[Federal Register Volume 63, Number 99 (Friday, May 22, 1998)]
[Rules and Regulations]
[Pages 28258-28261]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-13604]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[OPP-300659; FRL-5790-3]
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 amends an exemption from the requirement of a 
tolerance for resid ues 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. Plant 
Genetic Systems (America), Inc. submitted a petition to the EPA under 
the Federal Food, Drug and Cosmetic Act (FFDCA) as amended by the Food 
Quality Protection Act (FQPA) of 1996 requesting the exemption from the 
requirement of a tolerance. This regulation eliminates the need to 
establish a maximum permissible level for residues of this plant-
pesticide in or on corn used for feed; as well as in meat, poultry, 
milk, or eggs resulting from animals fed such feed.
EFFECTIVE DATE: This regulation is effective May 22, 1998. Objections 
and requests for hearings must be received by EPA on or before July 21, 
1998.
ADDRESSES:  Written objections and hearing requests, identified by the 
docket control number [OPP-300659], 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-300659], 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-300659]. 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 7F4826) the establishment of an 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 in or on all raw 
agricultural commodities. A notice of filing (FRL-5739-9) was published 
in the Federal Register (62 FR 49224, September 19, 1997), and the 
notice announced that the comment period would end on October 20, 1997; 
no comments were received. Plant Genetic Systems (America), Inc. 
submitted an amendment to their petition on April 24, 1998 to request 
the establishment of an 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 only in corn used for feed; as well as in meat, 
poultry, milk, or eggs resulting from animals fed such feed. This 
exemption from the requirement of a tolerance will permit the marketing 
of feed corn containing the plant-pesticide; as well as meat, poultry, 
milk, or eggs resulting from animals fed such feed. 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.

[[Page 28259]]

I. Risk Assessment and Statutory Findings

A. 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.

B. 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 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 tryptic 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.

C. 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 (3 to 250 
g/gm dry 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.

D. 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.

E. Safety Determination

    The tolerance exemption is limited to residues of the Cry9C protein 
resulting from feed use only. The basis of safety for this 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  deg. 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

[[Page 28260]]

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.

F. 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.

G. 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 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.

H. Existing Tolerances

    A temporary exemption from the requirement of a tolerance for 
residues of Bacillus thuringiensis subsp. tolworthi Cry9C and the 
genetic material necessary for the production of this protein in corn, 
only in corn used for feed; as well as in meat, poultry, milk, or eggs 
resulting from animals fed such feed was established on April 10, 1998 
under 40 CFR 180.1192 [63 FR 69]. The exemption from the requirement of 
a tolerance in this rule makes permanent the temporary tolerance 
exemption of 40 CFR 180.1192.

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. This exemption from the 
requirement of a tolerance will be revoked if any experience with or 
scientific data on this pesticide indicate that the tolerance is not 
safe.

III. Objections and Hearing Requests

    The new FFDCA 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 by June 22, 
1998, 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). Information submitted in connection with an objection or 
hearing request may be claimed confidential by marking any part or all 
of that information as 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.

IV. Public Record and Electronic Submissions

    EPA has established a record for this rulemaking under docket 
control number [OPP-300659] (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

[[Page 28261]]

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.

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 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: May 11, 1998.

Marcia E. Mulkey,

Director, Office of Pesticide Programs.
    Therefore, 40 CFR chapter I is amended as follows:

PART 180--[AMENDED]

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

    2. Section 180.1192 is revised 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 protein and the genetic material necessary for its production in 
corn is 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.

[FR Doc. 98-13604 Filed 5-21-98; 8:45 am]
BILLING CODE 6560-50-F