

[Federal Register: December 6, 2006 (Volume 71, Number 234)]
[Rules and Regulations]               
[Page 70667-70670]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06de06-8]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[EPA-HQ-OPP-2006-0175; FRL-8084-2]

 
Pesticides; Food Packaging Treated with a Pesticide

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This rule excepts from the definitions of ``pesticide 
chemical'' and ``pesticide chemical residue'' under FFDCA section 
201(q), food packaging (e.g. paper and paperboard, coatings, adhesives, 
and polymers) that is treated with a pesticide as defined in the 
Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) section 
2(u). As a result, such ingredients in food packaging treated with a 
pesticide are exempt from regulation under FFDCA section 408 as 
pesticide chemical residues. Further, a food that bears or contains 
such ingredients are not subject to enforcement by the Food and Drug 
Administration (FDA) under section 402(a)(2) (B) of the FFDCA since the 
ingredients are not pesticide chemical residues. Instead, such 
ingredients are subject to regulation by the FDA as food additives 
under FFDCA section 409. FDA generally regulates such food additives in 
food packaging as food contact substances under FFDCA, section 409(h). 
This rule expands the scope of the provision in 40 CFR 180.4 which 
currently applies only to food packaging impregnated with an insect 
repellent - one type of pesticide. This rule, as with the rule it 
amends, only applies to the food packaging materials themselves; it 
does not otherwise limit EPA's FFDCA jurisdiction over pesticides or 
limit FDA's jurisdiction over substances subject to FDA regulation as 
food additives. EPA, in consultation with FDA, believes this rule will 
eliminate the duplicative FFDCA jurisdiction and economize Federal 
government resources while continuing to protect human health and the 
environment. Under the Federal Insecticide, Fungicide and Rodenticide 
Act (FIFRA), EPA still regulates the food packaging as an inert 
ingredient of the pesticide product and still regulates the pesticide 
active ingredient in the treated food packaging under both FIFRA and 
the FFDCA.

DATES: This direct final rule is effective February 5, 2007 without 
further notice unless EPA receives adverse comments in writing. Any 
comments must be received on or before January 5, 2007. If EPA receives 
adverse comments, EPA will publish a timely withdrawal in the Federal 
Register informing the public that this direct final rule will not take 
effect.

ADDRESSES: Submit your comments, identified by docket identification 
(ID) number EPA-HQ-OPP-2006-0175, 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 
Building), 2777 S. Crystal Drive, Arlington, VA. Deliveries are only 
accepted during the Docket's normal hours of operation (8:30 a.m. to 4 
p.m., Monday through Friday, excluding legal holidays). Special

[[Page 70668]]

arrangements should be made for deliveries of boxed information. The 
Docket telephone number is (703) 305-5805.
    Instructions: Direct your comments to docket ID number EPA-HQ-OPP-
2006-0175. EPA's policy is that all comments received will be included 
in the docket without change and may be made available on-line at 
http://www.regulations.gov, including any personal information 

provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through regulations.gov or e-
mail. The Federal regulations.gov website is an ``anonymous access'' 
system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through 
regulations.gov, your e-mail address will be automatically captured and 
included as part of the comment that is placed in the docket and made 
available on the Internet. If you submit an electronic comment, EPA 
recommends that you include your name and other contact information in 
the body of your comment and with any disk or CD-ROM you submit. If EPA 
cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
comment. Electronic files should avoid the use of special characters, 
any form of encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the docket index. 
Although listed in the index, some information is not publicly 
available, e.g., 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 either 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 
Building), 2777 S. Crystal Drive, Arlington, VA. The hours of operation 
of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through 
Friday, excluding legal holidays. The Docket telephone number is (703) 
305-5805.

FOR FURTHER INFORMATION CONTACT: Mari L. Duggard, Biopesticides and 
Pollution Prevention Division (7511P), Office of Pesticide Programs, 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460-0001; telephone number: (703) 308-0028; fax 
number: (703) 308-7026; e-mail address: duggard.mari@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 a 
manufacturer/wholesaler of sanitary food packaging products or are a 
pesticide manufacturer. Potentially affected entities may include, but 
are not limited to:
     Pesticide manufacturing (NAICS 32532)
     Food packaging manufacturers (NAICS 32222)
    This listing is not intended to be exhaustive, but rather provides 
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. To determine 
whether you or your business may be affected by this action, you should 
carefully examine the applicability provisions in 40 CFR 180.4. 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. What Should I Consider as I Prepare My Comments for EPA?

    1. Docket. EPA has established a docket for this action under 
docket ID number EPA-HQ-OPP-2006-0175. Publicly available docket 
materials are available either in the electronic docket at http://www.regulations.gov
, or, if only available in hard copy, at the Office 

of Pesticide Programs (OPP) Regulatory Public Docket in Rm. S-4400, One 
Potomac Yard (South Building), 2777 S. Crystal Drive Arlington, VA. The 
hours of operation of this Docket Facility are from 8:30 a.m. to 4 
p.m., Monday through Friday, excluding legal holidays. The Docket 
telephone number is (703) 305-5805.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
    i. Identify the document by docket ID number and other identifying 
information (subject heading, Federal Register date, and page number).
    ii. Follow directions. The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    vi. Provide specific examples to illustrate your concerns and 
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period 
deadline identified.

II. Background

A. What Action is the Agency Taking?

    EPA has received applications for the registration of pesticides 
under FIFRA that, as proposed, will be applied to food packaging 
materials. These pesticides are generally intended to function as 
alternatives to more costly and more toxic applications of insecticides 
in food storage and retail establishments. The regulatory framework for 
this use of pesticides raises a number of complex jurisdictional issues 
for EPA and FDA.\1\ Because the treated packaging materials will be 
sold to food distributors for the purpose of controlling pest 
infestations, as well as for packaging food, the pesticide treated food 
packaging materials will be subject to the pesticide product 
registration requirements of section 3 of FIFRA. Under FIFRA, the 
components of pesticides are either active ingredients or inert 
ingredients. Active ingredients are those which, among other things, 
will ``prevent, destroy, repel or mitigate any pest.'' (FIFRA section 
2(a)) Inert ingredients are ingredients ``which are not active.'' 
(FIFRA section 2(m)). Thus, the components of the food packaging 
(paperboards, coatings, etc.) become inert ingredients of a pesticide 
product

[[Page 70669]]

under FIFRA whenever the food packaging is treated with a pesticide 
active ingredient and is distributed or sold with the purpose of 
controlling pests.\2\ Such inert ingredients are not used for a 
pesticidal purpose in the production, storage, processing, or 
transportation of food. However, as inert ingredients, these components 
of food packaging are also subject to regulation as ``pesticide 
chemical residues'' under FFDCA section 408.
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    \1\This rule does not include within its scope substances which 
may be regulated as pesticides under FIFRA that are used to prevent, 
destroy, repel or mitigate microorganisms when such substances are 
included for such use in or are applied for such use on food 
packaging (without regard to whether the substances are intended to 
have an ongoing effect on any portion of the packaging) (see FFDCA 
section 201(q)(1)(B)(ii) which excludes such substances from the 
definition of ``pesticide chemical''). Because such substances are 
already excluded from the definition of pesticide chemical residue, 
it is unnecessary to address these substances in this rule.
    \2\It is important to understand that this rule only applies to 
a very small subset of food packaging materials: pesticide-treated 
food packaging that is distributed or sold with the purpose of 
controlling pests. Food packaging that is not distributed or sold to 
control pests is not a pesticide and is not subject to this rule. 
For example, packaged products that are simply treated with 
pesticides by food distributors, retailers or homeowners solely to 
control pests on site do not themselves become pesticides simply as 
a result of such applications. Rather, the product itself must be 
distributed with the purpose of providing pest control to become a 
pesticide. The treated packaging materials addressed in this rule 
are those that are sold for the express purpose of providing ongoing 
protection from pests that may contaminate the products made with 
the treated packaging.
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    Under section 408 of the FFDCA, any pesticide chemical residue in 
or on food is deemed unsafe, unless EPA has established a tolerance or 
tolerance exemption that covers the pesticide chemical residue. This is 
true even though FDA may have previously issued regulations under 
section 409 of FFDCA permitting the use of these materials in food 
packaging that has not been treated with a pesticide. As a result, the 
same food packaging materials would be subject to regulation under 
FFDCA by both Agencies. EPA is taking today's action in order to give 
FDA jurisdiction under the FFDCA over the inert ingredients in food 
packaging treated with a pesticide as food additives. Consequently, EPA 
would no longer have jurisdiction over such substances as pesticide 
chemicals under the FFDCA since a pesticide chemical and a pesticide 
chemical residue are excluded from the definition of food additive in 
FFDCA section 201(s). Given FDA's expertise and experience in 
regulating the components of food packaging, EPA, in consultation with 
FDA, believes this rule will eliminate the duplicative FFDCA 
jurisdiction and economize Federal government resources while 
continuing to protect human health and the environment without 
additional regulatory oversight by EPA.
    In 1998, EPA consciously limited the exception at 40 CFR 180.4 to 
food packaging materials impregnated with an insect repellent, since at 
the time of promulgation EPA had only received an application for a 
pesticide product containing an insect repellent. EPA has now received 
applications for other treated food packaging products that contain 
active ingredients that are not insect repellents and will not be 
applied through impregnation of the materials. EPA, in consultation 
with FDA, believes it is appropriate to extend the 1998 rule to give 
FDA sole jurisdiction under the FFDCA over the inert ingredients in 
such food packaging products without regard to the application 
technique and mode of action of the active ingredients in such 
products. Again, this action does not affect EPA's jurisdiction under 
section 408 over ingredients other than the packaging materials in such 
products (including the pesticide active ingredient), nor does it 
affect EPA's jurisdiction under FIFRA to regulate such products.

B. What Is the Agency's Authority for Taking This Action?

    Section 201(q)(3) of FFDCA, as amended by the Food Quality 
Protection Act (FQPA), allows the Administrator, under specified 
conditions, to except certain substances from the definition of 
``pesticide chemical'' or ``pesticide chemical residue'' if:
    A. Its occurrence as a residue on or in a raw agricultural 
commodity or processed food is attributable primarily to natural causes 
or human activities not involving the use of any substance for a 
pesticidal purpose in the production, storage, processing, or 
transportation of any raw agricultural commodity or processed food, 
and:
    B. The Administrator, after consultation with the Secretary, 
determines that the substance more appropriately should be regulated 
under one or more provisions of this Act other than sections 
402(a)(2)(B) and 408.
    With today's rule, EPA is excepting from the definition of 
``pesticide chemical'' substances that are inert ingredients in food 
packaging treated with a pesticide, when such ingredients are the 
components of the food packaging (e.g. paper and paperboard, coatings, 
adhesives and polymers).
    It is important to note that this rule does not affect EPA's 
regulation of such substances as inert ingredients under FIFRA. EPA 
will continue to exercise jurisdiction over these substances when they 
are used as inert ingredients in food packaging material that is 
intended to produce a pesticidal effect. The materials that make up 
food packaging treated with a pesticide may serve one of two purposes: 
1. To control pests, or 2. to be one of the materials that make up the 
container for food. As a result of this rule, under FFDCA, EPA will 
continue to regulate the materials which control pests and FDA will 
regulate the materials that make up the food packaging material. 
Consistent with EPA's pesticide registration regulations, EPA will not 
issue a registration under FIFRA for pesticide products containing food 
packaging inert ingredients if the presence of these ingredients in or 
on food is not authorized or permitted by FFDCA and the implementing 
regulations.
    EPA, in consultation with FDA, believes that section 201(q)(3) is 
applicable to inert ingredients in pesticide treated food packaging 
materials that are the components of the food packaging (paperboard, 
coatings, etc). When such inert ingredients are the components of the 
food packaging itself, EPA believes the occurrence of these substances 
as residues in or on food would be appropriately excepted from the 
definition of ``pesticide chemical'' or ``pesticide chemical residue'' 
because such substances are not attributable primarily to the use of 
the substances for a pesticidal purpose in the production, storage, 
processing or transportation of food. Rather, the presence of such 
substances as residues in food is primarily attributable to their use 
for purposes of packaging food. For this reason, and because of FDA's 
considerable experience in regulating such substances found in food 
packaging, EPA, after consulting with FDA, believes it is appropriate 
for FDA to regulate these inert ingredients under section 409 of FFDCA.
    As noted, this regulation excepts from the definition of 
``pesticide chemical'' and ``pesticide chemical residue'' any inert 
ingredient that is a component of food packaging material treated with 
a pesticide. EPA, in consultation with FDA, believes the identity of 
the pesticide in or on the packaging material is not relevant to a 
determination under section 201(q)(3) regarding whether it is 
appropriate to except an inert ingredient from the definition of 
pesticide chemical or pesticide chemical residue. As noted above, that 
determination turns only on whether: 1. the occurrence of the residues 
of the substance in or on food is attributable primarily to the use of 
substances for a pesticidal purpose in the production, storage, 
processing or transportation of food; and 2. whether it is more 
appropriate to regulate such substances under another provision of 
FFDCA other than sections 402(a)(2)(B) and 408. Thus, EPA has 
determined that inert ingredients that are the components of the food 
packaging material in pesticide treated food packaging are more 
appropriately regulated by FDA under FFDCA. This rule therefore amends 
40 CFR 180.4 to

[[Page 70670]]

extend to any food packaging materials treated with a pesticide.
    EPA is issuing this action as a direct final rule without prior 
proposal because the Agency believes that this action is not 
controversial and will not result in any adverse comments. EPA 
previously received no adverse comments when it issued the current rule 
at 40 CFR 180.4 to except food packaging materials impregnated with 
insect repellents from EPA jurisdiction under section 408. Because this 
amendment to Sec.  180.4 likewise only applies to the food packaging 
materials, and not to the pesticide active ingredient used in such 
products, EPA believes this action is similarly non-controversial The 
Agency also believes that it is important to make this action effective 
as soon as possible, 1. in order to address the current, unnecessary 
overlap in jurisdiction between EPA and FDA under FFDCA; and 2. to 
allow the Agency to act expeditiously on pending applications for 
registration by eliminating the need for developing numerous individual 
tolerance exemptions for the components of the packaging material. If 
no relevant adverse comment is submitted within 30 days of publication, 
this action will become effective 60 days after publication without any 
further action by the Agency. If, however, a relevant adverse comment 
is received during the comment period, this final rule will be 
withdrawn and the public comments received will be addressed in a 
subsequent final rule, or EPA may request additional public comments.
    For the reasons set forth above, EPA believes that it is 
appropriate to issue this rule as direct final rule. In addition, this 
rule also conforms with the ``good cause'' exemption under section 
553(b)(B) of the Administrative Procedure Act (5 U.S.C. 553(b)(B)), 
which allows agencies to issue an action without additional notice and 
comment if further notice and comment would be unnecessary.

III. Statutory and Executive Order Reviews

    As an exception, this action does not impose any regulatory 
obligations. Under Executive Order 12866 entitled Regulatory Planning 
and Review (58 FR 51735, October 4, 1993), it has been determined that 
this rule is not ``significant'' and is not subject to OMB review. This 
rule does not contain any information collections subject to OMB 
approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et. 
Seq., or impose any enforceable duty or contain any unfunded mandate as 
described under Title II of the Unfunded Mandates Reform Act of 1995 
(UMRA) (Pub. L. 104-4). This rule has no federalism or tribal 
implications, because it will not have substantial direct effects on 
States or Indian tribes, on the relationship between the Federal 
Government and the States or Indian tribes, or on the distribution of 
power and responsibilities among the various levels of government or 
between the Federal Government and Indian tribes, as specified in 
Executive Orders 13132 (entitled Federalism, 64 FR 43255, August 10, 
1999) and 13175 (entitled Consultation and Coordination with Indian 
Tribal Governments, 65 FR 67249, November 6, 2000. Nor does this rule 
raise issues that require 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), or require OMB review in accordance with Executive Order 
13045, entitled Protection of Children from Environmental Health Risks 
and Safety Risks (62 FR 19885, April 23, 1997). This rule is also not 
subject to Executive Order 13211, entitled Actions Concerning 
Regulations That Significantly Affect energy Supply, Distribution or 
Use (66 FR 28355, May 22, 2001), because this action is not expected to 
affect energy supply, distribution, or use. In addition, this action 
does not involve any standards that would require Agency consideration 
pursuant to section 12(d) of the National Technology Transfer and 
Advancement Act (NTTAA) (Pub. L. 104-113).
    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the 
Agency hereby certifies that this regulatory action will not have a 
significant economic impact on a substantial number of small entities, 
because this regulatory action is an exemption and imposes no 
regulatory obligations. EPA will provide this information to the Small 
Business Administration's office of Advocacy upon request.

IV. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the Agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and 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 the rule in the Federal Register. This 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 record-
keeping requirements.

    Dated: November 14, 2006.
Janet L. Andersen,
Division Director, Biopesticides and Pollution Prevention 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), 346(a), and 371

0
2. Section 180.4 is amended by revising paragraph (a) to read as 
follows:


Sec.  180.4  Exceptions.

* * * * *
    (a) General. Inert ingredients in food packaging treated with a 
pesticide, when such inert ingredients are the components of the food 
packaging material (e.g. paper and paperboard, coatings, adhesives, and 
polymers).
* * * * *
[FR Doc. E6-20270 Filed 12-05-06; 8:45 am]

BILLING CODE 6560-50-S
