2010-20443. Flubendiamide; Pesticide Tolerances

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

This regulation establishes, reassesses, modifies and revokes tolerances for residues of flubendiamide, N²-[1,1-dimethyl-2-(methylsulfonyl)ethyl-3-iodo-N¹-[2-methyl-4-[1,2,2,2-tetrafluoro-1-(trifluoromethyl)ethyl]phenyl]-1,2-benzenedicarboxamide, in/on multiple food and livestock commodities which are identified, and will be discussed in detail later in this document. Bayer CropScience, LP in c/o Nichino America, Inc. (U.S. subsidiary of Nihon Nohyaku Co., Ltd.) requested these tolerances under the Federal Food, Drug and Cosmetic Act (FFDCA).

DATES:

This regulation is effective August 18, 2010. Objections and requests for hearings must be received on or before October 18, 2010, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

ADDRESSES:

EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2007-0099. All documents in the docket are listed in the docket index available at http://www.regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available in the electronic docket at http://www.regulations.gov, or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is [phone].

FOR FURTHER INFORMATION CONTACT:

Carmen Rodia, Registration Division (7504P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460-0001; telephone number: [phone]; fax number: [phone]; e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities:

• 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 to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT.

B. How Can I 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.gpoaccess.gov/​ecfr.

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-2007-0099 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 October 18, 2010. 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 that does not contain any 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 a copy of your non-CBI objection or hearing request, identified by docket ID number EPA-HQ-OPP-2007-0099, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.
• Mail: Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.
• Delivery: OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket Facility's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is [phone].

II. Summary of Petitioned-For Tolerances

In the Federal Register of March 19, 2010 (75 FR 13277-13280) (FRL-8813-2), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of pesticide petitions (PP 9F7553, 9E7554 and 9F7555) by Bayer CropScience, LP in c/o Nichino America, Inc. (U.S. subsidiary of Nihon Nohyaku Co., Ltd.), P.O. Box 12014, Research Triangle Park, NC 27709-2014. The petition requested that 40 CFR 180.639 be amended by establishing tolerances for residues of flubendiamide, N²-[1,1-Dimethyl-2-(methylsulfonyl)ethyl-3-iodo-N¹-[2-methyl-4-[1,2,2,2-tetrafluoro-1-(trifluoromethyl)ethyl]phenyl]-1,2-benzenedicarboxamide, in/on pea and bean, succulent shelled, subgroup 6B at 0.04 parts per million (ppm); pea and bean, dried shelled, except soybean, subgroup 6C at 0.80 ppm; rice, grain at 0.50 ppm (PP 9E7554); soybean, aspirated grain fractions at 91 ppm; soybean, forage at 18 ppm; soybean, hay at 60 ppm; soybean, hulls at 0.70 ppm; soybean, seed at 0.25 ppm; vegetable, foliage of legume, except soybean, subgroup 7A at 35 ppm; vegetable, legume, edible podded, subgroup 6A at 0.50 ppm; and rice, straw as a rotational crop at 0.07 ppm (PP 9F7555). That notice referenced a summary of the petitions prepared by Bayer CropScience, LP in c/o Nichino America, Inc. (U.S. subsidiary of Nihon Nohyaku Co., Ltd.), the registrant, which is available in the docket, http://www.regulations.gov. There were no substantive comments received in response to the notice of filing. Based upon review of the data supporting these petitions, EPA has reassessed, modified and revoked some of the existing tolerances for flubendiamide. In addition, EPA has also determined that in primary and rotational crops, the residue of concern for both the tolerance expression and risk assessment is flubendiamide. In livestock, the residue of concern for tolerance expression is flubendiamide. The reason for these changes is explained in Unit IV.D.

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....”

Consistent with section 408(b)(2)(D) of FFDCA, and the factors specified in section 408(b)(2)(D) of FFDCA, 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 the petitioned-for tolerances for residues of flubendiamide in/on pea and bean, dried shelled, except soybean, subgroup 6C; pea and bean, succulent shelled, subgroup 6B; rice, grain; soybean, aspirated grain fractions; soybean, forage; soybean, hay; soybean, hulls; soybean, seed; vegetable, foliage of legume, except soybean, subgroup 7A; vegetable, legume, edible podded, subgroup 6A; and rice, straw as a rotational crop. EPA's assessment of exposures and risks associated with flubendiamide follows.

A. Toxicological Profile

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 children.

Flubendiamide has a low acute toxicity via the oral, dermal and inhalation routes of exposure. Though it is a slight irritant to the eye, flubendiamide is not a skin irritant and it is not a skin sensitizer under the conditions of the guinea pig maximization test.

In the mammalian toxicology database, the primary target organ of flubendiamide exposure is the liver, with secondary effects reported in the thyroid and kidney at equivalent or higher doses; no-observed-adverse-effect-levels (NOAELs) established to protect for liver toxicity are protective of effects seen in the thyroid and kidney. Adverse adrenal effects were also noted in the dog.

Buphthalmia, eye enlargement, opacity, and exophthalmus with hemorrhage appearing only in infancy, were observed in rat offspring in the reproductive and DNT studies. There was no clear dose-response relationship for this effect but ocular toxicity was noted in three rat studies and accompanied by histopathological findings of synechia, hemorrhage, keratitis, iritis, and cataracts. Therefore, bupthalmos is considered an effect of treatment. No evidence of cancer was seen for flubendiamide in cancer bioassays in mice and rats. Flubendiamide was also negative in mutagenicity testing. Accordingly, flubendiamide was classified as “Not Likely to be Carcinogenic to Humans.”

More detailed information on the studies received and the nature of the adverse effects caused by flubendiamide as well as the NOAEL and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found in the document entitled, “Flubendiamide: Human Health Risk Assessment for Proposed Uses on Corn, Cotton, Tobacco, Tree fruit, Tree nuts, Vine crops and Vegetable Crops,” dated April 3, 2008, by going to http://www.regulations.gov. The referenced document is available in the docket established by this action, which is described under ADDRESSES. Locate and click on the hyperlink for docket ID number EPA-HQ-OPP-2007-0099. Double-click on the document to view the referenced information on pages 65 to 70 of 105.

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 http://www.epa.gov/​pesticides/​factsheets/​riskassess.htm.

A summary of the toxicological endpoints for flubendiamide used for human risk assessment can be found in the document entitled, “Flubendiamide: Human Health Risk Assessment for Proposed Uses on Corn, Cotton, Tobacco, Tree fruit, Tree nuts, Vine crops and Vegetable crops,” dated April 3, 2008, by going to http://www.regulations.gov. The referenced document is available in the docket established by this action, which is described under ADDRESSES. Locate and click on the hyperlink for docket ID number EPA-HQ-OPP-2007-0099. Double-click on the document to view the referenced information on pages 37 to 38 of 105.

C. Exposure Assessment

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to flubendiamide, EPA considered exposure under the petitioned-for tolerances as well as all existing flubendiamide tolerances in 40 CFR 180.639. Acute and chronic dietary (food and drinking water) exposure assessments were conducted using the Dietary Exposure Evaluation Model, Version 2.03 (DEEM-FCID^TM) which uses food consumption information from the United States Department of Agriculture's (USDA) 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). EPA assessed dietary exposures from flubendiamide in food for the proposed new uses on legume vegetables, soybeans and a tolerance on imported rice as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. Such effects were identified for flubendiamide. In estimating acute dietary exposure, EPA used DEEM-FCID^TM along with food consumption information from the USDA 1994-1996 and 1998 CSFII. As to residue levels in food, for the acute assessment, the modeled exposure estimates are based on tolerance level residues, assuming 100% of crops were treated. In addition, default processing factors were assumed for both registered and requested crop uses.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used DEEM-FCID^TM along with the food consumption data from the USDA 1994-1996 and 1998 CSFII. As to residue levels in food, EPA assumed all currently registered crops contain residues at the average residue levels found in the crop field trials. For the newly proposed crops and for livestock commodities, EPA assumed tolerance level residues. In addition, experimental processing factors were used where available. Finally, EPA assumed 100% of crops were treated.

iii. Cancer. As explained above, flubendiamide is considered to be “Not Likely to be Carcinogenic to Humans.” As a result, cancer exposure assessment is not needed for flubendiamide.

iv. Anticipated residue information. Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require, pursuant to section 408(f)(1) of FFDCA that data be provided 5 years after the tolerance is established, modified or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by section 408(b)(2)(E) of FFDCA and authorized under section 408(f)(1) of FFDCA. Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

More detailed information on the acute and chronic aggregate dietary assessment for flubendiamide used for human risk assessment can be found in the document entitled, “Flubendiamide: Acute and Chronic Aggregate Dietary (Food and Drinking Water) Exposure and Risk Assessments for the Proposed Section 3 Registration Action on Legume Vegetables and Soybeans and a Tolerance on Imported Rice,” dated March 31, 2010, by going to http://www.regulations.gov. The referenced document is available in the docket established by this action, which is described under ADDRESSES. Locate and click on the hyperlink for docket ID number EPA-HQ-OPP-2007-0099. Double-click on the document to view the referenced information on pages 10 to 11 of 26.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for flubendiamide in drinking water. These simulation models take into account data on the physical, chemical and fate/transport characteristics of flubendiamide. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/​oppefed1/​models/​water/​index.htm.

Flubendiamide is persistent and potentially mobile in terrestrial and aquatic environments. These fate properties suggest that it has a potential to move into surface and ground water. The Agency has completed a drinking water assessment for flubendiamide using screening level water exposure models that were based on the proposed new uses on legume vegetables, rice grain and Christmas trees. Based on the modeling analysis performed for the proposed new uses, the estimated drinking water concentrations (EDWCs) are less than the reported values previously assessed for the existing uses. For the 1 in 10 year peak, the highest Tier 2 Pesticide Root Zone Model /Exposure Analysis Modeling System (PRZM/EXAMS) EDWC for flubendiamide was 12.93 μg/L (approx. 13 μg/L), based on application to Illinois corn. For the 1 in 10 year annual average, the highest PRZM/EXAMS EDWC was 11.95 μg/L (approx. 12 μg/L), also based on application to Illinois corn.

A summary of the dietary exposure from drinking water for flubendiamide used for human risk assessment can be found in the documents entitled, “Flubendiamide: Human Health Risk Assessment for Proposed Uses on Legume Vegetables, Soybeans and Christmas Trees, and to Establish a Tolerance on Imported Rice Grain,” dated April 30, 2010, “Amendment: Flubendiamide: Human Health Risk Assessment for Proposed Uses on Legume Vegetables, Soybeans and Christmas Trees, and to Establish a Tolerance on Imported Rice Grain,” dated June 28, 2010, and “Flubendiamide: Bridging Residue Study Conducted with an Adjuvant in Support of Proposed Uses on Soybeans and Legumes,” dated July 13, 2010, by going to http://www.regulations.gov. The referenced document is available in the docket established by this action, which is described under ADDRESSES. Locate and click on the hyperlink for docket ID number EPA-HQ-OPP-2007-0099. Double-click on the document to view the referenced information on pages 25 to 26 of 56.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Flubendiamide is not registered for any specific use patterns that would result in residential exposure. That is, no residential uses are being requested for flubendiamide at this time; therefore, no residential risk assessment has been conducted.

4. 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.”

EPA has not found flubendiamide to share a common mechanism of toxicity with any other substances, and flubendiamide does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action; therefore, EPA has assumed that flubendiamide 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 http://www.epa.gov/​pesticides/​cumulative.

D. Safety Factor for Infants and Children

1. In general. 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 FQPA Safety Factor (SF). 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.

2. Pre-natal and post-natal sensitivity. While both the rat and rabbit developmental studies did not identify teratogenic effects and showed no evidence of increased pre-natal susceptibility, adverse eye effects (eye enlargement) were noted in post-natal rat pups older than 14 days in multiple studies (the 2-generation reproduction and 1-generation supplemental studies). Additionally, the developmental neurotoxicity (DNT) study reported eye effects appearing in some offspring between lactation days 14 and 42, even though exposure stopped at lactation day 21, indicating a possible delay (a latent response) from the time of last exposure to onset of bupthalmos. These eye effects did not occur in adult rats. Since the iris and chamber angle are differentiating and specializing into definite structures during post-natal days 5 to 20, neonatal rats appear to have an increased susceptibility to flubendiamide exposure as compared to adults. The DNT study also reported that pre-mating exposures are not required to elicit the eye effect in pups.

In addition to the reported eye effects in the DNT study, there was also a balanopreputial seperation (separation of the prepuce (foreskin) from the glans penis (balanus)) delay. While this effect is generally considered adverse per se, it is not assumed to be a developmental effect from in utero exposure. Here, delayed balanopreputial separation is considered secondary to reduced post-natal pup body weight as a result of post-natal exposure. Futhermore, it was resolved within the appropriate age range of puberty and no effects on reproductive function were observed in the multigeneration study in rats. Delayed balanopreputial separation was seen only at doses causing maternal toxicity and is not more severe than the maternal effects of hepatotoxicity seen at the common pup/maternal LOAEL of the DNT study. Accordingly, the delayed balanopreputial separation seen in the DNT study does not cause concern for increased sensitivity to the young for flubendiamide.

Human microsomes have been shown to be capable of approximately 4 times higher hydroxylation rates of flubendiamide as compared to female mouse microsomes and may be able to efficiently metabolize and excrete flubendiamide, preventing accumulation of the parent compound. It remains unclear whether the ability to metabolize and clear the parent compound is the only requirement to avoid ocular toxicity. Due to the potential concern for increased susceptibility of the human neonate compared to adults, this perinatal ocular effect is considered in the human health risk assessment for flubendiamide.

3. Conclusion. EPA evaluated the quality of the toxicity and exposure data and, based on these data, has determined that the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1x. That decision is based on the following findings:

i. The toxicology database for flubendiamide is complete with the exception of a subchronic neurotoxicity study which is now a new data requirement under 40 CFR part 158; however, the existing data are sufficient for endpoint selection for exposure/risk assessment scenarios, and for evaluation of the requirements under the FQPA. Flubendiamide is not a neurotoxic chemical based on neurotoxicity assessments conducted acutely, developmentally and incorporated within the chronic rat study. In several short-term studies in rats (subacute and subchronic feeding, plaque-forming cell assay, one-generation pilot, developmental toxicity) no neurobehavioral signs were observed at doses up to and exceeding the limit dose; therefore, an additional database uncertainty factor is not needed to account for potential neurotoxicity.

ii. Although susceptibility was identified in the toxicological database (eye effects), the selected regulatory PODs (which are based on clear NOAELs) are protective of these effects; therefore, the human health risk assessment is protective.

iii. There are no treatment-related neurotoxic findings in the acute neurotoxicity and DNT studies in rats; although eye effects were observed in the DNT study. As noted above, the PODs employed in the risk assessment are protective of this effect.

iv. There are no residual uncertainties identified in the exposure databases and the exposure assessment is protective. The acute dietary food exposure assessment utilizes tolerance-level residues, the chronic dietary food exposure assessment utilizes average residue levels found in the crop field trials/livestock commodities and both assume 100% of crops with requested uses of flubendiamide are treated. The drinking water assessment generated EDWCs using models and associated modeling parameters which are designed to provide conservative, health protective, high-end estimates of water concentrations. The highest relevant EDWCs were used in the dietary (food and drinking water) exposure assessment. By using these screening-level exposure assessments in the acute and chronic dietary (food and drinking water) assessments, risk is not underestimated for flubendiamide.

E. Aggregate Risks and Determination of Safety

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the aPAD and cPAD. For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate- and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

For this action, there is potential exposure to flubendiamide from food and drinking water, but not from residential use sites (as there are no proposed or existing residential uses for flubendiamide). Since hazard was identified via the oral route over both the acute and chronic duration, the aggregate risk assessment considers exposures from food and drinking water consumed over the acute and chronic durations.

1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to flubendiamide will occupy less than 7% of the aPAD for the mostly highly exposed population subgroup, children aged 1-2 years old.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to flubendiamide from food and water will utilize 40% of the cPAD for the mostly highly exposed population subgroup, children aged 1-2 years old. There are no proposed or existing residential uses for flubendiamide.

3. Aggregate cancer risk for U.S. population. Based on the evidence discussed above, flubendiamide has been classified as “Not Likely to be Carcinogenic to Humans” and is not expected to pose a cancer risk.

4. Determination of safety. Based on these risk assessments, 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 flubendiamide residues.

IV. Other Considerations

A. Analytical Enforcement Methodology

Adequate enforcement methodology (LC/MS/MS, Methods 00816/M002 and 00912) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Road, Fort Meade, MD 20755-5350; telephone number: [phone]; e-mail address: [e-mail].

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 section 408(b)(4) of FFDCA. The Codex Alimentarius is a joint U.N. 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, section 408(b)(4) of FFDCA requires that EPA explain the reasons for departing from the Codex level.

There are currently no established Codex, Canadian or Mexican MRLs for residues of flubendiamide in/on various food or livestock commodities.

C. Revisions to Petitioned-For Tolerances

Based upon review of the data supporting PP 9F7553, 9E7554 and 9F7555, EPA has determined that in primary and rotational crops, the residue of concern for both the tolerance expression and risk assessment is flubendiamide. In livestock, the residue of concern for tolerance expression is flubendiamide; the residues of concern in livestock for risk assessment are flubendiamide and metabolite A14. EPA is creating a separate subsection in the flubendiamide tolerance section (paragraph (a)(2)) for the new tolerances and animal tolerances affected by the new tolerances that reflects this determination on the appropriate tolerance expression. The new subsection makes clear that, as provided by section 408 of FFDCA, the tolerance covers flubendiamide metabolites and degradates.

The Agency's Guidance for Setting Pesticide Tolerances Based on Field Trial Data was utilized for determining appropriate tolerance levels for many RACs which showed quantifiable residues in or on samples that were treated according to the proposed use patterns. Many of the assessed RAC tolerances are consistent with the levels proposed by the petitioner.

EPA generally establishes a generic tolerance for “aspirated grain fractions” based on uses of a pesticide on corn, wheat, sorghum and soybean. If the pesticide is used on several crops, the RAC with the highest residues in aspirated grain fractions will be used to establish the tolerance. Residue data for the aspirated grain fractions of field corn were reviewed in PP 6F7065, which led to the establishment of the current 5.0 ppm tolerance for aspirated grain fractions. Based on the registered use on field corn, and the proposed use on soybeans, EPA has determined that the established tolerance for aspirated grain fractions be revised from 5.0 ppm to 103 ppm.

As part of this regulation, permanent tolerances for residues of flubendiamide in or on soybean forage (18 ppm) and soybean hay (60 ppm) resulting from direct application to the primary crop are established. These tolerances supersede the currently listed tolerances for indirect or inadvertent residues of flubendiamide in/on soybean forage (0.02 ppm) and soybean hay (0.04 ppm), and therefore the indirect/inadvertent residue tolerances are being revoked from 40 CFR 180.639(d).

The established tolerances for meat, milk, poultry and eggs were also reassessed in light of the recalculated beef and dairy cattle, swine and poultry dietary burdens and following consideration of the newly-proposed uses and reevaluation of previously submitted animal feeding studies. The Agency concludes that the established tolerances for residues of flubendiamide for milk, milk fat, meat byproducts (previously listed as liver and kidney separately), meat and fat of cattle, goat, horse and sheep should be increased to 0.15 ppm, 0.80 ppm, 0.60 ppm, 0.07 ppm and 0.60 ppm, respectively. For swine, EPA concludes that tolerances need to be added on meat byproducts at 0.01 ppm and on fat at 0.01 ppm. For poultry, EPA concludes that the established tolerance for meat (0.01 ppm) remains adequate; however, tolerances for egg, fat and liver need to be raised to 0.03 ppm, 0.15 ppm and 0.03 ppm, respectively.

The submitted Section F of the rice petition does not include any tolerance proposal on rice straw (PP 9F7555). Rice straw is not a significant livestock feedstuff as per Table 1 of Guideline 860.1000; therefore, a rotational crop tolerance on rice straw is not needed and will not be approved as part of this regulation.

V. Conclusion

Therefore, new tolerances are being established for residues of flubendiamide, N²-[1,1-Dimethyl-2-(methylsulfonyl)ethyl-3-iodo-N¹-[2-methyl-4-[1,2,2,2-tetrafluoro-1-(trifluoromethyl)ethyl]phenyl]-1,2-benzenedicarboxamide, in/on grain, aspirated grain fractions at 103 ppm; pea and bean, dried shelled, except soybean, subgroup 6C at 0.60 ppm; pea and bean, succulent shelled, subgroup 6B at 0.05 ppm; rice, grain at 0.50 ppm; soybean, forage at 18 ppm; soybean, hay at 60 ppm; soybean, hulls at 0.80 ppm; soybean, seed at 0.25 ppm; vegetable, foliage of legume, except soybean, subgroup 7A at 35 ppm; and vegetable, legume, edible podded, subgroup 6A at 0.50 ppm.

The established tolerances for residues of flubendiamide for milk, milk fat, meat byproducts (previously listed as liver and kidney separately), meat and fat of cattle, goat, horse and sheep are being increased to 0.15 ppm, 0.80 ppm, 0.60 ppm, 0.07 ppm and 0.60 ppm, respectively. Additionally, the extablished tolerances for egg, fat and liver are being increased to 0.03 ppm, 0.15 ppm and 0.03 ppm, respectively.

The established tolerances on liver (0.30 ppm) and kidney (0.30 ppm) for cattle, goat, horse and sheep, listed in 40 CFR 180.639(a), are being superseded by renamed tolerances for meat byproducts for cattle, goat, horse and sheep (0.60 ppm) in the newly created subsection, 40 CFR 180.639(a)(2). The established tolerances for indirect or inadvertent residues of flubendiamide in/on soybean, forage (0.02 ppm) and soybean, hay (0.04 ppm) are being revoked from 40 CFR 180.639(d), and are being superseded by the new soybean and legume vegetable tolerances listed in 40 CFR 180.639(a)(2).

VI. Statutory and Executive Order Reviews

This final rule establishes tolerances under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) do not apply.

This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).

VII. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the Federal Register. This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 180

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

Dated: August 10, 2010.

Lois Rossi,

Director, Registration Division, 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 180.639 is revised to read as follows:

§180.639

Flubendiamide; tolerances for residues

.

(a) General. (1) Tolerances are established for residues of the insecticide flubendiamide per se, N²-[1,1-Dimethyl-2-(methylsulfonyl)ethyl-3-iodo-N¹-[2-methyl-4-[1,2,2,2-tetrafluoro-1-(trifluoromethyl)ethyl]phenyl]-1,2-benzenedicarboxamide, in or on the following commodities:

Commodity	Parts per million
Almond, hulls	9.0 ppm
Apple, wet pomace	2.0 ppm
Brassica, head and stem, subgroup 5A	0.60 ppm
Brassica, leafy greens, subgroup 5B	5.0 ppm
Corn, field, forage	8.0 ppm
Corn, field, grain	0.02 ppm
Corn, field, stover	0.15 ppm
Corn, sweet, forage	9.0 ppm
Corn, sweet, kernel plus cob with husks removed	0.01 ppm
Corn, sweet, stover	0.25 ppm
Cotton gin byproducts	0.60 ppm
Cotton, undelinted seed	0.90 ppm
Fruit, pome, group 11	0.70 ppm
Fruit, stone, group 12	1.6 ppm
Grape	1.4 ppm
Nut, tree, group 14	0.06 ppm
Okra	0.30 ppm
Vegetable, cucurbit, group 9	0.20 ppm
Vegetable, fruiting, group 8	0.60 ppm
Vegetable, leafy, except Brassica, group 4	11 ppm

(2) Tolerances are established for residues of flubendiamide, including its metabolites and degradates, in or on the commodities listed in the table below. Compliance with the tolerance levels specified below is to be determined by measuring only flubendiamide, N²-[1,1-dimethyl-2-(methylsulfonyl)ethyl-3-iodo-N¹-[2-methyl-4-[1,2,2,2-tetrafluoro-1-(trifluoromethyl)ethyl]phenyl]-1,2-benzenedicarboxamide, in or on the following commodities:

Commodity	Parts per million
Cattle, fat	0.60 ppm
Cattle, meat byproducts	0.60 ppm
Cattle, meat	0.07 ppm
Eggs	0.03 ppm
Goat, fat	0.60 ppm
Goat, meat byproducts	0.60 ppm
Goat, meat	0.07 ppm
Grain, aspirated grain fractions	103 ppm
Horse, fat	0.60 ppm
Horse, meat byproducts	0.60 ppm
Horse, meat	0.07 ppm
Milk	0.15 ppm
Milk, fat	0.80 ppm
Pea and bean, dried shelled, except soybean, subgroup 6C	0.60 ppm
Pea and bean, succulent shelled, subgroup 6B	0.05 ppm
Poultry, fat	0.15 ppm
Poultry, liver	0.03 ppm
Poultry, meat	0.01 ppm
Rice, grain1	0.50 ppm
Sheep, fat	0.60 ppm
Sheep, meat byproducts	0.60 ppm
Sheep, meat	0.07 ppm
Soybean, forage	18 ppm
Soybean, hay	60 ppm
Soybean, hulls	0.80 ppm
Soybean, seed	0.25 ppm
Vegetable, foliage of legume, except soybean, subgroup 7A	35 ppm
Vegetable, legume, edible podded, subgroup 6A	0.50 ppm

¹ There are no U.S. registrations for rice, grain.

(b) Section 18 emergency exemptions. [Reserved]

(c) Tolerances with regional registrations. [Reserved]

(d) Indirect or inadvertent residues. Tolerances are established for residues of the insecticide flubendiamide per se, N²-[1,1-Dimethyl-2-(methylsulfonyl)ethyl-3-iodo-N¹-[2-methyl-4-[1,2,2,2-tetrafluoro-1-(trifluoromethyl)ethyl]phenyl]-1,2-benzenedicarboxamide, in or on the following raw agricultural commodities when present therein as a result of the application of flubendiamide to the growing crops listed in paragraphs (a)(1) and (a)(2) of this section:

Commodity	Parts per million
Alfalfa, forage	0.15 ppm
Alfalfa, hay	0.04 ppm
Barley, hay	0.04 ppm
Barley, straw	0.07 ppm
Buckwheat	0.07 ppm
Clover, forage	0.15 ppm
Clover, hay	0.04 ppm
Grass, forage	0.15 ppm
Grass, hay	0.04 ppm
Millet, pearl, forage	0.15 ppm
Millet, pearl, hay	0.04 ppm
Millet, proso, forage	0.15 ppm
Millet, proso, hay	0.04 ppm
Millet, proso, straw	0.07 ppm
Oats, forage	0.15 ppm
Oats, hay	0.04 ppm
Oats, straw	0.07 ppm
Rye, forage	0.15 ppm
Rye, straw	0.07 ppm
Sorghum, grain, forage	0.03 ppm
Sorghum, grain, stover	0.06 ppm
Teosinte, forage	0.15 ppm
Teosinte, hay	0.04 ppm
Teosinte, straw	0.07 ppm
Triticale, forage	0.15 ppm
Triticale, hay	0.04 ppm
Triticale, straw	0.07 ppm
Wheat, forage	0.15 ppm
Wheat, hay	0.03 ppm
Wheat, straw	0.03 ppm