

[Federal Register: July 11, 2007 (Volume 72, Number 132)]
[Notices]               
[Page 37771-37779]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11jy07-93]                         

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPP-2007-0181; FRL-8118-4]

 
Notice of Hearing on Request to Reduce Pre-Harvest Interval (PHI) 
for EBDC Fungicides on Potatoes

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Hearing.

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SUMMARY: The EPA is issuing this Hearing Notice under the authority set 
forth in 40 CFR part 164 subpart D (subpart D hearing). A subpart D 
hearing is required when a registrant wants to modify an existing 
cancellation order that was issued after the opportunity for a hearing. 
In 1992, EPA issued a Notice of Intent to Cancel (NOIC) registrations 
containing EBDCs for use on certain crops. The crop at issue for this 
hearing notice is potatoes. The NOIC stated that use of EBDCs on 
potatoes would be canceled unless the registrants modified their 
pesticide product labels. At issue in this notice is the 1992 
requirement to extend the preharvest interval (PHI) to reduce the 
dietary risk. EPA issued the 1992 NOIC with an opportunity for a 
hearing. EPA and the registrants reached a settlement, including the 
agreement to amend labels to extend the PHI to 14 days. The purpose of 
this notice is to announce that EPA has determined that the petition 
requesting a modification of the cancellation order has merit and to 
announce an opportunity for a hearing.

DATES: Requests to participate in the hearing announced by this notice 
must be received by the Office of the Hearing Clerk at the address 
given below by August 10, 2007. A pre-hearing conference will be held 
and the evidentiary hearing will commence as soon thereafter as 
practicable, according the schedule outlined herein.

ADDRESSES: Submit your request to participate in the hearing, 
identified by docket identification (ID) number EPA-HQ-OPP-2007-0181, 
by the following method:
     Mail: Office of Hearing Clerk, USEPA, 1200 Pennsylvania 
Ave., N.W., Washington, DC 20460.
     Hand delivery: Office of the Hearing Clerk, 1099 14th St., 
NW., Suite 350, Washington, DC 20005.

[[Page 37772]]


FOR FURTHER INFORMATION CONTACT: Kevin Costello, Special Review and 
Reregistration Division (7508P), Office of Pesticide Programs, 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460-0001; telephone number: (703) 305-5026; fax 
number: (703) 308-7070; e-mail address: costello.kevin@epa.gov or 
Michele Knorr, Office of General Counsel, Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; 
telephone number: (202) 564-5631; fax number: e-mail address: 
knorr.michele@epa.gov.


SUPPLEMENTARY INFORMATION:

I. General Information

    The EPA is issuing this Hearing Notice under the authority set 
forth in 40 CFR part 164 subpart D (subpart D hearing). A subpart D 
hearing is required when a registrant wants to modify an existing 
cancellation order that was issued after the opportunity for a hearing. 
In 1992, EPA issued a NOIC registrations containing EBDCs\1\ for use on 
certain crops. The crop at issue for this hearing notice is potatoes. 
The NOIC stated that use of EBDCs on potatoes would be canceled unless 
the registrants modified their pesticide product labels. At issue in 
this notice is the 1992 requirement to extend the preharvest interval 
(PHI)\2\ to reduce the dietary risk. EPA issued the 1992 NOIC with an 
opportunity for a hearing. EPA and the registrants reached a 
settlement, including the agreement to amend labels to extend the PHI 
to 14 days.
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    \1\ EBDC refers to products containing ethylene 
bisdithiocarbamate.
    \2\ PHI refers to the number of days between the last 
application of a pesticide and when the crop can be harvested.
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    On December 26, 1996, the EBDC/ETU Task Force\3\ (Task Force) 
submitted its first request to modify the existing cancellation order 
for the use of three products containing EBDC on potatoes: mancozeb, 
maneb, and metiram. In order to reduce otherwise-unacceptable dietary 
risks, the cancellation order restricted the PHI for potatoes to 14 
days in 37 States.
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    \3\ The EBDC Task Force represents registrants who hold EBDC 
registrations. The current members of the Task Force are Dow 
AgroSciences, DuPont, Griffin, Cerexagri, and BASF.
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    In this request, the Task Force requested that the PHI be reduced 
from 14 days to 3 days nationwide to address the spread of the late 
blight disease (Phytophthora infestans) in potatoes. Late blight is a 
fungal disease that caused the infamous ``Irish Potato Famine'' in the 
1840s. If not adequately controlled, this disease is capable of totally 
destroying the crop in the field (foliar blight phase) and/or in 
storage (tuber rot phase). For the foliar phase of the disease, the 
primary source of inoculum is infected tubers, which are present in 
cull piles, or remain in the soil after harvest, or are used as seed-
pieces for new plantings. Spores produced on foliage and stems during 
the foliar phase of the disease serve as the primary inoculum for tuber 
infections, which generally occur prior to harvest. Infected potatoes 
placed in storage lots can then serve as a source of inoculum for the 
storage rot phase of the disease.
    On August 25, 2003, the Task Force resubmitted its request to the 
Agency as part of the EBDC reregistration process. Subsequently, the 
Agency informed the Task Force that EPA had to consider the impact of 
the Food Quality Protection Act of 1996 (FQPA) amendments to the 
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the 
Federal Food, Drug, and Cosmetic Act (FFDCA) before any action could be 
taken on the request. The Agency decided to consider the request after 
completion of the Reregistration Eligibility Decision (RED) process for 
the EBDCs\4\. To date, EPA has not taken any substantial actions on the 
Task Force request. This Notice represents EPA's determination that the 
2003 request to modify the existing cancellation order merits a subpart 
D hearing.
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    \4\ Mancozeb was first registered in 1948. Maneb was first 
registered in 1962. Metiram was first registered in 1948.
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    Under subpart D of 40 CFR part 164, the Task Force submission 
constitutes a petition to modify the final cancellation order 
concerning EBDC pesticide products. Such a petition may not be granted 
without an opportunity for a formal adjudicatory hearing in front of an 
Administrative Law Judge. EPA has concluded that the submissions by the 
Task Force provide a basis for modification of the order canceling EBDC 
products. This Notice (1) announces that EPA has decided to hold a 
hearing regarding the petition to modify the existing cancellation 
order as it applies to the use of products containing EBDCs (mancozeb, 
maneb, and metiram) on potatoes and the allowance of a 3-day, rather 
than a 14-day PHI, (2) specifies the issues of fact and law to be 
considered at that hearing, (3) identifies what steps interested 
persons need to take if they wish to participate in the hearing, and 
(4) establishes a schedule for the hearing.

A. Does this Action Apply to Me?

    This action is directed to the public in general, and may be of 
interest to a wide range of stakeholders including environmental, human 
health, and agricultural advocates; the chemical industry; pesticide 
users; and members of the public interested in the sale, distribution, 
or use of pesticides. Since others also may be interested, the Agency 
has not attempted to describe all the specific entities that may be 
affected by this action. If you have any questions regarding the 
applicability of this action to a particular entity, consult the person 
listed under FOR FURTHER INFORMATION CONTACT.

B. How Can I Get Copies of this Document and Other Related Information?

    1. Docket. EPA has established a docket for this action under 
docket ID number EPA-HQ-OPP-2007-0181. 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. Electronic access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/.


II. Background

A. What Action is the Agency Taking?

    The purpose of this document is to announce that the Agency has 
determined that the petition requesting a modification of the 
cancellation order has merit and that an opportunity for a hearing is 
being announced.

B. What is the Agency's Authority for Taking this Action?

    When the Agency receives an application to permit use of a 
pesticide in a manner inconsistent with a cancellation order issued 
after a cancellation proceeding has commenced (i.e., after publication 
of a notice of intent to cancel and receipt of a request for a hearing 
on that notice), that application will be treated by the Agency as a 
petition to modify the cancellation order. Because of the opportunity 
for a formal adjudicatory hearing, which precedes entry of such a final 
cancellation order, EPA has

[[Page 37773]]

determined that such an order should not be modified or rescinded 
without affording interested parties a similar notice and opportunity 
for hearing concerning such modification or rescission. The procedures 
governing all applications to modify or reverse a previous final 
cancellation order are set forth in 40 CFR part 164, subpart D, Sec.  
164.130 through 164.133.
    The Administrator has determined that the applicant has met the 
criteria for a subpart D hearing. This notice sets forth the 
determination, the rationale for that determination, a description of 
the issues of fact and law to be adjudicated in the hearing, and a 
schedule for the hearing.

III. Regulatory History

    EBDC fungicides currently registered under FIFRA for food uses 
include mancozeb, maneb, and metiram. The following is a summary of the 
regulatory history of the EBDCs.
    In 1977, the Agency initiated a Rebuttable Presumption Against 
Registration\5\ (RPAR), which later became the Special Review Program, 
based on concerns that EBDCs and ethylene thiourea (ETU) posed 
potential significant risks to humans and the environment. In 1982, EPA 
concluded the RPAR and announced measures designed to mitigate 
potential unreasonable adverse effects pending the development of 
additional data. At that time, EPA deferred a decision on one risk of 
concern, carcinogenicity. The decision was deferred to allow for the 
development of residue data in order to better characterize the risk. 
(See 61 FR 42244, August 14, 1996).
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    \5\ RPAR was a regulatory review process used prior to Special 
Review to consider potential risks that might warrant the 
cancellation of the registration. The regulations were changed in 
the mid-1980's to review pesticide products (leading to an ultimate 
determination of whether their use or uses pose unreasonable adverse 
effects to humans or the environment) and the procedures for the 
Special Review process. The regulatory changes were based primarily 
on changes made to FIFRA in 1978 and on the experience acquired by 
EPA in regulating pesticides pursuant to the RPAR process. See 40 
CFR part 154 for the procedures associated with Special Review.
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    In 1987, the Agency placed the EBDCs into Special Review because of 
concerns that the common metabolite, ETU, could cause carcinogenic and 
adverse developmental and thyroid effects in humans. The EBDCs 
metabolize to ETU in the body and all degrade to ETU in the 
environment. (See 52 FR 27172, July 17, 1987).
    In response to the Agency placing the EBDCs in Special Review, the 
four technical registrants of mancozeb, maneb and metiram requested 
that registrations be maintained for only 13 of the 55 food uses 
registered at that time and that all other uses be canceled. (See 54 FR 
50020, December 4, 1989) Shortly thereafter, the Agency approved the 
requested amendments.
    After the approval of the amendments, the Agency issued a Notice of 
Preliminary Determination\6\ (PD 2/3) that proposed canceling the uses 
on an additional three crops, including potatoes. The Agency received 
comments in response that recommended mitigation options to allow 
continued use of EBDCs on potatoes. Among these mitigation options was 
to ``(e)xtend the preharvest interval to 14 days as most growers 
already observe a 14-day interval,'' noting that ``(t)he 0-day 
preharvest interval invites contamination of tubers with fungicide 
residues,'' which could result in unacceptable dietary risks. (See 54 
FR 52158, December 20, 1989). As a result of the PD 2/3, the EPA also 
issued a proposal to revoke and reduce tolerances for the 42 deleted 
uses plus the additional three uses proposed for cancellation. (See 55 
FR 20416, May 16, 1990).
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    \6\ The PD 2/3 is the Notice of Preliminary Determination, which 
was based on information on risks and benefits received in public 
comments and on additional analyses performed since the Special 
Review process began. See 40 CFR 154.31.
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    On March 2, 1992, the Agency issued the ``Notice of Intent to 
Cancel and Conclusion of Special Review'' (PD 4)\7\ concluding that the 
relatively high estimated dietary risk outweighed the relatively low 
benefits of the use of EBDCs on potatoes. (See 57 FR 7484, March 2, 
1992). In order to allow the use on potatoes to remain, the Agency 
required certain mitigation language to be included on the label. This 
included the 14-day PHI for all but nine potato-producing states. 
Because of the presence of late blight in certain states (Connecticut, 
Florida, Maine, Massachusetts, New Hampshire, New York, Pennsylvania, 
Vermont, and Wisconsin), a 3-day PHI for use of EBDCs on potatoes was 
allowed in those states. The Agency allowed the 3-day PHI in these 
states because the data on late blight, efficacy of possible 
alternatives, and residue data allowed EPA to find that the benefits 
outweighed the risks. (See 57 FR 7484, 7526, March 2, 1992).
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    \7\ A PD 4 is issued in accordance with 40 CFR 154.33.
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    The adoption of the 14-day PHI was intended to be consistent with 
common practice in the other potato growing states at the time. (Ref. 
1). The tolerance for the EBDC fungicides was based on EBDC and ETU 
residues detected in the Market Basket Survey\8\ (MBS) of 1989-1990. As 
part of the Special Review, and in order to conduct a highly refined 
dietary exposure assessment, the EBDC registrants conducted a large-
scale MBS to determine EBDC and ETU residues in a variety of foods as 
close to the point of consumption as possible (i.e., grocery stores and 
small markets). The survey was completed in 1990 and used in the 
Special Review PD 4, which was completed in 1992. The distribution of 
14-day and 3-day PHIs was designed to best replicate the conditions 
under which the residues detected in the MBS occurred. (See 57 FR 7484, 
March 2, 1992).
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    \8\ Samples were purchased at consumer retail outlets and 
shoppers were instructed to select blemish free commodities in 
amounts similar to those purchased by typical consumers. The study 
was conducted over a 1-year period to ensure that seasonal 
differences in residues would be addressed. The samples were 
analyzed using methods that are still in use at this time.
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    Subsequently in 1996, the Agency allowed a 3-day PHI for use of 
EBDCs on potatoes in four additional states (Delaware, Michigan, Ohio, 
and Rhode Island). At the time the 1992 NOIC\9\ was issued, the Agency 
had no information suggesting that Delaware, Michigan and Ohio had a 
late blight problem and included those states among the states subject 
to a minimum 14-day PHI. Subsequent to the NOIC being issued, a group 
of registrants and growers submitted to the Agency information on late 
blight supporting a minimum 3-day PHI for Delaware, Michigan, and Ohio. 
This group requested a hearing to add these three states to the list of 
states for which a 3-day PHI was permitted. Additionally, at the time 
the Agency issued the NOIC, EPA believed that the ``New England'' 
states as well as some other states had a late blight problem and 
allowed a minimum 3-day PHI for those states. Rhode Island was 
erroneously omitted from the list of states. The Agency determined that 
in the states with substantial late blight occurrence, the benefits 
outweighed the risks associated with a 3-day PHI and amended the 
cancellation order. (See 61 FR 42244, August 14, 1996).
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    \9\ See, Settlement Agreement in In re: American Food Security 
Coalition (AFSC) et al., FIFRA Docket Nos. 646, et al.
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    During the reregistration process, EPA evaluated the 14- and 3-day 
PHIs as part of the mancozeb, maneb, and metiram REDs, which were 
completed by September 2005 as part of the FIFRA reregistration 
process. (Refs. 2, 3, and 4)\10\. The REDs noted receipt of the

[[Page 37774]]

petition to allow for a 3-day PHI in all states, but the Agency did not 
address whether the petition warranted a subpart D hearing or if the 
registration amendment requests would be granted. Through the 
reregistration process, EPA determined that the exposure that would 
result from a nationwide 3-day PHI for potatoes would be safe under the 
FFDCA reasonable certainty of no harm standard (Refs. 5, 6, and 7). In 
that analysis, the Agency assumed 67% crop treated for the use of EBDCs 
on potatoes. The 67% crop treated is a conservative overestimate for 
the actual crop treated. Even assuming a greater conservative and 
unlikely scenario of 100% crop treated, EPA believes the risk increase 
would be insignificant.
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    \10\ FIFRA section 4 requires EPA to make reregistration 
eligibility determinations for all older chemicals (those registered 
before November 1, 1984). The Agency announced these determinations 
through REDs.
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IV. Statutory and Regulatory Background

A. Standards for Granting or Maintaining a Registration

    A pesticide product may be registered or remain registered only if 
it performs its intended pesticidal function without causing 
``unreasonable adverse effects on the environment.'' (FIFRA section 
3(c)(5)). ``Unreasonable adverse effects on the environment'' is 
defined as ``(1) any unreasonable risk to man or the environment, 
taking into account the economic, social, and environmental costs and 
benefits of the use of the 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].'' 
(FIFRA section 2(bb)).
    Under FIFRA section 6, the Agency may issue a NOIC the registration 
of a pesticide product whenever it is determined that the product no 
longer satisfies the statutory criteria for registration. The Agency 
may specify particular modifications in the terms and conditions of 
registration, such as deletion of particular uses or revisions of 
labeling, as an alternative to cancellation. If an adversely affected 
person requests a hearing, the final order concerning cancellation of 
the product is not issued until after a formal administrative hearing.

B. Subpart D Proceedings

    When the Agency receives an application to permit use of a 
pesticide in a manner inconsistent with a cancellation order issued 
after a cancellation proceeding has commenced (i.e., after publication 
of a NOIC and receipt of a request for a hearing on that notice), that 
application will be treated by the Agency as a petition to modify the 
cancellation order. Because of the opportunity for a formal 
adjudicatory hearing, which precedes entry of such a final cancellation 
order, EPA has determined that such an order should not be modified or 
rescinded without affording interested parties a similar notice and 
opportunity for hearing concerning such modification or rescission. The 
procedures governing all applications to modify or reverse a previous 
final cancellation order are set forth in 40 CFR part 164, subpart D, 
Sec.  164.130 through 164.133.
    As stated previously, 40 CFR 164.131(a) provides that the 
Administrator will consider modifying a prior final cancellation order 
when he finds that:
    (1) The applicant has presented substantial new evidence which may 
materially affect the prior cancellation or suspension order and which 
was not available to the Administrator at the time he made his final 
cancellation or suspension determination and, (2) such evidence could 
not, through the exercise of due diligence, have been discovered by the 
parties to the cancellation or suspension proceeding prior to the 
issuance of the final order.
    In deciding whether or not to initiate a hearing, the Administrator 
does not need to determine that the evidence submitted by the Task 
Force would in fact justify modification of the prior order. Rather, a 
decision to initiate a hearing means only that the Administrator has 
determined that the evidence submitted, if substantiated on the record 
in the hearing, may ``materially affect'' the evidentiary rationale 
upon which the prior order was based. On the other hand, if the 
evidence submitted, even if substantiated on the record, would be 
unlikely to provide a basis for modification of the prior order, then a 
hearing would serve no purpose.
    If the Administrator determines that an applicant has met the 
criteria for a subpart D hearing, the Administrator then publishes a 
notice in the Federal Register setting forth the determination, the 
rationale for that determination, a description of the issues of fact 
and law to be adjudicated in the hearing, and a schedule for the 
hearing. The purpose of the hearing is to determine whether: (1) 
Substantial new evidence exists and (2) such substantial new evidence 
requires reversal or modification of the existing cancellation order. 
For purposes of any decision in the hearing, those portions of the 
substantive rationale for the existing order concerning which the 
applicant did not submit substantial new evidence are assumed to be 
correct. Thus, the scope of any subpart D hearing is intrinsically 
narrower than the original cancellation proceeding.
    If a hearing is requested, a notice of the hearing will be 
published in the Federal Register announcing the formal public hearing 
to be held in accordance with 5 U.S.C. 554. In such a hearing, the 
Administrative Law Judge transmits a recommended decision to the 
Administrator, who then issues a final decision retaining, modifying, 
or reversing the existing order. (See 40 CFR 164.131).

V. Submissions - Substantial New Evidence Provided by Task Force

    As stated above, the Task Forces submission constitutes a petition 
to modify the EBDC cancellation order. In order for the Agency to find 
that a subpart D hearing is warranted, it must determine:
    (1) The applicant has presented substantial new evidence which may 
materially affect the prior cancellation or suspension order and which 
was not available to the Administrator at the time he made his final 
cancellation or suspension determination and, (2) such evidence could 
not, through the exercise of due diligence, have been discovered by the 
parties to the cancellation or suspension proceeding prior to the 
issuance of the final order. (See 40 CFR 164.131(a)).
    The Task Forces 2003 petition to reduce the PHI for use of EBDCs on 
potatoes from 14 days to 3 days nationwide included a number of points 
described as ``substantial new evidence'' that could not have been 
known at the time of the cancellation order. The asserted ``substantial 
new evidence'' includes information on the spread of late blight to 
additional potato-growing states, field trial data for mancozeb and 
maneb use on potatoes and the Agency's revision of the cancer endpoint 
for EBDC breakdown product, ETU.

A. Spread of Late Blight

    The Agency has determined that the information submitted by the 
Task Force concerning the spread of late blight fungal disease 
nationally is substantial new evidence which supports the adoption of a 
nationwide 3-day PHI for EBDCs on potatoes beyond the 13 states in 
which the 3-day PHI is currently in effect. Late blight is a severe 
fungal disease, which attacks leaves of potato plants in the field, 
killing the leaves and decreasing the size and number of potato tubers. 
Late blight also attacks tubers in storage, causing them to rot. Late 
blight was once controlled by metalaxyl, until metalaxyl resistant 
strains developed.

[[Page 37775]]

The disease spreads rapidly by spores, with a new disease cycle 
occurring every 4 to 6 days. As mentioned above, the Agency was aware 
of the presence of late blight in nine states when the NOIC was 
published, and was made aware of its presence in four additional states 
soon thereafter (Ref. 7), and consequently the Agency determined that 
it was appropriate to reduce the PHI in those four states as well. The 
Task Force has since submitted new information that late blight has now 
spread nationwide. The following is background information on the 
spread of late blight and why this information is material to allowing 
a modification to the cancellation order.
    Until 1989, late blight was very rarely of concern in any potato 
producing state, due primarily to the fact that metalaxyl products 
provided virtually 100% control of the foliar phase of the disease. 
(Ref. 8). The Task Force indicated that by 2003, the Agency had granted 
FIFRA section 18 emergency exemptions for the use of products to 
control late blight in 23 states to which the disease had spread since 
the issuance of the NOIC (Ref. 9). Pesticides for which exemptions were 
granted included dimethomorph, cymoxanil, and propamocarb 
hydrochloride. State crop specialists documented the distribution of 
metalaxyl-resistant forms and grower crop damage incidents associated 
with the failure of metalaxyl to provide adequate disease control 
(Refs. 8 and 10). Metalaxyl was thus no longer regarded as an effective 
control for late blight in potatoes.
    If late blight is not adequately controlled, this disease is 
capable of totally destroying a crop of potatoes in the field (foliar 
blight phase) and\or in storage (tuber rot phase). Generally speaking, 
the number of infected tubers present at harvest is primarily a 
function of the level of foliar disease control attained during the 
growing season, especially during the latter half of the season. At 
present, even when low levels of tuber infection are detected in a 
field at harvest, growers typically need to sell potatoes right away, 
rather than store them and risk losing a large number of stored 
potatoes (Refs. 8 and 10).
    Once plants are initially infected, the foliar phase of the disease 
can rapidly progress by producing multiple generations of spores, which 
can be transported up to 150 miles in the air as well as locally in 
water or air. One spore cycle can occur in a 4- to 6-day period. In 
addition to destroying aboveground plant parts, the foliar blight phase 
of the disease can cause a significant decrease in the size and number 
of marketable potatoes. Accordingly, even the planting of a single 
infected tuber can quickly result in extensive crop losses and a high 
percentage of tuber infections over a large area (Refs. 8 and 10).
    The foliar phase of the disease is favored by cool and moist 
conditions, which commonly occur in most potato production states. Long 
periods of high relative humidity (over 90%) with night temperatures of 
50 to 60[deg] F and day temperatures of 60 to 80[deg] F are favorable 
for disease development. The spread and control of this disease is 
complicated by the fact that most fungal forms are also capable of 
infecting and reproducing on tomatoes as well as certain other 
solanaceous plants (including certain weeds). It is suspected that the 
new, sexually reproducing forms of late blight were introduced to the 
United States through the importation of infected tomatoes from Mexico 
(Ref.11). The potential for spreading the disease via infected tomato 
transplants or fruits is of particular concern, in light of the 
widespread homeowner gardening and composting practices associated with 
tomatoes.
    Most of the harvested potatoes in the United States go directly 
into storage and are gradually released into the marketplace over a 
period of 1 to 10 months. Many of the existing storage facilities are 
conducive to the rapid spread of tuber rot, especially during wet or 
humid weather. Potato late blight specialists agree that, under these 
storage conditions, even if only a small percentage of any lot of 
stored potatoes is infected with tuber rot, it is likely that the 
majority of them will spoil prior to their release into the 
marketplace. When this occurs, the whole lot is generally considered 
unmarketable. The stored tuber spoilage problem can be due solely to 
late blight, or to a series of tuber rots initiated by late blight 
infected tubers and followed by bacterial soft rots, which develop in 
response to the anaerobic conditions created by the development of late 
blight tuber rot (Refs. 8 and 10).

B. Field Trial Data

    As mentioned above, the potential exposure to humans that could 
result from the use of EBDCs on potatoes was considered during 
reregistration and was found to meet the standard for reregistration. 
EPA was able to make this determination because of the new information 
submitted by the Task Force as well as revised risk assessment 
methodologies. The residues detected in the 1989-1990 MBS were 
considered to reflect common practices that included either 14-day or 
3-day PHIs for potatoes treated with EBDC fungicides. Additional field 
trial data submitted by the Task Force in support of its 2003 petition 
are available for two of the three EBDCs, which further support the 
establishment of a nationwide 3-day PHI. The following describes the 
field trial data available for each EBDC chemical.
    1. Mancozeb. The Mancozeb Task Force conducted residue trials on 
potatoes in 1995-1996. A summary of relevant residue data for mancozeb 
and ETU are presented in Table 1 below. The maximum mancozeb value 
found in residue studies using the maximum seasonal rate for mancozeb 
on potatoes with a 3-day PHI was 0.1 parts per million (ppm) and for a 
14-day PHI was 0.02 ppm. The average mancozeb value with a 3-day PHI 
was 0.02 ppm and with a 14-day PHI was 0.01 ppm.
    From this newly submitted data, the Agency has now determined that 
reduction of the PHI to 3 days for the entire United States would not 
result in mancozeb residues exceeding the reassessed tolerance of 0.2 
ppm for potatoes. A separate dietary risk assessment was not required 
to support the PHI change request because existing dietary assessments 
used for the EBDC REDs showed no appreciable differences in the residue 
levels at different pre-harvest intervals. Additionally, as stated 
earlier, even if the percent crop treated rose from 67% to 100% the 
resulting increase in risk would be insignificant. Therefore, the 
Agency found that the use of EBDCs on potatoes with a 3-day PHI would 
meet the FFDCA safety determination (Ref. 12).
    EPA used monitoring data from the MBS in the dietary risk 
assessment for the reregistration eligibility decision. Based on these 
new field trial data, EPA has now determined that the MBS is 
representative of the residues that may be expected in potato tubers at 
PHIs ranging from 3 to 14 days.
    Low residues are expected because mancozeb is applied to the 
foliage, and metabolism studies have not shown translocation of 
mancozeb throughout the plant (Ref. 6). Therefore, it is not surprising 
that there are minimal residues on the day of application, as the 
residues would not transport from the potato leaves to the tubers below 
the ground. The minimal residues that are present on the tubers may be 
from some soil that adhered to the tuber when harvested.

[[Page 37776]]



                            Table 1.-- Summary of Mancozeb Residue Data for Potatoes (MRIDs 44167901, 40913301, and 41091601)
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                                                         Single                          Seasonal      Pre-harvest           Residues Found, ppm
                     Location                      Application Rate,     No. of     Application Rate,   Intrerval, -------------------------------------
                                                        lb ai/A       Applications       lb ai/A           days          Mancozeb             ETU
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CA                                                         1.6 + 2.4             5               11.2            0              < 0.05              < 0.01
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CA                                                         1.6 + 2.4             5               11.2            0              < 0.05              < 0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
WI                                                               1.6             7               11.2            3              < 0.02              < 0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
FL                                                               1.6             7               11.2            3               0.03              < 0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
FL                                                               1.6             7               11.2            3               0.03              < 0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
PA                                                               1.6             7               11.2            3              < 0.02              < 0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
PA                                                               1.6             7               11.2            3              < 0.02              < 0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
MO                                                               1.6             7               11.2            3               0.02              < 0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
MO                                                               1.6             7               11.2            3              < 0.02              < 0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
MO                                                               1.6             7               11.2            3                0.1              < 0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
MO                                                               1.6             7               11.2            3               0.03              < 0.01
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NY                                                               1.6             7               11.2            3              < 0.02              < 0.01
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MN                                                               1.6             7               11.2            4              < 0.02              < 0.01
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MN                                                               1.6             7               11.2            4              < 0.02              < 0.01
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CA                                                         1.6 + 2.4             5               11.2            5              < 0.05               0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA                                                               1.6             5               11.2            5              < 0.05               0.02
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA                                                               1.6             7               11.2           14              < 0.02               0.02
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA                                                               1.6             7               11.2           14               0.02              < 0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
WA                                                               1.6             7               11.2           14              < 0.02              < 0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA                                                               1.6             7               11.2           14              < 0.02               0.02
--------------------------------------------------------------------------------------------------------------------------------------------------------
UT                                                               1.6             7               11.2           14              < 0.02              < 0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
UT                                                               1.6             7               11.2           14              < 0.02              < 0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
ID                                                               1.6             7               11.2           14              < 0.02              < 0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
ID                                                               1.6             7               11.2           14              < 0.02              < 0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA                                                         1.6 + 2.4             5               11.2           15              < 0.05               0.03
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA                                                         1.6 + 2.4             5               11.2           15              < 0.05               0.02
--------------------------------------------------------------------------------------------------------------------------------------------------------

    2. Maneb. In response to EPA's requests for data in the late 1980s 
and early 1990s, one registrant, Elf Atochem North America, Inc. 
submitted data in 1994 pertaining to the magnitude of maneb residues in 
or on potatoes. The data were determined to be insufficient to fulfill 
the total field trial requirement, because ``field trials were not 
conducted in states where a 3-day PHI is allowed.'' However, they did 
indicate that residues of maneb and ETU from maneb will not exceed the 
established tolerance of 0.1 ppm in or on potatoes harvested 1 day 
following the last of eight foliar applications of the dry flowable 
formulation for a total seasonal rate of 12.8 lb active ingredient/Acre 
(ai/A) because the combined residues of maneb and its metabolite ETU 
were nondetectable (< 0.06 to < 0.08 ppm) in or on potatoes (Refs. 13, 14 
and 5).
    Available field trial data for maneb and ETU in or on potatoes were 
among the data used in conjunction with MBS from 1989-1990 to assess 
acute and chronic dietary (food) risk in the 2005 maneb RED. In the 
2005 RED, EPA determined that the overall aggregate risk from residues 
of maneb and ETU on food was determined to be below the Agency's 
levels-of-concern. The reduction in PHI to 3 days will not change this 
determination.
    3. Metiram. The Task Force did not provide new evidence to support 
a 3-day PHI for use of metiram on potatoes because such data had 
previously been submitted to the Agency in 1988. This earlier data 
involved field trials performed in 1987 in seven states to measure the 
magnitude of metiram and ETU residues on potatoes. The review of these 
studies shows that ``(t)he 80% WP metiram formulation was foliarly 
applied 10 times (with a 5- to 21-day retreatment interval), to potato 
plants at 1.6 lb ai/A/application (1x) using

[[Page 37777]]

ground equipment. Individual residues of metiram and ETU were < 0.10 ppm 
(nondetectable) and < 0.01(nondetectable) to 0.02 ppm, respectively, in 
or on treated potato tuber samples harvested immediately (0-day) 
following the last of the above treatment schedule. The maximum 
residues of metiram in or on potato tubers following treatments at 1x 
were < 0.10 ppm which is below the established tolerance of 0.5 ppm'' 
(Ref. 10). The tolerance was later reassessed and set at 0.2 ppm, which 
met the FFDCA safety finding as well allowing the Agency to harmonize 
the tolerance with the Codex maximum residue limit (MRL) for EBDCs in 
or on potatoes.
    Since residues of metiram measured in or on potatoes were below the 
tolerance level for potatoes harvested immediately after the final 
treatment, potatoes harvested 3 days after treatment should have 
residues that are lower and also below the tolerance level. As was 
stated in the maneb discussion, overall risk from residues of metiram 
and ETU on food was determined to be below the Agency's levels of 
concern, and would be expected to remain so if a 3-day PHI for potatoes 
were established nationwide (Ref. 10).

C. Revision of the Cancer Endpoint for ETU

    The Task Force notes in its 2003 petition that the Q1*\11\ for ETU 
has changed since the 1992 NOIC. If there is evidence, such as tumor 
formation, and the pesticide is classified as a carcinogen, a 
quantitative assessment is conducted using a Q1* (non-threshold) or a 
Margin of Exposure (threshold) approach. The Agency evaluated the risk 
from ETU in the NOIC using a Q1* of 0.11 milligrams/kilogram/day (mg/
kg/day)-1. The Agency subsequently recalculated the ETU Q1* 
in 1995, resulting in a Q1* of 0.06 mg/kg/day-1. As a result 
of this new assessment endpoint, the Task Force suggests that the 
reduction in the PHI for use of EBDCs on potatoes would be even less 
likely to result in exceedances of the Agency's levels of concern. In 
its reregistration decisions for the EBDCs, using the lower Q1*, EPA 
found that the level of concern for cancer risk was not exceeded.
---------------------------------------------------------------------------

    \11\ The Q1*, or cancer slope factor, is an upper bound estimate 
of the increased cancer risk from a lifetime exposure to an agent. 
Upper bound in this context is a plausible upper limit to the true 
probability.
---------------------------------------------------------------------------

    The reduction of the Q1* for ETU was significant new evidence that 
allowed the Agency to make a safety finding for the reregistration of 
EBDC fungicides. It is important to note that the field trial data 
alone indicate that residues of ETU on potatoes from application of 
EBDCs would not be significantly different for PHIs of 3 and 14 days. 
Therefore, the reduction of the Q1* for ETU is a less compelling 
argument for reducing the PHI to 3 days as exposure levels show that 
there are no risks of concern.

VI. Risk-Benefit Assessment

A. Significance of Substantial New Evidence

    When the Agency issued the cancellation order for EBDC fungicides 
in 1992, it allowed a shorter, 3-day PHI for EBDCs on potatoes in nine 
states in which late blight disease occurred. The Agency was made aware 
soon thereafter that late blight disease was also present in four 
states not identified in the cancellation order, and the 3-day PHI was 
extended to those states to afford the same protection against late 
season onset of late blight disease through amendments to the 
cancellation order. The evidence presented by the Task Force that late 
blight has since spread to almost all potato-growing states, when 
combined with the scientific finding that the resulting exposures would 
still meet the ``reasonable certainty of no harm'' standard set forth 
in section 408 of the FFDCA, is a compelling justification for 
extending the 3-day PHI to all states in which EBDCs could be applied 
to potatoes.
    It is important to keep in mind that there are also residue data 
for mancozeb and maneb on potatoes submitted since the cancellation 
order that support the nationwide adoption of the 3-day PHI. As shown 
above, the mancozeb field trial data indicate that mancozeb and ETU 
residues from the use of mancozeb on potatoes were insignificant, and 
that the concentrations of mancozeb and ETU residues reflecting a 3-day 
PHI were not significantly different than those reflecting a 14-day 
PHI. Similarly, maneb field trial data submitted since the cancellation 
order indicate that ETU residues were undetectable for treated potatoes 
after both 1-day and 7-day PHIs. These data, in conjunction with 
previously submitted metiram data showing no ETU residues on potatoes 
harvested the day of treatment, indicate that adoption of a 3-day PHI 
nationwide will not meaningfully increase exposure to ETU in or on 
potatoes.
    Although the requirements for additional field trials for use of 
maneb on potatoes are still outstanding because geographic 
representation was inadequate, the Agency believes it unlikely that the 
residues resulting from a 3-day PHI in other regions would be 
sufficiently different to be of concern, based on similar data for 
mancozeb on potatoes. In modifying the Cancellation Order to change the 
14-day PHI from the use of EBDCs on potatoes to 3 days nationwide, the 
Agency would condition the registration with a requirement that the 
registrants provide the confirmatory data to fulfill the field trial 
data requirement (OPP guideline 171-4(k); OPPTS guideline 860.1500).
    As described above, the reduction of the Q1* for ETU was also 
``substantial new evidence'' but a less compelling argument for 
modifying the cancellation order because the exposure levels to ETU 
were not of concern.

B. Alternative Control Measures

    As stated earlier, EBDCs are needed to control the nationwide 
spread of late blight, because the alternative products that are 
registered to address late blight are not adequate (Ref. 2).

VII. Subpart D Determination

    Under 40 CFR 164.131(a), the Administrator is to provide a hearing 
to modify a prior final cancellation decision only if it is determined 
that certain criteria have been met. Having concluded that the EBDC 
Task Force has presented substantial new evidence concerning the 
request to provide for a 3-day PHI nationwide which was not available 
when the final cancellation order went into effect, the Administrator 
must now determine whether that evidence ``may materially affect'' that 
order. The Administrator has concluded that the new information 
materially affects whether the cancellation order should be modified 
because this information allows the Agency to find that a nationwide 3-
day PHI meets the FIFRA standard for registration. Thus, the first 
criterion in 40 CFR 164.131(a) has been met.
    Information provided by the Task Force on the late blight spread 
nationwide could not have ``through the exercise of due diligence'' 
been obtained before the 14-day restriction was in place as late blight 
had not yet spread nationwide. When information existed concerning the 
spread of late blight nationwide and the need for additional tools to 
combat it, the Task Force submitted the newly obtained information. 
Therefore, the second criterion in 40 CFR 164.131(a) has also been met.
    Based on the above analysis and because the Agency believes it is 
appropriate under this circumstance to modify the cancellation order to 
allow a 3-day PHI, the Administrator has decided to issue this notice 
under

[[Page 37778]]

subpart D to provide an opportunity for a hearing.
    Since EPA issued its NOIC in 1992, substantial new evidence has 
been presented to the Agency that supports amendment of the 
cancellation order to allow all states to have a 3-day PHI for 
potatoes. The new information focuses on the need for the EBDCs to 
combat the late blight problem in the United States. For example, 
metalaxyl-resistant strains of late blight were reported in at least 32 
states, which means that resistant strains are currently present in 
virtually all potato producing states. Additionally, since the pest 
problem can spread long distances via airborne spores and virtually all 
states that produce planting stock (seed-potatoes) have documented the 
presence of metalaxyl-resistant strains; all production states have a 
high probability of encountering metalaxyl-resistant late blight 
strains in any given year. Based on the information reviewed, a 3-day 
PHI is likely to reduce the number of tubers that become infected just 
prior to harvest and will therefore increase the number of tubers that 
can be stored.
    Pursuant to 40 CFR 164.131(c), the Administrator is specifying 
those issues of fact and law to be adjudicated in the hearing convened 
pursuant to this notice. Because the purpose of such a hearing is only 
to consider whether to modify certain aspects of the Administrator's 
prior cancellation decision and because a prompt conclusion to the 
hearing is a requisite of meaningful relief for the applicant, the 
evidentiary presentation in the hearing shall be strictly confined to 
the issues of fact and law which the Administrator has determined are 
presented by the Task Force submission.
    1. Issues of fact. The issues of fact to be adjudicated are:
    i. What is the current status (nationwide) of late blight on 
potatoes?
    ii. Has the occurrence of late blight changed since the initial 
cancellation order issued in 1992?
    iii. Are EBDCs necessary to respond to late blight?
    iv. What are the dietary risks associated with EBDC use on 
potatoes?
    2. Issues of law. The issues of law to be adjudicated are:
    i. Has substantial new evidence been presented pertaining to the 
request to reduce the nationwide PHI on potatoes to 3 days?
    ii. If it is substantial new evidence, could the applicant, through 
due diligence, have discovered this information prior to issuance of 
the cancellation order?
    iii. Does the 3-day PHI meet the FIFRA 2(bb) standard?
    The sole objective of this hearing is to determine whether or not 
the order canceling all sale, distribution, and use of pesticide 
products containing EBDCs that do not comply with the current label 
restriction on the PHI for potatoes should be modified to permit a 
nationwide 3-day PHI.

B. Hearing Requests

    The applicant and the Agency shall automatically be parties in the 
hearing. Any other person or party who seeks to participate in the 
hearing must submit a written hearing request describing the interest 
of that person or party in the proceeding and the nature and purpose of 
the participation sought. All requests for a hearing must be received 
by the Office of the Hearing Clerk within 30 calendar days from the 
date of publication of this Notice in the Federal Register. Such 
requests must include an identification of the requestor's interest in 
the proceeding, the hearing issues the requestor wishes to participate 
in, and the requestor's position with respect to such issue(s). 
Requests for a hearing must be submitted to: Office of Hearing Clerk, 
U.S. EPA, 1200 Pennsylvania Ave, N.W., Washington, D.C. 20460. Requests 
may be hand delivered to the Office of the Hearing Clerk at: 1099 14th 
St., NW., Suite 350, Washington, DC.

C. Scheduling

    As required by 40 CFR 164.131(c), the Administrator is specifying a 
schedule for this hearing. In recognition of the narrow scope of the 
proceeding, the Administrator is establishing the following schedule. 
However, if no other interested party requests a hearing, the Agency 
intends to file a motion pursuant to 40 CFR 164.60 requesting that the 
Administrative Law Judge issue an accelerated decision pursuant to 40 
CFR 164.91(a)(8) in favor of modifying the cancellation order as 
requested.
    The Chief Administrative Law Judge shall appoint an Administrative 
Law Judge to preside at this proceeding within 20 calendar days from 
date of publication of this Notice in the Federal Register. The hearing 
shall commence in Washington, DC as soon thereafter as practicable but 
in no event later than 40 calendar days from the date of publication of 
this Notice in the Federal Register. The presiding Administrative Law 
Judge shall transmit recommended findings of fact and conclusions of 
law and the hearing record to the Administrator within 70 calendar days 
from the date of publication of this Notice in the Federal Register. 
The parties shall submit any objections to the recommended findings of 
fact and conclusions of law to the Administrator within 10 business 
days after issuance, and the Administrator will enter a final order as 
soon thereafter as practicable.

D. Separation of Functions

    EPA's Rules of Practice forbid anyone who may take part in deciding 
this case at any stage of the proceeding, from discussing the merits of 
the proceeding ex parte with any party or with any person who has been 
connected with the preparation or presentation of the proceeding as an 
advocate or in any investigative or expert capacity, or with any of his 
or her representatives (40 CFR 164.7).
    Accordingly, the following EPA offices, and the staffs thereof, are 
designated as the judicial staff of EPA in any administrative hearing 
on this issue: the Office of Administrative Law Judges, the 
Environmental Appeals Board, the Deputy Administrator, and the members 
of the staff in the immediate office of the Deputy Administrator, and 
the Administrator and the members of staff in the immediate office of 
the Administrator. The following offices are designated as the trial 
staff in any proceeding which may arise under this Notice: The Office 
of General Counsel, the Assistant Administrator for the Office of 
Prevention, Pesticides, and Toxic Substances and immediate staff, the 
Office of Pesticide Programs, and the Office of Compliance Monitoring. 
None of the persons designated as the judicial staff may have any ex 
parte communications with the trial staff or any other interested 
person not employed by EPA on the merits of any of the issues involved 
in this proceeding, without fully complying with the applicable 
regulations.

IX. References

    1. USEPA, 1992. Ethylene Bisdithiocarbamate (EBDCs); Notice of 
Intent to Cancel and Conclusion of Special Review [57 FR 7484].
    2. USEPA, 2005e. Reregistration Eligibility Decision (RED) for 
Mancozeb.
    3. USEPA, 2005d. Reregistration Eligibility Decision (RED) for 
Maneb.
    4. USEPA, 2005c. Reregistration Eligibility Decision (RED) for 
Metiram.
    5. USEPA, 1998. Maneb (014505) and Mancozeb (014504) on Onions and 
Potatoes: Reregistration. Memo from Susan Hummel to R. B. Perfetti, 
January 6, 1998.
    6. USEPA, 2003. Reregistration of Mancozeb: Request to Reduce Pre-
Harvest Interval for Potatoes and Waive Processing Study. Memo from C.

[[Page 37779]]

Olinger to Tawanda Spears, September 7, 2003.
    7. USEPA, 2005a. Assessment of the EBDC/ETU Task Forces Request to 
Reduce the EBDC Fungicides PHI on Potatoes from 14 to 3 Days. Memo from 
R. Michell and T. Kiely to Tawanda Spears, April 7, 2005.
    8. USEPA, 1995. New York State Department of Environmental 
Conservation Emergency Exemption Requests For The Use of Dimethomorph 
and Cymoxanil Package Mixtures With Mancozeb (Acrobat M2, Curzate M-8) 
For Control of Potato Late Blight (95-NY-06, 95-N&Y-07). Memo from J. 
Hogue and R. Michell to L. Pemberton.
    9. EBDC/ETU Task Force, 2003. Re: Amendments to the Registrations 
of Products Containing Ethylene Bidisthiocarbamates (``EBDCs'') as an 
Active Ingredient to Change the Preharvest Interval (``PHI'') for 
Potatoes. Memo from Edward Ruckert to James Jones, August 25, 2003.
    10. USEPA, 2005b. Metiram (Chemical ID No. 014601, Case No. 0644) 
Revised Residue Chemistry Chapter for the Reregistration Eligibility 
Decision (RED) Document. Memo from C. Olinger to Tawanda Spears, June 
23, 2005.
    11. Bookbinder, M. (1988) Metiram and Ethylene Thiourea: Magnitude 
of the Residue in Potatoes Treated by Ground Equipment in Colarado, 
Idaho, Maine, Michigan, North Dakota, Oregon, and Wisconsin, 1987. 
Unpublished study prepared by Enviro-Bio-Tech, Ltd. 223 p.
    12. USEPA, 2001. Reregistration of Mancozeb: Potato Crop Field 
Trial and Corn Processing Studies. Memo from C. Olinger to Anne 
Overstreet, March 15, 2001.
    13. USEPA, 1988. Reregistration Standard for Maneb. November 10, 
1988.
    14. USEPA, 1996. Maneb (014505) and Mancozeb (014504) on Onions and 
Potatoes: Reregistration. Memo from S. Hummel to K. Boyle, September 6, 
1996.

List of Subjects

    Environmental protection, Pesticides and pests.

    Dated: July 2, 2007.
Peter Caulkins,
Acting Director, Special Review and Reregistration Division, Office of 
Pesticide Programs

[FR Doc. E7-13471 Filed 7-10-07; 8:45 am]

BILLING CODE 6560-50-S
