[Federal Register Volume 71, Number 75 (Wednesday, April 19, 2006)]
[Proposed Rules]
[Pages 20048-20052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-5883]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[EPA-HQ-OPP-2006-0253; FRL-8058-3]


Mono- and bis-(1H, 1H, 2H, 2H- perfluoroalkyl) phosphates where 
the alkyl group is even numbered and in the C6-C12 range; Proposed 
Revocation of Pesticide Inert Ingredient Tolerance Exemption

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: This document proposes to revoke, under the Federal Food, 
Drug, and Cosmetic Act (FFDCA) section 408(e)(1), the existing 
exemption from the requirement of a tolerance for residues of the inert 
ingredient mono- and bis-(1H, 1H, 2H, 2H- perfluoroalkyl) phosphates 
where the alkyl group is

[[Page 20049]]

even numbered and in the C6-C12 range under 40 CFR 180.920 because EPA 
cannot determine that it meets the safety requirements of FFDCA section 
408(b)(2). The regulatory action proposed in this document contributes 
toward the Agency's tolerance reassessment requirements under FFDCA 
section 408(q), as amended by the Food Quality Protection Act (FQPA) of 
1996. By law, EPA is required by August 2006 to reassess the tolerances 
that were in existence on August 2, 1996. The regulatory action 
proposed in this document pertains to the proposed revocation of 1 
tolerance which would be counted as tolerance reassessment toward the 
August 2006 review deadline.

DATES:  Comments must be received on or before June 19, 2006. 
Revocation would be effective 18 months after publication of the final 
rule.

ADDRESSES:  Submit your comments, identified by docket identification 
(ID) number EPA-HQ-OPP-2006-0253, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Mail: Office of Pesticide Programs (OPP) Regulatory Public 
Docket (7502C), Environmental Protection Agency, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460-0001.
     Hand Delivery: OPP Regulatory Public Docket, Environmental 
Protection Agency, Rm. 119, Crystal Mall 2, 1801 S. Bell St., 
Arlington, VA. Deliveries are only accepted during the Docket's normal 
hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, 
excluding legal holidays). Special arrangements should be made for 
deliveries of boxed information. The Docket telephone number is (703) 
305-5805.
     Important Note: OPP will be moving to a new location the 
first week of May 2006. As a result, from Friday, April 28 to Friday, 
May 5, 2006, the OPP Regulatory Public Docket will NOT be accepting any 
deliveries at the Crystal Mall 2 address and this facility 
will be closed to the public. Beginning on May 8, 2006, the OPP 
Regulatory Public Docket will reopen at 8:30 a.m. and deliveries will 
be accepted in Rm. S-4400, One Potomac Yard (South Building), 2777 S. 
Crystal Drive, Arlington, VA 22202. The mail code for the mailing 
address will change to (7502P), but will otherwise remain the same. The 
OPP Regulatory Public Docket telephone number and hours of operation 
will remain the same after the move.
     Instructions: Direct your comments to docket ID number EPA-HQ-OPP-
2006-0253. EPA's policy is that all comments received will be included 
in the docket without change and may be made available on-line at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through regulations.gov or e-
mail. The Federal regulations.gov website is an ``anonymous access'' 
system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through 
regulations.gov, your e-mail address will be automatically captured and 
included as part of the comment that is placed in the docket and made 
available on the Internet. If you submit an electronic comment, EPA 
recommends that you include your name and other contact information in 
the body of your comment and with any disk or CD-ROM you submit. If EPA 
cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
comment. Electronic files should avoid the use of special characters, 
any form of encryption, and be free of any defects or viruses.
     Docket: All documents in the docket are listed in the docket 
index. Although listed in the index, some information is not publicly 
available, e.g., CBI or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available in the electronic docket at http://www.regulations.gov, or, 
if only available in hard copy, at the OPP Regulatory Public Docket at 
the location identified under ``Delivery'' and ``Important Note.'' The 
hours of operation for this docket facility are from 8:30 a.m. to 4 
p.m., Monday through Friday, excluding legal holidays. The docket 
telephone number is (703) 305-5805.

FOR FURTHER INFORMATION CONTACT: Karen Angulo, Registration Division 
(7505C), Office of Pesticide Programs, Environmental Protection Agency, 
1200 Pennsylvania Ave, NW., Washington, DC 20460-0001; telephone 
number: (703) 306-0404; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    You may be potentially affected by this action if you are an 
agricultural producer, food manufacturer, or pesticide manufacturer. 
Potentially affected entities may include, but are not limited to:
     Crop production (NAICS code 111)
     Animal production (NAICS code 112)
     Food manufacturing (NAICS code 311)
     Pesticide manufacturing (NAICS code 32532)
    This listing is not intended to be exhaustive, but rather provides 
a guide for readers regarding entities likely to be affected by this 
action. Other types of entities not listed in this unit could also be 
affected. The North American Industrial Classification System (NAICS) 
codes have been provided to assist you and others in determining 
whether this action might apply to certain entities. To determine 
whether you or your business may be affected by this action, you should 
carefully examine the applicability provisions in Unit II. If you have 
any questions regarding the applicability of this action to a 
particular entity, consult the person listed under FOR FURTHER 
INFORMATION CONTACT.

B. What Should I Consider as I Prepare My Comments for EPA?

     1.  Submitting CBI. Do not submit this information to EPA through 
regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
    i. Identify the document by docket ID number and other identifying 
information (subject heading, Federal Register date and page number).

[[Page 20050]]

     ii. Follow directions. The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
     iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    vi. Provide specific examples to illustrate your concerns and 
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
     viii. Make sure to submit your comments by the comment period 
deadline identified.

II. Background and Statutory Findings

A. What Action is the Agency Taking?

    EPA is now in the process of reassessing all inert ingredient 
exemptions from the requirement of a tolerance (tolerance exemptions) 
established prior to August 2, 1996, as required by the Federal Food, 
Drug, and Cosmetic Act (FFDCA) section 408(q). Under section 408(q), 
tolerance reassessment may lead to regulatory action under section 
408(e)(1). When taking action under section 408(e)(1), EPA may leave a 
tolerance exemption in effect only if the Agency determines that the 
tolerance exemption is safe.
    The existing tolerance exemption under 40 CFR 180.920 for the inert 
ingredient mono- and bis-(1H, 1H, 2H, 2H- perfluoroalkyl) phosphates 
where the alkyl group is even numbered and in the C6-C12 range allows 
for its use as a defoaming agent at not more than 0.5% of pesticide 
formulation. Due to potential risk from use of these perfluoroalkyl 
phosphates EPA is proposing to revoke the tolerance exemption at 
180.920 under FFDCA section 408(e)(1) because the Agency is unable to 
determine that the tolerance exemption meets the safety requirements of 
FFDCA section 408(c)(2).
    It has been demonstrated that compounds containing perfluoroalkyl 
chains (PFAC), such as the perfluoroalkyl phosphates described in Sec.  
180.920 will undergo degradation (chemical, microbial, or photolytic) 
of the non-fluorinated portion of the molecule leaving the remaining 
perfluorinated acid untouched (Ref.: A. Remde and R. Debus, 
Biodegradability of Fluorinated Surfactants Under Aerobic and Anaerobic 
Conditions, Chemosphere, 32(8), 1563-1574 (1996)). Among the 
degradation compounds that can be produced is perfluorooctanoic acid 
(PFOA). Further degradation of the perfluoroalkyl residual compounds is 
extremely difficult.
    EPA has received significant and troubling data on PFOA. Biological 
sampling recently revealed the presence of PFOA in fish, birds, and 
mammals, including humans, across the United States and in other 
countries. The widespread distribution of the chemical suggests that 
PFOA may bioaccumulate. PFOA has shown liver, developmental, and 
reproductive toxicity at very low dose levels in exposed laboratory 
animals (Ref.: (AR226-1093) Seed, Jennifer. Hazard Assessment of 
Perfluorooctanoic Acid and Its Salts-USEPA/EPA/RAD. Washington, DC. 
November 4, 2002.).
    EPA issued a draft preliminary risk assessment on PFOA in April 
2003, and simultaneously initiated an enforceable consent agreement 
(ECA) process under section 4 of the Toxic Substances Control Act 
(TSCA), 15 U.S.C. 2603, and 40 CFR part 790 to develop information on 
the sources of PFOA in the environment and the pathways leading to 
exposure in order to reduce uncertainties in the assessment. (68 FR 
18626, April 16, 2003 (FRL-7303-8)). The ECA process and PFOA risk 
assessment activity are still underway.
    On January 25, 2006, EPA invited fluoropolymer and telomer 
manufacturers doing business in the United States to participate in a 
global stewardship program on PFOA and related chemicals. Participating 
companies will commit to reducing PFOA, PFOA precursors (meaning 
chemicals that can degrade to PFOA), and higher homologues from 
facility emissions and product content by 95 percent no later than 
2010, and to work toward eliminating these chemicals from emissions and 
product content no later than 2015. More information on the global 
stewardship program, the enforceable consent agreement process, the 
PFOA risk assessment, and PFOA in general is found at: http://www.epa.gov/oppt/pfoa.
    On March 7, 2006, EPA published a proposal to amend the polymer 
exemption rule to exclude certain perfluorinated polymers (71 FR 11484, 
March 7, 2006, FRL-7735-5). EPA believes this change to the current 
regulation is necessary because, based on recent information, including 
the data on PFOA and the potential for these perfluorinated polymers to 
degrade to PFOA, EPA can no longer conclude that these polymers will 
not present an unreasonable risk to human health or the environment, 
which is the determination necessary to support an exemption under 
section 5(h)(4) of TSCA, 15 U.S.C. 2604(h)(4), such as the Polymer 
Exemption Rule.
    Because (1) PFOA and other PFACs are produced from the degradation 
of the perfluoroalkyl phosphates described in Sec.  180.920 and (2) the 
potential risks to human health and the environment associated with 
PFOA, EPA is unable to determine that there is a reasonable certainty 
that no harm will result from exposure residues of the perfluoroalkyl 
phosphates described in Sec.  180.920. Therefore, the tolerance 
exemption does not meet requirements of FFDCA section 408(c)(2), and 
EPA is proposing to revoke this tolerance exemption in Sec.  180.920 in 
accordance with FFDCA section 408(e)(1).

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

    A tolerance represents the maximum level for residues of pesticide 
chemicals legally allowed in or on raw agricultural commodities and 
processed foods. Section 408(e) of FFDCA, 21 U.S.C. 346a(e) authorizes 
the establishment of tolerances, exemptions from tolerance 
requirements, modifications in tolerances, and revocation of tolerances 
for residues of pesticide chemicals in or on raw agricultural 
commodities and processed foods. Pursuant to section 408(c)(2), in 
action under section 408(e)(1), EPA may leave in effect an exemption 
from the requirement for a tolerance only if the Agency determines that 
the exemption is safe. Without a tolerance or exemption, food 
containing pesticide residues is considered to be unsafe and therefore 
``adulterated'' under section 402(a) of the FFDCA, 21 U.S.C. 342(a). 
Such food may not be distributed in interstate commerce (21 U.S.C. 
331(a)). For a food-use pesticide to be sold and distributed, the 
pesticide must not only have appropriate tolerances under the FFDCA, 
but also must be registered under FIFRA (7 U.S.C. 136 et seq.). Food-
use pesticides not registered in the United States must have tolerances 
in order for commodities treated with those pesticides to be imported 
into the United States.

C. When do These Actions Become Effective?

    EPA is proposing to revoke the current tolerance exemption Mono- 
and bis-(1H, 1H, 2H, 2H- perfluoroalkyl) phosphates where the alkyl 
group is even numbered and in the C6-C12 range in 40 CFR 180.920 
effective 18 months

[[Page 20051]]

after the date of publication of the final rule in the Federal 
Register. Any commodities listed in this proposal treated with 
pesticide products containing the inert ingredient, and in the channels 
of trade following the tolerance revocations, shall be subject to FFDCA 
section 408(1)(5), as established by FQPA. Under this section, any 
residues of these pesticide chemicals in or on such food shall not 
render the food adulterated so long as it is shown to the satisfaction 
of the Food and Drug Administration that:
    1. The residue is present as the result of an application or use of 
the pesticide at a time and in a manner that was lawful under FIFRA, 
and
    2. The residue does not exceed the level that was authorized at the 
time of the application or use to be present on the food under a 
tolerance or exemption from tolerance. Evidence to show that food was 
lawfully treated may include records that verify the dates when the 
pesticide was applied to such food.

D. What Is the Contribution to Tolerance Reassessment?

    By law, EPA is required by August 2006 to reassess the tolerances 
and exemptions from tolerances that were in existence on August 2, 
1996. This document proposes to revoke one inert ingredient tolerance 
exemption, which will be counted in a final rule as a tolerance 
reassessment toward the August 2006 review deadline under FFDCA section 
408(q), as amended by FQPA in 1996.

III. Are the Proposed Actions Consistent with International 
Obligations?

    The tolerance revocation in this proposal is not discriminatory and 
is designed to ensure that both domestically-produced and imported 
foods meet the food safety standard established by the FFDCA. The same 
food safety standards apply to domestically produced and imported 
foods.
    EPA is working to ensure that the U.S. tolerance reassessment 
program under FQPA does not disrupt international trade. EPA considers 
Codex Maximum Residue Limits (MRLs) in setting U.S. tolerances and in 
reassessing them. MRLs are established by the Codex Committee on 
Pesticide Residues, a committee within the Codex Alimentarius 
Commission, an international organization formed to promote the 
coordination of international food standards. It is EPA's policy to 
harmonize U.S. tolerances with Codex MRLs to the extent possible, 
provided that the MRLs achieve the level of protection required under 
FFDCA. EPA's effort to harmonize with Codex MRLs is summarized in the 
tolerance reassessment section of individual Reregistration Eligibility 
Decision documents. EPA has developed guidance concerning submissions 
for import tolerance support (65 FR 35069, June 1, 2000) (FRL-6559-3). 
This guidance will be made available to interested persons. Electronic 
copies are available on the internet at http://www.epa.gov. On the Home 
Page select ``Laws, Regulations, and Dockets,'' then select 
``Regulations and Proposed Rules'' and then look up the entry for this 
document under ``Federal Register--Environmental Documents.'' You can 
also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr.

IV. Statutory and Executive Order Reviews

    This proposed rule establishes a tolerance under section 408(d) of 
the FFDCA 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). Because this proposed rule has 
been exempted from review under Executive Order 12866 due to its lack 
of significance, this proposed rule is not subject to Executive Order 
13211, Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This proposed 
rule does not contain any information collections subject to OMB 
approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et 
seq., or impose any enforceable duty or contain any unfunded mandate as 
described under Title II of the Unfunded Mandates Reform Act of 1995 
(UMRA) (Public Law 104-4). Nor does it require any special 
considerations under Executive Order 12898, entitled Federal Actions to 
Address Environmental Justice in Minority Populations and Low-Income 
Populations (59 FR 7629, February 16, 1994); or OMB review or any 
Agency action under Executive Order 13045, entitled Protection of 
Children from Environmental Health Risks and Safety Risks (62 FR 19885, 
April 23, 1997). This action does not involve any technical standards 
that would require Agency consideration of voluntary consensus 
standards pursuant to section 12(d) of the National Technology Transfer 
and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) 
(15 U.S.C. 272 note).
    Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et 
seq.), the Agency previously assessed whether establishment of 
tolerances, exemptions from tolerances, raising of tolerance levels, 
expansion of exemptions, or revocations might significantly impact a 
substantial number of small entities and concluded that, as a general 
matter, these actions do not impose a significant economic impact on a 
substantial number of small entities. These analyses for tolerance 
establishments and modifications, and for tolerance revocations were 
published on May 4, 1981 (46 FR 24950) and on December 17, 1997 (62 FR 
66020), respectively, and were provided to the Chief Counsel for 
Advocacy of the Small Business Administration. Taking into account this 
analysis, and available information concerning the pesticides listed in 
this proposed rule, the Agency hereby certifies that this proposed 
action will not have a significant negative economic impact on a 
substantial number of small entities. Specifically, the Agency has 
concluded in a memorandum dated May 25, 2001 that for import tolerance 
revocation there is a negligible joint probability of certain defined 
conditions holding simultaneously which would indicate an RFA/SBREFA 
concern and require more analysis. (This Agency document is available 
in the docket of this proposed rule). Furthermore, for the pesticide 
named in this proposed rule, the Agency knows of no extraordinary 
circumstances that exist as to the present proposal that would change 
the EPA's previous analysis. Any comments about the Agency's 
determination should be submitted to the EPA along with comments on the 
proposal, and will be addressed prior to issuing a final rule.
    In addition, the Agency has determined that this action will not 
have a substantial direct effect on States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132, entitled Federalism (64 FR 43255, 
August 10, 1999). Executive Order 13132 requires EPA to develop an 
accountable process to ensure ``meaningful and timely input by State 
and local officials in the development of regulatory policies that have 
federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the

[[Page 20052]]

distribution of power and responsibilities among the various levels of 
government.'' This proposed rule directly regulates growers, food 
processors, food handlers and food retailers, not States. This action 
does not alter the relationships or distribution of power and 
responsibilities established by Congress in the preemption provisions 
of section 408(n)(4) of the FFDCA. For these same reasons, the Agency 
has determined that this proposed rule does not have any ``tribal 
implications'' as described in Executive Order 13175, entitled 
Consultation and Coordination with Indian Tribal Governments (65 FR 
67249, November 6, 2000). Executive Order 13175, requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by tribal officials in the development of regulatory policies that have 
tribal implications.'' ``Policies that have tribal implications'' is 
defined in the Executive order to include regulations that have 
``substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal Government and the Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes.'' This proposed rule will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal Government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this proposed rule.

List of Subjects in 40 CFR Part 180

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


    Dated: April 12, 2006.
Donald R. Stubbs,
Acting Director, Registration Division, Office of Pesticide Programs.
    Therefore, it is proposed that 40 CFR chapter I be amended as 
follows:

PART 180--[AMENDED]

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

    Authority: 21 U.S.C. 321(q), 346a and 371.
    2. Section 180.920 is amended by revising the entry for Mono- and 
bis-(1H, 1H, 2H, 2H- perfluoroalkyl) phosphates where the alkyl group 
is even numbered and in the C6-C12 range in the table as follows:


Sec.  180.920  Inert ingredients used pre-harvest; exemptions from the 
requirement of a tolerance.

    * * *

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               Inert ingredients                               Limits                           Uses
----------------------------------------------------------------------------------------------------------------
                                                  * * * * * * *
Mono- and bis-(1H, 1H, 2H, 2H-perfluoroalkyl)    Expires [insert date 18 months                 Defoaming agent.
 phosphates where the alkyl group is even         after the date of publication of
 numbered and in the C6-C12 range                 the final rule in the Federal
                                                  Register] Not more than 0.5% of
                                                  pesticide formulation.
                                                  * * * * * * *
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[FR Doc. E6-5883 Filed 4-18-06; 8:45 am]
BILLING CODE 6560-50-S