[Federal Register Volume 83, Number 55 (Wednesday, March 21, 2018)]
[Rules and Regulations]
[Pages 12265-12269]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05640]



40 CFR Part 180

[EPA-HQ-OPP-2015-0817; FRL-9974-32]

Flutianil; Pesticide Tolerances

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: This regulation establishes tolerances for residues of 
flutianil in or on multiple commodities that are identified and 
discussed later in this document and an exemption for indirect or 
inadvertent residues of flutianil on other crops rotated into fields 
previously treated with flutianil. OAT AGRIO Company, Ltd. requested 
these tolerances under the Federal Food, Drug, and Cosmetic Act 

DATES: This regulation is effective March 21, 2018. Objections and 
requests for hearings must be received on or before May 21, 2018, 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: The docket for this action, identified by docket 
identification (ID) number EPA-HQ-OPP-2015-0817, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory 
Public Docket (OPP Docket) in the Environmental Protection Agency 
Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 
1301 Constitution Ave. NW, Washington, DC 20460-0001. The Public 
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the OPP 
Docket is (703) 305-5805. Please review the visitor instructions and 
additional information about the docket available at http://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Michael L. Goodis, Registration 
Division (7505P), Office of Pesticide Programs, Environmental 
Protection Agency, 1200

[[Page 12266]]

Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: 
(703) 305-7090; email address: RDFRNotices@epa.gov.


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. 
The following list of North American Industrial Classification System 
(NAICS) codes is not intended to be exhaustive, but rather provides a 
guide to help readers determine whether this document applies to them. 
Potentially affected entities may include:
     Crop production (NAICS code 111).
     Animal production (NAICS code 112).
     Food manufacturing (NAICS code 311).
     Pesticide manufacturing (NAICS code 32532).

B. How can I get electronic access to other related information?

    You may access a frequently updated electronic version of EPA's 
tolerance regulations at 40 CFR part 180 through the Government 
Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 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. 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-2015-0817 in the subject line on the first 
page of your submission. All objections and requests for a hearing must 
be in writing, and must be received by the Hearing Clerk on or before 
May 21, 2018. Addresses for mail and hand delivery of objections and 
hearing requests are provided in 40 CFR 178.25(b).
    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 (excluding any Confidential Business Information (CBI)) for 
inclusion in the public docket. Information not marked confidential 
pursuant to 40 CFR part 2 may be disclosed publicly by EPA without 
prior notice. Submit the non-CBI copy of your objection or hearing 
request, identified by docket ID number EPA-HQ-OPP-2015-0817, by one of 
the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments. Do not submit 
electronically any information you consider to be CBI or other 
information whose disclosure is restricted by statute.
     Mail: OPP Docket, Environmental Protection Agency Docket 
Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 
     Hand Delivery: To make special arrangements for hand 
delivery or delivery of boxed information, please follow the 
instructions at http://www.epa.gov/dockets/contacts.html.

Additional instructions on commenting or visiting the docket, along 
with more information about dockets generally, is available at http://www.epa.gov/dockets.

II. Summary of Petitioned-For Tolerance

    In the Federal Register of April 25, 2016 (81 FR 24044) (FRL-9944-
86), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 
U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 
5F8408) by OAT AGRIO Company, Ltd, 1-3-1 Kanda Ogawa-machi, Chiyoda-ku, 
Tokyo 101-0052, Japan. The petition requested that 40 CFR part 180 be 
amended by establishing tolerances for residues of the fungicide 
flutianil, (2Z)-2-[2-fluoro-5-(trifluoromethyl)phenyl]sulfanyl-2-[3-(2-
methoxyphenyl)thiazolidin-2-ylidene]acetonitrile, in or on apple, fruit 
at 0.2 parts per million (ppm); apple, juice at 0.03 ppm; apple, wet 
pomace at 2 ppm; cantaloupe at 0.07 ppm; cherry, fruit at 0.4 ppm; 
cucumber at 0.02 ppm; grape, fruit at 0.7 ppm; grape, juice at 0.2 ppm; 
grape, raisins at 0.3 ppm; squash at 0.03 ppm; and strawberry, fruit at 
0.3 ppm. That document referenced a summary of the petition prepared by 
OAT AGRIO Company Ltd., the registrant, which is available in the 
docket, http://www.regulations.gov. One comment was received on the 
notice of filing. EPA's response to this comments is discussed in Unit 
    Following the publication of this notice, the petitioner revised 
its petition by revising commodity terms to be consistent with the 
terminology EPA uses for commodities, removing certain processed 
commodities for which specific tolerances are not needed, amending 
tolerance levels, and requesting an exemption to cover inadvertent 
residues. EPA published a notice in the Federal Register of October 12, 
2017 (82 FR 47422) (FRL-9967-09), pursuant to FFDCA section 408(d)(3), 
21 U.S.C. 346a(d)(3), announcing OAT AGRIO Company's amended pesticide 
petition (PP 5F8408). Superseding the original petition, the revised 
petition requested that 40 CFR part 180 be amended by establishing 
tolerances for residues of the fungicide flutianil in or on apple at 
0.15 parts per million (ppm); apple, wet pomace at 0.30 ppm; cantaloupe 
at 0.07 ppm; cherry at 0.40 ppm; cucumber at 0.20; ppm; grape at 0.70 
ppm; squash at 0.05 ppm; and strawberry at 0.50 ppm. Additionally, OAT 
AGRIO Company requested that an exemption from the requirement of a 
tolerance be established in 40 CFR 180 for indirect or inadvertent 
residues of fungicide, flutianil in or on all food commodities for 
which tolerances are not separately established. Comments were received 
on the notice of filing. EPA's response to these comments is discussed 
in Unit IV.C.

III. Aggregate Risk Assessment and Determination of Safety

    Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a 
tolerance (the legal limit for a pesticide chemical residue in or on a 
food) only if EPA determines that the tolerance is ``safe.'' Section 
408(b)(2)(A)(ii) 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. 
Section 408(b)(2)(C) of FFDCA requires EPA to give special 
consideration to exposure of infants and children to the pesticide 
chemical residue in establishing a tolerance and to ``ensure that there 
is a reasonable certainty that no harm will result to infants and 
children from aggregate exposure to the pesticide chemical residue. . . 
    Similarly, FFDCA section 408(c)(2) authorizes EPA to establish an 
exemption from the requirement of a tolerance only if EPA determines 
the exemption is ``safe'', which has the same definition for exemptions 
as for tolerances and requires consideration of the same exposures and 
factors as for tolerances. 21 U.S.C. 346a(c)(2)(B).
    Consistent with FFDCA section 408(b)(2)(D), and the factors 
specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available 
scientific data and other relevant information in support of this 
action. EPA has

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sufficient data to assess the hazards of and to make a determination on 
aggregate exposure for flutianil including exposure resulting from the 
tolerances established by this action. EPA's assessment of exposures 
and risks associated with flutianil follows.
    EPA has evaluated the available toxicity data and considered its 
validity, completeness, and reliability as well as the relationship of 
the results of the studies to human risk. EPA has also considered 
available information concerning the variability of the sensitivities 
of major identifiable subgroups of consumers, including infants and 
    No single or repeated dose study performed by any route of exposure 
produced an adverse effect following flutianil exposure below, at, or 
above the limit dose (1,000 mg/kg/day). The only toxic effect of 
flutianil exposure in the rat 28-day, 90-day, or 104-day oral toxicity 
studies was associated with hyaline droplet formation in the renal 
proximal tubular cells of males. No toxicity was observed in the female 
rats dosed up to the limit dose for comparable time periods. An 
immunohistochemical staining demonstrated that the hyaline droplets in 
the proximal tubular cells were related to the presence of alpha-
2[micro]-globulin, which is not relevant for human toxicity. Based on 
the link to alpha-2[micro]-globulin and the lack of any degenerative or 
other associated effects, the hyaline droplet was not considered 
biologically relevant to humans.
    No toxicity was seen in the developmental, reproductive, 
neurotoxic, or immunotoxic studies for flutianil. No dermal or systemic 
toxicity was observed at the limit dose in the rat 28-day dermal 
toxicity study. Nevertheless, in the rat 28-day inhalation toxicity 
study, increased lung weights in females and histopathological findings 
of minimal nasal mucous cell hypertrophy/hyperplasia and minimal lung 
centriacinar inflammation in males and females were observed at the 
highest dose tested. These observations were consistent with response 
to aerosol exposure to an airway irritant. The nasal mucous cell 
hypertrophy/hyperplasia is considered the physiological response of 
these cells to irritant; however, the increased lung weights and 
cellular inflammation reflect some degree of edema in air spaces, and 
inflammation in the lung could affect airway responsiveness and 
pulmonary function. Therefore, the increased lung weights in females 
and lung lesions in both sexes were considered adverse effects. 
Flutianil is classified as ``Not Likely to be Carcinogenic to Humans'' 
based on lack of evidence of carcinogenicity in rats and mice and no 
evidence of mutagenicity. Flutianil produced no genotoxicity.
    Specific information on the studies received and the nature of the 
adverse effects caused by flutianil as well as the no-observed-adverse-
effect-level (NOAEL) and the lowest-observed-adverse-effect-level 
(LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document ``Flutianil. Draft Human Risk 
Assessment to Support New Uses for a New Active Ingredient, Flutianil 
on Apple, Cantaloupe, Cherry, Cucumber, Grape, Summer Squash, and 
Strawberry'' dated November 1, 2017 in docket ID number EPA-HQ-OPP-
    Based on the analysis of the available flutianil toxicological 
studies, there is no adverse toxicity from oral exposures seen in any 
of the required submitted toxicology studies. No toxicity endpoint and 
point of departure for regulating dietary exposure is established for 
the human health risk assessment. There are no registered or proposed 
residential uses at this time for flutianil; therefore, residential 
handler and post-application exposure and risk were not assessed.
    Flutianil is proposed for use on a variety of crops. Humans could 
potentially be exposed to flutianil residues in food because flutianil 
may be applied directly to growing crops. These applications can also 
result in flutianil reaching surface and ground water, both of which 
can serve as sources of drinking water. There are no proposed uses in 
residential settings; therefore, there are no anticipated residential 
    Based on the toxicological profile of flutianil, EPA has concluded 
that the FFDCA requirements to retain an additional safety factor for 
protection of infants and children and to consider cumulative effects 
do not apply. Section 408(b)(2)(C) of the FFDCA (21 U.S.C. 346a) 
requires an additional tenfold margin of safety in the case of 
threshold risks, which are not present in this case. Section 
408(b)(2)(D)(v) of the FFDCA requires consideration of information 
concerning cumulative effects of substances that have a common 
mechanism of toxicity, which flutianil does not have.
    Based on the available data indicating a lack of adverse effects 
from exposure to flutianil, EPA concludes that there is a reasonable 
certainty that no harm will result to the general population, or to 
infants and children from aggregate exposure to flutianil.

IV. Other Considerations

A. Analytical Enforcement Methodology

    The gas chromatography-mass spectrometry detector (GC/MSD) is used 
to measure and evaluate the chemical flutianil on apples, cantaloupe, 
cherry, cucumber, squash, and strawberry. The high performance liquid 
chromatography with tandem mass spectral detection (LCMS/MS) is used to 
measure and evaluate the chemical flutianil and the metabolite OC-56635 
in grapes.
    Adequate enforcement methodology (gas chromatography) is available 
to enforce the tolerance expression.

B. International Residue Limits

    In making its tolerance decisions, EPA seeks to harmonize U.S. 
tolerances with international standards whenever possible, consistent 
with U.S. food safety standards and agricultural practices. EPA 
considers the international maximum residue limits (MRLs) established 
by the Codex Alimentarius Commission (Codex), as required by FFDCA 
section 408(b)(4). The Codex Alimentarius is a joint United Nations 
Food and Agriculture Organization/World Health Organization food 
standards program, and it is recognized as an international food safety 
standards-setting organization in trade agreements to which the United 
States is a party. EPA may establish a tolerance that is different from 
a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain 
the reasons for departing from the Codex level.
    The Codex has not established a MRL for flutianil.

C. Response to Comments

    Several comments were received, although many simply expressed 
concern about the use of pesticides on food generally. While EPA 
recognizes that some individuals oppose the use of pesticides in or on 
food, the FFDCA authorizes EPA to establish tolerances or exemptions 
where it determines that doing so is safe. As required by the FFDCA, 
EPA conducted a comprehensive assessment of flutianil, including its 
potential for carcinogenicity. Based on its assessment of the available 
data, the Agency believes that given the observed lack of toxicity of 
this chemical, no risks of concern are expected. Therefore, EPA 
concludes that the tolerances and exemption are safe and can be 
supported. The commenters did not provide any information to indicate 

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    Some comments (i.e., comments from the Center for Biological 
Diversity (CBD)) were not relevant to this action because they raised 
issues concerning compliance with the Endangered Species Act (ESA) and 
the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which 
is not relevant to the determination needed to support tolerance 
actions under the FFDCA.
    Comments were received on the potential of flutianil to harm humans 
based on the human health and environmental toxicity findings of the 
European Food Safety Authority (EFSA). Although concerns were raised in 
the EFSA report about the potential for carcinogenicity and 
reproductive toxicity of flutianil, EPA has received additional data on 
flutianil supporting the Agency's conclusions of a lack of 
carcinogenicity or reproductive toxicity. Therefore, EPA concludes that 
it has sufficient data to address the concerns raised by the EFSA 
assessment and support its safety finding for flutianil. For further 
information concerning these studies, see the ``Final Registration 
Decision for the New Active Ingredient Flutianil: A Fungicide for Use 
on Apples, Cantaloupes, Cherries, Cucumbers, Grapes, Squash, and 
Strawberries'' [Docket ID Number EPA-HQ-OPP-2015-0817].

V. Conclusion

    Although the lack of toxicity supports a safety finding for an 
exemption from the requirement of tolerance for all crops. EPA is 
establishing numerical tolerances for residues resulting from direct 
applications to certain commodities because the petitioner requested 
them for international trade purposes. Therefore, tolerances are 
established for residues of flutianil, (2Z)-2-[2-fluoro-5-
ylidene]acetonitrile, in or on apple at 0.15 ppm; apple, wet pomace at 
0.30 ppm; cantaloupe at 0.07 ppm; cherry at 0.40 ppm; cucumber at 0.20 
ppm; grape at 0.70 ppm; squash at 0.05 ppm; and strawberry at 0.50 ppm.
    Additionally, an exemption from the requirement of a tolerance is 
established for indirect or inadvertent residues of flutianil, (2Z)-2-
methoxyphenyl)thiazolidin-2-ylidene]acetonitrile, in or on all food 
commodities, except for those commodities with tolerances established.

VI. Statutory and Executive Order Reviews

    This action establishes tolerances and an exemption from the 
requirement of a tolerance 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). Because this action has been exempted from review 
under Executive Order 12866, this action 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); Executive Order 13045, entitled ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997); or Executive Order 13771, entitled ``Reducing 
Regulations and Controlling Regulatory Costs'' (82 FR 9339, February 3, 
2017). This action 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 FFDCA section 408(d), such as the tolerances and 
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 action 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 FFDCA section 408(n)(4). 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 ``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 action. In addition, this 
action does not impose any enforceable duty or contain any unfunded 
mandate as described under Title II of the Unfunded Mandates Reform Act 
(UMRA) (2 U.S.C. 1501 et seq.).
    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 (NTTAA) (15 U.S.C. 272 note).

VII. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
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 
the rule in the Federal Register. This action 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 8, 2018.
Richard P. Keigwin, Jr.,
Director, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:


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

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

2. Add Sec.  180.697 to subpart C to read as follows:

Sec.  [emsp14]180.697  Flutianil; tolerances for residues.

    (a) General. Tolerances are established for the combined residues 
of the fungicide flutianil, including its metabolites and degradates in 
or on food commodities in the table below. Compliance with the 
tolerance levels specified below is to be determined by measuring only 
flutianil, (2Z)-2-[2-fluoro-5-(trifluoromethyl)phenyl]sulfanyl-2-[3-(2-
methoxyphenyl)thiazolidin-2-ylidene]acetonitrile in or on the following 

                                                               Parts per
                          Commodity                             million
Apple.......................................................        0.15
Apple, wet pomace...........................................        0.30
Cantaloupe..................................................        0.07

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Cherry......................................................        0.40
Cucumber....................................................        0.20
Grape.......................................................        0.70
Squash......................................................        0.05
Strawberry..................................................        0.50

    (b) Section 18 emergency exemptions. [Reserved]
    (c) Tolerances with regional registrations. [Reserved]
    (d) Indirect or inadvertent residues. [Reserved]

3. Add Sec.  180.1354 to subpart D to read as follows:

Sec.  [emsp14]180.1354  Flutianil; exemption from the requirement of a 

    An exemption from the requirement of a tolerance is established for 
indirect and inadvertent residues of the fungicide flutianil, including 
its metabolites and degradates, in or on all food commodities not 
listed in Sec.  180.697(a), when residues are present therein as a 
result of uptake by crops rotated into fields containing the crops in 
Sec.  180.697(a) that were previously treated with flutianil.

[FR Doc. 2018-05640 Filed 3-20-18; 8:45 am]