stover6.0
Corn, pop, grain0.10
Corn, pop, stover6.0
Corn, sweet, forage6.0
Corn, sweet, kernel plus cob with husks removed0.10
Corn, sweet, stover6.0
Cotton, gin byproducts4.0
Cotton, undelinted seed0.10
Egg0.02
Garlic, bulb0.10
Grain, aspirated fractions0.70
Goat, fat0.02
Goat, kidney0.20
Goat, liver0.05
Goat, meat0.02
Goat, meat byproducts, except kidney and liver0.04
Grass, forage10.0
Grass, hay0.20
Horse, fat0.02
Horse, kidney0.20
Horse, liver0.05
Horse, meat0.02
Horse, meat byproducts, except kidney and liver0.04
Leaf petioles, subgroup 4B0.10
Milk0.02
Onion, bulb0.10
Onion, green2.0
Peanut0.20
Peanut, hay20.0
Peanut, meal0.40
Poultry, fat0.02
Poultry, meat0.02
Poultry, meat byproducts0.05
Pumpkin0.10
Safflower, seed0.10
Shallot, bulb0.10
Sheep, fat0.02
Sheep, kidney0.20
Sheep, liver0.05
Sheep, meat0.02
Sheep, meat byproducts, except kidney and liver0.04
Sorghum, grain, forage1.0
Sorghum, grain, grain0.3
Sorghum, grain, stover4.0
Soybean, forage5.0
Soybean, hay8.0
Soybean, seed0.20
Spinach0.50
Squash, winter0.10
Sunflower, seed0.50
Sunflower, meal1.0
Tomato, paste0.30
Vegetable, foliage of legume, except soybean, subgroup 7A15.0
Vegetable, fruiting, group 8, except tabasco pepper0.10
Vegetable, legume, group 60.30
Vegetable, root, except sugar beet, subgroup 1B0.30
Vegetable, tuberous and corm, subgroup 1C0.20

(d) Indirect or inadvertent residues. (1) * * *

CommodityParts per million
Animal feed, nongrass, group 181.0
Barley, grain0.10
Barley, hay0.80
Barley, straw0.80
Buckwheat, grain0.10
Millet, forage0.50
Millet, grain0.10
Millet, hay0.80
Millet, straw0.80
Oat, forage0.50
Oat, grain0.10
Oat, hay0.80
Oat, straw0.80
Rice, grain0.10
Rye, forage0.50
Rye, grain0.10
Rye, straw0.80
Wheat, forage0.50
Wheat, grain0.10
Wheat, hay0.80
Wheat, straw0.80

(2) * * *

CommodityParts per million
Animal feed, nongrass, group 181.0
Barley, grain0.10
Barley, hay0.50
Barley, straw0.50
Buckwheat, grain0.10
Millet, forage0.50
Millet, grain0.10
Millet, hay0.50
Millet, straw0.50
Oat, forage0.50
Oat, grain0.10
Oat, hay0.50
Oat, straw0.50
Rice, grain0.10
Rye, forage0.50
Rye, grain0.10
Rye, straw0.50
Wheat, forage0.50
Wheat, grain0.10
Wheat, hay0.50
Wheat, straw0.50
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4. Section 180.511 is amended by removing the entry for “Guave” and adding the following commodity to the table in paragraph (a) to read as follows:

End Amendment Part
Buprofezin; tolerances for residues.

(a) General. * * *

CommodityParts per million
*   *   *   *   *
Guava0.3
*   *   *   *   *
Start Amendment Part

5. Section 180.572 is amended by removing the entry for “Guave” and adding the following commodity to the table in paragraph (a) to read as follows:

End Amendment Part
Bifenazate; tolerances for residues.

(a) General. * * *

CommodityParts per million
*   *   *   *   *
Guava0.9
*   *   *   *   *
End Supplemental Information

[FR Doc. E9-22919 Filed 9-22-09; 8:45 am]

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