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[Federal Register Volume 75, Number 245 (Wednesday, December 22, 2010)]
[Rules and Regulations]
[Pages 80346-80350]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-32147]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[EPA-HQ-OPP-2009-0775; FRL-8855-7]

Flutolanil; Pesticide Tolerances

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This regulation establishes tolerances for residues of 
flutolanil in or on Brassica leafy vegetable group 5 and turnip greens. 
The Interregional Research Project Number 4 requested these tolerances 
under the Federal Food, Drug, and Cosmetic Act (FFDCA).

DATES: This regulation is effective December 22, 2010. Objections and 
requests for hearings must be received on or before February 22, 2011, 
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-2009-0775. 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-

[[Page 80347]]

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 (703) 305-5805.

FOR FURTHER INFORMATION CONTACT: Andrew Ertman, Registration Division 
(7505P), Office of Pesticide Programs, Environmental Protection Agency, 
1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone 
number: (703) 308-9367; e-mail address: ertman.andrew@epa.gov.

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. You may 
access Harmonized Guidelines referenced in this document at http://www.epa.gov/ocspp/pubs/frs/home/guideline.htm.

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-2009-0775 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 
February 22, 2011. 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-2009-0775, 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 (703) 305-5805.

II. Summary of Petitioned-For Tolerance

    In the Federal Register of January 6, 2010 (75 FR 864) (FRL-8801-
5), 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 
9E7612) by the Interregional Research Project No. 4 (IR-4), 500 College 
Road East, Suite 201W, Princeton, NJ 08540. The petition requested that 
40 CFR 180.484 be amended by establishing tolerances for residues of 
the fungicide flutolanil, N-(3-(1-methylethoxy)phenyl)-2-
(trifluoromethyl)benzamide and its metabolites converted to 2-
(trifluoromethyl) benzoic acid and calculated as flutolanil, in or on 
ginseng at 3.5 parts per million (ppm); vegetable, Brassica, leafy, 
group 5 at 0.11 ppm; and turnip, greens at 0.11 ppm. That notice 
referenced a summary of the petition prepared by Gowan Company, the 
registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the 
notice of filing.
    IR-4 later withdrew their request to establish a tolerance on 
ginseng. Also, EPA has revised the tolerance levels proposed by IR-4. 
The reasons for these changes are explained in Unit IV.C.

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 flutolanil including 
exposure resulting from the tolerances established by this action. 
EPA's assessment of exposures and risks associated with flutolanil 
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. The toxicology studies conducted on flutolanil demonstrate 
few or no biologically significant toxic effects. Liver effects in

[[Page 80348]]

rats included increases in absolute and relative liver weight in the 
absence of clinical chemistry and/or histopathology findings. In dogs, 
there was an elevation in alkaline phosphatase and cholesterol levels 
together with dose-related increases in absolute and relative liver 
weights, slightly enlarged livers, and an increase in severity of 
glycogen deposition. The increased liver weights are considered to be 
an adaptive response to flutolanil treatment and not an adverse effect. 
Based on the lack of evidence of carcinogenicity and the lack of 
evidence of mutagenicity, flutolanil is classified as ``not likely to 
be carcinogenic to humans.''
    Flutolanil is not neurotoxic, and it is not a developmental or 
reproductive toxicant. No maternal, reproductive, or developmental 
toxicity was observed at the limit dose. There was no evidence for 
increased susceptibility of rat or rabbit fetuses to in utero exposure 
or rat pups to pre- and post-natal exposure to flutolanil. No toxic 
effects were observed in studies in which flutolanil was administered 
by the dermal route of exposure at the limit dose.
    Specific information on the studies received and the nature of the 
adverse effects caused by flutolanil as well as the no-observed-
adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-
level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in docket ID number EPA-HQ-OPP-2009-0775 in the 
document titled ``Flutolanil: Human Health Risk Assessment for 
Flutolanil on Brassica Leafy Vegetables (Crop Group 5) and Turnip 
Greens'' on pages 27-30.

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 flutolanil used for 
human risk assessment is discussed in Unit III.B., of the final rule 
published in the Federal Register of June 11, 2008 (73 FR 33013) (FRL-
8365-6).

C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary 
exposure to flutolanil, EPA considered exposure under the petitioned-
for tolerances as well as all existing flutolanil tolerances in 40 CFR 
180.484. EPA assessed dietary exposures from flutolanil in food 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.
    No such effects were identified in the toxicological studies for 
flutolanil; therefore, a quantitative acute dietary exposure assessment 
is unnecessary.
    ii. Chronic exposure. In conducting the chronic dietary exposure 
assessment EPA used the food consumption data from the U.S. Department 
of Agriculture (USDA) 1994-1996 and 1998 Continuing Survey of Food 
Intake by Individuals (CSFII). As to residue levels in food, the 
chronic dietary analysis included tolerance level residues, 100% crop 
treated estimates and default processing factors.
    iii. Cancer. Based on the data summarized in Unit III.A., EPA has 
concluded that flutolanil does not pose a cancer risk to humans. 
Therefore, a dietary exposure assessment for the purpose of assessing 
cancer risk is unnecessary.
    iv. Anticipated residue and percent crop treated (PCT) information. 
EPA did not use anticipated residue and/or PCT information in the 
dietary assessment for flutolanil. Tolerance level residues and/or 100% 
CT were assumed for all food commodities.
    2. Dietary exposure from drinking water. The Agency used screening 
level water exposure models in the dietary exposure analysis and risk 
assessment for flutolanil in drinking water. These simulation models 
take into account data on the physical, chemical, and fate/transport 
characteristics of flutolanil. 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.
    Based on the Pesticide Root Zone Model and Exposure Analysis 
Modeling System (PRZM-EXAMs) and Screening Concentration in Ground 
Water (SCI-GROW) models, the estimated drinking water concentrations 
(EDWCs) of flutolanil for chronic exposures are estimated to be 8.5 
parts per billion (ppb) for surface water and 0.7 ppb for ground water.
    Modeled estimates of drinking water concentrations were directly 
entered into the dietary exposure model. For chronic dietary risk 
assessment, the water concentration of value 8.5 ppb was used to assess 
the contribution to drinking water.
    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). Flutolanil is 
currently registered for the following uses that could result in 
residential exposures: Turf grass and ornamental plants. Although there 
is a potential for residential (non-occupational) exposure, a 
quantitative exposure assessment was not conducted since no 
toxicological endpoint attributable to acute, short-term or 
intermediate-term exposure have been identified and the current use 
pattern does not indicate chronic or long-term exposure (6 or more 
months of continuous exposure) potential. Further information regarding 
EPA standard assumptions and generic inputs for residential exposures 
may be found at http://www.epa.gov/pesticides/trac/science/trac6a05.pdf.
    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 flutolanil to share a common mechanism of 
toxicity with any other substances, and flutolanil does not appear to 
produce a toxic metabolite produced by other substances. For the 
purposes of this tolerance action, therefore, EPA has

[[Page 80349]]

assumed that flutolanil 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. Prenatal and postnatal sensitivity. There was no evidence of 
increased susceptibility of rat or rabbit fetuses to in utero exposure 
or rat pups to prenatal and postnatal exposure to flutolanil. 
Flutolanil is not a developmental or reproductive toxicant. No 
maternal, reproductive, or developmental toxicity was observed at the 
limit dose.
    3. Conclusion. EPA has determined that reliable data show 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 toxicity database for flutolanil is complete except for 
acute and subchronic neurotoxicity and immunotoxicity studies. Recent 
changes to 40 CFR part 158 make acute and subchronic neurotoxicity 
testing (OPPTS Test Guideline 870.6200), and immunotoxicity testing 
(OPPTS Test Guideline 870.7800) required for pesticide registration. 
However, the available data for flutolanil do not suggest that the 
compound produces hematological or thymus/spleen organ effects 
indicative of immunotoxicity. Further, there is no evidence of 
neurotoxicity in any study in the toxicity database for flutolanil. 
Therefore, EPA does not believe that conducting neurotoxicity and 
immunotoxicity studies will result in a lower POD than currently used 
for overall risk assessment. Consequently, an additional database 
uncertainty factor (UF) does not need to be applied.
    ii. There is no indication that flutolanil is a neurotoxic chemical 
and there is no need for a developmental neurotoxicity study or 
additional UFs to account for neurotoxicity.
    iii. There is no evidence that flutolanil exposure results in 
increased susceptibility in in utero rats or rabbits in the prenatal 
developmental studies or in young rats in the 2-generation reproduction 
study.
    iv. There are no residual uncertainties identified in the exposure 
databases. The dietary food exposure assessments were performed based 
on 100% CT and tolerance-level residues. EPA made conservative 
(protective) assumptions in the ground and surface water modeling used 
to assess exposure to flutolanil in drinking water. Residential 
exposure does not pose a concern for flutolanil because (1) chronic 
residential exposure is not expected; and (2) although short-term or 
intermediate-term residential exposure may occur, no relevant adverse 
effects were identified for dermal or incidental oral or inhalation 
exposure related to residential use. These assessments will not 
underestimate the exposure and risks posed by flutolanil.

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 
acute PAD (aPAD) and chronic PAD (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.
    1. Acute risk. An acute aggregate risk assessment takes into 
account acute exposure estimates from dietary consumption of food and 
drinking water. No adverse effect resulting from a single oral exposure 
was identified and no acute dietary endpoint was selected. Therefore, 
flutolanil is not expected to pose an acute risk.
    2. Chronic risk. Using the exposure assumptions described in this 
unit for chronic exposure, EPA has concluded that chronic exposure to 
flutolanil from food and water will utilize 1.5% of the cPAD for 
children 1 to 2 years old, the population group receiving the greatest 
exposure. Based on the explanation in Unit III.C.3., regarding 
residential use patterns, chronic residential exposure to residues of 
flutolanil is not expected.
    3. Short- and intermediate-term risk. Short- and intermediate-term 
aggregate exposure takes into account short- and intermediate-term 
residential exposure plus chronic exposure to food and water 
(considered to be a background exposure level). Because no short- and/
or intermediate-term adverse effects were identified, flutolanil is not 
expected to pose a short- or intermediate-term risk.
    4. Aggregate cancer risk for U.S. population. Based on the lack of 
evidence of carcinogenicity in two adequate rodent carcinogenicity 
studies, flutolanil is not expected to pose a cancer risk to humans.
    5. 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 flutolanil residues.

IV. Other Considerations

A. Analytical Enforcement Methodology

    An adequate enforcement methodology, (Method AU/95R/04), a common 
moiety Gas Chromatography/Mass Spectrometry (GC/MS) method which 
determines residues of flutolanil and metabolites as 2-trifluoromethyl 
benzoic acid (2-TFBA) is available for enforcement.
    The method may be requested from: Chief, Analytical Chemistry 
Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 
20755-5350; telephone number: (410) 305-2905; e-mail address: 
residuemethods@epa.gov.

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 FFDCA 
section 408(b)(4). 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, FFDCA section 408(b)(4) requires that EPA explain 
the reasons for departing from the Codex level. No Canadian, Mexican or 
Codex MRLs have been established for Brassica leafy vegetables and/or 
turnip greens.

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C. Revisions to Petitioned-For Tolerances

    The proposed tolerance level of 0.11 ppm for both Brassica leafy 
vegetable group 5 and turnip greens has been revised to 0.1 ppm. The 
level of 0.1 ppm is based on the sum of the demonstrated levels of 
quantitation of flutolanil and metabolite M4, each 0.05 ppm. The 
proposed tolerance of 0.11 ppm is based on one mustard green trial (of 
10 trials) where flutolanil was quantitated at 0.05 to 0.06 ppm, and M4 
was approximately 0.03 ppm. Because total residues were pre>
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