[Federal Register Volume 74, Number 245 (Wednesday, December 23, 2009)]
[Rules and Regulations]
[Pages 68168-68173]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-30371]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[EPA-HQ-OPP-2007-0536 and 2007-0097; FRL-8793-5]


Fenarimol; Pesticide Tolerances

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This regulation establishes tolerances for residues of 
fenarimol in or on hop, dried cones. This regulation additionally 
increases the established tolerance in or on apple. Interregional 
Research Project Number 4 (IR-4) requested the tolerance on hop and EPA 
proposed the tolerance increase on apple under the Federal Food, Drug, 
and Cosmetic Act (FFDCA).

DATES: This regulation is effective December 23, 2009. Objections and 
requests for hearings must be received on or before February 22, 2010, 
and must be filed in accordance with the instructions provided in 40 
CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

ADDRESSES: EPA has established a docket for this action under docket 
identification (ID) number EPA-HQ-OPP-2007-0536. All documents in the 
docket are listed in the docket index available at http://www.regulations.gov. Although listed in the index, some information is 
not publicly available, e.g., Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, is not placed on the 
Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available in the electronic 
docket at http://www.regulations.gov, or, if only available in hard 
copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac 
Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket 
Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, 
excluding legal holidays. The Docket Facility telephone number is (703) 
305-5805.

FOR FURTHER INFORMATION CONTACT: Laura Nollen, Registration Division 
(7505P), Office of Pesticide Programs, Environmental Protection Agency, 
1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone 
number: (703) 305-7390; e-mail address: nollen.laura@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    You may be potentially affected by this action if you are an 
agricultural producer, food manufacturer, or pesticide manufacturer. 
Potentially affected entities may include, but are not limited to those 
engaged in the following activities:
     Crop production (NAICS code 111).
     Animal production (NAICS code 112).
     Food manufacturing (NAICS code 311).
     Pesticide manufacturing (NAICS code 32532).
    This listing is not intended to be exhaustive, but rather to 
provide a guide for readers regarding entities likely to be affected by 
this action. Other types of entities not listed in this unit could also 
be affected. The North American Industrial Classification System 
(NAICS) codes have been provided to assist you and others in 
determining whether this action might apply to certain entities. If you 
have any questions regarding the applicability of this action to a 
particular entity, consult the person listed under FOR FURTHER 
INFORMATION CONTACT.

B. How Can I Access Electronic Copies of this Document?

    In addition to accessing electronically available documents at 
http://www.regulations.gov, you may access this Federal Register 
document electronically through the EPA Internet under the ``Federal 
Register'' listings at http://www.epa.gov/fedrgstr. You may also access 
a frequently updated electronic version of EPA's tolerance regulations 
at 40 CFR part 180 through the Government Printing Office's e-CFR cite 
at http://www.gpoaccess.gov/ecfr. To access the OPPTS Harmonized Test 
Guidelines referenced in this document, go directly to the guidelines 
at http://www.epa.gov/oppts and select ``Test Methods & Guidelines'' on 
the left side navigation menu.

C. Can I File an Objection or Hearing Request?

    Under section 408(g) of FFDCA, 21 U.S.C. 346a(g), any person may 
file an objection to any aspect of this regulation and may also request 
a hearing on those objections. You must file your objection or request 
a hearing on this regulation in accordance with the instructions 
provided in 40 CFR part 178. To ensure proper receipt by EPA, you must 
identify docket ID number EPA-HQ-OPP-2007-0536 in the subject line on 
the first page of your submission. All requests must be in writing, and 
must be mailed or delivered to the Hearing Clerk as required by 40 CFR 
part 178 on or before February 22, 2010.
    In addition to filing an objection or hearing request with the 
Hearing Clerk as described in 40 CFR part 178, please submit a copy of 
the filing that does not contain any CBI for inclusion in the public 
docket that is described in ADDRESSES. Information not marked 
confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA 
without prior notice. Submit this copy, identified by docket ID number 
EPA-HQ-OPP-2007-0536, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Mail: Office of Pesticide Programs (OPP) Regulatory Public 
Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460-0001.
     Delivery: OPP Regulatory Public Docket (7502P), 
Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South 
Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only 
accepted during the Docket Facility's normal hours of operation (8:30 
a.m. to 4 p.m., Monday through Friday, excluding legal holidays). 
Special arrangements should be made for deliveries of boxed 
information. The Docket Facility telephone number is (703) 305-5805.

II. Petition for Tolerance

    In the Federal Register of August 22, 2007 (72 FR 47010) (FRL-8142-
5) (Docket ID number EPA-HQ-OPP-2007-0536, EPA issued a notice pursuant 
to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the 
filing of a pesticide petition (PP 6E7074) by IR-4, 500 College Road 
East, Suite 201 W, Princeton, NJ 08540-6635. The petition requested 
that 40 CFR 180.421 be amended by establishing tolerances for residues 
of the fungicide fenarimol,

[[Page 68169]]

alpha-(2-chlorophenyl)-alpha-(4-chlorophenyl)-5-pyrimidinemethanol, in 
or on hop at 1.0 parts per million (ppm). That notice referenced a 
summary of the petition prepared on behalf of IR-4 by Gowan Company, 
the registrant, which is available to the public in the docket, http://www.regulations.gov. There were no comments received in response to the 
notice of filing.
    In the Federal Register of June 6, 2007 (72 FR 31221) (FRL-8122-7) 
(Docket ID number EPA-HQ-OPP-2007-0097). EPA issued a proposed rule 
pursuant to sections 408(e) of FFDCA, 21 U.S.C. 346a(e). The rule 
proposed that 40 CFR 180.421 be amended by increasing the tolerance for 
residues of the fungicide fenarimol, alpha-(2-chlorophenyl)-alpha-(4-
chlorophenyl)-5-pyrimidinemethanol, in or on apple from 0.1 ppm to 0.3 
ppm. EPA proposed the tolerance increase in order to harmonize with a 
Codex Maximum Residue Limit (MRL) of 0.3 ppm on apples. The proposal 
explained the basis for EPA's conclusion that there is a reasonable 
certainty that no harm will result to the general population, or to 
infants and children, from aggregate exposure to fenarimol, including 
exposure under the amended apple tolerance. The proposal established a 
60-day public comment period. Comments were received in response to the 
proposed rule. EPA's response to these comments is discussed in Unit 
IV.C.
    Based upon review of the data supporting the petition, EPA has 
revised the proposed tolerance on hop, dried cones. The reason for this 
change is explained in Unit IV.D.

III. Aggregate Risk Assessment and Determination of Safety

    Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a 
tolerance (the legal limit for a pesticide chemical residue in or on a 
food) only if EPA determines that the tolerance is ``safe.'' Section 
408(b)(2)(A)(ii) of FFDCA defines ``safe'' to mean that ``there is a 
reasonable certainty that no harm will result from aggregate exposure 
to the pesticide chemical residue, including all anticipated dietary 
exposures and all other exposures for which there is reliable 
information.'' This includes exposure through drinking water and in 
residential settings, but does not include occupational exposure. 
Section 408(b)(2)(C) of FFDCA requires EPA to give special 
consideration to exposure of infants and children to the pesticide 
chemical residue in establishing a tolerance and to ``ensure that there 
is a reasonable certainty that no harm will result to infants and 
children from aggregate exposure to the pesticide chemical residue. . . 
.''
    Consistent with section 408(b)(2)(D) of FFDCA, and the factors 
specified in section 408(b)(2)(D) of FFDCA, EPA has reviewed the 
available scientific data and other relevant information in support of 
this action. EPA has sufficient data to assess the hazards of and to 
make a determination on aggregate exposure for the petitioned-for 
tolerances for residues of fenarimol on hop, dried cones at 5.0 ppm and 
apple at 0.3 ppm. EPA's assessment of exposures and risks associated 
with establishing tolerances follows.

A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered its 
validity, completeness, and reliability as well as the relationship of 
the results of the studies to human risk. EPA has also considered 
available information concerning the variability of the sensitivities 
of major identifiable subgroups of consumers, including infants and 
children.
    Fenarimol has a relatively low order of acute toxicity via the 
oral, dermal, and inhalation routes of exposure. It is not a dermal 
sensitizer but causes corneal opacity in rabbits. Chronic studies 
indicated that the liver is a target organ for toxicity. Liver toxicity 
was manifested by liver weight increases and the presence of ``fatty 
liver'' in rats. In dogs, increased liver weights and increases in 
serum enzymes, indicative of liver toxicity, were noted. Additionally, 
reproduction and developmental studies showed that fenarimol inhibited 
aromatase, an enzyme involved in the conversion of androgens to 
estrogens. Two acceptable rodent carcinogenicity studies showed no 
evidence of significant tumor increases; therefore, fenarimol has been 
classified as ``not likely to be carcinogenic to humans.'' 
Additionally, the toxicity database indicates no evidence of 
mutagenicity or neurotoxicity.
    The toxicology data for fenarimol provides no indication of 
increased susceptibility, as compared to adults, of rat and rabbit 
fetuses to in utero exposure in developmental studies. Developmental 
kidney effects (hydronephrosis) in the rat were shown to be reversible. 
The multi-generation reproduction study in rats indicates that 
fenarimol causes reduced fertility in males and dystocia in females; 
these effects were attributed to the inhibition of aromatase. Decreased 
litter size was also noted in the study.
    Non-guideline reproductive performance studies in mice, guinea 
pigs, and rabbits resulted in decreased reproductive performance in 
male mice, but no such effect in the guinea pig or rabbit studies. A 
pubertal assay conducted in female rats resulted in decreased T4 
thyroid hormone coupled with an increase in circulating thyroid 
stimulating hormone (TSH) levels. A female rat uterotrophic assay 
resulted in significant uterine weight increases accompanied by 
increased serum follicle stimulating hormone (FSH) levels and decreased 
serum T3 levels.
    Specific information on the studies received and the nature of the 
adverse effects caused by fenarimol as well as the no-observed-adverse-
effect-level (NOAEL) and the lowest-observed-adverse-effect-level 
(LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document ``Fenarimol. Human Health Risk 
Assessment for the Proposed Food Use of Fenarimol on Hops,'' pages 46 
to 49 in docket ID number EPA-HQ-OPP-2007-0536.

B. Toxicological Endpoints

    For hazards that have a threshold below which there is no 
appreciable risk, a toxicological point of departure (POD) is 
identified as the basis for derivation of reference values for risk 
assessment. The POD may be defined as the highest dose at which no 
adverse effects are observed (the NOAEL) in the toxicology study 
identified as appropriate for use in risk assessment. However, if a 
NOAEL cannot be determined, the lowest dose at which adverse effects of 
concern are identified (the LOAEL) or a benchmark dose (BMD) approach 
is sometimes used for risk assessment. Uncertainty/safety factors (UFs) 
are used in conjunction with the POD to take into account uncertainties 
inherent in the extrapolation from laboratory animal data to humans and 
in the variations in sensitivity among members of the human population 
as well as other unknowns. Safety is assessed for acute and chronic 
dietary risks by comparing aggregate food and water exposure to the 
pesticide to the acute population adjusted dose (aPAD) and chronic 
population adjusted dose (cPAD). The aPAD and cPAD are calculated by 
dividing the POD by all applicable UFs. Aggregate short-term, 
intermediate-term, and chronic-term risks are evaluated by comparing 
food, water, and residential exposure to the POD to ensure that the 
margin of exposure (MOE) called for by the product of all applicable 
UFs is not exceeded. This latter value is referred to as the level of 
concern (LOC).

[[Page 68170]]

    For non-threshold risks, the Agency assumes that any amount of 
exposure will lead to some degree of risk. Thus, the Agency estimates 
risk in terms of the probability of an occurrence of the adverse effect 
greater than that expected in a lifetime. For more information on the 
general principles EPA uses in risk characterization and a complete 
description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm.
    A summary of the toxicological endpoints for fenarimol used for 
human risk assessment can be found at http://www.regulations.gov in 
document ``Fenarimol. Human Health Risk Assessment for the Proposed 
Food Use of Fenarimol on Hops,'' pages 28 to 29 in docket ID number 
EPA-HQ-OPP-2007-0536.

C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary 
exposure to fenarimol, EPA considered exposure under the petitioned-for 
tolerances as well as all existing fenarimol tolerances in 40 CFR 
180.421. EPA assessed dietary exposures from fenarimol in food as 
follows:
    i. Acute exposure. Quantitative acute dietary exposure and risk 
assessments are performed for a food-use pesticide, if a toxicological 
study has indicated the possibility of an effect of concern occurring 
as a result of a 1-day or single exposure.
    No such effects were identified in the toxicological studies for 
fenarimol; therefore, a quantitative acute dietary exposure assessment 
is unnecessary.
    ii. Chronic exposure. In conducting the chronic dietary exposure 
assessment EPA used the food consumption data from the United States 
Department of Agriculture (USDA) 1994-1996 and 1998 Continuing Surveys 
of Food Intakes by Individuals (CSFII). The chronic dietary exposure 
assessment for fenarimol is refined using anticipated residues (ARs) 
from field trial data, processing factors, and percent crop treated 
(PCT) data.
    ARs based on Food and Drug Administration (FDA) monitoring data 
were used for apples, bananas, cherries, grapes, and pears. Tolerance 
values were assumed for foods covered by all additional tolerances. PCT 
data was used for apples, cherries, grapes, and pears. Dietary Exposure 
Evalution Model (DEEM) default processing factors were used for all 
food commodities, except apple juice, pear juice, grape juice, and 
raisins, which used factors derived from processing studies.
    iii. Cancer. Based on the absence of significant tumor increases in 
two adequate rodent carcinogenicity studies, EPA has classified 
fenarimol as ``not likely to be carcinogenic to humans.'' Therefore, a 
quantitative exposure assessment to evaluate cancer risk is 
unnecessary.
    iv. Anticipated residue and PCT information. Section 408(b)(2)(E) 
of FFDCA authorizes EPA to use available data and information on the AR 
levels of pesticide residues in food and the actual levels of pesticide 
residues that have been measured in food. If EPA relies on such 
information, EPA must require pursuant to FFDCA section 408(f)(1) that 
data be provided 5 years after the tolerance is established, modified, 
or left in effect, demonstrating that the levels in food are not above 
the levels anticipated. For the present action, EPA will issue such 
Data Call-Ins as are required by FFDCA section 408(b)(2)(E) and 
authorized under FFDCA section 408(f)(1). Data will be required to be 
submitted no later than 5 years from the date of issuance of these 
tolerances.
    Section 408(b)(2)(F) of FFDCA states that the Agency may use data 
on the actual percent of food treated for assessing chronic dietary 
risk only if:
     Condition a. The data used are reliable and provide a 
valid basis to show what percentage of the food derived from such crop 
is likely to contain the pesticide residue.
     Condition b. The exposure estimate does not underestimate 
exposure for any significant subpopulation group.
     Condition c. Data are available on pesticide use and food 
consumption in a particular area, the exposure estimate does not 
understate exposure for the population in such area.
In addition, the Agency must provide for periodic evaluation of any 
estimates used. To provide for the periodic evaluation of the estimate 
of PCT as required by FFDCA section 408(b)(2)(F), EPA may require 
registrants to submit data on PCT.
    The Agency used PCT information as follows:
    Apples, 20%; cherries, 15%; grapes, 25%; and pears, 10%.
    In most cases, EPA uses available data from USDA/National 
Agricultural Statistics Service (NASS), proprietary market surveys, and 
the National Pesticide Use Database for the chemical/crop combination 
for the most recent 6 years. EPA uses an average PCT for chronic 
dietary risk analysis. The average PCT figure for each existing use is 
derived by combining available public and private market survey data 
for that use, averaging across all observations, and rounding to the 
nearest 5%, except for those situations in which the average PCT is 
less than one. In those cases, 1% is used as the average PCT and 2.5% 
is used as the maximum PCT. EPA uses a maximum PCT for acute dietary 
risk analysis. The maximum PCT figure is the highest observed maximum 
value reported within the recent 6 years of available public and 
private market survey data for the existing use and rounded up to the 
nearest multiple of 5%.
    The Agency believes that the three conditions discussed in Unit 
III.C.1.iv. have been met. With respect to Condition a, PCT estimates 
are derived from Federal and private market survey data, which are 
reliable and have a valid basis. The Agency is reasonably certain that 
the percentage of the food treated is not likely to be an 
underestimation. As to Conditions b and c, regional consumption 
information and consumption information for significant subpopulations 
is taken into account through EPA's computer-based model for evaluating 
the exposure of significant subpopulations including several regional 
groups. Use of this consumption information in EPA's risk assessment 
process ensures that EPA's exposure estimate does not understate 
exposure for any significant subpopulation group and allows the Agency 
to be reasonably certain that no regional population is exposed to 
residue levels higher than those estimated by the Agency. Other than 
the data available through national food consumption surveys, EPA does 
not have available reliable information on the regional consumption of 
food to which fenarimol may be applied in a particular area.
    2. Dietary exposure from drinking water. The Agency used screening 
level water exposure models in the dietary exposure analysis and risk 
assessment for the total residues of concern, including parent 
fenarimol and its organic degradates (U-1, U-2, U-6, and U-7), in 
drinking water. These simulation models take into account data on the 
physical, chemical, and fate/transport characteristics of fenarimol. 
Further information regarding EPA drinking water models used in 
pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm.
    Based on the Pesticide Root Zone Model/Exposure Analysis Modeling 
System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI-
GROW) models, the estimated drinking water concentrations (EDWCs) of 
fenarimol for surface water are estimated to be 66 parts per billion

[[Page 68171]]

(ppb) for chronic exposures. For ground water, the estimated drinking 
water concentration is 19 ppb.
    Modeled estimates of drinking water concentrations were directly 
entered into the dietary exposure model. For chronic dietary risk 
assessment, the water concentration of value 66 ppb was used to assess 
the contribution to drinking water.
    3. From non-dietary exposure. The term ``residential exposure'' is 
used in this document to refer to non-occupational, non-dietary 
exposure (e.g., for lawn and garden pest control, indoor pest control, 
termiticides, and flea and tick control on pets).
    Fenarimol is currently registered for use on professionally managed 
turf areas, such as stadia and golf course tees, greens, and fairways. 
Short-term postapplication dermal exposure to adult golfers is 
possible.
    4. Cumulative effects from substances with a common mechanism of 
toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when 
considering whether to establish, modify, or revoke a tolerance, the 
Agency consider ``available information'' concerning the cumulative 
effects of a particular pesticide's residues and ``other substances 
that have a common mechanism of toxicity.''
    EPA has not found fenarimol to share a common mechanism of toxicity 
with any other substances, and fenarimol does not appear to produce a 
toxic metabolite produced by other substances. For the purposes of this 
tolerance action, therefore, EPA has assumed that fenarimol does not 
have a common mechanism of toxicity with other substances. For 
information regarding EPA's efforts to determine which chemicals have a 
common mechanism of toxicity and to evaluate the cumulative effects of 
such chemicals, see EPA's website at http://www.epa.gov/pesticides/cumulative.

D. Safety Factor for Infants and Children

    1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA 
shall apply an additional tenfold (10X) margin of safety for infants 
and children in the case of threshold effects to account for prenatal 
and postnatal toxicity and the completeness of the database on toxicity 
and exposure unless EPA determines based on reliable data that a 
different margin of safety will be safe for infants and children. This 
additional margin of safety is commonly referred to as the Food Quality 
Protection Act (FQPA) safety factor (SF). In applying this provision, 
EPA either retains the default value of 10X, or uses a different 
additional SF when reliable data available to EPA support the choice of 
a different factor.
    2. Prenatal and postnatal sensitivity. The database for prenatal 
developmental (in rats and rabbits) and reproductive (in rats) toxicity 
is considered complete and includes special studies in addition to 
conventional guideline studies. The rat developmental study showed 
evidence of hydronephrosis in fetuses at dose levels equal to or 
possibly lower than doses causing maternal toxicity; however, a special 
study showed this effect to be reversible and therefore not considered 
an adverse effect. Additionally, the decreased live born litter size 
and survival indices in the rat multi-generation reproduction study are 
considered to be secondary consequenies of parental effects (e.g. 
dystocia and fertility), and is not an indicator of increased 
susceptibility. Therefore, there is no evidence of increased 
susceptibility of fetuses following in utero exposure in the rat or 
rabbit developmental toxicity study or of offspring following prenatal 
and postnatal exposure in the rat reproduction study, and there are no 
concerns or residual uncertainties for prenatal and/or postnatal 
toxicity.
    3. Conclusion. EPA has determined that reliable data show the 
safety of infants and children would be adequately protected if the 
FQPA SF were reduced to 1X. That decision is based on the following 
findings:
    i. The toxicity database for fenarimol is complete except for 
immunotoxicity testing. Recent changes to 40 CFR part 158 make 
immunotoxicity testing (OPPTS Harmonized Test Guideline 870.7800) 
required for pesticide registration; however, the available data for 
fenarimol do not show potential for immunotoxicity. Consequently, the 
EPA believes the existing data are sufficient for endpoint selection 
for exposure/risk assessment scenarios and for evaluation of the 
requirements under the FQPA, and an additional database UF does not 
need to be applied.
    ii. There is no indication that fenarimol is a neurotoxic chemical 
and there is no need for a developmental neurotoxicity study or 
additional UFs to account for neurotoxicity.
    iii. There is no evidence that fenarimol results in increased 
susceptibility in in utero rats or rabbits in the prenatal 
developmental studies or in young rats in the 2-generation reproduction 
study.
    iv. There are no residual uncertainties identified in the exposure 
databases. The chronic dietary food exposure assessment utilized 
tolerance-level residues or ARs that are based on reliable field trial 
data, and factors derived from processing studies (for apple juice, 
pear juice, grape juice, and raisins) or DEEM default processing 
factors. For several currently registered commodities, the chronic 
assessment also utilized PCT data that have a valid basis and are 
considered to be reliable. EPA made conservative (protective) 
assumptions in the ground and surface water modeling used to assess 
exposure to fenarimol in drinking water. EPA made similarly 
conservative assumptions to assess postapplication exposures. These 
assessments will not underestimate the exposure and risks posed by 
fenarimol.

E. Aggregate Risks and Determination of Safety

    EPA determines whether acute and chronic pesticide exposures are 
safe by comparing aggregate exposure estimates to the aPAD and cPAD. 
The aPAD and cPAD represent the highest safe exposures, taking into 
account all appropriate SFs. EPA calculates the aPAD and cPAD by 
dividing the POD by all applicable UFs. For linear cancer risks, EPA 
calculates the probability of additional cancer cases given the 
estimated aggregate exposure. Short-term, intermediate-term, and 
chronic-term risks are evaluated by comparing the estimated aggregate 
food, water, and residential exposure to the POD to ensure that the MOE 
called for by the product of all applicable UFs is not exceeded.
    1. Acute risk. An acute aggregate risk assessment takes into 
account exposure estimates from acute dietary consumption of food and 
drinking water. No adverse effect resulting from a single-oral exposure 
was identified and no acute dietary endpoint was selected. Therefore, 
fenarimol is not expected to pose an acute risk.
    2. Chronic risk. Using the exposure assumptions described in this 
unit for chronic exposure, EPA has concluded that chronic exposure to 
fenarimol from food and water will utilize 76% of the cPAD for infants 
less than 1-year old, the population group receiving the greatest 
exposure. Based on the explanation in Unit III.C.3., regarding 
residential use patterns, chronic residential exposure to residues of 
fenarimol is not expected.
    3. Short-term risk. Short-term aggregate exposure takes into 
account short-term residential exposure plus chronic exposure to food 
and water (considered to be a background exposure level). Fenarimol is 
currently registered for use on professionally managed turf, including 
stadia and golf

[[Page 68172]]

course tees, greens, and fairways, which could result in short-term 
postapplication dermal exposure to golfers. The Agency has determined 
that it is appropriate to aggregate chronic exposure through food and 
water with short-term residential exposures to fenarimol.
    Using the exposure assumptions described in this unit for short-
term exposures, EPA has concluded the combined short-term food, water, 
and residential exposures aggregated result in aggregate MOEs of 8,800 
for adults 20-49 years old. EPA has determined that this assessment 
adequately estimates the risk for youth golfers as well. As the 
aggregate MOE is greater than 1,000 (the LOC), short-term aggregate 
exposure to fenarimol is not of concern to EPA.
    4. Intermediate-term risk. Intermediate-term aggregate exposure 
takes into account intermediate-term residential exposure plus chronic 
exposure to food and water (considered to be a background exposure 
level). Fenarimol is not registered for any use patterns that would 
result in intermediate-term residential exposure. Therefore, the 
intermediate-term aggregate risk is the sum of the risk from exposure 
to fenarimol through food and water, which has already been addressed, 
and will not be greater than the chronic aggregate risk.
    5. Aggregate cancer risk for U.S. population. As discussed in Unit 
III.C.1.iii., EPA has classified fenarimol as ``not likely to be 
carcinogenic to humans,'' and it is not expected to pose a cancer risk 
to humans.
    6. Determination of safety. Based on these risk assessments, EPA 
concludes that there is a reasonable certainty that no harm will result 
to the general population, or to infants and children from aggregate 
exposure to fenarimol residues.

IV. Other Considerations

A. Analytical Enforcement Methodology

    Adequate enforcement methodology, gas chromatography (GC) with an 
electrolytic conductivity detector (ECD), is available to enforce the 
tolerance expression, and is published in the Pesticide Analytical 
Manual (PAM) Vol. II (Method R039).

B. International Residue Limits

     Residue definitions are harmonized between the United States, 
Codex, and Mexico. In order to harmonize with a Codex MRL of 0.3 ppm 
for apples, EPA is increasing the tolerance for residues of apples from 
0.1 ppm to 0.3 ppm. Additionally, a Codex MRL exists on hop dried cones 
at 5.0 ppm. The Agency is establishing a tolerance on hop, dried cones 
at 5.0 ppm to harmonize MRLs between the United States and Codex for 
this commodity.

C. Response to Comments

    EPA received one comment to the proposed rule of June 6, 2007, 
which made a general objection to the presence of any pesticide 
residues on crops and stated that EPA should set no pesticide tolerance 
greater than zero. The Agency understands the commenter's concerns and 
recognizes that some individuals believe that pesticides should be 
banned completely. However, the existing legal framework provided by 
section 408 of the FFDCA states that tolerances greater than zero may 
be set when it has been demonstrated that the pesticide meets the 
safety standard imposed by that statute. This citizen's comment appears 
to be directed at the underlying statute and not EPA's implementation 
of it; the citizen has made no contention that EPA has acted in 
violation of the statutory framework.

D. Revisions to Petitioned-For Tolerances

    Based upon review of the data supporting the IR-4 petition, EPA 
revised the proposed tolerance for hop, dried cones from 1.0 ppm to 1.2 
ppm. EPA revised the tolerance level based on analysis of the residue 
field trial data using the Agency's Tolerance Spreadsheet in accordance 
with the Agency's ``Guidance for Setting Pesticide Tolerances Based on 
Field Trial Data.'' However, it was discovered that a Codex MRL exists 
on hops, dried cones at 5.0 ppm. As a result, EPA has increased the 
hop, dried cones tolerance from 1.2 ppm to 5.0 ppm to harmonize with 
Codex. The potentially greater exposure under this increased tolerance 
value was included in EPA's fenarimol risk assessment.

V. Conclusion

    Therefore, a tolerance is established for residues of fenarimol, 
alpha-(2-chlorophenyl)-alpha-(4-chlorophenyl)-5-pyrimidinemethanol, in 
or on hop, dried cones at 5.0 ppm. Additionally, the established 
tolerance of fenarimol in or on apple is increased from 0.1 ppm to 0.3 
ppm.

VI. Statutory and Executive Order Reviews

    This final rule establishes tolerances under section 408(d) and 
408(e) of FFDCA following an agency initiated proposal. The Office of 
Management and Budget (OMB) has exempted these types of actions from 
review under Executive Order 12866, entitled Regulatory Planning and 
Review (58 FR 51735, October 4, 1993). Because this final rule has been 
exempted from review under Executive Order 12866, this final rule is 
not subject to Executive Order 13211, entitled Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled 
Protection of Children from Environmental Health Risks and Safety Risks 
(62 FR 19885, April 23, 1997). This final rule does not contain any 
information collections subject to OMB approval under the Paperwork 
Reduction Act (PRA), 44 U.S.C. 3501 et seq., nor does it require any 
special considerations under Executive Order 12898, entitled Federal 
Actions to Address Environmental Justice in Minority Populations and 
Low-Income Populations (59 FR 7629, February 16, 1994).
    Since tolerances and exemptions that are established on the basis 
of a petition under section 408(d) of FFDCA, such as the tolerance in 
this final rule on hops, dried cones, do not require the issuance of a 
proposed rule, the requirements of the Regulatory Flexibility Act (RFA) 
(5 U.S.C. 601 et seq.) do not apply to this tolerance. The tolerance on 
apples, however, was initiated by an EPA proposal and thus the RFA is 
applicable. Pursuant to the RFA, the Agency hereby certifies that the 
apple tolerance will not have significant negative economic impact on a 
substantial number of small entities. Establishing a pesticide 
tolerance or an exemption from the requirement of a pesticide tolerance 
is, in effect, the removal of a regulatory restriction on pesticide 
residues in food and thus such an action will not have any negative 
economic impact on any entities, including small entities.
    This final rule directly regulates growers, food processors, food 
handlers, and food retailers, not States or tribes, nor does this 
action alter the relationships or distribution of power and 
responsibilities established by Congress in the preemption provisions 
of section 408(n)(4) of FFDCA. As such, the Agency has determined that 
this action will not have a substantial direct effect on States or 
tribal governments, on the relationship between the national government 
and the States or tribal governments, or on the distribution of power 
and responsibilities among the various levels of government or between 
the Federal Government and Indian tribes. Thus, the Agency has 
determined that Executive Order 13132, entitled Federalism (64 FR 
43255, August 10,

[[Page 68173]]

1999) and Executive Order 13175, entitled Consultation and Coordination 
with Indian Tribal Governments (65 FR 67249, November 9, 2000) do not 
apply to this final rule. In addition, this final rule does not impose 
any enforceable duty or contain any unfunded mandate as described under 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 
104-4).
    This action does not involve any technical standards that would 
require Agency consideration of voluntary consensus standards pursuant 
to section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 
note).

VII. Congressional Review Act

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

List of Subjects in 40 CFR Part 180

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

    Dated: December 8, 2009.
Lois Rossi,
Director, Registration Division, Office of Pesticide Programs.

0
Therefore, 40 CFR chapter I is amended as follows:

PART 180--[AMENDED]

0
1. The authority citation for part 180 continues to read as follows:

    Authority: 21 U.S.C. 321(q), 346a and 371.

0
2. In Sec. 180.421 the table in paragraph (a) is amended by revising 
the entry for ``Apple'' and by alphabetically adding the entry for 
``Hop, dried cones'' to read as follows:


Sec.  180.421  Fenarimol; tolerances for residues.

    (a) * * *

----------------------------------------------------------------------------------------------------------------
                            Commodity                                            Parts per million
----------------------------------------------------------------------------------------------------------------
Apple............................................................                                            0.3
                                                    * * * * *
Hop, dried cones.................................................                                            5.0
                                                    * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. E9-30371 Filed 12-22-09; 8:45 am]
BILLING CODE 6560-50-S