[Federal Register Volume 88, Number 83 (Monday, May 1, 2023)]
[Rules and Regulations]
[Pages 26495-26498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09121]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[EPA-HQ-OPP-2022-0596; FRL-10910-01-OCSPP]


Poly (oxy-1,2-ethanediyl), [alpha],[alpha]'-[[[4-[2-(4-methyl-2-
benzothiazolyl)diazenyl]phenyl]imino]di-2,1-ethanediyl]bis[[omega]-
hydroxy- in Pesticide Formulations; Tolerance Exemption

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This regulation establishes an exemption from the requirement 
of a tolerance for residues of poly (oxy-1,2-ethanediyl), 
[alpha],[alpha]'-[[[4-[2-(4-methyl-2-
benzothiazolyl)diazenyl]phenyl]imino]di-2,1-ethanediyl]bis[[omega]-
hydroxy- (CAS Reg. No. 158172-12-4), herein referred to as polymeric 
red, when used as an inert ingredient (colorant) on growing crops and 
raw agricultural commodities pre- and post-harvest. Milliken Chemical 
submitted a petition to EPA under the Federal Food, Drug, and Cosmetic 
Act (FFDCA), requesting establishment of an exemption from the 
requirement of a tolerance. This regulation eliminates the need to 
establish a maximum permissible level for residues of polymeric red, 
when used in accordance with the terms of the exemption.

DATES: This regulation is effective May 1, 2023. Objections and 
requests for hearings must be received on or before June 30, 2023 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-2022-0596, is available at 
https://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 and the OPP docket is (202) 566-1744. For the latest 
status information on EPA/DC services, docket access, visit https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Charles Smith, Director, Registration 
Division (7505T), Office of Pesticide Programs, Environmental 
Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-
0001; main telephone number: (202) 566-2427; email 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. 
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 40 CFR 
part 180 through the Office of the Federal Register's e-CFR site at 
https://www.ecfr.gov/current/title-40.

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

    Under FFDCA section 408(g), 21 U.S.C. 346a(g), 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-2022-0596 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 
June 30, 2023. 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-2022-0596, by one of 
the following methods:
     Federal eRulemaking Portal: https://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 
20460-0001.
     Hand Delivery: To make special arrangements for hand 
delivery or delivery of boxed information, please follow the 
instructions at https://www.epa.gov/dockets/where-send-comments-epa-dockets#express.
    Additional instructions on commenting or visiting the docket, along 
with more information about dockets generally, is available at https://www.epa.gov/dockets.

II. Petition for Exemption

    In the Federal Register of August 30, 2022 (87 FR 52868) (FRL-9410-
04), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 
346a, announcing the filing of a pesticide petition (PP IN-11672) by 
Milliken Chemical, 920 Milliken Road, M-209, Spartanburg, South 
Carolina 29303. The petition requested that 40 CFR 180.910 be amended 
by establishing an exemption from the requirement of a tolerance for 
residues of polymeric red (CAS Reg. No. 158172-12-4) when used as an 
inert ingredient (colorant) in pesticide formulations applied to 
growing crops or raw agricultural commodities pre- and post-harvest. 
That document referenced a summary of the petition prepared by Milliken 
Chemical, which is available in the docket, https://www.regulations.gov. A comment was received on the notice of filing. 
EPA's response to the comment is discussed in Unit V.B.

III. Inert Ingredient Definition

    Inert ingredients are all ingredients that are not active 
ingredients as defined in 40 CFR 153.125 and include, but are not 
limited to, the following types of ingredients (except when they have a 
pesticidal efficacy of their own): solvents such as alcohols and 
hydrocarbons; surfactants such as polyoxyethylene polymers and fatty 
acids; carriers such as clay and diatomaceous earth; thickeners such as 
carrageenan and modified cellulose; wetting, spreading, and dispersing 
agents; propellants in aerosol dispensers; microencapsulating agents; 
and emulsifiers. The term ``inert'' is not

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intended to imply nontoxicity; the ingredient may or may not be 
chemically active. Generally, EPA has exempted inert ingredients from 
the requirement of a tolerance based on the low toxicity of the 
individual inert ingredients.

IV. Aggregate Risk Assessment and Determination of Safety

    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 tolerance 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. When making a safety determination for an 
exemption from the requirement of a tolerance, FFDCA section 
408(c)(2)(B) directs EPA to take into account the considerations in 
section 408(b)(2)(C) and (D). 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. . . .'' Section 408(b)(2)(D) lists other factors for 
EPA's consideration in making safety determinations, e.g., the 
validity, completeness, and reliability of available data, nature of 
toxic effects, available information concerning the cumulative effects 
of the pesticide chemical and other substances with a common mechanism 
of toxicity, and available information concerning aggregate exposure 
levels to the pesticide chemical and other related substances, among 
other factors.
    EPA establishes exemptions from the requirement of a tolerance only 
in those cases where it can be clearly demonstrated that the risks from 
aggregate exposure to pesticide chemical residues under reasonably 
foreseeable circumstances will pose no harm to human health. In order 
to determine the risks from aggregate exposure to pesticide inert 
ingredients, the Agency considers the toxicity of the inert in 
conjunction with possible exposure to residues of the inert ingredient 
through food, drinking water, and through other exposures that occur as 
a result of pesticide use in residential settings. If EPA is able to 
determine that a finite tolerance is not necessary to ensure that there 
is a reasonable certainty that no harm will result from aggregate 
exposure to the inert ingredient, an exemption from the requirement of 
a tolerance may be established.
    Consistent with FFDCA section 408(c)(2)(A), and the factors 
specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available 
scientific data and other relevant information in support of this 
action. EPA has sufficient data to assess the hazards of and to make a 
determination on aggregate exposure for polymeric red, including 
exposure resulting from the exemption established by this action. EPA's 
assessment of exposures and risks associated with polymeric red 
follows.

A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered their 
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 
children. Specific information on the studies received and the nature 
of the adverse effects caused by polymeric red as well as the no-
observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-
effect-level (LOAEL) from the toxicity studies are discussed in this 
unit.
    Polymeric red exhibits low levels of acute toxicity via the oral 
route of exposure. Based on physical and chemical properties, it is not 
expected to be of concern via the acute dermal and inhalation routes of 
exposure. It is not a skin or eye irritant and it is not expected to be 
a dermal sensitizer. No adverse effects were reported in the combined 
28-day oral with reproduction/developmental toxicity screening study in 
rats. No adverse maternal, reproduction or offspring effects were found 
in this study. No oral chronic or carcinogenicity studies are available 
for review, and structural alerts for potential carcinogenicity due to 
the formation of aromatic amines were identified. However, the concern 
is low for carcinogenicity based on negative results in a modified Ames 
test designed to identify mutagenicity due to the formation of aromatic 
amines, and the lack of toxicity in the available studies. No evidence 
of neurotoxicity or immunotoxicity was seen in the database.

B. Toxicological Points of Departure/Levels of Concern

    Once a pesticide's toxicological profile is determined, EPA 
identifies toxicological points of departure (POD) and levels of 
concern to use in evaluating the risk posed by human exposure to the 
pesticide. For hazards that have a threshold below which there is no 
appreciable risk, the toxicological POD is used as the basis for 
derivation of reference values for risk assessment. PODs are developed 
based on a careful analysis of the doses in each toxicological study to 
determine the dose at which no adverse effects are observed (the NOAEL) 
and the lowest dose at which adverse effects of concern are identified 
(the LOAEL). Uncertainty/safety factors are used in conjunction with 
the POD to calculate a safe exposure level--generally referred to as a 
population-adjusted dose (PAD) or a reference dose (RfD)--and a safe 
margin of exposure (MOE). For non-threshold risks, the Agency assumes 
that any amount of exposure will lead to some degree of risk. Thus, the 
Agency estimates risk in terms of the probability of an occurrence of 
the adverse effect expected in a lifetime. For more information on the 
general principles EPA uses in risk characterization and a complete 
description of the risk assessment process, see https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides.
    The hazard profile of polymeric red is adequately defined. Overall, 
polymeric red is of low acute, subchronic, and developmental toxicity. 
No systemic toxicity is observed up to 1,000 mg/kg/day. Since signs of 
toxicity were not observed, no toxicological endpoints of concern or 
PODs were identified. Therefore, a qualitative risk assessment for 
polymeric red can be performed.

C. Exposure Assessment

    1. Dietary exposure. In evaluating dietary exposure to polymeric 
red, EPA considered exposure under the proposed exemption from the 
requirement of a tolerance. EPA assessed dietary exposures from 
polymeric red in food and drinking water as follows:
    Dietary exposure (food and drinking water) to polymeric red may 
occur following ingestion of drinking water or foods with residues of 
this chemical from their use in accordance with this exemption. 
However, a quantitative dietary exposure assessment was not conducted 
since a toxicological endpoint for risk assessment was not identified.

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    2. From non-dietary exposure. The term ``residential exposure'' is 
used in this document to refer to non-occupational, non-dietary 
exposure (e.g., textiles (clothing and diapers), carpets, swimming 
pools, and hard surface disinfection on walls, floors, tables).
    Polymeric red may be present in pesticide products that may be used 
in and around the home. However, a quantitative residential exposure 
assessment was not conducted since a toxicological endpoint for risk 
assessment was not identified.
    3. Cumulative effects from substances with a common mechanism of 
toxicity. Section 408(b)(2)(D)(v) of FFDCA 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.''
    Based on the lack of toxicity in the available database, EPA has 
not found polymeric red to share a common mechanism of toxicity with 
any other substances, and polymeric red does not appear to produce a 
toxic metabolite produced by other substances. For the purposes of this 
tolerance exemption, therefore, EPA has assumed that polymeric red does 
not have a common mechanism of toxicity with other substances. For 
information regarding EPA's efforts to determine which chemicals have a 
common mechanism of toxicity and to evaluate the cumulative effects of 
such chemicals, see EPA's website at https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

D. Additional Safety Factor for the Protection of Infants and Children

    Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an 
additional tenfold (10X) margin of safety for infants and children in 
the case of threshold effects to account for prenatal and postnatal 
toxicity and the completeness of the database on toxicity and exposure 
unless EPA determines based on reliable data that a different margin of 
safety will be safe for infants and children. This additional margin of 
safety is commonly referred to as the Food Quality Protection Act 
safety factor. In applying this provision, EPA either retains the 
default value of 10X, or uses a different additional safety factor when 
reliable data available to EPA support the choice of a different 
factor.
    Based on an assessment of polymeric red, EPA has concluded that 
there are no toxicological endpoints of concern for the U.S. 
population, including infants and children. Because there are no 
threshold effects associated with polymeric red, EPA conducted a 
qualitative assessment. As part of that assessment, the Agency did not 
use safety factors for assessing risk, and no additional safety factor 
is needed for assessing risk to infants and children.

E. Aggregate Risks and Determination of Safety

    Because no toxicological endpoints of concern were identified, 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 polymeric red residues.

V. Other Considerations

A. Analytical Enforcement Methodology

    An analytical method is not required for enforcement purposes since 
the Agency is establishing an exemption from the requirement of a 
tolerance without any numerical limitation.

B. Response to Comment

    EPA received one comment in response to the notice of filing. The 
comment concerns pesticide use generally and advocates for ``natural'' 
alternatives to chemicals. While the Agency recognizes that some people 
oppose the use of chemicals in or on food commodities, the FFDCA allows 
EPA to establish tolerances and exemptions for residues of pesticides 
in or on food as long as the Agency can determine they are safe. The 
Agency has evaluated the aggregate exposures of polymeric red and has 
determined that there is a reasonable certainty that no harm will 
result to the general population, or to infants and children, from 
aggregate exposure to polymeric red residues. The commenter has 
provided no information to support a conclusion that the exemption from 
the requirement of a tolerance is not safe.

VI. Conclusions

    Therefore, an exemption from the requirement of a tolerance is 
established for residues of poly (oxy-1,2-ethanediyl), 
[alpha],[alpha]'-[[[4-[2-(4-methyl-2-
benzothiazolyl)diazenyl]phenyl]imino]di-2,1-ethanediyl]bis[[omega]-
hydroxy- (CAS Reg. No. 158172-12-4) when used as an inert ingredient 
(colorant) in pesticide formulations applied to growing crops and raw 
agricultural commodities after harvest under 40 CFR 180.910.

VII. Statutory and Executive Order Reviews

    This action establishes 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) or Executive Order 13045, entitled ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997). 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 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

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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).

VIII. 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: April 25, 2023.
Charles Smith,
Director, Registration Division, Office of Pesticide Programs.

    Therefore, for the reasons stated in the preamble, EPA is amending 
40 CFR chapter I as follows:

PART 180--TOLERANCES AND EXEMPTIONS FOR PESTICIDE CHEMICAL RESIDUES 
IN FOOD

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. In Sec.  180.910, amend table 1 to 180.910 by adding, in 
alphabetical order, an entry for ``Poly (oxy-1,2-ethanediyl), 
[alpha],[alpha]'-[[[4-[2-(4-methyl-2-
benzothiazolyl)diazenyl]phenyl]imino]di-2,1-ethanediyl]bis[[omega]-
hydroxy- (CAS Reg. No. 158172-12-4)'' to read as follows:


Sec.  180.910  Inert ingredients used pre- and post-harvest; exemptions 
from the requirement of a tolerance.

* * * * *

                                               Table 1 to 180.910
----------------------------------------------------------------------------------------------------------------
                     Inert ingredients                          Limits                      Uses
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Poly (oxy-1,2-ethanediyl), [alpha],[alpha]'-[[[4-[2-(4-     ..............  Colorant.
 methyl-2-benzothiazolyl)diazenyl]phenyl]imino]di-2,1-
 ethanediyl]bis[[omega]-hydroxy- (CAS Reg. No. 158172-12-
 4).
 
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[FR Doc. 2023-09121 Filed 4-28-23; 8:45 am]
BILLING CODE 6560-50-P