Federal Register proposed rules — 1997-05-16

issue-1997-05-16Federal Register proposed rules — 1997-05-16Proposed Regulation

Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.

FR Doc. 97-13047 Bromoxynil; Pesticide Tolerances; Extension of Comment Period
[Federal Register Volume 62, Number 95 (Friday, May 16, 1997)]
[Proposed Rules]
[Page 27002]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13047]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[OPP-300486A; FRL-5719-2]
RIN AC18

Bromoxynil; Pesticide Tolerances; Extension of Comment Period

AGENCY: Environmental Protection Agency (EPA).

ACTION: Extension of comment period.

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SUMMARY: Notice is hereby given that the period for filing public 
comment on the proposed tolerances for bromoxynil and its metabolite 
DBHA on cotton commodities, and for bromoxynil on animal commodities is 
extended.

DATES: Public comments must be received on or before May 26, 1997.

ADDRESSES: By mail, submit written comments to: Public Information and 
Records Integrity Branch, Information and Resources Division (7506C), 
Office of Pesticide Programs, Environmental Protection Agency, 401 M 
St., SW., Washington, DC 20460. In person, bring comments to Rm. 1132, 
CM #2, 1921 Jefferson Davis Highway, Arlington, VA.
    Comments and data may also be submitted electronically by following 
the instructions under Unit II. of this document. No Confidential 
Business Information (CBI) should be submitted through e-mail.

FOR FURTHER INFORMATION CONTACT: By mail: Jim Tompkins, Product Manager 
(PM) 25, Registration Division (7505C), Office of Pesticide Programs, 
Environmental Protection Agency, 401 M St., SW., Washington, DC 20460. 
Office location, telephone number, and e-mail address: Rm. 241, CM #2, 
1921 Jefferson Davis Hwy., Arlington, VA, (703) 305-5697; e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    In the Federal Register of May 2, 1997 (62 FR 24065) (FRL-5617-5), 
EPA issued a Notice of Proposed Rulemaking for establishment of 
tolerances for residues of the herbicide bromoxynil and its metabolite 
DBHA on cotton commodities; for establishment of tolerances for 
residues of bromoxynil on poultry commodities (including eggs); and for 
revision of tolerances for residues of bromoxynil on other meat 
commodities and milk. Written comments on the proposed rule were to be 
received on or before May 19, 1997. On May 6, 1997, the Union of 
Concerned Scientists and the Environmental Defense Fund requested that 
EPA extend this comment period from 17 to 60 days.
    Under section 408(e) of the FFDCA, EPA is required to provide a 60-
day comment period on proposed rules unless EPA finds for good cause 
that it would be in the public interest to provide a shorter period. 
EPA shortened the comment period on the bromoxynil tolerances to 17 
days based on the fact that previous notice had been provided on the 
central issue of establishing a tolerance permitting use of bromoxynil 
on cotton, and cotton growers faced a potential hardship if a decision 
is not made expeditiously.
    In their request for an extension of the comment period, the Union 
of Concerned Scientists and the Environmental Defense Fund cited a 
number of health issues and questions regarding interpretation of the 
FFDCA safety standard. EPA does not believe these groups have shown 
that it is not in the public interest to shorten the comment period. 
EPA also does not think that the groups have demonstrated that the 
comment period is inadequate to address the issues they have raised. 
Nonetheless, EPA will extend the comment period for an additional 7 
days. Comments will now be due on or before May 26, 1997.

II. Public Docket

    The official record for the proposed rule, as well as the public 
version, has been established for the proposal under docket control 
number ``OPP-300486'' (including comments and data submitted 
electronically as described below). A public version of this record, 
including printed, paper versions of electronic comments, which does 
not include any information claimed as CBI, is available for inspection 
from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal 
holidays. The official record is located at the address in 
``ADDRESSES'' at the beginning of this document.
    Electronic comments can be sent directly to EPA at:
    [email protected]

    Electronic comments must be submitted as an ASCII file avoiding the 
use of special characters and any form of encryption. Comments and data 
will also be accepted on disks in Wordperfect 5.1 file format or ASCII 
file format. All comments and data in electronic form must be 
identified by the docket control number OPP-300486. Electronic comments 
on the proposed rule may be filed online at many Federal Depository 
Libraries.

List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, 
Agricultural commodities, Food additive, Pesticides and pests, 
Reporting and recordkeeping requirements.
    Dated: May 12, 1997.
James Jones,
Acting Director, Registration Division, Office of Pesticide Programs.
[FR Doc. 97-13047 Filed 5-15-97; 8:45 am]
BILLING CODE 6560-50-F

Complete official Federal Register PDF

FR Doc. 97-12951 Rail General Exemption AuthorityNonferrous Recyclables
[Federal Register Volume 62, Number 95 (Friday, May 16, 1997)]
[Proposed Rules]
[Pages 27003-27004]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12951]

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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Part 1039

[STB Ex Parte No. 561]

Rail General Exemption Authority--Nonferrous Recyclables

AGENCY: Surface Transportation Board, Transportation.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Interstate Commerce Commission (ICC) issued a notice of 
proposed rulemaking (NPR) in Ex Parte No. 346 (Sub-No. 36) on August 
23, 1994, published in the Federal Register on August 24, 1994, to 
consider whether to exempt partially from regulation the rail 
transportation of certain nonferrous recyclables. The ICC Termination 
Act of 1995 significantly changed the basis for that notice. 
Consequently, we are issuing a new NPR proposing a total exemption from 
regulation for 29 nonferrous recyclable commodities. We are also 
announcing a policy for the interim to govern the 11 nonferrous 
recyclable commodities that were previously partially exempted. 
Finally, in a separate decision served today, Ex Parte No. 346 (Sub-No. 
36) is being discontinued.

DATES: Persons interested in participating in this proceeding as a 
party of record by filing and receiving written comments must file a 
notice of intent to participate by May 26, 1997. We will issue a 
service list of the parties of record shortly thereafter. Comments and 
replies must be served on all parties of record. Comments are due on 
June 30, 1997 and replies are due on July 15, 1997.

ADDRESSES: Send an original plus 10 copies of notices of intent to 
participate and pleadings referring to STB Ex Parte No. 561 to: Surface 
Transportation Board, Office of the Secretary, Case Control Unit, 1925 
K Street, N.W., Washington, DC 20423-0001.

FOR FURTHER INFORMATION CONTACT: Beryl Gordon, (202) 565-1600. [TDD for 
the hearing impaired: (202) 565-1695.]

SUPPLEMENTARY INFORMATION: The Board's decision proposing these 
regulations is available to all persons for a charge by phoning DC NEWS 
& DATA, INC., at (202) 289-4357.

Environmental and Energy Considerations

    We preliminarily conclude that, if an exemption is granted, it will 
not significantly affect either the quality of the human environment or 
the conservation of energy resources. We invite comments in this area.

Initial Regulatory Flexibility Analysis

    Pursuant to 5 U.S.C. 605(b), the Board preliminarily concludes that 
an exemption would not have a significant economic impact on a 
substantial number of small entities. No new regulatory requirements 
would be imposed, directly or indirectly, on such entities. The impact, 
if any, would be to reduce the amount of paperwork and regulation. If 
an exemption were granted, it would be based partly on a finding that 
regulation of this transportation is not necessary to protect shippers 
(including small shippers) from abuse of market power. See 49 U.S.C. 
10502. Such a finding, if made, would indicate that a substantial 
number of small entities would not be significantly affected. We invite 
comments in this area.

List of Subjects in 49 CFR Part 1039

    Agricultural commodities, Intermodal transportation, Manufactured 
commodities, Railroads.

    Decided: April 24, 1997.

    By the Board, Chairman Morgan and Vice Chairman Owen.
Vernon A. Williams,
Secretary.

    For the reasons set forth in the preamble, title 49, chapter X, 
Part 1039 of the Code of Federal Regulations is proposed to be amended 
as follows:

PART 1039--EXEMPTIONS

    1. The authority citation for Part 1039 continues to read as 
follows:

    Authority: 5 U.S.C. 553; and 49 U.S.C. 10502 and 13301.

    2. In Sec. 1039.11, paragraph (a) is proposed to be amended by 
adding the following entries in numerical order to the table and by 
revising the first sentence to the undesignated text following the 
table to read as follows:

Sec. 1039.11  Miscellaneous commodities exemptions.

    (a) * * *

------------------------------------------------------------------------
     STCC No.             STCC tariff                 Commodity         
------------------------------------------------------------------------
                                                                        
                   *        *        *        *        *                
20511.............  6001-X, eff............  Bread or other bakery      
                                              products exc. biscuits,   
                                              crackers, pretzels or     
                                              other dry bakery products 
                                              See 20521-20529.          
                    1-1-96.................                             
22941.............  ......do...............  Textile waste, garnetted,  
                                              processed, or recovered or
                                              recovered fibres or flock 
                                              exc. packing or wiping    
                                              cloths or rags. See 22994.

[[Page 27004]]

                                                                        
22973.............  ......do...............  Textile fibres, laps,      
                                              noils, nubs, roving,      
                                              sliver or slubs, prepared 
                                              for spinning, combed or   
                                              converted.                
22994.............  ......do...............  Packing or wiping cloths or
                                              rags (processed textile   
                                              wastes).                  
24293.............  ......do...............  Shavings or sawdust.       
30311.............  ......do...............  Reclaimed rubber.          
3229924...........  ......do...............  Cullet (broken glass).     
33312.............  ......do...............  Copper matte, speiss, flue 
                                              dust, or residues, etc.   
33322.............  ......do...............  Lead matte, speiss, flue   
                                              dust, dross, slag,        
                                              skimmings, etc.           
33332.............  ......do...............  Zinc dross, residues,      
                                              ashes, etc.               
33342.............  ......do...............  Aluminum residues, etc.    
33398.............  ......do...............  Misc. nonferrous metal     
                                              residues, including solder
                                              babbitt or type metal     
                                              residues.                 
40112.............  ......do...............  Ashes.                     
40212.............  ......do...............  Brass, bronze, copper or   
                                              alloy scrap, tailings, or 
                                              wastes.                   
40213.............  ......do...............  Lead, zinc, or alloy scrap,
                                              tailings or wastes.       
40214.............  ......do...............  Aluminum or alloy scrap,   
                                              tailings or wastes.       
4021960...........  ......do...............  Tin scrap, consisting of   
                                              scraps or pieces of       
                                              metallic tin, clippings,  
                                              drippings, shavings,      
                                              turnings, or old worn-out 
                                              block tin pipe having     
                                              value for remelting       
                                              purposes only.            
40221.............  ......do...............  Textile waste, scrap or    
                                              sweepings.                
40231.............  ......do...............  Wood scrap or waste.       
40241.............  ......do...............  Paper waste or scrap.      
40251.............  ......do...............  Chemical or petroleum      
                                              waste, including spent.   
40261.............  ......do...............  Rubber or plastic scrap or 
                                              waste.                    
4029114...........  ......do...............  Municipal garbage waste,   
                                              solid, digested and       
                                              ground, other than sewage 
                                              waste or fertilizer.      
4029176...........  ......do...............  Automobile shredder        
                                              residue.                  
4111434...........  ......do...............  Bags, old, burlap, gunny,  
                                              istle (ixtle), jute, or   
                                              sisal, NEC.               
41115.............  ......do...............  Articles, used, returned   
                                              for repair or             
                                              reconditioning.           
42111.............  ......do...............  Nonrevenue movement of     
                                              containers, bags, barrels,
                                              bottles, boxes, crates,   
                                              cores, drums, kegs, reels,
                                              tubes, or carriers, NEC,  
                                              empty, returning in       
                                              reverse of route used in  
                                              loaded movement, and so   
                                              certified.                
42112.............  ......do...............  Nonrevenue movement of     
                                              shipping devices,         
                                              consisting of blocking,   
                                              bolsters, cradles,        
                                              pallets, racks, skids,    
                                              etc., empty, returning in 
                                              reverse of route used in  
                                              loaded movement, and so   
                                              certified                 
42311.............  ......do...............  Revenue movement of        
                                              containers, bags, barrels,
                                              bottles, boxes, crates,   
                                              cores, drums, kegs, reels,
                                              tubes, or carriers, NEC., 
                                              empty, returning in       
                                              reverse of route used in  
                                              loaded movement and so    
                                              certified.                
------------------------------------------------------------------------

    Also excepted from this exemption are those commodities previously 
exempt, and any transportation service regarding which the Commission 
has made a finding of market dominance. * * *
* * * * *
[FR Doc. 97-12951 Filed 5-15-97; 8:45 am]
BILLING CODE 4915-00-P

Complete official Federal Register PDF

FR Doc. 97-12949 Rail General Exemption AuthorityExemption of Nonferrous Recyclables and Railroad Rates on Recyclable Commodities
[Federal Register Volume 62, Number 95 (Friday, May 16, 1997)]
[Proposed Rules]
[Pages 27002-27003]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12949]

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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Part 1039

[Ex Parte No. 346 (Sub-No. 36)]

Rail General Exemption Authority--Exemption of Nonferrous 
Recyclables and Railroad Rates on Recyclable Commodities

AGENCY: Surface Transportation Board, Transportation.

ACTION: Proposed rule, withdrawal.

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[[Page 27003]]

SUMMARY: The Surface Transportation Board is discontinuing the 
rulemaking in Ex Parte No. 346 (Sub-No. 36).

DATES: This withdrawal is made on May 5, 1997.

FOR FURTHER INFORMATION CONTACT: Beryl Gordon, (202) 565-1600. [TDD for 
the hearing impaired: (202) 565-1695.]

SUPPLEMENTARY INFORMATION: In a notice of proposed rulemaking (NPR) in 
this proceeding served on August 23, 1994, and published in the Federal 
Register on August 24, 1994 (59 FR 43529), the Interstate Commerce 
Commission (ICC) solicited comments on a proposal to exempt partially 
from regulation the rail transportation of 28 nonferrous recyclable 
commodities. After the issuance of the NPR, the ICC Termination Act of 
1995 (ICCTA), Pub. L. No. 104-88, 109 Stat. 803 was enacted. The ICCTA 
significantly changed the basis for the NPR by eliminating former 49 
U.S.C. 10731(e). Consequently, in Rail General Exemption Authority--
Nonferrous Recyclables, STB Ex Parte No. 561 (published elsewhere in 
this section of the Federal Register), we are issuing a new NPR 
proposing a total exemption from regulation for 29 nonferrous 
recyclable commodities. Because we will consider a broader exemption in 
STB Ex Parte No. 561, we are discontinuing this proceeding. The 
comments previously filed in response to the NPR will be made part of 
the record in STB Ex Parte No. 561 and need not be refiled.

    Decided: April 24, 1997.

    By the Board, Chairman Morgan and Vice Chairman Owen.
Vernon A. Williams,
Secretary.
[FR Doc. 97-12949 Filed 5-15-97; 8:45 am]
BILLING CODE 4915-00-P

Complete official Federal Register PDF

FR Doc. 97-12938 Administrative Review Process, Testing Elimination of the Fourth Step of Administrative Review in the Disability Claim Process (Request for Review by the Appeals Council)
[Federal Register Volume 62, Number 95 (Friday, May 16, 1997)]
[Proposed Rules]
[Pages 26997-27000]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12938]

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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Regulations No. 4 and 16]
RIN 0960-AE58

Administrative Review Process, Testing Elimination of the Fourth 
Step of Administrative Review in the Disability Claim Process (Request 
for Review by the Appeals Council)

AGENCY: Social Security Administration.

ACTION: Proposed rules.

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SUMMARY: We propose to amend our rules to establish authority to test 
elimination of the final step in the administrative review process used 
in determining claims for Social Security and Supplemental Security 
Income (SSI) benefits based on disability. If these proposed rules are 
published in final, the right of appeal for a claimant who is included 
in the test procedures and is dissatisfied with the decision of an 
administrative law judge (ALJ) would be to file a civil action in 
Federal district court, rather than to request the Appeals Council to 
review the decision. We are proposing to test procedures that eliminate 
the request for Appeals Council review in furtherance of the Plan for a 
New Disability Claim Process that former Commissioner of Social 
Security Chater approved in September 1994. Unless specified, all other 
regulations relating to the disability determination process and the 
administrative review process remain unchanged.

DATES: To be sure that your comments are considered, we must receive 
them no later than June 16, 1997.

ADDRESSES: Comments should be submitted in writing to the Commissioner 
of Social Security, P.O. Box 1585, Baltimore, MD 21235; sent by telefax 
to (410) 966-2830; sent by E-mail to ``[email protected]''; or, 
delivered to the Division of Regulations and Rulings, Social Security 
Administration, 3-B-1 Operations Building, 6401 Security Boulevard, 
Baltimore, MD 21235, between 8:00 a.m. and 4:30 p.m. on regular 
business days. Comments may be inspected during these same hours by 
making arrangements with the contact person shown below.

FOR FURTHER INFORMATION CONTACT: Harry J. Short, Legal Assistant, 
Division of Regulations and Rulings, Social Security Administration, 
6401 Security Boulevard, Baltimore, MD 21235, (410) 965-6243 for 
information about these rules. For information on eligibility or 
claiming benefits, call our national toll-free number, 1-800-772-1213.

SUPPLEMENTARY INFORMATION:

Background

    The Social Security Administration (SSA) currently uses a four-step 
process in deciding claims for Social Security benefits under title II 
of the Social Security Act (the Act) and for SSI benefits under title 
XVI of the Act. Claimants who are not satisfied with the initial 
determination on their claims may request reconsideration. Claimants 
who are not satisfied with the reconsidered determination may request a 
hearing before an ALJ, and claimants who are dissatisfied with an ALJ's 
decision may request review by the Appeals Council. Claimants who have 
completed these four steps, and who are dissatisfied with the final 
decision, may request judicial review of the decision by filing a civil 
action in Federal district court. 20 CFR Secs. 404.900 and 416.1400.
    SSA's Plan for a New Disability Claim Process (59 FR 47887, 
September 19, 1994) anticipates establishment of a redesigned, two-step 
process for deciding Social Security and SSI claims based on 
disability. The redesign plan anticipates that the process for 
determining disability can be significantly improved by strengthening 
the steps of the process in which we make initial determinations and 
provide dissatisfied claimants an opportunity for a hearing before an 
ALJ, and by eliminating the reconsideration step and the step in which 
claimants request the Appeals Council to review the decisions of ALJs.
    In 20 CFR 404.906 and 416.1406 (60 FR 20023, April 24, 1995), we 
have established authority to test, singly and in combination, several 
model procedures for modifying the disability claims process. Under 
that authority, we are currently testing, in isolation from other 
possible changes, a modification of the initial determination step in 
which a single decisionmaker, rather than a team composed of a 
disability examiner and a medical consultant, makes the initial 
determination of disability. In addition, under authority established 
in 20 CFR 404.943 and 416.1443 (60 FR 47469, September 13, 1995), we 
are also testing, in another model for evaluating a possible change in 
isolation from other changes, use of an adjudication officer as the 
focal point for all prehearing activities in disability cases in which 
a claimant requests a hearing before an ALJ.
    To assess how the above changes and other elements of the 
disability redesign plan would work together in different combinations, 
we initiated an integrated test on April 7, 1997, that combines model 
procedures for major elements of the redesign plan. As presently 
structured under existing testing authority (established in 
Secs. 404.906, 404.943, 416.1406, and 416.1443 in combination), this 
integrated model includes, in addition to models for the single 
decisionmaker and the adjudication officer, a model for procedures to 
provide a predecision interview conducted by the single decisionmaker 
(at which a claimant for benefits based on disability will have an 
opportunity to submit further evidence and have an interview with the 
initial decisionmaker if the evidence does not support a fully 
favorable initial disability determination), and a model to test 
eliminating the reconsideration step in disability claims.
    In order to increase our ability to assess the effects of possible 
modifications of the disability claim process in combination, we are 
proposing in these rules to amend our regulations to authorize testing 
of an additional modification in our integrated model. We are proposing 
to incorporate in this model additional

[[Page 26998]]

procedures to test elimination of the step in that process in which a 
claimant requests the Appeals Council to review the hearing decision of 
an ALJ.
    Under the proposed rules, we will randomly select approximately one 
half of the requests for an ALJ hearing in the integrated model for 
potential inclusion in the proposed test procedures. The remaining 
requests for hearing in the integrated model will be processed under 
our existing regulations concerning the Appeals Council and judicial 
review. This will enable us to assess other modifications tested in the 
integrated model in association with both the proposed test procedures 
for eliminating the request for Appeals Council review step and our 
existing request for review procedures.
    Under the proposed rules, we will eliminate the request for review 
step (which has been established by agency regulations and is not 
mandated by the Act) in a case in the integrated model if: (1) The case 
has been randomly selected for inclusion in this aspect of the model, 
and (2) an ALJ issues a decision in the case that is less than wholly 
favorable to the claimant (i.e., unfavorable or only partially 
favorable to the claimant). Cases in the integrated model in which an 
ALJ issues a wholly favorable decision, dismisses a request for 
hearing, or issues a recommended decision will not be included in the 
proposed procedures. These cases will be processed under our existing 
regulations concerning the Appeals Council and judicial review.
    In a case to which the proposed rules apply, the appeal available 
to the claimant from the ALJ's decision will be filing an action in 
Federal district court. Requesting review by the Appeals Council will 
be eliminated as an appeal and as a prerequisite to seeking judicial 
review.
    Our specific goals in testing elimination of the request for review 
step will be to assess the effects of this change, as it functions in 
conjunction with other modifications in the disability claim process 
included in the integrated model, on: (1) Judicial workloads, and (2) 
the legal sufficiency of decisions subjected to judicial review. We 
consider the effects of the change in those respects to represent the 
principal, practical issues bearing on the advisability of eliminating 
the request for review step in connection with the planned, overall 
redesign of the disability claim process.
    SSA's disability redesign plan anticipates that the request for 
Appeals Council review will be eliminated in conjunction with the 
establishment of procedures to increase the number of ALJ decisions 
that the Council will consider for quality review purposes under its 
authority to review cases on its own motion. We are not including 
procedures to test the enhanced own-motion functions anticipated for 
the Appeals Council in these proposed rules. We are not including such 
procedures because we wish to concentrate the proposed test on 
producing information concerning the effects of eliminating the request 
for Appeals Council review on judicial workloads and the legal 
sufficiency of SSA's final decisions. In addition, we are preparing to 
propose permanent rules to regulate existing procedures and establish 
new procedures for referring cases to the Appeals Council for possible 
review under its own-motion authority. Those proposed changes should 
provide, if adopted in final, increased information regarding own-
motion review by the Council.
    We propose to test the effect of eliminating the request for review 
step on judicial workloads by comparing the rate at which civil actions 
are filed by individuals whose claims are processed under the current 
administrative review steps in the disability claims process--i.e., the 
four step process--to the rate at which civil actions are filed in 
cases selected for processing under the proposed test procedures. We 
will also consider the rate at which civil actions are filed in cases 
in the integrated model in which we retain the request for Appeals 
Council review.
    We propose to assess the effect of eliminating the request for 
review on the legal sufficiency of final decisions by comparing the 
rates at which, following the filing of civil actions in cases included 
in the integrated model and in a control sample of cases processed 
under the current administrative review steps in the disability claims 
process, we request court-remand of a case within the period during 
which the Commissioner of Social Security may file his answer to a 
civil action under Sec. 205(g) of the Act. The Appeals Council, working 
with agency counsel, will evaluate the claims in the integrated model 
and in the control sample to identify instances in which a court should 
be requested (as courts may be under existing procedures) to remand a 
case for further administrative action.
    We believe that, in conjunction with other modifications we are 
testing in the integrated model, elimination of the request for review 
step could have a significant beneficial effect on the disability 
claims process and on our ability to adjudicate claims timely and 
accurately. We place a high priority on speedily including a test of 
the elimination of that step in our integrated model. The proposed 
rules have the limited purpose of authorizing test procedures in a 
relatively small number of cases (projected at approximately 1900) to 
determine how elimination of the request for review step could affect 
judicial workloads and the legal sufficiency of the agency's final 
decisions. If we ultimately decide to proceed with elimination of this 
step, we would publish a Notice of Public Rulemaking setting forth 
detailed proposals concerning all the changes that would be made in the 
administrative review process to eliminate the request for review by 
the Appeals Council. Therefore, and because we have previously provided 
the public with the opportunity to comment on all aspects of our basic 
disability redesign plan, including the elimination of the request for 
review step, we are providing a 30-day comment period for these 
proposed rules rather than the 60-day period we usually provide. We 
believe that a 30-day comment period is sufficiently long, in this 
instance, to allow the public a meaningful opportunity to comment on 
the proposed rules in accordance with Executive Order (E.O) 12866.

Proposed Regulations

    We propose to add new Secs. 404.966 and 416.1466 to set forth 
authority to test elimination of the step in the administrative review 
process in which claimants for benefits based on disability request the 
Appeals Council to review the decision of an ALJ. The proposed rules 
specify in Secs. 404.966(a) and 416.1466(a) that testing of elimination 
of the request for review step will be conducted in randomly selected 
cases in which we have tested a combination of model procedures for 
modifying the disability claim process as authorized in Secs. 404.906, 
404.943, 416.1406 and 416.1443, and an ALJ has issued a decision that 
is less than wholly favorable to the claimant.
    Under proposed Secs. 404.966(b) and 416.1466(b), which describe the 
effect of an ALJ's decision, the ALJ's decision will be binding unless 
a party to the decision files a civil action, the Appeals Council 
reviews the decision on its own motion under the authority provided in 
20 CFR 404.969 and 416.1469, or the decision is revised by the 
administrative law judge or the Appeals Council under the rules on 
reopening final decisions in 20 CFR 404.987 and 416.1487. Under these 
provisions, the appeal available to a party who is dissatisfied with 
the decision of an ALJ will be to seek judicial review. As is true of 
the

[[Page 26999]]

provisions of proposed Secs. 404.966 and 416.1466 as a whole, the 
proposed provisions of Secs. 404.966(b) and 416.1466(b) pertain only to 
those ALJ decisions that have been identified for inclusion in that 
part of our integrated model in which the request for review by the 
Appeals Council is eliminated.
    Proposed Secs. 404.966(c) and 416.1466(c) describe the notice an 
ALJ will issue to advise a party to a decision included in this part of 
the integrated model of the right to file a civil action. Proposed 
Secs. 404.966(d) and 416.1466(d) describe the right a party will have 
to request the Appeals Council to grant an extension of time to file a 
civil action.

Electronic Version

    The electronic file of this document is available on the Federal 
Bulletin Board (FBB) at 9:00 a.m. on the date of publication in the 
Federal Register. To download the file, modem dial (202) 512-1387. The 
FBB instructions will explain how to download the file and the fee. 
This file is in WordPerfect and will remain on the FBB during the 
comment period.

Regulatory Procedures

Executive Order 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that these rules do not meet the criteria for a 
significant regulatory action under E.O. 12866. Thus, they are not 
subject to OMB review.

Regulatory Flexibility Act

    We certify that these regulations will not have a significant 
economic impact on a substantial number of small entities because these 
rules affect only individuals. Therefore, a regulatory flexibility 
analysis as provided in the Regulatory Flexibility Act, as amended, is 
not required.

Paperwork Reduction Act

    These regulations impose no new reporting or recordkeeping 
requirements requiring OMB clearance.

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social 
Security-Disability Insurance; 96.006, Supplemental Security Income)

List of Subjects

20 CFR Part 404

    Administrative practice and procedure, Death benefits, Disability 
benefits, Old-age, Survivors and Disability Insurance, Reporting and 
recordkeeping requirements, Social security.

20 CFR Part 416

    Administrative practice and procedure, Aged, Blind, Disability 
benefits, Public assistance programs, Supplemental Security Income 
(SSI), Reporting and recordkeeping requirements.

    Dated: May 7, 1997.
John J. Callahan,
Acting Commissioner of Social Security.

    For the reasons set out in the preamble, subpart J of part 404 and 
subpart N of part 416 of chapter III of title 20 of the Code of Federal 
Regulations are proposed to be amended as set forth below.

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE 
(1950-  )

    20 CFR part 404, Subpart J, is amended as follows:
    1. The authority citation for subpart J of part 404 continues to 
read as follows:

    Authority: Secs. 201(j), 205 (a), (b), (d)-(h), and (j), 221, 
225, and 702(a)(5) of the Social Security Act (42 U.S.C. 401(j), 405 
(a), (b), (d)-(h), and (j), 421, 425, and 902(a)(5)); 31 U.S.C. 
3720A; sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42 U.S.C. 405 note); 
secs. 5, 6 (c)-(e), and 15, Pub. L. 98-460, 98 Stat. 1802 (42 U.S.C. 
421 note).

    2. New Sec. 404.966 is added under the undesignated center heading 
``APPEALS COUNCIL REVIEW'' to read as follows:

Sec. 404.966  Testing elimination of the request for Appeals Council 
review.

    (a) Applicability and scope. Notwithstanding any other provision in 
this part or part 422 of this chapter, we are establishing the 
procedures set out in this section to test elimination of the request 
for review by the Appeals Council. These procedures will apply in 
randomly selected cases in which we have tested a combination of model 
procedures for modifying the disability claim process as authorized 
under Secs. 404.906 and 404.943, and an administrative law judge has 
issued a decision (not including a recommended decision) that is less 
than wholly favorable to you.
    (b) Effect of an administrative law judge's decision. In a case to 
which the procedures of this section apply, the decision of an 
administrative law judge will be binding on all the parties to the 
hearing unless --
    (1) You or another party file an action concerning the decision in 
Federal district court;
    (2) The Appeals Council decides to review the decision on its own 
motion under the authority provided in Sec. 404.969; or
    (3) The decision is revised by the administrative law judge or the 
Appeals Council under the procedures explained in Sec. 404.987.
    (c) Notice of the decision of an administrative law judge. The 
notice of decision the administrative law judge issues in a case 
processed under this section will advise you and any other parties to 
the decision that you may file an action in a Federal district court 
within 60 days after the date you receive notice of the decision.
    (d) Extension of time to file action in Federal district court. Any 
party having a right to file a civil action under this section may 
request that the time for filing an action in Federal district court be 
extended. The request must be in writing and it must give the reasons 
why the action was not filed within the stated time period. The request 
must be filed with the Appeals Council. If you show that you had good 
cause for missing the deadline, the time period will be extended. To 
determine whether good cause exists, we will use the standards in 
Sec. 404.911.

PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND 
DISABLED

    20 CFR Part 416, Subpart N, is amended as follows:
    1. The authority citation for subpart N continues to read as 
follows:

    Authority: Sec. 702(a)(5), 1631, and 1633 of the Social Security 
Act (42 U.S.C. 902(a)(5), 1383, and 1383b).

    2. New Sec. 416.1466 is added under the undesignated center heading 
``APPEALS COUNCIL REVIEW'' to read as follows:

Sec. 416.1466  Testing elimination of the request for Appeals Council 
review.

    (a) Applicability and scope. Notwithstanding any other provision in 
this part or part 422 of this chapter, we are establishing the 
procedures set out in this section to test elimination of the request 
for review by the Appeals Council. These procedures will apply in 
randomly selected cases in which we have tested a combination of model 
procedures for modifying the disability claim process as authorized 
under Secs. 416.1406 and 416.1443, and an administrative law judge has 
issued a decision (not including a recommended decision) that is less 
than wholly favorable to you.
    (b) Effect of an administrative law judge's decision. In a case to 
which the procedures of this section apply, the decision of an 
administrative law judge will be binding on all the parties to the 
hearing unless --

[[Page 27000]]

    (1) You or another party file an action concerning the decision in 
Federal district court;
    (2) The Appeals Council decides to review the decision on its own 
motion under the authority provided in Sec. 416.1469; or
    (3) The decision is revised by the administrative law judge or the 
Appeals Council under the procedures explained in Sec. 416.1487.
    (c) Notice of the decision of an administrative law judge. The 
notice of decision the administrative law judge issues in a case 
processed under this section will advise you and any other parties to 
the decision that you may file an action in a Federal district court 
within 60 days after the date you receive notice of the decision.
    (d) Extension of time to file action in Federal district court. Any 
party having a right to file a civil action under this section may 
request that the time for filing an action in Federal district court be 
extended. The request must be in writing and it must give the reasons 
why the action was not filed within the stated time period. The request 
must be filed with the Appeals Council. If you show that you had good 
cause for missing the deadline, the time period will be extended. To 
determine whether good cause exists, we will use the standards in 
Sec. 416.1411.

[FR Doc. 97-12938 Filed 5-15-97; 8:45 am]
BILLING CODE 4190-29-P

Complete official Federal Register PDF

FR Doc. 97-12935 Indian Highway Safety Program Competitive Grant Selection Criteria
[Federal Register Volume 62, Number 95 (Friday, May 16, 1997)]
[Proposed Rules]
[Pages 27000-27002]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12935]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 181

RIN 1076-AD82

Indian Highway Safety Program Competitive Grant Selection 
Criteria

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Bureau of Indian Affairs (BIA) intends to make funds 
available to federally recognized tribes on an annual basis for 
financing tribal highway safety projects designed to reduce the 
incidence of traffic accidents within Indian country. Due to the 
limited funding available for the Indian Highway Safety Program, the 
BIA will review and select from proposed tribal projects on a 
competitive basis. The proposed rule presents the selection criteria.

DATES: Comments must be postmarked by July 15, 1997.

ADDRESSES: Comments should be sent to Program Administrator, Indian 
Highway Safety Program, 505 Marquette Avenue, NW, Suite 1705, 
Albuquerque, NM 87102.

FOR FURTHER INFORMATION CONTACT: Mr. Charles Jaynes, Chief, BIA 
Division of Safety Management, (505) 248-5060.

SUPPLEMENTARY INFORMATION: This proposed rule sets forth the procedures 
that will govern the BIA's selection of recipients of the Indian 
Highway Safety Program grant. The BIA mails grant applications for a 
given fiscal year to all tribal leaders by the end of February of the 
preceding fiscal year. Applicants must submit completed applications by 
the close of business on June 1. The BIA will review and evaluate each 
complete and timely filed application. BIA seeks to fund as many 
programs as possible and to the level practicable within the confines 
of a limited program budget. The scarce amount of resources often 
forces the BIA to limit funding to select portions of a proposed tribal 
project.
    We are publishing this proposed rule by the authority delegated by 
the Secretary of the Interior to the Assistant Secretary--Indian 
Affairs by 209 DM 8.

[[Page 27001]]

    Our policy is to give the public an opportunity to participate in 
the rulemaking process. Interested persons may submit written comments 
to the location identified in the ADDRESSES section of the preamble. We 
will consider all comments timely filed during the public comment 
period, make any necessary revisions and issue the final rule.
    We certified to the Office of Management and Budget (OMB) that this 
proposed rule meets the applicable standards provided in sections 3(a) 
and 3(b)(2) of Executive Order 12988. This proposed rule is not a 
significant rule under Executive Order 12866 and does not require 
approval by the OMB. This proposed rule does not constitute a major 
Federal action significantly affecting the human environment and, 
therefore, no detailed statement is needed under the National 
Environmental Policy Act of 1969. Furthermore, this proposed rule does 
not have significant takings implications in accordance with Executive 
Order 12630, does not have significant Federalism effects, and does not 
have a significant economic impact of a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Unfunded Mandates Act of 1996

    This proposed rule imposes no unfunded mandates on any governmental 
or private entity and is in compliance with the provisions of the 
Unfunded Mandates Act of 1995.

Paperwork Reduction Act of 1995

    Under 23 U.S.C. 402, the Department of Transportation (DOT) funds 
both the DOT State Highway Safety Program and the BIA Indian Highway 
Safety Program. The information contained in each grant application 
under both programs is identical. The Indian Highway Safety Program 
competitive grant application solicits only the information DOT 
requires for its State Highway Safety Program and uses it for 
substantially the same purpose of awarding Highway Safety Program funds 
to applicants. OMB has reviewed and approved the information collection 
requirements for the DOT State Highway Safety Program. See OMB Control 
Number 2127-0003. No additional OMB authorization is needed.
    The primary author of this document is Lawrence Archambeau, Bureau 
of Indian Affairs.

List of Subjects in 25 CFR Part 181

    Indians, Highways and roads, Highway safety.

    For the reasons set forth in the preamble, Part 181 is proposed to 
be added to 25 CFR subchapter H as follows:

PART 181--INDIAN HIGHWAY SAFETY PROGRAM

Sec.
181.01  Purpose.
181.02  Definitions.
181.03  Am I eligible to receive a program grant?
181.04  How do I obtain an application?
181.05  How are applications ranked?
181.06  How are applicants informed of the results?
181.07  Appeals.

    Authority: 23 U.S.C. 402; 25 U.S.C. 13.

Sec. 181.01  Purpose.

    This part will assist the BIA Indian Highway Safety Program 
Administrator to disperse funds DOT/NHTSA has made available. The funds 
assist selected tribes with their proposed Highway Safety Projects. 
These projects are designed to reduce traffic crashes, reduce impaired 
driving crashes, increase occupant protection education, provide 
Emergency Medical Service training, and increase police traffic 
services.

Sec. 181.02  Definitions.

    Appeal means a written request for review of an action or the 
inaction of an official of the BIA that is claimed to adversely affect 
the interested party making the request.
    Applicant means an individual or persons on whose behalf an 
application for assistance and/or services has been made under this 
part.
    Application means the process through which a request is made for 
assistance or services.
    Grant means a written agreement between the BIA and the governing 
body of an Indian tribe or Indian organization wherein the BIA provides 
funds to the grantee to plan, conduct, or administer specific programs, 
services, or activities and where the administrative and programmatic 
provisions are specifically delineated.
    Grantee means the tribal governing body of an Indian tribe or Board 
of Directors of an Indian organization responsible for grant 
administration.
    Recipient means an individual or persons who have been determined 
as eligible and are receiving financial assistance or services under 
this part.

Sec. 181.03  Am I eligible to receive a program grant?

    The Indian Highway Safety Program grant is available to any 
federally recognized tribe. Because of the limited financial resources 
available for the program, the Bureau of Indian Affairs (BIA) is unable 
to award grants to all applicants. Furthermore, some grant recipients 
may only be awarded a grant to fund certain aspects of their proposed 
tribal projects.

Sec. 181.04  How do I obtain an application?

    BIA mails grant application packages for a given fiscal year to all 
federally recognized tribes by the end of February of the preceding 
fiscal year. Additional application packages are available from the 
Program Administrator, Indian Highway Safety Program, P.O. Box 2003, 
Albuquerque, New Mexico 87103. Each application package contains the 
necessary information concerning the application process, including 
format, content, and filing requirements.

Sec. 181.05  How are applications ranked?

    BIA ranks each timely filed application by assigning points based 
upon four factors.
    (a) Factor No. 1--Magnitude of the problem (Up to 50 points 
available). In awarding points under this factor, BIA will take into 
account the following:
    (1) Whether a highway safety problem exists.
    (2) Whether the problem is significant.
    (3) Whether the proposed tribal project will contribute to 
resolution of the identified highway safety problem.
    (4) The number of traffic accidents occurring within the 
applicant's jurisdiction over the previous 3 years.
    (5) The number of alcohol-related traffic accidents occurring 
within the applicant's jurisdiction over the previous 3 years.
    (6) The number of reported traffic fatalities occurring within the 
applicant's jurisdiction over the previous 3 years.
    (7) The number of reported alcohol-related traffic fatalities 
occurring within the applicant's jurisdiction over the previous 3 
years.
    (b) Factor No. 2--Countermeasure selection (Up to 40 points 
available). In awarding points under this factor, BIA will take into 
account the following:
    (1) Whether the countermeasures selected are the most effective for 
the identified highway safety problem.
    (2) Whether the countermeasures selected are cost effective.
    (3) Whether the applicant's objectives are realistic and 
attainable.
    (4) Whether the applicant's objectives are time framed and, if so, 
whether the time frames are realistic and attainable.
    (c) Factor No. 3--Tribal leadership and community support (Up to 10 
points available). In awarding points under this factor, BIA will take 
into account the following:

[[Page 27002]]

    (1) Whether the applicant proposes using tribal resources in the 
project.
    (2) Whether the appropriate tribal governing body supports the 
proposal plan, as evidenced by a tribal resolution or otherwise.
    (3) Whether the community supports the proposal plan, as evidenced 
by letters or otherwise.
    (d) Factor No. 4--Past performance (+ or -10 points available). In 
awarding points under this factor, BIA will take into account the 
following:
    (1) Financial and programmatic reporting requirements.
    (2) Project accomplishments.

Sec. 181.06  How are applicants informed of the results?

    BIA will send a letter to all applicants notifying them of their 
selection or non-selection for participation in the Indian Highway 
Safety Program for the upcoming fiscal year. BIA will explain to each 
applicant not selected for participation the reason(s) for non-
selection.

Sec. 181.07  Appeals.

    You may appeal actions taken by BIA officials under this part by 
following the procedures in 25 CFR part 2.

    Dated: May 6, 1997.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 97-12935 Filed 5-15-97; 8:45 am]
BILLING CODE 4310-02-P

Complete official Federal Register PDF

FR Doc. 97-12918 Prevention of Significant Deterioration of Air Quality (PSD) Program: Permit Review Procedures for Sources That May Adversely Affect Air Quality in Non-Federal Class I Areas
[Federal Register Volume 62, Number 95 (Friday, May 16, 1997)]
[Proposed Rules]
[Pages 27158-27166]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12918]

[[Page 27157]]

_______________________________________________________________________

Part VII

Environmental Protection Agency

_______________________________________________________________________

40 CFR Parts 51 and 52

Prevention of Significant Deterioration of Air Quality (PSD) Program: 
Permit Review Procedures for Sources That May Adversely Affect Air 
Quality in Non-Federal Class I Areas; Proposed Rule

Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed 
Rules

[[Page 27158]]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[FRL-5826-5]
RIN 2060-AH01

Prevention of Significant Deterioration of Air Quality (PSD) 
Program: Permit Review Procedures for Sources That May Adversely Affect 
Air Quality in Non-Federal Class I Areas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Advance Notice of Proposed Rulemaking (ANPR).

-----------------------------------------------------------------------

SUMMARY: Under the Clean Air Act's PSD program, States and Tribes may, 
with EPA approval, redesignate their lands as ``Class I'' areas to 
enhance protection of their air quality resources. This notice requests 
early public input on preliminary issues in clarifying the PSD permit 
review procedures for new and modified major stationary sources that 
may have an adverse effect on the air quality of these non-Federal 
Class I areas. EPA seeks to develop clarifying PSD permit procedures 
that are effective, efficient and equitable.

DATES: Comments. All public comments must be received by August 14, 
1997.
    Public Workshops. EPA will hold public workshops on this 
rulemaking. A Federal Register notice announcing the dates of these 
workshops will be published at least 30 days prior to the workshop.

ADDRESSES: Comments. Comments on this notice should be mailed (in 
duplicate if possible) to: U.S. EPA, Air Docket Section, Air Docket A-
96-53; 401 M Street, S.W., Washington, D.C. 20460.
    Public Workshops. EPA will hold public workshops in Phoenix, 
Arizona and in Chicago, Illinois. A Federal Register notice announcing 
the dates of these workshops will be published at least 30 days prior 
to the workshops. Please contact the EPA official listed under FOR 
FURTHER INFORMATION CONTACT if you are interested in participating in 
the public workshops.
    Public Docket. Supporting information for this rulemaking is 
contained in Docket No. A-96-53. This docket is available for public 
review and copying between 8:00 a.m. and 5:30 p.m., Monday through 
Friday at the EPA's Air Docket Section, 401 M Street, S.W., Washington, 
D.C.; Room M-1500. A reasonable fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT: David LaRoche, U.S. EPA, Office of Air 
and Radiation (6102), 401 M Street, S.W., Washington, D.C. 20460, (202) 
260-7652.

SUPPLEMENTARY INFORMATION:

I. Overview

    The PSD program authorizes States and Tribes to request 
redesignation of their lands as ``Class I'' areas. Over the past twenty 
years, only federally-recognized Tribes have sought redesignation under 
this authority. EPA has approved Class I redesignations for the 
Northern Cheyenne Indian Reservation, the Flathead Indian Reservation, 
the Fort Peck Indian Reservation, and the Spokane Indian Reservation. 
See 40 CFR 52.1382(c) and 52.2497(c). Recently, EPA approved Class I 
redesignation of the Yavapai-Apache Reservation, located in the State 
of Arizona. See 61 FR 56461 (Nov. 1, 1996) (to be codified at 40 CFR 
52.150). EPA has proposed approval of the Forest County Potawatomi 
Community request for redesignation located in the State of Wisconsin. 
See 60 FR 33779 (June 29, 1995). EPA will provide opportunity for 
public comment and hold a public hearing before it makes a final 
decision on this proposed action.
    During EPA's review of the Yavapai-Apache and Forest County 
Potawatomi redesignation requests, nearby States submitted formal 
objections to EPA. A common concern has been confusion about the PSD 
permit review procedures that would apply in these States in the event 
a Class I redesignation request is granted, and what EPA's specific 
role would be in resolving any intergovernmental disputes that arise 
over proposed permits for PSD sources that may adversely affect non-
federal Class I areas. In response to these concerns, EPA has initiated 
this rulemaking to clarify the PSD permit review and dispute resolution 
procedures for proposed new and modified major stationary sources 
locating near non-Federal Class I areas.
    The new procedures established in this rulemaking would apply for 
any State or Tribal lands redesignated as Class I. Thus, the rulemaking 
is intended to clarify PSD permit review procedures for proposed PSD 
sources that may adversely affect the air quality of any State or 
Tribal non-Federal Class I area, and would set forth more specific 
procedures for EPA's resolution of any intergovernmental permit 
disputes which may arise.
    The discussion in part II below contains an overview of the PSD 
program to help provide context and further understanding of the issues 
presented in this notice. Part III of this notice examines preliminary 
issues on which EPA seeks early public input. Part IV describes the 
workshops EPA will hold to facilitate public input.

II. The PSD Program

    The central purpose of the PSD program is to protect clean air 
resources. Thus, the PSD program is an important air pollution 
prevention program. The genesis of the program was a lawsuit to enjoin 
EPA's approval of state implementation plans that allowed air quality 
degradation in areas having air quality better than the national 
ambient air quality standards. Sierra Club v. Ruckelshaus, 344 F.Supp. 
253 (D.D.C. 1972), aff'd per curiam, 4 Env't Rep. Cases 1815 (D.C. Cir. 
1972), aff'd by an equally divided court, sub. nom. Fri v. Sierra Club, 
412 U.S. 541 (1973). The court granted the injunction reasoning that 
the congressionally-declared purpose of the Clean Air Act to ``protect 
and enhance'' the quality of the nation's air resources embodied a non-
degradation policy. Sierra Club, 344 F.Supp. at 255-56.
    In response to the Sierra Club decision EPA adopted a PSD program. 
See 39 FR 42510 (Dec. 5, 1974). The administrative program was 
superseded by a congressionally-crafted program in the 1977 amendments 
to the Clean Air Act. Public Law 95-95, 91 Stat. 685. EPA presently has 
two sets of regulations implementing the 1977 statutory PSD program: 
(1) 40 CFR 51.166 establishes the requirements for State-administered 
PSD programs, and (2) 40 CFR 52.21 provides for Federal implementation 
of PSD requirements in States not having approved programs and for 
federally-recognized Indian Tribes.1
---------------------------------------------------------------------------

    \1\ The 1990 amendments to the Clean Air Act made relatively 
minor revisions to the PSD program. Pub. L. 101-549, 104 Stat. 2399. 
Conforming changes have not been made to the implementing 
regulations. Also, EPA has proposed rules under section 301(d) of 
the Clean Air Act that would treat Federally-recognized Indian 
Tribes in the same manner as States for purposes of numerous Clean 
Air Act programs including the PSD program. 59 FR 43 956 (Aug. 25, 
1994). Depending on their final form, these rules may allow Tribes 
to administer Federally-approved PSD permit review programs in the 
same way that States do.
---------------------------------------------------------------------------

A. PSD Areas

    Areas nationwide are ``designated'' based on their air quality 
status relative to the national ambient air quality standards (NAAQS). 
The PSD program applies to areas designated ``attainment'' and 
``unclassifiable'' under section 107 of the CAA, 42 U.S.C. Sec. 7407; 
these are areas that meet the NAAQS, or areas that cannot be determined 
on the basis

[[Page 27159]]

of available information as meeting or not meeting the NAAQS.
    PSD areas are further categorized as Class I, II or III. The 
classification of an area determines the maximum increase in pollutant 
concentrations, or ``increment'' of air quality deterioration, allowed 
over a baseline air quality concentration. Class I areas have the 
smallest increments and therefore allow the least amount of air quality 
deterioration. Conversely, Class III areas have the largest air quality 
increments and allow the greatest deterioration. In all instances, the 
NAAQS are the overarching air pollution concentration ceilings. That 
is, regardless of the size of the increment, the NAAQS may not be 
violated in a PSD area.
    There are PSD increments for particulate matter, sulfur dioxide and 
nitrogen dioxide. EPA's PSD regulations establish the incremental 
amount of air quality deterioration allowed for these pollutants in 
Class I, II and III areas. 40 CFR 51.166(c) and 52.21(c).
    When Congress enacted the PSD program in 1977 it provided that 
specified Federal lands, including certain national parks and 
wilderness areas, must be designated as Class I areas and may not be 
redesignated to another classification. Because they may not be 
redesignated, these Federal areas are called mandatory Class I areas. 
CAA Secs. 162 and 163, 42 U.S.C. Secs. 7472 and 7473.
    The statute also carried forward as Class I areas any areas 
redesignated as Class I under EPA's pre-1977 regulations. CAA Sec. 
162(a). The Northern Cheyenne reservation was the only redesignated 
Class I area affected by this provision. See Nance v. EPA, 645 F.2d 701 
(9th Cir. 1981), cert denied, Crow Tribe of Indians v. EPA, 454 U.S. 
1081 (1981).
    All other PSD areas of the country were designated as Class II 
areas under the 1977 Clean Air Act amendments. CAA Sec. 162(b). At the 
same time, States and Tribes were authorized to seek redesignation of 
their Class II areas as Class I or Class III. CAA Sec. 164, 42 U.S.C. 
Sec. 7474. As noted, several Tribes have sought a Class I air quality 
designation. Currently, there are no Class III areas.

B. PSD Sources

    The PSD preconstruction review permit program applies to new and 
modified major stationary sources. Construction, or subsequent 
operation, of new major stationary sources and major modifications to 
existing major stationary sources are prohibited unless the source 
obtains a permit meeting PSD requirements.
    Major stationary sources generally include sources that have the 
potential to emit at least 250 tons of air pollution annually. 40 CFR 
51.166(b)(1)(i)(b) and 52.21(b)(1)(i)(b). Major stationary sources also 
include specific ``listed'' sources that have the potential to emit at 
least 100 tons per year of air pollution. 40 CFR 51.166(b)(1)(i)(a) and 
52.21(b)(1)(i)(a). The listed sources include, among other facilities, 
coal-fired power plants (with more than 250 million British thermal 
units per hour heat input), primary zinc and copper smelters, and 
portland cement plants. Thus, the PSD program applies to relatively 
large stationary sources.
    Major modifications to existing major stationary sources are also 
subject to the PSD preconstruction review permit program. Major 
modifications include a physical or operational change at a major 
stationary source that would result in a significant net emissions 
increase in any regulated air pollutant. 40 CFR 51.166(b)(2) and 
52.21(b)(2).

C. General PSD Preconstruction Review Permit Requirements

    In broad overview, the PSD preconstruction review permit program 
requires the owner or operator of a proposed source to adopt the best 
available control technology (BACT) and analyze the air quality impacts 
associated with the source. CAA Sec. 165(a), 42 U.S.C. Sec. 7475(a). 
BACT is defined in section 169(3) of the CAA, 42 U.S.C. Sec. 7479(3) as 
an emission limitation based on the maximum degree of pollutant 
reduction that is achievable taking into account energy, environmental 
and economic impacts.
    The PSD air quality impact assessment involves several 
considerations. Generally, the owner or operator of the proposed source 
must demonstrate that it will not contribute to air pollution that 
violates any NAAQS or PSD increment. CAA Sec. 165(a)(3). The source 
must also analyze the ambient air quality, climate and meteorology, 
terrain, soils and vegetation, and visibility at the site and in the 
area potentially affected by its emission. CAA Sec. 165(e).

D. Special PSD Program Protection for Class I Areas

    There are additional, special protections under the PSD program 
that apply for Class I areas. As examined in more detail below, the 
statute appears to distinguish between the preconstruction review 
permit procedures that apply for Federal Class I areas and non-Federal 
Class I areas. As a necessary prerequisite, the discussion below first 
explores in more detail the delineation between Federal and non-Federal 
Class I areas.
1. Federal Class I Areas
a. Mandatory Federal Class I Areas
    The Clean Air Act provides two ways for Federal lands to be 
designated as Class I--either by congressional mandate, or by EPA 
approval of a State or Tribal request to redesignate Federal lands. 
Congress specified certain Federal lands as mandatory Class I areas. 
National parks larger than 6000 acres, national memorial parks and 
national wilderness areas larger than 5000 acres, and international 
parks that were in existence on August 7, 1977 are designated by 
statute as mandatory Class I areas. CAA Sec. 162(a). These areas cannot 
be redesignated.
b. Other Federal Class I Areas
    Congress also authorized States and Tribes to seek redesignation of 
other Federal public lands within their boundaries as Class I. These 
are lands currently designated as Class II. To inform such 
redesignation decisions, Congress directed the Federal Land Managers 
(FLM) to review all national monuments, primitive areas and national 
preserves and to recommend the areas having important air quality 
related values (AQRVs) be redesignated as Class I. CAA Sec. 164(d). The 
FLM is defined as the Secretary of the Federal Department with 
authority over the lands.2 CAA Sec. 302(i), 42 U.S.C. Sec. 
7602(i). The recommendations have not resulted in the redesignation of 
any Federal lands from Class II to Class I. The only Federal Class I 
areas that presently exist are the original mandatory areas.
---------------------------------------------------------------------------

    \2\ The FLM authority has been delegated to other officials 
within these Departments. For example, the Assistant Secretary for 
Fish and Wildlife and Parks is the FLM for areas under the 
jurisdiction of the National Park Service and the U.S. Fish and 
Wildlife Service.
---------------------------------------------------------------------------

2. Non-Federal Class I Areas
    Class I areas may also be created if EPA approves a State or Tribal 
request to redesignate its own lands as Class I. The resulting areas 
would be non-Federal Class I areas. The PSD permit review procedures 
that apply to new or modified PSD sources that may adversely affect 
these non-Federal Class I areas are the central focus of this notice.
    As noted in part I, a few Tribes have exercised their discretion to 
seek heightened air quality protection status under the PSD program by 
requesting redesignation of lands within reservation boundaries as 
Class I areas. States may similarly request

[[Page 27160]]

redesignation of their lands as Class I in accordance with the 
procedures outlined at 40 CFR 51.166(g) and 52.21(g). Thus, the permit 
review procedures developed in this rulemaking would apply equally for 
all non-Federal Class I areas--State or Tribal.
    It is important to understand the differences implied by the use of 
the terms ``Federal'' and ``non-Federal'' areas. The PSD program treats 
as ``Federal'' lands various national public lands that the Federal 
government owns and for which it has stewardship responsibility. These 
public lands include the following: national parks, national memorial 
parks, national wilderness areas, national monuments, national 
lakeshores and seashores, national primitive areas, national preserves, 
national recreation areas, national wild and scenic rivers, national 
wildlife refuges, and other similar national public lands. See, e.g., 
CAA Secs. 160(2), 162(a) and 164(a), (d). The term ``non-Federal'' 
refers to State lands or to lands within the boundaries of an Indian 
reservation that are not Federal lands within the meaning of the CAA's 
PSD program. See, e.g., CAA Sec. 164(c). For example, the legislative 
history distinguishes between the ``Federal lands'' which the Federal 
government manages as a ``property owner * * * under the stewardship of 
various Federal agencies'' and tribal lands. Senate Comm. on 
Environment and Public Works, 95th Cong., 2d Sess., A Legislative 
History of the Clean Air Act Amendments of 1977 724 (Comm. Print 1978) 
(statement of Senator Muskie).
    In a recent proposal to reform the PSD program, EPA explained that 
lands within reservation boundaries may or may not be Federal lands 
within the meaning of the PSD program. In fulfilling its fiduciary 
responsibility toward federally-recognized Indian Tribes, the Federal 
government holds some Tribal lands in ``trust'' for the benefit of the 
Tribe. Such lands may have a federal feature under Federal Indian law 
but are not ``Federal'' lands within the meaning of the PSD program. 
However, national public lands within reservation boundaries, such as 
national monuments, are included within the term ``Federal'' lands. See 
61 FR 38250, 38293, n. 71 (July 23, 1996). Thus, the PSD permit review 
procedures for State lands and lands within Indian reservation 
boundaries that are non-Federal or non-public lands and redesignated as 
Class I are the subject of this notice.
3. PSD Permit Review Provisions for Federal and Non-Federal Class I 
Areas
    A congressionally-declared purpose of the PSD program is to 
preserve, protect, and enhance the air quality in national parks, 
national wilderness areas, national monuments, national seashores, and 
other areas of special national or regional natural, recreational, 
scenic, or historic value. CAA Sec. 160(2). To this end, Congress 
established special PSD permit review procedures that apply to proposed 
PSD sources whose emissions may adversely impact Federal Class I areas. 
Based on the statutory text, statutory structure and legislative 
history it appears that these special permit review procedures, set out 
at section 165(d) of the CAA, are intended to apply only to Federal 
lands originally designated, or subsequently redesignated, as Class I 
areas. The legislative history indicates that these special 
requirements were intended ``to provide additional protection for air 
quality in areas where the Federal Government has a special stewardship 
to protect the natural values of a national resource. Such areas are 
the federally-owned class I areas under the bill.'' S. Rep. No. 127, 
95th Cong., 1st Sess. at 34 (1977) (emphasis added).
    The central focus of the permit review procedures for Federal Class 
I areas is to protect the air quality related values (AQRVs) of these 
areas. The Clean Air Act specifies that AQRVs include visibility. CAA 
Sec. 165(d). The legislative history further provides that for Federal 
Class I areas the term AQRVs includes ``the fundamental purposes for 
which such lands have been established and preserved by the Congress 
and the responsible Federal agency. For example, under the 1916 Organic 
Act to establish the National Park Service (16 U.S.C. 1), the purpose 
of such national park lands `is to conserve the scenery and the natural 
and historic objects and the wildlife therein and to provide for the 
enjoyment of the same in such manner and by such means as will leave 
them unimpaired for the enjoyment of future generations.' '' S. Rep. 
No. 127, 95th Cong., 1st Sess. 36 (1977).
    Specifically, for Federal Class I areas, the statute places an 
``affirmative responsibility'' on the FLM to protect the air quality 
related values of Federal lands. CAA Sec. 165(d)(2)(B).
    The FLMs protect AQRVs through a prescribed statutory role. If the 
proposed source will cause or contribute to a violation of a Class I 
increment, then the owner or operator must demonstrate to the 
satisfaction of the FLM that the emissions will not adversely impact 
AQRVs. If the FLM so certifies, then the permit may be issued. 
Conversely, even if a proposed source will not cause or contribute to a 
violation of a Class I increment, the FLM may nevertheless demonstrate 
to the satisfaction of the permitting authority that the source will 
have an adverse impact on AQRVs. If so demonstrated, then the permit 
shall not be issued. CAA Sec. 165(d)(2)(C). Thus, compliance with the 
Class I increments determines the burden of proof for demonstrating the 
presence or absence of an adverse impact on AQRVs.
    EPA recently proposed significant changes to its PSD and 
nonattainment New Source Review (NSR) program. The proposal includes 
revisions to the PSD permit review procedures for sources that may 
adversely impact Federal Class I areas. See 61 FR 38250, 38282-38295 
(July 23, 1996). The proposed revisions are intended to improve 
coordination and cooperation, and clarify relative responsibilities 
among FLMs, proposed sources, and permitting agencies.
    Part III below examines whether EPA's permit review procedures for 
non-Federal Class I areas should be similar to EPA's recent proposal 
for Federal Class I areas in all respects or whether some differences 
must or should exist. While, as noted above, section 165(d) contains 
specific permit review procedures for Federal Class I areas, the Clean 
Air Act does not contain such specific provisions for non-Federal Class 
I areas. However, the CAA does contain provisions aimed at protecting 
air quality in non-Federal Class I areas when a dispute arises between 
affected States or Tribes. The Clean Air Act recognizes that a PSD 
source proposing to locate in one jurisdiction can have adverse effects 
on the air quality of another jurisdiction. By contrast with the 
provisions that give the FLM responsibility for protecting Federal 
Class I areas, any State or Tribal government, concerned that a 
proposed source outside its jurisdiction may adversely impact the air 
quality of a non-Federal Class I area, may seek to protect such area. 
The Clean Air Act establishes a special dispute resolution process to 
address such intergovernmental disagreements.
    The Clean Air Act provides that the Governor of an affected State 
or the Indian ruling body of an affected Indian Tribe may request the 
EPA Administrator to enter negotiations with the parties involved to 
resolve the dispute. If the parties are unable to reach agreement, the 
Clean Air Act makes EPA the ultimate arbiter of the intergovernmental 
dispute. Section 164(e) of the CAA establishes the special process for 
resolving these

[[Page 27161]]

intergovernmental disputes, and reads in relevant part as follows:

    [I]f a permit is proposed to be issued for any new major 
emitting facility proposed for construction in any State which the 
Governor of an affected State or governing body of an affected 
Indian tribe determines will cause or contribute to a cumulative 
change in air quality in excess of that allowed in this part within 
the affected State or tribal reservation, the Governor or Indian 
ruling body may request the Administrator to enter into negotiations 
with the parties involved to resolve such dispute. If requested by 
any State or Indian tribe involved, the Administrator shall make a 
recommendation to resolve the dispute and protect the air quality 
related values of the lands involved. If the parties involved do not 
reach agreement, the Administrator shall resolve the dispute and his 
determination, or the results of agreements reached through other 
means, shall become part of the applicable plan and shall be 
enforceable as part of such plan.

    Thus, the broad contours of this provision include (but are not 
limited to) intergovernmental PSD permit disputes over potential 
impacts on non-Federal Class I areas.3 This provision is 
codified in 40 CFR 52.21(t).
---------------------------------------------------------------------------

    \3\ Further, several additional provisions of the Clean Air Act 
and PSD program are aimed at curbing interjurisdictional air 
pollution transport. A purpose of the PSD program is to assure that 
emissions from a source in one jurisdiction do not interfere with 
PSD in another jurisdiction. CAA Sec. 160(4). State air quality 
management plans are required to contain provisions that prohibit 
in-State emissions from interfering with PSD measures in another 
State. CAA Sec. 110(a)(2)(D). The interstate pollution abatement 
provisions of the CAA direct State Implementation Plans (SIPs) to 
require PSD sources to notify nearby States whose air pollution 
levels may be affected by the source. CAA Sec. 126.
---------------------------------------------------------------------------

    In this rulemaking, EPA endeavors to clarify the PSD permit review 
procedures in a manner that will facilitate amicable resolution of 
intergovernmental disputes about potential impacts on non-Federal Class 
I areas without the need for recourse to EPA. Additionally, EPA will 
examine the methods EPA should consider and the procedures it should 
employ in the event it is necessary for EPA to resolve an 
intergovernmental PSD permit dispute. In resolving any 
intergovernmental permit disputes EPA will act consistent with its 
trust responsibilities toward Tribes.

III. Preliminary Issues

    The overall objective of the rulemaking revisions addressed in this 
notice is to clarify and improve the PSD permit review procedures 
applicable to proposed sources that may adversely affect non-Federal 
Class I areas.4 In developing these rules EPA will be guided 
by the core purposes of the Clean Air Act and the PSD program. As 
noted, the genesis of the PSD program was the non-degradation policy 
embodied in section 101(b)(1) to ``protect and enhance'' air quality 
resources to ``promote the public health and welfare.'' The 
congressionally declared objectives of the PSD program include ensuring 
that ``economic growth will occur in a manner consistent with the 
preservation of existing clean air resources'' and ensuring that ``any 
decision to permit increased air pollution'' is made ``only after 
careful evaluation of all the consequences * * * and after adequate 
procedural opportunities for informed public participation.'' CAA Sec. 
160 (3) and (5), 42 U.S.C. 7470 (3) and (5). EPA seeks to develop 
workable rules that consider preservation of existing clean air 
resources and potential impacts on economic growth. EPA intends to 
fashion rules that are clear, sensible and improve the PSD permit 
process.
---------------------------------------------------------------------------

    \4\ EPA is not proposing to modify its rules on the PSD 
redesignation process itself. The statute clearly prescribes the 
process and the implementing regulations (i.e., 40 CFR 51.166(g) and 
52.21(g)) provide adequate guidelines.
---------------------------------------------------------------------------

    EPA seeks public input on the following preliminary issues for use 
in developing proposed revisions to its PSD permit review procedures at 
40 CFR 51.166 and 52.21. EPA's public workshops, discussed in Part IV 
of this document, will focus on these preliminary issues and other 
issues raised by members of the public. EPA also encourages public 
commenters to address the issues in their written submissions to the 
Agency.

A. Scope of New Rulemaking Initiative

    EPA seeks public input on the appropriate scope of this regulatory 
initiative. Currently, after more than 20 years of authority to 
redesignate, there are five non-Federal Class I areas. By contrast, 
there are more than 150 mandatory Federal Class I areas. Thus, non-
Federal Class I areas are not nationally prevalent in the same manner 
as Federal Class I areas.
    EPA already has detailed PSD permit review procedures in place. In 
addition, EPA's recent proposal to reform its PSD rules includes 
proposed revisions related to permit review procedures for Federal and 
non-Federal Class I areas. 61 FR 38282-38295. For example, EPA proposed 
to define the term ``air quality related value'' for both Federal and 
non-Federal Class I areas as ``a scenic, cultural, physical, 
biological, ecological, or recreational resource which may be affected 
by a change in air quality, as defined by the FLM for Federal lands and 
as defined by a State or Indian Governing Body for non-Federal lands 
within their respective jurisdictions.'' 61 FR 38283-38284.
    EPA has also proposed significance levels for all Class I areas. 61 
FR 38291-38292. Under the proposal, PSD sources with a predicted 
(modeled) air quality impact below the significance levels would be 
excluded from the requirement to conduct a full Class I increment 
analysis. EPA indicated that permitting authorities could use the 
finding of an insignificant impact to determine that the source's 
emissions would not contribute to an increment violation. However, an 
impact below the significance level of the PSD increments would not 
necessarily indicate that the proposed source also has an insignificant 
impact on AQRVs.
    In the pending rulemaking to reform the PSD program, EPA also 
clarified the PSD requirements applicable to non-Federal lands 
redesignated as Class I areas. 61 FR 38293-38295. EPA explained that 
States and Tribes with non-Federal Class I areas may identify AQRVs for 
their lands and may pursue protection of the AQRVs through the 
intergovernmental dispute resolution provisions under section 164(e) of 
the CAA. EPA proposed to adopt a regulation at 40 CFR 51.166(t) to 
implement section 164(e), as a companion to the regulation currently in 
place at 40 CFR 52.21(t). 61 FR 38293-38295. EPA also proposed to 
define ``Federal Class I areas'' to clarify the distinctions between 
Federal and non-Federal Class I areas. 61 FR 38293-38295.
    As noted, section 164(e) provides that a State or Tribe may request 
intergovernmental dispute resolution if a State or Tribe determines 
that emissions from a proposed PSD source ``will cause or contribute to 
a cumulative change in air quality in excess of that allowed in [the 
PSD program] within the affected State or tribal reservation.'' Section 
164(e) further provides that if requested by the State or Tribe 
involved, EPA shall make a recommendation to resolve the dispute and 
``protect the air quality related values of the lands involved.'' If 
the parties do not reach agreement, EPA shall resolve the dispute and 
its determination shall become part of the applicable plan. Because 
section 164(e) specifically provides for protection of AQRVs, EPA has 
previously explained its view that States and Tribes may seek 
protection of AQRVs through these intergovernmental dispute resolution 
provisions. [Letter to George Meyer, Wisconsin Department of Natural 
Resources, from Valdas Adamkus, EPA

[[Page 27162]]

Regional Administrator for Region V (July 27, 1994).]
    In the PSD reform proposal, EPA explained its interpretation of the 
language authorizing intergovernmental dispute resolution if a proposed 
source ``will cause or contribute to a cumulative change in air quality 
in excess of that allowed in [the PSD program].'' EPA stated that a 
State or Tribe may request intergovernmental dispute resolution when a 
State or Tribe determines that a proposed source will cause or 
contribute to a violation of the NAAQS or PSD increment or will harm 
AQRVs identified by the State or Tribe. 61 FR 38294.
    EPA believes its interpretation is supported by the plain language 
of the statute and statutory structure. The statutory language at issue 
is expansive--referring generally to ``changes in air quality.'' The 
increments are a central limit on air quality deterioration established 
under the PSD program and well within the ambit of this language. At 
the same time, increments are explicitly referred to elsewhere in the 
PSD provisions as ``maximum allowable increases'' and ``maximum 
allowable concentrations'' of pollutants. CAA Secs. 163 & 165(a)(3)(A). 
Thus, EPA believes that the language in section 164(e)is not confined 
to PSD increments. The statutory text also appears to encompass adverse 
impacts on AQRVs due to ``changes in air quality.'' EPA believes AQRVs 
are properly a basis for initiating dispute resolution since their 
protection is a stated purpose of the provision. 61 FR 38294. In other 
words, to allow states or tribes to initiate intergovernmental dispute 
resolution because of adverse impacts on AQRVs is consistent with the 
statutory language in section 164(e) that calls for EPA to ``make a 
recommendation to resolve the dispute and protect the air quality 
related values of the land involved.'' Today, EPA seeks further public 
comment on this interpretation.
    The proposed revisions to reform the PSD program are the outgrowth 
of extensive discussions with representatives of State and local 
governments, regulated industry, Federal Land Managers, and 
environmental organizations. EPA held a public hearing in September 
1996 and has provided abundant opportunity for public comment. Except 
for interpretation of section 164(e) discussed immediately above, 
regarding the basis for initiating intergovernmental disputes, EPA does 
not intend to reopen in this rulemaking the proposals advanced in the 
separate rulemaking to reform the PSD program published on July 23, 
1996 (61 FR 38250).
    Thus, the question for this new rulemaking initiative is what 
additional changes to the PSD permit program are needed to clarify and 
improve the permit review procedures for proposed sources that may 
adversely affect air quality in non-Federal Class I areas. EPA requests 
public input on the appropriate scope of this rulemaking, considering 
the previously proposed revisions to improve the PSD program and the 
relatively small number of non-Federal Class I areas.

B. Improving Coordination Between Permitting Authorities and States or 
Tribes With Non-Federal Class I Areas

    The July 1996 proposed rules to reform the PSD program contained 
provisions to address concerns about the PSD permit review procedures 
for Federal Class I areas. 61 FR 38282-38295. The proposal is intended 
to reduce delays and disputes associated with permitting near Federal 
Class I areas by facilitating coordination between the FLM, the permit 
applicant and the permit authority, and clarifying the relative roles 
and responsibilities of the involved parties. A central goal of 
improved coordination is to help identify potential disagreements early 
in the permit process, when it is less disruptive. Roles are clarified 
to ensure that responsibilities are reasonably, and mutually, 
allocated.
    EPA seeks public comment on whether some of the basic policy 
concerns reflected in EPA's recent proposal to revise the PSD rules for 
Federal Class I areas are also concerns that should be addressed when 
developing proposed programmatic improvements for non-Federal Class I 
areas. These basic policy concerns, as they apply to non-Federal Class 
I areas, are outlined below. 5
---------------------------------------------------------------------------

    \5\ As noted, this notice does not seek public comment on EPA's 
proposed revisions to the permit review procedures for Federal Class 
I areas published on July 23, 1996 and already subjected to public 
comment.
---------------------------------------------------------------------------

1. Permit Application Coordination
    A State or Tribe with a non-Federal Class I area will be aware of 
sources proposing to locate within its jurisdiction and can work with 
the permitting authority to review and resolve potential impacts on 
non-Federal Class I areas. However, if the source is located in another 
jurisdiction, a State or Tribe can only effectively protect its non-
Federal Class I area from potentially adverse effects if it knows about 
the proposed source.
    In its July 1996 proposed revisions to the PSD rules, EPA generally 
proposed to require submittal of permit applications to the FLMs for 
sources locating within 100 kilometers (km) of a Federal Class I area. 
EPA also proposed to require basic source information concerning 
sources locating more than 100 km from a Federal Class I area to be 
input into an electronic database in lieu of transmitting entire permit 
applications to the FLMs. The database enables the FLMs to review 
information about proposed PSD sources and determine whether further 
information about the project is needed. 61 FR 38287-38288.
    EPA's current regulations generally require State-administered PSD 
programs to send the public notice of PSD permits to any State or 
Indian Governing Body whose lands may be affected by emissions from the 
source or modification. 40 CFR 51.166(q)(2)(iv). The public notice 
includes the following information: indicates that a PSD permit 
application has been received, states the permitting authority's 
preliminary determination to approve or deny the permit, describes the 
degree of increment consumption that is expected, and addresses the 
opportunity for comment at a public hearing as well as written public 
comment.
    EPA requests public comment on whether EPA should clarify when a 
permit authority must provide an affected State or Tribe with a copy of 
the public notice. EPA also requests comment addressing whether, when a 
non-Federal Class I area may be affected, EPA should also require 
permit authorities to provide affected States or Tribes with copies of 
the permit application or other advance notice before the permit 
authority makes a preliminary determination to grant or deny the 
permit.
    For example, commenters should address whether EPA should establish 
standard procedures for permit application notification of sources that 
may adversely affect non-Federal Class I areas, and how such 
notification could be effectively and efficiently accomplished. Using 
the distance between the proposed source and non-Federal Class I area 
as a basis for determining whether coordination is necessary is 
simplistic and clear. However, rigid distances alone can be over- and 
under-inclusive. For example, if States or Tribes with non-Federal 
Class I areas were required to be notified of all proposed sources 
within 100 km of the Class I area, then this may place a burden on some 
sources that do not threaten the area and exclude some

[[Page 27163]]

large sources that may impact the area. EPA seeks suggestions on how to 
ensure that States and Tribes with non-Federal Class I areas receive 
adequate information about proposed sources that may affect the areas 
without placing undue burdens on PSD permit applicants and permit 
agencies.
    EPA also requests public comment on how to facilitate 
intergovernmental coordination during the permit review process to 
avoid the need for EPA to resolve disputes over potential impacts on 
non-Federal Class I areas. EPA's July 1996 proposal contained several 
potential revisions to the PSD rules that call for consultation between 
the permitting authority and FLM at various key stages of the permit 
process. 61 FR 38283-38295. Intergovernmental consultation may 
facilitate resolution of concerns. Further, the earlier all parties are 
aware of potential concerns, then the sooner the concerns can be 
resolved and constructive discourse can begin. EPA requests public 
comment addressing consultation and other measures that can be taken to 
help resolve intergovernmental permit disputes at an early stage in the 
permit process. Commenters should address whether consultation would be 
productive, what alternative measures would be appropriate, and what 
stages in the permit process consultation should be formalized.
2. Identifying and Disseminating Information About Air Quality Related 
Values
    As noted, EPA's July 1996 proposed PSD revisions define ``AQRVs'' 
for Federal and non-Federal lands as visibility or a scenic, cultural, 
physical, biological, ecological, or recreational resource that may be 
affected by a change in air quality, as defined by the Federal Land 
Manager for Federal lands and as defined by the applicable State or 
Indian Governing Body for non-Federal lands. 61 FR 38284. EPA's July 
1996 notice sought public comment on this proposed definition and EPA 
is not seeking further comment in today's notice.
    However, EPA does request public input on measures to encourage 
identification and dissemination of information about the AQRVs for 
non-Federal lands. EPA's July 1996 proposal included provisions for the 
public dissemination of information about the AQRVs for Federal lands. 
61 FR 38283-86. EPA proposed to place responsibility on the FLM to 
ensure that permit applicants and permit agencies have adequate 
information about any AQRV which the FLM has identified. Public 
commenters should address reasonable steps that can be taken by States 
or Tribes with AQRVs to inform PSD permit agencies and applicants about 
the AQRVs. Commenters should also suggest the type of information that 
would be useful to potential permit applicants and permit agencies.
    A related issue is the level of technical support that should 
accompany identification of AQRVs. Technical or scientific information 
about AQRVs may be necessary for a neighboring permit agency and permit 
applicant to understand and address potential concerns. EPA requests 
comments on whether EPA should propose rules addressing the technical 
support information for AQRVs identified by a State or Tribe, and seeks 
input on approaches that may be appropriate.
3. No Affirmative Responsibility to Protect AQRVs of Non-Federal Lands
    As noted, the Clean Air Act places an affirmative responsibility on 
FLMs to protect the AQRVs of Federal Class I areas. Thus, the FLM has a 
special duty under Federal law to protect the air quality related 
resources of Federal Class I areas.
    However, it does not seem appropriate for a State or Tribe with a 
non-Federal Class I area to be under a similar responsibility to 
protect AQRVs. This is an area where a departure between Federal and 
non-Federal lands seems appropriate. Because a decision by a State or 
Tribe to seek redesignation of its lands as a Class I area is entirely 
discretionary, EPA believes that it would be inappropriate to place an 
affirmative responsibility on a State or Tribe to challenge permit 
applications from proposed sources locating in other jurisdictions. 
Thus, EPA is disinclined in this rulemaking to place any duty on an 
affected State or Tribe to invoke the intergovernmental dispute 
resolution process and intends to leave this entirely within the 
State's or Tribe's discretion. EPA solicits public comment on this 
proposed approach.

C. EPA Resolution of Intergovernmental Permit Disputes

    When a State or Tribe does elect to invoke the dispute resolution 
process, section 164(e) of the CAA makes EPA the arbiter of 
intergovernmental PSD permit disputes. Section 164(e) of the CAA 
provides that if the Governing Body of an affected Indian Tribe or the 
Governor of an affected State determines that a proposed PSD source 
``will cause or contribute to a cumulative change in air quality in 
excess of that allowed [under the PSD program],'' the Tribe or State 
may request EPA to enter into negotiations with the parties involved to 
resolve the dispute. Then, if requested by a State or Tribe, EPA will 
make a recommendation to resolve the dispute and protect the AQRV's of 
the lands involved. If that does not lead to resolution, EPA is 
ultimately called upon to resolve such disputes regardless of whether 
the proposed permit is being reviewed under a State, Tribal, or 
Federally administered program. EPA seeks public input on the issues 
outlined below related to EPA's resolution of permit disputes about 
potential air pollution impacts on non-Federal Class I areas.
1. EPA's Discretion to Fashion Reasonable Solutions
    EPA has broad discretion in crafting solutions to intergovernmental 
permit disputes under section 164(e) of the CAA. The key statutory text 
in section 164(e) provides as follows:

    If requested by any State or Indian tribe involved, the 
Administrator shall make a recommendation to resolve the dispute and 
protect the air quality related values of the lands involved. If the 
parties involved do not reach agreement, the Administrator shall 
resolve the dispute and his determination, or the results of 
agreements reached through other means, shall become part of the 
applicable plan and shall be enforceable as part of such plan.

    Thus, Congress has directed EPA to ``make a recommendation to 
resolve the dispute and protect the air quality related values of the 
lands involved.'' If the parties cannot reach agreement, EPA is 
authorized to ``resolve the dispute.'' The statute does not specify or 
constrain the measures or methods EPA may employ to resolve the 
dispute.
    EPA's discretion to resolve disputes may mean that EPA draws from a 
variety of methods in resolving any particular PSD permit dispute. This 
will enable EPA to tailor a solution to the circumstances and issues 
presented. For example, in the event that EPA is requested to resolve a 
dispute involving a proposed source's potential impacts on AQRVs and 
the affected governments disagree about the nature of the projected 
effects, EPA may need to explore and resolve underlying technical and 
scientific issues. EPA seeks comment on whether it should elaborate how 
it might evaluate such technical or scientific disagreements.
    Post-construction monitoring may be an effective way to resolve 
some disputes conditionally. Where there are irreconcilable disputes 
over the potential impact of a proposed source, post-construction 
monitoring and subsequent evaluation provides a means

[[Page 27164]]

to ascertain actual source impacts and assess the need for any further 
action.
    EPA also requests comment on whether it should address measures 
that could be employed to mitigate effects on AQRVs. In the July 1996 
PSD rulemaking proposal, EPA explored methods to mitigate adverse 
impacts on the AQRVs of Federal Class I areas to allow permitting of 
sources that would otherwise face permit modification or denial. 61 FR 
38290-38291. Similarly, if resolution of an intergovernmental permit 
dispute necessitated permit modification or denial to protect the AQRVs 
of non-Federal Class I areas, mitigation of source impacts through 
emissions offsets from other sources or other mitigation techniques may 
present a means to avoid harsher results.
    It is also possible that a proposed source may not adversely impact 
AQRVs but still exceed Class I increments. If that is the case, EPA may 
consider whether, in certain circumstances and consistent with its 
trust responsibilities toward tribes, it is within EPA's discretion 
under section 164(e) to allow issuance of a permit that exceeds Class I 
increments. It is unclear whether section 164(e) would authorize such 
action by EPA. This issue is examined in more detail below.
    As noted, the Class I increments are the most stringent PSD 
increments. Therefore, it is conceivable that a proposed source could 
exceed a Class I increment and yet not adversely impact AQRVs. The 
Clean Air Act expressly recognizes this situation for Federal Class I 
areas. As noted, under the specific statutory provisions for Federal 
Class I areas at section 165(d)(2) of the CAA, a source's contribution 
to the Class I increments determines who bears the burden of proof for 
demonstrating the presence or absence of an adverse impact on AQRVs and 
is not decisive of whether a permit may be issued. If a proposed source 
will contribute to a Class I increment violation in a Federal Class I 
area, then the owner or operator may nevertheless demonstrate to the 
satisfaction of the FLM that the source will not adversely impact 
AQRVs. Therefore, the FLM may conclude that AQRVs are not threatened 
despite the Class I increment violation. If the FLM certifies that no 
adverse impact will occur despite the source's violation of the Class I 
increment, the permitting authority may issue a PSD permit provided the 
source demonstrates compliance with the Class II increments (as well as 
a more stringent three-hour sulfur dioxide concentration 
level).6 CAA Sec. 165(d)(2)(C)(iv), 40 CFR 51.166(p)(4) and 
52.21(p)(5). Thus, in limited circumstances for Federal Class I areas, 
the Clean Air Act contemplates that a PSD permit could be issued for a 
source that exceeds the Class I increments.
---------------------------------------------------------------------------

    \6\ The source must demonstrate compliance with a concentration 
level for sulfur dioxide measured over three hours that is more 
stringent than the Class II increment but less stringent than the 
Class I increment. CAA Sec. 165(d)(2)(C)(iv), 40 CFR 51.166(p)(4) 
and 52.21(p)(5). If the FLM declines to certify that no adverse 
impact will occur, the permit must be denied or modified. If the 
proposed source may not be constructed because of the sulfur dioxide 
increment for periods of twenty-four hours or less, the Governor may 
grant a variance of the increment if doing so will not adversely 
affect AQRVs and the FLM concurs. If the Governor and FLM do not 
agree, their respective recommendations may be transmitted to the 
President who may grant the variance if it is in the national 
interest and the facility meets specific limits on its sulfur 
dioxide concentrations. CAA Sec. 165(d)(2)(D), 40 CFR 51.166 (p)(5) 
through (p)(7) & 52.21 (p)(6) through (p)(8).
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    However, section 164(e) does not contain a similar express 
exemption of the Class I increments for non-Federal lands. Further, 
other provisions of the Clean Air Act specify that a proposed source 
must comply with increments to qualify for a PSD permit. For example, 
as underscored, section 163 establishes the Class I increments 
providing that ``the maximum allowable increase in concentrations of 
sulfur dioxide and particulate matter shall not exceed'' certain 
prescribed amounts. See also 40 CFR 51.166(c) and 52.21(c). Further, 
section 165(a) directs PSD sources to demonstrate that emissions will 
not contribute to an increment exceedance more than one time per year. 
Thus, the absence of an explicit statutory exemption to the Class I 
increments for non-Federal Class I areas would suggest that section 
164(e) should not be construed to provide one.
    Additionally, for non-Federal Class I areas, the Class I increments 
appear to have relevance independent of AQRVs. The intergovernmental 
dispute resolution provisions for non-Federal lands provide that a 
State or Tribe may object to a proposed PSD permit if it determines 
that emissions ``will cause or contribute to a cumulative change in air 
quality in excess of that allowed [under Part C of the Act--the PSD 
program] within the affected State or tribal reservation.'' CAA Sec. 
164(e). As noted, EPA has previously proposed to interpret excess air 
quality changes to include a proposed source's contribution to a NAAQS 
violation, PSD increment violation or AQRV impact. 61 FR 38294. Thus, 
EPA interprets this provision to direct EPA mediation, at the request 
of a State or Tribe, when a State or Tribe determines that a proposed 
source will cause or contribute to a violation of a NAAQS or increment, 
or contribute to AQRV impacts. The bases for invoking the PSD 
intergovernmental dispute provisions arguably suggest that Class I 
increments should be among the concerns protected in resolving 
disputes.
    Further, for non-Federal Class I areas, there are additional 
reasons to give the Class I increments consideration independent of 
AQRVs. Because Congress gave States and Tribes broad latitude to seek 
redesignation of non-Federal lands as Class I areas, States and Tribes 
could seek redesignation to prevent incremental air quality 
deterioration without regard to protection of AQRVs. In such a 
situation, compliance with Class I increments enables States and Tribes 
to advance public health and welfare concerns associated with air 
quality degradation independent of AQRVs. Thus, EPA may be requested to 
resolve a dispute involving only a PSD increment, where no AQRV has 
been defined. In that case, it could be argued that EPA should never 
waive a PSD increment in a non-Federal Class I area because the State's 
or Tribe's goal in redesignating the area to Class I may have been 
solely the protection of the increments.
    At the same time, the section 164(e) dispute resolution provisions 
direct EPA to ``make a recommendation to resolve the dispute and 
protect the air quality related values of the lands involved.'' This 
might suggest that AQRVs, not increments, are the principal focus of 
protection under section 164(e). But, relying on the objective of 
protecting AQRVs in section 164(e) as a basis for a Class I increment 
exemption could be very broad since this explanation could conceivably 
justify an exemption of the Class II or III increments. Perhaps in 
exercising its administrative discretion under section 164(e) EPA would 
be confined to a Class I increment exemption, by direct analogy to the 
statutory exemption provisions for Federal Class I areas.
    EPA requests comment on whether EPA should explore in this 
rulemaking EPA's discretion to waive the Class I increments for non-
Federal Class I areas in resolving permit disputes under section 164(e) 
of the CAA. While it is clear that such action is impermissible unless 
AQRVs will also be protected, there may nevertheless be circumstances 
when Class I increment violations occur that do not threaten AQRVs. EPA 
also seeks comment on the circumstances under which it might be 
appropriate for EPA to consider providing an exemption for a Class I

[[Page 27165]]

increment. EPA also requests comment on how to weigh competing concerns 
in determining whether a Class I increment exclusion may be 
appropriate. For example, if a State or Tribe with a Class I area was 
very concerned about increases in direct particulate matter pollution, 
perhaps it would be appropriate for EPA to consider an exclusion from 
the short-term sulfur dioxide increment but not from PM-10.
    In sum, EPA requests public comment on whether EPA should address 
in this rulemaking some of the potential measures and tools that may be 
employed to resolve intergovernmental disputes and, if so, what 
approaches may be appropriate. Alternatively, it may be appropriate for 
EPA to adopt very general rules that enable EPA to take any number of 
actions depending upon the circumstances.
2. Dispute Resolution Procedures
    EPA also seeks input on whether and to what extent EPA should 
prescribe the procedures to be followed in resolving intergovernmental 
permit disputes under section 164(e). For example, EPA is interested in 
the public's views about whether EPA should establish a particular 
dispute resolution process. Further, EPA requests comment on whether 
EPA should address how the dispute resolution process relates to the 
permit proceeding and how the resulting solution is implemented.
3. Incentives for Amicable Dispute Resolution
    Ideally, intergovernmental permit disputes could be amicably 
resolved without recourse to EPA. EPA seeks public comment on 
incentives EPA could create for governments to resolve their concerns 
amicably.

D. Miscellaneous Changes

    EPA also seeks public input on any clarifying, administrative 
changes EPA should make to its existing PSD regulations in light of the 
distinctions between Federal and non-Federal Class I areas. Comments 
regarding consistent use of terminology would be appropriate. For 
example, the existing rules may generally refer to Class I areas where 
the context implies that Federal Class I areas is the intended meaning. 
Technical revisions may help avoid any confusion.
    The public should also comment on whether EPA should make any 
conforming regulatory changes to the Guideline on Air Quality Modeling 
to clarify and improve the PSD permit procedures for non-Federal Class 
I areas. The Guideline prescribes the air quality models employed to 
estimate the air quality impacts of proposed PSD sources and is 
codified at 40 CFR part 51, Appendix W.

E. Summary of the Principal Issues

    To facilitate public input, EPA has summarized the issues raised 
for comment in this notice.
    1. Scope of Rulemaking. What regulatory changes should EPA consider 
in this rulemaking beyond the PSD programmatic revisions proposed in 
EPA's July 23, 1996 Federal Register notice (61 FR 38250)?
    2. Analogy to Federal Class I Area Issues. To what extent should 
EPA draw from the PSD permit review procedures proposed for Federal 
Class I areas in the July 23, 1996 notice in considering rule changes 
for non-Federal Class I?
    3. Permit Application Notification. What effective, and efficient, 
measures should EPA consider to ensure that States and Tribes with non-
Federal Class I areas receive adequate information about proposed 
sources that may adversely impact such areas?
    4. Intergovernmental Coordination. How can EPA facilitate 
intergovernmental consultation and coordination during the permit 
review process in a manner that helps avoid intergovernmental disputes?
    5. Identifying AQRVs. What guidance, if any, should EPA provide 
about the technical support that should accompany identification of 
AQRVs by States and Tribes?
    6. Disseminating Information about AQRVs. What methods should EPA 
consider to ensure that States and Tribes with AQRVs provide adequate, 
timely information about their AQRVs to permit applicants and permit 
agencies?
    7. Responsibility to protect AQRV. Should non-Federal land managers 
have the same affirmative responsibility as Federal land managers to 
protect AQRVs?
    8. EPA Resolution of Intergovernmental Disputes. Should EPA specify 
the procedures, measures and techniques that might be employed in 
resolving intergovernmental permit disputes under section 164(e) and, 
if so, which of these might be appropriate?
    9. Waiver of Class I Increments. Should EPA explore in this 
rulemaking EPA's discretion to waive the Class I increments for non-
Federal Class I areas in resolving permit disputes?
    10. Dispute Resolution Procedures. What rules, if any, should EPA 
consider to govern the manner in which EPA will conduct resolution of 
intergovernmental permit disputes under section 164(e)?
    11. Incentive for Amicable Intergovernmental Dispute Resolution. 
How can EPA create incentives for amicable resolution of 
intergovernmental permit disputes?
    12. Additional Clarifying Regulatory Changes. What regulatory 
revisions are necessary to clarify the distinction between Federal and 
non-Federal Class I areas?
    13. Regulatory Flexibility Act. What steps can EPA take in this 
rulemaking to facilitate public participation by any small entities 
that may be adversely affected and to mitigate any such impacts?
    14. Paperwork Reduction Act. What steps can EPA take in this 
rulemaking initiative to ensure that any informational requirements are 
necessary and of practical utility, and to minimize the burden of any 
information requirements?

IV. Public Workshops

    EPA recognizes the complexities of the issues surrounding the PSD 
permit application process. EPA seeks input from all interested members 
of the public in formulating a reasonable, workable approach to the PSD 
permit review procedures for sources potentially impacting non-Federal 
Class I areas.
    The preceding discussion has attempted to identify some major 
issues in developing an approach to this rulemaking. However, these are 
only preliminary ideas that do not necessarily exhaust all possible 
issues and approaches regarding the PSD permit review process. EPA 
wishes to engage in a public discussion about the PSD permit review 
process and intends to hold public workshops that will provide 
opportunity for interested members of the public to address the issues 
raised in this notice and suggest additional approaches.
    The first of these public workshops will be held in Phoenix, 
Arizona and in Chicago, Illinois. A Federal Register notice announcing 
specific dates, times, and locations of these workshops will be 
published at least 30 days prior to the workshops. If there is public 
interest, additional public workshops will be announced in the Federal 
Register.

V. Additional Information

A. Public Docket

    This rulemaking action involves promulgation or revision of PSD 
regulations. Thus, the rulemaking is subject to the procedures in 
section 307(d) of the CAA, 42 U.S.C. Sec. 7607(d), in accordance with 
section 307(d)(1)(J). The public docket for this rulemaking action is 
A-96-53. The docket is a file of information relied on by EPA in the 
development of

[[Page 27166]]

regulations. All written comments and accompanying materials received 
in response to this notice will be placed in the public docket. The 
docket is available for public review and copying at EPA's Air Docket, 
as indicated in the ADDRESSES section at the beginning of this 
document.

B. Executive Order (EO) 12866

    Section 3(f) of EO 12866 defines ``significant regulatory action'' 
for purposes of centralized regulatory review by the Office of 
Management and Budget (OMB) to mean any regulatory action that is 
likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or tribal governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.
    A draft of this ANPR and associated materials were reviewed by OMB 
prior to publication. Information related to OMB's review of this ANPR 
has been placed in the public docket referenced at the beginning of 
this notice, including: (1) Materials provided to OMB in conjunction 
with OMB's review of this ANPR; and (2) Materials that identify 
substantive changes made between the submittal of a draft ANPR to OMB 
and this notice, and that identify the changes that were made at the 
suggestion or recommendation of OMB.

C. Regulatory Flexibility Act as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996

    Under the RFA, 5 U.S.C. 601-612, EPA must prepare an initial 
Regulatory Flexibility Analyses to accompany notices of proposed 
rulemaking that assess the impact of proposed rules on small entities. 
Small entities include small businesses, small not-for-profit 
enterprises and government entities with jurisdiction over populations 
of less than 50,000. However, the requirement of preparing such 
analyses is inapplicable if the Administrator certifies that the rule 
will not, if promulgated, have a significant economic impact on a 
substantial number of small entities. 5 U.S.C. 605(b).
    The regulatory revisions that are being considered in this 
rulemaking initiative would affect the PSD permit review procedures for 
new major stationary sources and major modifications to existing major 
stationary sources. This regulatory initiative is also intended to 
clarify and improve the existing rules. It is unclear at this stage of 
the rulemaking process whether this rulemaking initiative may have a 
significant adverse impact on a substantial number of small entities. 
Nevertheless, EPA seeks public comment on steps EPA can take in this 
rulemaking to facilitate public participation by any small entities 
that may be adversely affected and to mitigate any such impacts.

D. Paperwork Reduction Act

    EPA requests public comments on steps EPA can take in this 
rulemaking initiative to ensure that any informational requirements are 
necessary and of practical utility, and to minimize the burden of any 
information requirements.

    Dated: May 8, 1997.
Mary D. Nichols,
Assistant Administrator for Air and Radiation.
[FR Doc. 97-12918 Filed 5-15-97; 8:45 am]
BILLING CODE 6560-50-P

Complete official Federal Register PDF

FR Doc. 97-12807 Insured State Nonmember Banks Which are Municipal Securities Dealers
[Federal Register Volume 62, Number 95 (Friday, May 16, 1997)]
[Proposed Rules]
[Pages 26994-26997]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12807]

========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================

Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed 
Rules

[[Page 26994]]

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FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 343

RIN 3064-AC04

Insured State Nonmember Banks Which are Municipal Securities 
Dealers

AGENCY: Federal Deposit Insurance Corporation (FDIC).

ACTION: Proposed rescission of rule.

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SUMMARY: As part of the FDIC's systematic review of its regulations and 
written policies under section 303(a) of the Riegle Community 
Development and Regulatory Improvement Act of 1994 (CDRI), the FDIC is 
proposing to rescind its regulation that requires insured state 
nonmember banks which are municipal securities dealers to file with the 
FDIC certain information about those persons who are or seek to be 
associated with these dealers as municipal securities principals or 
municipal securities representatives. The FDIC has determined for a 
number of reasons, including the fact that much of the same information 
is available in the Municipal Securities Rulemaking Board's (MSRB) 
regulation G-7, ``Information Concerning Associated Persons'', and that 
the FDIC is not required by law to issue its own regulations governing 
the professional qualification of these associated persons, to propose 
rescission of the regulation because it is unnecessary and duplicative.

DATES: Comments must be received on or before July 15, 1997.

ADDRESSES: Written comments are to be addressed to the Office of the 
Executive Secretary, Federal Deposit Insurance Corporation, 550 17th 
Street, NW., Washington, DC 20429. Comments may be hand-delivered to 
Room F-402, 1776 F Street, NW., Washington, DC 20429, on business days 
between 8:30 a.m. and 5 p.m. (FAX number: (202) 898-3838; internet 
address: [email protected]). Comments will be available for inspection 
in the FDIC Public Information Center, Room 100, 801 17th Street, NW., 
Washington, DC, between 9 a.m. and 5 p.m. on business days.

FOR FURTHER INFORMATION CONTACT: Carol A. Mesheske, Chief, Special 
Activities Section, (202) 898-6750, Division of Supervision; or Karen 
L. Main, Senior Attorney, (202) 898-8838, Legal Division, Federal 
Deposit Insurance Corporation, Washington, DC 20429.

SUPPLEMENTARY INFORMATION:

I. Background

    The FDIC adopted part 343 as a final rule on August 8, 1977. 42 FR 
40891 (August 12, 1977), and it became effective on October 31, 1977. 
42 FR 46275 (September 15, 1977). Part 343 requires insured state 
nonmember banks and certain of their subsidiaries, departments and 
divisions, as specified in section 3(a)(34)(A)(iii) of the Securities 
Exchange Act of 1934 (15 U.S.C. 78a et seq.) (Act), which are municipal 
securities dealers, as defined in section 3(a)(30) of the Act, to file 
with the FDIC information about persons who are associated with them as 
municipal securities principals or municipal securities 
representatives.
    The Securities Acts Amendments of 1975 (Pub. L. 95-29) amended the 
Act to provide for the creation of the MSRB and delegated 
responsibility to it to formulate rules regulating the activities of 
municipal securities dealers. However, the Act distributes authority to 
enforce MSRB rules among the Securities and Exchange Commission (SEC), 
the Office of the Comptroller of the Currency (OCC), the Federal 
Reserve Board (FRB) and the FDIC. As specified in section 
3(a)(34)(A)(iii) of the Act, the FDIC is authorized to enforce 
compliance with MSRB rules by an insured state nonmember bank, a 
subsidiary or a department or a division thereof, which is a municipal 
securities dealer (hereinafter referred to as a ``state nonmember bank 
municipal securities dealer'').
    One of the areas in which the Act directs the MSRB to promulgate 
rules is the qualification of persons associated with municipal 
securities dealers as municipal securities principals and municipal 
securities representatives as those positions are defined in MSRB Rule 
G-3. Paragraph (b) of MSRB Rule G-7 requires persons who are or seek to 
be associated with municipal securities dealers as municipal securities 
principals or municipal securities representatives to provide certain 
background information and conversely, requires the municipal 
securities dealers to obtain the information from such persons. 
Generally, the information required to be disclosed relates to 
employment history and professional background including any 
disciplinary sanctions and any claimed bases for exemption from MSRB 
examination requirements. Paragraph (b) of MSRB Rule G-7 provides that 
a ``completed Form U-4 or similar form prescribed * * * in the case of 
a bank dealer, by the appropriate regulatory agency, containing the 
foregoing information, shall satisfy the requirements of this 
paragraph.'' The FDIC has developed, in conjunction with the OCC and 
the FRB (collectively, the Banking Agencies), Form MSD-4 to satisfy the 
requirements of paragraph (b) of the MSRB's Rule G-7.
    Under paragraph (c) of MSRB Rule
G-7, a person who is or seeks to be associated with a municipal 
securities dealer is required to furnish the dealer with a statement 
correcting information furnished under paragraph (b) of MSRB Rule G-7 
to the extent that such information becomes materially inaccurate or 
incomplete. To maintain the accuracy of the information which is filed 
on Form MSD-4, the FDIC requires state nonmember bank municipal 
securities dealers to file with the FDIC copies of statements such 
dealers receive pursuant to paragraph (c) of MSRB Rule G-7 and Form 
MSD-5s for municipal securities principals and municipal securities 
representatives whose association with such dealers terminates. Form 
MSD-5 is a notification by a municipal securities dealer that a 
municipal securities principal's or a municipal securities 
representative's association with the dealer has terminated and the 
reasons for such termination. The informational requirements discussed 
above, as set forth in part 343, track very closely the corresponding 
requirements described in MSRB Rule G-7, paragraphs (b) and (c).
    There are also record retention requirements contained in 
paragraphs (e) and (f) of the MSRB's Rule G-7. The FDIC has imposed a 
virtually identical requirement on state nonmember bank

[[Page 26995]]

municipal securities dealers in section 343.3(d).
    Paragraph (g) of the MSRB's Rule
G-7 requires every bank municipal securities dealer to file with the 
appropriate regulatory agency for such bank dealer ``such of the 
information prescribed by this rule as such * * * agency * * * shall by 
rule or regulation require''. The FDIC requires that each such state 
nonmember municipal securities dealer file Form MSD-4s, the statements 
described in paragraph (c) of MSRB Rule G-7 and Form MSD-5s with the 
FDIC for each person associated with the dealer as a municipal 
securities principal or municipal securities representative. The filing 
of Form MSD-4s, MSRB Rule G-7(c) statements and Form MSD-5s with the 
FDIC constitute ``reports'', ``applications'' or ``documents'' within 
the meaning of section 32(a) of the Act and constitute filings with the 
SEC for purposes of section 17(c)(1) of the Act. Section 17(c)(1) of 
the Act requires every municipal securities dealer which files an 
application, notice, report or document with the FDIC to file a copy of 
such application, notice, report or document with the SEC.
    The FDIC's part 343 is identical in all significant respects to the 
comparable regulations adopted by the FRB (Sec. 208.8j) and the OCC 
(part 10). The Banking Agencies also cooperated in drafting the forms. 
Part 343 has not been amended by the FDIC in any significant manner 
since its adoption in August 1977.

II. Basis for Rescission

A. Implementing Regulations Are Not Required by the Act

    Section 23(a)(1) of the Act states that the FDIC shall have power 
``to make such rules and regulations as may be necessary or appropriate 
to implement the provisions of this title for which (it is) 
responsible''. (Emphasis supplied.) Therefore, although section 
15B(b)(2)(A) requires the MSRB to promulgate regulations addressing the 
qualification of persons who are or seek to be associated with bank 
municipal securities dealers, there is no corresponding statutory 
requirement imposed upon the Banking Agencies, including the FDIC. The 
FDIC may exercise its discretion to determine whether it is necessary 
or appropriate to adopt regulations such as part 343 or, in this case, 
to decide that such a regulation is no longer necessary or appropriate. 
The FDIC has determined that part 343 is no longer necessary to ensure 
that the requisite qualification information is provided to the state 
nonmember bank municipal securities dealers by persons who are or seek 
to be associated with the subject bank municipal securities dealers, 
and therefore, is proposing to rescind part 343 for the reasons 
discussed herein.

B. MSRB's Rule G-7 Requires the Provision of Much of the Same 
Information as Section 343.3

    As described in Section I. Background, paragraph (b) of the MSRB's 
Rule G-7 requires bank municipal securities dealers to obtain certain 
information from persons who are or seek to be associated with them as 
municipal securities principals or municipal securities 
representatives. The MSRB's Rule G-7 provides that a form prescribed by 
the appropriate regulatory agency, containing the information set forth 
in paragraph (b), will satisfy the requirements of that paragraph. The 
FDIC, in cooperation with the other Banking Agencies, has created Form 
MSD-4s and Form MSD-5s to satisfy the requirements of paragraph (b) of 
MSRB Rule G-7. Although the FDIC proposes to rescind part 343, the Form 
MSD-4s and MSD-5s will continue to be provided to state nonmember bank 
municipal securities dealers to satisfy the requirements of the MSRB 
Rule G-7, paragraph (b) by the FDIC. The forms have detailed 
instructions and provide guidance regarding their completion and filing 
information. Additionally, the statements mandated in Sec. 343.3 to 
correct information which has been previously submitted on a Form MSD-4 
are required by MSRB Rule G-7, paragraph (c). Therefore, there is no 
need to retain this redundant regulatory requirement. Moreover, a 
separate recordkeeping requirement in Sec. 343.3(d) is unnecessary 
because substantially similar requirements are found in MSRB Rule G-7, 
paragraphs (e) and (f).

C. Rescission Promotes the Long-Term Goal of Adopting the NASD's Form U 
and Consolidating Data Bases at the NASD

    The FDIC announced in the preamble to the proposed part 343 when it 
was published in the Federal Register on March 30, 1977 (42 FR 16823) 
that the Banking Agencies were planning to forward the Form MSD-4s, the 
MSRB Rule G-7(c) statements and the Form MSD-5s that they would receive 
to the National Association of Securities Dealers (NASD) for computer 
processing. The NASD has maintained data for many years on personnel in 
the securities industry similar to the information disclosed about 
municipal securities principals and municipal securities 
representatives. It was expected that disciplinary and qualification 
data disclosed on Form MSD-4s, MSRB Rule G-7(c) statements and Form 
MSD-5s would be interfaced with the securities personnel data bank 
already maintained by the NASD. Although this integration of the two 
data bases has not yet been realized, the Banking Agencies' working 
group has again recognized this objective as a long-term goal and are 
working to achieve this data base integration. One of the first steps 
is the adoption of the NASD's Form U-4 to replace the Form MSD-4s and 
Form MSD-5s which the Banking Agencies currently provide to their 
respective constituent bank municipal securities dealers. This is an 
objective that the Banking Agencies' working group is continuing to 
pursue. Representatives, whether associated with a securities broker or 
dealer or a bank municipal securities dealer, are subject to the same 
general MSRB qualification requirements. Developing a more nearly 
uniform process for all municipal securities associated persons would 
reduce overall regulatory costs by eliminating the use of duplicative 
forms for individuals with dual registrations (e.g., for dual employees 
in bank municipal securities dealers and non-bank municipal securities 
dealers) and by promoting industry-wide qualification standards.
    Moreover, the state nonmember bank municipal securities dealers 
must already be knowledgeable of and familiar with the SEC's, the 
MSRB's and the NASD's rules and regulations in order to comply with the 
bank municipal securities dealer registration requirements (section 
15B(a) of the Act) and other requirements imposed upon bank and non-
bank participants in the municipal securities market. The Banking 
Agencies' long-term goal is to have all participants in the municipal 
securities markets register and file required forms and information 
with the NASD; therefore, the FDIC believes that it is no longer 
necessary to maintain a separate regulation which governs a small 
segment of the municipal securities market participants (persons who 
are or seek to be associated with bank municipal securities dealers) 
when the informational requirements and recordkeeping requirements are 
already provided in the MSRB's Rule G-7. The state nonmember bank 
municipal securities dealers are generally familiar with Rule G-7, and 
look to the MSRB, the NASD and the SEC for the information filing, 
recordkeeping and other regulatory requirements in the municipal 
securities area.

[[Page 26996]]

D. The Number of Covered Entities is Declining

    The FDIC has jurisdiction over the state nonmember bank municipal 
securities dealers. The FDIC has noted a steady decline in the number 
of state nonmember bank municipal securities dealers over the last 
several years. As a result of consolidation in the industry as well as 
the inactivity of some banks previously registered as bank municipal 
securities dealers (who are then requested to de-register), the number 
of state nonmember bank municipal securities dealers has declined to 
approximately 28. In the interests of efficiency and reducing 
duplicative regulatory requirements for this small number of covered 
entities, the FDIC would propose to rescind its part 343 and to have 
the covered bank municipal securities dealers rely upon the MSRB's Rule 
G-7. As discussed hereinabove, the informational requirements and 
recordkeeping requirements of Sec. 343.3 of the FDIC's regulations are 
also found in the MSRB's Rule G-7, paragraphs (b), (c), (e) and (f).
    However, the filing requirement found in paragraph (g) of Rule G-7 
is dependent upon the FDIC's having a filing requirement in place. If 
the proposed rescission of part 343 is effected, then the requirement 
to file the Form MSD-4s, the MSRB Rule G-7(c) statements and the Form 
MSD-5s with the FDIC, as the ``appropriate regulatory agency'', will no 
longer exist. The corresponding filing requirement in section 17(c)(1) 
of the Act will also be eliminated. Section 17(c)(1) states that, 
``(e)very * * * municipal securities dealer for which the (SEC) is not 
the appropriate regulatory agency shall * * * file with the (SEC) a 
copy of any application, notice, proposal, report, or document filed 
with such appropriate regulatory agency by reason of its being a * * * 
municipal securities dealer. The elimination of the filing requirement 
vis-a-vis the FDIC will, therefore, no longer trigger the corresponding 
filing of these forms with the SEC. The filing of these forms with the 
FDIC are for informational purposes only, the number of covered 
entities is very small and it is expected that in the future these 
informational filings will be provided to the NASD to be added to a 
master data base. Therefore, the FDIC believes that the deletion of 
this regulatory requirement will not have adverse consequences.
    The forms are still required to be completed and maintained by the 
individual state nonmember bank municipal securities dealers and are 
reviewed by the FDIC during the regular examination process. The 
instructions to the forms provide the name and address of the 
appropriate regulatory agency, and direct the bank municipal securities 
dealer to file the requisite information with the appropriate 
regulatory agency. It is expected that covered entities will continue 
to forward the completed forms and statements to the FDIC.

E. Rescission Furthers the Goals of the CDRI Initiative

    The FDIC is conducting a systematic review of its regulations and 
written policies. Section 303(a) of the CDRI (12 U.S.C. 4803(a)) 
requires the Banking Agencies each to streamline and modify its 
regulations and written policies in order to improve efficiency, reduce 
unnecessary costs and eliminate unwarranted constraints on credit 
availability. Section 303(a) also requires each of the Banking Agencies 
to remove inconsistencies and outmoded and duplicative requirements 
from its regulations and written policies. As part of this review, and 
in consultation with the OCC and the FRB, the FDIC has determined that 
part 343 is duplicative of many of the requirements of the MSRB's Rule 
G-7 and that certain efficiencies will be realized by having its state 
nonmember bank municipal securities dealers rely upon the MSRB's Rule 
G-7 rather than refer to and comply with part 343. The FDIC's written 
policies and regulations would be streamlined by its elimination.
    Section 303(a)(2) of the CDRI requires the FDIC ``to work jointly 
with the other federal banking agencies to make uniform all regulations 
* * * implementing common statutory or supervisory policies.'' The FDIC 
and the FRB both intend to rescind their respective regulations 
governing the qualification requirements of the persons who are or 
seeking to be associated with the bank municipal securities dealers; 
part 343 and Sec. 208.8(j), respectively. However, the OCC intends to 
retain its comparable regulation, part 10, but to add a cross-reference 
to the MSRB's rules. Therefore, the Banking Agencies have succeeded in 
moving toward the objective stated in section 303(a)(2) of the CDRI as 
well as accomplishing the overall goal of eliminating duplicative and 
unnecessary regulations.

III. Request for Public Comment

    The FDIC is hereby requesting comment during a 60-day comment 
period on all aspects of this proposed rescission of part 343. As 
discussed above, the rescission of part 343 will eliminate the 
regulatory requirement that state nonmember bank municipal securities 
dealers file the Form MSD-4s, the MSRB Rule G-7(c) statements and the 
Form MSD-5s with the FDIC. Thus, comment is sought on whether the 
rescission of this filing requirement would create a regulatory gap 
that would have harmful effects on banking. Additionally, some have 
voiced concern that the state nonmember bank municipal securities 
dealers are accustomed to referring to the FDIC's part 343 for guidance 
in the municipal securities area for these informational filing and 
recordkeeping requirements. Will the elimination of part 343 actually 
result in imposing a hardship on the covered entities by deleting a 
handy reference source for them?

IV. Paperwork Reduction Act

    The collection of information requirements (embodied in the Form 
MSD-4, the MSRB Rule G-7(c) statements and the Form MSD-5) contained in 
part 343 have been approved by the Office of Management and Budget 
pursuant to the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). The 
proposed rescission of part 343 would not, however, alter the 
requirement under the MSRB's Rule
G-7 that bank municipal securities dealers collect the prescribed 
information from the persons who are or seek to be associated with them 
as municipal securities principals or municipal securities 
representatives.

V. Regulatory Flexibility Act

    Under section 605(b) of the Regulatory Flexibility Act (RFA) (5 
U.S.C. 605(b)), the regulatory flexibility analysis otherwise required 
under section 603 of the RFA (5 U.S.C. 603) is not required if the head 
of the agency certifies that the rule will not have a significant 
economic impact on a substantial number of small entities and the 
agency publishes such certification and a statement providing the 
factual basis for such certification in the Federal Register along with 
the proposed rule.
    The FDIC estimates that, currently, there are 28 state nonmember 
bank municipal securities dealers under its jurisdiction, none of which 
are under $100 million in assets. The proposed rescission of part 343 
would result in the elimination of duplicative and unnecessary 
informational requirements found in the FDIC's regulation, and allow 
the covered entities to refer to the MSRB's Rule G-7 requirements 
instead. The proposed rescission would have the effect of reducing 
costs and burden for the state nonmember bank municipal securities 
dealers. Thus, the FDIC Board

[[Page 26997]]

of Directors (Board) hereby certifies that the proposed rescission 
would not have a significant economic impact on a substantial number of 
small entities 1 within the meaning of the RFA. Therefore, 
the provisions of the RFA regarding an initial and final regulatory 
flexibility analysis (Id. at 603 and 604) do not apply here.
---------------------------------------------------------------------------

    \1\ The definition of ``small business entity'' derives from the 
definition of a ``small business concern.'' Part 121 of the Small 
Business Administration's rules and regulations (13 CFR part 121) 
provides that any national bank or commercial bank, savings 
association, or credit union with assets of $100 million or less 
qualifies as a small business concern.
---------------------------------------------------------------------------

List of Subjects in 12 CFR Part 343

    Banks, banking, Reporting and recordkeeping requirements, 
Securities.

    The Board of Directors of the Federal Deposit Insurance Corporation 
hereby proposes to remove part 343 of title 12 of the Code of Federal 
Regulations.

PART 343--[REMOVED AND RESERVED]

    1. Part 343 is removed and reserved.

    Dated at Washington, DC this 29th day of April, 1997.

    By order of the Board of Directors.

Federal Deposit Insurance Corporation.
Robert E. Feldman,
Deputy Executive Secretary.
[FR Doc. 97-12807 Filed 5-15-97; 8:45 am]
BILLING CODE 6714-01-P

Complete official Federal Register PDF

FR Doc. 97-12786 Plant-Pesticides; Nucleic Acids; Supplemental Notice of Proposed Rulemaking
[Federal Register Volume 62, Number 95 (Friday, May 16, 1997)]
[Proposed Rules]
[Pages 27142-27149]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12786]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[OPP-300371A; FRL-5716-7]
RIN 2070-AC02

Plant-Pesticides; Nucleic Acids; Supplemental Notice of Proposed 
Rulemaking

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplemental notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: This document announces the availability of information for 
additional public comment regarding a proposed exemption from the 
requirement of a tolerance under the Federal Food, Drug, and Cosmetic 
Act (FFDCA) for residues of nucleic acids (i.e., deoxyribonucleic acid 
and ribonucleic acid) produced in plants as part of a plant-pesticide. 
Comments on this document may also affect EPA's final determination on 
three proposed exemptions under the Federal Insecticide, Fungicide, and 
Rodenticide Act (FIFRA). In 1994, EPA proposed to exempt from the 
requirement of tolerance residues of nucleic acids produced in plants 
as part of a plant-pesticide because such a tolerance would not be 
necessary to protect the public health. Since publication of the 
proposal, Congress enacted the Food Quality Protection Act (FQPA) which 
amended FFDCA and FIFRA. EPA is issuing this document today to provide 
the public with an opportunity to comment on EPA's analysis of how 
certain FQPA amendments to FFDCA and FIFRA apply to the proposed 
exemption from the requirement of a tolerance for residues of nucleic 
acids produced in plants as part of a plant-pesticide. EPA believes 
that it considered most of the substantive issues associated with the 
FQPA amendments when it issued the proposal in 1994. EPA is, thus, in 
this document, specifically seeking comment only on its evaluation of 
the requirements imposed by FQPA that the Agency did not address in the 
proposal.

DATES: Comments, identified by the docket control number ``OPP-
300371A,'' must be received on or before June 16, 1997.

ADDRESSES: By mail, submit written comments to: Public Information and 
Records Integrity Branch, Information Resources and Services Division 
(7506C), Office of Pesticide Programs, Environmental Protection Agency, 
401 M St., SW., Washington, DC 20460. In person deliver comments to: 
Rm. 1132, Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA 
22202.
    Comments and data may also be submitted electronically by following 
the instructions under Unit VI. of this document. No Confidential 
Business Information (CBI) should be submitted through e-mail.

FOR FURTHER INFORMATION CONTACT: Elizabeth Milewski, Office of Science, 
Coordination and Policy, Office of Prevention, Pesticides and Toxic 
Substances (7101), Environmental Protection Agency, 401 M St., SW., 
Washington, DC 20460, Telephone: (202) 260-6900, e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Introduction

    EPA issued in the November 23, 1994 Federal Register a package of 
five separate Federal Register proposals (59 FR 60496, 60519, 60535, 
60542 and 60545) (FRL-4755-2, FRL-4755-3, FRL-4758-8, FRL-4755-5, and 
FRL-4755-4) which together described EPA's approach to substances 
produced in plants that enable the plants to resist pests or disease. 
EPA's package of proposals indicated that these substances are 
pesticides under section 2 of FIFRA (7 U.S.C. 136(u)) if they are 
``intended for preventing, destroying, repelling, or mitigating any 
pest'' or if they are ``. . . intended for use as a plant regulator, 
defoliant, or desiccant'' regardless of whether the pesticidal 
capabilities evolved in the plants or were introduced by breeding or 
through the techniques of modern biotechnology. These substances, and 
the genetic material necessary to produce them, were designated 
``plant-pesticides'' by EPA in the November 23, 1994, Federal Register 
notices. The notices defined a ``plant-pesticide'' as ``a pesticidal 
substance that is produced in a living plant and the genetic material 
necessary for the production of the pesticidal substance where the 
pesticidal substance is intended for use in the living plant'' (59 FR 
at 60534).
    One of the five documents (59 FR 60542) proposed to exempt from the 
requirement of a tolerance residues of nucleic acids (i.e., 
deoxyribonucleic acid (DNA) and ribonucleic acid (RNA)) when such 
nucleic acids are produced in plants as part of a plant-pesticide 
(i.e., the genetic material necessary to produce the pesticidal 
substance). This supplemental notice addresses the nucleic acids 
portion of plant-pesticides produced in food plants. Because FQPA 
modified FIFRA ( 7 U.S.C. 136 et seq.) by incorporating the FFDCA 
safety standard into the FIFRA test for determining whether a pesticide 
poses an unreasonable adverse effect, comments on this supplemental 
notice may also affect EPA's final determination on proposed exemptions 
under FIFRA for three categories of plant-pesticides (59 FR at 60535): 
(1) Those that are derived from a plant that is sexually compatible 
with the recipient plant, (2) those that act primarily by affecting the 
plant, and (3) those that are coat proteins from plant viruses.
    EPA is publishing this supplemental notice to ensure that the 
public has had adequate opportunity to comment on certain new 
considerations raised by the FQPA amendments to FFDCA as these 
considerations relate to the proposed exemption from a tolerance for 
residues of the nucleic acid portion of plant-pesticides produced in 
food plants. In evaluating a pesticide chemical residue for exemption 
from FFDCA tolerance requirements, EPA must now explicitly address 
certain factors, and make a determination that there is a reasonable 
certainty that aggregate exposure to the residue will cause no harm to 
the public. The factors to be considered are iterated in Unit II. of 
this supplemental notice. EPA's evaluation of these factors relative to 
the proposed exemption (59 FR 60535) is contained in Unit IV. of this 
supplemental notice. Consistent with FFDCA section 408(c)(2)(B), EPA 
has reviewed the available scientific data and other relevant 
information in support of this action. In today's supplemental notice, 
EPA requests comment only on the new conclusions identified in Unit 
V.C.
    In light of FQPA, EPA is engaged in a process, including 
consultation with registrants, states, and other interested 
stakeholders, to make decisions on the

[[Page 27143]]

new policies and procedures that will be appropriate as a result of 
enactment of FQPA. In establishing this exemption from the requirement 
of a tolerance for residues of nucleic acids produced in plants as part 
of a plant-pesticide, EPA does not intend to set precedents for the 
application of section 408 and the new safety standard to other 
tolerances and exemptions. This exemption from the requirement of a 
tolerance will not restrict EPA's options with regard to general 
procedures and policies for implementation of the amended FFDCA section 
408.

II. Statutory Authority

    Under FFDCA, EPA regulates pesticide chemical residues by 
establishing tolerances limiting the amounts of residues that may be 
present in food, or by establishing exemptions from the requirement of 
a tolerance for such residues. Pesticide chemical residues subject to 
regulation under FFDCA are defined by reference to the definition of 
pesticide under FIFRA. FFDCA section 201(q)(1) defines a ``pesticide 
chemical residue'' to mean the residue in or on food of a pesticide 
chemical or other added substance resulting primarily from the 
metabolism or degradation of a pesticide chemical (21 U.S.C. 321 
(q)(2)). A ``pesticide chemical'' means ``any substance that is a 
pesticide within the meaning of the Federal Insecticide, Fungicide, and 
Rodenticide Act, including all active and inert ingredients of such 
pesticide'' (21 U.S.C. 321(q)(1)).
    FIFRA authorizes EPA to regulate the sale and distribution of 
pesticides in the United States and to exempt a pesticide from the 
requirements of FIFRA if it is not of a character requiring regulation 
(7 U.S.C. 136a(a) and 136w(b)). FIFRA section 2(u) defines 
``pesticide'' as: (1) ``any substance or mixture of substances intended 
for preventing, destroying, repelling, or mitigating any pest, (2) any 
substance or mixture of substances intended for use as a plant 
regulator, defoliant, or desiccant, and (3) any nitrogen stabilizer'' 
(7 U.S.C. 136(u)).
    FQPA amends both FFDCA and FIFRA. FQPA, which took effect on August 
3, 1996, among other things, amends FIFRA such that a registration 
cannot be issued for a pesticide to be used on or in food unless the 
residue of the pesticide in food qualifies for a tolerance or exemption 
from the requirement for a tolerance. FQPA modified FIFRA section 2(bb) 
by incorporating the FFDCA section 408 safety standard into the test 
for determining whether a pesticide poses an unreasonable adverse 
effect (7 U.S.C. 136(bb)). FIFRA section 2(bb) defines the term 
``unreasonable adverse effects on the environment'' to mean (1) any 
unreasonable risk to man or the environment, taking into account the 
economic, social, and environmental costs and benefits of the use of 
any pesticide, or (2) a human dietary risk from residues that result 
from a use of a pesticide in or on any food inconsistent with the 
standard under section 408 of the FFDCA. Thus, a pesticide used in or 
on food that does not meet the FFDCA section 408 safety standard also 
would pose an unreasonable adverse effect under FIFRA and would not 
qualify for an exemption from the requirements of FIFRA under FIFRA 
section 25(b)(2).
    FQPA amends FFDCA section 408(c)(2)(A)(i) to allow EPA to establish 
an exemption from the requirement of a tolerance for a ``pesticide 
chemical residue'' only if EPA determines that the exemption is 
``safe'' (21 U.S.C. 346a(c)(2)(A)(i)). Section 408(c)(2)(A)(ii) 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'' (21 U.S.C. 346a(c)(2)(A)(ii)). 
This includes exposure through drinking water, but does not include 
occupational exposure. In establishing an exemption from the 
requirement of a tolerance, FFDCA section 408(c), like the statute 
prior to FQPA, does not require EPA to consider benefits that might be 
associated with use of the pesticide chemical.
    FFDCA section 408 requires EPA to give special consideration to 
exposure of infants and children to the pesticide chemical residue in 
establishing an exemption 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'' (21 U.S.C. 
346a(b)(2)(C)(ii)(I)) and (c)(2)(B). Section 408(b)(2)(D) specifies 
other, general factors EPA is to consider in establishing an exemption. 
Section 408(c)(3)(B) prohibits an exemption unless there is either a 
practical method for detecting and measuring levels of pesticide 
chemical residue in or on food or there is no need for such a method 
(21 U.S.C. 346a(c)(3)(B)).
    Specifically, EPA must consider the following in deciding whether 
to grant an exemption:
    1. The validity, completeness, and reliability of the available 
data from studies of the pesticide chemical and chemical pesticide 
residue.
    2. Nature of any toxic effect shown to be caused by the pesticide 
chemical or residues in studies.
    3. Available information concerning the relationship of the results 
of such studies to human risk.
    4. Available information concerning the dietary consumption 
patterns of consumers (and major identifiable subgroups of consumers).
    5. Available information concerning the cumulative effects of such 
residues and other substances that have a common mechanism of toxicity.
    6. Available information concerning the aggregate exposure levels 
of consumers to the pesticide chemical residue and to other related 
substances, including dietary exposure and non-occupational exposures.
    7. Available information concerning the variability of the 
sensitivities of major identifiable subgroups of consumers.
    8. Such information as the Administrator may require on whether the 
pesticide chemical may have an effect in humans that is similar to an 
effect produced by a naturally-occurring estrogen or other endocrine 
effects.
    9. Safety factors which in the opinion of experts qualified by 
scientific training and experience to evaluate the safety of food 
additives are generally recognized as appropriate for the use of animal 
experimentation data (21 U.S.C. 346a(b)(2)(D)).
    Additionally, with respect to exposure of infants and children, 
consistent with section 408(b)(2)(C), EPA must assess the risk of the 
pesticide based on available information concerning:
    1. Consumption patterns that are likely to result in 
disproportionately high consumption of food with pesticide residues.
    2. Special susceptibility of infants and children to such residues.
    3. Cumulative effects of residues with other substances that have a 
common mechanism of toxicity (21 U.S.C. 346a(b)(2)(C) and (c)(2)(B)).

III. Summary of Proposed Regulation

    The proposal (59 FR 60542) described how EPA would view: (1) 
Deoxyribonucleic acid (DNA) and ribonucleic acid (RNA), (2) nucleic 
acid analogues (e.g., altered purine or pyrimidine bases) that may be 
considered ``nucleic acids'' by their chemical composition, and (3) DNA 
sequences that code for the RNA complement (anti-sense) of the 
messenger RNA (mRNA) for an essential enzyme or other component of an 
obligate parasite.

[[Page 27144]]

    In the November 23, 1994 Federal Register, EPA proposed to exempt 
nucleic acids (i.e., deoxyribonucleic acid (DNA) and ribonucleic acid 
(RNA)) from the requirement of a tolerance when such nucleic acids are 
produced in plants as part of a plant-pesticide (59 FR 60542). In the 
proposal, EPA stated that the proposed exemption from the requirement 
of a tolerance for the nucleic acids portion of plant-pesticides 
produced in food plants is based on the ubiquity of nucleic acids in 
all forms of life, their presence in human and domestic animal food and 
the consequent large scale exposure of the human population with no 
evidence nucleic acids have caused any adverse health effects when 
consumed as part of a food plant. The Agency knows of no instance where 
nucleic acids naturally occurring in plants have been associated with 
any toxic effects related to the consumption of foods.
    In the 1994 proposal, EPA recognized that nucleic acid analogues 
(e.g., altered purine or pyrimidine bases) may be considered ``nucleic 
acids'' by their chemical composition. Certain analogues are being 
developed as therapeutic agents for human diseases and nucleic acid 
analogues could conceivably be developed as pesticides. The proposed 
exemption does not extend to such nucleic acid analogues. The 1994 
proposal only proposed to exempt the naturally occurring, non-modified 
nucleic acids (ribosides or deoxyribosides of A, T, G, C, and U) and 
polymers of such substances commonly found in living cells that encode 
the information necessary to make the pesticidal substances produced by 
plants.
    The 1994 proposal also discussed how EPA proposed to view the 
introduction into plants of DNA sequences that code for the RNA 
complement (anti-sense) of the messenger RNA (mRNA) for an essential 
enzyme or component of an obligate parasite. One mechanism by which 
this RNA complement or anti-sense RNA is believed to work is to bind to 
the target mRNA and prevent it from binding to ribosomes, effectively 
terminating synthesis of the essential enzyme or other enzymes for 
making other essential cellular components necessary to survival of the 
parasite. This methodology is currently being developed for introducing 
pest-resistance into plants. As was noted in the proposed exemption, 
the Agency believes that the introduction and expression in plants of 
nucleic acids in this anti-sense technology do not present a hazard to 
the public health and such nucleic acids would qualify for this food 
tolerance exemption.

IV. Risk Assessment and Safety Determinations

A. Risk Assessment in Proposal

    This unit reviews the analysis that EPA used to support its 1994 
proposal (59 FR 60535) to exempt nucleic acids (DNA and RNA, including 
DNA and RNA used in anti-sense technology) produced in plants as part 
of a plant-pesticide from the requirement of a tolerance under FFDCA. 
EPA also relied upon the analysis in the 1994 FFDCA proposal to 
evaluate human dietary risks in support of its proposal (59 FR 60519) 
to exempt three categories of plant-pesticides (59 FR at 60535) from 
most FIFRA requirements. Non-dietary human risks from exposure to 
nucleic acids as part of plant-pesticides were examined under the 
analysis for the proposed FIFRA exemption and are discussed in this 
supplemental notice only as they pertain to the dietary risks.
    EPA's 1994 proposal (59 FR 60542) to exempt nucleic acids produced 
in plants as part of a plant-pesticide from the requirement of a 
tolerance was based on the ubiquity of nucleic acids and their presence 
in human and domestic animal food without observed adverse health 
effects.
    Nucleic acids encode the information necessary for the functioning 
of the organism. Chemically, nucleic acids occur in two types: 
deoxyribonucleic acid (DNA) and ribonucleic acid (RNA). DNA and RNA can 
be thought of as a ``tape'' containing information. DNA and RNA are 
polymers composed of small units, called ``nucleotides.'' A nucleotide 
is made up of a sugar, a phosphate group, and one of four heterocyclic 
bases. The heterocyclic bases in DNA are adenine, thymine, cytosine, 
and guanine. The heterocyclic bases in RNA are adenine, uracil, 
cytosine and guanine. The sugars and phosphates form a long chain or 
``backbone'' with one heterocyclic base attached to each sugar. The 
information encoded in the nucleic acid is determined by the sequence 
in which the heterocyclic bases are attached to the sugar-phosphate 
backbone. Thus, the ``genetic material necessary for the production of 
the pesticidal substance'' are the nucleic acids encoding the 
information necessary for a plant cell to make the pesticidal 
substance.
    Nucleic acids are also the chemical basis for heritable traits. 
When nucleic acids encoding the genetic information needed for the 
production of a pesticidal substance is stably integrated into the 
plant, that plant and its progeny will have the potential to produce 
the pesticidal substance.
    Nucleic acids are widespread in foods and have not, by themselves, 
been associated with toxic or pathogenic effects on animals or humans. 
None of the constituents of nucleic acids are known to be acute 
toxicants, but like proteins and other normal constituents of food, may 
cause indirect, adverse metabolic effects if consumed exclusively at 
high doses over a long period of time in the absence of a normal 
balanced diet. Nucleic acids never occur at these high amounts in food 
plants and have not been associated with any toxic effects related to 
consumption of foods.
    In the proposal, the Agency made clear that it is not proposing to 
exempt nucleic acid analogues from the requirement of a food tolerance. 
These analogues are not naturally occurring and those used as 
therapeutic agents frequently have significant toxicity associated with 
their use. The intent of EPA's 1994 proposal was to exempt only the 
naturally occurring, non-modified nucleic acids, and polymers of such 
substances, commonly found in living cells that serve as the mechanisms 
of encoding traits associated with pesticidal substances produced by 
plants.
    EPA proposed to extend this exemption (59 FR 60542) from the 
requirement of a tolerance to the mRNA used in anti-sense technology 
based on the consideration that these mRNAs are analogous to naturally 
occurring, non-modified nucleic acid polymers commonly found in living 
cells. The rationale applied in the proposal to other naturally 
occurring, non-modified nucleic acid polymers applies equally to these 
mRNAs; the ubiquity of nucleic acids and their presence in human and 
domestic animal food and no observed adverse health effects associated 
with consumption of foods containing nucleic acids.

B. Risk Assessment in Light of Amendment to FFDCA

    After EPA issued its proposed exemption from the requirement of a 
tolerance for nucleic acids produced in plants as part of a plant-
pesticide (59 FR 60542), Congress enacted FQPA and amended certain 
FFDCA provisions governing pesticide chemical residues and FIFRA 
provisions governing pesticides (See Unit II. of this supplemental 
notice). Congress revised the specific wording of the section 408 
standard for exemptions and provided more specific guidance regarding 
some of the factors that EPA should consider in establishing such 
exemptions (see

[[Page 27145]]

Unit II. of this supplemental notice). When EPA proposed the exemption 
for residues of nucleic acids produced in plants as part of a plant-
pesticide (59 FR 60535), it considered most of the safety factors 
spelled out in FQPA even though the Agency may not have explicitly 
discussed all those factors using the terminology specified in the FQPA 
amendments. This supplemental notice describes how the Agency took 
account of most of the FQPA factors in issuing its 1994 proposal to 
exempt from the requirement of a tolerance nucleic acids produced in 
plants as part of a plant-pesticide, and indicates which factors were 
considered in that proposal. The information the Agency relied on in 
considering these factors is part of the public record which was 
available to the public when EPA issued the proposed exemption from the 
requirement of a food tolerance. The supplemental notice also 
identifies the factors that were not considered in the proposal. 
Because FQPA amended FIFRA by incorporating the section 408 safety 
standard, commenters should be aware that comments on this supplemental 
notice may also affect EPA's final determination on the proposed 
exemptions (59 FR at 60535) under FIFRA for three categories of plant-
pesticides: (1) Those that are derived from plants sexually compatible 
with the recipient plant, (2) those that act primarily by affecting the 
plant, and (3) those that are coat proteins from plant viruses.
    1. Validity, completeness, and reliability of available data. EPA 
considered in 1994 the validity, completeness, and reliability of the 
available data with regard to nucleic acids produced in plants as part 
of a plant-pesticide in the proposals (59 FR 60519 and 60542) and has 
described the evaluation in Unit IV.A. of this supplemental notice.
    2. Nature of toxic effect. EPA in 1994 considered the nature of the 
toxic effects caused by nucleic acids produced in plants as part of a 
plant-pesticide in the proposals (59 FR 60519 and 60542) and has 
described its evaluation in Unit IV.A. of this supplemental notice.
    3. Relationship of studies to humans. EPA in 1994 considered the 
available information concerning the relationship of available data on 
toxicity of nucleic acids produced in plants as part of a plant-
pesticide to humans when it issued the proposal to exempt these 
substances from the requirement of a tolerance. EPA has summarized its 
evaluation in Unit IV.A. of this supplemental notice. The nature of the 
toxic effect of nucleic acids was assessed in light of the known 
presence of nucleic acids in all consumed foods (Ref. 1) and the 
history of human consumption of food derived from crop plants, and from 
products such as meat and milk from animals that consume forage and 
other crops (e.g., corn and other grains) that contain residues of 
nucleic acids. EPA determined in the proposal that nucleic acids 
produced in plants as part of a plant-pesticide do not have a toxic 
effect and have no adverse effects to humans. Because knowledge of 
human consumption of food containing nucleic acids was available and 
adequately addressed the issues of hazard and exposure, the Agency did 
not use, for the proposed exemption (59 FR 60542), data generated in 
the laboratory through animal testing.
    4. Dietary consumption patterns. EPA considered in the 1994 
proposal the available information on the varying dietary consumption 
patterns of major identifiable consumer subgroups as it pertains to 
nucleic acids in food from plants. As described in the 1994 proposal, 
nucleic acids are ubiquitous in nature and in the food supply. Nucleic 
acids that make up the genetic material in plant-pesticides will not 
alter this baseline consumption pattern of nucleic acids. The Agency's 
evaluation is summarized in Unit IV.A. of this supplemental notice.
    5. Available information concerning cumulative effects of the 
pesticide chemical residue and other substances that have a common 
mechanism of toxicity. EPA in 1994 examined the available information 
on the cumulative effect of nucleic acids in food from plants and other 
substances that have a common mechanism of toxicity. EPA summarizes 
this information and its analysis in Unit IV.A. of this supplemental 
notice.
    Nucleic acids are widespread in food and have not been associated 
with direct toxic or pathogenic effects to animals or humans. Because 
nucleic acids in foods have no human toxicity, no cumulative effects 
can be identified for nucleic acids produced in plants as part of a 
plant-pesticide. FQPA also directs the Agency to examine whether there 
are other substances that have a common mechanism of toxicity with 
nucleic acids produced in plants as part of a plant-pesticide. Based on 
available information which indicates that nucleic acids in food have 
no human toxicity, EPA is not aware of any other substances that might 
have a common mechanism of human toxicity with nucleic acids produced 
in plants as part of a plant-pesticide.
    EPA is not aware of any substances outside of the food supply that 
may have a common mechanism of toxicity with nucleic acids produced in 
plants as part of a plant-pesticide since nucleic acids in plant food 
are not toxic. EPA has identified nucleic acid analogues as substances 
having some level of toxicity; however, their mechanism of toxicity is 
not cumulative with that of naturally occurring nucleic acids (DNA and 
RNA).
    EPA considered the safety of foods containing residues of nucleic 
acids when it issued the proposal and is not requesting additional 
comment on that topic. Comments are only requested on EPA's conclusion 
that there are no substances outside of the food supply that may have a 
cumulative toxic effect with residues of nucleic acids produced in 
plants as part of a plant-pesticide.
    6. Aggregate exposures of consumers including non-occupational 
exposures. EPA considered the available information on the aggregate 
exposure level of consumers to nucleic acids produced in plants as part 
of a plant-pesticide in the 1994 FFDCA and FIFRA proposals (59 FR 60519 
and 60542). This included a consideration of exposures from dietary 
sources (59 FR 60542) as well as from other non-occupational sources 
(59 FR 60519). As indicated in EPA's policy statement, ``plant-
pesticides are likely to present a limited exposure of the pesticidal 
substance to humans. In most cases, the predominant, if not the only, 
exposure route will be dietary. Significant respiratory and dermal 
exposures will be unlikely'' (59 FR at 60513). As explained in the 
FFDCA and FIFRA proposals and EPA's policy statement (59 FR 60496) and 
associated dockets, plant-pesticides present negligible exposure of 
pesticidal substances to humans outside of the dietary route because 
the substances are in the plant tissue and thus are found either within 
the plant or in close proximity to the plant. This is particularly true 
for the nucleic acid portion of plant-pesticides. EPA considered 
dietary exposure to nucleic acids produced in plants as part of a 
plant-pesticide in the proposed FFDCA exemption (59 FR 60542) and 
summarized its evaluation in Unit IV.A. of this supplemental notice.
    Despite EPA's belief that, because of the nature of nucleic acids 
produced in plants as part of a plant-pesticide, there is little 
likelihood of exposure other than through the dietary route, EPA in 
this supplemental notice sets forth in greater detail its 
considerations concerning other exposure routes. With regard to the 
dermal route of exposure, nucleic acids produced in plants as part of a 
plant-pesticide may in some cases be present in sap or other exudates 
from the plant or the food and thus may

[[Page 27146]]

present some limited opportunity for dermal exposure to persons coming 
physically into contact with the plant or raw agricultural food from 
the plant. Individuals preparing meals are those most likely to 
experience dermal contact with the substances on a non-occupational 
basis. However, on a per person basis, the potential amounts involved 
in these exposures are negligible in comparison to potential exposure 
through the dietary route. Moreover, substances that occur naturally in 
food, including the nucleic acids produced in plants as part of plant-
pesticides, are unlikely to cross the barrier provided by the skin. 
This is particularly true for nucleic acids produced in plants as part 
of a plant-pesticide as they are large polymers.
    With regard to exposure through inhalation, nucleic acids produced 
in plants as part of a plant-pesticide may in some cases be present in 
pollen and some individuals (those near enough to farms, nurseries, or 
other plant-growing areas to be exposed to wind-blown pollen) may be 
exposed, through inhalation, to the pollen. On a per person basis, the 
potential amounts of pollen involved in these exposures are negligible 
in comparison to potential exposure through the dietary route. 
Moreover, it is unlikely that exposure to the pollen is equivalent to 
exposure to nucleic acids produced in plants as part of a plant-
pesticide. In pollen, nucleic acids will likely be integrated into the 
tissue of the pollen grain and not bound to the surface of the pollen 
grain. Pollen grains and the substances that occur naturally in pollen 
are unlikely to cross the barrier provided by the mucous membrane of 
the respiratory tract and thus are not additive to dietary exposure.
    EPA also evaluated potential non-occupational exposures in drinking 
water. As noted in the preceding paragraphs, the substances in plants 
or parts of plants, including nucleic acids produced in plants as part 
of a plant-pesticide, are produced inside the plant itself. Nucleic 
acids are an integral part of the living tissue of the plant. When the 
plant dies or a part is removed from the plant, microorganisms 
colonizing the tissue immediately begin to digest it, using the 
components of the tissue (including nucleic acids produced in plants as 
part of plant-pesticides) as building blocks for making their own 
tissues or for fueling their own metabolisms. Nucleic acids produced in 
plants as part of a plant-pesticide are subject to the same processes 
of degradation and decay that all organic matter undergoes. This 
turnover of biochemical materials in nature through a process of 
degradation occurs fairly rapidly. Indeed, nucleic acids are highly 
unstable outside of the cellular environment and are very quickly 
broken down. Therefore, nucleic acids produced in plants as part of a 
plant-pesticide do not persist in the environment or bioaccumulate. 
There is no indication that naturally occurring nucleic acids produced 
in plants as part of plant-pesticides, are resistant to this 
degradation. Because of the very rapid turnover of these substances, 
even if they reach surface waters (e.g., through plant parts falling 
into bodies of water), they are unlikely to present anything other than 
a very negligible exposure in drinking water drawn either from surface 
or ground water sources. Therefore, the potential for non-dietary 
exposure (i.e., non-food oral, dermal and inhalation) in non-
occupational settings is extremely limited and EPA expects such 
exposure to be negligible.
    With regard to exposure to ``other related substances,'' EPA is not 
aware of any other substances either in food or outside the food supply 
that may be related, via a common mechanism of toxicity, to nucleic 
acids produced in plants as part of a plant-pesticide since nucleic 
acids are not toxic. With regard to non-occupational exposure through 
routes other than dietary exposure, since nucleic acids have no 
mechanism of toxicity, EPA is not aware of substances in food or 
outside the food supply that may be related via a common mechanism of 
toxicity to the nucleic acids that are produced in plants as a plant-
pesticide. No evidence indicates that adverse effects due to aggregate 
exposure of nucleic acids with these substances through the dietary, 
non-food oral, dermal and inhalation routes occurs.
    EPA considered exposure to nucleic acids produced in plants as a 
part of a plant-pesticide when it issued the proposal and it is not 
requesting additional comment on this topic. Comments are requested 
only on EPA's conclusion that there are no additional substances 
outside the food supply that are related, via a common mechanism of 
toxicity, to residues of nucleic acids produced in plants as part of a 
plant-pesticide for which EPA must consider exposure in aggregate with 
nucleic acids.
    7. Sensitivities of subgroups. In 1994, EPA considered available 
information on the sensitivities of subgroups as it pertains to the 
nucleic acids produced in plants as part of a plant-pesticide in the 
proposal (59 FR 60542). The Agency's evaluation is summarized in Unit 
IV.A. of this supplemental notice.
    8. Naturally occurring estrogen or other endocrine effects. FFDCA 
now directs EPA, in establishing an exemption from the requirement of a 
tolerance, to consider ``such information as the Administrator may 
require on whether the pesticide chemical may have an effect in humans 
that is similar to an effect of a naturally occurring estrogen or other 
endocrine effect'' (21 U.S.C. 346(a)(q)). Congress allowed EPA 2 years 
to establish a screening program to determine whether certain pesticide 
chemicals may have estrogenic effects and an additional year to 
implement the program (21 U.S.C. 408(p)). As part of the screening and 
implementation process, EPA is determining what information might be 
required and how it will address estrogenic effects from pesticide 
residues in general.
    Based on available information concerning their structure and mode 
of action, EPA does not expect nucleic acids produced in plants as part 
of a plant-pesticide to cause estrogen or other endocrine effects. 
There is some information on estrogenic effects by exposure to 
pesticides but the data are limited and do not pertain to nucleic 
acids. If EPA becomes aware of a potential for estrogenic or endocrine 
effect from exposure to nucleic acids produced in plants as part of a 
plant-pesticide, EPA will reexamine this tolerance exemption in light 
of that information.
    9. Safety factors. In the 1994 proposal, EPA did not rely on the 
available animal data in reaching its determination that a tolerance is 
not necessary to protect the public from nucleic acids produced in 
plants as part of a plant-pesticide (59 FR 60542). As discussed in Unit 
IV.A. of this supplemental notice, EPA relied on the long history of 
safe human consumption of food containing nucleic acids produced in 
plants as part of a plant-pesticide and in food derived from animals 
that consume forage and other crops (e.g., corn and other grains). EPA 
continues to believe that long-term evidence of human consumption, not 
animal experimentation data, is the appropriate information base for 
the proposed exemption (59 FR 60542). Because EPA did not rely on 
animal experimentation data, the Agency did not consider which safety 
factors would be appropriate to use in assessing risk to humans based 
on data generated through experiments on animals.
    10. Infants and children.--a. Dietary consumption patterns. In the 
1994 proposal (59 FR 60542), EPA considered available information on 
the dietary consumption pattern of infants and children as it pertains 
to nucleic acids produced in plants as part of a plant-

[[Page 27147]]

 pesticide and has summarized the evaluation in Unit IV.A. of this 
supplemental notice. The range of foods consumed by infants and 
children is in general more limited than the range of foods consumed by 
adults. Most newborns rely on milk products for nutrition, although 
some infants are fed soy-based products. Infants begin as early as 4-
months of age to consume specific types of solid foods. Subsequent to 4 
months of age, apart from processing to facilitate swallowing, the 
diets of infants are based on foods consumed by the general adult 
population albeit in different proportions. As infants and children 
mature, more and more of the foods normally consumed by adults become 
part of their diets and the relative proportions of the different types 
of food consumed changes to more closely resemble an adult diet. All 
foods consumed by infants and children contain nucleic acids.
    b. Special susceptibility. In the 1994 proposal (59 FR 60542), EPA 
considered available information on the potential for susceptibility of 
infants and children, including pre- and post-natal toxicity, as these 
factors pertain to the nucleic acids produced in plants as part of a 
plant-pesticide. There is no scientific evidence that nucleic acids as 
a component of food would have a different effect on children than they 
would on the adult population. EPA summarizes its analysis of the 
effect of consumption in food of nucleic acids on human health in Unit 
IV.A. of this supplemental notice.
    c. Cumulative effects of residues with other substances with a 
common mechanism of toxicity. In the 1994 proposal (59 FR 60542), EPA 
examined the available information on the cumulative effect of residues 
of nucleic acids produced in plants as part of a plant-pesticide as 
well as other substances in food that may have a common mechanism of 
toxicity. The Agency's consideration in the proposal of the effects of 
the residues of nucleic acids produced in plants as part of a plant-
pesticide on the general population also included consideration of 
effects for infants and children. See Unit IV.B.5. of this supplemental 
notice for a discussion of cumulative effects of nucleic acids and 
other substances that have a common mechanism of toxicity.
    Because EPA already considered the safety of food containing 
residues of nucleic acids produced in plants as part of a plant-
pesticide and other constituents of food when it issued the proposal 
(59 FR 60542), the Agency is not requesting additional comment on that 
topic. Comments are requested only on EPA's conclusion that there are 
no substances outside of the food supply with a common mechanism of 
toxicity to the residues of nucleic acids produced in plants as part of 
a plant-pesticide.
    d. Margin of safety. In determining whether the residues of nucleic 
acids produced in plants as part of a plant-pesticide are safe, FFDCA 
section 408(b)(2)(C) directs EPA to apply a tenfold margin of safety 
for the residues and other sources of exposure to infants and children 
to account for potential pre- and post-natal toxicity and completeness 
of data on threshold effects with respect to exposure and toxicity to 
infants and children, unless a different margin will be safe. In 
proposing the exemption, EPA based its assessment of exposure and 
toxicity upon reliable information (Ref. 1) including the long history 
of safe human consumption of food containing residues of nucleic acids 
produced in plants as part of a plant-pesticide and other substances in 
food, and the unique nature of plant-pesticides. EPA did not rely on 
animal data. EPA relied on observations concerning whole food 
consumption by humans and did not rely on single entity testing, 
wherein substances are isolated from a plant source, and fed to animals 
at high concentrations (Ref. 1). EPA relied on the vast base of the 
human experience with actual food consumption rather than limited 
testing situations. EPA thus, did not utilize animal or other studies 
that would yield data that could be subjected to an additional margin 
of safety. (See Units IV.A. and IV.B.3. of this supplemental notice). 
As a result, the FQPA amendments to FFDCA do not affect EPA's analysis.

C. Safety Determinations in Light of FFDCA Amendment

    Based on the information discussed in the 1994 proposals (59 FR 
60496 through 60547), the discussion in Unit IV.A. and the analysis in 
Unit IV.B. of this supplemental notice, EPA concludes that there is a 
reasonable certainty that no harm will result to the U.S. population in 
general, and U.S. infants and children, from aggregate exposure to 
residues of nucleic acids produced in plants as part of a plant-
pesticide, including all anticipated dietary exposures and all other 
exposures for which there is reliable information. Under the proposed 
exemption from the requirement for a tolerance (59 FR 60542), EPA would 
exempt residues of nucleic acids produced in plants as part of a plant-
pesticide. Extensive use and experience show the safety of foods 
containing these substances. No evidence, in the many years of human 
experience with the growing and consumption of food from plants 
containing residues of nucleic acids produced in plants as part of a 
plant-pesticide, indicates that adverse effects due to aggregate 
exposure through the dietary, non-food oral, dermal and inhalation 
routes occur.
    The conclusion that residues of nucleic acids produced in plants as 
part of a plant-pesticide should be exempt from tolerance requirements 
under the FFDCA section 408 safety standard also lends support to EPA's 
proposed FIFRA exemptions (59 FR 60519) with respect to human dietary 
risks. These exemptions are: (1) Plant-pesticides that are derived from 
a plant that is sexually compatible with the recipient plant, (2) 
plant-pesticides that act primarily by affecting the plant, and (3) 
plant-pesticides that are coat proteins from plant viruses (59 FR at 
60535). In the FIFRA proposal, EPA utilized two criteria to determine 
whether plant-pesticides should be exempt; (1) whether they posed a low 
probability of risk, and (2) whether they caused unreasonable adverse 
effects on the environment. Based upon the determination that residues 
of the three categories of pesticidal substances subject to the 
proposed exemptions (59 FR 60535) and the nucleic acid component of a 
plant-pesticide (59 FR 60542) meet the FFDCA section 408 safety test, 
EPA concludes plant-pesticides in the three proposed categories of 
exemption would pose only a low probability of human dietary risk and 
also would not pose an unreasonable adverse effect with respect to such 
risks.

D. Other Considerations.

    When the Agency proposed to establish an exemption from the 
requirement of a tolerance for nucleic acids produced in plants as part 
of a plant-pesticide (59 FR 60542), EPA did not propose any numerical 
limitation on the amount of nucleic acids that could be present in food 
containing these residues. EPA consulted in 1994 with the Department of 
Health and Human Services (DHHS) in developing the proposed exemption 
and this supplemental notice and will consult with the Secretary of HHS 
prior to issuing the final rule. Because the 1994 proposal was an 
exemption from the requirement of a tolerance, the Agency has concluded 
that an analytical method for detecting and measuring the levels of the 
residues of nucleic acids in or on food is not required.

[[Page 27148]]

V. Comments

A. Confidential Business Information

    Information submitted as a comment concerning this supplemental 
notice may be claimed confidential by marking any part or all of that 
information as ``Confidential Business Information'' (CBI). CBI should 
not be submitted through e-mail. Information marked as CBI will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2. A copy of the comment that does not contain CBI must be submitted 
for inclusion in the public record. Information not marked confidential 
may be disclosed publicly by EPA without prior notice.

B. 30-Day Comment Period

    EPA is allowing a 30-day comment period because it has determined 
that such a period will provide the public with an adequate opportunity 
to respond to the additional issues raised in this supplemental notice. 
FFDCA and FIFRA do not specify a comment period for this type of 
notice. EPA has decided that a 30-day comment period is reasonable 
because this supplemental notice raises very few new issues that were 
not already available for public comment. As discussed in Unit IV. of 
this supplemental notice, EPA effectively considered most of the 
factors required by the FQPA amendments of FFDCA and FIFRA relevant to 
the proposed exemptions when it issued the proposed package of notices 
describing EPA's approach in 1994 (59 FR 60496, 60519, 60535, 60542 and 
60545). At that time, the public had an opportunity to review both the 
Agency's rationale for the proposals and the underlying support 
documents during a 90-day public comment period. Only a limited number 
of new issues have been raised by the FQPA amendments to FFDCA and 
FIFRA and the Agency continues to rely upon the information already in 
the docket for the 1994 proposals and thus 30 days should provide 
adequate time for public comment. In addition, EPA believes that it is 
in the interest of the public to publish the final exemption from the 
requirement of a tolerance in a timely manner.

C. Request for Comments

    Interested persons are invited to submit written comments on the 
new issues raised in this supplemental notice specifically on:
    (1) EPA's conclusion that there are no substances outside of the 
food supply that may have a cumulative toxic effect with residues of 
nucleic acids produced in plants as part of a plant-pesticide.
    (2) EPA's conclusion that there are no additional substances 
outside the food supply that are related, via a common mechanism of 
toxicity, to residues of nucleic acids produced in plants as part of a 
plant-pesticide for which EPA must consider exposure in aggregate with 
nucleic acids.
    Commenters who possess information on nucleic acids causing 
estrogenic effects are requested to send such information to EPA.
    In this supplemental notice, EPA describes in greater detail the 
rationale supporting the statement made in the 1994 Federal Register 
(59 FR at 60513) that ``plant-pesticides are likely to present a 
limited exposure of pesticidal substances to humans. In most cases, the 
predominant, if not the only route of exposure will be dietary. 
Significant respiratory and dermal exposures will be unlikely.'' No 
comments were received on this statement during the official comment 
period. Commenters may comment on this more detailed rationale.
    In this supplemental notice, EPA also describes in greater detail 
how the rationale presented in the 1994 Federal Register (59 FR at 
60538) concerning the safety for human consumption of food containing 
nucleic acids produced in plants as part of a plant-pesticide applies 
to infants and children. No comments were received on this statement 
during the official comment period. Commenters may comment on this more 
detailed rationale specifically addressing infants and children as part 
of the larger human population.

VI. Public Docket

    The official record for this rulemaking, as well as the public 
version, has been established for this rulemaking under docket control 
number number ``OPP-300371A'' (including comments and data submitted 
electronically as described below). A public version of this record, 
including printed, paper versions of electronic comments, which does 
not include any information claimed as CBI, is available for inspection 
from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal 
holidays. The official rulemaking record is located at the address in 
``ADDRESSES'' at the beginning of this document.
    Electronic comments can be sent directly to EPA at:

    [email protected]
    Electronic comments must be submitted as an ASCII file avoiding the 
use of special characters and any form of encryption. Comment and data 
will also be accepted on disks in WordPerfect 5.1 file format or ASCII 
file format. All comments and data in electronic form must be 
identified by the docket number ``OPP-300371A.'' Electronic comments on 
this supplemental notice may be filed online at many Federal Depository 
Libraries.

VII. References

    (1) International Food Biotechnology Council, 1990. Biotechnologies 
and food; Assuring the safety of foods produced by genetic 
modification. In: Regulatory Toxicology and Pharmacology. Vol. 12. 
Academic Press, New York.

VIII. Regulatory Assessment Requirements

    This supplemental notice merely seeks additional comments on the 
proposed rules with regard to the potential impact that the new 
statutory amendments imposed by the August 3, 1996 Food Quality 
Protection Act (FQPA) might have on the provisions as proposed. As 
such, this notice does not contain any new proposed requirements that 
would require additional consideration by the Office of Management and 
Budget (OMB) under Executive Order 12866, entitled Regulatory Planning 
and Review (58 FR 51735, October 4, 1993) or the Paperwork Reduction 
Act (PRA), 44 U.S.C. 3501 et seq. It does not require any other action 
under Executive Order 12875, entitled Enhancing the Intergovernmental 
Partnership (58 FR 58093, October 28, 1993), Executive Order 12898, 
entitled Federal Actions to Address Environmental Justice in Minority 
Populations and Low-Income Populations (59 FR 7629, February 16, 1994), 
or the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.). The 
Agency's activities related to these regulatory assessment requirements 
are discussed in the proposed rules.
    EPA did not consider Title II of the Unfunded Mandates Reform Act 
of 1995 (UMRA) (Pub. L. 104-4) at the proposal stage because the 
proposed rules were issued prior to its enactment. Although this 
supplemental notice is not subject to UMRA because it neither proposes 
or finalizes any regulatory requirements, the applicability of the UMRA 
requirements will be addressed in the final rules.

List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, 
Agricultural commodities, Pesticides and pests, Plants, Plant-
pesticides, Reporting and recordkeeping requirements.

[[Page 27149]]

    Dated: May 7, 1997.

Lynn R. Goldman,
Assistant Administrator for Prevention, Pesticides and Toxic 
Substances.

[FR Doc. 97-12786 Filed 5-15-97; 8:45 am]
BILLING CODE 6560-50-F

Complete official Federal Register PDF

FR Doc. 97-12785 Plant-Pesticides; Viral Coat Proteins; Supplemental Notice of Proposed Rulemaking
[Federal Register Volume 62, Number 95 (Friday, May 16, 1997)]
[Proposed Rules]
[Pages 27149-27155]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12785]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[OPP-300367A; FRL-5716-6]
RIN 2070-AC02

Plant-Pesticides; Viral Coat Proteins; Supplemental Notice of 
Proposed Rulemaking

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplemental notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: This document announces the availability of information for 
additional public comment regarding the proposed exemption from the 
requirement of a tolerance under the Federal Food, Drug, and Cosmetic 
Act (FFDCA) for residues of coat proteins from plant viruses when these 
coat proteins are produced and used as plant-pesticides in plants or 
plant parts used as raw agricultural commodities. Comments on this 
document may also affect EPA's final determination on a proposed 
exemption under the Federal Insecticide, Fungicide, and Rodenticide Act 
(FIFRA) for this same category of plant-pesticides. In 1994, EPA 
proposed to exempt from the requirement of a tolerance viral coat 
proteins produced in plants as part of a plant-pesticide because a 
tolerance would not be necessary to protect the public health. Since 
publication of the proposal, Congress enacted the Food Quality 
Protection Act (FQPA) which amended FFDCA and FIFRA. EPA is issuing 
this document today to provide the public with an opportunity to 
comment on EPA's analysis of how certain FQPA amendments to FFDCA and 
FIFRA apply to the proposed exemption from the requirement of a 
tolerance for viral coat proteins produced in plants as part of a 
plant-pesticide. EPA believes that it considered most of the 
substantive issues associated with the FQPA amendments when it issued 
the proposal in 1994. EPA is thus, in this document, specifically 
seeking comment only on its evaluation of the requirements imposed by 
FQPA that the Agency did not address in that proposal.

DATES: Comments, identified by the docket number ``OPP-300367A,'' must 
be received on or before June 16, 1997.

ADDRESSES: By mail, submit written comments to: Public Information and 
Records Integrity Branch, Information Resources and Services Division 
(7506C), Office of Pesticide Programs, Environmental Protection Agency, 
401 M St., SW., Washington, DC 20460. In person deliver comments to: 
Rm. 1132, Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA.
    Comments and data may also be submitted electronically by following 
the instructions under Unit VI. of this document. No Confidential 
Business Information (CBI) should be submitted through e-mail.
FOR FURTHER INFORMATION CONTACT: Elizabeth Milewski, Office of Science, 
Coordination and Policy, Office of Prevention, Pesticides and Toxic 
Substances (7101), Environmental Protection Agency, 401 M St., SW., 
Washington, DC 20460, Telephone: (202) 260-6900, e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Introduction

    EPA issued in the November 23, 1994 Federal Register a package of 
five separate Federal Register proposals (59 FR 60496, 60519, 60535, 
60542 and 60545) (FRL-4755-2, FRL-4755-3, FRL-4758-8, FRL-4755-5, and 
FRL-4755-4) which together described EPA's approach to substances 
produced in plants that enable the plants to resist pests or disease. 
EPA's package of proposals indicated that these substances are 
pesticides under section 2 of FIFRA (7 U.S.C. 136(u)) if they are 
``intended for preventing, destroying, repelling, or mitigating any 
pest'' or if they are `` . . . intended for use as a plant regulator, 
defoliant, or desiccant'' regardless of whether the pesticidal 
capabilities evolved in the plants or were introduced by breeding or 
through the techniques of modern biotechnology. These substances, and 
the genetic material necessary to produce them, were designated 
``plant-pesticides'' by EPA in the November 23, 1994 Federal Register 
documents. The notices defined a ``plant-pesticide'' as ``a pesticidal 
substance that is produced in a living plant and the genetic material 
necessary for the production of the pesticidal substance where the 
pesticidal substance is intended for use in the living plant'' (59 FR 
at 60534). Viral coat proteins produced in plants for viral coat 
protein mediated viral resistance are considered plant-pesticides 
because of their intended role in plant resistance to viral infection.
    One of the five notices (59 FR 60545) proposed to exempt viral coat 
proteins produced in plants as part of a plant-pesticide, or segments 
of coat proteins, from the FFDCA (21 U.S.C. 346a) requirement of a 
tolerance based upon an evaluation of the potential for new dietary 
exposures to the substances when they are produced in plants, or in 
plant parts, used as food or feed. EPA stated in the proposed exemption 
that a tolerance is not necessary to protect the public health for 
these pesticidal substances because no new dietary exposures are likely 
to occur for viral coat proteins produced in plants as part of a plant-
pesticide. For pesticidal substances in this category, many years of 
human experience with consumption of food containing plant viruses 
suggest that these pesticidal substances present negligible risk. 
Specifically, EPA proposed that ``residues of coat proteins from plant 
viruses, or segments of the coat proteins, produced in living plants as 
plant-pesticides are exempt from the requirement of a tolerance'' (59 
FR at 60547).
    This supplemental notice addresses the coat protein portion of the 
plant-pesticide produced in food plants. A companion supplemental 
notice issued elsewhere in today's Federal Register addresses the 
proposed exemption for the nucleic acid component of plant-pesticides 
with regard to the FQPA amendments to FFDCA. Because FQPA modified 
FIFRA (7 U.S.C. 136 et seq.) by incorporating the FFDCA safety standard 
into the FIFRA test for determining whether a pesticide poses an 
unreasonable adverse effect, comments on this supplemental notice may 
also affect EPA's final determination on a proposed exemption under 
FIFRA (59 FR at 60535) for plant-pesticides that are coat proteins from 
plant viruses.
    EPA is publishing this supplemental notice to ensure that the 
public has had adequate opportunity to comment on certain new 
considerations raised by the FQPA amendments to FFDCA as these 
considerations relate to the proposed exemption from a tolerance for 
residues of viral coat proteins produced in plants as part of a plant-
pesticide. In evaluating a pesticide chemical residue for exemption 
from FFDCA tolerance requirements, EPA must now explicitly address 
certain factors, and make a determination that there is a reasonable 
certainty that aggregate exposure to the residue will cause no harm to 
the public. The factors to be considered are iterated in Unit II. of 
this supplemental notice. EPA's evaluation of these factors

[[Page 27150]]

relative to the proposed exemption (59 FR 60545) is contained in Unit 
IV. of this supplemental notice. Consistent with FFDCA section 
408(c)(2)(B), EPA has reviewed the available scientific data and other 
relevant information in support of this action. In today's supplemental 
notice, EPA requests comment only on the new conclusions identified in 
Unit V.C. of this supplemental notice.
    In light of FQPA, EPA is engaged in a process, including 
consultation with registrants, states, and other interested 
stakeholders, to make decisions on the new policies and procedures that 
will be appropriate as a result of enactment of FQPA. In establishing 
this exemption from the requirement of a tolerance for residues of 
viral coat proteins produced in plants as part of a plant-pesticide, 
EPA does not intend to set precedents for the application of section 
408 and the new safety standard to other tolerances and exemptions. 
This exemption from the requirement of a tolerance will not restrict 
EPA's options with regard to general procedures and policies for 
implementation of the amended FFDCA section 408.

II. Statutory Authority

    Under FFDCA, EPA regulates pesticide chemical residues by 
establishing tolerances limiting the amounts of residues that may be 
present in food, or by establishing exemptions from the requirement of 
a tolerance for such residues. Pesticide chemical residues subject to 
regulation under FFDCA are defined by reference to the definition of 
pesticide under FIFRA. FFDCA section 201(q)(1) defines a ``pesticide 
chemical residue'' to mean the residue in or on food of a pesticide 
chemical or other added substance resulting primarily from the 
metabolism or degradation of a pesticide chemical (21 U.S.C. 321 
(q)(2)). A ``pesticide chemical'' means ``any substance that is a 
pesticide within the meaning of the Federal Insecticide, Fungicide, and 
Rodenticide Act, including all active and inert ingredients of such 
pesticide'' (21 U.S.C. 321(q)(1)).
    FIFRA authorizes EPA to regulate the sale and distribution of 
pesticides in the United States and to exempt a pesticide from the 
requirements of FIFRA if it is not of a character requiring regulation 
(7 U.S.C. 136a(a) and 136w(b)). FIFRA section 2(u) defines 
``pesticide'' as: (1) ``any substance or mixture of substances intended 
for preventing, destroying, repelling, or mitigating any pest, (2) any 
substance or mixture of substances intended for use as a plant 
regulator, defoliant, or desiccant, and (3) any nitrogen stabilizer'' 
(7 U.S.C. 136(u)).
    FQPA amends both FFDCA and FIFRA. FQPA, which took effect on August 
3, 1996, among other things, amends FIFRA such that a registration 
cannot be issued for a pesticide to be used on or in food unless the 
residue of the pesticide in food qualifies for a tolerance or exemption 
from the requirement for a tolerance. FQPA modified FIFRA section 2(bb) 
by incorporating the FFDCA section 408 safety standard into the test 
for determining whether a pesticide poses an unreasonable adverse 
effect (7 U.S.C. 136(bb)). FIFRA section 2(bb) defines the term 
``unreasonable adverse effects on the environment'' to mean (1) any 
unreasonable risk to man or the environment, taking into account the 
economic, social, and environmental costs and benefits of the use of 
any pesticide, or (2) a human dietary risk from residues that result 
from a use of a pesticide in or on any food inconsistent with the 
standard under section 408 of the FFDCA. Thus, a pesticide used in or 
on food that does not meet the FFDCA section 408 safety standard also 
would pose an unreasonable adverse effect under FIFRA and would not 
qualify for an exemption from the requirements of FIFRA under FIFRA 
section 25(b)(2).
    FQPA amends FFDCA section 408(c)(2)(A)(i) to allow EPA to establish 
an exemption from the requirement of a tolerance for a ``pesticide 
chemical residue'' only if EPA determines that the exemption is 
``safe'' (21 U.S.C. 346a(c)(2)(A)(i)). Section 408(c)(2)(A)(ii) 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'' (21 U.S.C. 346a(c)(2)(A)(ii)). 
This includes exposure through drinking water, but does not include 
occupational exposure. In establishing an exemption from the 
requirement of a tolerance, FFDCA section 408(c), like the statute 
prior to FQPA, does not require EPA to consider benefits that might be 
associated with use of the pesticide chemical.
    FFDCA section 408 requires EPA to give special consideration to 
exposure of infants and children to the pesticide chemical residue in 
establishing an exemption 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'' (21 U.S.C. 
346a(b)(2)(C)(ii)(I)) and (c)(2)(B). Section 408(b)(2)(D) specifies 
other, general factors EPA is to consider in establishing an exemption. 
Section 408(c)(3)(B) prohibits an exemption unless there is either a 
practical method for detecting and measuring levels of pesticide 
chemical residue in or on food or there is no need for such a method 
(21 U.S.C. 346a(c)(3)(B)).
    Specifically, EPA must consider the following in deciding whether 
to grant an exemption:
    1. The validity, completeness and reliability of the available data 
from studies of the pesticide chemical and pesticide chemical residue.
    2. Nature of any toxic effect shown to be caused by the pesticide 
chemical or residues in studies.
    3. Available information concerning the relationship of the results 
of such studies to human risk.
    4. Available information concerning the dietary consumption 
patterns of consumers (and major identifiable subgroups of consumers).
    5. Available information concerning the cumulative effects of such 
residues and other substances that have a common mechanism of toxicity.
    6. Available information concerning the aggregate exposure levels 
of consumers to the pesticide chemical residue and to other related 
substances, including dietary exposure and non-occupational exposures.
    7. Available information concerning the variability of the 
sensitivities of major identifiable subgroups of consumers.
    8. Such information as the Administrator may require on whether the 
pesticide chemical may have an effect in humans that is similar to an 
effect produced by a naturally-occurring estrogen or other endocrine 
effects.
    9. Safety factors which in the opinion of experts qualified by 
scientific training and experience to evaluate the safety of food 
additives are generally recognized as appropriate for the use of animal 
experimentation data (21 U.S.C. 346a(b)(2)(D)).
    Additionally, with respect to exposure of infants and children, 
consistent with section 408(b)(2)(C), EPA must assess the risk of the 
pesticide based on available information concerning:
    1. Consumption patterns that are likely to result in 
disproportionately high consumption of food with pesticide residues.
    2. Special susceptibility of infants and children to such residues.
    3. Cumulative effects of residues with other substances that have a 
common mechanism of toxicity (21 U.S.C. 346a(b)(2)(C) and (c)(2)(B)).

III. Summary of Proposed Rule

    In the November 23, 1994 Federal Register, EPA proposed to exempt 
from

[[Page 27151]]

the requirement of a tolerance coat proteins from plant viruses, or 
segments of such proteins when these proteins, or segments of these 
proteins, are produced in plants for the purpose of protecting plants 
against viral disease. Coat proteins are those substances that viruses 
produce to encapsulate and protect their genetic material. When the 
genetic material encoding the coat protein is introduced into a plant's 
genome, the plant is able to resist infections by the virus donating 
the genetic material for the coat protein (as well as infections by 
virus strains closely related to the donor virus). This resistance is 
termed viral coat protein mediated resistance or vcp-mediated 
resistance.

IV. Risk Assessment and Safety Determinations

A. Risk Assessment in Proposal

    EPA's rationale for its 1994 proposal for an exemption from the 
requirement of a tolerance for viral coat proteins was based on the 
following points: (1) Virus-infected plants have always been a part of 
the human and domestic animal food supply since most crops are 
frequently infected with plant viruses and food from these crops have 
been and are being consumed without detectable adverse human health 
effects. (2) Plant viruses have never been shown to be infectious to 
humans, including children and infants, or mammals. Plant viruses are 
not able to replicate in mammals or other vertebrates, limiting the 
possibility of human infection. In addition, this exemption applies 
only to the portion of the viral genome coding for the whole coat 
protein or a segment of the coat protein which will be expressed in the 
plant. The coat protein or a segment of the coat protein by itself is 
incapable of forming infectious particles. Since whole, intact plant 
viruses are not known to cause deleterious human health effects, it is 
reasonable to assume that a subunit of these viruses likewise will not 
cause adverse human health effects when consumed at rates currently 
found in the food supply.
    In developing its regulatory approach for plant-pesticides, EPA 
requested the advice of a subpanel, composed of experts in the relevant 
scientific disciplines, of the FIFRA Scientific Advisory Panel (SAP). 
On December 18, 1992, the SAP subpanel was convened to review a draft 
policy statement for plant-pesticides and respond to a series of 
scientific questions posed by the Agency. One question that the Agency 
asked the SAP subpanel was whether coat proteins from plant viruses 
might present a dietary risk. In answer to the question, the subpanel 
stated that ``[s]ince viruses are ubiquitous in the agricultural 
environment at levels higher than will be present in transgenic plants, 
and there has been a long history of `contamination' of the food supply 
by virus coat protein, there is [a] scientific rationale for exempting 
transgenic plants expressing virus coat protein from the requirement of 
a tolerance.''
    As described in the proposed regulation (59 FR 60545), entire 
infectious particles of the plant viruses, including the coat protein 
component, have been and are being consumed by humans with no observed 
adverse effects. Virus-infected food plants have always been a part of 
the human and domestic animal food supply (Refs. 1, 2, 3, and 4). For 
example, at the beginning of this century virtually every commercial 
cultivar of potatoes grown in the United States and Europe was infected 
with either one or some complex of potato viruses (Ref. 1).
    All plants have viruses that can infect them. While some viruses 
may be limited to certain tissues (e.g., the vascular system) or organs 
(e.g., roots), most plant viruses are found throughout the various 
organs and tissues of plants. Viruses, including the coat protein 
component, are found in the fruit, leaves, and stems of most plants. 
The long history of inadvertent mammalian consumption of the entire 
plant virus particle in foods with no observed ill effects presents a 
strong argument to support the human and domestic animal safety of the 
entire virus in foods. Concentrations of the virus particles in 
infected plants vary widely according to the host plant, length of 
infection, and the reproductive life cycle of the virus itself. In 
general, EPA anticipates that the amounts of viral coat protein 
consumed in the diet due to the production of viral coat proteins in 
vcp-mediated resistance will be similar to the amounts of viral coat 
proteins currently consumed.
    Plant pathogenic viruses have never been shown capable of infecting 
or replicating in vertebrates (Refs. 1, 2, and 5). Intact, infectious, 
whole plant viruses, therefore, are not infectious to humans, including 
children and infants. Given that the complete virus is not infectious 
to vertebrates, it is reasonable to assume that a noninfectious 
subcomponent (i.e., a coat protein or a segment of a coat protein) of 
the virus would not be hazardous to humans or animals.

B. Risk Assessment in Light of Amendment to FFDCA

    After EPA issued its proposed exemption from the requirement of a 
tolerance for viral coat proteins produced in plants as part of a 
plant-pesticide (59 FR 60545), Congress enacted FQPA and amended 
certain FFDCA provisions governing pesticide chemical residues and 
FIFRA provisions governing pesticides (See Unit II. of this 
supplemental notice). Congress revised the specific wording of the 
section 408 standard for exemptions and provided more specific guidance 
regarding some of the factors that EPA should consider in establishing 
such exemptions (see Unit II. of this supplemental notice). When EPA 
proposed the exemption for residues of viral coat proteins produced in 
plants as part of a plant-pesticide, or segments of such proteins, it 
considered most of the safety factors spelled out in FQPA even though 
the Agency may not have explicitly discussed all those factors using 
the terminology specified in the FQPA amendments. This supplemental 
notice describes how the Agency took account of most of the FQPA 
factors in issuing its 1994 proposal to exempt viral coat proteins, or 
segments of such proteins, produced in plants as part of a plant-
pesticide and indicates which factors were considered in that proposal. 
The information the Agency relied on in considering these factors is 
part of the public record which was available to the public when EPA 
issued the proposed exemption from the requirement of a food tolerance. 
This supplemental notice also identifies the factors that were not 
considered in the proposal. Because FQPA amended FIFRA by incorporating 
the section 408 safety standard, commenters should be aware that 
comments on this supplemental notice may also affect EPA's final 
determination on the proposed exemption (59 FR 60519) under FIFRA for 
viral coat proteins produced in plants as plant-pesticides.
    1. Available data. EPA considered in 1994, the validity, 
completeness and reliability of the available data with regard to coat 
proteins from plant viruses in the proposals (59 FR 60519 and 60545) 
and has summarized the evaluation in Unit IV.A. of this supplemental 
notice.
    2. Nature of toxic effect. EPA in 1994 considered the nature of the 
toxic effects caused by viral coat proteins produced in plants as part 
of a plant-pesticide in the proposals (59 FR 60519 and 60545) and has 
summarized its evaluation in Unit IV.A. of this supplemental notice.

[[Page 27152]]

    3. Relationship of studies to humans. EPA in 1994 considered the 
available information concerning the relationship to humans of toxic 
effects of viral coat proteins produced in plants as part of a plant-
pesticide when it issued the proposals (59 FR 60519 and 60545) and has 
summarized that evaluation in Unit IV.A. of this supplemental notice. 
EPA based its evaluation on the history of human consumption of food 
derived from crop plants, and from products such as meat and milk from 
animals that consume forage and other crops (e.g., corn and other 
grains) that contain residues of pesticidal substances that are the 
subject of the proposed exemption. Because knowledge of human 
consumption of food from virus infected crop plants (as well as meat 
and milk products derived from animals eating such plants) was 
available and adequately addressed the issues of hazard and exposure, 
the Agency did not use, for the proposed exemption (59 FR 60545), data 
generated in the laboratory through animal testing.
    4. Dietary consumption patterns. EPA considered in the 1994 
proposal the available information on the varying dietary consumption 
patterns of major identifiable consumer subgroups as it pertains to 
consumption of food from virus infected plants. The Agency's evaluation 
is summarized in Unit IV.A. of this supplemental notice.
    5. Available information concerning cumulative effects of the 
pesticide chemical residue and other substances that have a common 
mechanism of toxicity. EPA has examined the available information on 
the cumulative effect of consuming virus infected plants and other 
substances in plants that may have a common mechanism of human 
toxicity. EPA summarizes this information and its analysis in Unit 
IV.A. of this supplemental notice.
    Viral coat proteins are nontoxic proteins widespread in food. They 
have not been associated with toxic or pathogenic effects to animals or 
humans. Because viral coat proteins in foods have no known human 
toxicity, no cumulative effects can be identified for viral coat 
proteins produced in plants as part of a plant-pesticide. FQPA also 
directs the Agency to examine whether there are other substances that 
have a common mechanism of toxicity with residues of viral coat 
proteins produced in plants as part of a plant-pesticide. Based on 
available information which indicates that viral coat proteins in food 
have no human toxicity, EPA is not aware of any other substances that 
might have a common mechanism of human toxicity with residues of viral 
coat proteins produced in plants as part of a plant-pesticide. 
Experience with residues of viral coat proteins in the current food 
supply gives no indication of human or animal toxicity. If information 
becomes available that indicates this finding is not appropriate, EPA 
will consider the validity of the new information and act to amend this 
tolerance exemption as needed.
    EPA is not aware of any substances outside of the food supply that 
may have a common mechanism of toxicity with residues of viral coat 
proteins produced in plants as part of a plant-pesticide since viral 
coat proteins are not toxic to humans or animals.
    EPA considered the safety of foods containing residues of viral 
coat proteins when it issued the proposal and is not requesting 
additional comment on that topic. Comments are only requested on EPA's 
conclusion that there are no substances outside of the food supply that 
may have a cumulative toxic effect with residues of viral coat proteins 
produced in plants as part of a plant-pesticide.
    6. Aggregate exposures including non-occupational exposures. EPA 
has considered the available information on the aggregate exposure 
level of consumers to viral coat proteins produced in plants as part of 
a plant-pesticide in the 1994 FFDCA and FIFRA proposals (59 FR 60519 
and 60545). This included a consideration of exposures from dietary 
sources (59 FR 60545) as well as from other non-occupational sources 
(59 FR 60519). As indicated in EPA's policy statement, ``plant-
pesticides are likely to present a limited exposure of the pesticidal 
substance to humans. In most cases, the predominant, if not the only, 
exposure route will be dietary. Significant respiratory and dermal 
exposures will be unlikely'' (59 FR at 60513). As explained in the 
FFDCA and FIFRA proposals and EPA's policy statement (59 FR 60496) and 
associated dockets, plant-pesticides present negligible exposure of 
pesticidal substances to humans outside of the dietary route because 
the substances are in the plant tissue and thus are found either within 
the plant or in close proximity to the plant. EPA considered dietary 
exposure to residues of viral coat proteins produced in plants as part 
of a plant-pesticide in the proposed FFDCA exemption (59 FR 60545) and 
summarized its evaluation in Unit IV.A. of this supplemental notice.
    Despite EPA's belief that, because of the nature of viral coat 
proteins produced in plants as part of a plant-pesticide, there is 
little likelihood of exposure other than through the dietary route, EPA 
in this supplemental notice sets forth in greater detail its 
considerations concerning other exposure routes. With regard to the 
dermal route of exposure, viral coat proteins produced in plants as 
part of a plant-pesticide may in some cases be present in sap or other 
exudates from the plant or the food and thus may present some limited 
opportunity for dermal exposure to persons coming physically into 
contact with the plant or raw agricultural food from the plant. 
Individuals preparing meals are those most likely to experience dermal 
contact with the substances on a non-occupational basis. However, on a 
per person basis, the potential amounts involved in these exposures are 
negligible in comparison to potential exposure through the dietary 
route. Moreover, substances that occur naturally in food, including 
viral coat proteins produced in plants as part of a plant-pesticide, 
are unlikely to cross the barrier provided by the skin.
    With regard to exposure through inhalation, viral coat proteins 
produced in plants as part of a plant-pesticide may in some cases be 
present in pollen and some individuals (those near enough to farms, 
nurseries or other plant-growing areas to be exposed to wind-blown 
pollen) may be exposed, through inhalation, to the pollen. On a per 
person basis, the potential amounts of pollen involved in these 
exposures are negligible in comparison to potential exposure through 
the dietary route. It is unlikely that exposure to the pollen is 
equivalent to exposure to viral coat proteins produced in plants as 
part of a plant-pesticide. When present in pollen, the viral coat 
proteins produced in plants as part of plant-pesticides will likely be 
integrated into the tissue of the pollen grain and not likely to be 
bound to the surface of the pollen grain. Pollen grains and the 
substances that occur naturally in pollen are unlikely to cross the 
barrier provided by the mucous membrane of the respiratory tract and 
thus are not additive to dietary exposure. Some viruses are transmitted 
by wind-borne vectors, i.e., pollen or fungal spores and individuals 
near enough to farms, nurseries or other plant-growing areas to be 
exposed to these wind-blown vectors may be exposed, through inhalation, 
to the whole virus particle. Since no evidence suggests that exposure 
to whole plant viruses borne by wind-blown pollen or fungal spores 
results in adverse effects, it is unlikely that exposure to pollen that 
may contain viral coat proteins produced in plants as part of a plant-

[[Page 27153]]

 pesticide would result in adverse effects.
    EPA also evaluated potential non-occupational exposures in drinking 
water. As noted in the preceding paragraphs, most substances in plants 
or parts of plants, including viral coat proteins produced in plants as 
part of a plant-pesticide, are found only inside the plant itself. 
Viral coat proteins produced in plants as part of a plant-pesticide are 
an integral part of the living tissue of the plant. When the plant dies 
or a part is removed from the plant, microorganisms colonizing the 
tissue immediately begin to digest it, using the components of the 
tissue (including viral coat proteins produced in plants as part of a 
plant-pesticide) as building blocks for making their own tissues or for 
fueling their own metabolisms. Viral coat proteins, or segments of 
these proteins, produced in plants as part of a plant-pesticide are 
subject to the same processes of degradation and decay that all organic 
matter undergoes. This turnover of biochemical materials in nature 
through a process of degradation occurs fairly rapidly. Therefore, 
viral coat proteins produced in plants as part of a plant-pesticide do 
not persist in the environment or bioaccumulate. There is no indication 
that naturally occurring plant biochemical compounds, including viral 
coat proteins produced in plants as part of plant-pesticides, are 
particularly resistant to this degradation. Because of the rapid 
turnover of these substances, even if they reach surface waters, they 
are unlikely to present anything other than a very negligible exposure 
in drinking water drawn from either surface or ground water sources. 
Therefore, the potential for non-dietary exposure (i.e., non-food oral, 
dermal and inhalation) in non-occupational settings is limited and EPA 
expects such exposure to be negligible.
    With regard to exposure to ``other related substances,'' EPA is not 
aware of any other substances either in food or outside the food supply 
that may be related, via a common mechanism of toxicity, to viral coat 
proteins produced in plants as part of a plant-pesticide since viral 
coat proteins are not toxic to humans or animals. With regard to non-
occupational exposure through routes other than dietary exposure, since 
viral coat proteins are not toxic, EPA is not aware of substances 
outside the food supply that may be related via a common mechanism of 
toxicity to the viral coat proteins produced in plants as part of a 
plant-pesticide. No evidence indicates that adverse effects due to 
aggregate exposure of viral coat proteins with such substances through 
the dietary, non-food oral, dermal and inhalation routes occurs.
    EPA considered exposure to residues of viral coat proteins produced 
in plants as part of a plant-pesticide when it issued the proposal and 
is not requesting additional comment on that topic. Comments are only 
requested on EPA's conclusion that there are no substances outside of 
the food supply that are related, via a common mechanism of action, to 
residues of viral coat proteins produced in plants as part of a plant-
pesticide for which EPA must consider exposure in aggregate with viral 
coat proteins.
    7. Sensitivities of subgroups. In 1994, EPA considered available 
information on the sensitivities of subgroups as it pertains to viral 
coat proteins produced in plants as part of a plant-pesticide in the 
proposal (59 FR 60545). The Agency's evaluation is summarized in Unit 
IV.A. of this supplemental notice.
    8. Naturally occurring estrogen or other endocrine effects. FFDCA 
now directs EPA, in establishing an exemption from the requirement of a 
tolerance, to consider ``such information as the Administrator may 
require on whether the pesticide chemical may have an effect in humans 
that is similar to an effect of a naturally-occurring estrogen or other 
endocrine effect'' (21 U.S.C. 346(a)(q)). Congress allowed EPA 2 years 
to establish a screening program to determine whether certain pesticide 
chemicals may have estrogenic effects and an additional year to 
implement the program (21 U.S.C. 408(p)). As part of the screening and 
implementation process, EPA is determining what information might be 
required and how it will address estrogenic effects from pesticide 
residues in general.
    There is some information on estrogenic effects by exposure to 
pesticides but the data are limited and do not pertain to viral coat 
proteins. Based on available information concerning the presence of 
viruses in the food supply with no detectable adverse human health 
effects, EPA does not expect viral coat proteins expressed in plants as 
part of a plant-pesticide to cause estrogen or other endocrine effects. 
If EPA becomes aware of a potential for estrogenic or endocrine effect 
from exposure to viral coat proteins produced in plants as part of a 
plant-pesticide, EPA will reexamine this tolerance exemption in light 
of that information.
    9. Safety factors. In the 1994 proposal, EPA did not rely on the 
available animal data in reaching its determination that a tolerance is 
not necessary to protect the public from viral coat proteins produced 
in plants as part of a plant-pesticide (59 FR 60545). As discussed in 
Unit IV.A. of this supplemental notice, EPA relied on the long history 
of safe human consumption of food containing plant viruses and 
consumption of food derived from animals that consume forage and other 
crops (e.g., corn and other grains) that are also likely to contain 
plant viruses. EPA continues to believe that long-term evidence of 
human consumption, not animal experimentation data, is the appropriate 
information base for the proposed exemption (59 FR 60545). Because EPA 
did not rely on animal experimentation data, the Agency did not 
consider which safety factors would be appropriate to use in assessing 
risk to humans based on data generated through experiments on animals.
    10. Infants and children.--a. Dietary consumption patterns. In the 
1994 proposal (59 FR 60545), EPA considered available information on 
the dietary consumption pattern of infants and children as it pertains 
to viral coat proteins in food and has summarized the evaluation in 
Unit IV.A. of this supplemental notice. The range of foods consumed by 
infants and children is in general more limited than the range of foods 
consumed by adults. Most newborns rely on milk products for nutrition, 
although some infants are fed soy-based products. Infants begin as 
early as 4-months of age to consume specific types of solid foods 
containing residues of pesticidal substances that are the subject of 
the proposed exemption. Subsequent to 4 months of age, apart from 
processing to facilitate swallowing, the diets of infants are based on 
foods consumed by the general adult population albeit in different 
proportions. As infants and children mature, more and more of the foods 
normally consumed by adults become part of their diets and the relative 
proportions of the different types of food consumed changes to more 
closely resemble an adult diet. Since plant viruses are ubiquitous in 
plant foods, EPA concluded that infants and children are exposed as 
part of a normal diet to viral coat proteins. There is no evidence that 
such exposure leads to any harm.
    b. Special susceptibility. In the 1994 proposal (59 FR 60545), EPA 
considered available information on the potential for susceptibility of 
infants and children, including pre- and post-natal toxicity, as these 
factors pertain to viral coat proteins produced in plants as part of a 
plant-pesticide. There is no scientific evidence that viral coat 
proteins as a component of food would have a different effect on 
children than

[[Page 27154]]

they would on the adult population. EPA summarizes its analysis of the 
effect of consumption in food of viral coat proteins on human health in 
Unit IV.A. of this supplemental notice.
    c. Cumulative effects of residues with other substances with a 
common mechanism of toxicity. In the 1994 proposal (59 FR 60545), EPA 
examined the available information on the cumulative effect of residues 
of viral coat proteins produced in plants as part of a plant-pesticide 
as well as other substances in food that may have a common mechanism of 
toxicity. The Agency's consideration in the proposal of the effects of 
the residues of viral coat proteins produced in plants as part of a 
plant-pesticide on the general population also included consideration 
of effects for infants and children. See Unit IV.B.5. of this 
supplemental notice for a discussion of cumulative effects of viral 
coat proteins and other substances that have a common mechanism of 
toxicity.
    EPA considered the safety of foods containing residues of viral 
coat proteins when it issued the proposal and it is not requesting 
additional comment on that topic. Comments are only requested on EPA's 
conclusion that there are no substances outside of the food supply that 
may have a cumulative toxic effect with residues of viral coat proteins 
produced in plants as part of a plant-pesticide.
    d. Margin of safety. In determining whether the residues of viral 
coat proteins produced in plants as part of a plant-pesticide are safe, 
FFDCA section 408(b)(2)(C) directs EPA to apply a tenfold margin of 
safety for the residues and other sources of exposure to infants and 
children to account for potential pre- and post-natal toxicity and 
completeness of data on threshold effects with respect to exposure and 
toxicity to infants and children, unless a different margin will be 
safe. In proposing the exemption, EPA based its assessment of exposure 
and toxicity upon reliable information including the long history of 
safe human consumption of food containing residues of viral coat 
proteins produced in plants as part of a plant-pesticide and other 
substances in food, and the unique nature of plant-pesticides. EPA did 
not rely on animal data. EPA relied on observations concerning whole 
food consumption by humans and did not rely on single entity testing, 
wherein animals are exposed to high concentrations of substances 
isolated from a plant source. EPA relied on the vast base of the human 
experience with actual food consumption rather than limited testing 
situations involving exposure to high concentrations of viral coat 
proteins. EPA, thus, did not utilize animal or other studies that would 
yield data that could be subjected to an additional margin of safety. 
(See Units IV.A. and IV.B.3. of this supplemental notice). As a result, 
the FQPA amendments to FFDCA do not affect EPA's analysis.

C. Safety Determinations in Light of FFDCA Amendment.

    Based on the information discussed in the 1994 proposals (59 FR 
60496 through 60547), the discussion in Unit IV.A. and the analysis in 
Unit IV.B. of this supplemental notice, EPA concludes that there is a 
reasonable certainty that no harm will result to the U.S. population in 
general, and U.S. infants and children, from aggregate exposure to 
residues of viral coat proteins produced in plants as part of a plant-
pesticide, including all anticipated dietary exposures and all other 
exposures for which there is reliable information. Under the proposed 
exemption from the requirement for a tolerance (59 FR 60545), EPA would 
exempt residues of viral coat proteins produced in plants as part of a 
plant-pesticide. Extensive use and experience show the safety of foods 
containing these substances. No evidence, in the many years of human 
experience with the growing and consumption of food from plants 
containing viral coat proteins, indicates that adverse effects due to 
aggregate exposure through the dietary, non-food oral, dermal and 
inhalation routes occur.
    The conclusion that residues of viral coat proteins produced in 
plants as part of a plant-pesticide should be exempt from tolerance 
requirements under the FFDCA section 408 safety standard also lends 
support to one of EPA's proposed FIFRA exemptions (59 FR 60519) with 
respect to human dietary risks: plant-pesticides that are coat proteins 
from plant viruses (59 FR at 60535). In the FIFRA proposal, EPA 
utilized two criteria to determine whether plant-pesticides should be 
exempt; (1) whether they posed a low probability of risk, and (2) 
whether they caused unreasonable adverse effects on the environment. 
Based upon the determination that residues of viral coat proteins (59 
FR 60545) and the nucleic acid component of a plant-pesticide (59 FR 
60542) meet the FFDCA section 408 safety test, EPA concludes viral coat 
proteins produced in plants as part of a plant-pesticide would pose 
only a low probability of human dietary risk and also would not pose an 
unreasonable adverse effect with respect to such risks.

D. Other Considerations

    When the Agency proposed to establish an exemption from the 
requirement of a tolerance for viral coat proteins produced in plants 
as part of a plant-pesticide (59 FR 60545), EPA did not propose any 
numerical limitation on the amount of viral coat proteins that could be 
present in food containing these residues. EPA consulted in 1994 with 
the Department of Health and Human Services (DHHS) in developing the 
proposed exemption and this supplemental notice, and will consult with 
the Secretary of HHS prior to issuing the final rule. Because the 1994 
proposal was an exemption from the requirement of a tolerance, the 
Agency has concluded that an analytical method for detecting and 
measuring the levels of the residues of viral coat proteins in or on 
food is not required.

V. Comments

A. Confidential Business Information

    Information submitted as a comment concerning this supplemental 
notice may be claimed confidential by marking any part or all of that 
information as ``Confidential Business Information'' (CBI). CBI should 
not be submitted through e-mail. Information marked as CBI will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2. A copy of the comment that does not contain CBI must be submitted 
for inclusion in the public record. Information not marked confidential 
may be disclosed publicly by EPA without prior notice.

B. 30-Day Comment Period

    EPA is allowing a 30 day-comment period because it has determined 
that such a period will provide the public with an adequate opportunity 
to respond to the additional issues raise in this supplemental notice. 
FFDCA and FIFRA do not specify a comment period for this type of 
notice. EPA has decided that a 30-day comment period is reasonable 
because this supplemental notice raises very few new issues that were 
not already available for public comment. As discussed in Unit IV. of 
this supplemental notice, EPA effectively considered most of the 
factors required by the FQPA amendments of FFDCA and FIFRA relevant to 
the proposed exemptions when it issued the proposed package of notices 
describing EPA's approach in 1994 (59 FR 60496, 60519, 60535, 60542 and 
60545). At that time, the public had an opportunity to review both the 
Agency's rationale for the proposals and the underlying support 
documents during a 90-day public comment

[[Page 27155]]

period. Only a limited number of new issues have been raised by the 
FQPA amendments to FFDCA and FIFRA and the Agency continues to rely 
upon the information already in the docket for the 1994 proposals and 
thus 30 days should provide adequate time for public comment. In 
addition, EPA believes that it is in the interest of the public to 
publish the final exemption from the requirement of a tolerance in a 
timely manner.

C. Request for Comments

    Interested persons are invited to submit written comments on the 
new issues raised in this supplemental notice specifically on:
    (1) EPA's conclusion that there are no substances outside of the 
food supply that may have a cumulative toxic effect with residues of 
viral coat proteins produced in plants as part of a plant-pesticide.
    (2) EPA's conclusion that there are no substances outside of the 
food supply that are related via a common mechanism of toxicity to 
residues of viral coat proteins produced in plants as part of a plant-
pesticide to which humans might be exposed through non-occupational 
routes of exposure.
    Commenters who possess information on viral coat proteins causing 
estrogenic effects are requested to send such information to EPA.
    In this supplemental notice, EPA describes in greater detail the 
rationale supporting the statement made in the 1994 Federal Register 
(59 FR at 60513) that ``plant-pesticides are likely to present a 
limited exposure of pesticidal substances to humans. In most cases, the 
predominant, if not the only route of exposure will be dietary. 
Significant respiratory and dermal exposures will be unlikely.'' No 
comments were received on this statement during the official comment 
period. Commenters may comment on this more detailed rationale for 
viral coat proteins.
    In this supplemental notice, EPA also describes in greater detail 
how the rationale presented in the 1994 Federal Register (59 FR at 
60538) concerning the safety for human consumption of food containing 
viral coat proteins applies to infants and children. No comments were 
received on this rationale during the official comment period. 
Commenters may comment on this more detailed rationale specifically 
addressing infants and children as part of the larger human population.

VI. Public Docket

    The official record for this rulemaking, as well as the public 
version, has been established for this rulemaking under docket control 
number ``OPP-300367A'' including comments and data submitted 
electronically as described below). A public version of this record, 
including printed, paper versions of electronic comments, which does 
not include any information claimed as CBI, is available for inspection 
from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal 
holidays. The official rulemaking record is located at the address in 
``ADDRESSES'' at the beginning of this document.
    Electronic comments can be sent directly to EPA at:

    [email protected]
    Electronic comments must be submitted as an ASCII file avoiding the 
use of special characters and any form of encryption. Comment and data 
will also be accepted on disks in WordPerfect 5.1 file format or ASCII 
file format. All comments and data in electronic form must be 
identified by the docket control number ``OPP-300367A.'' Electronic 
comments on this supplemental notice may be filed online at many 
Federal Depository Libraries.

VII. References

    (1) Gibbs, A. and B Harrison. 1976. Plant Virology: The Principles, 
Chap. 1. J. Wiley Sons, New York.
    (2) Matthews, R.E.F. 1981. Plant Virology. Chaps. 12, 16, and 19. 
Second edition, Academic Press, New York.
    (3) Provvidenti, R., R.W. Robinson, and H.M. Munger. 1984. 
Occurrence of Zucchini Yellow Mosaic Virus in Curcubits from 
Connecticutt, New York, Florida and California, Plant Disease 68:443-
446.
    (4) Beemster, A.B.R. and J.A. de Bokx. 1987. Survey of Properties 
and Symptoms of Potato Viruses, pp. 84-93 In: Viruses of Potatoes and 
Seed Potato Production; J.A. de Bokx and J.P.H. vanderWant. PuDOC, 
Wageningen, The Netherlands.
    (5) Brun, G. 1991. Rhabdoviridae, Chap. 17, pp. 443-460; In: Atlas 
of Invertebrate Viruses, eds. J.R. Adams and J.R. Bonami. CRC Press, 
Boca Raton, FL.

VIII. Regulatory Assessment Requirements

    This supplemental notice merely seeks additional comments on the 
proposed rules with regard to the potential impact that the new 
statutory amendments imposed by the August 3, 1996 Food Quality 
Protection Act (FQPA) might have on the provisions as proposed. As 
such, this notice does not contain any new proposed requirements that 
would require additional consideration by the Office of Management and 
Budget (OMB) under Executive Order 12866, entitled Regulatory Planning 
and Review (58 FR 51735, October 4, 1993) or the Paperwork Reduction 
Act (PRA), 44 U.S.C. 3501 et seq. It does not require any other action 
under Executive Order 12875, entitled Enhancing the Intergovernmental 
Partnership (58 FR 58093, October 28, 1993), Executive Order 12898, 
entitled Federal Actions to Address Environmental Justice in Minority 
Populations and Low-Income Populations (59 FR 7629, February 16, 1994), 
or the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.). The 
Agency's activities related to these regulatory assessment requirements 
are discussed in the proposed rules.
    EPA did not consider Title II of the Unfunded Mandates Reform Act 
of 1995 (UMRA) (Pub. L. 104-4) at the proposal stage because the 
proposed rules were issued prior to its enactment. Although this 
supplemental notice is not subject to UMRA because it neither proposes 
or finalizes any regulatory requirements, the applicability of the UMRA 
requirements will be addressed in the final rules.

List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, 
Agricultural commodities, Pesticides and pests, Plants, Plant-
pesticides, Reporting and recordkeeping requirements

    Dated: May 7, 1997.

Lynn R. Goldman,
Assistant Administrator for Prevention, Pesticides and Toxic 
Substances.

[FR Doc. 97-12785 Filed 5-15-97; 8:45 am]
BILLING CODE 6560-50-F

Complete official Federal Register PDF

FR Doc. 97-12784 Plant-Pesticides; Supplemental Notice of Proposed Rulemaking
[Federal Register Volume 62, Number 95 (Friday, May 16, 1997)]
[Proposed Rules]
[Pages 27132-27142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12784]

      

[[Page 27131]]

_______________________________________________________________________

Part VI

Environmental Protection Agency

_______________________________________________________________________

40 CFR Part 180

Plant-Pesticides, Supplemental Notice; Proposed Rule

Plant-Pesticides; Nucleic Acids; Proposed Rule

Plant-Pesticides; Viral Coat Proteins; Proposed Rule

Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed 
Rules

[[Page 27132]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[OPP-300368A; FRL-5717-2]
RIN 2070-AC02

Plant-Pesticides; Supplemental Notice of Proposed Rulemaking

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: This document announces the availability of information for 
additional public comment regarding a proposed exemption from the 
requirement of a tolerance under the Federal Food, Drug, and Cosmetic 
Act (FFDCA) for pesticidal substances that are a component of certain 
plant-pesticides, i.e., those plant-pesticides that are derived from 
closely related plants. Comments on this document may also affect EPA's 
final determination on a proposed exemption under the Federal 
Insecticide, Fungicide, and Rodenticide Act (FIFRA) for this same 
category of plant-pesticides. In 1994, EPA proposed to exempt from the 
requirement of a tolerance the pesticidal substance portion of plant-
pesticides moved between closely related plants because a tolerance 
would not be necessary to protect the public health. Since publication 
of the proposal, Congress enacted the Food Quality Protection Act 
(FQPA) which amended FFDCA and FIFRA. EPA is issuing this document 
today to provide the public with an opportunity to comment on EPA's 
analysis of how certain FQPA amendments to FFDCA and FIFRA apply to the 
proposed exemption from the requirement of a tolerance for pesticidal 
substances moved between closely related plants. EPA believes that it 
considered most of the substantive issues associated with the FQPA 
amendments when it issued the proposals in 1994. EPA is thus, in this 
document, specifically seeking comment only on its evaluation of the 
requirements imposed by FQPA that the Agency did not address in the 
proposals.

DATES: Comments, identified by the docket control number ``OPP-
300368A,'' must be received on or before June 16, 1997.

ADDRESSES: By mail, submit written comments to: Public Information and 
Records Integrity Branch, Information Resources and Services Division 
(7506C), Office of Pesticide Programs, Environmental Protection Agency, 
401 M St., SW., Washington, DC 20460. In person deliver comments to: 
Rm. 1132, Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA.
    Comments and data may also be submitted electronically by following 
the instructions under Unit IV.D. of this document. No Confidential 
Business Information (CBI) should be submitted through e-mail.

FOR FURTHER INFORMATION CONTACT: By mail: Elizabeth Milewski, Office of 
Science, Coordination and Policy, Office of Prevention, Pesticides and 
Toxic Substances (7101), Environmental Protection Agency, 401 M St., 
SW., Washington, DC 20460, Telephone: (202) 260-6900, e-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Introduction

    EPA issued in the November 23, 1994 Federal Register a package of 
five separate Federal Register proposals (59 FR 60496, 60519, 60535, 
60542 and 60545) (FRL-4755-2, FRL-4755-3, FRL-4758-8, FRL-4755-5, and 
FRL-4755-4) which together described EPA's approach to substances 
produced in plants that enable the plants to resist pests or disease. 
EPA's package of proposals indicated that these substances are 
pesticides under section 2 of FIFRA (7 U.S.C. 136(u)) if they are 
``intended for preventing, destroying, repelling, or mitigating any 
pest'' or if they are ``. . . intended for use as a plant regulator, 
defoliant, or desiccant'' regardless of whether the pesticidal 
capabilities evolved in the plants or were introduced by breeding or 
through the techniques of modern biotechnology. These substances, and 
the genetic material necessary to produce them, were designated 
``plant-pesticides'' by EPA in the November 23, 1994 Federal Register 
notices. The proposals defined a ``plant-pesticide'' as ``a pesticidal 
substance that is produced in a living plant and the genetic material 
necessary for the production of the pesticidal substance where the 
pesticidal substance is intended for use in the living plant'' (59 FR 
at 60534).
    One of the five documents (59 FR 60535) proposed to exempt the 
pesticidal substance portion of plant-pesticides moved between closely 
related plants from the FFDCA (21 U.S.C. 346a) requirement of a 
tolerance based upon an evaluation of the potential for new dietary 
exposures to the substances when they are produced in plants, or in 
plant parts, used as food or feed. EPA proposed in the same Federal 
Register (59 FR at 60537) to define closely related plants as plants 
that are sexually compatible. In the proposal, sexually compatible, 
when referring to plants, means capable of forming a viable zygote 
through the fusion of two gametes, including the use of bridging 
crosses and/or wide crosses. EPA stated in the proposed exemption that 
a tolerance is not necessary to protect the public health for these 
pesticidal substances because no new dietary exposures are likely to 
occur for pesticidal substances moved between sexually compatible 
plants. For pesticidal substances in this category, many years of 
experience of human use suggest that under normal dietary conditions 
these pesticidal substances present negligible risk. Specifically, EPA 
proposed that ``residues of pesticidal substances produced in living 
plants as plant-pesticides are exempt from the requirement of a 
tolerance if the genetic material that encodes for a pesticidal 
substance or leads to the production of a pesticidal substance is 
derived from plants that are sexually compatible with the recipient 
plant and has never been derived from a source that is not sexually 
compatible with the recipient plant'' (59 FR at 60542).
    This supplemental notice addresses the pesticidal substance portion 
of plant-pesticides produced in food plants. A companion supplemental 
notice issued elsewhere in today's Federal Register addresses the 
proposed exemption for the nucleic acid component of plant-pesticides 
with regard to the FQPA amendments to FFDCA.
    Because FQPA modified FIFRA (7 U.S.C. 136 et seq.) by incorporating 
the FFDCA safety standard into the FIFRA test for determining whether a 
pesticide poses an unreasonable adverse effect, comments on these 
supplemental notices may also affect EPA's final determination on the 
proposed exemption (59 FR 60519) under FIFRA for plant-pesticides that 
are derived from plants sexually compatible with the recipient plant.
    EPA is issuing this supplemental notice, as well as the companion 
supplemental notice on nucleic acids to ensure that the public has had 
adequate opportunity to comment on certain new considerations raised by 
the FQPA amendments to FFDCA as these considerations relate to the 
proposed exemption from tolerance for residues of pesticidal substances 
derived from sexually compatible plants. In evaluating a pesticide 
chemical residue for exemption from FFDCA tolerance requirements, EPA 
must now explicitly address certain factors, and make a determination 
that there is a reasonable certainty that aggregate exposure to the

[[Page 27133]]

residue will cause no harm to the public. The factors to be considered 
are iterated in Unit II. of this supplemental notice. EPA's evaluation 
of these factors relative to the proposed exemption (59 FR 60535) is 
contained in Unit IV. of this supplemental notice. Consistent with 
FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific 
data and other relevant information in support of this action. In 
today's supplemental notice, EPA requests comment only on the new 
conclusions identified in Unit V.C. of this supplemental notice.
    In light of FQPA, EPA is engaged in a process, including 
consultation with registrants, states, and other interested 
stakeholders, to make decisions on the new policies and procedures that 
will be appropriate as a result of enactment of FQPA. In establishing 
this exemption from the requirement of a tolerance for pesticidal 
substances derived from sexually compatible plants, EPA does not intend 
to set precedents for the application of section 408 and the new safety 
standard to other tolerances and exemptions. This exemption from the 
requirement of a tolerance will not restrict EPA's options with regard 
to general procedures and policies for implementation of the amended 
FFDCA section 408.

II. Statutory Authority

    Under FFDCA, EPA regulates pesticide chemical residues by 
establishing tolerances limiting the amounts of residues that may be 
present in food, or by establishing exemptions from the requirement of 
a tolerance for such residues. Pesticide chemical residues subject to 
regulation under FFDCA are defined by reference to the definition of 
pesticide under FIFRA. FFDCA section 201(q)(1) defines a ``pesticide 
chemical residue'' to mean the residue in or on food of a pesticide 
chemical or other added substance resulting primarily from the 
metabolism or degradation of a pesticide chemical (21 U.S.C. 
321(q)(2)). A ``pesticide chemical'' means ``any substance that is a 
pesticide within the meaning of the Federal Insecticide, Fungicide, and 
Rodenticide Act, including all active and inert ingredients of such 
pesticide'' (21 U.S.C. 321(q)(1)).
    FIFRA authorizes EPA to regulate the sale and distribution of 
pesticides in the United States and to exempt a pesticide from the 
requirements of FIFRA if it is not of a character requiring regulation 
(7 U.S.C. 136a(a) and 136w(b)). FIFRA section 2(u) defines 
``pesticide'' as: (1) ``any substance or mixture of substances intended 
for preventing, destroying, repelling, or mitigating any pest, (2) any 
substance or mixture of substances intended for use as a plant 
regulator, defoliant, or desiccant, and (3) any nitrogen stabilizer'' 
(7 U.S.C. 136(u)).
    FQPA amends both FFDCA and FIFRA. FQPA, which took effect on August 
3, 1996, among other things, amends FIFRA such that a registration 
cannot be issued for a pesticide to be used on or in food unless the 
residue of the pesticide in food qualifies for a tolerance or exemption 
from the requirement for a tolerance. FQPA modified FIFRA section 2(bb) 
by incorporating the FFDCA section 408 safety standard into the test 
for determining whether a pesticide poses an unreasonable adverse 
effect (7 U.S.C. 136(bb)). FIFRA section 2(bb) defines the term 
``unreasonable adverse effects on the environment'' to mean (1) any 
unreasonable risk to man or the environment, taking into account the 
economic, social, and environmental costs and benefits of the use of 
any pesticide, or (2) a human dietary risk from residues that result 
from a use of a pesticide in or on any food inconsistent with the 
standard under section 408 of the FFDCA. Thus, a pesticide used in or 
on food that does not meet the FFDCA section 408 safety standard also 
would pose an unreasonable adverse effect under FIFRA and would not 
qualify for an exemption from the requirements of FIFRA under FIFRA 
section 25(b)(2).
    FQPA amends FFDCA section 408(c)(2)(A)(i) to allow EPA to establish 
an exemption from the requirement of a tolerance for a ``pesticide 
chemical residue'' only if EPA determines that the exemption is 
``safe'' (21 U.S.C. 346a(c)(2)(A)(i)). Section 408(c)(2)(A)(ii) 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'' (21 U.S.C. 346a(c)(2)(A)(ii)). 
This includes exposure through drinking water, but does not include 
occupational exposure. In establishing an exemption from the 
requirement of a tolerance, FFDCA section 408(c), like the statute 
prior to FQPA, does not require EPA to consider benefits that might be 
associated with use of the pesticide chemical.
    FFDCA section 408 requires EPA to give special consideration to 
exposure of infants and children to the pesticide chemical residue in 
establishing an exemption 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'' (21 U.S.C. 
346a(b)(2)(C)(ii)(I)) and (c)(2)(B). Section 408(b)(2)(D) specifies 
other, general factors EPA is to consider in establishing an exemption. 
Section 408(c)(3)(B) prohibits an exemption unless there is either a 
practical method for detecting and measuring levels of pesticide 
chemical residue in or on food or there is no need for such a method 
(21 U.S.C. 346a(c)(3)(B)).
    Specifically, EPA must consider the following in deciding whether 
to grant an exemption:
    1. The validity, completeness, and reliability of the available 
data from studies of the pesticide chemical and pesticide chemical 
residue.
    2. Nature of any toxic effect shown to be caused by the pesticide 
chemical or residues in studies.
    3. Available information concerning the relationship of the results 
of such studies to human risk.
    4. Available information concerning the dietary consumption 
patterns of consumers (and major identifiable subgroups of consumers).
    5. Available information concerning the cumulative effects of such 
residues and other substances that have a common mechanism of toxicity.
    6. Available information concerning the aggregate exposure levels 
of consumers to the pesticide chemical residue and to other related 
substances, including dietary exposure and non-occupational exposures.
    7. Available information concerning the variability of the 
sensitivities of major identifiable subgroups of consumers.
    8. Such information as the Administrator may require on whether the 
pesticide chemical may have an effect in humans that is similar to an 
effect produced by a naturally-occurring estrogen or other endocrine 
effects.
    9. Safety factors which in the opinion of experts qualified by 
scientific training and experience to evaluate the safety of food 
additives are generally recognized as appropriate for the use of animal 
experimentation data (21 U.S.C. 346a(b)(2)(D).
    Additionally, with respect to exposure of infants and children, 
consistent with section 408(b)(2)(C), EPA must assess the risk of the 
pesticide based on available information concerning:
    1. Consumption patterns that are likely to result in 
disproportionately high consumption of food with pesticide residues.
    2. Special susceptibility of infants and children to such residues.
    3. Cumulative effects of residues with other substances that have a 
common

[[Page 27134]]

mechanism of toxicity (21 U.S.C. 346a(b)(2)(C) and (c)(2)(B)).

III. Summary of Proposed Regulations

    This supplemental notice affects three of the proposals that 
appeared in the November 23, 1994 Federal Register: (1) A proposal 
under FFDCA to exempt from the requirement of a tolerance, residues of 
the pesticidal substance portion of any plant-pesticide that is derived 
from a plant that is sexually compatible with the recipient plant (59 
FR 60535); (2) a companion proposal (59 FR 60542) under FFDCA to exempt 
``residues of nucleic acids produced in living plants as part of a 
plant-pesticide''; and (3) a proposal (59 FR 60519) under FIFRA to 
exempt from most of the requirements of FIFRA, plant-pesticides derived 
from a plant that is sexually compatible with the recipient plant.
    In the November 23, 1994 Federal Register, the Agency proposed to 
exempt from the FFDCA requirement of a tolerance (59 FR 60535) and most 
requirements of FIFRA (59 FR 60519) pesticidal substances moved between 
plants that are closely related. EPA discussed two options for 
describing plants that are closely related: (1) Plants that are 
sexually compatible, or (2) plants that are within the same taxonomic 
genus or are sexually compatible. Sexual compatibility would include 
use of techniques such as wide and bridging crosses. EPA's preferred 
approach for describing closely related plants was the option based on 
sexual compatibility alone. Thus, EPA proposed that plant-pesticides 
derived from plants that are sexually compatible would be exempt from 
most FIFRA requirements, and residues of pesticidal substances that are 
derived from sexually compatible plants would be exempted from the 
FFDCA requirement of a tolerance.
    The rationale underlying the proposed exemptions is that plants in 
a sexually compatible population are likely to have the same 
information encoded in their genetic material and to share traits in 
common. Groups of plants having a common pool of genetic material have 
resulted from the processes of evolution. Generations of directed 
breeding to produce improved crops for cultivation have tended to 
increase the relatedness of agricultural crop plants and reduce the 
variability in the common pools of genetic information of crop plants. 
Because sexually compatible plants share a common pool of genetic 
material, movement of genetic material encoding pesticidal substances 
between plants in a sexually compatible population is unlikely to 
result in novel environmental or dietary exposures. If a crop plant 
normally produces a pesticidal substance, humans consuming the crop, 
and organisms coming into contact with the plant, have been exposed to 
that substance in the past, perhaps over long periods of time. No new 
exposures are likely to occur. Because of the high degree of 
relatedness among plants comprising sexually compatible populations, 
the potential for new human exposures, either dietary or environmental, 
is low for pesticidal substances in sexually compatible plants or plant 
parts used as food or feed. Under the exemptions for plant-pesticides 
derived from sexually compatible plants, EPA exempts from the FFDCA 
requirement of a tolerance those plant-pesticides that are normally a 
component of (not new to) the recipient plant. EPA believes that crops 
grown for food in the U.S. today would qualify for this exemption (59 
FR at 60535 and 60542) based on the standard of relatedness as 
described by sexual compatibility.
    The proposed exemption from the requirement of a tolerance (59 FR 
60535) was examined within the context of the food supply and dietary 
consumption. Many substances having pesticidal activity occur naturally 
at low concentrations in the edible parts of plants and have long been 
accepted as part of the human diet. Extensive use and experience show 
the safety of foods containing these substances. Although very large 
numbers of plant varieties are used and large numbers of varieties are 
introduced into agricultural use each year, there are only a few 
examples of plant varieties causing food safety concerns.
    Based on these considerations, and as required by the FFDCA prior 
to enactment of the FQPA, EPA concluded that plant-pesticides found in 
the current food supply would present no hazard under potential use 
conditions and, hence, a tolerance would not be necessary to protect 
the public health.
    EPA's alternative option for describing relatedness in plants (59 
FR at 60537) used both sexual compatibility and taxonomy (genus). Under 
this alternative option, if a plant-pesticide was derived from a plant 
classified in the same genus as the recipient plant or if the donor 
plant was sexually compatible with the recipient plant, that plant-
pesticide would be exempt. The assumption underlying this alternative 
option was that the taxonomic grouping of genus correlated to a 
relatively high degree of relatedness. This option was not EPA's 
preferred approach, because even though plants grouped within a genus 
may be fairly closely related, certain species within a genus may never 
have contributed traits to plants currently found in the food supply 
and thus no known dietary exposure exists for traits from such plants. 
Therefore, EPA preferred the option based on sexual compatibility alone 
which EPA believes best describes plant-pesticides found in the food 
supply.
    In the 1994 Federal Register (59 FR 60535), EPA also proposed to 
exempt from the requirement of a tolerance a second category of 
pesticidal substances. This second category consists of pesticidal 
substances that are derived from food plants that are not closely 
related to the recipient plant but which would not result in 
significantly different dietary exposures when produced in the 
recipient plant. This second category will not be addressed in this 
supplemental notice but will be addressed in a separate Federal 
Register in the future.

IV. Risk Assessment and Safety Determinations

A. Risk Assessment in the 1994 Proposal

    This section reviews the analysis that EPA used to support its 1994 
proposal (59 FR 60535) to exempt pesticidal substances derived from 
sexually compatible plants from the requirement of a food tolerance 
under the FFDCA. EPA also relied upon the analysis in the 1994 FFDCA 
proposal to evaluate human dietary risks in support of its proposal (59 
FR 60519) to exempt plant-pesticides from sexually compatible plants 
from most FIFRA requirements. Non-dietary human risks from exposure to 
such pesticidal substances were examined under the analysis for the 
proposed FIFRA exemption and are discussed in this supplemental notice 
only as they pertain to the dietary risks.
    When EPA proposed in 1994 to exempt residues of pesticidal 
substances that are derived from sexually compatible plants from the 
requirement of a tolerance (59 FR 60535), it concluded that a food 
tolerance for such substances would not be necessary to protect the 
public health because such substances presented no significant hazards 
under potential use conditions. EPA based this conclusion upon its 
analysis of potential dietary exposure, hazard and risk from 
consumption of plants that contain these substances. EPA recognized and 
relied on the long history of human experience with growing and 
consuming plants for food and with the procedures of plant breeding. 
Plant breeding combines the scientific knowledge of experimental 
laboratory disciplines such as plant

[[Page 27135]]

physiology, plant genetics, and phytopathology into a practical field 
science that develops new plant cultivars for use in agriculture. EPA 
has used these bases of knowledge and experience in its estimation of 
exposures and hazards of the residues of pesticidal substances 
addressed by this supplemental notice as well as for the 1994 proposal.
    EPA concluded in the 1994 proposal (59 FR 60535) that the vast 
majority of plant varieties developed by plant breeders using traits 
from sexually compatible plants produce foods that are safe for human 
consumption. This conclusion is based on the experience of consuming 
crops resulting from scientific breeding as well as the historical 
consumption of crops since the prehistorical origins of agriculture. 
These foods undoubtedly contain(ed) pesticidal substances (and the 
genetic material necessary to produce them) and share a history of safe 
consumption. In addition, appropriate processing procedures are widely 
known and are routinely used by consumers in preparation of food from 
such sources, including those foods which require specific processing/
preparation steps to avoid dietary problems.
    In the 1994 proposal, EPA stated that many substances having 
pesticidal activity occur naturally at low concentrations in the edible 
parts of plants and have long been accepted as part of the human diet. 
Extensive use and experience show the safety of foods containing these 
substances. For many foods, the naturally-occurring toxicants they may 
contain, some of which might be pesticidal in function, are known. 
Also, the established practices that plant breeders employ in selecting 
and developing new plant varieties, such as chemical analyses, taste-
testing, and visual analyses, have historically proven to be reliable 
for ensuring food safety. That there are few documented cases of new 
plant cultivars causing food safety problems despite the large numbers 
of new varieties introduced into commerce each year, is a reflection of 
the effectiveness of this process (59 FR at 60538).
    Plant varieties for the food market have been developed by breeders 
seeking better products, higher yields, and other desirable crop 
characteristics. In this process, it has been common agricultural 
practice to move traits among sexually compatible food plant varieties 
as well as to introduce traits from sexually compatible wild relatives 
into plant varieties that are used as food plants. This type of 
breeding process has been used on most sexually compatible crop plants, 
and tended to increase the extent of relatedness among plant varieties 
in agricultural crops. The 1994 proposal is based on experience with 
the exposure of human populations to crops developed through the 
breeding process, i.e., crops developed through 50 to 100 years of 
scientific breeding among sexually compatible plant populations using 
Mendelian genetics. The sexually compatible, wild relatives of 
cultivated plants that are used in this process do not themselves 
necessarily have any history of human consumption but have safely 
contributed traits through sexual recombination to cultivars on the 
market. For example, wild species of tomatoes have been used, in plant 
breeding, as a source of increased resistance to economically important 
diseases in tomato (Ref. 1). Sexually compatible crop varieties of the 
same plant species are also crossed with each other to achieve better 
pest resistance in their progeny. Food plant varieties developed in 
this way have been introduced, cultivated, and consumed by humans for 
many years with very few observed adverse affects (59 FR at 60538).
    If a food plant or its close relative normally produces a 
pesticidal substance, humans have likely been exposed to that substance 
in the past. Experience with both growing agricultural plants and 
consuming food from plants which undoubtedly contain pesticidal 
substances demonstrates the safety of the current food supply, 
including substances in the food supply that may be plant-pesticides. 
The Agency believes this experience combined with the knowledge of 
plant genetics, plant physiology, phytopathology and plant breeding are 
the appropriate considerations in evaluating the potential risks of 
residues of the pesticidal substances proposed for the tolerance 
exemption (59 FR 60535).
    The residues of the pesticidal substances that are the subject of 
the proposed exemption have evolved in populations of sexually 
compatible plants. They are part of the metabolic cycles of these 
plants. They are thus subject to the processes of degradation and decay 
that all organic matter undergoes. They are not likely to persist in 
the environment nor bioaccumulate in the tissues of living organisms. 
Because they do not persist, the potential for new exposures to the 
residues to occur, beyond direct physical exposures to the plant, would 
be limited. As noted in the proposal (59 FR at 60516), plant-pesticides 
present negligible exposure of the pesticidal substances to humans 
outside the dietary route because the substances are in the plant 
tissue and thus are found either within the plant or in close proximity 
to the plant. In contrast, applied synthetic chemicals have much 
greater potential for new dietary exposures. Prior to the use of 
synthetic pesticides, there may be very little scientific experience 
with the new pesticidal substance or even a complete lack of known 
dietary exposure to the pesticidal substance.
    EPA evaluated the potential risks of a pesticidal substance derived 
from a closely-related plant relative based upon the unique 
characteristics of plant-pesticides. In evaluating the pesticidal 
substance component of plant-pesticides, EPA took into account 
available knowledge from a number of scientific disciplines. 
Experimental data in the area of plant genetics provided an estimate of 
the exchange, between plants, of genetic material that is necessary for 
the production of the pesticidal substances. EPA also considered 
information from the field of plant physiology regarding plant 
metabolism, the production of substances that may have pesticidal 
effects, and conditions that may limit the production of such 
substances. This information provided a basis for EPA's estimation of 
the physiological limitations to production of substances that may have 
a pesticidal effect. The Agency also used experimental data derived 
from the science of phytopathology to characterize the disease and pest 
resistant mechanisms known to occur in plants. All of these bases of 
knowledge and experience were integral to EPA's assessment of exposures 
and hazards associated with pesticidal substances.
    EPA considered whether there are variations in the levels of 
pesticidal substances that are the subject of the proposed exemption 
(59 FR 60535) within and between plant varieties, and thus variation in 
exposure that might affect the Agency's determination that pesticidal 
substances that are the subject of the proposed exemption present 
negligible risk. The amount of pesticidal substance produced by plants 
normally varies among members of a closely related population (even 
within a single variety), because of the effects of conditions such as 
genetic constitution and environment (e.g., weather) on trait 
expression. This variation in turn leads to differences in the levels 
and types of exposure to the pesticidal substance. Since such variation 
is a natural phenomenon common to all plants, humans have been and are 
always exposed to varying levels of the pesticidal substances that are 
the subject

[[Page 27136]]

of this exemption when they consume food from plants.
    EPA also considered the constraints upon the extent to which any 
substance can be increased in highly managed food crop plants without 
unwanted effects on other, desirable characteristics of the plant such 
as yield or palatability. In general, breeders balance a number of 
characteristics (e.g., yield, palatability, uniformity of seed drop) in 
developing marketable plant varieties. Plants have, as do all 
organisms, only a limited capacity to express a particular trait 
without an unacceptable drain on energy reserves. Greatly increased 
levels of a pesticidal substance would, in general, only be 
accomplished at the expense of expressing other agriculturally 
desirable traits (e.g., yield). EPA does not believe that levels of 
pesticidal substances that are the subject of the proposed exemption 
(59 FR 60535) will be increased to a point that will result in an 
adverse dietary effect. EPA has extensively evaluated whether 
quantitative changes in levels of the pesticidal substances that are 
the subject of the proposed exemption would warrant regulation by the 
setting of a food tolerance. EPA has determined that changes in the 
levels of these pesticidal substances present a reasonable certainty of 
causing no harm because the highest levels likely to be attained in 
plants are not likely to result in overall significantly different 
dietary exposures. EPA does not anticipate that attempts to increase 
the levels of these pesticidal substances would lead to a significantly 
different spectrum of exposure than that with which there is 
substantial experience.
    The evaluation of potential dietary risk associated with the 
pesticidal substances that are the subject of the proposed exemption 
(59 FR 60535) were considered within the context of the food supply and 
dietary consumption patterns. The residues of pesticidal substances 
that are the subject of the proposed exemption are components of a 
human diet. In developing the proposal, the Agency considered that the 
diet includes all of the food items that are customarily eaten by human 
populations or subpopulations. The consumption of food plants is part 
of a balanced and varied diet. Individuals recognize and are familiar 
with the plant crop derived food they consume and, based on prior 
experience with food, individuals avoid potential exposures to foods 
containing substances they know, either through personal experience or 
through acquired knowledge, cause them problems. Since the proposed 
exemption will not affect the current pattern of exposure to the 
pesticidal substances that are the subject of the proposed exemption, 
the current method whereby sensitive individuals recognize and avoid 
foods known to cause them problems will not be altered. As noted in the 
proposal (59 FR at 60505), ``consumer experience with the handling and 
preparation of food from these plants contributes to the safety of food 
from these plants.
    The approach used by EPA to evaluate the dietary risk posed by the 
pesticidal substance component of plant-pesticides derived from 
sexually compatible plants (59 FR 60535) differs somewhat from the 
approach the Agency uses for other pesticides. For more traditional 
pesticides, EPA's risk evaluation relies on, for the most part, data 
generated by testing in laboratories using representative, single 
species animal model systems to estimate risk end-points such as 
toxicity and carcinogenicity. Conclusions from data generated from 
these single species testing systems are then extrapolated to 
conclusions concerning hazards to humans, including conclusions on 
dietary hazards presented by chemical pesticide residues in crops and 
domestic animals used as food sources for humans. Mathematical models, 
as well as experimental data, on pesticide residues, provide 
information on exposure. Exposure and hazard considerations are 
combined to quantify the potential risk associated with a traditional 
pesticide. Safety factors are often used in the risk assessment as an 
added measure of caution when toxicity data from surrogate animal 
testing are used to estimate human toxicity. Such safety factors are 
not necessary in risk assessment when data on human effects is directly 
available, as is the case for the proposed exemption from the 
requirement of a tolerance for residues of pesticidal substances 
derived from sexually compatible plants.
    The approach to assessing risk described in the preceding paragraph 
is appropriate for analyzing risks posed by pesticide residues from 
pesticides such as chemical pesticides, pesticides extracted from 
plants, and some types of non-exempt plant-pesticides. For example, 
some chemicals used as pesticides may have no history of safe dietary 
consumption because they were created by humans and are synthetic. 
Single species animal testing may provide the only data on the effect 
of these pesticides on living organisms. Chemical pesticides that do 
not occur in nature, but are a product of human intervention, may not 
necessarily be subject to the processes by which biotic substances are 
degraded or cycled in nature. Thus, they may persist in the environment 
for long periods of time and may bioaccumulate in the tissues of living 
organisms.
    The risk assessment methodology appropriate for such chemicals is 
not appropriate for the pesticidal substances that evolved in the plant 
and are the subject of the proposed exemption (59 FR 60535). Plant-
pesticides derived from sexually compatible plants differ from more 
traditional pesticides in a number of ways. As noted in the proposal 
(59 FR at 60511), the major characteristic of plant-pesticides that is 
different from traditional pesticides is that the plant itself produces 
the pesticidal substance rather than the pesticide being applied to the 
plant. Thus, the exposure pattern may be very different for plant-
pesticides than for traditional pesticides both because of how the 
pesticide is produced and the biology of plants. . . . the potential 
for causing adverse health effects may be more circumscribed than for 
traditional pesticides because, in many cases, the only significant 
route of human exposure may be oral.'' Several conditions limit the 
potential for exposure to plant-pesticides as compared to traditional 
pesticides. These include that: (1) Exposure with plant-pesticides 
would be primarily through one route (dietary), (2) production of the 
pesticidal substance is limited by the plant's physiological 
constraints, (3) plant-pesticides derived from sexually compatible 
plants are integral parts of a plant's metabolism and thus are 
compatible with the biological processes of other organisms. Because of 
their biotic nature, the pesticidal substances that are the subject of 
the proposed exemption do not persist in the environment nor do they 
bioaccumulate in the tissues of living organisms. Thus, the number of 
routes of exposure that must be considered in performing a risk 
assessment are reduced since the primary route of exposure to plant-
pesticides will be ingestion of plant tissues that contain the 
pesticidal substances that are the subject of the proposed exemption.
    When EPA proposed to exempt residues of pesticidal substances 
derived from sexually compatible plants from the requirement of a 
tolerance (59 FR 60535), it considered health risks to the general 
population, which included infants and children. Children and infants, 
like adults, have been consuming food containing the pesticidal 
substances that are the subject of the proposed exemption. There is no 
evidence such pesticidal substances, as a component of food, present a 
different level of dietary risk for infants and children than they 
would for the adult

[[Page 27137]]

population. EPA's risk assessment in the proposed exemption included 
subgroups as part of the general population, (i.e., infants and 
children and the effects of culture on diet), and allowed for 
consumption pattern differences of such subgroups. For infants and 
children and other subgroups, EPA relied on the human experience base 
that it describes in summary form in this supplemental notice. On the 
basis of its analysis, EPA determined that a tolerance would not be 
necessary to protect the health of infants and children because 
pesticidal substances derived from sexually compatible plants would not 
pose significant new dietary exposures and experience indicates that 
plant-pesticides that are the subject of the exemption present no 
hazard under the use conditions.

B. Risk Assessment in Light of Amendment to FFDCA

    After EPA issued its proposed exemption from the requirement of a 
tolerance for plant-pesticides derived from sexually compatible plants 
(59 FR 60535), Congress enacted FQPA and amended certain FFDCA 
provisions governing pesticide chemical residues and FIFRA provisions 
governing pesticides (See Unit II. of this supplemental notice). 
Congress revised the specific wording of the section 408 standard for 
exemptions and provided more specific guidance regarding some of the 
factors that EPA should consider in establishing such exemptions (see 
Unit II. of this supplemental notice). When EPA proposed the exemption 
for residues of pesticidal substances derived from sexually compatible 
plants (59 FR 60535), it considered most of the safety factors spelled 
out in FQPA even though the Agency may not have explicitly discussed 
all those factors using the terminology specified in the FQPA 
amendments. This supplemental notice describes how the Agency took 
account of most of the FQPA factors in issuing its 1994 proposal to 
exempt pesticidal substances derived from sexually compatible plants 
and indicates which factors were considered in that proposal. The 
information the Agency relied on in considering these factors is part 
of the public record which was available to the public when EPA issued 
the proposed exemption from the requirement of a food tolerance. The 
supplemental notice also identifies the factors that were not 
considered in the proposal. Because FQPA amended FIFRA by incorporating 
the section 408 safety standard, commenters should be aware that 
comments on this supplemental notice may also affect EPA's final 
determination on the proposed exemption (59 FR 60519) under FIFRA for 
plant-pesticides that are derived from plants sexually compatible with 
the recipient plant.
    1. Validity, completeness, and reliability of available data. EPA 
considered in 1994 the validity, completeness, and reliability of the 
available data with regard to pesticidal substances derived from 
sexually compatible plants in the proposals (59 FR 60519 and 60535) and 
has summarized the evaluation in Unit IV.A. of this supplemental 
notice.
    2. Nature of toxic effect. EPA in 1994 considered the nature of the 
toxic effects caused by pesticidal substances derived from sexually 
compatible plants in the proposals (59 FR 60519 and 60535) and has 
summarized its evaluation in Unit IV.A. of this supplemental notice.
    3. Relationship of studies to humans. EPA in 1994 considered the 
available information concerning the relationship to humans of toxic 
effects of pesticidal substances that are the subject of the proposed 
exemption when it issued the proposals (59 FR 60519 and 60535) and has 
summarized that evaluation in Unit IV.A. of this supplemental notice. 
EPA based its evaluation on the history of human consumption of food 
derived from crop plants, and from products such as meat and milk from 
animals that consume forage and other crops (e.g., corn and other 
grains) that contain residues of pesticidal substances that are the 
subject of the proposed exemption (59 FR 60535). Because knowledge of 
human consumption of food derived from sexually compatible plants was 
available and adequately addressed the issues of hazard and exposure, 
the Agency did not use, for the proposed exemption (59 FR 60535), data 
generated in the laboratory through animal testing.
    4. Dietary consumption patterns. EPA considered in the 1994 
proposal (59 FR 60535) the available information on the varying dietary 
consumption patterns of major identifiable consumer subgroups as it 
pertains to pesticidal substances derived from sexually compatible 
plants. The Agency's evaluation is summarized in Unit IV.A. of this 
supplemental notice.
    5. Available information concerning cumulative effects of the 
pesticide chemical residue and other substances that have a common 
mechanism of toxicity. In the 1994 proposal (59 FR 60535), EPA examined 
available information on the cumulative effect of pesticidal substances 
derived from sexually compatible plants as well as other substances 
present in food that may have a common mechanism of toxicity with such 
pesticidal substances. EPA summarizes this information and its analysis 
in Unit IV.A. of this supplemental notice.
    With regard to the pesticidal substance itself, the proposal notes 
(59 FR at 60505) that this exemption ``is based upon the premise that 
new dietary exposures would not likely arise for plant-pesticides 
produced in food plants if the genetic material leading to the 
production of the plant-pesticide is derived from sexually compatible 
plants.'' Thus, the proposal would exempt residues of pesticidal 
substances that are normally components of (not new to) food from 
plants in sexually compatible populations. As discussed in Unit IV.A. 
of this supplemental notice, differences in the levels of pesticidal 
substances present may occur between plants in a sexually compatible 
population. EPA determined in the proposals that changes in the levels 
of these pesticidal substances are not likely to result in overall 
significantly different dietary exposures. As noted in the proposal (59 
FR at 60538) ``[e]xtensive use and experience show the safety of foods 
containing these substances.'' If, however, information becomes 
available that indicates this finding is no longer consistent with the 
FFDCA exemption standard for a pesticidal substance in this category, 
EPA will consider the validity of the new information and act to amend 
this tolerance exemption as necessary to protect the public health. In 
the 1994 proposal (59 FR at 60535), EPA is proposing a requirement that 
any person who sells or distributes plant-pesticides that have been 
exempted must report to EPA any information that comes into their 
possession regarding unreasonable adverse effects of an exempted plant-
pesticide on human health or the environment.
    With regard to substances in food that may share a common mechanism 
of toxicity with the residues of the pesticidal substances that are the 
subject of the proposed exemption (59 FR 65035), EPA considered the 
effects of these substances when it addressed the safety of food. Food 
from plants has thousands of constituents. Thus, EPA cannot rule out 
the possibility that the foods humans consume would also contain 
substances that have a common mechanism of action with the pesticidal 
substances that are the subject of the proposed exemption. However, 
because sexually compatible plants share a common pool of genetic 
material, any substances that may share a common mechanism of toxicity 
with the pesticidal substances that are the subject

[[Page 27138]]

of the proposed exemption (59 FR 60535) are normally components of (not 
new to) food from plants in sexually compatible populations. As 
discussed in the 1994 preamble and supporting record for the proposal, 
food from plants in sexually compatible populations have historically 
been safely consumed by humans either directly, or indirectly in 
products such as meat and milk that are derived from animals that 
consume forage and other crops (e.g., corn and other grains). The 
history of safe consumption indicates that any cumulative effects 
between substances in food that may have a common mechanism of toxicity 
with the pesticidal substances that are the subject of the proposed 
exemption present a very low probability of human risk. The analysis 
made in the preceding paragraph concerning potential increases in 
levels of pesticidal substances apply equally to constituents of food 
that may have a common mechanism of action with the pesticidal 
substances that are the subject of this exemption (59 FR 60535). 
Variation in the levels of these substances are not likely to result in 
overall significantly different dietary exposures. As noted in the 
proposal (59 FR at 60538) ``plant varieties that meet the sexually 
compatible standard produce food that is safe for human consumption 
and/or appropriate processing procedures are widely known and routinely 
used by consumers in preparation of food from such sources.'' However, 
should EPA in the future identify substances with a common mechanism of 
toxicity with the plant-pesticides that are the subject of the proposed 
exemption, both FIFRA and FFDCA give the Agency adequate authority to 
take appropriate action to address any risks to humans health.
    EPA is not aware of any other substances outside of the food supply 
that may have a common mechanism of toxicity with the residues of the 
pesticidal substances that are the subject of the proposed exemption 
(59 FR 60535), although it cannot rule out the possibility. Should EPA 
in the future identify substances with a common mechanism of toxicity 
other than those found in the parts of plants used as food, both FIFRA 
and FFDCA give the Agency adequate authority to take appropriate action 
to address any risks to humans health.
    Because EPA already considered the safety of food containing 
residues of pesticidal substances derived from sexually compatible 
plants and other constituents of food that may share a common mechanism 
of toxicity with those residues when it issued the proposal (FR 60535), 
it is not requesting additional comment on that topic. Comments are 
requested only on the new issue of whether there are any substances 
outside of the food supply that have a common mechanism of toxicity 
with the residues of the pesticidal substances that are the subject of 
the proposed exemption, and the effects of any such substances on human 
health.
    6. Aggregate exposures of consumers including non-occupational 
exposures. EPA considered the available information on the aggregate 
exposure level of consumers to pesticidal substances in the plant-
pesticides to be exempt in the 1994 FFDCA and FIFRA proposals (59 FR 
60519 and 60535). This included a consideration of exposures from 
dietary sources (59 FR 60535) as well as from other non-occupational 
sources (59 FR 60519). As indicated in EPA's policy statement, ``plant-
pesticides are likely to present a limited exposure of the pesticidal 
substance to humans. In most cases, the predominant, if not the only, 
exposure route will be dietary. Significant respiratory and dermal 
exposures will be unlikely'' (59 FR at 60513). As explained in the 
FFDCA and FIFRA proposals and the EPA's policy statement (59 FR 60494) 
and associated dockets, plant-pesticides present negligible exposure of 
pesticidal substances to humans outside of the dietary route because 
the substances are in the plant tissue and thus are found either within 
the plant or in close proximity to the plant. EPA considered dietary 
exposure to the pesticidal substances in the proposed FFDCA exemption 
(59 FR 60535) and summarized its evaluation in Unit IV.A. of this 
supplemental notice.
    Despite EPA's belief that, because of the nature of plant-
pesticides, there is little likelihood of exposure other than through 
the dietary route, EPA in this supplemental notice sets forth in 
greater detail its considerations concerning other exposure routes. 
With regard to the dermal route of exposure, the pesticidal substances 
that are the subject of the proposed exemption (59 FR 60535) may in 
some cases be present in sap or other exudates from the plant or the 
food and thus may present some limited opportunity for dermal exposure 
to persons coming physically into contact with the plant or raw 
agricultural food from the plant. Individuals preparing meals are those 
most likely to experience dermal contact with the substances on a non-
occupational basis. However, on a per person basis, the potential 
amounts involved in these exposures are negligible in comparison to 
potential exposure through the dietary route. Moreover, substances that 
occur naturally in food, including the pesticidal substances that are 
the subject of the proposed exemption, are unlikely to cross the 
barrier provided by the skin and thus the responses seen on rare 
occasions to substances in food are most likely to be localized skin 
irritations. Whether these irritations are caused by the pesticidal 
substance component of plant-pesticides is unknown but given the 
thousands of constituents of any food of plant origin, the probability 
that substances other than the plant-pesticides are the irritants is 
very high. Because substances present in food are unlikely to pass 
through the skin, dermal exposures are not additive to dietary 
exposures.
    With regard to exposure through inhalation, the pesticidal 
substances may in some cases be present in pollen and some individuals 
(those near enough to farms, nurseries or other plant-growing areas to 
be exposed to wind-blown pollen) may be exposed, through inhalation, to 
the pollen. On a per person basis, the potential amounts of pollen 
involved in these exposures are negligible in comparison to potential 
exposure through the dietary route. Moreover, it is unlikely that 
exposure to the pollen is equivalent to exposure to the pesticidal 
substance. The pesticidal substance will not in every case be present 
in the pollen. When it is present in pollen, the pesticidal substance 
will be integrated into the tissue of the pollen grain. EPA cannot rule 
out the possibility that in some cases, the pesticidal substance or 
some piece of the pesticidal substance might be bound to the surface of 
the pollen grain (as opposed to the more likely circumstance of the 
substance being within the pollen grain). If the substance is bound to 
the surface of the pollen, lung or respiratory tract tissue in humans 
might be exposed to the pesticidal substance. Substances that occur 
naturally in pollen, including the pesticidal substances that are the 
subject of the proposed exemption, are unlikely to cross the barrier 
provided by the mucous membrane of the respiratory tract and thus are 
not additive to dietary exposure.
    EPA also evaluated potential non-occupational exposures in drinking 
water. As noted in the preceding paragraphs, the substances in plants 
or parts of plants, including the pesticidal substances that are the 
subject of the proposed exemption (59 FR 60535), are produced inside 
the plant itself. The pesticidal substances are integrated into and an 
integral part of the living tissue of the plant. When the plant dies or 
a part is removed from the plant,

[[Page 27139]]

microorganisms colonizing the tissue immediately begin to digest it, 
using the components of the tissue (including any pesticidal substances 
in the tissue) as building blocks for making their own tissues or for 
fueling their own metabolisms. The pesticidal substances that EPA 
proposed to exempt are subject to the same processes of degradation and 
decay that all organic matter undergoes. This turnover of biochemical 
materials in nature through a process of degradation occurs fairly 
rapidly. Therefore, these pesticidal substances do not persist in the 
environment or bioaccumulate. There is no indication that naturally 
occurring plant biochemical compounds, including the pesticidal 
substances that are the subject of the proposed exemption, are 
resistant to this degradation. Because of the fairly rapid turnover of 
these substances, even if they reach surface waters (through pollen 
dispersal or parts of the plants (leaves, fruits etc.) falling into 
bodies of water), they are unlikely to present anything other than a 
negligible exposure in drinking water drawn from surface water sources. 
Should they resist degradation long enough to enter groundwater, they 
are unlikely to present anything other than a negligible exposure in 
drinking water drawn from groundwater. Therefore, although a potential 
for non-dietary exposure (i.e., non-food oral, dermal and inhalation) 
in non-occupational settings may exist, EPA expects such exposure to be 
negligible.
    With regard to exposure to ``other related substances,'' EPA is not 
aware of any other substances that may be related, via a common 
mechanism of toxicity, to the pesticidal substances that are the 
subject of the proposed exemption (59 FR 60535), other than related 
substances that are present in parts of plants used as food. Thousands 
of substances are present in the edible parts of plants. These may 
include substances related, via a common mechanism of toxicity, to the 
pesticidal substances that are the subject of the proposed exemption. 
These related substances have long been accepted as part of the human 
diet. Extensive use and experience show the safety of foods containing 
these substances. It also shows the safety of these substances consumed 
in aggregate through the dietary route with the pesticidal substances 
that are the subject of the proposed exemption. With regard to non-
occupational exposure through routes other than dietary exposure, no 
evidence, in the many years of human experience with the growing and 
consumption of food from plants that may contain substances that may be 
related via a common mechanism of toxicity to the pesticidal substances 
that are the subject of the proposed exemption, indicates that adverse 
effects due to aggregate exposure through the dietary, non-food oral, 
dermal and inhalation routes occurs.
    Should EPA in the future identify substances related via a common 
mechanism of toxicity to the pesticidal substances that are the subject 
of the proposed exemption, FIFRA and the FFDCA provide the Agency 
adequate authority to take appropriate action to address any risks 
associated with those related substances. Substances that are isolated 
from the plant's tissues, concentrated and then applied topically as 
pesticides to the plant or to food would not be covered by the proposed 
exemption (59 FR 60535), but would be subject to the tolerance 
requirements of FFDCA.
    Because the Agency already considered exposure to the pesticidal 
substances that are the subject of the proposed exemption (59 FR 60535) 
and to substances related via a common mechanism of toxicity to these 
pesticidal substances in food when it issued the proposal, it is not 
requesting additional comment on this topic. Comments are requested 
only on the issue of whether there are additional substances outside 
that food supply that are related, via a common mechanism of toxicity, 
to residues of the pesticidal substances that are the subject of the 
proposed exemption and the effects of exposure to any such substances 
on human health.
    7. Sensitivities of subgroups. In 1994, EPA considered available 
information on the sensitivities of subgroups as it pertains to the 
pesticidal substances derived from sexually compatible plants in the 
proposal (59 FR 60535) and has summarized the evaluation in Unit IV.A. 
of this supplemental notice.
    8. Naturally occurring estrogen or other endocrine effects. FFDCA 
now directs EPA, in establishing an exemption from the requirement of a 
tolerance, to consider ``such information as the Administrator may 
require on whether the pesticide chemical may have an effect in humans 
that is similar to an effect of a naturally occurring estrogen or other 
endocrine effect'' (21 U.S.C. 346(a)(q)). Congress allowed EPA 2 years 
to establish a screening program to determine whether certain pesticide 
chemicals may have estrogenic effects and an additional year to 
implement the program (21 U.S.C. 408(p)). As part of the screening and 
implementation process, EPA is determining what information might be 
required and how it will address estrogenic effects from pesticide 
residues in general.
    While there is some information on estrogenic effects from exposure 
to certain pesticides, the data are limited. It is known that certain 
food plants contain estrogen mimics, termed phytoestrogens. Such 
phytoestrogens are currently being consumed by humans in food derived 
from plants. EPA cannot rule out the possibility that such 
phytoestrogens could be used as plant-pesticides. Potential exposure of 
humans via consumption of plant tissue to phytoestrogens exerting 
estrogenic effects and used as plant-pesticides may need to be 
considered when the issue of endocrine disruptors is examined by EPA. 
If dietary exposure to phytoestrogens (that are also plant-pesticides) 
is discovered to be a significant factor, the Agency will re-examine 
this proposed exemption from the requirement of a tolerance (59 FR 
60535) in light of that information.
    9. Safety factors. In the 1994 proposal, EPA did not rely on the 
available animal data in reaching its determination that a tolerance is 
not necessary to protect the public from pesticidal substances derived 
from sexually compatible plants (59 FR 60535). As discussed in Unit 
IV.A. of this supplemental notice, EPA relied on the long history of 
safe human consumption of the pesticidal substances that are the 
subject of the proposed exemption in food from sexually compatible 
plant populations and in food derived from animals that consume forage 
and other crops (e.g., corn and other grains). EPA continues to believe 
that long-term evidence of human consumption, not animal 
experimentation data, is the appropriate information base for the 
proposed exemption (59 FR 60535). Because EPA did not rely on animal 
experimentation data, the Agency did not consider which safety factors 
would be appropriate to use in assessing risk to humans based on data 
generated through experiments on animals.
    10. Infants and children.--a. Dietary consumption patterns. In the 
1994 proposal (59 FR 60535), EPA considered available information on 
the dietary consumption pattern of infants and children as pertains to 
the pesticidal substances derived from sexually compatible plants and 
has summarized the evaluation in Unit IV.A. of this supplemental 
notice. The range of foods consumed by infants and children is in 
general more limited than the range of foods consumed by adults. Most 
newborns rely on milk products for nutrition, although some infants are 
fed soy based products. Infants begin as early as 4-months of age to 
consume

[[Page 27140]]

specific types of solid foods containing residues of pesticidal 
substances that are the subject of the proposed exemption. Subsequent 
to 4 months of age, apart from processing to facilitate swallowing, the 
diets of infants are based on foods consumed by the general adult 
population albeit in different proportions. As infants and children 
mature, more and more of the foods normally consumed by adults become 
part of their diets and the relative proportions of the different types 
of food consumed changes to more closely resemble an adult diet.
    b. Special susceptibility. In the 1994 proposal (59 FR 60535), EPA 
considered available information on the potential for susceptibility of 
infants and children, including pre- and post-natal toxicity, as these 
factors pertain to the pesticidal substances derived from sexually 
compatible plants and has summarized the evaluation in Unit IV.A. of 
this supplemental notice.
    c. Cumulative effects of residues with other substances with a 
common mechanism of toxicity. In the 1994 proposal (59 FR 60535), EPA 
examined the available information on the cumulative effect of residues 
of pesticidal substances derived from sexually compatible plants as 
well as other substances in food that may have a common mechanism of 
toxicity. The Agency's consideration in the proposal of the effects of 
the residues of pesticidal substances that are the subject of the 
proposed exemption (59 FR 60535) for the general population also 
included consideration of effects for infants and children. See Unit 
IV.B.5. of this supplemental notice for a discussion of cumulative 
effects of the pesticide chemical residues and other substances that 
have a common mechanism of toxicity.
    Because EPA already considered the safety of food containing 
residues of pesticidal substances derived from sexually compatible 
plants and other constituents of food when it issued the proposal (FR 
60535), the Agency is not requesting additional comment on that topic. 
Comments are requested only on the new issue of whether there are any 
substances outside of the food supply with a common mechanism of 
toxicity to the residues of the pesticidal substances that are the 
subject of the proposed exemption and the effects of any such 
substances on infants and children.
    d. Margin of safety. In determining whether the residues of the 
pesticidal substances that are the subject of the proposed exemption 
(59 FR 60535) are safe, FFDCA section 408(b)(2)(C) directs EPA to apply 
a tenfold margin of safety for the residues and other sources of 
exposure to infants and children to account for potential pre- and 
post-natal toxicity and completeness of data on threshold effects with 
respect to exposure and toxicity to infants and children, unless a 
different margin will be safe. In proposing the exemption, EPA based 
its assessment of exposure and toxicity upon reliable information (Ref. 
1) including the long history of safe human consumption of food 
containing residues of the pesticidal substances that are the subject 
of the proposed exemption and other substances in food that may have a 
common mechanism of toxicity, and the unique nature of plant-
pesticides. EPA did not rely on animal data. EPA relied on observations 
concerning whole food consumption by humans and did not rely on single 
entity testing, wherein substances are isolated from a plant source, 
and fed to animals at high concentrations (Ref. 1). EPA relied on the 
vast experiential base of actual food consumption patterns rather than 
limited testing situations. EPA thus, did not utilize animal or other 
studies that would yield data that could be subjected to an additional 
margin of safety. (See Units IV.A. and IV.B.3. of this supplemental 
notice). As a result, the FQPA amendments to FFDCA do not affect EPA's 
analysis.

C. Safety Determinations in Light of FFDCA Amendment

    Based on the information discussed in the 1994 proposals (59 FR 
60496 through 60547), the discussion in Unit IV.A. and the analysis in 
Unit IV.B. of this supplemental notice, EPA concludes that there is a 
reasonable certainty that no harm will result to the U.S. population in 
general, and U.S. infants and children, from aggregate exposure to 
residues of pesticidal substances derived from sexually compatible 
plants, including all anticipated dietary exposures and all other 
exposures for which there is reliable information. Under the proposed 
exemption from the requirement for a tolerance (59 FR 60535), EPA would 
exempt residues of pesticidal substances that are normally components 
of (not new to) food from plants in sexually compatible populations. 
Extensive use and experience show the safety of foods containing these 
substances. No evidence, in the many years of human experience with the 
growing and consumption of food from plants containing the pesticidal 
substances that are the subject of the proposed exemption (59 FR 
60535), indicates that adverse effects due to aggregate exposure 
through the dietary, non-food oral, dermal and inhalation routes occur.
    The conclusion that residues of pesticidal substances derived from 
sexually compatible plants should be exempt from tolerance requirements 
under the FFDCA section 408 safety standard also lends support to EPA's 
proposed FIFRA exemption (59 FR 60519) for plant-pesticides derived 
from sexually compatible plants with respect to human dietary risks. In 
the FIFRA proposal, EPA utilized two criteria to determine whether 
plant-pesticides should be exempt: (1) Whether they posed a low 
probability of risk, and (2) whether they caused unreasonable adverse 
effects on the environment. Based upon the determination that residues 
of pesticidal substances subject to the proposed exemption (59 FR 
60535) and the nucleic acid component of plant-pesticides (59 FR 60542) 
meet the FFDCA section 408 safety test, EPA concludes plant-pesticides 
derived from sexually compatible plants would pose only a low 
probability of human dietary risk and also would not pose an 
unreasonable adverse effect with respect to such risks.

D. Other Considerations

    When the Agency proposed to establish an exemption from the 
requirement of a tolerance for residues of pesticidal substances 
derived from sexually compatible plants (59 FR 60535), EPA did not 
propose any numerical limitation on the amount of pesticidal substance 
that could be present in food containing these residues. EPA consulted 
in 1994 with the Department of Health and Human Services (DHHS) in 
developing the proposed exemption (59 FR 60535) and this supplemental 
notice and will consult with the Secretary of HHS prior to issuing the 
final rule. Because the 1994 proposal was for the exemption from the 
requirement of a tolerance, the Agency has concluded that an analytical 
method for detecting and measuring the levels of the residues of the 
subject pesticidal substances in or on food is not required.

V. Comments

A. Confidential Business Information

    Information submitted as comments concerning this supplemental 
notice may be claimed confidential by marking any part or all of that 
information as ``Confidential Business Information'' (CBI). CBI should 
not be submitted through e-mail. Information marked as CBI will not be 
disclosed except in accordance with procedures set forth in

[[Page 27141]]

40 CFR part 2. A copy of the comment that does not contain CBI must be 
submitted for inclusion in the public record. Information not marked 
confidential may be disclosed publicly by EPA without prior notice.

B. 30-Day Comment Period

    EPA is allowing a 30-day comment period because it has determined 
that such a period will provide the public with an adequate opportunity 
to respond to the additional issues raised in this supplemental notice. 
FFDCA and FIFRA do not specify a comment period for this type of 
notice. EPA has decided that a 30-day comment period is reasonable 
because this supplemental notice raises very few new issues that were 
not already available for public comment. As discussed in Unit IV. of 
this supplemental notice, EPA effectively considered most of the 
factors required by the FQPA amendments of FFDCA and FIFRA relevant to 
the proposed exemptions when it issued the proposed package of notices 
describing EPA's approach in 1994 (59 FR 60496, 60519, 60535, 60542 and 
60545). At that time, the public had an opportunity to review both the 
Agency's rationale for the proposals and the underlying support 
documents during a 90-day public comment period. Only a limited number 
of new issues have been raised by the FQPA amendments to FFDCA and 
FIFRA and the Agency continues to rely upon the information already in 
the docket for the 1994 proposals and thus 30 days should provide 
adequate time for public comment. In addition, EPA believes that it is 
in the interest of the public to publish the final exemption from the 
requirement of a tolerance in a timely manner.

C. Request for Comments

    Interested persons are invited to submit written comments on the 
new issues raised in this supplemental notice specifically on:
    (1) Whether there are substances, outside of the food supply, 
sharing a common mechanism of toxicity with pesticidal substances that 
are derived from sexually compatible plants. Commenters are asked to 
submit information on the cumulative effects of such substances and the 
pesticidal substances that are the subject of the proposed exemption 
(59 FR 60535).
    (2) Whether there are substances, outside of the food supply, 
related via a common mechanism of toxicity to pesticidal substances 
that are derived from sexually compatible plants, to which humans might 
be exposed through non-occupational routes of exposure. Commenters are 
asked to describe routes through which such exposure might occur, 
including exposure to major identifiable subgroups of human populations 
(e.g., infants and children). If such routes are identified, commenters 
are requested to provide information on the nature and levels of the 
expected exposure.
    Entities may also offer comments on issues V.C.1. and V.C.2. above 
as they apply to Option 2 as described in the November 23, 1994 Federal 
Register (59 FR at 60537) ``Plant-pesticides derived from plants within 
the same genus or from sexually compatible plants'' under the revised 
FFDCA section 408 safety standard. The Agency will not consider 
comments that address issues or information already presented for 
public comment in the proposed rule issued in the November 23, 1994, 
Federal Register.
    Commenters who possess information on substances occurring in food 
that may have estrogenic effects and may be used as plant-pesticides 
are requested to send such information to EPA.
    In this supplemental notice, EPA describes in greater detail the 
rationale supporting the statement made in the 1994 Federal Register 
(59 FR at 60513) that ``plant-pesticides are likely to present a 
limited exposure of pesticidal substances to humans. In most cases, the 
predominant, if not the only route of exposure will be dietary. 
Significant respiratory and dermal exposures will be unlikely.'' No 
comments were received on this statement during the official comment 
period. Commenters may comment on this more detailed rationale.
    In this supplemental notice, EPA also describes in greater detail 
how the rationale presented in the 1994 Federal Register (59 FR at 
60538) concerning the safety for human consumption of food from plants 
that meet the sexually compatible standard applies to infants and 
children. No comments were received on this statement during the 
official comment period. Commenters may comment on this more detailed 
rationale specifically addressing infants and children as part of the 
larger human population.

VI. Public Docket

    The official record for this rulemaking, as well as the public 
version, has been established for this rulemaking under docket control 
number ``OPP-300368A'' (including comments and data submitted 
electronically as described below). A public version of this record, 
including printed, paper versions of electronic comments, which does 
not include any information claimed as CBI, is available for inspection 
from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal 
holidays. The official rulemaking record is located at the address in 
``ADDRESSES'' at the beginning of this document.
    Electronic comments can be sent directly to EPA at:

    [email protected]
    Electronic comments must be submitted as an ASCII file avoiding the 
use of special characters and any form of encryption. Comment and data 
will also be accepted on disks in Wordperfect 5.1 file format or ASCII 
file format. All comments and data in electronic form must be 
identified by the docket control number ``OPP-300368A.'' Electronic 
comments on this supplemental notice may be filed online at many 
Federal Depository Libraries.

VII. References

    (1) International Food Biotechnology Council, 1990. Biotechnologies 
and food; Assuring the safety of foods produced by genetic 
modification. In: Regulatory Toxicology and Pharmacology. Vol 12. 
Academic Press, New York.

VIII. Regulatory Assessment Requirements

    This supplemental notice merely seeks additional comments on the 
proposed rules with regard to the potential impact that the new 
statutory amendments imposed by the August 3, 1996 Food Quality 
Protection Act (FQPA) might have on the provisions as proposed. As 
such, this notice does not contain any new proposed requirements that 
would require additional consideration by the Office of Management and 
Budget (OMB) under Executive Order 12866, entitled Regulatory Planning 
and Review (58 FR 51735, October 4, 1993) or the Paperwork Reduction 
Act (PRA), 44 U.S.C. 3501 et seq. It does not require any other action 
under Executive Order 12875, entitled Enhancing the Intergovernmental 
Partnership (58 FR 58093, October 28, 1993), Executive Order 12898, 
entitled Federal Actions to Address Environmental Justice in Minority 
Populations and Low-Income Populations (59 FR 7629, February 16, 1994), 
or the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.). The 
Agency's activities related to these regulatory assessment requirements 
are discussed in the proposed rules.
    EPA did not consider Title II of the Unfunded Mandates Reform Act 
of 1995 (UMRA) (Pub. L. 104-4) at the proposal stage because the 
proposed rules were

[[Page 27142]]

issued prior to its enactment. Although this supplemental notice is not 
subject to UMRA because it neither proposes or finalizes any regulatory 
requirements, the applicability of the UMRA requirements will be 
addressed in the final rules.

List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, 
Agricultural commodities, Pesticides and pests, Plants, Plant-
pesticides, Reporting and recordkeeping requirements.

    Dated: May 7, 1997.
Lynn R. Goldman
Assistant Administrator for Prevention, Pesticides and Toxic 
Substances.

[FR Doc. 97-12784 Filed 5-15-97; 8:45 am]
BILLING CODE 6560-50-F

Complete official Federal Register PDF

FR Doc. 97-12324 Regulations implementing the Federal Coal Mine Health and Safety Act of 1969, as Amended; Extension of Comment Period; Additions to the Record
[Federal Register Volume 62, Number 95 (Friday, May 16, 1997)]
[Proposed Rules]
[Page 27000]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12324]

=======================================================================
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DEPARTMENT OF LABOR

Employment Standards Administration

20 CFR Parts 718, 722, 725, 726 and 727

[RIN 1215-AA99]

Regulations implementing the Federal Coal Mine Health and Safety 
Act of 1969, as Amended; Extension of Comment Period; Additions to the 
Record

AGENCY: Employment Standards Administration, Labor.

ACTION: Proposed rule; extension of comment period; additions to the 
record.

-----------------------------------------------------------------------

SUMMARY: This document extends the period for filing comments regarding 
the proposed rule to amend and revise the regulations implementing the 
Black Lung Benefits Act. This action is taken to permit additional 
comment from interested persons. In addition, this document informs all 
interested persons that the Department is adding three medical articles 
to the official rulemaking record and invites comments on those 
articles.

DATES: Comments must be received on or before August 21, 1997.

ADDRESSES: Send written comments on the proposed rule to James L. 
DeMarce, Director, Division of Coal Mine Worker's Compensation, Room C-
3520, Frances Perkins Building, 200 Constitution Ave., NW., Washington, 
DC 20210.

FOR FURTHER INFORMATION CONTACT:
James L. DeMarce, (202) 219-6692.

SUPPLEMENTARY INFORMATION: In the Federal Register of January 22, 1997 
(62 FR 3338-3435), the Department of Labor published a proposed rule 
intended to amend and revise the regulations implementing the Black 
Lung Benefit Act, subchapter IV of the Federal Coal Mine Health and 
Safety Act of 1969, as amended. Interested persons were requested to 
submit comments on or before March 24, 1997. In the Federal Register of 
February 24, 1997 (62 FR 8201), the Department extended the comment 
period through May 23, 1997. The trade association representing coal 
mine operators has requested that the Department once again extend the 
comment period. The trade association seeks additional time to analyze 
existing medical evidence and submit its analysis to peer review. The 
Department deems it desirable to extend the comment period for all 
interested persons. Therefore, the comment period for the proposed 
rule, amending and revising 20 CFR Parts 718, 722, 725, 726 and 727, is 
extended through August 21, 1997.
    In addition, following publication of the proposed rule, the 
Department learned of three medical articles relevant to its proposed 
revision of the definition of the term ``pneumoconiosis'' at 20 CFR 
718.201. See 62 FR 3343-44 (discussion), 3376 (definition). Those 
articles are: Becklake, M., ``Occupational Exposures: Evidence for a 
Causal Association with Chronic Obstructive Pulmonary Disease,'' 
American Review of Respiratory Disease, 140: S85-S91, 1989; ``Coal Dust 
and Compensation,'' The Lancet, Vol. 335, No. 8685, pp. 322-324 (Feb. 
10, 1990); and Wright, J. et al., ``State of the Art: Diseases of the 
Small Airways,'' American Review of Respiratory Diseases, 146: 240-262, 
1992. The Department gives notice of its inclusion of these articles in 
the official rule-making record, and invites comments on them. Copies 
of the articles may be reviewed at the Department of Labor.

    Signed at Washington, D.C. this 5th day of May, 1997.
Bernard E. Anderson,
Assistant Secretary for Employment Standards.
[FR Doc. 97-12324 Filed 5-15-97; 8:45 am]
BILLING CODE 4510-27-M

Complete official Federal Register PDF

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