E8-29467. Isoxaflutole; Pesticide Tolerances

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

This regulation amends the pesticide tolerance for isoxaflutole by removing isoxaflutole's benzoic acid metabolite (RPA 203328) from the established tolerance expression and revising downward tolerance levels for isoxaflutole in or on field corn. Bayer CropScience requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).

DATES:

This regulation is effective December 12, 2008. Objections and requests for hearings must be received on or before February 10, 2009, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

ADDRESSES:

EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2008-0217. 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:

Joanne Miller, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone 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 Access Electronic Copies of this Document?

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

C. Can I File an Objection or Hearing Request?

Under section 408(g) of FFDCA, 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. 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-2008-217 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 as required by 40 CFR part 178 on or before February 10, 2009.

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit this copy, identified by docket ID number EPA-HQ-OPP-2008-217, 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. Petition for Tolerance

In the Federal Register of April 16, 2008 (73 FR 20632) (FRL-8359-1), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 8F7328) by Bayer CropScience, 2 T.W. Alexander Drive, Research Triangle Park, NC 27709. The petition requested that the tolerance for isoxaflutole at 40 CFR 180.537 be amended by removing the benzoic acid metabolite (RPA 203328) from the established tolerance expression and revising downward the tolerance levels for the following raw agricultural commodities: Corn, field, grain; corn, field, forage; and corn, field, stover. The proposed level for each of these tolerances is 0.02 parts per million (ppm). Bayer CropScience requested that the tolerance for isoxaflutole be amended based on the results of several toxicology studies submitted for the benzoic acid metabolite, demonstrating RPA 203328 is not of toxicological concern. That notice referenced a summary of the petition prepared by Bayer CropScience the registrant, which is available to the public in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA has revised the proposed tolerance level for the combined residues of isoxaflutole and its metabolite RPA 202248, calculated as the parent compound, in or on corn, field, forage from 0.02 ppm to 0.04 ppm. Adequate crop field trial data with isoxaflutole showed quantifiable residues of isoxaflutole and RPA 202248 in field corn forage. These residues were found only in samples from a single trial and no residues were found in field corn grain or stover in any of the trials. Because the combined residues of isoxaflutole and RPA 202248 in that forage sample were at 0.029 ppm, a tolerance of 0.04 ppm is necessary for forage. Additionally, in light of the revised, and significantly lower, tolerances for isoxaflutole on field corn commodities, EPA reassessed the necessity for tolerances for isoxaflutole on meat, milk, poultry, and egg commodities. Meat, milk, poultry, and egg tolerances are necessary for a pesticide if pesticide residues in such commodities are likely following consumption by livestock of feed commodities bearing pesticide residues. Using the new tolerances and existing animal feeding studies with isoxaflutole, EPA determined that there was no reasonable expectation of finite isoxaflutole residues in livestock as the maximum residues expected are well below the limit of detection of the analytical enforcement method. Accordingly, EPA is revoking the existing isoxaflutole meat, milk, and egg tolerances as unnecessary.

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 the combined residues of isoxaflutole and its metabolite RPA 202248, calculated as the parent compound, in or on corn, field, forage at 0.04 ppm; corn, field, grain at 0.02 ppm; and corn, field, stover at 0.02 ppm. EPA's assessment of exposures and risks associated with establishing tolerances follows.

A. Removal of the Benzoic Acid Metabolite RPA 203328

The previous risk assessment concluded that RPA 203328 could not be excluded from the risk assessment and tolerance expression based on a developmental endpoint of parent isoxaflutole until an acceptable rat developmental toxicity study was submitted to the EPA. Additional toxicity studies have been performed on the metabolite RPA 203328 since the last risk assessment, including an acceptable developmental toxicity study on RPA 203328. No evidence of teratogenicity was observed in this study and based on this data EPA concluded that the developmental toxicity observed with isoxaflutole is not due to RPA 203328. EPA thus determined that the residues of concern for both the tolerance expression and risk assessment are isoxaflutole and RPA 202248.

B. Safety of Isoxaflutole Tolerances

EPA's last tolerance rulemaking with regard to isoxaflutole occurred on September 23, 1998. (63 FR 50773) (FRL-6029-3). In that action, isoxaflutole tolerances were established for combined residues of isoxaflutole and its metabolites RPA 202248 and RPA 203328, calculated as the parent compound, in or on the following raw agricultural commodities: Corn, field, forage at 1.0 ppm; corn, field, grain at 0.20 ppm; and corn, field, stover at 0.50 ppm. Tolerances were established for the combined residues of isoxaflutole and its metabolite RPA 202248, calculated as the parent compound, in or on the following raw agricultural commodities: Cattle, fat at 0.20 ppm; cattle, liver at 0.50 ppm; cattle, meat at 0.20 ppm; cattle, meat byproducts, except liver at 0.10 ppm; egg at 0.01 ppm; goat, fat at 0.20 ppm; goat, liver at 0.50 ppm; goat, meat at 0.20 ppm; goat, meat byproducts, except liver at 0.10 ppm; hog, fat at 0.20 ppm; hog, liver at 0.50 ppm; hog, meat at 0.20 ppm; hog, meat byproducts, except liver at 0.10 ppm; horse, fat at 0.20 ppm; horse, liver at 0.50 ppm; horse, meat at 0.20 ppm; horse, meat byproducts, except liver at 0.10 ppm; milk at 0.02 ppm; poultry, fat at 0.20 ppm; poultry, liver at 0.30 ppm; poultry, meat at 0.20 ppm; sheep, fat at 0.20 ppm; sheep, liver at 0.50 ppm; sheep, meat at 0.20 ppm; and sheep, meat byproducts, except liver at 0.10 ppm.

In the 1998 tolerance action, EPA assumed that the residues of concern in field corn were isoxaflutole and its metabolites RPA 202248 and RPA 203328. As explained in this unit, however, EPA has now determined that only the parent isoxaflutole and the RPA 202248 metabolite pose a risk of concern. Thus, the risk assessment done in conjunction with the 1998 rulemaking, which showed isoxaflutole exposure to be safe, greatly overstates isoxaflutole exposure in comparison to the revised tolerances. First, as to exposure through human foods produced from field corn (e.g., corn meal, corn oil), the levels of isoxaflutole residues of concern in such foods are an order of magnitude lower than previously assumed. Second, as to meat, milk, poultry, and eggs from livestock consuming isoxaflutole-treated field corn, EPA has concluded that there is no reasonable expectation of combined residues of isoxaflutole and RPA 202248 in such commodities. Accordingly, there is essentially no human exposure to isoxaflutole residues in meat, milk, poultry, and eggs from use of isoxaflutole on field corn. For these reasons, the 1998 risk assessment is a very conservative assessment of the potential risk from use of isoxaflutole on field corn. Refer to the Federal Register of September 23, 1998 (63 FR 50773) (FRL-6029-3), available at http://www.regulations.gov, for a detailed discussion of the 1998 isoxaflutole aggregate risk assessments and determination of safety.

Since the 1998 rulemaking, EPA has received a developmental neurotoxicity study with isoxaflutole. Although EPA has required that the study to be redone due to a lack of morphometric analyses of the brain, the maternal and offspring no observed adverse effect levels (NOAELs) in the study were otherwise identified as 25 milligram/kiligram/day (mg/kg/day). This value is above the Point of Departure (POD) used in assessing acute and chronic risk in the 1998 risk assessment. There, EPA used a lowest observed adverse effect level (LOAEL) of 5 mg/kg/day as the POD for acute risks and a NOAEL of 2 mg/kg/day as the POD for chronic risks. Thus, these new data do not suggest that isoxaflutole is more toxic than was assumed in the 1998 assessment. Further, it should be noted that in assessing isoxaflutole risk, EPA applied an additional safety factor of 30X for the protection of infants and children in addressing acute risks and an additional safety factor of 10X for the protection of infants and children in addressing chronic risks. These additional safety factors were used to address the absence of a developmental neurotoxicity study and reliance on a LOAEL. In another development occurring since the 1998 rulemaking, EPA has noted, in tolerance rulemakings for several other pesticides that pesticides such as isoxaflutole which inhibit the liver enzyme 4-hydroxyphenylpyruvate dioxygenase (HPPD) may operate through a common mechanism of toxicity. To address this issue, EPA has conducted a cumulative screening assessment for these pesticides and concluded that, even if there is common mechanism for HPPD-inhibition, cumulative exposure from these pesticides does not raise a risk concern. Refer to the Federal Register of February 20, 2008 (73 FR 9221) (FRL-8344-7). Further cumulative analysis is unnecessary for this action because of EPA's conclusion that the revised isoxaflutole tolerances result in substantially lower isoxaflutole exposure than previously assumed.

Accordingly, taking into account the prior risk assessment for isoxaflutole, EPA's revised analysis of the level of human exposure from use of isoxaflutole on field corn, the developmental neurotoxicity study, and EPA's screening analysis of HPPD-inhibiting pesticides, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children, from aggregate exposure to isoxaflutole residues.

IV. Other Considerations

A. Analytical Enforcement Methodology

A practical analytical method has been developed for detecting and quantifying levels of isoxaflutole and RPA 202248 in or on raw agricultural commodities obtained from field corn. This method allows monitoring of these commodities with residues at or above the levels proposed. Quantification of analytes as individual components is performed by daughter-ion detection using liquid chromatography/mass spectroscopy (LC/MS/MS). The limit of quantification (LOQ) for all analytes is 0.01 ppm. The proposed analytical enforcement method to determine isoxaflutole-derived residues in plants has been validated by an independent laboratory.

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

B. International Residue Limits

There are no Codex, Canadian, or Mexican maximum residue limits (MRLs) established for residues of isoxaflutole in crop or livestock commodities.

V. Conclusion

Therefore, EPA has revised tolerances for the combined residues of isoxaflutole and its metabolites RPA 202248 and RPA 203328, calculated as the parent compound, in or on corn, field, forage at 0.04 ppm; corn, field, grain at 0.02 ppm; and corn, field, stover at 0.02 ppm; and has removed the benzoic acid metabolite (RPA 203328) from the established tolerance expression. EPA has removed the established tolerances for the combined residues of isoxaflutole and its metabolite RPA 202248, calculated as the parent compound, in or on cattle, fat at 0.20 ppm; cattle, liver at 0.50 ppm; cattle, meat at 0.20 ppm; cattle, meat byproducts, except liver at 0.10 ppm; egg at 0.01 ppm; goat, fat at 0.20 ppm; goat, liver at 0.50 ppm; goat, meat at 0.20 ppm; goat, meat byproducts, except liver at 0.10 ppm; hog, fat at 0.20 ppm; hog, liver at 0.50 ppm; hog, meat at 0.20 ppm; hog, meat byproducts, except liver at 0.10 ppm; horse, fat at 0.20 ppm; horse, liver at 0.50 ppm; horse, meat at 0.20 ppm; horse, meat byproducts, except liver at 0.10 ppm; milk at 0.02 ppm; poultry, fat at 0.20 ppm; poultry, liver at 0.30 ppm; poultry, meat at 0.20 ppm; sheep, fat at 0.20 ppm; sheep, liver at 0.50 ppm; sheep, meat at 0.20 ppm; and sheep, meat byproducts, except liver at 0.10 ppm.

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: December 3, 2008.

Donald R. Stubbs,

Acting 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. In § 180.537, paragraph (a) is revised to read as follows:

§ 180.537

Isoxaflutole; tolerances for residues

(a) General. Tolerances are established for the combined residues of isoxaflutole 5-cyclopropyl-4-(2-methylsulfonyl-4-trifluoromethylbenzoyl) isoxazole and its metabolite 1-(2-methylsulfonyl-4-trifluoromethylphenyl)-2-cyano-3-cyclopropyl propan-1,3-dione (RPA 202248), calculated as the parent compound, in or on the following raw agricultural commodities:

Commodity	Parts per million
Corn, field, forage	0.04
Corn, field, grain	0.02
Corn, field, stover	0.02