Aspergillus flavus NRRL 21882; Exemption from the Requirement of
a Tolerance
[Federal Register: June 30, 2004 (Volume 69, Number 125)]
[Rules and Regulations]
[Page 39341-39350]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30jn04-6]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 180
[OPP-2004-0164; FRL-7364-2]
Aspergillus flavus NRRL 21882; Exemption from the Requirement of
a Tolerance
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This regulation establishes an exemption from the requirement
of a tolerance for residues of the microbial active ingredient
Aspergillus flavus NRRL 21882 on peanuts when applied/used in
accordance with label directions. Circle One, One Arthur Street, PO Box
28, Shellman, GA 39886-0028 submitted a petition to EPA under the
Federal Food, Drug, and Cosmetic Act (FFDCA), as amended by the Food
Quality Protection Act of 1996 (FQPA), requesting an exemption from the
requirement of a tolerance. This regulation eliminates the need to
establish a maximum permissible level for residues of Aspergillus
flavus NRRL 21882 on peanuts.
DATES: This regulation is effective June 30, 2004. Objections and
requests for hearings must be received on or before August 30, 2004.
ADDRESSES: To submit a written objection or hearing request follow the
detailed instructions as provided in Unit VIII. of the SUPPLEMENTARY
INFORMATION. EPA has established a docket for this action under Docket
ID number OPP-2004-0164. All documents in the docket are listed in the
EDOCKET index at http://www.epa.gov/edocket. Although listed in the
index, some information is not publicly available, i.e., 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 either electronically in
EDOCKET or in hard copy at the Public Information and Records Integrity
Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis
Hwy., Arlington, VA. This docket facility is open 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: Shanaz Bacchus, Biopesticides and
Pollution Prevention Division (7511C), Environmental Protection Agency,
1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone
number: (703) 308-8097; e-mail address: bacchus.shanaz@epa.gov.
[[Page 39342]]
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. 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 and Other
Related Information?
In addition to using EDOCKET (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/. A frequently updated electronic version of 40 CFR part 180
is available at E-CFR Beta Site Two at http://www.gpoaccess.gov/ecfr/.
II. Background and Statutory Findings
In the Federal Register of March 17, 2004, (69 FR 12659-12664)
(FRL-7348-8), EPA issued a notice pursuant to section 408(d)(3) of the
FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide
tolerance petition (PP 4F6815) by Circle One, One Arthur Street, PO Box
28, Shellman, GA 39886-0028. This notice included a summary of the
petition prepared by the petitioner, Charlie Rose.
The petition requested that 40 CFR part 180 be amended by
establishing an exemption from the requirement of a tolerance for
residues of Aspergillus flavus NRRL 21882 on peanuts.
EPA received seven comments in response to the Notice of Filing.
Six of those comments were from farmers who support the use of
Aspergillus flavus NRRL 21882 to reduce aflatoxin contamination of
peanuts. Among their comments in support of the pesticide, these
farmers noted the tremendous cost, in excess of $25 million dollars per
year, to manage aflatoxin contamination of peanuts. The Agency is
working expeditiously to evaluate the data submitted to support
registration of the active ingredient Aspergillus flavus NRRL 21882 and
this Final Rule granting an exemption from the requirement of a
tolerance is part of that process.
The seventh comment raised a number of issues and concerns. First,
the commentor objected to the publication of the applicant's data
summaries submitted with the petition prior to EPA's evaluation of such
data and viewed the Notice of Filing as an attempt to obtain approval
with insufficient information. This commentor appears to misunderstand
the nature and purpose of a Notice of Filing. Under section 408(d)(3)
of the FFDCA, EPA is required to publish a notice of the filing of a
petition seeking the establishment of a tolerance or an exemption from
the requirement of a tolerance. That notice must contain an applicant-
prepared ``informative summary'' of the data, information, and
arguments provided by the applicant in support of its petition. (See
FFDCA sec. 408(d)(2)A)(i)(I)). The Notice of Filing is published in the
Federal Register prior to the Agency's evaluation of the petition and
the data submitted in support of that petition. Once EPA has evaluated
the petition and all supporting data, EPA issues a final rule, such as
this one, which includes EPA's assessment of the applicant's
submissions, as they relate to dietary risk, and EPA's determination
vis-a-vis the requested tolerance or tolerance exemption. The Notice of
Filing, in and of itself, is not an indication of whether the sought
tolerance or tolerance exemption will, in fact, be granted by the
Agency.
Second, the commentor objected to the applicant's animal test
reports and the number and duration of the studies underlying those
reports, and to the applicants' requests to waive data. With respect to
the animal tests, the commentor also suggested that human cell testing
or testing on humans should be done instead. EPA regulates pesticides
according to peer-reviewed and publicly available guidelines that
describe endpoints for human health risk assessment. Tests are
conducted with the active ingredient or end-use product in surrogate
animals, through various routes of administration (i.e., oral, dermal,
pulmonary, etc.). Any effects seen are reported to the Agency, peer-
reviewed, and evaluated to determine whether the effects of the test
material demonstrate infectivity, acute toxicity, or pathogenicity.
While tests in some human cell-lines are available, they may not always
be applicable, and may not assist the Agency in making as accurate an
assessment of the hazards and risks posed by the use of the pesticide
as can be done with surrogate animal tests. Both positive and adverse
effects are reported by the applicant so that toxicological concerns
for human health and environmental risk assessment can be identified
and mitigated according to sound scientific practice and taking into
account the exposure levels and risks associated with the pesticide. If
further testing is required to fully evaluate any hazard and risks
posed by the test material under proposed use patterns, the registrant
must submit the appropriate additional data to satisfy EPA's published
guideline requirements. EPA does not deviate from these guidelines
without good reason, and does so for data waiver requests only when
sound scientific consensus on the provided data waiver rationale is
reached. In this case, and as discussed more thoroughly below (see Unit
III.5. and 6.), EPA granted the requested waivers only after
determining that the rationales provided in support of those waiver
requests were acceptable.
Third, the commentor asserted that dermal sensitivity to this
product is already known to exist, and that more of it is not needed.
While there is a potential for dermal sensitivity to the Aspergillus
group of fungi, the specific pesticide at issue here, Aspergillus
flavus NRRL 21882, is not intended for residential applications.
Instead, it is to be applied to commercial agricultural fields in
accordance with the requirements of the applicable Worker Protection
Standards. Workers are protected from potential dermal and inhalation
exposure to the pesticide by appropriate Personal Protective Equipment
(PPE) as required on the label (see Unit III.4.). Pesticide drift is
not expected from the application of the granular End-use Product which
is applied at a very low rate (approximately 1 gram or 0.002 pound of
active ingredient per acre). Thus, non-occupational residential
exposure is expected to be minimal to non-existent, and occupational
exposure is mitigated (see Unit IV.B).
Finally, the commentor objected to the statement by the applicant
that this application is not likely to increase the
[[Page 39343]]
natural concentration of Aspergillus in water, and thus is not
considered to be a risk for drinking water. As discussed below, EPA's
evaluation of the acute oral studies conducted in rodents indicate no
toxicity or pathogenicity via oral exposure to this pesticide, which
includes exposure via drinking water (see Unit III.). Furthermore, this
pesticide is not applied directly to water, but to the soil in drought
ridden regions where accumulation in water is not likely to occur. In
addition, Aspergillus flavus NRRL 21882 is expected to displace native
aflatoxin-producing Aspergillus fungi at the sites of application, thus
reducing the potential hazards posed by these ubiquitous toxigenic
fungi. For a more complete discussion of EPA's findings regarding
Aspergillus flavus NRRL 21882 and drinking water, see Unit IV.A.2.
below.
Having thus addressed the comments received in response to the
Notice of Filing and the summary of the petition contained therein
seeking an exemption from the requirement of a tolerance for
Aspergillus flavus NRRL 21882, the remainder of this Final Rule
summarizes EPA's review and consideration of that tolerance exemption
request. The Biopesticide and Pollution Prevention Division (BPPD)
review documents referred to below are discussed in more detail in the
Biopesticide Registration Action Document (BRAD) which will be made
available in the docket.
Section 408(c)(2)(A)(I) of the 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 the 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), in
establishing or maintaining in effect an exemption from the requirement
of a tolerance, EPA must take into account the factors set forth in
section 408(b)(2)(C), 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 the 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 the 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.
Aspergillus flavus NRRL 21882 is a non-aflatoxin-producing fungal
active ingredient that will be used to displace the ubiquitous
Aspergillus flavus group of microbes, many of which can produce
aflatoxin, a potent carcinogen. The pesticide is proposed for a single
ground application once a year at the pre-pegging stage of peanuts to
displace aflatoxin-producing strains of Aspergillus flavus from that
food commodity. Summaries of eight field trials reported to the Agency
support the claim that Aspergillus flavus NRRL 21882 reduces aflatoxin
contamination in field-grown peanuts. Aflatoxin was measured in shelled
and unshelled peanuts by High Pressure Liquid Chromatography (HPLC).
Five of the trials used the active ingredient in combination with
another Aspergillus flavus strain and did not use the product label
application rate. The remaining three trials, using Aspergillus flavus
NRRL 21882 alone at rates as required by the guidelines or Agency,
reduced the aflatoxin content of treated peanuts by 71% to 98%,
compared to that of untreated controls (Master Record Identification
(MRID) Number 46196805, BPPD Data Evaluation Record (DER) dated May 5,
2004, hereinafter referred to as ``BPPD DER 05/05/04;'' also Unit
VII.D.). These multiyear efficacy studies of small plot field trials
demonstrate that aflatoxin is reduced by 71% to 98% in peanuts treated
with Aspergillus flavus NRRL 21882 (MRID 46196805; BPPD DER 05/05/
2004).
Aspergillus flavus NRRL 21882 is not vegetatively compatible with
known aflatoxin-producing strains of Aspergillus flavus, and thus, may
not exchange genetic material with the latter. Other members of the
Aspergillus group have been domesticated and are used to provide
products for human consumption. Examples include Aspergillus niger as a
source of alpha-galactosidase enzyme found in Beano, and Aspergillus
oryzae as used for production of soy sauce and miso. Aspergillus flavus
NRRL 21882 is identified by vegetative compatibility group (VCG) assays
and characterized as non-aflatoxin-producing by standard thin layer
chromatography (TLC) and HPLC procedures.
Product characterization data submitted in January 2004, for
Aspergillus flavus NRRL 21882 confirmed the absence of aflatoxin
metabolites (B1, B2, G1, and G2), and cyclopiazonic acid (CPA) MRID
46196801, BPPD DER dated 05/06/2004a, hereinafter referred to as ``BPPD
DER 05/06/2004a''). In addition, the technical grade active ingredient
(TGAI) manufacturer routinely conducts standard microbiological assays
on Aspergillus flavus NRRL 21882 to monitor for bacterial and fungal
human pathogens. Starting materials for End-use Product manufacture are
also routinely analysed using appropriate quality assurance and quality
control methods. Analytical methods exist for batches of Aspergillus
flavus NRRL 21882 conidia to assay for potential aflatoxins,
metabolites, CPA, bacterial contaminants, and bacterial pathogens, and
are acceptable (BPPD DER, 05/06/2004a). The applicant must maintain
appropriate quality assurance and quality control measures to ascertain
product integrity and quality. Any batch of the pesticide with
aflatoxins, unintentional metabolites, human pathogens or other
contaminants above regulatory levels must be destroyed, as required for
quality control.
EPA analyzes the data submitted by an applicant to determine the
risks from aggregate exposure to pesticide residues. The following
discussion of the evaluations of the submitted studies and information
for Aspergillus flavus NRRL 21882 indicates that exposure to the
pesticide is not likely to be greater than that which occurs normally
to other ubiquitous Aspergillus flavus strains. As discussed below,
reviews of the data submitted by the applicant indicate no toxicity,
infectivity or pathogenicity in mammalian acute oral and pulmonary
studies using Aspergillus flavus NRRL 21882 as test material. Thus, for
the purposes of this tolerance exemption
[[Page 39344]]
action, EPA has concluded that there is a reasonable certainty that no
harm to human adults, infants or children will result from aggregate
exposure to residues of Aspergillus flavus NRRL 21882, including all
anticipated dietary exposures and all other exposures for which there
is reliable information.
1. Acute oral toxicity/pathogenicity (MRID 45884002; OPPTS
885.3050; Guideline 152-30). In an acute oral toxicity study conducted
in male and female rats for 14 days, the test material contained 50%
Aspergillus flavus NRRL 21882, and 50% of another Aspergillus strain.
The male and female LD50 for this test material was greater
than 5,000 milligrams per kilogram (mg/per/kg). There were no
mortalities, or gross abnormalities, upon necropsy. Anogenital
staining, soft feces, and/or colored material around the nose was
observed in some animals to Day 2. This study was considered acceptable
for the material tested, which contained 50% Aspergillus flavus NRRL
21882 (MRID 45884002; BPPD Data Evaluation Record dated July 16, 2003,
hereinafter referred to as BPPD DER 07/16/2003). A further test with
the TGAI was required to fulfil Agency guideline requirements for the
proposed use of products containing Aspergillus flavus NRRL 21882 as
the active ingredient.
In a subsequent study, 23 male and 23 female rats were treated by
gavage with the TGAI, Aspergillus flavus NRRL 21882, and observed for
22 days (MRID 46196802; BPPD DER dated May 06, 2004b, hereinafter
referred to as BPPD DER 05/06/2004b). Body weights were recorded on
days 1 (prior to dosing), 4, 8, 15, and 22. The test animals were
observed for clinical signs of toxicity shortly after, and then hourly
after dosing and twice on subsequent days. Fecal samples from Group 4
rats were collected on days 4, 8, 15, and 22. The animals were
sacrificed and necropsied. Recovery of viable Aspergillus flavus NRRL
21882 from blood, organs, intestinal contents, and feces was determined
by serial decimal dilution, plating and incubation at 30-35 [deg]C for
a minimum of 48 hours.
All animals gained weight during the study. No treatment-related
clinical signs were observed. No abnormal findings were noted at any
necropsy interval. Low numbers of viable Aspergillus flavus NRRL 21882
were recovered from the intestinal contents (stomach, small intestine,
or cecum) of Group 1 animals on day 4. There was one male in Group 2
that had low numbers of viable test organism in the small intestine and
cecum on day 8. Clearance from feces and cecum was established at day
14. Low numbers of viable Aspergillus flavus NRRL 21882 were found in
the feces from Group 4 treated rats on day 4. No test organisms were
detected in any organ or blood from any group. Under these conditions,
insufficient viable test organisms were recovered from the test samples
to determine rate of clearance. Aspergillus flavus NRRL 21882 does not
appear to be toxic, infective, and/or pathogenic in rats, when dosed
orally at 2.35-3.80 x 108 CFU/animal. The pesticide was
considered Toxicity Category IV. No further study is required for this
guideline for the proposed use of the active ingredient (BPPD DER 05 /
06/2004b) .
2. Acute pulmonary toxicity/pathogenicity (MRID 45884003; OPPTS
885.3150). In a 22-day acute pulmonary toxicity/pathogenicity study
(MRID 45884003), young adult rats (17 per sex) were administered a
suspension of Aspergillus flavus NRRL 21882 in a single dose by
intratracheal instillation at 5.77 - 7.20 x 107 CFU per
animal. No mortalities or evidence of pathogenicity due to Aspergillus
flavus NRRL 21882 was seen. Transient respiratory signs (rales and/or
irregular respiration) were observed in some treated rats up to 1 hour
post-dosing. A single mortality on Day 2 probably was not due to
Aspergillus flavus NRRL 21882 and may have been caused by the mechanism
of dosing. There was no evidence of treatment-related effects on body
weight or temperature, or that Aspergillus flavus NRRL 21882
proliferated or was infective in treated rats. Viable Aspergillus
flavus NRRL 21882 was recovered in lung tissue in five of six animals
sacrificed 1 hour post-dosing (102 - 106 CFU per
g tissue) and in the lungs of the single rat that died on Day 2
(104 CFU per gram). No viable organisms were found in any
other tissues or organs examined during the remainder of the study.
Aspergillus flavus NRRL 21882 was reported in feces of two of five
males studied (12 and 357 CFU per gram) and 3 of 5 females studied (10,
77, and 64,400 CFU per gram) only on Day 4 and this was thought to
occur from active muco-ciliary lung clearance of Aspergillus flavus
NRRL 21882. The rate of clearance of viable Aspergillus flavus NRRL
21882 was not calculated because no viable organisms were recovered in
any sample past the day of dosing, except from lungs of a single
mortality on day 2. This study was considered acceptable and the
pulmonary LD50 is greater than 5.77 - 7.20 x 107
CFU per animal (BPPD DER, 07/16/2003). No further study is required for
this guideline.
3. Acute inhalation (MRID 45884003; OPPTS 885.3150; Guideline 152-
32). Based on the low toxicity potential of the acute pulmonary
toxicity/pathogenicity test described above (MRID 45884003; OPPTS
885.3150, BPPD DER, 07/16/2003), an acute inhalation study was not
required, per 40 CFR 158.740(c)(i). The granular End-use Product (EP)
consists mainly of hulled barley (approximately 96%), which are larger
than 10 micron respirable particles. While the Aspergillus flavus NRRL
21882 conidia may be less than 10 micron in size, they are formulated
into the EP with food-grade inerts which function to adhere the conidia
to the hulled barley. The food grade inerts are also not likely to pose
an inhalation hazard based on their particle size and adherence to the
carrier. Furthermore, this pesticide is to be applied once per season
to commercial and agricultural fields, and not in residential settings.
The low rates of application to the soil and the granular nature of the
pesticide minimize non-occupational (as well as occupational)
inhalation exposure, as discussed below. Nevertheless, a dust/mist
filtering respirator with NIOSH prefix N-95, R-95 or P-95 is required
to mitigate against occupational exposure because of the microbial
nature of the pesticide.
4. Intravenous, intracerebral, intraperitoneal injection (OPPTS
Harmonized Guideline 885.3200; MRIDs 45884004, 46223901; Guideline 152-
33). In an injection toxicity/pathogenicity study, young adult rats
(three per sex) were given an intraperitoneal injection with a single
dose-suspension of Aspergillus flavus NRRL 21882, suspended in a
solution containing Tween, at approximately 107 CFU per
animal. All animals treated with the active substance died or were
sacrificed for humane reasons on Day 5 - 6 when treated animals showed
severe clinical signs (i.e. piloerection, hunched posture, abnormal
gait or reduced body tone and underactive behavior) with lack of
pyrogenic response. Similar post-mortem findings were observed in
animals treated with either heat-inactivated or live Aspergillus flavus
NRRL 21882 (i.e., white nodules and adhesions on a number of organs).
High levels (greater than 10,000 CFU per g) of Aspergillus flavus NRRL
21882 were found in the spleen or liver of animals that died naturally
and from the sole animal sacrificed on day 5. The LD50 for
the test material was considered less than 107 CFU per
animal (MRID 45884004; BPPD DER 07/16/2003). This study was considered
supplemental,
[[Page 39345]]
with some effects probably due to the presence of Tween in the test
dose. The claimed lack of infectivity in moribund or deceased rats is
inconclusive due to an unknown etiology.
A second study, submitted in January 2004 (MRID 46223901), was
conducted with 22 male and 22 female rats. Treated groups received 1.13
- 1.47 x 107 CFU/rat Aspergillus flavus NRRL 21882 without
Tween 80, by intraperitoneal injection (i.e. directly into the
abdominal cavity of the animal to demonstrate the worst case scenario
under which exposure may occur). One of the control groups received a
sterile culture filtrate and other controls received either autoclaved
test material, or no treatment. Animals were observed over a 22 day
period. No test organisms were detected in any samples from the
controls. Viable Aspergillus flavus NRRL 21882 was below detection (< 10
CFU/mL) in blood at all sample times. At 1 hour after dosing, the test
organism was detected in the kidneys, spleen, liver, heart, lungs,
mesenteric lymph nodes and intestinal contents of treated rats, but was
below detection (< 10 CFU/mL) in the brain. By day 4, viable counts were
still high in the spleen but decreased in other organs, while low
levels of viable Aspergillus flavus NRRL 21882 were found in the brain
of 3 out of 6 rats. By day 8, clearance was observed from all tissues
in the males, and from most tissues except the spleen and mesenteric
lymph nodes of females, which cleared by day 22. Clearance from
intestinal contents and feces occurred in males prior to day 8, and in
females by day 22. After the 22 day period, clearance had occurred from
all tissues and samples (MRID 46223901).
One female treated with viable Aspergillus flavus NRRL 21882 was
sacrificed on day 7 because of severe clinical effects. No unscheduled
deaths were observed in any other group. Lower overall mean body weight
gains in one group were not considered due to the viable test organism,
but may have been attributable to experimental fecal sampling
procedures only performed on this group (BPPD Review dated May 6,
2004a). The treated female who was euthanized on day 7 showed head
tilting and leaning with an abnormal gait and circling. Other clinical
signs included head tilting/leaning in two animals, repetitive head
turning in one animal and limited use of rear limbs in one animal. The
study director concluded that head tilting and circling in one male,
and head tilting in one female, were probably related to the viable
test organism (BPPD Review dated May 6, 2004a). Clinical signs did not
clear from 3 of 6 remaining animals at study termination on day 22.
Based on this study, which was considered acceptable by the Agency,
Aspergillus flavus NRRL 21882 was considered infective and pathogenic
to rats by intraperitoneal administration with an IP LD50 >
1.13 - 1.51 x 107 CFU/rat.
While the results of this IP test suggest potential infectivity via
serious injury as reflected by an intraperitoneal route of exposure, it
is important to note that clearance was observed from all tissues of
surviving animals in this IP study, a finding consistent with all the
other toxicology studies reported above. More importantly, the results
of this IP test, while relevant to issues of occupational exposure, are
not relevant to this tolerance exemption determination, which focuses
on non-occupational exposure. Indeed, the acute oral studies reported
above, which are directly relevant to an analysis of dietary, non-
occupational exposure, indicate no infectivity or pathogenicity. In
addition, if the pesticide is used as labeled (approximately 1 gram
active ingredient per acre), much lower levels of non-occupational
exposure are expected when peanuts are consumed than can be
extrapolated from the IP test, in which the test substance was
administered directly into the abdominal cavity at a rate of
107 CFU/animal. Moreover, the pesticide is not to be applied
to residential areas, but rather only to commercial peanut fields, and
any potential pesticide residues on treated peanuts are further
mitigated by processing as described in Unit IV. Furthermore, the
inerts are food grade and cause the active ingredient to adhere to the
carrier (hulled barley), thus minimizing pesticide drift or transfer of
residues. Finally, and as mentioned previously, Aspergillus flavus
species occur naturally in the environment and non-occupational or
residential exposures are expected to be no greater than that expected
from background Aspergillus flavus levels. All of these factors and
considerations minimize non-occupational exposure and allow the Agency
to conclude that the dietary risks posed by the use of this pesticide
are likely to be minimal and that there is a reasonable certainty that
no harm will result from use of this microbial agent.
It should be clarified, however, that in connection with the
Agency's consideration of Aspergillus flavus NRRL 21882 for purposes of
registration, as distinct from this tolerance exemption action, the
Agency has considered the worst case scenario in which similar types of
IP occupational exposures may occur. The relevance of this IP test is
to seriously injured workers or to those who may come in contact with
the pesticide through a similar route of exposure intraperitoneally. As
previously stated, the granular pesticide is applied at a very low rate
to the soil with little or no pesticide drift. Worker exposure is
minimized by the use of PPE that includes long sleeve shirt, long
pants, shoes, socks, waterproof gloves, eye protection and an
appropriate dust/mist filtering respirator with the NIOSH prefix N-95,
P-95, or R-95. Early-entry workers, engaged in post-application
activities, must wear this PPE when entering treated fields during the
4 hour Restricted-Entry Interval (REI).
5. Hypersensitivity incidents (MRID 46196804; OPPTS Harmonized
Guideline 870.3400; Guideline 152-37). Personnel at the USDA
Agricultural Research Service National Peanut Research Laboratory have
been working with different strains of Aspergillus flavus since 1987
and have performed numerous studies in laboratory and field settings
with the active ingredient, Aspergillus flavus NRRL 21882, with no
reported adverse effects. In addition, there are no data that suggest
this strain is more or less likely to induce hypersensitivity than
other naturally occurring strains of Aspergillus flavus (MRID 46196804;
BPPD DER 05/06/2004c). However, in the future and in order to comply
with FIFRA section 6(a)(2) requirements (see also 40 CFR 159.152), any
incident of hypersensitivity associated with the use of this pesticide
must be reported to the Agency.
6. Data waivers. i. A request was submitted to waive data for the
acute oral toxicity/pathogenicity study for the EP, afla-guardT (OPPTS
885.3050; Guideline 152-30). The waiver request was based on the
acceptable results of the acute oral toxicity/pathogenicity studies
conducted with the TGAI (summarized above) and the nature of the
inerts, which are exempt from the requirement of a tolerance according
to 40 CFR 180.950(a) and 40 CFR 180.1001 (redesignated as 40 CFR
180.900, 180.905, 180.910, 180.920, and 180.930, April 28, 2004, 69 FR
23113). Since the EP contains 0.01% of the TGAI, this rationale was
acceptable to the Agency and the data requirement for the acute oral
toxicity/pathogenicity study for the EP was waived (BPPD Memorandum,
May 28, 2004). In addition, as discussed above, an acute oral study
conducted with test material containing 50% Aspergillus flavus NRRL
21882 (MRID 45884002; BPPD DER 07/16/2003) and the same inerts as the
test material was considered acceptable. No further data
[[Page 39346]]
are required for this guideline for the proposed use of the EP.
ii. Data waivers were also requested for the following studies for
both the TGAI and the EP:
a. Acute dermal toxicity/pathogenicity (OPPTS Harmonized Guideline
885.3100; Guideline 152-31).
b. Primary dermal irritation (OPPTS Harmonized Guideline 870.2500;
Guideline 152-34).
c. Primary eye irritation (OPPTS Harmonized Guideline 870.2400;
Guideline 152-35).
d. Hypersensitivity Study (OPPTS Harmonized Guideline 870.3400;
Guideline 152-37).
e. Immune Response (OPPTS Harmonized Guideline 880.3800; Guideline
152-38).
Application of the EP, hulled barley inoculated with Aspergillus
flavus NRRL 21882, for the guideline tests to study primary dermal
irritation for the EP is impractical. Furthermore, non-occupational
dermal or inhalation exposure, or exposures via any of the routes
covered by the guideline studies listed directly above, are expected to
be no greater than that which occurs naturally for the following
reasons. In mixing/loading and application experiments, spores of the
pesticide are not released from the carrier and did not increase in the
air space (MRID 46196804; BPPD DER dated May 06, 2004c, hereinafter
referred to as BPPD DER 06/06/2004c). In addition, data from an
unpublished study showed that the total level of Aspergillus strains in
the soil increases after product application, but then declines and
stabilizes, and that the total amount of Aspergillus strains in the
crop is unaffected (MRID 46196804; BPPD DER 06/06/2004c. Thus, levels
of Aspergillus strains are not expected to be greater than those which
normally and naturally exist as a result of treatment of peanut fields
with this pesticide.
Data from the toxicology tests reported above indicate no toxicity
or pathogenicity when the active ingredient is administered orally or
via the pulmonary route. And while there is the potential for
infectivity or pathogenicity after intraperitoneal injection, that
study also demonstrates clearance of the test organism from all tissue
samples by the end of the study. Results from these supporting
toxicology tests indicate that test mammalian immune systems can clear
the organism (see Unit III.1. and 2.). In addition, no adverse effects
were reported by workers or researchers who handled the active
ingredient during the experimental phase. Moreover, the pesticide is
applied at a low rate of approximately 0.9 gram to 1 gram active
ingredient per acre once during the growing season, and the use of PPE
will protect workers from exposure to the pesticide (see Unit III.3.).
Based on these considerations, the justifications in support of the
request to waive data for acute dermal toxicity/pathogenicity, primary
dermal irritation, the hypersensitivity study, and immune response were
acceptable (BPPD DER 05/06/2004c).
The rationale for the request to waive data for the primary eye
irritation study was supplemental but upgradeable. The EP is applied
once during the season at approximately 1 gram of active ingredient per
acre, and drift is expected to be minimal because of the adherence of
the pesticide to the carrier. Provided eye protective equipment to
mitigate eye exposure is on the label for the proposed use, this data
waiver request is granted. Additional data or justification must be
submitted to meet Agency guideline requirements, should the applicant
wish to amend the registration to remove PPE for eye protection from
the label.
7. Subchronic, chronic toxicity and oncogenicity, and residue data.
Based on the data generated in accordance with the Tier I data
requirements set forth in 40 CFR 158.740(c), the Tier II and Tier III
data requirements were not triggered and, therefore, not required in
connection with this action. In addition, because the Tier II and Tier
III data requirements were not required, the residue data requirements
set forth in 40 CFR 158.740(b) also were not required.
IV. Aggregate Exposures
In examining aggregate exposure, section 408 of the 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).
A. Dietary Exposure
1. Food. As discussed above, Aspergillus flavus NRRL 21882 is
neither toxic nor infective as determined by studies in rats, when
dosed orally at 2.35 - 3.80 x 108 CFU/animal (MRID 46196802;
BPPD DER 05/06/2004). All known uses of peanuts for food use require
roasting, shelling, or blanching. Residues of the active ingredient,
Aspergillus flavus NRRL 21882, are not likely to survive these methods.
In addition, the fungal active ingredient and potential metabolites are
not likely to separate into peanut oil due to the high heat and
solvents used in processing. Thus, transfer of viable residues of
Aspergillus flavus NRRL 21882 via treated peanuts is not expected.
Aflatoxins, potential metabolites associated with some strains of
Aspergillus flavus, are not produced by this active ingredient. Indeed,
as discussed above (Unit III.), field studies demonstrate that
Aspergillus flavus NRRL 21882 actually reduced the aflatoxin content of
treated peanuts by 71% to 98%, compared to that of untreated controls
(MRID 46196805; BPPD DER 05/06/2004). Should any potential
contamination by aflatoxin occur through use of this pesticide, a
safety net already exists in that treated commodities for human and
animal consumption must meet aflatoxin regulatory levels set by the
USDA and the Food and Drug Administration (FDA). The processing methods
mentioned above are also measures used in the industry to mitigate
against the potential for aflatoxin contamination.
As mentioned above, neither the active ingredient nor its
potential metabolites are expected to separate out in peanut oil during
production. The residues of the active ingredient and its potential
metabolites on peanut hay are not expected to be different in the
treated fields than in untreated fields. These data support the claim
that dietary exposure to treated peanuts is not likely to increase the
levels of aflatoxins in treated commodities, but rather to reduce
exposure to those potent liver carcinogens. Finally, as previously
described, an acute oral study demonstrates no toxic or pathogenic
effects when rats are treated with the fungal active ingredient by oral
gavage (Unit III.1.).
2. Drinking water exposure. Exposure to Aspergillus flavus NRRL
21882 in drinking water is not likely to be greater than current/
existing exposures to Aspergillus flavus strains generally. Potential
risks via exposure to drinking water or runoff are adequately mitigated
by, among other things, percolation through soil. The pesticide is to
be applied to drought ridden areas to decrease the proliferation of the
aflatoxin-producing strains which they displace. It is not to be
directly applied to crops grown in water, and is not likely to
accumulate in drinking water, if used as labeled. Thus, exposure via
drinking water from the proposed use of this non-aflatoxin-producing
strain of Aspergillus flavus is not likely to pose any incremental risk
to adult humans, infants and children. In fact, displacement of the
toxigenic strains of
[[Page 39347]]
Aspergillus flavus by this non-aflatoxin-producing strain may decrease
exposure and risk to aflatoxin, a potent liver carcinogen.
B. Other Non-Occupational Exposure
Non-occupational exposure is not likely to be greater than that
which normally exists to the naturally occurring Aspergillus flavus
species as discussed below.
1. Dermal exposure. Potential non-occupational dermal exposure to
Aspergillus flavus NRRL 21882 is unlikely because the use sites are
commercial and agricultural, not residential, and because of the
granular nature of the pesticide, which minimizes pesticide drift. As
discussed earlier (see Unit III.), lack of hypersensitivity incidents,
low application rates, and the return of levels of Aspergillus flavus
to background levels shortly after germination, leads EPA to conclude
that this pesticide poses minimal risk to human populations via non-
occupational dermal exposure, which exposure is expected to be no
greater than the existing exposure to Aspergillus flavus at current
levels.
2. Inhalation exposure. Non-occupational inhalation exposure is not
likely to pose a hazard. This determination is based on the pulmonary
study which demonstrated that the pesticidal active ingredient is
neither toxic nor infective to mammals when instilled into rats
intratracheally (see Unit III.2., above). As discussed above, pesticide
drift is expected to be minimal based on the granular nature of the
pesticide, and on a formulation in which the active ingredient is
expected to adhere to the carrier, primarily hulled barley. In
addition, the low application rate (approximately or less than 0.002
pound or 1 gram active ingredient per acre) to the commercial and
agricultural crop, peanut, and the method of soil application suggest
minimal exposure potential. The low pulmonary and oral toxicity/
pathogenicity potential, indicate that non-occupational inhalation
exposure and risk are likely to be no greater than that which normally
exists.
Furthermore, Aspergillus species occur naturally in the environment
and the application of this pesticide is expected to displace the
aflatoxin-producing strains of the fungi, thus decreasing risks posed
by the public health hazard, aflatoxins.
V. Cumulative Effects
Section 408(b)(2)(D)(v) of the FFDCA requires the Agency to
consider the cumulative effect of exposure to Aspergillus flavus NRRL
21882 and to other substances that have a common mechanism of toxicity.
These considerations include the possible cumulative effects of such
residues on infants and children. Based on tests in mammalian systems,
Aspergillus flavus NRRL 21882 does not appear to be toxic or pathogenic
to humans. Another non-aflatoxin-producing strain, Aspergillus flavus
AF36, is conditionally registered for use on cotton, but not on
peanuts. There are no other registered pesticide products containing
Aspergillus flavus NRRL 21882, and other Aspergillus flavus strains
abound naturally in the environment. Moreover, the displacement of the
aflatoxin-producing strain of Aspergillus flavus by Aspergillus flavus
NRRL 21882 may reduce aflatoxin contamination of peanuts. Based on the
low toxicity potential of Aspergillus flavus NRRL 21882, the fact that
it is non-aflatoxigenic, and the safety net already in place to monitor
food/feed commodities for aflatoxins (see Unit IV.A.1.), no cumulative
or incremental effect is expected from the use of Aspergillus flavus
NRRL 21882 on peanuts.
VI. Determination of Safety for U.S. Population, Infants and Children
There is reasonable certainty that no harm will result to the U.S.
population, including infants and children, from aggregate exposures to
residues of Aspergillus flavus NRRL 21882, as a result of its use as an
antifungal agent on peanuts. This includes all anticipated dietary
exposures and all other exposures for which there is reliable
information. As discussed previously, there appears to be no potential
for harm, from this fungus in its use as an antifungal agent on peanuts
via dietary exposure since the organism is non-toxic and non-pathogenic
to animals and humans. The Agency has arrived at this conclusion based
on the very low levels of mammalian toxicity for acute oral and
pulmonary effects with no toxicity or infectivity at the doses tested
(see Unit III. above). Moreover, non-occupational inhalation or dermal
exposure is expected to be no greater than that which currently exists
(see Units IV. and V.).
FFDCA section 408(b)(2)(C) provides that EPA shall apply an
additional ten-fold margin of exposure (safety) for infants and
children in the case of threshold effects to account for prenatal and
postnatal toxicity and the completeness of the data base on toxicity
and exposure, unless EPA determines that a different margin of exposure
(safety) will be safe for infants and children. Margins of exposure
(safety), which are often referred to as uncertainty factors, are
incorporated into EPA risk assessment either directly, or through the
use of a margin of exposure analysis, or by using uncertainty (safety)
factors in calculating a dose level that poses no appreciable risk. In
this instance, based on all the available information (as discussed in
detail above), the Agency concludes that the fungus, Aspergillus flavus
NRRL 21882, is non-toxic to mammals, including infants and children.
Because there are no threshold effects of concern to infants, children
and adults when Aspergillus flavus NRRL 21882 is used as labeled, the
Agency has determined that the additional margin of safety is not
necessary to protect infants and children, and that not adding any
additional margin of safety will be safe for infants and children. As a
result, EPA has not used a margin of exposure (safety) approach to
assess the safety of Aspergillus flavus NRRL 21882.
VII. Other Considerations
A. Endocrine Disruptors
EPA is required under section 408(p) of the FFDCA, as amended by
FQPA, to develop a screening program to determine whether certain
substances (including all pesticide active and other ingredients) ``may
have an effect in humans that is similar to an effect produced by a
naturally-occurring estrogen, or other such endocrine effects as the
Administrator may designate.'' Following the recommendations of its
Endocrine Disruptor Screening and Testing Advisory Committee (EDSTAC),
EPA determined that there was scientific basis for including, as part
of the program, the androgen-and thyroid systems, in addition to the
estrogen hormone system. EPA also adopted EDSTAC's recommendation that
the program include evaluations of potential effects in wildlife. For
pesticide chemicals, EPA will use FIFRA and, to the extent that effects
in wildlife may help determine whether a substance may have an effect
in humans, FFDCA authority, to require the wildlife evaluations. As the
science develops and resources allow, screening of additional hormone
systems may be added to the Endocrine Disruptor Screening Program
(EDSP).
At this time, the Agency is not requiring information on the
endocrine effects of this active ingredient, Aspergillus flavus NRRL
21882. The Agency has considered, among other relevant factors,
available information concerning whether the microorganism
[[Page 39348]]
may have an effect in humans similar to an effect produced by a
naturally occurring estrogen or other endocrine effects. There is no
known metabolite that acts as an ``endocrine disrupter'' produced by
this microorganism. The submitted toxicity/infectivity or pathogenicity
studies in the rodent (required for microbial pesticides) indicate
that, following oral and pulmonary routes of exposure, the immune
system is still intact and able to process and clear the active
ingredient (see Unit III.). In addition, based on the low potential
exposure level associated with the proposed single, seasonal, soil
application of the pesticide at the pre-pegging stage of peanuts, the
Agency expects no adverse effects to the endocrine or immune systems.
Thus, there is no impact via endocrine-related effects on the Agency's
safety finding set forth in this Final Rule for Aspergillus flavus NRRL
21882.
B. Analytical Method(s)
Aspergillus flavus NRRL 21882 occurs naturally in the soil and may
be associated with peanuts regardless of pesticide treatment. Thus,
there is a great likelihood of prior exposure for most, if not all,
individuals and the increase in exposure due to this proposed microbial
pesticide would be negligible. In addition, it likely is not possible
to differentiate between the naturally occurring residues of
Aspergillus flavus NRRL 21882 and those residues attributable to
Aspergillus flavus NRRL 21882, the pesticide. Moreover, the acute oral
studies discussed above demonstrate that the active ingredient does not
pose a dietary risk. For these reasons, the Agency has concluded that
an analytical method to detect residues of this pesticide on peanuts
for enforcement purposes is not needed. Treated peanut food/feed
commodities, however, must meet the requirements for aflatoxins and
metabolites as regulated by the FDA and the USDA.
Nevertheless, the Agency has concluded that for analysis of the
pesticide itself, the methods discussed above (see Unit III.) are
acceptable for enforcement purposes for product identity of Aspergillus
flavus NRRL 21882 (VCG analysis) and its metabolites (TLC and HPLC).
VCG analysis and nutrient utilization tests are used to screen starter
cultures to identify the non-aflatoxin-producing Aspergillus flavus
NRRL 21882 strain. Starter cultures of Aspergillus flavus NRRL 21882
are also selected on the basis of the lack of aflatoxin as monitored by
standard thin layer chromatography (TLC) and HPLC procedures. Other
appropriate methods are required for quality control to assure product
characterization, the control of human pathogens and other
unintentional metabolites or ingredients within regulatory limits, and
to ascertain storage stability and viability of the pesticidal active
ingredient.
C. Codex Maximum Residue Level
There is no Codex maximum residue level for residues of Aspergillus
flavus NRRL 21882.
D. Efficacy Data (MRID 46196805)
PR Notice 2002-1 lists aflatoxin as a public health hazard, for
which product performance or efficacy data are required according to 40
CFR 158.202(i). To demonstrate that this pesticide may reduce
aflatoxin-producing strains and does not increase Aspergillus flavus
populations above background levels, the applicant provided product
performance or efficacy data from multiple years of studies monitoring
peanuts and its byproducts. Aflatoxin, one of the most potent human
carcinogens, is the metabolite of concern produced by the target pest,
aflatoxin-producing strains of Aspergillus flavus. As such, the Agency
considers aflatoxin a public health hazard. In the drought-ridden soils
of peanut-producing areas, especially in the dry regions, the
aflatoxin-producing strains are prominent. Few alternatives, if any,
exist to displace aflatoxin-producing Aspergillus flavus strains from
peanuts and other crops. Costly irrigation, or treating peanuts by
roasting, or blanching or processing peanuts into peanut oil are among
the methods used to decrease the effects of aflatoxin-producing strains
of Aspergillus flavus on peanuts. Aspergillus flavus NRRL 21882 is
proposed to displace toxigenic Aspergillus flavus strains that are
present and colonize the peanut during pegging or below ground
(possibly by vector transmission) if conditions favorable to infection
are present during the growing season - namely drought conditions
without sufficient irrigation or presence of nematode or insect vectors
that penetrate the peanut shell. The applicant has provided product
performance data to demonstrate the efficacy of the pesticide during
three small scale field trials in which the proposed EP was used.
Aflatoxin in treated peanuts is decreased by 71% to 98% in comparison
to untreated controls demonstrating displacement of the aflatoxin-
producing strains from the treated peanuts. (BPPD DER, 05/05/2004).
VIII. Objections and Hearing Requests
Under section 408(g) of the FFDCA, as amended by the FQPA, 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. Although the procedures in those
regulations require some modification to reflect the amendments made to
the FFDCA by the FQPA, EPA will continue to use those procedures, with
appropriate adjustments, until the necessary modifications can be made.
The new section 408(g) of the FFDCA provides essentially the same
process for persons to ``object'' to a regulation for an exemption from
the requirement of a tolerance issued by EPA under new section 408(d)
of the FFDCA, as was provided in the old sections 408 and 409 of the
FFDCA. However, the period for filing objections is now 60 days, rather
than 30 days.
A. What Do I Need to Do to File an Objection or Request a Hearing?
You must file your objection or request a hearing on this
regulation in accordance with the instructions provided in this unit
and in 40 CFR part 178. To ensure proper receipt by EPA, you must
identify docket ID number OPP-2004-0164 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
30, 2004.
1. Filing the request. Your objection must specify the specific
provisions in the regulation that you object to, and the grounds for
the objections (40 CFR 178.25). If a hearing is requested, the
objections must include a statement of the factual issues(s) on which a
hearing is requested, the requestor's contentions on such issues, and a
summary of any evidence relied upon by the objector (40 CFR 178.27).
Information submitted in connection with an objection or hearing
request may be claimed confidential by marking any part or all of that
information as CBI. Information so marked will not be disclosed except
in accordance with procedures set forth in 40 CFR part 2. A copy of the
information that does not contain CBI must be submitted for inclusion
in the public record. Information not marked confidential may be
disclosed publicly by EPA without prior notice.
Mail your written request to: Office of the Hearing Clerk (1900L),
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460-0001. You may also deliver
[[Page 39349]]
your request to the Office of the Hearing Clerk in Suite 350, 1099 14th
St., NW., Washington, DC 20005. The Office of the Hearing Clerk is open
from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays.
The telephone number for the Office of the Hearing Clerk is (202) 564-
6255.
2. Tolerance fee payment. If you file an objection or request a
hearing, you must also pay the fee prescribed by 40 CFR 180.33(I) or
request a waiver of that fee pursuant to 40 CFR 180.33(m). You must
mail the fee to: EPA Headquarters Accounting Operations Branch, Office
of Pesticide Programs, P.O. Box 360277M, Pittsburgh, PA 15251. Please
identify the fee submission by labeling it ``Tolerance Petition Fees.''
EPA is authorized to waive any fee requirement ``when in the
judgement of the Administrator such a waiver or refund is equitable and
not contrary to the purpose of this subsection.'' For additional
information regarding the waiver of these fees, you may contact James
Tompkins by phone at (703) 305-5697, by e-mail at tompkins.jim@epa.gov,
or by mailing a request for information to Mr. Tompkins at Registration
Division (7505C), Office of Pesticide Programs, Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001.
If you would like to request a waiver of the tolerance objection
fees, you must mail your request for such a waiver to: James Hollins,
Information Resources and Services Division (7502C), Office of
Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460-0001.
3. Copies for the Docket. In addition to filing an objection or
hearing request with the Hearing Clerk as described in Unit VIII.A.,
you should also send a copy of your request to the PIRIB for its
inclusion in the official record that is described in ADDRESSES. Mail
your copies, identified by docket ID number OPP-2004-0164, to: Public
Information and Records Integrity Branch, Information Resources and
Services Division (7502C), Office of Pesticide Programs, Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001. In person or by courier, bring a copy to the location of the
PIRIB described in ADDRESSES. You may also send an electronic copy of
your request via e-mail to: opp-docket@epa.gov. Please use an ASCII
file format and avoid the use of special characters and any form of
encryption. Copies of electronic objections and hearing requests will
also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format.
Do not include any CBI in your electronic copy. You may also submit an
electronic copy of your request at many Federal Depository Libraries.
B. When Will the Agency Grant a Request for a Hearing?
A request for a hearing will be granted if the Administrator
determines that the material submitted shows the following: There is a
genuine and substantial issue of fact; there is a reasonable
possibility that available evidence identified by the requestor would,
if established resolve one or more of such issues in favor of the
requestor, taking into account uncontested claims or facts to the
contrary; and resolution of the factual issues(s) in the manner sought
by the requestor would be adequate to justify the action requested (40
CFR 178.32).
IX. Statutory and Executive Order Reviews
This final rule establishes an exemption from the tolerance
requirement 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 rule has been exempted from review under Executive
Order 12866 due to its lack of significance, this 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 final rule does not contain any information
collections subject to OMB approval under the Paperwork Reduction Act
(PRA), 44 U.S.C. 3501 et seq., or impose any enforceable duty or
contain any unfunded mandate as described under Title II of the
Unfunded Mandates Reform Act of 1995 (UMRA) (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). Since
tolerances and exemptions that are established on the basis of a
petition under section 408(d) of the FFDCA, 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. 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
distribution of power and responsibilities among the various levels of
government.'' This final 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 rule does not have any ``tribal implications''
as described in Executive Order 13175, entitled Consultation and
Coordination with Indian Tribal Governments (59 FR 22951, 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 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
[[Page 39350]]
responsibilities between the Federal Government and Indian tribes, as
specified in Executive Order 13175. Thus, Executive Order 13175 does
not apply to this rule.
X. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
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: June 21, 2004.
James Jones,
Director, Office of Pesticide Programs.
? Therefore, 40 CFR chapter I is amended as follows:
PART 180--[AMENDED]
? 1. The authority citation for part 180 continues to read as follows:
Authority: 21 U.S.C. 321(q), 346a and 371.
? 2. Section 180.1254 is added to subpart D to read as follows:
Sec. 180.1254 Aspergillus flavus NRRL 21882 on peanut; exemption from
requirement of a tolerance.
An exemption from the requirement of a tolerance is established for
residues of Aspergillus flavus NRRL 21882 on peanut and its food/feed
commodities.
[FR Doc. 04-14609 Filed 6-29-04; 8:45 am]
BILLING CODE 6560-50-S