[Federal Register Volume 60, Number 234 (Wednesday, December 6, 1995)]
[Proposed Rules]
[Pages 62366-62369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29250]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 180 and 186

[PP 3F4169 and FAP 3H5655/P628; FRL-4971-7]
RIN 2070-AC18


Imidacloprid; Pesticide Tolerances

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to establish permanent tolerances for residues of 
the insecticide (1-[(6-chloro-3-pyridinyl)methyl]-N-nitro-2-
imidazolidinimine) (also known as imidacloprid) and it metabolites in 
or on cottonseed and cotton gin byproducts, to revoke the existing feed 
additive tolerance for imidacloprid on cotton meal, and to establish a 
maximum residue limit for imidacloprid on cottonseed meal. Bayer Corp. 
(formerly Miles, Inc.) submitted petitions pursuant to the Federal 
Food, Drug Cosmetic Act (FFDCA) requesting these regulations to 
establish certain maximum permissible levels for residues of the 
insecticide.

DATES: Comments, identified by the document control number, [PP 3F4169 
and FAP 3H5655/P628], must be received on or before January 5, 1996.

ADDRESSES: By mail, submit written comments 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 comments to: Rm. 1132, CM #2, 
1921 Jefferson Davis Hwy., Arlington, VA 22202. Information submitted 
as a comment concerning this document may be claimed confidential by 
marking any part or all of that information as ``Confidential Business 
Information'' (CBI). Information so marked will not be disclosed except 
in accordance with procedures set fourth 40 CFR part 2. A copy of the 
comment that does not contain CBI must be submitted for inclusion in 
the public record. Information not marked confidential may be disclosed 
publicly by EPA without prior notice. All Written comments will be 
available for public inspection in Rm. 1132 at the addressed given 
above, from 8 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays.
    Comments and data may also be submitted electronically by sending 
electronic mail (e-mail) to: [email protected]. Electronic 
comments must be submitted as an ASCII file avoiding the use of special 
characters and any form of encryption. 

[[Page 62367]]
Comments and data will also be accepted on disks in WordPerfect in 5.1 
file format or ASCII format. All comments and data in electronic form 
must be identified by the docket number [PP 3F4169 and FAP 3H5655/
P628]. No Confidential Business Information (CBI) should be submitted 
through e-mail. Electronic comments on this proposed 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: Dennis H. Edwards, Jr., 
Product Manager (PM) 19, Registration Division (7505C), Office of 
Pesticide Programs, Environmental Protection Agency, 401 M St., SW., 
Washington, DC 20460. Office location and telephone number: Rm. 207, CM 
#2, 1921 Jefferson Davis Hwy., Arlington, VA 22202, (703)-305-6386; e-
mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. Introduction

    Pursuant to petitions from Miles, Inc., EPA issued final rules 
establishing pesticide tolerances under section 408 of the Federal 
Food, Drug and Cosmetic Act (FFDCA), 21 U.S.C. 346a, for residues of 
the insecticide (1-[(6-chloro-3-pyridinyl)methyl]-N-nitro-2-
imidazolidinimine, in or on the raw agricultural commodities apples at 
0.5 part per million (ppm), potatoes at 0.3 ppm, and cottonseed at 6.0 
ppm. Based on a feed additive petition (FAP) 3H5655 from Miles, Inc., 
EPA established food or feed additive regulations under FFDCA section 
409, 21 U.S.C. 348, for the combined residues of imidacloprid and its 
metabolites containing the 6-chloropyridinyl moiety, all expressed as 
imidacloprid, on apple pomace (wet or dried) at 3 ppm, on potato chips 
at 0.4 ppm, on potato waste at 0.9 ppm, and on cottonseed meal at 9.0 
ppm. The tolerances for cottonseed and cottonseed meal were established 
as time-limited tolerances and are due to expire on November 30, 1996 
(see the Federal Register of November 30, 1994 (59 FR 61278)).
    The reason the cottonseed and cottonseed meal tolerances were 
established as 2-year time-limited tolerances was to enable Bayer to 
complete additional cotton residue trials and present a final report. 
On June 2, 1994, the Agency issued a guidance document on crop residue 
trials. Among other things, this document provided guidance on the 
number and location of domestic crop field trials for establishment of 
pesticide residue trials. Based on this guidance document, the Agency 
determined that additional residue trials were needed and residue data 
on gin trash were required to fully support the cotton tolerances.
    On March 31, 1995, Bayer submitted the additional residue studies. 
A request was also submitted to establish a tolerance for cotton gin 
byproducts. These data have been reviewed and determined to be adequate 
to support both the proposed cotton gin byproducts tolerance and the 
removal of the expiration date for the cottonseed and cottonseed meal 
tolerances.
    EPA, however, has determined a section 409 feed additive tolerance 
is no longer necessary to prevent cottonseed meal from being deemed 
adulterated, and, therfore, EPA is preparing to revoke the cottonseed 
meal tolerance. Addtionally, EPA is proposing to establish a maximum 
residue limit for imidacloprid residues in cottonseed meal to simipifly 
enforcement.

II. Statutory Background

    The FFDCA, 21 U.S.C. 301 et seq., authorizes the establishment by 
regulation of maximum permissible levels of pesticides in foods. Such 
regulations are commonly referred to as ``tolerances.'' Without such a 
tolerance or an exemption from the requirement of a tolerance, a food 
containing a pesticide residue is ``adulterated'' under section 402 of 
the FFDCA and may not be legally moved in interstate commerce. 21 
U.S.C. 331, 342. EPA was authorized to establish pesticide tolerances 
under Reorganization Plan No. 3 of 1970. 5 U.S.C. App. at 1343 (1988). 
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).
    The FFDCA has separate provisions for tolerances for pesticide 
residues on raw agricultural commodities and for residues on processed 
food. For pesticide residues in or on raw commodities, EPA establishes 
tolerances, or exemptions from tolerances when appropriate, under 
section 408 of the act. 21 U.S.C. 346a. EPA regulates pesticide 
residues in processed foods under section 409 which pertains to ``food 
additives.'' 21 U.S.C. 348. Maximum residue regulations established 
under section 409 are commonly referred to as food additive tolerances. 
Section 409 food additive tolerances are needed, however, only for 
certain pesticide residues in processed food. Under section 402(a)(2) 
of the FFDCA, a pesticide residue in processed food will not render the 
food adulterated if the residue results from application of the 
pesticide to a raw commodity consistent with a section 408 tolerance 
and the residue in the processed food when ``ready to eat'' has been 
removed to the extent possible by good manufacturing processes and is 
below the tolerance set under section 408. This exemption in section 
402(a)(2) is commonly referred to as the ``flow-through'' provision 
because it allows the section 408 raw food tolerance to flow through to 
the processed food form.

III. Proposed Removal of Expiration Date from Cottonseed Tolerance 
and Establishment of Cotton Gin Byproduct Tolerance

    The scientific data submitted in the petition and other relevant 
material have been evaluated regarding the Miles' request to remove the 
expiration date from the cottonseed tolerance and to establish a 
tolerance for cotton gin byproducts. The toxicological data considered 
in support of the tolerance include:
    1. A three-generation rat reproduction study with a no-observed-
effect level (NOEL) of 100 ppm (8 mg/kg/bwt); rat and rabbit teratology 
studies were negative at doses up to 30 mg/kg/ bwt and 24 mg/kg/bwt, 
respectively.
    2. A 2-year rat feeding/carcinogenicity study that was negative for 
carcinogenic effects under the conditions of the study and had a NOEL 
of 100 ppm (5.7 mg/kg/bwt in male and 7.6 mg/kg/bwt female) for 
noncarcinogenic effects that included decreased body weight gain in 
females at 300 ppm and increased thyroid lesions in males at 300 ppm 
and females at 900 ppm.
    3. A 1-year dog feeding study with a NOEL of 1,250 ppm (41/mg/kg/
bwt).
    4. A 2-year mouse carcinogenicity study that was negative for 
carcinogenic effects under conditions of the study and that had a NOEL 
of 1,000 ppm (208/mg/kg/day).
    There is no cancer risk associated with exposure to this chemical. 
Imidacloprid has been classified under ``Group E'' (no evidence of 
carcinogenicity for humans) under EPA's cancer Assessment Guidelines by 
the Office of Pesticide Programs (OPP) Reference Dose (RFD) Committee.
    The reference dose (RfD), based on the 2-year rat feeding/ 
carcinogenic study with a NOEL of 5.7 mg/kg/bwt and 100-fold 
uncertainty factor, is calculated to be 0.057 mg/kg/bwt. The 
theoretical maximum residue contribution (TMRC) from published uses is 
0.008088 mg/kg/day. This represents 14% of the RfD for the overall U.S. 
population. For exposure of the most highly exposured subgroup in the 
population, children 

[[Page 62368]]
(ages 1 to 6 years), the TMRC is 0.016735 mg/kg/day. This is equal to 
30% of RfD. The proposed cotton gin byproduct tolerance will not 
increase the TMRC. Dietary exposure from the existing uses and proposed 
uses will not exceed the reference dose for any subpopulation 
(including infants and children) based on the information available 
from EPA's Dietary Risk Evaluation System.
    The nature of the residue in plants and livestock is adequately 
understood. The residues of concern are imidacloprid and its 
metabolites that contain the 6-chloropyridinyl moiety, all calculated 
as imidacloprid. The analytical methods are common moiety methods for 
imidacloprid and its metabolites containing the 6-chloropyridinyl 
moiety using permanganate oxidation, silyl derivatization, and 
capillary GC-MS selective ion monitoring. Adequate geographically 
representative magnitude of the residue crop field trial data for 
imidacloprid on cotton indicate that residues of total imidacloprid 
will not exceed the proposed tolerances when the formulation is used as 
directed. Based on the results of the imidacloprid bovine and poultry 
feeding studies, finite imidacloprid residues will occur in meat, milk, 
poultry, and eggs from feeding of imidacloprid-treated feed items, or 
their processed feed items, when the formulations are used as directed. 
Appropriate secondary tolerances are established.
    There are currently no actions pending against the continued 
registration of this chemical.
    This pesticide is considered useful for the purposes for which the 
tolerances are sought. Based on the information and data considered, 
the Agency has determined that the tolerances established by amending 
40 CFR part 180 would protect the public health. Therefore, it is 
proposed that the tolerances be established as set forth below.

IV. Proposed Revocation of the Feed Additive Tolerance for 
Cottonseed Meal

    In June 1995 (60 FR 31300, June 14, 1995), EPA issued a revised 
policy concerning when section 409 food and feed additive tolerances 
were needed to prevent the adulteration of foods and animal feeds. 
Under EPA's revised policy, a section 409 tolerance is necessary for 
pesticide residues in processed food when it is likely that the level 
of some residues of the pesticide will exceed the section 408 tolerance 
level in ``ready to eat'' processed food. Of particular relevance to 
the imidacloprid feed additive tolerance is EPA's decision to interpret 
the term ``ready to eat'' processed food as food ready for consumption 
``as is'' without further preparation. For foods that are found to be 
not ``ready to eat,'' EPA takes into account the dilution of residues 
that occurs in preparing a ``ready to eat'' food.
    EPA has determined that cottonseed meal is not a ``ready to eat'' 
animal feed. EPA has found no evidence that cottonseed meal is fed to 
livestock as a stand-alone feedstock. Rather, cottonseed meal is used 
as an ingredient in animal feeds. As such, cottonseed meal can 
constitute up to 50 percent of an animal feed.
    The section 408 tolerance for imadicloprid on cottonseed is 6 parts 
per million (ppm). The highest residue found in crop field trials for 
imidacloprid on cotton was 5.2 ppm. A processing study showed that in 
producing cottonseed meal residues concentrated 50 percent (a 
concentration factor of 1.5X). Thus, given this information, it is 
likely that imadicloprid residues of 7.8 ppm (1.5 X 5.2) could occur in 
cottonseed meal. However, to project what residues are likely in 
``ready to eat'' animal feed containing cottonseed meal the 7.8 ppm 
level must be divided by 2 to allow for dilution occurring when 
cottonseed meal is added to other ingredients in the preparation of 
animal feed. Once this dilution is taken into account, the likely 
residue of imidacloprid in animal feed would not be expected to exceed 
3.9 ppm. Since this is below the section 408 tolerance level, animal 
feed containing such residue levels would not be adulterated, and no 
section 409 tolerance is needed. Accordingly, EPA proposes to revoke 
the section 409 feed additive tolerance for imidacloprid in cottonseed 
meal.

V. Proposed Establishment of a Maximum Residue Level of 
Imidacloprid Residues in Cottonseed Meal

    In the June 1995 policy announcement, EPA noted that it generally 
would establish maximum residue levels (MRLs) under FFDCA section 701 
for not-ready-to-eat foods where such foods could contain residues 
exceeding the section 408 tolerance. EPA's rationale was that such MRLs 
are important to the efficient enforcement of the FFDCA. It is far less 
resource intensive for FDA and USDA, which are the Federal agencies 
which regulate pesticide residue levels in foods, to monitor residue 
levels in the bulk commodities used in preparing ready-to-eat foods 
than in the myriad of ready-to-eat foods manufactured from such 
commodities.
    MRLs will enforce the statutory requirements that, where no food 
additive tolerance has been established, pesticide residues in 
processed food resulting from application of the pesticide to the 
precursor raw commodity render the food adulterated unless the 
pesticide was used in conformity with the applicable section 408 
tolerance and the pesticide residue has been removed to the extent 
possible in good manufacturing practice. 21 U.S.C. 342(a)(2)(C). Thus, 
MRLs will reflect the maximum residue in processed food consistent with 
a legal level of residues being present on the precursor raw commodity 
and the use of good manufacturing practices. Processed foods not in 
compliance with an applicable MRL will be deemed adulterated under 
section 402 of the act.
    EPA will compute the MRL by multiplying the maximum residue found 
in the raw commodity in field trials by the concentration factor 
determined in processing studies using good manufacturing practices. As 
noted, the maximum residue from the imidacloprid field trials is 5.2 
ppm and the concentration factor for processing is 1.5X. Multiplying 
5.2 ppm by 1.5 yields a product of 7.8 ppm. EPA believes it is 
appropriate to round 7.8 ppm up to 8 ppm and proposes 8 ppm as the MRL 
for imidacloprid residues in cottonseed meal. For purposes of 
enforcement of the MRL, the same analytical method used for enforcement 
of the section 408 tolerances should be used.
    EPA is proposing to place this MRL in existing part 186 of title 40 
of the Code of Federal Regulations rather than creating a new part of 
title 40. Currently, 40 CFR part 186 contains section 409 feed additive 
tolerances organized by pesticide. EPA believes it will be clearer to 
the regulated community and to enforcement personnel if all regulations 
pertaining to residue levels of a pesticide in animal feeds are located 
in the same part of the Code of Federal Regulations. Because EPA is 
proposing to expand the type of regulation that would be included in 
part 186, EPA proposes modifying the title of part 186 to ``Pesticides 
in Animal Feeds'' to reflect that change.

VI. Public Participation

    Any person who has registered or submitted an application for 
registration of a pesticide, under the Federal Insecticide, Fungicide, 
and Rodenticide Act (FIFRA) as amended, which contains any of the 
ingredients listed herein, may request within 30 days after 

[[Page 62369]]
publication of this document in the Federal Register that the portion 
of this rulemaking proposal concerning establishment, amendment, or 
revocation of tolerances under section 408 be referred to an Advisory 
Committee in accordance with section 408(e) of FFDCA.
    Interested persons are invited to submit written comments on the 
proposed regulations. Comments must bear a notation indicating the 
document control number, [PP 3F4169 and FAP 35655/P628]. All written 
comments filed in response to this petition will be available in the 
Public Response and Program Resources Branch, at the address given 
above from 8 a.m. to 4:30 p.m., Monday through Friday, except legal 
holidays.

VII. Administrative Matters

    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.
    Pursuant to the requirements of the Regulatory Flexibility Act 
(Pub. L. 96-354, 94 Stat. 1164, 5 U.S.C. 601-612), the Administrator 
has determined that regulations establishing new tolerances or raising 
tolerance levels or establishing exemptions from tolerance requirements 
do not have a significant economic impact on a substantial number of 
small entities. A certification statement to this effect was published 
in the Federal Register of May 4, 1981 (46 FR 24950). EPA has treated 
regulations simular to the establishment of tolerances as also not 
having a significant economic impact on substantial number of small 
entities. Therefore, the proposed MRL is not expected to have such 
impact.

List of Subjects in 40 CFR Parts 180 and 186

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

    Dated: November 9, 1995.

Peter Caulkins,
Acting Director, Registration Division, Office of Pesticide Programs.

    Therefore, it is proposed that 40 CFR parts 180 and 186 be amended 
as follows:

PART 180--[AMENDED]

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

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

    b. In Sec. 180.472, by amending paragraph (a) by adding and 
alphabetically inserting the following new entries and by removing 
paragraph (b) and designating it as reserved, to read as follows:


Sec. 180.472   1-[(6-Chloro-3-pyridinyl)methyl]-N-nitro-2-
imidazolidinimine; tolerances for residues.

    (a) *  *  *

------------------------------------------------------------------------
                                                              Parts per 
                         Commodity                             million  
------------------------------------------------------------------------
                                                                        
                                * * * * *                               
Cotton, gin byproducts.....................................            4
Cottonseed.................................................            6
                                                                        
                                * * * * *                               
------------------------------------------------------------------------

    (b) [Reserved]
* * * * *

PART 186--[AMENDED]

    2. In part 186:
    a. By revising the title of part 186 to read as follows:

Part 186--Pesticides in Animal Feed

    b. The authority citation for part 186 is revised to read as 
follows:

    Authority: 21 U.S.C. 342, 348, and 701.

    c. In Sec. 186.900, by revising paragraph (b), to read as follows:


Sec. 186.900   1-[(6-Chloro-3-pyridinyl)methyl]-N-nitro-2-
imidazolinimine.

* * * * *
    (b) A maximum residue level regulation is established for residues 
of the insecticide 1-[(6-choro-3-pryidinyl)methyl]-N-nitro-2-
imidazolidinimine in or on the following feed resulting from 
application of the insecticide to cotton:

------------------------------------------------------------------------
                                                              Parts per 
                            Food                               million  
------------------------------------------------------------------------
                                                                        
Cottonseed meal............................................            8
                                                                        
------------------------------------------------------------------------

This regulation reflects the maximum level of residues in cottonseed 
meal consistent with use of 1-[(6-chloro-3-pyridinyl) methyl]-N-nitro-
2-imidazolidinimine on cotton in conformity with Sec. 180.472 of this 
chapter and with the use of good manufacturing practices.
* * * * *
[FR Doc. 95-29250 Filed 12-5-95; 8:45 am]
BILLING CODE 6560-50-F