[Federal Register Volume 62, Number 131 (Wednesday, July 9, 1997)]
[Rules and Regulations]
[Pages 36671-36678]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-17589]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[OPP-300510; FRL-5729-3]
RIN 2070-AB78


Myclobutanil; Pesticide Tolerances for Emergency Exemptions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This regulation establishes a time-limited tolerance for 
combined residues of myclobutanil in or on peppers (bell and non-bell), 
peppermint and spearmint. This action is in response to EPA's granting 
of an emergency exemption under section 18 of the Federal Insecticide, 
Fungicide, and Rodenticide Act authorizing use of the pesticide on 
peppers (bell and non-bell) in California and peppermint and spearmint 
in Idaho and Washington. This regulation establishes a maximum 
permissible level for residues of myclobutanil in these food 
commodities pursuant to section 408(l)(6) of the Federal Food, Drug, 
and Cosmetic Act, as amended by the Food Quality Protection Act of 
1996. These tolerances will expire and are revoked on July 1, 1998.


[[Page 36672]]


DATES: This regulation is effective July 9, 1997. Objections and 
requests for hearings must be received by EPA on or before September 8, 
1997.

ADDRESSES: Written objections and hearing requests, identified by the 
docket control number, [OPP-300510], must 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 identified by the docket 
control number, [OPP-300510], must also be submitted to: Public 
Information and Records Integrity Branch, Information Resources and 
Services Division (7506C), Office of Pesticide Programs, Environmental 
Protection Agency, 401 M St., SW., Washington, DC 20460. In person, 
bring a copy of objections and hearing requests to Rm. 1132, CM #2, 
1921 Jefferson Davis Hwy., Arlington, VA.
    A copy of objections and hearing requests filed with the Hearing 
Clerk may also be submitted electronically by sending electronic mail 
(e-mail) to: [email protected]. 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 5.1 file 
format or ASCII file format. All copies of objections and hearing 
requests in electronic form must be identified by the docket control 
number [OPP-300510]. No Confidential Business Information (CBI) should 
be submitted through e-mail. Electronic copies of objections and 
hearing requests on this rule may be filed online atmany Federal 
Depository Libraries.

FOR FURTHER INFORMATION CONTACT: By mail: Andrew Ertman, Registration 
Division, 7505C, Office of Pesticide Programs, Environmental Protection 
Agency, 401 M St., SW., Washington, DC 20460. Office location, 
telephone number, and e-mail address: Crystal Mall #2, 1921 Jefferson 
Davis Hwy., Arlington, VA, (703) 308-9367, e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: EPA, on its own initiative, pursuant to 
section 408(e) and (l)(6) of the Federal Food, Drug, and Cosmetic Act 
(FFDCA), 21 U.S.C. 346a(e) and (l)(6), is establishing a tolerance for 
combined residues of the fungicide myclobutanil, in or on peppers (bell 
and non-bell) at 1.0 ppm, peppermint at 2.5 ppm and spearmint at 2.5 
ppm. These tolerances will expire and are revoked on July 1, 1998. EPA 
will publish a document in the Federal Register to remove the revoked 
tolerances from the Code of Federal Regulations.

I. Background and Statutory Authority

    The Food Quality Protection Act of 1996 (FQPA) (Pub. L. 104-170) 
was signed into law August 3, 1996. FQPA amends both the Federal Food, 
Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 301 et seq., and the Federal 
Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 et 
seq. The FQPA amendments went into effect immediately. Among other 
things, FQPA amends FFDCA to bring all EPA pesticide tolerance-setting 
activities under a new section 408 with a new safety standard and new 
procedures. These activities are described below and discussed in 
greater detail in the final rule establishing the time-limited 
tolerance associated with the emergency exemption for use of 
propiconazole on sorghum (61 FR 58135, November 13, 1996)(FRL-5572-9).
    New section 408(b)(2)(A)(I) of the FFDCA allows EPA to establish a 
tolerance (the legal limit for a pesticide chemical residue in or on a 
food) only if EPA determines that the tolerance is ``safe.'' Section 
408(b)(2)(A)(ii) defines ``safe'' to mean that ``there is a reasonable 
certainty that no harm will result from aggregate exposure to the 
pesticide chemical residue, including all anticipated dietary exposures 
and all other exposures for which there is reliable information.'' This 
includes exposure through drinking water and in residential settings, 
but does not include occupational exposure. Section 408(b)(2)(C) 
requires EPA to give special consideration to exposure of infants and 
children to the pesticide chemical residue in establishing a tolerance 
and to ``ensure that there is a reasonable certainty that no harm will 
result to infants and children from aggregate exposure to the pesticide 
chemical residue. . . .''
    Section 18 of FIFRA authorizes EPA to exempt any Federal or State 
agency from any provision of FIFRA, if EPA determines that ``emergency 
conditions exist which require such exemption.'' This provision was not 
amended by FQPA. EPA has established regulations governing such 
emergency exemptions in 40 CFR part 166.
    Section 408(l)(6) of the FFDCA requires EPA to establish a time-
limited tolerance or exemption from the requirement for a tolerance for 
pesticide chemical residues in food that will result from the use of a 
pesticide under an emergency exemption granted by EPA under section 18 
of FIFRA. Such tolerances can be established without providing notice 
or period for public comment.
    Because decisions on section 18-related tolerances must proceed 
before EPA reaches closure on several policy issues relating to 
interpretation and implementation of the FQPA, EPA does not intend for 
its actions on such tolerance to set binding precedents for the 
application of section 408 and the new safety standard to other 
tolerances and exemptions.

II. Emergency Exemption for Myclobutanil on Peppers (bell and non-
bell), Peppermint and Spearmint and FFDCA Tolerances

    The state of California requested a specific exemption for the use 
of myclobutanil on bell and non-bell peppers to control a species of 
powdery mildew new to the crop as of the early 1990's. Powdery mildew 
is a pathogen that can cause substantial losses in peppers.
    The states of Idaho and Washington have requested exemptions for 
the use of myclobutanil on mint to control powdery mildew. Significant 
economic losses are expected to occur without the use of myclobutanil 
as both yields and prices of mint oil may be reduced.
    EPA has authorized under FIFRA section 18 the use of myclobutanil 
on peppers (bell and non-bell) for control of powdery mildew (Oidiopsis 
taurica) in California and peppermint and spearmint for control of 
powdery mildew (Erysiphe cichoracearum) in Idaho and Washington. After 
having reviewed these submissions, EPA concurs that emergency 
conditions exist for these states.
    As part of its assessment of this emergency exemption, EPA assessed 
the potential risks presented by residues of myclobutanil in or on bell 
and non-bell peppers, peppermint and spearmint. In doing so, EPA 
considered the new safety standard in FFDCA section 408(b)(2), and EPA 
decided that the necessary tolerances under FFDCA section 408(l)(6) 
would be consistent with the new safety standard and with FIFRA section 
18. Consistent with the need to move quickly on the emergency exemption 
in order to address an urgent non-routine situation and to ensure that 
the resulting food is safe and lawful, EPA is issuing these tolerances 
without notice and opportunity for public comment under section 408(e), 
as provided in section 408(l)(6). Although these tolerances will expire 
and are

[[Page 36673]]

revoked on July 1, 1998, under FFDCA section 408(l)(5), residues of the 
pesticide not in excess of the amounts specified in the tolerances 
remaining in or on peppers (bell and non-bell), peppermint and 
spearmint after that date will not be unlawful, provided the pesticide 
is applied in a manner that was lawful under FIFRA. EPA will take 
action to revoke these tolerances earlier if any experience with, 
scientific data on, or other relevant information on this pesticide 
indicate that the residues are not safe.
    Because these tolerances are being approved under emergency 
conditions, EPA has not made any decisions about whether myclobutanil 
meets EPA's registration requirements for use on bell and non-bell 
peppers, peppermint and spearmint or whether permanent tolerances for 
these uses would be appropriate. Under these circumstances, EPA does 
not believe that these tolerances serve as a basis for registration of 
myclobutanil by a State for special local needs under FIFRA section 
24(c). Nor do these tolerances serve as the basis for any States other 
than California (bell and non-bell peppers) and Idaho and Washington 
(peppermint and spearmint) to use this pesticide on these crops under 
section 18 of FIFRA without following all provisions of section 18 as 
identified in 40 CFR part 166. For additional information regarding the 
emergency exemption for myclobutanil, contact the Agency's Registration 
Division at the address provided above.

III. Risk Assessment and Statutory Findings

    EPA performs a number of analyses to determine the risks from 
aggregate exposure to pesticide residues. First, EPA determines the 
toxicity of pesticides based primarily on toxicological studies using 
laboratory animals. These studies address many adverse health effects, 
including (but not limited to) reproductive effects, developmental 
toxicity, toxicity to the nervous system, and carcinogenicity. Second, 
EPA examines exposure to the pesticide through the diet (e.g., food and 
drinking water) and through exposures that occur as a result of 
pesticide use in residential settings.

A. Toxicity

    1. Threshold and non-threshold effects. For many animal studies, a 
dose response relationship can be determined, which provides a dose 
that causes adverse effects (threshold effects) and doses causing no 
observed effects (the ``no-observed effect level'' or ``NOEL'').
    Once a study has been evaluated and the observed effects have been 
determined to be threshold effects, EPA generally divides the NOEL from 
the study with the lowest NOEL by an uncertainty factor (usually 100 or 
more) to determine the Reference Dose (RfD). The RfD is a level at or 
below which daily aggregate exposure over a lifetime will not pose 
appreciable risks to human health. An uncertainty factor (sometimes 
called a ``safety factor'') of 100 is commonly used since it is assumed 
that people may be up to 10 times more sensitive to pesticides than the 
test animals, and that one person or subgroup of the population (such 
as infants and children) could be up to 10 times more sensitive to a 
pesticide than another. In addition, EPA assesses the potential risks 
to infants and children based on the weight of the evidence of the 
toxicology studies and determines whether an additional uncertainty 
factor is warranted. Thus, an aggregate daily exposure to a pesticide 
residue at or below the RfD (expressed as 100% or less of the RfD) is 
generally considered acceptable by EPA. EPA generally uses the RfD to 
evaluate the chronic risks posed by pesticide exposure. For shorter 
term risks, EPA calculates a margin of exposure (MOE) by dividing the 
estimated human exposure into the NOEL from the appropriate animal 
study. Commonly, EPA finds MOEs lower than 100 to be unacceptable. This 
100-fold MOE is based on the same rationale as the 100-fold uncertainty 
factor.
    Lifetime feeding studies in two species of laboratory animals are 
conducted to screen pesticides for cancer effects. When evidence of 
increased cancer is noted in these studies, the Agency conducts a 
weight of the evidence review of all relevant toxicological data 
including short-term and mutagenicity studies and structure activity 
relationship. Once a pesticide has been classified as a potential human 
carcinogen, different types of risk assessments (e.g., linear low dose 
extrapolations or MOE calculation based on the appropriate NOEL) will 
be carried out based on the nature of the carcinogenic response and the 
Agency's knowledge of its mode of action.
    2. Differences in toxic effect due to exposure duration. The 
toxicological effects of a pesticide can vary with different exposure 
durations. EPA considers the entire toxicity data base, and based on 
the effects seen for different durations and routes of exposure, 
determines which risk assessments should be done to assure that the 
public is adequately protected from any pesticide exposure scenario. 
Both short and long durations of exposure are always considered. 
Typically, risk assessments include ``acute'', ``short-term'', 
``intermediate term'', and ``chronic'' risks. These assessments are 
defined by the Agency as follows.
    Acute risk, by the Agency's definition, results from 1-day 
consumption of food and water, and reflects toxicity which could be 
expressed following a single oral exposure to the pesticide residues. 
High-end exposure to food and water residues are typically assumed.
    Short-term risk results from exposure to the pesticide for a period 
of 1-7 days, and therefore overlaps with the acute risk assessment. 
Historically, this risk assessment was intended to address primarily 
dermal and inhalation exposure which could result, for example, from 
residential pesticide applications. However, since enaction of FQPA, 
this assessment has been expanded to include both dietary and non-
dietary sources of exposure, and will typically consider exposure from 
food, water, and residential uses when reliable data are available. In 
this assessment, risks from average food and water exposure, and high-
end residential exposure, are aggregated. High-end exposures from all 3 
sources are not typically added because of the very low probability of 
this occurring in most cases, and because the other conservative 
assumptions built into the assessment assure adequate protection of 
public health. However, for cases in which high-end exposure can 
reasonably be expected from multiple sources (e.g. frequent and 
widespread homeowner use in a specific geographical area), multiple 
high-end risks will be aggregated and presented as part of the 
comprehensive risk assessment/characterization. Since the toxicological 
endpoint considered in this assessment reflects exposure over a period 
of at least 7 days, an additional degree of conservatism is built into 
the assessment; i.e., the risk assessment nominally covers 1-7 days 
exposure, and the toxicological endpoint/NOEL is selected to be 
adequate for at least 7 days of exposure. (Toxicity results at lower 
levels when the dosing duration is increased.)
    Intermediate-term risk results from exposure for 7 days to several 
months. This assessment is handled in a manner similar to the short-
term risk assessment.
    Chronic risk assessment describes risk which could result from 
several months to a lifetime of exposure. For this assessment, risks 
are aggregated considering average exposure from all sources for 
representative population

[[Page 36674]]

subgroups including infants and children.

B. Aggregate Exposure

    In examining aggregate exposure, FFDCA section 408 requires that 
EPA take into account available and reliable information concerning 
exposure from the pesticide residue in the food in question, residues 
in other foods for which there are tolerances, residues in groundwater 
or surface water that is consumed as drinking water, and other non-
occupational exposures through pesticide use in gardens, lawns, or 
buildings (residential and other indoor uses). Dietary exposure to 
residues of a pesticide in a food commodity are estimated by 
multiplying the average daily consumption of the food forms of that 
commodity by the tolerance level or the anticipated pesticide residue 
level. The Theoretical Maximum Residue Contribution (TMRC) is an 
estimate of the level of residues consumed daily if each food item 
contained pesticide residues equal to the tolerance. In evaluating food 
exposures, EPA takes into account varying consumption patterns of major 
identifiable subgroups of consumers, including infants and children. 
The TMRC is a ``worst case'' estimate since it is based on the 
assumptions that food contains pesticide residues at the tolerance 
level and that 100% of the crop is treated by pesticides that have 
established tolerances. If the TMRC exceeds the RfD or poses a lifetime 
cancer risk that is greater than approximately one in a million, EPA 
attempts to derive a more accurate exposure estimate for the pesticide 
by evaluating additional types of information (anticipated residue data 
and/or percent of crop treated data) which show, generally, that 
pesticide residues in most foods when they are eaten are well below 
established tolerances.
    Percent of crop treated estimates are derived from federal and 
private market survey data. Typically, a range of estimates are 
supplied and the upper end of this range is assumed for the exposure 
assessment. By using this upper end estimate of percent of crop 
treated, the Agency is reasonably certain that exposure is not 
understated for any significant subpopulation group. Further, regional 
consumption information is taken into account through EPA's computer-
based model for evaluating the exposure of significant subpopulations 
including several regional groups, to pesticide residues. For this 
pesticide, the most highly exposed population subgroup (non-nursing 
infants <1 year old) was not regionally based.

IV. Aggregate Risk Assessment and Determination of Safety

    Consistent with section 408(b)(2)(D), EPA has reviewed the 
available scientific data and other relevant information in support of 
this action, EPA has sufficient data to assess the hazards of 
myclobutanil and to make a determination on aggregate exposure, 
consistent with section 408(b)(2), for time-limited tolerances for the 
combined residues of myclobutanil on peppers (bell and non-bell) at 1.0 
ppm, peppermint and 2.5 ppm and spearmint at 2.5 ppm. EPA's assessment 
of the dietary exposures and risks associated with establishing the 
tolerance follows.

A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered its 
validity, completeness, and reliability as well as the relationship of 
the results of the studies to human risk. EPA has also considered 
available information concerning the variability of the sensitivities 
of major identifiable subgroups of consumers, including infants and 
children. The nature of the toxic effects caused by myclobutanil are 
discussed below.
    1. Short - and intermediate - term toxicity. For short-term dermal 
MOE calculations, the Agency used the systemic NOEL of 100 mg/kg/day 
from a 21-day dermal toxicity study in rats. This dose was the highest 
tested in the study. The Agency did not identify an inhalation 
endpoint.
    For intermediate-term MOE calculations, the Agency used the NOEL of 
10 mg/kg/day from a 2-generation reproductive toxicity study in rats. 
At the lowest effect level (LEL) of 50 mg/kg/day, there were decreases 
in pup body weight, an increased incidence in the number of stillborns, 
and atrophy of the prostate and testes.
    2. Chronic toxicity. EPA has established the RfD for myclobutanil 
at 0.025 milligrams/kilogram/day (mg/kg/day). This RfD is based on a 
chronic feeding study in rats using a NOEL of 2.5 mg/kg/day and an 
uncertainty factor of 100. At the lowest observed effect level (LOEL) 
of 9.9 mg/kg/day there was testicular atrophy.
    3. Carcinogenicity. Myclobutanil has been classified as a Group E 
chemical (no evidence of carcinogenicity for humans) by the Agency.

B. Exposures and Risks

    1. From food and feed uses. Tolerances have been established (40 
CFR 180.443) for the combined residues of myclobutanil [alpha-butyl-
alpha-(4-chlorophenyl)-1H-1,2,4-triazole-1-propanenitrile] plus its 
alcohol metabolite [alpha-(3-hydroxybutyl)-alpha-(4-chlorophenyl)-1H-
1,2,4-triazole-1-propanenitrile] (free and bound), in or on a variety 
of raw agricultural commodities at levels ranging from 5.0 ppm in 
cherries to 0.02 ppm in eggs. A tolerance has also been established (40 
CFR 180.443(b)) for the combined residues of myclobutanil plus its 
alcohol metabolite (free and bound) and diol metabolite [alpha-(4-
chlorophenyl)-alpha-(3,4-dihydroxybutyl)-1H-1,2,4-triazole-1-
propanenitrile], in milk at 0.05 ppm. Risk assessments were conducted 
by EPA to assess dietary exposures and risks from myclobutanil as 
follows:
    Chronic exposure and risk. In conducting this chronic dietary risk 
assessment, EPA has made somewhat conservative assumptions -- with the 
exception of bananas, all commodities having myclobutanil tolerances 
will contain myclobutanil and metabolite residues and those residues 
will be at the level of the established tolerance -- which results in 
an overestimate of human dietary exposure. For bananas an anticipated 
residue estimate was used. Percent crop-treated estimates were utilized 
for selected commodities included in the assessment. Thus, in making a 
safety determination for this tolerance, EPA is taking into account 
this partially refined exposure assessment. The existing myclobutanil 
tolerances (published, pending, and including the necessary Section 18 
tolerances) result in an Anticipated Residue Contribution (ARC) that is 
equivalent to the following percentages of the RfD:

                                                                        
------------------------------------------------------------------------
                                   ARC food (mg/kg/                     
       Population Subgroup               day)                %RfD       
------------------------------------------------------------------------
U.S. Population (48 states).....  0.003427            14%               
Nursing Infants (<1 year old)...  0.006242            25%               
Non-Nursing Infants (<1 year      0.018291            73%               
 old).                                                                  
Children (1-6 years old)........  0.009747            39%               

[[Page 36675]]

                                                                        
Children (7-12 years old).......  0.005505            22%               
Northeast Region................  0.003678            15%               
Western Region..................  0.003999            16%               
Hispanics.......................  0.004125            17%               
Non-Hispanic Others.............  0.003728            15%               
------------------------------------------------------------------------

    The subgroups listed above are: (1) the U.S. population (48 
states); (2) those for infants and children; and, (3) the other 
subgroups for which the percentage of the RfD occupied is greater than 
that occupied by the subgroup U.S. population (48 states).
    2. From drinking water. Myclobutanil is persistent and not 
considered mobile in soils with the exception of sandy soils. Data are 
not available for its diol metabolite. There is no established Maximum 
Contaminant Level for residues of myclobutanil in drinking water. No 
Health Advisory Levels for myclobutanil in drinking water have been 
established.
     Chronic exposure and risk. Because the Agency lacks sufficient 
water-related exposure data to complete a comprehensive drinking water 
risk assessment for many pesticides, EPA has commenced and nearly 
completed a process to identify a reasonable yet conservative bounding 
figure for the potential contribution of water-related exposure to the 
aggregate risk posed by a pesticide. In developing the bounding figure, 
EPA estimated residue levels in water for a number of specific 
pesticides using various data sources. The Agency then applied the 
estimated residue levels, in conjunction with appropriate toxicological 
endpoints (RfD's or acute dietary NOEL's) and assumptions about body 
weight and consumption, to calculate, for each pesticide, the increment 
of aggregate risk contributed by consumption of contaminated water. 
While EPA has not yet pinpointed the appropriate bounding figure for 
exposure from contaminated water, the ranges the Agency is continuing 
to examine are all below the level that would cause myclobutanil to 
exceed the RfD if the tolerance being considered in this document were 
granted. The Agency has therefore concluded that the potential 
exposures associated with myclobutanil in water, even at the higher 
levels the Agency is considering as a conservative upper bound, would 
not prevent the Agency from determining that there is a reasonable 
certainty of no harm if the tolerance is granted.
    3. From non-dietary exposure. Myclobutanil is currently registered 
for use on the following residential non-food sites: outdoor 
residential and greenhouse use on annuals and perennials, turf, shrubs, 
trees, flowers. These uses do not constitute a chronic exposure 
scenario, but may constitute a short- to intermediate-term exposure 
scenario. However, EPA lacks sufficient residential-related exposure 
data to complete a comprehensive residential risk assessment for many 
pesticides, including myclobutanil.
    4. Cumulative exposure to substances with common mechanism of 
toxicity. Section 408(b)(2)(D)(v) requires that, when considering 
whether to establish, modify, or revoke a tolerance, the Agency 
consider ``available information'' concerning the cumulative effects of 
a particular pesticide's residues and ``other substances that have a 
common mechanism of toxicity.'' The Agency believes that ``available 
information'' in this context might include not only toxicity, 
chemistry, and exposure data, but also scientific policies and 
methodologies for understanding common mechanisms of toxicity and 
conducting cumulative risk assessments. For most pesticides, although 
the Agency has some information in its files that may turn out to be 
helpful in eventually determining whether a pesticide shares a common 
mechanism of toxicity with any other substances, EPA does not at this 
time have the methodologies to resolve the complex scientific issues 
concerning common mechanism of toxicity in a meaningful way. EPA has 
begun a pilot process to study this issue further through the 
examination of particular classes of pesticides. The Agency hopes that 
the results of this pilot process will increase the Agency's scientific 
understanding of this question such that EPA will be able to develop 
and apply scientific principles for better determining which chemicals 
have a common mechanism of toxicity and evaluating the cumulative 
effects of such chemicals. The Agency anticipates, however, that even 
as its understanding of the science of common mechanisms increases, 
decisions on specific classes of chemicals will be heavily dependent on 
chemical specific data, much of which may not be presently available.
    Although at present the Agency does not know how to apply the 
information in its files concerning common mechanism issues to most 
risk assessments, there are pesticides as to which the common mechanism 
issues can be resolved. These pesticides include pesticides that are 
toxicologically dissimilar to existing chemical substances (in which 
case the Agency can conclude that it is unlikely that a pesticide 
shares a common mechanism of activity with other substances) and 
pesticides that produce a common toxic metabolite (in which case common 
mechanism of activity will be assumed).
    EPA does not have, at this time, available data to determine 
whether myclobutanil has a common mechanism of toxicity with other 
substances or how to include this pesticide in a cumulative risk 
assessment. Unlike other pesticides for which EPA has followed a 
cumulative risk approach based on a common mechanism of toxicity, 
myclobutanil does not appear to produce a toxic metabolite produced by 
other substances. For the purposes of this tolerance action, therefore, 
EPA has not assumed that myclobutanil has a common mechanism of 
toxicity with other substances.

C. Aggregate Risks and Determination of Safety for U.S. Population

    1. Chronic risk. Using the partially refined exposure assumptions 
described under unit IV.B.1. ``Chronic Exposure and Risk'' and taking 
into account the completeness and reliability of the toxicity data, EPA 
has concluded that aggregate dietary exposure (food only) to 
myclobutanil will utilize 14% of the RfD for the U.S. population. EPA 
generally has no concern for exposures below 100% of the RfD because 
the RfD represents the level at or below which daily aggregate dietary 
exposure over a lifetime will not pose appreciable risks to human 
health. EPA has determined that the outdoor registered uses of 
myclobutanil would not fall under a chronic exposure scenario. Despite 
the potential for exposure to myclobutanil in drinking water, using 
best scientific judgement EPA does not expect the aggregate exposure of 
food and water to

[[Page 36676]]

exceed 100% of the RfD. The Agency concludes that there is a reasonable 
certainty that no harm will result from aggregate chronic exposure to 
myclobutanil residues.
    2. Short- and intermediate-term risk. Short- and intermediate-term 
aggregate exposure takes into account chronic dietary food and water 
(considered to be a background exposure level) plus indoor and outdoor 
residential exposure. Although short-term exposure scenarios may be 
present, based on the lack of acute toxicological endpoints and the low 
percent of RfD occupied, in the best scientific judgement of the 
Agency, aggregate short- and intermediate-term risk will not exceed 
EPA's level of concern. Additionally, the Agency notes that there are 
no indoor residential uses of myclobutanil, thus indoor residential 
exposure is expected to be minimal.

D. Aggregate Cancer Risk for U.S. Population

    Myclobutanil was classified by the Agency as a Group E chemical (no 
evidence of carcinogenicity for humans). Thus, a cancer risk assessment 
was not conducted.

E. Aggregate Risks and Determination of Safety for Infants and Children

    1. Safety factor for infants and children. -- a. In general. In 
assessing the potential for additional sensitivity of infants and 
children to residues of myclobutanil, EPA considered data from 
developmental toxicity studies in the rat and rabbit and a two-
generation reproduction study in the rat. The developmental toxicity 
studies are designed to evaluate adverse effects on the developing 
organism resulting from pesticide exposure during prenatal development 
to one or both parents. Reproduction studies provide information 
relating to effects from exposure to the pesticide on the reproductive 
capability of mating animals and data on systemic toxicity.
    FFDCA section 408 provides that EPA shall apply an additional 
tenfold margin of safety for infants and children in the case of 
threshold effects to account for pre-and post-natal toxicity and the 
completeness of the database unless EPA determines that a different 
margin of safety will be safe for infants and children. Margins of 
safety are incorporated into EPA risk assessments either directly 
through use of a MOE analysis or through using uncertainty (safety) 
factors in calculating a dose level that poses no appreciable risk to 
humans. EPA believes that reliable data support using the standard MOE 
and uncertainty factor (usually 100 for combined inter- and intra-
species variability) and not the additional tenfold MOE/uncertainty 
factor when EPA has a complete data base under existing guidelines and 
when the severity of the effect in infants or children or the potency 
or unusual toxic properties of a compound do not raise concerns 
regarding the adequacy of the standard MOE/safety factor.
    b. Developmental toxicity studies. In the developmental study in 
rats, the maternal (systemic) NOEL was 93.8 mg/kg/day, based on rough 
hair coat, and salivation at the LOEL of 312.6 mg/kg/day. The 
developmental (fetal) NOEL was 93.8 mg/kg/day based on incidences of 
14th rudimentary and 7th cervical ribs at the LOEL of 312.6 mg/kg/day.
    In the developmental toxicity study in rabbits, the maternal 
(systemic) NOEL was 60 mg/kg/day, based on reduced weight gain, 
clinical signs of toxicity and abortions at the LOEL of 200 mg/kg/day. 
The developmental (fetal) NOEL was 60 mg/kg/day, based on increases in 
number of resorptions, decreases in litter size, and a decrease in the 
viability index at the LOEL of 200 mg/kg/day.
    c. Reproductive toxicity study. In the 2-generation reproductive 
toxicity study in rats, the parental (systemic) NOEL was 2.5 mg/kg/day, 
based on increased liver weights and liver cell hypertrophy at the LOEL 
of 10 mg/kg/day. The developmental (pup) NOEL was 10 mg/kg/day, based 
on decreased pup body weight during lactation at the LOEL of 50 mg/kg/
day. The reproductive (pup) NOEL was 10 mg/kg/day, based on the 
increased incidence of stillborns, and atrophy of the testes, 
epididymides, and prostate at the LEL of 50 mg/kg/day.
    d. Pre- and post-natal sensitivity. The pre- and post-natal 
toxicology data base for myclobutanil is complete with respect to 
current toxicological data requirements. Based on the developmental and 
reproductive toxicity studies discussed above, for myclobutanil there 
does not appear to be an extra sensitivity for pre- or post-natal 
effects.
    e. Conclusion. Based on the above, EPA concludes that reliable data 
support use of the standard 100-fold uncertainty factor and that a 
factor is not needed to protect the safety of infants and children.
    2. Chronic risk. Using the conservative exposure assumptions 
described above, EPA has concluded that aggregate exposure to 
myclobutanil from food ranges from 22% of the RfD for children (7 to 12 
years old), up to 73% for non-nursing infants (<1 year old). EPA 
generally has no concern for exposures below 100% of the RfD because 
the RfD represents the level at or below which daily aggregate dietary 
exposure over a lifetime will not pose appreciable risks to human 
health. Despite the potential for exposure to myclobutanil in drinking 
water and from non-dietary, non-occupational exposure, EPA does not 
expect the aggregate exposure to exceed 100% of the RfD. EPA concludes 
that there is a reasonable certainty that no harm will result to 
infants and children from aggregate exposure to myclobutanil residues.

V. Other Considerations

A. Metabolism In Plants and Animals

    The nature of the residue in plants is adequately understood. The 
residue of concern is myclobutanil plus its alcohol metabolite (free 
and bound), as specified in 40 CFR 180.443(a).

B. Analytical Enforcement Methodology

    An adequate enforcement method is available to enforce the 
established tolerances. Quantitation is by GLC using a Nitrogen/
Phosphorus detector for myclobutanil and an Electron Capture detector 
(Ni63) for residues measured as the alcohol metabolite.

C. Magnitude of Residues

    Residues of myclobutanil and its alcohol metabolite are not 
expected to exceed 1.0 ppm in/on peppers (bell and non-bell), 2.5 ppm 
in/on peppermint or 2.5 ppm in/on spearmint as a result of this section 
18 use. Secondary residues are not expected in animal commodities as no 
feedstuffs are associated with these Section 18 uses. Meat/milk/
poultry/egg tolerances have been established as a result of other 
myclobutanil uses.

D. International Residue Limits

     There are no Codex, Canadian or Mexican residue limits established 
for myclobutanil and its metabolites on the commodities included in 
these Section 18 requests. Thus, harmonization is not an issue for 
these Section 18 actions.

E. Rotational Crop Restrictions

    Information concerning the likelihood of residues in rotational 
crops is not available for myclobutanil. As mint and pepper (bell and 
non-bell) fields are normally rotated, the Agency concludes the 
following restriction should be added to the label for the requested 
Section 18: Rally treated fields can be rotated at any time to crops 
which are included on the Rally label. All other crops may be planted 1 
year following applications of Rally Agricultural Fungicide.

[[Page 36677]]

VI. Conclusion

    Therefore, the tolerance is established for combined residues of 
myclobutanil in bell and non-bell peppers at 1.0 ppm, peppermint at 2.5 
ppm and spearmint at 2.5 ppm.

VII. Objections and Hearing Requests

    The new FFDCA section 408(g) provides essentially the same process 
for persons to ``object'' to a tolerance regulation issued by EPA under 
new section 408(e) and (l)(6) as was provided in the old section 408 
and in section 409. However, the period for filing objections is 60 
days, rather than 30 days. EPA currently has procedural regulations 
which govern the submission of objections and hearing requests. These 
regulations will require some modification to reflect the new law. 
However, until those modifications can be made, EPA will continue to 
use those procedural regulations with appropriate adjustments to 
reflect the new law.
    Any person may, by September 8, 1997 file written objections to any 
aspect of this regulation and may also request 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 issues on which a hearing is requested, the 
requestor's contentions on such issues, and a summary of any evidence 
relied upon by the requestor (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 issues in the manner sought by the requestor would be adequate 
to justify the action requested (40 CFR 178.32). Information submitted 
in connection with an objection or hearing request 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 forth in 40 CFR 
part 2. A copy of the information 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.

VIII. Public Docket

    EPA has established a record for this rulemaking under docket 
control number [OPP-300510] (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 8:30 a.m. 
to 4 p.m., Monday through Friday, excluding legal holidays. The public 
record is located in Room 1132 of the Public Information and Records 
Integrity Branch, Information Resources and Services 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:
    [email protected].


    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 
Virginia address in ``ADDRESSES'' at the beginning of this document.

IX. Regulatory Assessment Requirements

    This final rule establishes tolerances under FFDCA section 408(d) 
in response to a petition submitted to the Agency. The Office of 
Management and Budget (OMB) has exempted these types of actions from 
review under Executive Order 12866, entitled Regulatory Planning and 
Review (58 FR 51735, October 4, 1993). 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) (Pub. L. 104-4). Nor does 
it require any prior consultation as specified by Executive Order 
12875, entitled Enhancing the Intergovernmental Partnership (58 FR 
58093, October 28, 1993), or 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 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).
    In addition, since these tolerances and exemptions that are 
established on the basis of a petition under FFDCA section 408 (d), 
such as the tolerances in this final rule, do not require the issuance 
of a proposed rule, the requirements of the Regulatory Flexibility Act 
(RFA) (5 U.S.C. 601 et seq.) do not apply. Nevertheless, the Agency has 
previously assessed whether establishing tolerances, exemptions from 
tolerances, raising tolerance levels or expanding exemptions might 
adversely impact small entities and concluded, as a generic matter, 
that there is no adverse economic impact. The factual basis for the 
Agency's generic certification for tolerance actions published on May 
4, 1981 (46 FR 24950), and was provided to the Chief Counsel for 
Advocacy of the Small Business Administration.

X. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A), as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, the Agency has 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 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: June 26, 1997.

James Jones,
Acting Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR Chapter I is amended as follows:

[[Page 36678]]

PART 180 [AMENDED]

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

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

    2. In Sec. 180.443, in paragraph (b), by revising the introductory 
text and alphabetically adding the following commodities to the table 
to read as follows:


Sec. 180.443  Myclobutanil; tolerances for residues.

*    *    *    *    *
    (b) Section 18 emergency exemptions. Time-limited tolerances are 
established for residues of the fungicide myclobutanil in connection 
with use of the pesticide under section 18 emergency exemptions granted 
by EPA. These tolerances will expire and are revoked on the dates 
specified in the following table.

                                                                        
------------------------------------------------------------------------
                                                          Expiration/   
            Commodity              Parts per million    Revocation Date 
------------------------------------------------------------------------
                                                                        
*                    *                    *                    *        
                    *                    *                    *         
Peppermint......................  2.5                 July 1, 1998      
Peppers (bell and non-bell).....  1.0                 July 1, 1998      
Spearmint.......................  2.5                 July 1, 1998      
------------------------------------------------------------------------

*       *        *        *        *

[FR Doc. 97-17589 Filed 7-8-97; 8:45 am]
BILLING CODE 6560-50-F