Rule2023-09121
Poly (oxy-1,2-ethanediyl), α,α′-[[[4-[2-(4-methyl-2-benzothiazolyl)diazenyl]phenyl]imino]di-2,1-ethanediyl]bis[ω-hydroxy- in Pesticide Formulations; Tolerance Exemption
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 1, 2023
Effective
May 1, 2023
Issuing agencies
Environmental Protection Agency
Abstract
This regulation establishes an exemption from the requirement of a tolerance for residues of poly (oxy-1,2-ethanediyl), [alpha],[alpha]'-[[[4-[2-(4-methyl-2- benzothiazolyl)diazenyl]phenyl]imino]di-2,1-ethanediyl]bis[[omega]- hydroxy- (CAS Reg. No. 158172-12-4), herein referred to as polymeric red, when used as an inert ingredient (colorant) on growing crops and raw agricultural commodities pre- and post-harvest. Milliken Chemical submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting establishment of an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of polymeric red, when used in accordance with the terms of the exemption.
Full Text
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<title>Federal Register, Volume 88 Issue 83 (Monday, May 1, 2023)</title>
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[Federal Register Volume 88, Number 83 (Monday, May 1, 2023)]
[Rules and Regulations]
[Pages 26495-26498]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-09121]
[[Page 26495]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 180
[EPA-HQ-OPP-2022-0596; FRL-10910-01-OCSPP]
Poly (oxy-1,2-ethanediyl), [alpha],[alpha]'-[[[4-[2-(4-methyl-2-
benzothiazolyl)diazenyl]phenyl]imino]di-2,1-ethanediyl]bis[[omega]-
hydroxy- in Pesticide Formulations; Tolerance Exemption
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This regulation establishes an exemption from the requirement
of a tolerance for residues of poly (oxy-1,2-ethanediyl),
[alpha],[alpha]'-[[[4-[2-(4-methyl-2-
benzothiazolyl)diazenyl]phenyl]imino]di-2,1-ethanediyl]bis[[omega]-
hydroxy- (CAS Reg. No. 158172-12-4), herein referred to as polymeric
red, when used as an inert ingredient (colorant) on growing crops and
raw agricultural commodities pre- and post-harvest. Milliken Chemical
submitted a petition to EPA under the Federal Food, Drug, and Cosmetic
Act (FFDCA), requesting establishment of an exemption from the
requirement of a tolerance. This regulation eliminates the need to
establish a maximum permissible level for residues of polymeric red,
when used in accordance with the terms of the exemption.
DATES: This regulation is effective May 1, 2023. Objections and
requests for hearings must be received on or before June 30, 2023 and
must be filed in accordance with the instructions provided in 40 CFR
part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).
ADDRESSES: The docket for this action, identified by docket
identification (ID) number EPA-HQ-OPP-2022-0596, is available at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> or at the Office of Pesticide Programs
Regulatory Public Docket (OPP Docket) in the Environmental Protection
Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg.,
Rm. 3334, 1301 Constitution Ave. NW, Washington, DC 20460-0001. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room and the OPP docket is (202) 566-1744. For the latest
status information on EPA/DC services, docket access, visit <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
FOR FURTHER INFORMATION CONTACT: Charles Smith, Director, Registration
Division (7505T), Office of Pesticide Programs, Environmental
Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-
0001; main telephone number: (202) 566-2427; email address:
<a href="/cdn-cgi/l/email-protection#74263032263a1b001d171107341104155a131b02"><span class="__cf_email__" data-cfemail="96c4d2d0c4d8f9e2fff5f3e5d6f3e6f7b8f1f9e0">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
You may be potentially affected by this action if you are an
agricultural producer, food manufacturer, or pesticide manufacturer.
The following list of North American Industrial Classification System
(NAICS) codes is not intended to be exhaustive, but rather provides a
guide to help readers determine whether this document applies to them.
Potentially affected entities may include:
<bullet> Crop production (NAICS code 111).
<bullet> Animal production (NAICS code 112).
<bullet> Food manufacturing (NAICS code 311).
<bullet> Pesticide manufacturing (NAICS code 32532).
B. How can I get electronic access to other related information?
You may access a frequently updated electronic version of 40 CFR
part 180 through the Office of the Federal Register's e-CFR site at
<a href="https://www.ecfr.gov/current/title-40">https://www.ecfr.gov/current/title-40</a>.
C. How can I file an objection or hearing request?
Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file
an objection to any aspect of this regulation and may also request a
hearing on those objections. You must file your objection or request a
hearing on this regulation in accordance with the instructions provided
in 40 CFR part 178. To ensure proper receipt by EPA, you must identify
docket ID number EPA-HQ-OPP-2022-0596 in the subject line on the first
page of your submission. All objections and requests for a hearing must
be in writing and must be received by the Hearing Clerk on or before
June 30, 2023. Addresses for mail and hand delivery of objections and
hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the
Hearing Clerk as described in 40 CFR part 178, please submit a copy of
the filing (excluding any Confidential Business Information (CBI)) for
inclusion in the public docket. Information not marked confidential
pursuant to 40 CFR part 2 may be disclosed publicly by EPA without
prior notice. Submit the non-CBI copy of your objection or hearing
request, identified by docket ID number EPA-HQ-OPP-2022-0596, by one of
the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the online instructions for submitting comments. Do not submit
electronically any information you consider to be CBI or other
information whose disclosure is restricted by statute.
<bullet> Mail: OPP Docket, Environmental Protection Agency Docket
Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC
20460-0001.
<bullet> Hand Delivery: To make special arrangements for hand
delivery or delivery of boxed information, please follow the
instructions at <a href="https://www.epa.gov/dockets/where-send-comments-epa-dockets#express">https://www.epa.gov/dockets/where-send-comments-epa-dockets#express</a>.
Additional instructions on commenting or visiting the docket, along
with more information about dockets generally, is available at <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
II. Petition for Exemption
In the Federal Register of August 30, 2022 (87 FR 52868) (FRL-9410-
04), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C.
346a, announcing the filing of a pesticide petition (PP IN-11672) by
Milliken Chemical, 920 Milliken Road, M-209, Spartanburg, South
Carolina 29303. The petition requested that 40 CFR 180.910 be amended
by establishing an exemption from the requirement of a tolerance for
residues of polymeric red (CAS Reg. No. 158172-12-4) when used as an
inert ingredient (colorant) in pesticide formulations applied to
growing crops or raw agricultural commodities pre- and post-harvest.
That document referenced a summary of the petition prepared by Milliken
Chemical, which is available in the docket, <a href="https://www.regulations.gov">https://www.regulations.gov</a>. A comment was received on the notice of filing.
EPA's response to the comment is discussed in Unit V.B.
III. Inert Ingredient Definition
Inert ingredients are all ingredients that are not active
ingredients as defined in 40 CFR 153.125 and include, but are not
limited to, the following types of ingredients (except when they have a
pesticidal efficacy of their own): solvents such as alcohols and
hydrocarbons; surfactants such as polyoxyethylene polymers and fatty
acids; carriers such as clay and diatomaceous earth; thickeners such as
carrageenan and modified cellulose; wetting, spreading, and dispersing
agents; propellants in aerosol dispensers; microencapsulating agents;
and emulsifiers. The term ``inert'' is not
[[Page 26496]]
intended to imply nontoxicity; the ingredient may or may not be
chemically active. Generally, EPA has exempted inert ingredients from
the requirement of a tolerance based on the low toxicity of the
individual inert ingredients.
IV. Aggregate Risk Assessment and Determination of Safety
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an
exemption from the requirement for a tolerance (the legal limit for a
pesticide chemical residue in or on a food) only if EPA determines that
the tolerance is ``safe.'' Section 408(c)(2)(A)(ii) of FFDCA defines
``safe'' to mean that ``there is a reasonable certainty that no harm
will result from aggregate exposure to the pesticide chemical residue,
including all anticipated dietary exposures and all other exposures for
which there is reliable information.'' This includes exposure through
drinking water and in residential settings but does not include
occupational exposure. When making a safety determination for an
exemption from the requirement of a tolerance, FFDCA section
408(c)(2)(B) directs EPA to take into account the considerations in
section 408(b)(2)(C) and (D). Section 408(b)(2)(C) of FFDCA requires
EPA to give special consideration to exposure of infants and children
to the pesticide chemical residue in establishing a tolerance and to
``ensure that there is a reasonable certainty that no harm will result
to infants and children from aggregate exposure to the pesticide
chemical residue. . . .'' Section 408(b)(2)(D) lists other factors for
EPA's consideration in making safety determinations, e.g., the
validity, completeness, and reliability of available data, nature of
toxic effects, available information concerning the cumulative effects
of the pesticide chemical and other substances with a common mechanism
of toxicity, and available information concerning aggregate exposure
levels to the pesticide chemical and other related substances, among
other factors.
EPA establishes exemptions from the requirement of a tolerance only
in those cases where it can be clearly demonstrated that the risks from
aggregate exposure to pesticide chemical residues under reasonably
foreseeable circumstances will pose no harm to human health. In order
to determine the risks from aggregate exposure to pesticide inert
ingredients, the Agency considers the toxicity of the inert in
conjunction with possible exposure to residues of the inert ingredient
through food, drinking water, and through other exposures that occur as
a result of pesticide use in residential settings. If EPA is able to
determine that a finite tolerance is not necessary to ensure that there
is a reasonable certainty that no harm will result from aggregate
exposure to the inert ingredient, an exemption from the requirement of
a tolerance may be established.
Consistent with FFDCA section 408(c)(2)(A), and the factors
specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available
scientific data and other relevant information in support of this
action. EPA has sufficient data to assess the hazards of and to make a
determination on aggregate exposure for polymeric red, including
exposure resulting from the exemption established by this action. EPA's
assessment of exposures and risks associated with polymeric red
follows.
A. Toxicological Profile
EPA has evaluated the available toxicity data and considered their
validity, completeness, and reliability as well as the relationship of
the results of the studies to human risk. EPA has also considered
available information concerning the variability of the sensitivities
of major identifiable subgroups of consumers, including infants and
children. Specific information on the studies received and the nature
of the adverse effects caused by polymeric red as well as the no-
observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-
effect-level (LOAEL) from the toxicity studies are discussed in this
unit.
Polymeric red exhibits low levels of acute toxicity via the oral
route of exposure. Based on physical and chemical properties, it is not
expected to be of concern via the acute dermal and inhalation routes of
exposure. It is not a skin or eye irritant and it is not expected to be
a dermal sensitizer. No adverse effects were reported in the combined
28-day oral with reproduction/developmental toxicity screening study in
rats. No adverse maternal, reproduction or offspring effects were found
in this study. No oral chronic or carcinogenicity studies are available
for review, and structural alerts for potential carcinogenicity due to
the formation of aromatic amines were identified. However, the concern
is low for carcinogenicity based on negative results in a modified Ames
test designed to identify mutagenicity due to the formation of aromatic
amines, and the lack of toxicity in the available studies. No evidence
of neurotoxicity or immunotoxicity was seen in the database.
B. Toxicological Points of Departure/Levels of Concern
Once a pesticide's toxicological profile is determined, EPA
identifies toxicological points of departure (POD) and levels of
concern to use in evaluating the risk posed by human exposure to the
pesticide. For hazards that have a threshold below which there is no
appreciable risk, the toxicological POD is used as the basis for
derivation of reference values for risk assessment. PODs are developed
based on a careful analysis of the doses in each toxicological study to
determine the dose at which no adverse effects are observed (the NOAEL)
and the lowest dose at which adverse effects of concern are identified
(the LOAEL). Uncertainty/safety factors are used in conjunction with
the POD to calculate a safe exposure level--generally referred to as a
population-adjusted dose (PAD) or a reference dose (RfD)--and a safe
margin of exposure (MOE). For non-threshold risks, the Agency assumes
that any amount of exposure will lead to some degree of risk. Thus, the
Agency estimates risk in terms of the probability of an occurrence of
the adverse effect expected in a lifetime. For more information on the
general principles EPA uses in risk characterization and a complete
description of the risk assessment process, see <a href="https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides">https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides</a>.
The hazard profile of polymeric red is adequately defined. Overall,
polymeric red is of low acute, subchronic, and developmental toxicity.
No systemic toxicity is observed up to 1,000 mg/kg/day. Since signs of
toxicity were not observed, no toxicological endpoints of concern or
PODs were identified. Therefore, a qualitative risk assessment for
polymeric red can be performed.
C. Exposure Assessment
1. Dietary exposure. In evaluating dietary exposure to polymeric
red, EPA considered exposure under the proposed exemption from the
requirement of a tolerance. EPA assessed dietary exposures from
polymeric red in food and drinking water as follows:
Dietary exposure (food and drinking water) to polymeric red may
occur following ingestion of drinking water or foods with residues of
this chemical from their use in accordance with this exemption.
However, a quantitative dietary exposure assessment was not conducted
since a toxicological endpoint for risk assessment was not identified.
[[Page 26497]]
2. From non-dietary exposure. The term ``residential exposure'' is
used in this document to refer to non-occupational, non-dietary
exposure (e.g., textiles (clothing and diapers), carpets, swimming
pools, and hard surface disinfection on walls, floors, tables).
Polymeric red may be present in pesticide products that may be used
in and around the home. However, a quantitative residential exposure
assessment was not conducted since a toxicological endpoint for risk
assessment was not identified.
3. Cumulative effects from substances with a common mechanism of
toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when
considering whether to establish, modify, or revoke a tolerance, the
Agency consider ``available information'' concerning the cumulative
effects of a particular pesticide's residues and ``other substances
that have a common mechanism of toxicity.''
Based on the lack of toxicity in the available database, EPA has
not found polymeric red to share a common mechanism of toxicity with
any other substances, and polymeric red does not appear to produce a
toxic metabolite produced by other substances. For the purposes of this
tolerance exemption, therefore, EPA has assumed that polymeric red does
not have a common mechanism of toxicity with other substances. For
information regarding EPA's efforts to determine which chemicals have a
common mechanism of toxicity and to evaluate the cumulative effects of
such chemicals, see EPA's website at <a href="https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides">https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides</a>.
D. Additional Safety Factor for the Protection of Infants and Children
Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an
additional tenfold (10X) margin of safety for infants and children in
the case of threshold effects to account for prenatal and postnatal
toxicity and the completeness of the database on toxicity and exposure
unless EPA determines based on reliable data that a different margin of
safety will be safe for infants and children. This additional margin of
safety is commonly referred to as the Food Quality Protection Act
safety factor. In applying this provision, EPA either retains the
default value of 10X, or uses a different additional safety factor when
reliable data available to EPA support the choice of a different
factor.
Based on an assessment of polymeric red, EPA has concluded that
there are no toxicological endpoints of concern for the U.S.
population, including infants and children. Because there are no
threshold effects associated with polymeric red, EPA conducted a
qualitative assessment. As part of that assessment, the Agency did not
use safety factors for assessing risk, and no additional safety factor
is needed for assessing risk to infants and children.
E. Aggregate Risks and Determination of Safety
Because no toxicological endpoints of concern were identified, EPA
concludes that there is a reasonable certainty that no harm will result
to the general population, or to infants and children from aggregate
exposure to polymeric red residues.
V. Other Considerations
A. Analytical Enforcement Methodology
An analytical method is not required for enforcement purposes since
the Agency is establishing an exemption from the requirement of a
tolerance without any numerical limitation.
B. Response to Comment
EPA received one comment in response to the notice of filing. The
comment concerns pesticide use generally and advocates for ``natural''
alternatives to chemicals. While the Agency recognizes that some people
oppose the use of chemicals in or on food commodities, the FFDCA allows
EPA to establish tolerances and exemptions for residues of pesticides
in or on food as long as the Agency can determine they are safe. The
Agency has evaluated the aggregate exposures of polymeric red and has
determined that there is a reasonable certainty that no harm will
result to the general population, or to infants and children, from
aggregate exposure to polymeric red residues. The commenter has
provided no information to support a conclusion that the exemption from
the requirement of a tolerance is not safe.
VI. Conclusions
Therefore, an exemption from the requirement of a tolerance is
established for residues of poly (oxy-1,2-ethanediyl),
[alpha],[alpha]'-[[[4-[2-(4-methyl-2-
benzothiazolyl)diazenyl]phenyl]imino]di-2,1-ethanediyl]bis[[omega]-
hydroxy- (CAS Reg. No. 158172-12-4) when used as an inert ingredient
(colorant) in pesticide formulations applied to growing crops and raw
agricultural commodities after harvest under 40 CFR 180.910.
VII. Statutory and Executive Order Reviews
This action establishes an exemption from the requirement of a
tolerance under FFDCA section 408(d) in response to a petition
submitted to the Agency. The Office of Management and Budget (OMB) has
exempted these types of actions from review under Executive Order
12866, entitled ``Regulatory Planning and Review'' (58 FR 51735,
October 4, 1993). Because this action has been exempted from review
under Executive Order 12866, this action is not subject to Executive
Order 13211, entitled ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) or Executive Order 13045, entitled ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997). This action does not contain any information
collections subject to OMB approval under the Paperwork Reduction Act
(PRA) (44 U.S.C. 3501 et seq.), nor does it require any special
considerations under Executive Order 12898, entitled ``Federal Actions
to Address Environmental Justice in Minority Populations and Low-Income
Populations'' (59 FR 7629, February 16, 1994).
Since tolerances and exemptions that are established on the basis
of a petition under FFDCA section 408(d), such as the exemption in this
final rule, do not require the issuance of a proposed rule, the
requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et
seq.), do not apply.
This action directly regulates growers, food processors, food
handlers, and food retailers, not States or Tribes, nor does this
action alter the relationships or distribution of power and
responsibilities established by Congress in the preemption provisions
of FFDCA section 408(n)(4). As such, the Agency has determined that
this action will not have a substantial direct effect on States or
Tribal Governments, on the relationship between the National Government
and the States or Tribal Governments, or on the distribution of power
and responsibilities among the various levels of government or between
the Federal Government and Indian Tribes. Thus, the Agency has
determined that Executive Order 13132, entitled ``Federalism'' (64 FR
43255, August 10, 1999) and Executive Order 13175, entitled
``Consultation and Coordination with Indian Tribal Governments'' (65 FR
67249, November 9, 2000) do not apply to this action. In addition, this
action does not impose
[[Page 26498]]
any enforceable duty or contain any unfunded mandate as described under
Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et
seq.).
This action does not involve any technical standards that would
require Agency consideration of voluntary consensus standards pursuant
to section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) (15 U.S.C. 272 note).
VIII. Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
EPA will submit a report containing this rule and other required
information to the U.S. Senate, the U.S. House of Representatives, and
the Comptroller General of the United States prior to publication of
the rule in the Federal Register. This action is not a ``major rule''
as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 180
Environmental protection, Administrative practice and procedure,
Agricultural commodities, Pesticides and pests, Reporting and
recordkeeping requirements.
Dated: April 25, 2023.
Charles Smith,
Director, Registration Division, Office of Pesticide Programs.
Therefore, for the reasons stated in the preamble, EPA is amending
40 CFR chapter I as follows:
PART 180--TOLERANCES AND EXEMPTIONS FOR PESTICIDE CHEMICAL RESIDUES
IN FOOD
0
1. The authority citation for part 180 continues to read as follows:
Authority: 21 U.S.C. 321(q), 346a and 371.
0
2. In Sec. 180.910, amend table 1 to 180.910 by adding, in
alphabetical order, an entry for ``Poly (oxy-1,2-ethanediyl),
[alpha],[alpha]'-[[[4-[2-(4-methyl-2-
benzothiazolyl)diazenyl]phenyl]imino]di-2,1-ethanediyl]bis[[omega]-
hydroxy- (CAS Reg. No. 158172-12-4)'' to read as follows:
Sec. 180.910 Inert ingredients used pre- and post-harvest; exemptions
from the requirement of a tolerance.
* * * * *
Table 1 to 180.910
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Inert ingredients Limits Uses
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Poly (oxy-1,2-ethanediyl), [alpha],[alpha]'-[[[4-[2-(4- .............. Colorant.
methyl-2-benzothiazolyl)diazenyl]phenyl]imino]di-2,1-
ethanediyl]bis[[omega]-hydroxy- (CAS Reg. No. 158172-12-
4).
* * * * * * *
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[FR Doc. 2023-09121 Filed 4-28-23; 8:45 am]
BILLING CODE 6560-50-P
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