
[Federal Register Volume 77, Number 172 (Wednesday, September 5, 2012)]
[Proposed Rules]
[Pages 54499-54511]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-21843]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 725

[EPA-HQ-OPPT-2011-0740; FRL-9348-1]
RIN 2070-AJ65


Microorganisms; General Exemptions From Reporting Requirements; 
Revisions to Recipient Organisms Eligible for Tier I and Tier II 
Exemptions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA received petitions to add Trichoderma reesei and Bacillus 
amyloliquefaciens to the list of microorganisms that may be used as 
recipient microorganisms in order to qualify for the exemption from 
full notification and reporting procedures under the Toxic Substances 
Control Act (TSCA) for new microorganisms that are being manufactured 
for introduction into commerce. Based on EPA's evaluation of these 
petitions, EPA has made a preliminary determination that certain 
strains of both microorganisms will not present an unreasonable risk of 
injury to health or the environment when used as a recipient 
microorganism provided that certain criteria for the introduced genetic 
material and the physical containment conditions are met. Therefore, 
EPA is proposing to add two additional microorganisms to the list of 
recipient microorganisms that are eligible for exemptions from full 
reporting for the manufacture (including import) of new microorganisms.

DATES: Comments must be received on or before November 5, 2012.
    You may submit a request for an opportunity to present oral 
comments in writing on or before October 5, 2012, and if a written 
request is received by EPA, an informal public hearing will be held on 
this proposed rule in Washington, DC. For further information on the 
informal public hearing, see Unit I.C.

ADDRESSES: Submit your written request for an opportunity to present 
oral comments, identified by docket identification (ID) number EPA-HQ-
OPPT-2011-0740, to the mailing or hand delivery addresses in this unit.
    Submit your comments, identified by docket ID number EPA-HQ-OPPT-
2011-0740, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Mail: Document Control Office (7407M), Office of Pollution 
Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 
Pennsylvania Ave. NW., Washington, DC 20460-0001.
     Hand Delivery: OPPT Document Control Office (DCO), EPA 
East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC. 
Attention: Docket ID Number EPA-HQ-OPPT-2011-0740. The DCO is open from 
8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the DCO is (202) 564-8930. Such deliveries are 
only accepted during the DCO's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to docket ID number EPA-HQ-OPPT-
2011-0740. EPA's policy is that all comments received will be included 
in the docket without change and may be made available online 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 email. The 
regulations.gov Web site 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 email comment 
directly to EPA without going through regulations.gov, your email 
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 
available at http://www.regulations.gov. 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, will be publicly available only 
in hard copy. Publicly available docket materials are available 
electronically at http://www.regulations.gov, or, if only available in 
hard copy, at the OPPT Docket. The OPPT Docket is located in the EPA 
Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution 
Ave. NW., Washington, DC. The EPA/DC Public Reading Room hours of 
operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The telephone number of the EPA/DC Public Reading Room 
is (202) 566-1744, and the telephone number for the OPPT Docket is 
(202) 566-0280. Docket visitors are required to show photographic 
identification, pass through a metal detector, and sign the EPA visitor 
log. All visitor bags are processed through an X-ray machine and 
subject to search. Visitors will be provided an EPA/DC badge that must 
be visible at all times in the building and returned upon departure.

FOR FURTHER INFORMATION CONTACT: For technical information contact: 
Brian Lee, Chemical Control Division (7405M), Office of Pollution 
Prevention and Toxics, Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: 
(202) 564-6293; email address: lee.brian@epa.gov.
    For general information contact: The TSCA-Hotline, ABVI-Goodwill, 
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 
554-1404; email address: TSCA-Hotline@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    You may be potentially affected by this action if you produce, 
import, process, or use either intergeneric Trichoderma reesei or 
intergeneric Bacillus amyloliquefaciens. Potentially affected entities 
may include, but are not limited to:

[[Page 54500]]

     Basic Chemical Manufacturing (NAICS code 3251).
     Pesticide, Fertilizer and other Agricultural Chemical 
manufacturing (NAICS code 3253).
     Other Chemical Product and Preparation Manufacturing 
(NAICS code 3259).
    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. If you have any 
questions regarding the applicability of this action to a particular 
entity, consult the technical person listed under FOR FURTHER 
INFORMATION CONTACT.

B. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
regulations.gov or email. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    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.

C. Can I request an opportunity to present oral comments to the agency?

    You may submit a request for an opportunity to present oral 
comments. This request must be made in writing and be identified by 
docket ID number EPA-HQ-OPPT-2011-0740. This written request must be 
submitted to the mailing or hand delivery addresses provided under 
ADDRESSES. If such a request is received on or before October 5, 2012, 
EPA will hold an informal public hearing on this proposed rule in 
Washington, DC. If such a request is received, EPA will announce the 
scheduling of the informal public hearing in a subsequent document in 
the Federal Register. If an informal public hearing is announced, and 
if you are interested in attending or presenting oral and/or written 
comments at the informal public hearing, you should follow the 
instructions provided in the subsequent Federal Register document 
announcing the informal public hearing.

II. Background

A. What action is the agency taking?

    EPA received petitions to add Trichoderma reesei and Bacillus 
amyloliquefaciens to the list of recipient microorganisms at Sec.  
725.420 that are eligible for the regulatory exemptions applicable to 
new microorganisms that are manufactured for introduction into commerce 
(Refs. 1-3). EPA has made a preliminary determination that both of the 
microorganisms, with certain limitations, meet the criteria for 
addition to the list--i.e., they will not present an unreasonable risk 
of injury to health or the environment provided that the other 
conditions of the exemptions at 40 CFR part 725, subpart G, relating to 
the introduced genetic material, and the physical containment of the 
new microorganisms, have been met. Therefore, this document proposes to 
grant the exemption petition for these two microorganisms.
    EPA is proposing to restrict the exemption for Trichoderma reesei 
to the Trichoderma reesei strain QM6a and its derivatives (hereafter, 
T. reesei QM6a). In addition, EPA is proposing to restrict the T. 
reesei QM6a exemption to use under submerged standard industrial 
fermentation conditions; as described in this proposed rule, these 
conditions are typical throughout industry and would also meet the 
existing physical containment and control requirements for the tiered 
exemptions under Sec.  725.422. EPA would also restrict the T. reesei 
QM6a exemption to fermentation operations in which no solid plant 
material or insoluble substrate is present in the fermentation broth. 
EPA is also proposing to require that any fermentation of solid plant 
material or insoluble substrate may only be initiated after the 
inactivation of T. reesei QM6a by a procedure that meets the existing 
requirements in Sec.  725.422(d), i.e., by a procedure that has been 
demonstrated and documented to be effective in reducing the viable 
microbial population by at least 6 logs.
    Additionally, EPA is proposing to limit the exemption for B. 
amyloliquefaciens to only industrial strains of Bacillus 
amyloliquefaciens that would fall into the subspecies Bacillus 
amyloliquefaciens subsp. amyloliquefaciens (hereafter, B. 
amyloliquefaciens).

B. What is the agency's legal authority for taking this action?

    This action is being taken under the authority of TSCA section 
5(h)(4) (15 U.S.C. 2604(h)(4)).
    Section 5(a)(1) of TSCA requires that persons notify EPA at least 
90 days before they manufacture (the term ``manufacture'' includes 
import under TSCA) for commercial purposes a ``new'' chemical 
substance, or manufacture (including import) or process a chemical 
substance for a ``significant new use.'' TSCA defines ``chemical 
substance'' broadly and in terms that cover intergeneric microorganisms 
as well as traditional chemical substances. Therefore, for the purposes 
of TSCA, a ``new microorganism,'' like a ``new chemical substance,'' is 
one that is not listed on the TSCA Chemical Substances Inventory (TSCA 
Inventory) compiled under TSCA section 8(b). Section 5(h)(4) of TSCA 
authorizes EPA, upon application and by rule, to exempt the 
manufacturer or importer of any new chemical substance from part or all 
of the provisions of TSCA section 5, if EPA determines that the 
manufacture, processing, distribution in commerce, use, or disposal of 
the new chemical substance will not present an unreasonable risk of 
injury to human health or the environment.

C. Existing EPA Regulatory Requirements and Exemption Standard

    Manufacturers are required to report certain information to EPA 90 
days

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before commencing the manufacture of intergeneric microorganisms that 
are not listed on the TSCA Inventory. EPA regulations at 40 CFR part 
725 establish the mechanisms for reporting this information.
    Any manufacturer of a living intergeneric microorganism who is 
required to report under TSCA section 5 must file a Microbial 
Commercial Activity Notice (MCAN) with EPA, unless the activity is 
eligible for one of the specific exemptions. The general procedures for 
filing MCANs are described in 40 CFR part 725, subpart B.
    EPA regulations establish two exemptions for new microorganisms, 
after the research and development stage, which are being manufactured 
for introduction into commerce: The Tier I and Tier II exemptions.
    Under the Tier I exemption, if three criteria are met, 
manufacturers are only required to notify EPA that they are 
manufacturing a new microorganism that qualifies for this exemption 10 
days before commencing manufacture, and to keep certain records. 40 CFR 
725.400. To qualify for the Tier I exemption, a manufacturer must use 
one of the recipient organisms listed in Sec.  725.420, and must 
implement specific physical containment and control technologies. In 
addition, the genetic material introduced into the recipient 
microorganism must be well-characterized, limited in size, poorly 
mobilizable, and free of certain sequences. 40 CFR 725.421.
    A manufacturer who otherwise meets the conditions of the Tier I 
exemption may modify the specified containment restrictions, but must 
submit a Tier II exemption notification. 40 CFR 725.428. The Tier II 
exemption requires manufacturers to submit an abbreviated notification 
describing the modified containment, and provides for a 45 day period, 
during which EPA would review the proposed containment. 40 CFR 725.450 
and 725.470. The manufacturer may not proceed under this exemption 
until EPA approves the exemption. 40 CFR 725.470.
    EPA established a petition process at Sec.  725.67 to provide a 
mechanism for the public to propose additional microorganisms as 
candidates for the tiered exemptions.
    Section 725.67 directs a petitioner to submit information to 
demonstrate that ``any activities affected by the requested exemption 
will not present an unreasonable risk of injury to health or the 
environment.'' 40 CFR 725.67(a)(2). In addition, a petitioner is 
responsible to provide supporting information for this determination in 
four general categories:
    1. The effects of the new microorganism on health and the 
environment.
    2. The magnitude of exposure of human beings and the environment to 
the new microorganism.
    3. The benefits of the new microorganism for various uses and the 
availability of substitutes for such uses.
    4. The reasonably ascertainable economic consequences of granting 
or denying the petition, including effects on the national economy, 
small business, and technological innovation.
    Section 725.67 also specifies that when applying to list a 
recipient microorganism for the tiered exemption under Sec.  725.420, 
petitioners should include information addressing six specified 
criteria, which EPA will use to evaluate the microorganism for listing. 
40 CFR 725.67(a)(3)(iii). The six criteria are:
     Identification and classification of the microorganism 
using available genotypic and phenotypic information.
     Information to evaluate the relationship of the 
microorganism to any other closely related microorganisms which have a 
potential for adverse effects on health or the environment.
     A history of safe commercial use for the microorganism.
     Commercial uses indicating that the microorganism products 
might be subject to TSCA.
     Studies which indicate the potential for the microorganism 
to cause adverse effects to health or the environment.
     Studies which indicate the survival characteristics of the 
microorganism in the environment.

III. EPA's Evaluation of Available Information on the Proposed 
Microorganisms for the Criteria Delineated in Sec.  725.67

    Pursuant to Sec.  725.67, Genencor International, Inc., 
(subsequently supported by the Enzyme Technical Association (ETA)) and 
Novozymes North America, Inc., submitted Letters of Application to EPA 
requesting that Trichoderma reesei and Bacillus amyloliquefaciens 
(Refs. 1 and 2) be added to Sec.  725.420 as candidate recipient 
microorganisms for the tiered exemptions. The letters of application 
provided information that the submitters believed demonstrate that 
activities affected by the requested exemptions would not present an 
unreasonable risk of injury to health or the environment. Information 
regarding the criteria specified in Sec. Sec.  725.67(a)(2) and 
725.67(a)(3)(iii) were addressed in these letters of application to 
list Trichoderma reesei and Bacillus amyloliquefaciens as recipient 
microorganisms under Sec.  725.420.
    EPA has made a preliminary determination based on the information 
provided in the Letters of Application (Refs. 1 and 2), supplemental 
information provided by ETA (Refs. 4 and 5), and other information 
available to EPA that T. reesei QM6a, with certain restrictions, and B. 
amyloliquefaciens will not present an unreasonable risk of injury to 
health or the environment when used as a recipient microorganism 
provided the existing criteria for the introduced genetic material and 
for physical containment conditions at Sec.  725.422 are met. EPA's 
Risk Assessments for these two microorganisms (Refs. 6 and 7) are 
available in the docket. This unit presents a summary of EPA's 
evaluation of the available information pertinent to the six criteria 
delineated in Sec.  725.67(a)(3)(iii) for both microorganisms. These 
criteria follow:
     Identification and classification of the microorganism 
using available genotypic and phenotypic information.
     Information to evaluate the relationship of the 
microorganism to any other closely related microorganisms that have a 
potential for adverse effects on health or the environment.
     A history of safe commercial use for the microorganism.
     Commercial uses indicating that the microorganism products 
might be subject to TSCA.
     Studies which indicate the potential for the microorganism 
to cause adverse effects to health or the environment.
     Studies which indicate the survival characteristics of the 
microorganism in the environment.
    Units V. and VI. summarize EPA's evaluation of the information 
relating to the criteria delineated in Sec.  725.67(a)(2) that address 
hazard, exposure, benefits, and economic consequences. Specifically:
     The effects of the new microorganism on health and the 
environment.
     The magnitude of exposure of human beings and the 
environment to the new microorganism.
     The benefits of the new microorganism for various uses and 
the availability of substitutes for such uses.
     The reasonably ascertainable economic consequences of 
granting or denying the exemption, including effects on the national 
economy, small business, and technological innovation.
    Unit V. provides a summary of EPA's assessments of the risks to 
health and

[[Page 54502]]

the environment for both microorganisms. EPA's Risk Assessment 
documents (Refs. 6 and 7) provide more detailed information, and 
supporting references, for EPA's evaluation of the available 
information and the potential risks to health and the environment. Unit 
VI. provides a summary of EPA's assessments of the economic benefits 
and consequences of adding both microorganisms to Sec.  725.420.

A. Evaluation of Available Information Relevant to the Criteria at 
Sec.  725.67 for T. reesei QM6a as a Recipient Microorganism With 
Specified Conditions of Growth

    1. Identification and classification of the microorganism using 
available genotypic and phenotypic information. T. reesei is a fungus 
originally isolated in the Solomon Islands in 1944. T. reesei is a 
hypercellulolytic fungus found on deteriorating military fabrics such 
as tents and clothing. This isolate, designated as QM6a, was initially 
named Trichoderma viride. Approximately 20 years later, QM6a was re-
classified as Trichoderma reesei.
    Trichoderma reesei is the species name given to the anamorphic form 
(this form reproduces asexually) of the fungus whose telemorphic form 
(this form reproduces sexually) is now understood to be Hypocrea 
jecorina.
    Recent taxonomic studies have shown that the species T. reesei 
consists only of this single isolate QM6a and its derivatives. Many 
other strains called T. reesei isolated elsewhere have now been 
proposed as belonging to a newly named species, T. parareesei, based on 
differences in habitat, sporulation, and metabolic versatility. T. 
reesei has been shown to belong to a single species now referred to as 
H. jecorina/T. reesei (QM6a) which reflects its relationship to its 
teleomorph H. jecorina. The only anamorphic strains within the species 
H. jecorina/T. reesei are those of QM6a and its derivatives. The 
petition to add T. reesei to the list of microorganisms at Sec.  
725.420 requested that EPA include all strains of T. reesei. However, 
given these recent taxonomic publications, all fungal strains correctly 
named T. reesei are, by definition, QM6a or a derivative.
    Adequate genotypic and phenotypic information is available for 
classification of T. reesei QM6a and its derivatives. The American Type 
Culture Collection (ATCC) designation for this original strain of T. 
reesei QM6a is ATCC 13631.
    2. Information to evaluate the relationship of the microorganism to 
any other closely related microorganisms that have a potential for 
adverse effects on health or the environment. The petition to add T. 
reesei to the list of microorganisms at Sec.  725.420 requested that 
EPA include all strains of T. reesei. Closely related members of 
section Longibrachiatum do not have a potential for adverse effects; 
other less closely related Trichoderma species have a potential to 
cause adverse effects as pathogens of commercially produced mushrooms. 
These less closely related species include various species of the 
Harzianum clade, T. aggressivum, T. pleuotrophilum, and T. fulvidum 
that are responsible for significant loss of the mushroom crops of 
Agaricus bisporus and Pleurotus ostreatus.
    T. reesei/H. jecorina can be distinguished from other Trichoderma 
species by a comprehensive approach employing criteria of the 
Genealogical Concordance Phylogenetic Species Recognition (GCPSR) 
concept, which commonly requires the use of genealogies of three or 
four genes, not just the sequences of spacer regions as previously 
utilized for identification. Use of the GCPSR protocol will separate T. 
reesei (sensu lato) from the opportunistic pathogens within the section 
Longibrachiatum, including T. longibrachiatum and T. citronoviridae/H. 
schweinitzii, as well as the mold disease pathogens of mushrooms.
    3. A history of safe commercial use for the microorganism. T. 
reesei QM6a has a long history of safe use producing a variety of 
commercial enzymes. T. reesei QM6a cellulases, beta-glucanases, and 
xylanases are used by the animal feed, baking, beverages, textile 
processing, detergent, pulp and paper, industrial chemicals, and 
biofuels industries.
    For industrial enzyme production, T. reesei is generally grown in a 
closed, submerged fermentation system. In submerged fermentation, 
growth of the microorganism occurs beneath the surface of the liquid 
growth medium. As described in this unit, this type of fermentation 
system appears to be typical throughout the industry, based on EPA's 
review of MCAN submissions over the years. This type of fermentation 
system would also comply with the existing tiered exemption 
requirements relating to physical containment and control technologies, 
which are laid out in Sec.  725.422.
    Under this type of fermentation system, the fermentation broth is a 
defined mixture of carbon and nitrogen sources, minerals, salts, and 
other nutrients, is maintained at optimal pH and temperature, and is 
typically aerated and mixed with no solid plant material or insoluble 
substrate present. These conditions support the active growth and 
productivity of the organisms. Submerged fermentation systems reduce 
the potential for exposure of workers to the production organism and 
fermentation broth aerosols, reduce the potential for contamination of 
the culture and make the collection of extracellular enzyme simpler and 
less costly. The fermentation process is terminated before the T. 
reesei QM6a organisms go into the stationary growth phase (i.e., before 
secondary metabolism begins). At the end of the fermentation process, 
the production organisms are separated from the fermentation broth and 
inactivated. Throughout the SUPPLEMENTARY INFORMATION section, EPA 
refers to this process as ``submerged standard industrial 
fermentation.''
    The Food and Drug Administration (FDA) has determined that several 
enzymes produced by T. reesei QM6a are Generally Recognized As Safe 
(GRAS). This determination supports the Agency's preliminary conclusion 
that commercial use of T. reesei QM6a as a recipient microorganism for 
commercial enzyme production will not present an unreasonable risk of 
injury to health or the environment. T. reesei QM6a enzymes used in 
foods that have been granted GRAS status include cellulase, 
hemicellulase, transglucosidase, pectin lyase, acid fungal protease, 
and a chymosin enzyme preparation. Data supporting the GRAS petitions 
included the results of pathogenicity tests for the T. reesei QM6a 
production organisms and toxicity tests for the enzyme products. The 
data showed that the production strains are not pathogenic and did not 
produce toxins during enzyme fermentation.
    4. Commercial uses indicating that the microorganism products might 
be subject to TSCA. EPA has reviewed several MCANs involving 
intergeneric T. reesei QM6a production organisms. More detailed 
information on MCANs submitted to EPA can be viewed on EPA's TSCA 
Biotechnology Program Web page: http://www.epa.gov/oppt/biotech/pubs/submain.htm.
    Intergeneric T. reesei QM6a strains could also be used to 
manufacture industrial chemicals other than enzymes such as surfactants 
or specialty chemicals.
    5. Studies which indicate the potential for the microorganism to 
cause adverse effects to health or the environment--a. Human health 
hazards--i. Pathogenicity. Trichoderma reesei QM6a is not pathogenic to 
humans. Due to its long history of use for production of enzymes used 
in food

[[Page 54503]]

applications, the potential for the fungus and its products to be 
pathogenic or toxic to humans has been evaluated numerous times. 
Various studies have been conducted assessing T. reesei QM6a's 
pathogenic potential in healthy and immunocompromised laboratory 
animals. Most studies have shown a lack of pathogenicity of T. reesei 
QM6a. Pathogenicity studies have been conducted as part of submissions 
submitted to FDA for GRAS petitions for several different enzymes used 
in the food industry. Studies using intraperitoneal (ip) injection of 
T. reesei QM6a in rats, using intravenous (IV) injection of T. reesei 
QM6a in both healthy and immunosuppressed rats, and using ip injection 
of viable and heat-killed cells of T. reesei QM6a in rats have all 
demonstrated a lack of potential pathogenicity to humans.
    T. reesei QM6A is not known to possess any virulence factors 
associated with colonization or disease such as adherence factors, 
penetration factors, necrotic factors, toxins, or the ability to grow 
at human body temperature, 37 [deg]C. There are no reports in the 
literature on infection in healthy humans by T. reesei QM6A. There are 
no reports of harmful effects associated with the use of or exposure to 
T. reesei QM6A strains given decades of commercial use for enzyme 
production. The body of evidence indicates that T. reesei QM6A does not 
pose concerns regarding human pathogenicity.
    ii. Toxicity. Available data indicate that T. reesei QM6a strains 
used in submerged standard industrial fermentation operations in which 
no solid plant material or insoluble substrate is present in the 
fermentation broth do not present human toxicity concerns. A number of 
studies have been conducted assessing the potential for T. reesei QM6a 
to produce toxins during submerged fermentation for production of 
enzymes for food, pharmaceutical, or industrial uses. A cellulase 
enzyme known as celluclast produced by T. reesei QM6a has been tested 
for general oral toxicity and inhalation toxicity. Acute oral toxicity 
studies conducted in mice, rats, and dogs showed that T. reesei QM6a 
cellulase was not toxic to any of the test animals. Subchronic toxicity 
studies showed no evidence of systemic effects in dogs or rats. 
Additional toxicity studies have been conducted on other enzymes 
produced by T. reesei QM6a, the results of which have been presented in 
various GRAS petitions. Acute oral toxicity tests on two endoglucanases 
and a glucoamylase showed a lack of toxins. Subchronic feeding studies 
conducted on a cellulase, two xylanases, two endoglucanases, a 
protease, and a glucoamylase also showed a lack of toxicity in rats.
    Industrial strains of T. reesei QM6a are routinely checked by the 
enzyme producers to confirm the absence of antibiotic activity and 
toxins including aflatoxin B, ochratoxin A, sterigmatocystin, T-2 
toxin, and zearalenone according to the recommendations of the Joint 
Food and Agriculture Organization and the World Health Organization 
(FAO/WHO) Expert Committee on Food Additives. Relying on the data that 
show T. reesei QM6a has a long history of safe use in the production of 
food enzymes where there is a need to routinely check for the absence 
of toxins, EPA has preliminarily concluded that strains used 
industrially would not be expected to produce these compounds under the 
growth conditions used for enzyme fermentation.
    iii. Mycotoxins and other secondary metabolites. The only health 
concern associated with T. reesei QM6a is its ability to produce a 
secondary metabolite called paracelsin, which is a peptaibol. 
Peptaibols are small linear peptides of 1,000-2,000 daltons 
characterized by a high content of the non-proteinogenic amino acid 
[alpha]-amino-isobutyric acid (Aib), with an N-terminus that is 
typically acetylated, and a C-terminus that is linked to an amino 
alcohol, which is usually phenylalaninol, or sometimes valinol, 
leucinol, isoleucinol, or tryptophanol. Peptaibols are associated with 
a wide variety of biological activities and have antifungal, 
antibacterial, sometimes antiviral, antiparasitic, and neurotoxic 
activity. Paracelsin has been shown to have toxicity toward mammalian 
cells such as hemolytic activity on human erythrocytes and cytotoxicity 
to rat adrenal medulla PC12 cells. Paracelsin showed toxicity to PC12 
cells (a cell line derived from a pheochromocytoma of the rat adrenal 
medulla) with a CC50 (cytotoxicity concentration of 50%) of 
21.8 micromolar ([micro]M) (Ref. 6). The in vitro hemolytic activity of 
paracelsin has been reported to be C50 = 3.7 x 
10-5 mole/liter (mol/L) (Ref. 6).
    Paracelsin has not been detected in the use of T. reesei QM6a under 
submerged standard industrial fermentation operations in which no solid 
plant material or insoluble substrate is present in the fermentation 
broth; numerous toxicity studies on enzyme products of T. reesei QM6a 
have demonstrated a lack of toxicity to laboratory animals. EPA 
therefore generally expects that paracelsin production will be of 
insignificant concern with submerged standard industrial fermentation 
operations in which no solid plant material or insoluble substrate is 
present in the fermentation broth.
    However, under non-standard conditions of fermentation, such as 
with extended duration of fermentation, or fermentation in the presence 
of insoluble carbon sources such as cellulose or in the presence of 
solid plant material, paracelsin may be produced (Ref. 6). Neither the 
information submitted with the petition, nor the information that is 
otherwise available is sufficient to allow EPA to determine the extent 
of paracelsin formation under these non-standard conditions. 
Consequently, EPA is unable to determine whether the use of the microbe 
under these non-standard conditions will pose an unreasonable risk to 
human health and/or the environment (Ref. 6).
    b. Environmental hazards--i. Hazards to animals. T. reesei QM6a is 
not pathogenic to domesticated animals or wildlife. However, the 
secondary metabolite paracelsin produced by T. reesei QM6a has been 
shown to exhibit toxicity to aquatic species. Twenty-four hour exposure 
of paracelsin to Artemia salina (brine shrimp) suggested a lethal 
concentration of 50% (LC50) of 21.26 [micro]M (40.84 
micrograms per milliliter ([micro]g/ml)) which decreased to 9.66 
[micro]M (18.56 [micro]g/ml) with a 36-hour (hr) exposure. With Daphnia 
magna, paracelsin was found to be moderately toxic, with an 
LC50 of 7.70 [micro]M (14.79 [micro]g/ml) with a 24-hr 
exposure, and 5.60 [micro]M (10.76 [micro]g/ml) with a 36-hr exposure.
    ii. Hazards to plants. Trichoderma reesei QM6a is not a pathogen of 
plants. Although it is capable of degrading cellulose and hemicellulose 
due to the copious quantities of the enzymes it can produce, it cannot 
be a primary colonizer on plant tissue as genetic studies have shown 
that it does not contain any genes for ligninases that are required for 
initial breakdown of plant material. This species is known as a wood 
rot fungus, but it apparently attacks only decaying plant material, not 
live plants.
    iii. Effects on other organisms. Peptaibols are toxic to Gram-
positive bacteria and various fungi. The inhibitory action of 
peptaibols on various fungi is the reason that many species of 
Trichoderma are used as biocontrol agents of plant pathogenic fungi. T. 
reesei QM6a, which is known to produce only the peptaibol paracelsin, 
has been shown to be inhibitory to one particular fungus, Phoma 
destructiva.

[[Page 54504]]

    Some species of Trichoderma, specifically T. aggressivum, T. 
pleuotrophilum, and T. fulvidum are pathogens of mushrooms. However, T. 
reesei QM6a is not a pathogen of mushrooms.
    6. Studies which indicate the survival characteristics of the 
microorganism in the environment. The species T. reesei is known only 
from the single original isolate QM6a from the Solomon Islands. 
Therefore, there is little information on its prevalence or behavior in 
the environment. Microcosm studies have been conducted that suggest it 
would survive in the environment if inadvertently released in the plant 
rhizosphere and in bulk soils.
    Although T. reesei was originally isolated from a tropical climatic 
region, it would be expected to persist in soils for extended periods 
of time, even after cold temperatures.

B. Evaluation of Available Information Relevant to the Criteria at 
Sec.  725.67 for B. amyloliquefaciens as a Recipient Microorganism

    1. Identification and classification of the microorganism using 
available genotypic and phenotypic information. Bacillus 
amyloliquefaciens was initially proposed as a unique species in 1943. 
The name Bacillus amyloliquefaciens lost standing when it was not 
included on the Approved List of Bacterial Names with Standing in 
Nomenclature in 1980. Since classical phenotypic tests could not 
differentiate it as a species unique from Bacillus subtilis, it was 
regarded as a subspecies of B. subtilis for several decades. However, 
molecular evidence from various subsequent studies led to the 
conclusion that Bacillus amyloliquefaciens did indeed deserve 
independent status. The DNA homology between B. subtilis and B. 
amyloliquefaciens is only about 15%. In addition, there were several 
phenotypic properties that differed between the two species. 
Chemotaxonomic studies revealed additional capability of separating 
strains of B. amyloliquefaciens from the other related species, B. 
subtilis, B. licheniformis, and B. pumilus. The species has remained 
within the genus Bacillus sensu stricto since it was last established 
as a separate species.
    Recently, it has been proposed that there are two subspecies within 
the species B. amyloliquefaciens, B. amyloliquefaciens subsp. 
amyloliquefaciens and B. amyloliquefaciens subsp. plantarum. The former 
subspecies includes the type strain and likely most, if not all, of the 
industrial strains of B. amyloliquefaciens used for enzyme production. 
The latter subspecies consists of plant-associated strains used as 
biocontrol agents since they produce a number of antifungal lipopeptide 
and antibacterial polyketide toxins. This proposed exemption would be 
restricted to the subspecies B. amyloliquefaciens subsp. 
amyloliquefaciens which contains the industrial strains used for enzyme 
production. Adequate genotypic and phenotypic information is available 
to accurately identify B. amyloliquefaciens subsp. amyloliquefaciens.
    2. Information to evaluate the relationship of the microorganism to 
any other closely related microorganisms which have a potential for 
adverse effects on health or the environment. There are several species 
in the genus Bacillus that are known pathogens. These include B. 
anthracis, which is pathogenic to humans and other animals, and B. 
cereus, which is a common cause of food poisoning. B. thuringiensis, B. 
larvae, B. lentimorbus, B. popilliae, and some strains of B. sphaericus 
are pathogenic or toxigenic to certain insects. The new subspecies B. 
amyloliquefaciens subsp. plantarum has been shown to exhibit toxicity 
mainly to plant pathogenic fungi, but can also be cytotoxic to 
mammalian cells. It is possible, using polyphasic approaches, to 
differentiate between Bacillus amyloliquefaciens subsp. 
amyloliquefaciens and these other species and subspecies that have the 
potential to adversely affect humans or other organisms. B. 
amyloliquefaciens can be distinguished from the very similar B. 
subtilis by a few phenotypic traits and DNA dissimilarity.
    3. A history of safe commercial use for the microorganism. Bacillus 
amyloliquefaciens has been used to produce commercial enzymes for more 
than 50 years. It produces carbohydrases, proteases, nucleases, 
xylanases, and phosphatases that have applications in the food, 
brewing, distilling, and textile industries.
    For commercial enzyme production, B. amyloliquefaciens is grown in 
a closed, submerged fermentation system. In submerged fermentation, 
growth of the microorganism occurs beneath the surface of the liquid 
growth medium. The fermentation broth is a defined liquid growth medium 
(with no solid plant material or insoluble substrate) of carbon and 
nitrogen sources, minerals, salts, and other nutrients that is 
maintained at optimal pH and temperature. These conditions support the 
active growth and productivity of the organisms. Submerged fermentation 
systems reduce the potential for exposure of workers to the production 
organism and fermentation broth aerosols, reduce the potential for 
contamination of the culture, and make the collection of extracellular 
enzyme simpler and less costly. The fermentation process is terminated 
before the B. amyloliquefaciens organisms go into the stationary growth 
phase (i.e., before secondary metabolism begins). At the end of the 
fermentation process, the production organisms are separated from the 
fermentation broth and inactivated. The enzyme preparation may also be 
subjected to other purification processes.
    B. amyloliquefaciens has a long history of safe use for the 
production of enzymes with both food and industrial uses with no 
incidences associated with human pathogenicity. In response to a 
petition from the ETA, FDA affirmed that carbohydrase enzyme 
preparations and protease enzyme preparations derived from either B. 
subtilis or B. amyloliquefaciens are GRAS for use as direct food 
ingredients. The European Food Safety Authority (EFSA) has put B. 
amyloliquefaciens on their list of bacteria that have a ``qualified 
presumption of safety'' (QPS) because of a long history of apparent 
safe use in food and feed production. However, it was put on the list 
with a qualifier that only strains of B. amyloliquefaciens that do not 
have toxigenic potential be used.
    One strain of B. amyloliquefaciens also has been used as a 
biopesticide. A naturally occurring strain of B. amyloliquefaciens 
subsp. plantarum was registered in 2000 as a biopesticide active 
ingredient under the Federal Insecticide, Fungicide, and Rodenticide 
Act (FIFRA). It can only be used on certain ornamental, non-food plants 
in greenhouses and other closed structures.
    4. Commercial uses indicating that the microorganism products might 
be subject to TSCA. It is expected that intergeneric strains of B. 
amyloliquefaciens will be used to produce enzymes and to manufacture 
other industrial chemicals subject to TSCA. Many enzymes produced by B. 
amyloliquefaciens, particularly [alpha]-amylase, are used in laundry 
detergents and in textile processing. B. amyloliquefaciens also makes a 
surfactant known as surfactin which functions as an antibiotic.
    5. Studies which indicate the potential for the microorganism to 
cause adverse effects to health or the environment--a. Human health 
hazards--i. Pathogenicity.
    Bacillus amyloliquefaciens is not pathogenic to humans. There are 
no reports in the literature associating B. amyloliquefaciens with 
infection or disease in humans. B. amyloliquefaciens

[[Page 54505]]

has been categorized as a Biosafety 1 microorganism by the Centers for 
Disease Control and Prevention (CDC). Biosafety 1 microorganisms are 
well-characterized agents not known to consistently cause disease in 
immunocompetent adult humans, and which present minimal potential 
hazard to laboratory personnel and the environment. Animal toxicity 
studies were performed with B. amyloliquefaciens strain FZB24 to 
support its registration as a biopesticide. Tests for acute oral 
toxicity/pathogenicity, acute pulmonary toxicity/pathogenicity, and 
acute injection toxicity/pathogenicity showed little to no adverse 
effects, which indicated low mammalian toxicity and a lack of 
pathogenicity/infectivity.
    ii. Toxins and other secondary metabolites. Although another 
species in the genus Bacillus, B.cereus, has the potential to produce 
food poisoning toxins which cause both emetic and diarrheal syndromes, 
and a variety of local and systemic infections, the risk of food-borne 
disease caused by bacilli other than B. cereus is generally considered 
to be negligible because usually only B. cereus has the genes that 
encode food poisoning toxins. Industrial strains of Bacillus species 
belonging to the B. subtilis group, which includes B. 
amyloliquefaciens, do not express B. cereus toxins. In addition, there 
are no reported cases of food poisoning being caused by B. 
amyloliquefaciens.
    Some strains of B. amyloliquefaciens have been shown to produce 
bioactive cyclic lipopeptide metabolites such as iturin, surfactin, 
fengycin, and bacillomycin D. These are cyclical lipoprotein 
biosurfactants produced by non-ribosomal peptide synthesis. They have a 
low mammalian toxicity as demonstrated by a lethal dose of 50% 
(LD50) of >2,500 milligram/kilogram (mg/kg) in an acute 
toxicity test of surfactin C, and a No Observed Adverse Effect Level 
(NOAEL) of 500 mg/kg-day in a repeat dose oral gavage study. Some 
strains of B. amyloliquefaciens may also produce the polyketide toxins 
macrolactin, bacillanene, and difficidin. B. amyloliquefaciens also 
produces the protein toxin barnase and the antifungal protein baciamin.
    There are several reports of the isolation of B. amyloliquefaciens 
from water-damaged buildings in which occupants were suffering ill 
health symptoms. Extracts from biomass of isolated strains of Bacillus 
exhibiting antifungal properties were assessed for the toxicity 
endpoints. All of the isolated B. cereus and B. amyloliquefaciens 
strains studied showed cytotoxicity as evidenced by inhibition of boar 
spermatozoa motility; however, the B. amyloliquefaciens strains 
affected boar spermatozoa differently from the indoor B. cereus 
isolates and the reference food-poisoning strain.
    The isolation of cytotoxic strains of B. amyloliquefaciens from 
water-damaged buildings is of little concern in relation to this 
exemption of B. amyloliquefaciens subsp. amyloliquefaciens. It is 
important to note that all of the B. amyloliquefaciens strains studied 
in water-damaged buildings were specifically selected for further study 
because the isolates exhibited antifungal activity. Some of the 
secondary metabolites produced by these biocontrol-type strains of B. 
amyloliquefaciens apparently also exhibit cytotoxicity to mammalian 
cells (i.e., boar spermatozoa). However, industrial strains of B. 
amyloliquefaciens that would fall into the classification as B. 
amyloliquefaciens subsp. amyloliquefaciens have been shown not to 
produce most, if not all, of the antifungal and antibacterial 
lipopeptides and polyketides produced by the biocontrol-type strains. 
The genome of the type strain of B. amyloliquefaciens DSM 7\T\ (now B. 
amyloliquefaciens subsp. amyloliquefaciens) is very similar to the 
genome of the biocontrol strain FZB42 (B. amyloliquefaciens subsp. 
plantarum). However, the latter subspecies had genomic islands carrying 
prophage sequences, transposases, integrases, and recombinases that the 
DSM 7\T\ type strain did not have. The DSM 7\T\ type strain was shown 
to have a diminished capacity to non-ribosomally synthesize secondary 
metabolites with antifungal and antibacterial activities. The DSM 7\T\ 
type strain could not produce the polyketides difficidin or 
macrolantin, and could not produce lipopeptide such as iturin, 
macrolantin, and other compounds except for the compound surfactin.
    The only other reported instance of mammalian toxin production by 
B. amyloliquefaciens was during the 1980s with the commercial 
production of tryptophan, by a genetically engineered strain of B. 
amyloliquefaciens, strain IAM 1521. The consumption of the tryptophan 
food supplement from various retail lots produced by one specific 
company resulted in an epidemic of a disease known as eosinophilia-
myalgia syndrome (EMS) in which 1,511 were sickened, and 37 people 
died. Although this disease incidence was widely studied, the cause of 
the disease was never confirmed. It was thought to be due to the 
consumption of a chemical constituent that was associated with specific 
tryptophan manufacturing processes. This included the combination of 
using reduced quantities of powdered carbon for a purification step 
with the use of a ``new'' strain of B. amyloliquefaciens called Strain 
V. There purportedly was a chemical substance produced as a result of 
the genetic engineering of this certain strain, but the toxin was not 
attributable to the parental strain of B. amyloliquefaciens as not all 
production batches were toxic.
    Although there are isolated reports of toxin production in several 
antifungal, environmental isolates of B. amyloliquefaciens, the larger 
body of studies available on the safety and toxicity of B. 
amyloliquefaciens strains used industrially for enzyme production (Ref. 
6) indicate that these strains are safe and non-toxic. For example, the 
toxicity of industrial strains of B. amyloliquefaciens, B. subtilis, 
and B. licheniformis used for large-scale enzyme production has been 
studied. The industrial strains did not exhibit any cytotoxicity in 
Chinese hamster ovary tests. In Europe, the toxicity of two strains of 
B. amyloliquefaciens used for the production of [alpha]-amylase and 
bacillolysin for the product Kemzyme W Dry was assessed by the EFSA's 
Scientific Panel on Additives and Products or Substances used in Animal 
Feed. The panel concluded that the B. amyloliquefaciens production 
strains DSM9553 and DSM9554 when used as a source of extracellular 
enzyme do not present a toxigenic risk. Given its widespread 
distribution in the environment, its long history of safe use in 
industrial fermentation, the absence of reports on pathogenicity to 
humans, and the limited reports of cytotoxicity, all indicate that the 
use of B. amyloliquefaciens in fermentation facilities for production 
of enzymes or specialty chemicals does not present a human health 
concern.
    b. Environmental hazards--i. Hazards to animals. There are no 
reports suggesting that B. amyloliquefaciens is pathogenic to 
domesticated animals or wildlife. The cytotoxicity of antifungal 
secondary metabolites to mammalian cells by biocontrol stains of B. 
amyloliquefaciens is discussed in this unit.
    ii. Hazards to plants. B. amyloliquefaciens is not pathogenic to 
plants. There are plant-associated strains of B. amyloliquefaciens that 
are beneficial to plants because they inhibit the growth of fungal 
plant pathogens. Various antifungal and antibacterial secondary 
metabolites produced by

[[Page 54506]]

strains of B. amyloliquefaciens such as various iturins, surfactins, 
fengycin, bacillomycins, and azalomycin have been shown to inhibit the 
growth of Rhizoctonia solani, Xanthomonas campestris pv. campestris, 
Alternaria brassicae, Botyris cinerea, Leptosphaeria maculans, 
Verticillium longisporum, Pythium ultimatum, Aspergillus spp., Fusarium 
spp., Bipolaris sorokiniana, and Fusarium oxysporum.
    In addition to the ability of B. amyloliquefaciens to produce 
antifungal and antibacterial compounds, the bacterium is known as a 
plant growth-promoting rhizobacterium. Some of the biological control 
strains of B. amyloliquefaciens produce the phytohormone indole-3-
acetic acid (IAA).
    6. Studies which indicate the survival characteristics of the 
microorganism in the environment. Using polymerase chain reaction (PCR) 
techniques, it has been found that populations of viable B. 
amyloliquefaciens inoculated at high densities to intact soil-core 
microcosms decreased to below the detection limit within 1 month. 
Survival was longer for a genetically modified B. amyloliquefaciens 
strain on leaf surfaces; vegetative cells were still detected for over 
2 months in the phylloplane. Viable cells were not detectable in plant 
roots after 1 month or in soils after a few days. Given that the 
natural habitat for B. amyloliquefaciens is typically in soil, on plant 
roots, or as an endophyte within the roots or stems of plants, the 
bacterium is likely to survive for a least some period of time if 
inadvertently released to the environment. However, like other bacilli, 
survival in soil may occur predominately as the resistant endospore 
state, whereas in the rhizosphere, it may exist as active vegetative 
cells.

IV. Physical Containment and Control Technologies

A. Release and Exposure Assessment in Support of Proposed TSCA Section 
5(h)(4) Exemption for T. reesei QM6a

    The estimated releases of the microorganism from an enzyme 
manufacturing facility and exposures of the microorganisms to workers, 
the general population, and the environments are based on a generic 
scenario developed by EPA for large-scale closed system fermentation. 
Assumptions in the generic scenario are that the facility operates 350 
days/year, produces 100 batches/year, and the maximal cell 
concentration in the fermentation broth is 1 x 10\7\ colony-forming 
units (cfu)/ml, and the volume of the fermentation broth is 70,000 L. 
The process consists of the main steps of laboratory propagation, 
fermentation and then recovery where filtration operations separate out 
the biomass from the concentrated desired product. The operations, 
sources of exposure and release are described in more detail in EPA's 
Release and Exposure Assessments (Ref. 8).

B. Release and Exposure Assessment in Support of Proposed TSCA 5(h)(4) 
Exemption for B. amyloliquefaciens

    The estimated releases of the microorganism from an enzyme 
manufacturing facility and exposures of the microorganisms to workers, 
the general population, and the environments are based on a generic 
scenario developed by EPA for large-scale closed system fermentation. 
Assumptions in the generic scenario are that the facility operates 350 
days/year, produces 100 batches/year, and the maximal cell 
concentration in the fermentation broth is 1 x 10\11\ cfu/ml and the 
volume of the fermentation broth is 70,000 L. The process consists of 
the main steps of laboratory propagation, fermentation and then 
recovery where filtration operations separate out the biomass from the 
concentrated desired product. The operations, sources of exposure and 
release are described in more detail in EPA's Release and Exposure 
Assessments (Ref. 9).
    Additionally, containment and control technologies are delineated 
in the Sec.  725.422 for Tier I and Tier II exemptions.

V. Risk Assessment

A. Risk Assessment for T. reesei QM6a

    There is only one potential concern for human health and 
environmental hazards associated with T. reesei QM6a, and that is for 
paracelsin production. Paracelsin production is not expected to occur 
in submerged standard industrial fermentation operations in which no 
solid plant material or insoluble substrate is present in the 
fermentation broth. There is no concern for potential pathogenicity of 
T. reesei QM6a to humans, plants, domesticated animals, or wildlife. 
Pathogenicity test data on various industrial strains typically do not 
show adverse effects. Toxicity testing on a number of enzymes produced 
by T. reesei indicates that the fungus does not produce toxins under 
the standard conditions used for enzyme production.
    T. reesei has a long history of safe use and would be expected to 
present low hazard to workers, the general public, and the environment. 
Although direct monitoring data are unavailable, worst-case estimates 
of potential exposures made by EPA in its assessment of potential risks 
(Ref. 6) do not indicate high levels of exposure of T. reesei to either 
workers or the public resulting from the submerged industrial enzyme 
fermentation operations that are standard throughout the industry. 
Standard industrial hygiene management practices currently used in the 
fermentation industry reduce the potential for adverse health effects 
in the workplace. The standard use of engineering controls (closed 
fermentation systems), appropriate work practices, personal protective 
equipment, and personal hygiene reduce the potential for worker 
exposure. Thus, current practices reduce the potential for the dermal 
and respiratory exposures estimated by EPA.
    EPA has made a preliminary determination based on worst-case 
exposure scenarios and toxicity of the microorganism that the potential 
risk to workers, the general public, and to the environment resulting 
from the use of T. reesei QM6a in submerged standard industrial 
fermentation as a recipient microorganism is low, provided the 
additional criteria of the tiered exemptions for the introduced genetic 
material and the physical containment conditions are met (Ref. 6).

B. Risk Assessment for B. amyloliquefaciens

    Industrial strains of Bacillus amyloliquefaciens that would fall 
into the subspecies Bacillus amyloliquefaciens subsp. amyloliquefaciens 
are not pathogenic to humans, plants, domesticated animals, or 
wildlife, and do not produce many of the toxic secondary metabolites 
found in biological control strains of B. amyloliquefaciens subsp. 
plantarum. The long history of safe use of enzymes produced by 
industrial strains of B. amyloliquefaciens in food is evidence that the 
bacterium does not produce toxins under standard conditions used for 
enzyme production.
    Current practices in the fermentation industry reduce the potential 
for adverse health effects in the workplace. The use of engineering 
controls (closed fermentation systems), appropriate work practices, 
personal protective equipment, and personal hygiene reduce the 
potential for worker exposure. Thus, current practices reduce the 
potential for dermal and respiratory exposures.
    Industrial strains of B. amyloliquefaciens have a long history of

[[Page 54507]]

safe use and would be expected to present low hazard to workers, the 
general public, and the environment. Although direct monitoring data 
are unavailable, worst-case estimates do not suggest high levels of 
exposure of B. amyloliquefaciens to either workers or the public 
resulting from the submerged industrial enzyme fermentation operations 
that are standard throughout the industry.
    EPA has made a preliminary determination based on worst-case 
exposure scenarios and toxicity of the microorganism, that the 
potential risk to workers, the general public, and the environment, 
associated with the use of industrial strains of B. amyloliquefaciens 
subsp. amyloliquefaciens in submerged standard industrial fermentation 
as a recipient microorganism is low provided the additional criteria of 
the tiered exemptions for the introduced genetic material and the 
physical containment conditions are met (Ref. 7).

VI. Economic Impacts

    EPA's economic assessment (Ref. 10) evaluates the potential for 
significant economic impacts as a result of the addition of two 
microorganisms (Trichoderma reesei (Strain QM6a) and Bacillus 
amyloliquefaciens subsp. amyloliquefaciens) to Sec.  725.420 which 
lists recipient microorganisms eligible for Tier I and Tier II 
exemptions. Over the course of the first 10 years after the effective 
date of the final rule, if finalized as proposed, EPA estimates that 
the proposed addition of the two microorganisms to the list in Sec.  
725.420 would generate a total cost savings to society of $5.68 
million. Industry would save approximately $1.98 million and the Agency 
would save approximately $3.68 million. The equivalent, annualized cost 
savings are expected to be $552,000 and $535,000 at a 3% and 7% 
discount rate, respectively. EPA estimates that there will be a net 
decrease in burden to society of 72,500 hr over this 10-year period.

VII. Rationale for Proposed Regulatory Action

A. Statutory Background

    Pursuant to TSCA section 5(h)(4), EPA is authorized to exempt the 
manufacturer of any new chemical substance from all or part of the 
requirements of TSCA section 5 if EPA determines that the manufacture, 
processing, distribution in commerce, use, or disposal of the chemical 
substance, or any combination of such activities, will not present an 
unreasonable risk of injury to human health or the environment. Section 
26(c) of TSCA provides that any action authorized under TSCA for an 
individual chemical substance may be taken for a category of such 
chemical substances.
    While TSCA does not contain a definition of ``unreasonable risk,'' 
the legislative history indicates that the determination of 
unreasonable risk requires a balancing of the considerations of both 
the severity and the probability that harm will occur against the 
effect of the final regulatory action on the availability to society of 
the benefits of the chemical substance (Ref. 11). This analysis can 
include an estimate of factors such as market potential, the effect of 
the regulation on promoting or hindering the economic appeal of a 
chemical substance, environmental effects, and many other factors which 
are difficult to define and quantify precisely. EPA may rely not only 
on data available to it, but also on its professional judgment. 
Congress recognized that the implementation of the unreasonable risk 
standard ``will vary on the specific regulatory authority which the 
Administrator seeks to exercise'' [Ibid.].

B. EPA's Approach

    In determining whether T. reesei QM6a and Bacillus 
amyloliquefaciens subsp. amyloliquefaciens will not present an 
unreasonable risk of injury to human health or the environment, the 
Agency considers more than just the inherent risks presented by the two 
microorganisms. The Agency also considers the full range of societal 
benefits associated with the exemption; for example, as discussed in 
more detail in Unit V., EPA considers not only the cost savings to the 
users of the microorganism, but also the societal benefits that flow 
from promotion of the use of low-risk recipient microorganisms, while 
allowing the Agency to direct its resources toward higher risk 
microorganisms.
    EPA is only proposing to revise one aspect of the existing tiered 
exemptions at Sec.  725.420; specifically, EPA is proposing to expand 
the exemption to apply to two specific microorganisms. EPA is not 
reconsidering or otherwise reopening any other aspect of those 
exemptions. The narrow scope of this action necessarily affects the 
scope of EPA's cost-benefit analysis. This means, for example, that EPA 
compares the risks and benefits of the two microorganisms being 
considered for an exemption with the risks that would have resulted if 
those same two microorganisms remained subject to full MCAN submission 
requirements and 90-day EPA review. But EPA does not compare the risks 
and benefits that would result from use of these two microorganisms in 
the absence of any regulation.
    It is also significant that the standard applicable to this 
proposed rule is that the microorganisms will present ``no unreasonable 
risk,'' rather than ``no risk.'' It is not possible to eliminate all 
risks associated with the manufacture, processing, distribution in 
commerce, use, and disposal of any new microorganism nor was this 
Congress' intent. The standard embodied by a TSCA section 5(h)(4) 
exemption does not require the Agency to ensure absolute safety from 
the activities associated with an exempted chemical substance.

C. Application of No Unreasonable Risk Factors

    The following is an explanation of the factors and their analyses 
relevant to the no unreasonable risk finding.
    1. Risks associated with microorganisms. EPA's evaluation of the 
available information concerning T. reesei QM6a and B. 
amyloliquefaciens subsp. amyloliquefaciens against these criteria is 
presented in detail in Unit III., and is summarized again here for the 
readers' convenience.
    The Agency developed specific criteria in Sec.  725.67 that the 
Agency uses in determining the extent of a potential recipient 
microorganism's risks, and consequently, its eligibility for listing at 
Sec.  725.420. These criteria were explained in detail in the proposed 
``biotech'' rule (Ref. 12) and final ``biotech'' rule (Ref. 13), and 
are discussed again in Units II. and III. EPA's conclusions regarding 
the low-risk potential for these two microorganisms are based on the 
available data and EPA's scientific professional judgment based on 14 
years experience reviewing notifications for new intergeneric 
microorganisms submitted in accordance with the regulations at 40 CFR 
part 725.
    T. reesei QM6a is not pathogenic to humans, plants, domesticated 
animals, or wildlife and the fungus does not produce toxins under 
standard industrial conditions used for enzyme production. T. reesei 
QM6a has a long history of safe use and is generally expected to 
present low risk to workers, the general public, and the environment 
resulting from submerged standard industrial enzyme fermentation 
operations that are standard throughout the industry. Under non-
standard conditions of fermentation, such as with extended duration of 
fermentation, or fermentation in the presence of insoluble carbon 
sources such as

[[Page 54508]]

cellulose or other solid surfaces, paracelsin may be produced. The 
risks associated with the production of paracelsin may be significant 
due to the toxicity of paracelsin to mammalian cells, aquatic species, 
Gram-positive bacteria, and various fungi. However, the potential risk 
associated with any paracelsin production would be significantly 
reduced by this proposed rule, which proposes to limit the exemption to 
fermentation operations using submerged standard industrial 
fermentation operations, and in which no solid plant material or 
insoluble substrate is present in the fermentation broth.
    Industrial strains of Bacillus amyloliquefaciens that would fall 
into the subspecies Bacillus amyloliquefaciens subsp. amyloliquefaciens 
are not pathogenic to humans, plants, domesticated animals, or 
wildlife, and do not produce toxins under standard conditions used for 
enzyme production. Industrial strains of B. amyloliquefaciens subsp. 
amyloliquefaciens used in fermentation facilities for the production of 
enzymes have a long history of safe use and are expected to present low 
hazards to human health and the environment resulting from standard 
industrial submerged fermentation operations. Consistent with the 
proposed restrictions on Trichoderma reesei discussed in Unit II.A., 
only strains of Bacillus amyloliquefaciens that would fall into the 
subspecies Bacillus amyloliquefaciens subsp. amyloliquefaciens were 
considered as the eligible recipient microorganism at Sec.  725.420. 
EPA is proposing to exclude other strains/subspecies of these two 
species for which:
     The Agency still has insufficient data and review 
experience to find that they will not present an unreasonable risk of 
injury or
     The Agency has found that, under certain conditions, based 
on data on the species in question, a strain or subspecies may present 
an unreasonable risk, thereby requiring a closer examination of the 
conditions of manufacturing, processing, distribution in commerce, use, 
and disposal during a full 90-day Premanufacture Notice (PMN) review. 
Consequently, additional information would be necessary to make an 
appropriate determination about the organisms' potential risks and 
benefits.
    The Agency believes that the requirement for submission of a MCAN 
followed by a 90-day review period for new intergeneric microorganisms 
that use T. reesei QM6a and Bacillus amyloliquefaciens subsp. 
amyloliquefaciens as recipient microorganisms is not necessary to 
address the risks associated with these microorganisms, and would not 
result in any additional protection than would be achieved by this 
proposed rule. In part, this conclusion is based on EPA's preliminary 
findings regarding the intrinsically low level of hazard that these two 
organisms pose to human health and the environment. In addition, the 
existing requirements of the Tier I and Tier II exemptions, taken with 
the proposed restrictions, would place sufficient constraints to 
significantly limit the potential risks of injury to human health or 
the environment that these two microorganisms may present.
    In sum, the Agency believes that the criteria set forth in this 
proposed exemption would be sufficient to mitigate the identified risks 
associated with these microorganisms.
    2. Costs. This proposed rule expands an existing exemption, and as 
discussed in Unit VI., would significantly reduce costs to currently 
regulated entities. The proposed rule would not otherwise impose any 
additional cost or other burden on currently regulated entities, or 
existing fermentation processes.
    EPA further believes that limiting the use of this proposed 
exemption to the identified fermentation conditions would impose no 
burden on affected entities. The restriction merely codifies existing 
industrial fermentation procedures that are common practices for 
manufacturing operations that currently seek to use tiered exemptions. 
Consequently, EPA expects that most, if not all, manufacturers 
currently using these microbes will already have the measures in place 
to qualify for the exemption. Equally important, this limitation would 
add no burden to any existing fermentation processes. Currently, 
fermentation operations with either of these microbes are not eligible 
for the tiered exemption, and thus a MCAN must be submitted. Any 
company that chooses to use a different fermentation process could 
continue to operate under the status quo and simply submit a MCAN. This 
proposed rule would simply offer an additional, less costly option, to 
facilities that choose to use the fermentation operations discussed in 
this proposed rule.
    3. Benefits. The following discussion describes the benefits of 
this proposed rule in a qualitative manner; for a more quantitative 
approach, see the economic analysis prepared for this proposed rule 
(Ref. 10). A summary of that economic analysis is also provided in Unit 
VI.
    The benefits analyzed encompass more than the direct benefits 
associated with submitting a Tier I or Tier II exemption for a new 
intergeneric microorganism rather than a MCAN. Rather, EPA's benefit 
analysis included a consideration of the broader benefits to society. 
EPA's unreasonable risk determination is based on broader benefits to 
society as well as those benefits attributable to a reduction in the 
burden associated with submission of Tier I and Tier II exemptions 
rather than MCANs.
    EPA believes manufacturers of new intergeneric microorganisms based 
on these low-risk microorganisms currently bear an unnecessary 
regulatory burden in continuing to file MCANs. By adding T. reesei QM6a 
and B. amyloliquefaciens to the list of eligible recipient 
microorganisms in Sec.  725.420, the Agency removes unnecessary 
regulatory impediments to the design, manufacture, and 
commercialization of these low risk new intergeneric microorganisms, 
and of the chemical substances that can be produced by these safer 
microorganisms. This action would also substantially reduce the costs 
associated with industry's reporting burden, including the costs 
associated with the preparation of the submission, and with the delay 
in the commercial market introduction of the new intergeneric 
microorganism. Some of the cost-savings benefits may accrue to small 
businesses, either as developers of the exempt microorganisms, as 
producers of fermentation chemicals using the live microorganisms, or 
as customers for enzymes or other products made using the 
microorganisms.
    There would also be a reduction in the Agency review resources 
currently allocated to reviews of MCANs for these two microorganisms. 
These Agency resources would be shifted to the review of new 
intergeneric microorganisms or chemical substances of greater concern.
    There would be cost savings to both the industry and the Agency. 
The proposed rule is expected to positively impact the rate of 
innovation in the industry. It is reasonable to assume that a new 
intergeneric microorganism will either possess a new function or serve 
an existing function more efficiently or less expensively. The 
reduction in delay for that new intergeneric microorganism to be 
introduced into commerce is a benefit to both manufacturers and the 
general public who will have access to the substance more quickly. The 
expected benefits to innovation have not been quantified but include: 
Reduced time to develop and commercialize organisms; decreased cost of 
some downstream industrial products, such as fuel ethanol; improved 
consumer appeal of some products, such as certain

[[Page 54509]]

textiles; and reduced costs of some consumer products, such as 
detergent and leather goods.
    4. Risk/benefit balance. Determining the presence or absence of an 
unreasonable risk requires balancing of the benefits and risks posed by 
a regulatory action. EPA has determined that the risks are generally 
low based on the inherent properties and intended uses of T. reesei 
QM6a and B. amyloliquefaciens, and would be adequately managed by the 
restrictions in the proposed rule, combined with the existing 
requirements of the Tier I and Tier II exemptions.
    As noted in this unit, EPA believes that this proposed rule would 
impose no costs. This proposed rule expands an existing exemption, and 
as such, would in fact reduce costs to currently regulated entities. 
This proposed rule would not otherwise impose any additional cost or 
other burden on currently regulated entities, or existing fermentation 
processes. The limitation on the use of the proposed exemption to 
certain fermentation conditions is not a cost that would be imposed by 
this proposed rule but rather a limitation on the amount of regulatory 
relief it would provide. The proposed conditions reflect industrial 
fermentation procedures that are currently common practices for the 
affected industry.
    EPA also believes that the benefits of this proposed rule are quite 
significant. This proposed rule would reduce the overall regulatory 
burden for affected entities by reducing the reporting requirements and 
by eliminating the delay of these products into commerce. As a 
consequence, this would benefit both regulated entities and the general 
public by promoting the expedited manufacture and use of the chemical 
substances produced using these low-risk organisms and manufacturing 
processes. There is also the added benefit of concentrating limited EPA 
resources on regulation of chemical substances which have a greater 
potential to present significant risks, rather than on these two 
microorganisms. While this is difficult to quantify, it is considered 
substantial nonetheless.
    In sum, the Agency believes that the criteria set forth in this 
proposed exemption are sufficient to mitigate the low level of 
potential risks presented by these organisms, particularly when 
compared to the benefits, in toto, of this proposed exemption, to 
levels that are consistent with the statutory standard for an 
exemption. Consequently, EPA has made a preliminary conclusion that 
adding T. reesei QM6a and B. amyloliquefaciens as recipient 
microorganisms to the list of recipient microorganisms at Sec.  725.420 
is appropriate, as it would not present an unreasonable risk of injury 
to human health or the environment when manufactured under the 
conditions of this proposed exemption.

VIII. Request for Public Comment, Rulemaking Process, and Request for 
an Informal Public Hearing

A. Rulemaking Process and Request for an Informal Public Hearing

    EPA is conducting this rulemaking under the notice and comment 
rulemaking procedures of section 553 of the Administrative Procedure 
Act (APA), 5 U.S.C. 553. Interested persons have the opportunity to 
submit written comments by the methods identified under ADDRESSES. EPA 
will carefully consider all such comments.
    EPA is also providing an opportunity for an informal public hearing 
on the proposed rule. This hearing will be held only if EPA receives a 
timely written request for such a hearing.
    As a general matter, EPA is not required to hold a public hearing 
in informal notice and comment rulemaking conducted under APA section 
553. However, use of TSCA section 5(h)(4) modifies the APA section 553 
rulemaking requirements by referencing TSCA section 6(c)(2) and (c)(3) 
rulemaking procedures. Under the TSCA section 6 procedures, EPA must 
hold an informal public hearing, if requested, and, if properly 
requested and granted by EPA, allow an opportunity to present rebuttal 
submissions and conduct cross-examinations related to disputed issues 
of material fact.
    EPA does not anticipate that, even if a hearing is held, there will 
be a need for rebuttal submissions and cross-examination, because the 
TSCA section 5(h)(4) portion of this proposed rulemaking is based 
primarily on matters of science policy that do not yield disputed 
factual issues.

B. Specific Comment Solicitation

    EPA is seeking public comment pertaining to several specific issues 
regarding the proposed rule.
    1. Do the proposed rule and supporting documents adequately 
address:
     The effects of the new microorganism on health and the 
environment?
     The magnitude of exposure of human beings and the 
environment to the new microorganism?
     The benefits of the new microorganism for various uses and 
the availability of substitutes for such uses?
     The reasonably ascertainable economic consequences of 
granting or denying the exemption, including effects on the national 
economy, small business, and technological innovation?
    2. Does the proposed rule address taxonomy adequately (is the 
Agency capturing and excluding the correct strains)?
    3. Does the proposed rule address the right description of typical 
conditions for enzyme production (eliminating plant material/solid 
surfaces)?
    4. Are the limitations on the use of T. reesei QM6a reasonable for 
preventing paracelsin production (i.e., having no solid plant material 
or insoluble substrate with the microorganism)?

IX. References

    As indicated under ADDRESSES, a docket has been established for 
this proposed rule under docket ID number EPA-HQ-OPPT-2011-0740. The 
following is a listing of the documents that have been placed in the 
docket for this proposed rule. The docket includes information 
considered by EPA in developing this proposed rule, including the 
documents listed in this unit, which are physically located in the 
docket. In addition, interested parties should consult documents that 
are referenced in the documents that EPA has placed in the docket, 
regardless of whether these referenced documents are physically located 
in the docket. For assistance in locating documents that are referenced 
in documents that EPA has placed in the docket, but that are not 
physically located in the docket, please consult the technical contact 
listed under FOR FURTHER INFORMATION CONTACT. The docket is available 
for review as specified under ADDRESSES.
    1. Genencor International, Inc. Letter of Application to list 
Trichoderma reesei as exempt under subpart G of 40 CFR Part 725--
Reporting Requirements and Review Processes for Microorganisms. 
March 17, 2005.
    2. Novo Nordisk BioChem North America, Inc. Letter of 
Application to list B.amyloliquefaciens as exempt under subpart G of 
40 CFR Part 725--Reporting Requirements and Review Processes for 
Microorganisms. November 7, 1997.
    3. EPA, OPPT. Email confirming Novo Nordisk BioChem North 
America, Inc.'s letter of application to list B.amyloliquefaciens as 
exempt under subpart G of 40 CFR Part 725--Reporting Requirements 
and Review Processes for Microorganisms. August 3, 2009.
    4. ETA. Supplemental information on Trichoderma reesei. January 
29, 2010.
    5. ETA. Supplemental information on Trichoderma reesei. June 16, 
2011.
    6. EPA, OPPT. Risk Assessment of Trichoderma reesei for 
Consideration of Addition to the List of Eligible Recipient

[[Page 54510]]

Microorganisms for the Tiered 5(h)(4) Exemptions from MCAN Reporting 
Requirements. October 2011.
    7. EPA, OPPT. Risk Assessment of Bacillus amyloliquefaciens 
subsp. amyloliquefaciens for Consideration of Addition to the List 
of Eligible Recipient Microorganisms for the Tiered 5(h)(4) 
Exemptions from MCAN Reporting Requirements. October 2011.
    8. EPA, OPPT. Release and Exposure Assessment in Support of 
Proposed TSCA 5(h)(4) Exemption for Trichoderma reesei. June 2011.
    9. EPA, OPPT. Release and Exposure Assessment in Support of 
Proposed TSCA 5(h)(4) Exemption for Bacillus amyloliquefaciens. June 
2011.
    10. EPA, OPPT. Economic Analysis for the Proposed Biotechnology 
Exemptions Rule for Trichoderma reesei and Bacillus 
amyloliquefaciens. September 2011.
    11. Legislative History of the Toxic Substances Control Act, pp. 
409-423. House Report 1341, 94th Congress, 2nd Session. 1976.
    12. EPA. Microbial Products of Biotechnology; Proposed 
Regulation under the Toxic Substances Control Act. Federal Register 
(59 FR 45526; September 1, 1994) (FRL-4774-4).
    13. EPA. Microbial Products of Biotechnology; Final Regulation 
under the Toxic Substances Control Act. Federal Register (62 FR 
17910; April 11, 1997) (FRL-5577-2).

X. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563:

Improving Regulation and Regulatory Review
    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011). EPA prepared an analysis of the 
potential costs and benefits associated with this action, which is 
summarized in Unit VI.

B. Paperwork Reduction Act (PRA)

    According to PRA, 44 U.S.C. 3501 et seq., an agency may not conduct 
or sponsor, and a person is not required to respond to, a collection of 
information that requires approval by the Office of Management and 
Budget (OMB) under PRA, unless it has been approved by OMB and displays 
a valid OMB control number. The OMB control numbers for EPA's 
regulations in title 40 of the CFR, after appearing in the Federal 
Register, are listed in 40 CFR part 9, and included on the related 
collection instrument, or form, if applicable.
    The information collection requirements related to the submission 
of Tier I and Tier II notification are already approved by OMB under 
PRA, and have been assigned OMB control numbers 2070-0012 and 2070-
0038. This proposed rule does not impose any new requirements, or 
otherwise increase burden such that additional OMB review or approval 
is necessary. Instead, this proposed rule is expected to reduce the 
amount of required reporting by allowing firms to submit less 
information for qualifying microorganisms.
    The PRA requires agencies to estimate the potential recordkeeping 
and reporting burden of a proposed rule. In this context, the term 
``burden'' is defined in 5 CFR 1320.3(b). EPA estimates that this 
proposed rule would result in a reduction of industry burden by 30,695 
hr over 10 years. EPA also estimates that the proposed rule would cause 
a total incremental Agency savings of 41,869 hr over 10 years. Submit 
any comments related to these estimates to EPA. See ADDRESSES for 
submission of comments.

C. Regulatory Flexibility Act (RFA)

    Pursuant to section 605(b) of the RFA, 5 U.S.C. 601 et seq., the 
Agency hereby certifies that this proposed rule, if promulgated as 
proposed, would not have a significant economic impact on a substantial 
number of small entities. Under RFA, small entities include small 
businesses, small organizations, and small governmental jurisdictions. 
For purposes of assessing the impacts of this action on small entities, 
small entity is defined as:
    1. A small business as defined by the Small Business 
Administration's (SBA) regulations at 13 CFR 121.201 using either the 
number of employees or annual receipts for the businesses affected by 
the regulation, which for this action includes any business that is 
conducting commercial research and development activities or persons 
manufacturing, importing or processing products using intergeneric 
microorganisms for biofertilizers; biosensors; enzyme, commodity, or 
specialty chemical production; energy applications; waste treatment or 
pollutant degradation; and other TSCA subject uses.
    2. A small governmental jurisdiction that is a government of a 
city, county, town, school district, or special district with a 
population of less than 50,000.
    3. A small organization that is any not-for-profit enterprise which 
is independently owned and operated and is not dominant in its field.
    In making this determination, the impact of concern is any 
significant adverse economic impact on small entities because the 
primary purpose of regulatory flexibility analysis is to identify and 
address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604. 
Thus, an agency may certify under RFA when the rule relieves regulatory 
burden, or otherwise has no expected economic impact on small entities 
subject to the rule.
    This proposed rule is an exemption, and is therefore expected to 
reduce the existing regulatory burden, which will benefit all 
submitters regardless of the size of the entity. The factual basis for 
the Agency's certification under RFA is presented in the small entity 
impact analysis prepared as part of the Economic Analysis for this 
proposed rule (Ref. 10), and is briefly summarized in Unit VI.
    We continue to be interested in the potential impacts of the 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

D. Unfunded Mandates Reform Act (UMRA)

    EPA has determined that this action does not impose any enforceable 
duty or contain any unfunded mandate for State, local, or Tribal 
governments or the private sector, and does not otherwise have any 
effect on small governments, such that it is subject to the 
requirements of sections 202, 203, 204, or 205 of UMRA, 2 U.S.C. 1531-
1538. As indicated previously, this action is expected to reduce costs. 
In addition, based on EPA's experience with past MCANs and Tier I and 
II exemptions, State, local, and Tribal governments have not been 
affected by these reporting requirements, and EPA does not have any 
reason to believe that any State, local, or Tribal government will be 
affected by this particular rulemaking. A search of past submissions to 
EPA demonstrated that no State, local, or Tribal government have ever 
submitted a MCAN, Tier I or Tier II notification to EPA. EPA has no 
information to indicate that any State, local, or Tribal government 
commercially manufactures the microorganisms covered by this action.

E. Executive Order 13132: Federalism

    For the same reasons presented in Unit X.D., the Agency has 
determined that this action will not have a substantial direct effect 
on State or local governments, on the relationship between the national 
government and the States or local governments, or on the distribution 
of power and responsibilities among the various

[[Page 54511]]

levels of government. Thus, the Agency has determined that Executive 
Order 13132 (64 FR 43255, August 10, 1999) does not apply to this 
action.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    For the same reasons presented in Unit X.D., the Agency has 
determined that this action will not have a substantial direct effect 
on tribal governments, on the relationship between the national 
government and Tribal governments, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes. 
Thus, the Agency has determined that Executive Order 13175 (65 FR 
67249, November 9, 2000) does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it does not 
establish an environmental standard intended to mitigate health or 
safety risks, nor is it an ``economically significant regulatory 
action'' as defined by Executive Order 12866.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001), because it is not a significant regulatory action under 
Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of NTTAA, 15 U.S.C. 272 note, directs EPA to use 
voluntary consensus standards in its regulatory activities unless to do 
so would be inconsistent with applicable law or impractical. Voluntary 
consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, etc.) that are 
developed or adopted by voluntary consensus standards bodies. This 
proposed rule does not impose any technical standards that would 
require EPA to consider any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    This action does not have disproportionately high and adverse human 
health or environmental effects on minority or low-income populations 
because it does not affect the level of protection provided to human 
health or the environment. Therefore, this action does not involve 
special consideration of environmental justice-related issues as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).

List of Subjects in 40 CFR Part 725

    Environmental protection, Administrative practice and procedure, 
Biotechnology, Chemicals, Hazardous substances, Imports, Labeling, 
Microorganisms, Occupational safety and health, Reporting and 
recordkeeping requirements.

    Dated: August 28, 2012.
James Jones,
Acting Assistant Administrator, Office of Chemical Safety and Pollution 
Prevention.
    Therefore, it is proposed that 40 CFR chapter I be amended as 
follows:

PART 725--[AMENDED]

    1. The authority citation for part 725 continues to read as 
follows:

    Authority:  15 U.S.C. 2604, 2607, 2613, and 2625.

    2. In Sec.  725.3, add in alphabetical order the definition below 
to read as follows:


Sec.  725.3  Definitions.

* * * * *
    Submerged standard industrial fermentation for purposes of this 
part, means a fermentation system that meets all of the following 
conditions:
    (1) Submerged fermentation (i.e., growth of the microorganism 
occurs beneath the surface of the liquid growth medium).
    (2) Any fermentation of solid plant material or insoluble 
substrate, to which T. reesei fermentation broth is added after the 
standard industrial fermentation is completed, may be initiated only 
after the inactivation of the microorganism as delineated in Sec.  
725.422(d).
* * * * *
    3. In Sec.  725.420, add new paragraphs (k) and (l) to read as 
follows:


Sec.  725.420  Recipient microorganisms.

* * * * *
    (k) Trichoderma reesei strain QM6a used only in submerged standard 
industrial fermentation operations in which no solid plant material or 
insoluble substrate is present in the fermentation broth, fermentation 
may only be initiated after the inactivation of T. reesei as delineated 
in Sec.  725.422(d).
    (l) Bacillus amyloliquefaciens subsp. amyloliquefaciens.

[FR Doc. 2012-21843 Filed 9-4-12; 8:45 am]
BILLING CODE 6560-50-P


