[Federal Register Volume 63, Number 69 (Friday, April 10, 1998)]
[Rules and Regulations]
[Pages 17687-17690]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-9245]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[OPP-300612; FRL-5770-4]
RIN 2070-AB78


Bacillus thuringiensis subspecies tolworthi Cry9C Protein and the 
Genetic Material Necessary for its Production in Corn; Exemption from 
the Requirement of a Tolerance

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This rule establishes a temporary exemption from the 
requirement of a tolerance for residues of the insecticide, Bacillus 
thuringiensis subspecies tolworthi Cry9C protein and the genetic 
material necessary for its production in corn for feed use only; as 
well as in meat, poultry, milk, or eggs resulting from animals fed such 
feed.
DATES: This regulation is effective April 10, 1998. Objections and 
requests for hearings must be received by EPA on or before June 9, 
1998.

ADDRESSES: Written objections and hearing requests, identified by the 
docket control number [OPP-300612], 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-300612], must also be submitted to: Public Information and 
Records Integrity Branch, Information Resources and Services Division 
(7502C), 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. 119, CM #2, 1921 Jefferson Davis 
Hwy., Arlington, VA.
    A copy of objections and hearing requests filed with the Hearing 
Clerk may be submitted electronically by sending electronic mail (e-
mail) to: [email protected]. Copies of electronic objections 
and hearing requests must be submitted as an ASCII file avoiding the 
use of special characters and any form of encryption. Copies of 
electronic objections and hearing requests will also be accepted on 
disks in WordPerfect 5.1/6.1 or ASCII file format. All copies of 
electronic objections and hearing requests must be identified by the 
docket number [OPP-300612]. No Confidential Business Information (CBI) 
should be submitted through e-mail. Copies of electronic objections and 
hearing requests on this rule may be filed online at many Federal 
Depository Libraries.


FOR FURTHER INFORMATION CONTACT: By mail: Mike Mendelsohn, Regulatory 
Action Leader, Biopesticides and Pollution Prevention Division (7511W), 
Office of Pesticide Programs, Environmental Protection Agency, 401 M 
St., SW., Washington, DC 20460, Office location, telephone number, and 
e-mail: Room CS15-W29, 2800 Jefferson Davis Highway, Arlington, VA, 
703-308-8715, e-mail: [email protected].
SUPPLEMENTARY INFORMATION: Plant Genetic Systems (America), Inc., 7200 
Hickman Road, Suite 202, Des Moines, IA 50322 has requested in 
pesticide petition (PP 7G4921) the establishment of an exemption from 
the requirement of a tolerance for residues of the insecticide Bacillus 
thuringiensis subspecies tolworthi Cry9C and the genetic material 
necessary for its production in corn for feed use only. A notice of 
filing (FRL-5753-3) was published in the Federal Register (62 FR 63168, 
November 26, 1997), and the notice announced that the comment period 
would end on December 26, 1997; no comments were received. This 
temporary exemption from the requirement of a tolerance will permit the 
marketing of the above feed and food commodities when treated in 
accordance with the provisions of experimental use permit 70218-EUP-1, 
as amended and extended under the Federal Insecticide, Fungicide, and 
Rodenticide Act (FIFRA), as amended (Pub. L. 95-396, 92 Stat. 819; 7 
U.S.C. 136). The data submitted in the petition and all other relevant 
material have been evaluated. Following is a summary of EPA's findings 
regarding this petition as required by section 408(d) of the Federal 
Food, Drug and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as recently 
amended by the Food Quality Protection Act (FQPA), Pub. L. 104-170.

I. Risk Assessment and Statutory Findings

A. Use Practices

    The experimental program will be conducted in the states of 
Alabama, New York, California, North Carolina, Colorado, Ohio, 
Delaware, Pennsylvania, Florida, Puerto Rico, Georgia, South Dakota, 
Hawaii, Tennessee, Illinois, Texas, Indiana, Virginia, Iowa, Wisconsin, 
Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, 
Mississippi, Missouri, and Nebraska. Corn containing this plant-
pesticide are to be protected from the European corn borer.

B. Product Identity/Chemistry

    The Cry9C gene was originally isolated from a Bacillus 
thuringiensis subsp. tolworthi strain. The gene was then synthesized 
with plant preferred codons before it was stably inserted into corn 
plants to produce a truncated and modified Cry9C protein. The tryptic 
core of the microbially produced Cry9C delta-endotoxin is similar to 
the Cry9C protein found in event CBH351 save for a single amino acid 
substitution in the internal sequence and the addition of two amino 
acids to the N-terminus. The Cry9C protein was produced and purified 
from a bacterial host to utilize in the mammalian toxicity studies due 
to the bacterium's greater production potential. Product analysis that 
compared the Cry9C protein from the two sources included: SDS-PAGE, 
Western blots, N- terminal amino acid sequencing, glycosylation tests 
(for possible post- translational modifications) and insect bioassays. 
No analytical method was included since this petition requests an 
exemption from the requirement of a tolerance.

C. Mammalian Toxicological Profile

    Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the 
available scientific data and other relevant information in support of 
this action and considered its validity, completeness and reliability 
and the relationship of this information 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.
    Additionally, 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.''
    A high-dose acute oral toxicity study (3,760 mg/kg body weight) 
showed no mortalities. Transient weight losses were seen in three 
female treated animals, with one not recovering her pre-dosing, pre-
fast weight at 14 days after dose administration. The treated males 
showed no weight losses. Transient weight loss has been observed in 
similar studies conducted on other

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purified Cry proteins as well as microbial pesticides containing Cry 
proteins and is not considered a significant adverse effect.
    The in vitro digestibility study showed the Cry9C protein to be 
stable to pepsin digestion at pH 2.0 for 4 hours. The Cry9C protein is 
also heat stable, not being affected by incubation at 90 deg. C for 10 
minutes. The Cry9C protein in corn is the trypsin resistant core and is 
therefore stable to typtic digest.
    A search for amino acid homology did not reveal any significant 
homology with known toxins or allergens.
    The genetic material necessary for the production of the plant-
pesticide active ingredient is the nucleic acids (DNA) which comprise 
genetic material encoding the Cry9C protein and its regulatory regions. 
Regulatory regions are the genetic material that control the expression 
of the genetic material encoding the proteins, such as promoters, 
terminators, and enhancers. DNA is common to all forms of plant and 
animal life and the Agency knows of no instance where these nucleic 
acids have been associated with toxic effects related to their 
consumption as a component of food. These ubiquitous nucleic acids as 
they appear in the subject plant-pesticide have been adequately 
characterized by the applicant and supports EPA's conclusion that no 
mammalian toxicity is anticipated from dietary exposure to the genetic 
material necessary for the production of the Cry9C protein.

D. Aggregate Exposure

    The available information on the aggregate exposure levels of 
consumers (and major identifiable subgroups of consumers) to the Cry9C 
protein residue include dietary exposure and exposure from non-
occupational sources. Exposure via the skin or inhalation is not likely 
since the Cry9C plant-pesticide is contained within plant cells 
essentially eliminating these exposure routes or reducing these 
exposure routes to negligible. Drinking water is unlikely to be 
significantly contaminated with Cry9C protein due to the low expression 
of the protein in corn tissue, degradation of plant materials in the 
soil and low leaching potential of a protein from a soil matrix. 
Minimal to non-existent oral exposure could occur from ingestion of 
meat, poultry, eggs or milk from animals fed corn containing the plant-
pesticide and from drinking water. While unlikely, meat, eggs or milk 
from animals fed corn containing the plant-pesticide could contain 
negligible but finite residues. This is viewed as a remote possibility 
due to the low Cry9C expression level in corn tissue (12 to 225 
g/gm fresh weight), the anticipated degradation and 
elimination of the Cry9C protein by the animal or the lack of uptake of 
such a large protein by the animal's intestinal tract. It is not 
possible to establish with certainty whether finite residues will be 
incurred, but there is no reasonable expectation of finite residues. 
However, the best available information on the uptake of intact 
proteins from the diet would indicate that the intact Cry9C protein 
would not be available in products from animals fed corn products 
containing Cry9C protein.
    The use sites are all agricultural for control of lepidopteran 
insects under the associated experimental use permit. Therefore, 
exposure via residential or lawn use is not expected.

E. Cumulative Effects

    The Agency has considered available information on the cumulative 
effects of such residues and other substances that have a common 
mechanism of toxicity. These considerations included the cumulative 
effects on adults as well as on infants and children of such residues 
and other substances with a common mechanism of toxicity. Since there 
is no indication of mammalian toxicity to the Cry9C protein from the 
studies submitted, there is no reason to believe there would be 
cumulative toxic effects.

F. Safety Determination

    The temporary tolerance exemption is limited to residues of the 
Cry9C protein resulting from feed use only. The basis of safety for 
this temporary tolerance exemption includes both the results of the 
acute oral study at high doses indicating no toxicity and the 
anticipated minimal to nonexistent human dietary exposure of the Cry9C 
protein via animal feed use.
    Bt microbial pesticides, containing Cry proteins other than Cry9C, 
have been applied for more than 30 years to food and feed crops 
consumed by the U.S. population. There have been no human safety 
problems attributed to the specific Cry proteins. An oral dose of the 
tryptic core Cry9C protein of at least 3,760 mg/kg was administered to 
10 animals without mortality demonstrating a high degree of safety for 
the protein. Transient weight loss in three female rodents was 
observed, but not in any males. Transient weight loss has been observed 
in similar studies conducted on other purified Cry proteins as well as 
microbial pesticides and this is not considered a significant adverse 
effect.
    A comparison of the amino acid sequence of the Cry9C protein with 
those found in the PIR, Swiss-Prot and HIV AA data bases did not reveal 
any significant homology with known toxins or allergens.
    The in vitro digestibility study showed the Cry9C protein to be 
stable to pepsin at pH 2.0. The Cry9C protein was shown to be stable to 
heat at 90 degrees C for 10 minutes and the Cry9C protein in corn is 
the trypsin resistant core and is therefore stable to tryptic digest.
    The best available information to date would indicate that edible 
products derived from animals such as meat, milk and eggs, intended for 
human consumption, have not been shown to be altered in their 
allergenicity due to changes in the feed stock utilized. This 
information would include no transfer of allergenic factors from cattle 
fed soybeans to the derived meat or milk eaten by individuals with food 
sensitivity to soybeans.

G. Infants and Children

    FFDCA section 408(b)(2)(C) provides that EPA shall assess the 
available information about consumption patterns among infants and 
children, special susceptibility of infants and children to pesticide 
chemical residues and the cumulative effects on infants and children of 
the residues and other substances with a common mechanism of toxicity. 
In addition, FFDCA section 408 provides that EPA shall apply an 
additional tenfold margin of exposure (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 exposure (safety) will be safe for infants 
and children.
    In this instance, based on all the available information, the 
Agency concludes that infants and children will consume only minimal, 
if any, residues of this plant-pesticide and that there is a finding of 
no toxicity.
    Thus, there are no threshold effects of concern and, as a result 
the provision requiring an additional margin of safety does not apply. 
Further, the provisions of consumption patterns, special 
susceptibility, and cumulative effects do not apply.

H. Other Considerations

    1. Analytical method. The Agency is establishing an exemption from 
the requirement of a tolerance without any numerical 
limitation;therefore, the agency has concluded that an analytical 
method is not required for enforcement purposes for this plant-
pesticide.
    2. Effects on the endocrine systems. EPA does not have any 
information

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regarding endocrine effects for these kinds of pesticides at this time. 
The Agency is not requiring information on the endocrine effects of 
these plant-pesticides at this time; and Congress allowed 3 years after 
August 3, 1996, for the Agency to implement a screening and testing 
program with respect to endocrine effects.

I. Existing Tolerances

    No tolerances or tolerance exemptions have been granted for the 
Bacillus thuringiensis subsp. tolworthi Cry9C and the genetic material 
necessary for the production of this protein in or on all raw 
agricultural commodities.

II. Conclusion

    Based on the toxicology data cited and the limited exposure 
expected with animal feed use, there is reasonable certainty that no 
harm will result from aggregate exposure to the U.S. population, 
including infants and children, to residues of Bacillus thuringiensis 
subspecies tolworthi Cry9C protein and the genetic material necessary 
for its production in corn. This includes all anticipated dietary 
exposures and all other exposures for which there is reliable 
information. The Agency has arrived at this conclusion because, as 
discussed above, the temporary tolerance exemption is limited to feed 
use only. The conclusion of safety is supported by the lack of toxicity 
after administration of a high oral dose (3,760 mg/kg), the lack of 
homology to known toxins or allergens, and the minimal to nonexistent 
exposure via dietary and non-dietary routes. As a result, EPA 
establishes a temporary exemption from the requirement of a tolerance 
pursuant to FFDCA section 408(j)(3) for Bacillus thuringiensis 
subspecies tolworthi Cry9C protein and the genetic material necessary 
for its production in corn, on the condition that Bacillus 
thuringiensis subspecies tolworthi Cry9C protein and the genetic 
material necessary for its production in corn be used in accordance 
with the experimental use permit 70218-EUP-1, with the following 
provisions:
    The total amount of the active ingredients to be used must not 
exceed the quantity authorized by the experimental use permits. Plant 
Genetic Systems (America) must immediately notify the EPA of any 
findings from the experimental use that have a bearing on safety. The 
company must also keep records of production, distribution, and 
performance and on request make the records available to any authorized 
officer or employee of the EPA or the Food and Drug Administration 
(FDA).
    This temporary exemption from the requirement of a tolerance 
expires and is revoked January 31, 1999. Residues remaining in or on 
the raw agricultural commodity after this expiration date will not be 
considered actionable if the corn containing the plant-pesticide was 
legally planted during the term of, and in accordance with, the 
provisions of the amended experimental use permit and temporary 
exemption from the requirement of a tolerance.
    This temporary exemption from the requirement of a tolerance may be 
revoked if the experimental use permit is revoked or if any experience 
with or scientific data on this pesticide indicate that the tolerance 
is not safe.
    EPA will publish a document in the Federal Register to remove the 
revoked temporary exemption from the Code of Federal Regulations.

III. Objections and Hearing Requests

    The new FFDAC section 408(g) provides essentially the same process 
for persons to ``object'' to a tolerance exemption regulation issued by 
EPA under new section 408(e) as was provided in the old section 408. 
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 adversely affected by this regulation may, within 30 
days after publication of this document in the Federal Register, file 
written objections to the regulation and may also request a hearing on 
those objections. Objections and hearing requests must be filed with 
the Hearing Clerk, at the address given above (40 CFR 178.20). A copy 
of the objections and/or hearing requests filed with the Hearing Clerk 
should be submitted to the OPP docket for this rulemaking. The 
objections submitted must specify the provisions of the regulation 
deemed objectionable and the grounds for the objections (40 CFR 
178.25). Each objection must be accompanied by the fee prescribed by 40 
CFR 180.33(i). If a hearing is requested, the objections must include a 
statement of the factual issue(s) on which a hearing is requested, the 
requestor's contentions on such issues, and a summary of any evidence 
relied upon by the objector (40 CFR 178.27). A request for a hearing 
will be granted if the Administrator determines that the material 
submitted shows the following: There is genuine and substantial issue 
of fact; there is a reasonable possibility that available evidence 
identified by the requestor would, if established, resolve one or more 
of such issues in favor of the requestor, taking into account 
uncontested claims or facts to the contrary; and resolution of the 
factual issue(s) in the manner sought by the requestor would be 
adequate to justify the action requested (40 CFR 178.32).

IV. Public Record and Electronic Submissions

    EPA has established a record for this rulemaking under docket 
control number [OPP-300612] (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 119 of the Public Information and Records 
Integrity Branch, Information Resources and Services, Division (7502C), 
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 
address in ``ADDRESSES'' at the beginning of this document.

V. Regulatory Assessment Requirements

    This final rule establishes an exemption from the tolerance 
requirement 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

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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 tolerances and exemptions that are established 
on the basis of a petition under FFDCA section 408(d), such as the 
exemption 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 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.

VI. 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: March 26, 1998.

Janet L. Andersen,

Director, Biopesticides and Pollution Prevention Division, Office of 
Pesticide Programs.

PART 180--[AMENDED]

    1. The authority citation for part 180 continues to read as 
follows:
    Authority: 21 U.S.C. 346a and 371

    2. Section 180.1192 is added to read as follows:


Sec. 180.1192   Bacillus thuringiensis subspecies tolworthi Cry9C 
protein and the genetic material necessary for its production in corn; 
exemption from the requirement of a tolerance.

     The plant-pesticide Bacillus thuringiensis subspecies tolworthi 
Cry9C and the genetic material necessary for its production in corn is 
temporarily exempted from the requirement of a tolerance for residues, 
only in corn used for feed; as well as in meat, poultry, milk, or eggs 
resulting from animals fed such feed. This temporary exemption from the 
requirement of a tolerance will permit the use of the feed commodities 
and the marketing of animals fed such feed in this paragraph when 
treated in accordance with the provisions of experimental use permit 
70218-EUP-1, which is being amended and extended under the Federal 
Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended (7 
U.S.C. 136). This temporary exemption from the requirement of a 
tolerance expires and is revoked January 31, 1999. This temporary 
exemption from the requirement of a tolerance may be revoked at any 
time if the experimental use permit is revoked or if any experience 
with or scientific data on this pesticide indicate that the tolerance 
is not safe.

[FR Doc. 98-9245 Filed 4-9-98; 8:45 am]
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