[Federal Register Volume 74, Number 105 (Wednesday, June 3, 2009)]
[Rules and Regulations]
[Pages 26543-26546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12788]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[EPA-HQ-OPP-2007-0158; FRL-8416-7]


Aspergillus flavus AF36 on Pistachio; Extension of Temporary 
Exemption From the Requirement of a Tolerance

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This regulation amends the temporary exemption from the 
requirement of a tolerance for residues of the Aspergillus flavus AF36 
(A. flavus AF36) on pistachio when applied/used

[[Page 26544]]

as an antifungal agent to displace aflatoxin-producing fungi. 
Interregional Research Project Number 4 (IR-4), on behalf of the 
Arizona Cotton Research and Protection Council, submitted a petition to 
EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting 
the temporary tolerance exemption be amended. The amendment extends the 
expiration date to December 31, 2011.

DATES: This regulation is effective June 3, 2009. Objections and 
requests for hearings must be received on or before August 3, 2009, and 
must be filed in accordance with the instructions provided in 40 CFR 
part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

ADDRESSES: EPA has established a docket for this action under docket 
identification (ID) number EPA-HQ-OPP-2007-0158. All documents in the 
docket are listed in the docket index available at http://www.regulations.gov. Although listed in the index, some information is 
not publicly available, e.g., Confidential Business Information (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 in Rm. S-4400, One Potomac 
Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket 
Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, 
excluding legal holidays. The Docket Facility telephone number is (703) 
305-5805.

FOR FURTHER INFORMATION CONTACT: Shanaz Bacchus, Biopesticides and 
Pollution Prevention Division (7511P), Office of Pesticide Programs, 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460-0001; telephone number: (703) 308-8097; 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. 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. How Can I Access Electronic Copies of this Document?

    In addition to accessing electronically available documents at 
http://www.regulations.gov, you may access this Federal Register 
document electronically through the EPA Internet under the ``Federal 
Register'' listings at http://www.epa.gov/fedrgstr. You may also access 
a frequently updated electronic version of 40 CFR part 180 through the 
Government Printing Office's e-CFR site at http://www.gpoaccess.gov/ecfr.

C. Can I File an Objection or Hearing Request?

    Under section 408(g) of FFDCA, 21 U.S.C. 346a, any person may file 
an objection to any aspect of this regulation and may also request a 
hearing on those objections. The EPA procedural regulations which 
govern the submission of objections and requests for hearings appear in 
40 CFR part 178. You must file your objection or request a hearing on 
this regulation in accordance with the instructions provided in 40 CFR 
part 178. To ensure proper receipt by EPA, you must identify docket ID 
number EPA-HQ-OPP-2007-0158 in the subject line on the first page of 
your submission. All requests must be in writing, and must be mailed or 
delivered to the Hearing Clerk on or before August 3, 2009.
    In addition to filing an objection or hearing request with the 
Hearing Clerk as described in 40 CFR part 178, please submit a copy of 
the filing that does not contain any CBI for inclusion in the public 
docket that is described in ADDRESSES. Information not marked 
confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA 
without prior notice. Submit your copies, identified by docket ID 
number EPA-HQ-OPP-2007-0158, 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 (7502P), Environmental Protection Agency, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460-0001.
     Delivery: OPP Regulatory Public Docket (7502P), 
Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South 
Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only 
accepted during the Docket Facility'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 Facility telephone number is (703) 305-5805.

II. Background and Statutory Findings

    In the Federal Register of March 16, 2009 (74 FR 11100) (FRL-8405-
1), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 
U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance 
petition (PP 8E7461) by IR-4, Rutgers University, 500 College Road 
East, Suite 201W., Princeton, NJ 08540, on behalf of the Arizona Cotton 
Research and Protection Council, 3721 East Weir Ave., Phoenix, AZ 
85040-2933. The petition proposes to amend a temporary exemption from 
the requirement of a tolerance in 40 CFR 180.1206(b) for residues of 
the non-aflatoxin-producing microbial antifungal agent, A. flavus AF36, 
in or on pistachio.
    This docket included a summary of the petition prepared by the 
petitioner IR-4 and Arizona Cotton Research and Protection Council. 
There were no comments received in response to the notice of filing.
    Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an 
exemption from the requirement for a tolerance (the legal limit for a 
pesticide chemical residue in or on a food) only if EPA determines that 
the exemption is ``safe.'' Section 408(c)(2)(A)(ii) of FFDCA 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. Pursuant to section 408(c)(2)(B) of FFDCA, in 
establishing or maintaining in effect an exemption from the requirement 
of a

[[Page 26545]]

tolerance, EPA must take into account the factors set forth in section 
408(b)(2)(C) of FFDCA, which require 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....'' 
Additionally, section 408(b)(2)(D) of FFDCA requires that 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.''
    EPA performs a number of analyses to determine the risks from 
aggregate exposure to pesticide residues. First, EPA determines the 
toxicity of pesticides. Second, EPA examines exposure to the pesticide 
through food, drinking water, and through other exposures that occur as 
a result of pesticide use in residential settings.

III. 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.
    The toxicological profile of the microbial pesticide, A. flavus 
AF36 has been previously described in the final rule of the Federal 
Register issue of July 14, 2003 (68 FR 41535) (FRL-7311-6). The 
exemption from tolerance of A. flavus AF36, a non-aflatoxin-producing 
strain of Aspergillus flavus, on cotton was established in 40 CFR 
180.1206. The database supporting that exemption from tolerance also 
supports the temporary exemption of this active ingredient on pistachio 
in 40 CFR 180.1206(b). See the Federal Register issue of May 23, 2007 
(72 FR 28868) (FRL-8129-4).
    The microbial pesticide was neither toxic nor infective via the 
oral and pulmonary routes. It was placed in Toxicity Category IV for 
acute oral effects. The Toxicity Category III designation for acute 
inhalation effects is based on the granular nature of the microbial 
pesticide and the submitted pulmonary studies. This microbial pesticide 
has been used for more than a decade in experimental laboratory and 
field trials and in agricultural practice on cotton in Arizona, 
California, and Texas without any reports of adverse dermal irritation 
or hypersensitivity effects.
    The petitioner now seeks to amend the temporary exemption from the 
requirement of a tolerance for A. flavus AF36 on pistachio in 
accordance with the Experimental Use Permit (EUP), EPA File Symbol 
71693-EUP-1, published in the Federal Register issue of May 23, 2007 
(72 FR 28971) (FRL-8128-8) and to extend it to December 31, 2011.
    No further toxicological data are required for this amended 
temporary exemption from the requirement of a tolerance for A. flavus 
AF36 on pistachio.

IV. Aggregate Exposures

    In examining aggregate exposure, section 408 of FFDCA directs EPA 
to consider available information concerning exposures from the 
pesticide residue in food and all other non-occupational exposures, 
including drinking water from ground water or surface water and 
exposure through pesticide use in gardens, lawns, or buildings 
(residential and other indoor uses).
    For aggregate dietary and other non-occupational exposure and 
cumulative effects, the Agency continues to rely on its previous 
assessments published in the Federal Register, since the extension will 
not change these exposures and risks. See the previously published July 
14, 2003 and May 23, 2007 Federal Register documents cited in Unit III.

V. Determination of Safety for U.S. Population, Infants and Children

    The Agency also relies on the previous assessments published in the 
July 14, 2003 and May 23, 2007 Federal Register documents cited in Unit 
III. to determine that there is reasonable certainty that no harm will 
result from aggregate exposures to residues of the antifungal agent A. 
flavus AF36. Because there are no threshold effects of concern to 
infants, children and adults when A. flavus AF36 is used as labeled, 
the provision requiring an additional margin of safety does not apply. 
As a result, EPA has not used a margin of exposure (safety) approach to 
assess the safety of A. flavus AF36.

VI. Other Considerations

A. Analytical Methods and Endocrine Disruptors

    The Agency continues to rely on its assessment for endocrine 
disruptors and analytical methods in the previously published July 14, 
2003 Federal Register document cited in Unit III.

B. Codex Maximum Residue Level

    There is no Codex Maximum Residue Level (MRL) for residues of A. 
flavus AF36 on pistachio.

VII. Statutory and Executive Order Reviews

    This final rule establishes a tolerance or exemption from a 
tolerance under section 408(d) of 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 final rule has been exempted from review under 
Executive Order 12866, this final rule is not subject to Executive 
Order 13211, entitled Actions Concerning Regulations That Significantly 
Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) 
or Executive Order 13045, entitled Protection of Children from 
Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 
1997). 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., 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).
    Since tolerances and exemptions that are established on the basis 
of a petition under section 408(d) of FFDCA, such as the temporary 
tolerance 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.
    This final rule directly regulates growers, food processors, food 
handlers, and food retailers, not States or tribes, nor does this 
action alter the relationships or distribution of power and 
responsibilities established by Congress in the preemption provisions 
of section 408(n)(4) of FFDCA. As such, the Agency has determined that 
this action will not have a substantial direct effect on States or 
tribal governments, on the relationship between the national government 
and the States or tribal governments, or on the distribution of power 
and responsibilities among the various levels of government or between 
the Federal Government and Indian tribes. Thus, the Agency has 
determined that Executive Order 13132, entitled

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Federalism (64 FR 43255, August 10, 1999) and Executive Order 13175, 
entitled Consultation and Coordination with Indian Tribal Governments 
(65 FR 67249, November 9, 2000) do not apply to this final rule. In 
addition, this final rule does not 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).
    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).

VIII. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report to each House of the Congress and to 
the Comptroller General of the United States. EPA will submit 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 
United States prior to publication of this final rule in the Federal 
Register. This final rule 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 20, 2009.
W. Michael McDavit,
Acting Director, Biopesticides and Pollution Prevention Division, 
Office of Pesticide Programs.

0
Therefore, 40 CFR chapter I is amended as follows:

PART 180--[AMENDED]

0
1. The authority citation for part 180 continues to read as follows:

    Authority: 21 U.S.C. 321(q), 346a and 371.

0
2. Section 180.1206(b) is revised to read as follows:


Sec.  180.1206  Aspergillus flavus AF36, exemption from the requirement 
of a tolerance.

* * * * *
    (b) Aspergillus flavus AF36 is temporarily exempt from the 
requirement of a tolerance on pistachio when used in accordance with 
the Experimental Use Permit, EPA File Symbol 71693-EUP-1. This 
temporary exemption from tolerance expires on December 31, 2011.
* * * * *

[FR Doc. E9-12788 Filed 6-2-09; 8:45 am]
BILLING CODE 6560-50-S