Registration Requirements for Antimicrobial Pesticide Products and Other Pesticide Regulatory Changes

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Part IV

Environmental Protection Agency

_______________________________________________________________________

40 CFR Parts 152 and 156

Registration Requirements for Antimicrobial Pesticide Products and

Other Pesticide Regulatory Changes; Proposed Rule

Proposed Rules

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 152 and 156

[OPP-300890; FRL-5770-6]

RIN 2070-AD14

Registration Requirements for Antimicrobial Pesticide Products

and Other Pesticide Regulatory Changes

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: EPA is proposing to establish procedures for the registration

of antimicrobial products, as well as implement other provisions of the

Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended

by the Food Quality Protection Act. This proposal is required by FIFRA.

In addition to registration procedures for antimicrobial products,

EPA also proposes to establish labeling standards for antimicrobial

public health products, which will ensure that these products are

appropriately labeled for the level of antimicrobial activity they

demonstrate; to modify its notification process for antimicrobial

products to conform to the statutorily prescribed process; and to

exempt certain antimicrobial products from FIFRA regulation.

EPA believes that the new procedures and provisions will streamline

and improve the registration process, increase consistency and

certainty for antimicrobial producers, reduce the timeframes for EPA

decisions on antimicrobial registrations, increase public health

protection by ensuring the continued efficacy of antimicrobial public

health pesticides, and promote international harmonization efforts.

EPA is also proposing to implement a number of general provisions

of FIFRA that are not specific to antimicrobial pesticides

ertainty for antimicrobial producers, reduce the timeframes for EPA

decisions on antimicrobial registrations, increase public health

protection by ensuring the continued efficacy of antimicrobial public

health pesticides, and promote international harmonization efforts.

EPA is also proposing to implement a number of general provisions

of FIFRA that are not specific to antimicrobial pesticides. EPA

proposes to interpret the applicability of the new FIFRA definition of

``pesticide'' that excludes liquid chemical sterilants from FIFRA

regulation and includes nitrogen stabilizers, and to describe

requirements pertaining to use dilution labeling. These proposals are

intended to implement new provisions of FIFRA, and to update current

regulations and procedures.

Finally, EPA is proposing technical, conforming and organizational

changes to portions of its regulations on pesticide registration and

labeling for clarity and understanding.

DATES: Comments, identified by the docket control number OPP-300890,

must be received on or before November 16, 1999.

ADDRESSES: Comments may be submitted by regular mail, electronically,

or in person. Please follow the detailed instructions for each method

as provided in Unit I of the SUPPLEMENTARY INFORMATION section of this

notice.

FOR FURTHER INFORMATION CONTACT: Jean M. Frane, Field and External

Affairs Division (7506C), Office of Pesticides Programs, Environmental

Protection Agency, 401 M St., SW., Washington, DC 20460; telephone

number: 703-305-5944; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Notice Apply to You?

You may be potentially affected by this notice if you are a

producer or registrant of antimicrobial or other pesticide products.

Regulated categories and entities may include, but are not limited to:

cy, 401 M St., SW., Washington, DC 20460; telephone

number: 703-305-5944; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Notice Apply to You?

You may be potentially affected by this notice if you are a

producer or registrant of antimicrobial or other pesticide products.

Regulated categories and entities may include, but are not limited to:

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

Category Examples NAICS Code

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

Producers Pesticide products

32532

Antifoulant paints

32551

Antimicrobial

pesticides 32561

Nitrogen

stabilizer

products 32531

Wood preservatives

32519

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

Wholesalers Pesticide products

42291

Antimicrobial

products 42269

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

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 the table could also be

affected. The North American Industrial Classification System (NAICS)

codes have been provided to assist you and others in determining

whether or not this action might apply to certain entities. If you have

questions regarding the applicability of this action to a particular

entity, consult the person listed in the ``FOR FURTHER INFORMATION

CONTACT'' section.

B. How Can I Get Additional Information or Copies of Support Documents?

Classification System (NAICS)

codes have been provided to assist you and others in determining

whether or not this action might apply to certain entities. If you have

questions regarding the applicability of this action to a particular

entity, consult the person listed in the ``FOR FURTHER INFORMATION

CONTACT'' section.

B. How Can I Get Additional Information or Copies of Support Documents?

1. Electronically. You may obtain electronic copies of this

document and various support documents from the EPA Home page at the

Federal Register Environmental Documents entry for this document under

``Laws and Regulations'' (http://www.epa.gov/fedrgstr/).

2. In person. The Agency has established an official record for

this action under docket control number OPP-300890. The official record

consists of the documents specifically referenced in this action, any

public comments received during an applicable comment period, and other

information related to this action, including any information claimed

as confidential business information (CBI). This official record

includes the documents that are physically located in the docket, as

well as the documents that are referenced in those documents. The

public version of the official record does not include any information

claimed as CBI. The public version of the official record, which

includes printed, paper versions of any electronic comments submitted

during an applicable comment period, is available for inspection in the

Public Information and Records Integrity Branch (PIRIB), Rm. 119,

Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA, from 8:30

a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The

PIRIB telephone number is (703) 305-5805.

C. How and to Whom Do I Submit Comments?

ny electronic comments submitted

during an applicable comment period, is available for inspection in the

Public Information and Records Integrity Branch (PIRIB), Rm. 119,

Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA, from 8:30

a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The

PIRIB telephone number is (703) 305-5805.

C. How and to Whom Do I Submit Comments?

You may submit comments by mail, in person, or electronically. To

ensure proper receipt by EPA, it is imperative that you identify docket

control number OPP-300890 in the subject line on the first page of your

response.

1. By mail. Submit your comments to: Public Information and Records

Integrity Branch (PIRIB), Information Resources and Services Division

(7502C), Office of Pesticide Programs, Environmental Protection Agency,

401 M St., SW., Washington, DC 20460.

2. In person or by courier. Deliver comments to: Public Information

and Records Integrity Branch in Rm. 119, Crystal Mall #2, 1921

Jefferson Davis Highway, Arlington, VA. The Docket Control Office

telephone number is (703) 305-5805.

3. Electronically. You may submit your comments electronically by

e-mail to: ``[email protected] ,'' or you can submit a computer disk

as described above. Do not submit any information electronically that

you consider to be CBI. Avoid the use of special characters and any

form of encryption. Electronic submissions will be accepted in

Wordperfect 5.1/6.1 or ASCII file format. All comments in electronic

form

must be identified by docket control number OPP-300890. Electronic

comments may also be filed online at many Federal Depository Libraries.

D. How Should I Handle Information That I Believe Is Confidential?

be CBI. Avoid the use of special characters and any

form of encryption. Electronic submissions will be accepted in

Wordperfect 5.1/6.1 or ASCII file format. All comments in electronic

form

must be identified by docket control number OPP-300890. Electronic

comments may also be filed online at many Federal Depository Libraries.

D. How Should I Handle Information That I Believe Is Confidential?

You may claim information that you submit in response to this

document as confidential by marking any part or all of that information

as CBI. Information so marked will not be disclosed except in

accordance with procedures set forth in 40 CFR part 2. A copy of the

comment that does not contain CBI must be submitted for inclusion in

the public record. Information not marked confidential will be included

in the public docket by EPA without prior notice.

E. We Invite Your Comments

EPA invites you to provide your views on this proposal, approaches

we have not considered, the potential impacts of the various options

(including possible unintended consequences), and any data or

information that you would like the Agency to consider. You may find

the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide solid technical information and/or data to support your

views.

4. If you estimate potential burden or costs, explain how you

arrived at the estimate.

5. Indicate what you support, as well as what you disagree with.

6. Provide specific examples to illustrate your concerns.

7. Make sure to submit your comments by the deadline in this

proposed rule.

8. At the beginning of your comments (e.g., as part of the

``Subject'' heading), be sure to properly identify the document you are

commenting on. You can do this by providing the docket control number

assigned to the proposed rule, along with the name, date, and Federal

Register citation.

II. Organization of Preamble

. Make sure to submit your comments by the deadline in this

proposed rule.

8. At the beginning of your comments (e.g., as part of the

``Subject'' heading), be sure to properly identify the document you are

commenting on. You can do this by providing the docket control number

assigned to the proposed rule, along with the name, date, and Federal

Register citation.

II. Organization of Preamble

This preamble is organized according to the outline in this unit.

I. General Information

II. Organization of Preamble

III. Authority

A. The Federal Insecticide, Fungicide, and Rodenticide Act

B. The Food Quality Protection Act

C. The Antimicrobial Regulation Technical Corrections Act

IV. Antimicrobial Provisions Addressed in this Proposal

A. Overview

B. Defining Classes of Antimicrobial Use Patterns

C. Defining Types of Application Reviews

D. Conforming Degree of Review to Risks and Benefits

E. Ensuring Efficacy

F. Implementing Deadlines for Process Management

G. Certification Process for Regulatory Actions

H. Certification of Laboratories

I. Notification Processes

J. Revised Procedures for Application Review

K. Allocation of Resources

L. Completeness of Applications

V. Other Statutory Provisions Addressed in this Proposal

A. Changes to the Definition of ``Pesticide''

B. Notification Procedures

C. Use Dilution Labeling

VI. What is an Antimicrobial Pesticide?

A. General Definition

B. Food Use Exclusion

C. Other Specific Exclusions

D. Products Included

VII. Current Registration Procedures for Pesticides

A. Overview of Procedures

B. Volume of Work

C. Review Times

D. Non-regulatory Guidance Documents

VIII. Proposed Antimicrobial Procedures

A. Organization of Proposed Subpart W and Relationship to

Current Regulations

B. Applicability of Subpart W

C. Definitions

D. Types of Applications

E. Consultations During the Application Process

F. Contents of Applications

G. EPA Action on Applications

H. Review Periods

IX. Duration of Registration for Products Bearing Public Health

Claims

A

ents

VIII. Proposed Antimicrobial Procedures

A. Organization of Proposed Subpart W and Relationship to

Current Regulations

B. Applicability of Subpart W

C. Definitions

D. Types of Applications

E. Consultations During the Application Process

F. Contents of Applications

G. EPA Action on Applications

H. Review Periods

IX. Duration of Registration for Products Bearing Public Health

Claims

A. Statutory Requirements

B. Alternatives Considered

C. Sunset Provision

X. General Conditions of Registration

XI. EPA/FDA Jurisdiction over Antimicrobial Products Used in or on

Food

A. Background

B. FDA Regains FFDCA Jurisdiction

C. EPA Retains FIFRA Jurisdiction

XII. Efficacy Performance and Labeling Standards for Antimicrobial

Products

A. Need for Rule

B. 1984 Proposal

C. Current Proposal

XIII. Other Labeling Revisions

A. Use Dilution Labeling

B. Reorganization of Labeling Regulations

C. Updated Toxicity Categories

XIV. Chemical Sterilants

A. Liquid Chemical Sterilants Excluded by Statute

B. Non-liquid Chemical Sterilants Exempted by Regulation

C. Antimicrobial Products Neither Excluded nor Exempted

D. Ethylene Oxide

XV. Nitrogen Stabilizers

A. Nitrogen Stabilizers are Regulated as Pesticides

B. What is a Nitrogen Stabilizer?

XVI. Notification of Registration Changes

A. FQPA Modifications

B. Comparison of Current and New Procedures for Antimicrobial

Products

XVII. Conforming and Organizational Changes

A. Changes in Definitions

B. Exclusions and Exemptions Under FIFRA

XVIII. Consultations During the Development of this Proposal

A. Stakeholder Meetings

B. Workshops

C. Food and Drug Administration

D. Canada

XIX. Table of Affected Sections

XX. Statutory Review Requirements

XXI. Regulatory Assessment Requirements

III. Authority

A. The Federal Insecticide, Fungicide, and Rodenticide Act

anges

A. Changes in Definitions

B. Exclusions and Exemptions Under FIFRA

XVIII. Consultations During the Development of this Proposal

A. Stakeholder Meetings

B. Workshops

C. Food and Drug Administration

D. Canada

XIX. Table of Affected Sections

XX. Statutory Review Requirements

XXI. Regulatory Assessment Requirements

III. Authority

A. The Federal Insecticide, Fungicide, and Rodenticide Act

This proposal is issued under the authority of FIFRA sections 3 and

25, 7 U.S.C. 136a and 136w. Under FIFRA, a pesticide product may not be

distributed or sold in the United States unless it is registered with

the EPA. Registration is a licensing process in which EPA evaluates

each proposed product, its uses, and its labeling to determine whether

it meets the standard for registration in FIFRA section 3(c)(5). That

standard states that, for a registration to be approved, EPA must

determine that the pesticide product, when used in accordance with its

intended uses and with widespread and commonly recognized practice,

will not cause unreasonable adverse effects on the environment. The

registration standard is a risk/benefit standard, which must take into

account the economic, social and environmental costs and benefits of

use.

B. The Food Quality Protection Act

On August 3, 1996, Congress enacted the Food Quality Protection Act

(FQPA), modifying FIFRA and the Federal Food, Drug and Cosmetic Act

(FFDCA). Most of its provisions were effective immediately, although

some require implementing regulations. Units IV. and V. discuss the

statutory provisions of FIFRA as amended by FQPA that this proposal

would implement.

C. The Antimicrobial Regulation Technical Corrections Act

ngress enacted the Food Quality Protection Act

(FQPA), modifying FIFRA and the Federal Food, Drug and Cosmetic Act

(FFDCA). Most of its provisions were effective immediately, although

some require implementing regulations. Units IV. and V. discuss the

statutory provisions of FIFRA as amended by FQPA that this proposal

would implement.

C. The Antimicrobial Regulation Technical Corrections Act

On October 30, 1998, Congress enacted the Antimicrobial Regulation

Technical Corrections Act (ARTCA), which modified the Federal Food,

Drug, and Cosmetic Act (FFDCA) to effectively transfer authority over a

number of pesticide residues to FDA. Regulatory authority over these

residues had originally been transferred to EPA by FQPA. Unit XI.

discusses the

consequences of this statute and how EPA and FDA jurisdiction over

antimicrobial pesticide residues in food has been allocated by ARTCA.

IV. Antimicrobial Provisions Addressed in this Proposal

A. Overview

The FQPA amendments to FIFRA focus attention on antimicrobial

pesticides specifically, and the procedural framework under which the

Agency reviews and approves applications for registration and amendment

of antimicrobial pesticides. This unit discusses the new statutory

provisions for antimicrobial products and how this proposal satisfies

each statutory requirement.

1. Under FIFRA section 3(h)(1), EPA must evaluate its registration

process to identify improvements and reforms that would reduce

historical review times for antimicrobial applications.

2. FIFRA section 3(h)(2) defines the goals for review that process

improvements should be designed to achieve, expressed as review period

reduction goals for various types of applications.

3. Under FIFRA section 3(h)(3)(A), EPA must propose regulations

that address a number of application process elements, with the goal of

implementing specified process management improvements and meeting

section 3(h)(2) goals. EPA is today proposing these regulations. Unit

VIII

vements should be designed to achieve, expressed as review period

reduction goals for various types of applications.

3. Under FIFRA section 3(h)(3)(A), EPA must propose regulations

that address a number of application process elements, with the goal of

implementing specified process management improvements and meeting

section 3(h)(2) goals. EPA is today proposing these regulations. Unit

VIII. discusses each of following statutorily mandated elements, and

briefly describes how today's proposal addresses those requirements:

a. Defining the classes of antimicrobial use patterns.

b. Defining types of application review.

c. Conforming reviews to risks and benefits.

d. Ensuring efficacy.

e. Meeting review time goals.

4. Under FIFRA section 3(h)(3)(B), EPA must in its final rule

consider specified types of application and process improvements that

would contribute to meeting the review time goals or otherwise simplify

the application process, including:

a. Certification mechanisms for applications.

b. Certification of laboratories.

c. Expanded use of notification and non-notification procedures.

d. Clarification of completeness criteria for applications.

e. Revised procedures for application review.

f. Allocation of resources.

In order to consider these topics for inclusion in the final rule,

EPA must offer proposals or options for notice and comment today that

could be incorporated into a final rule. EPA is today proposing

regulations addressing expanded use of notification procedures (see

Unit XVI.) and completeness criteria (See Unit VIII.F.). EPA has

considered certification mechanisms for applicants, and, as discussed

in Unit IV.G., may establish such a mechanism administratively. EPA has

also considered the possibility of laboratory certification programs,

but is not making a specific proposal at this time

regulations addressing expanded use of notification procedures (see

Unit XVI.) and completeness criteria (See Unit VIII.F.). EPA has

considered certification mechanisms for applicants, and, as discussed

in Unit IV.G., may establish such a mechanism administratively. EPA has

also considered the possibility of laboratory certification programs,

but is not making a specific proposal at this time.

Under FIFRA section 3(h)(3)(B), a final regulation must be

promulgated no later than 240 days after the end of the comment period

for those portions of this proposal required by FIFRA section 3(h).

B. Defining Classes of Antimicrobial Use Patterns

FIFRA section 3(h)(3)(A)(ii)(I) requires that EPA ``define the

various classes of antimicrobial use patterns.'' EPA has developed a

comprehensive list of antimicrobial use patterns in conjunction with

its upcoming part 158 proposal on antimicrobial data requirements. That

proposal would establish a set of data requirements that apply solely

to antimicrobial pesticides. EPA has developed an appendix of all

current antimicrobial use patterns, divided into 12 use categories

having common exposures or other similarities. The proposal meshes with

the statutory mandate to identify classes of antimicrobial use patterns

by defining, for each use category, the data requirements that apply.

Unit VIII.D. includes a list of the use categories. A copy of the full

draft Use Appendix is in the docket for this proposal. EPA intends its

proposal of part 158 data requirements to satisfy the statutory

requirement to define classes of antimicrobial use patterns.

C. Defining Types of Application Reviews

ial use patterns

by defining, for each use category, the data requirements that apply.

Unit VIII.D. includes a list of the use categories. A copy of the full

draft Use Appendix is in the docket for this proposal. EPA intends its

proposal of part 158 data requirements to satisfy the statutory

requirement to define classes of antimicrobial use patterns.

C. Defining Types of Application Reviews

FIFRA section 3(h)(3)(A)(ii)(II) requires that EPA ``differentiate

the types of review undertaken for antimicrobial pesticides.'' Since

the primary purpose of differentiating types of review is to ensure

that review time goals are met, EPA views the statutory requirement as

equivalent to defining the types of applications associated with the

review periods in section 3(h)(2). Proposed Sec. 152.445 addresses the

various application types, and describes the general criteria EPA uses

to characterize an application. EPA intends that this section will

satisfy the statutory requirement to differentiate types of reviews,

and also in part will satisfy the requirement for setting out differing

levels of data requirements for various classes of products under FIFRA

section 3(h)(3)(A)(ii)(I).

D. Conforming Degree of Review to Risks and Benefits

FIFRA section 3(h)(3)(A)(ii)(III) requires that EPA ``conform the

degree and type of review to the risks and benefits presented by

antimicrobial pesticides and the function of review under this Act,

considering the use patterns of the product, toxicity, expected

exposure and product type.''

The function of review under FIFRA for any pesticide product, not

just an antimicrobial pesticide, is grounded in the registration

standards of FIFRA section 3(c)(5). As such, EPA review must:

1. Assess the risks and benefits of the pesticide and its use,

relevant to the determination of unreasonable adverse effects

use patterns of the product, toxicity, expected

exposure and product type.''

The function of review under FIFRA for any pesticide product, not

just an antimicrobial pesticide, is grounded in the registration

standards of FIFRA section 3(c)(5). As such, EPA review must:

1. Assess the risks and benefits of the pesticide and its use,

relevant to the determination of unreasonable adverse effects. In the

case of a public health antimicrobial pesticide, a determination that

the product is efficacious when used as directed is central to a

benefits assessment.

2. Determine the adequacy of the pesticide labeling in directing

the pesticide user as to intended and safe use of the pesticide,

thereby minimizing potential adverse effects to the user and the

environment.

EPA believes that its proposed part 158 regulation defining use

categories and data requirements clearly acknowledges that different

use patterns have different exposure patterns and risks. The data

requirements for each use category are commensurate with the potential

exposures and risks associated with that use pattern, and in some cases

are tiered so that higher exposures or higher risks require a second

level of data. The amount and types of data required in and of

themselves dictate a review process that is more detailed, requiring a

more complex assessment for these potentially higher exposures or

higher toxicity. Therefore, in issuing part 158, EPA intends that the

mandate to conform the degree and type of review to risks and benefits

of use will be satisfied.

E. Ensuring Efficacy

FIFRA section 3(c)(5) has required since 1972 that the composition

of a pesticide be such as to warrant the claims made for it, i.e., that

a product work as claimed. Moreover, the registrant must ensure that

the pesticide product continues to meet that efficacy standard as long

as the product is registered. What has changed over time is the manner

in which EPA is assured of product efficacy. Until 1980, EPA

(c)(5) has required since 1972 that the composition

of a pesticide be such as to warrant the claims made for it, i.e., that

a product work as claimed. Moreover, the registrant must ensure that

the pesticide product continues to meet that efficacy standard as long

as the product is registered. What has changed over time is the manner

in which EPA is assured of product efficacy. Until 1980, EPA

reviewed efficacy data for every pesticide product prior to

registration, and thus could assure that, at least at the time of

registration, each product would perform as intended. In 1980, EPA

determined that, for pesticides of economic or aesthetic significance,

the marketplace can be relied upon to weed out inefficacious products.

EPA reasoned that because users can determine for themselves whether a

product works, and are motivated by economic reasons to ensure that

they are using the most efficacious products, less efficacious products

would not survive in a highly competitive marketplace. Accordingly, EPA

no longer routinely reviews efficacy data prior to registration for

most insecticides, fungicides, herbicides, and non-public health

antimicrobial pesticides. Registrants must maintain data demonstrating

efficacy in their files, and submit it to the Agency upon request.

EPA recognized, however, that it could not reduce its efficacy

oversight of public health products and still be assured of product

efficacy. The failure of public health products to work as intended

could have consequences far beyond those of mere economic or aesthetic

significance. Consumers and public health officials must have assurance

that a product will work against pests that pose public health threats.

Many public health products are antimicrobial pesticides registered to

control bacteria, viruses, protozoa, and other microorganisms

pathogenic to man (others are insecticides and rodenticides controlling

pests that are vectors of disease in man)

tic

significance. Consumers and public health officials must have assurance

that a product will work against pests that pose public health threats.

Many public health products are antimicrobial pesticides registered to

control bacteria, viruses, protozoa, and other microorganisms

pathogenic to man (others are insecticides and rodenticides controlling

pests that are vectors of disease in man). Unlike insects or weeds,

microbial pests cannot be seen, and users cannot determine by

observation whether the product actually performs as claimed.

Therefore, EPA cannot rely upon the users or marketplace forces to

ensure product efficacy. Accordingly, EPA has continued to review

efficacy data for public health products prior to registration.

Subdivision G of the Pesticide Assessment Guidelines describes the

efficacy tests required, and the Labeling Guidelines for Pesticide Use

Directions - Antimicrobial Products (Subdivision H) contain the

performance standards that EPA uses to ensure that antimicrobial

products achieve an acceptable level of efficacy for the claims made.

The Pesticide Assessment Guidelines are available from the National

Technical Information Service, 5285 Port Royal Road, Springfield, VA

22161.

FIFRA section 3(h)(3)(A)(ii)(IV) requires EPA to ``ensure that the

registration process is sufficient to maintain antimicrobial pesticide

efficacy and that antimicrobial pesticide products continue to meet

product performance standards and effectiveness levels for each type of

label claim made.'' At first glance, this language may appear merely to

reinforce the existing efficacy standard of FIFRA section 3(c)(5) that,

to be registered, a product must be efficacious. On closer reading,

however, it is clear that the language carries a broader mandate making

explicit the role of the registration process in ensuring continued

efficacy after registration

r each type of

label claim made.'' At first glance, this language may appear merely to

reinforce the existing efficacy standard of FIFRA section 3(c)(5) that,

to be registered, a product must be efficacious. On closer reading,

however, it is clear that the language carries a broader mandate making

explicit the role of the registration process in ensuring continued

efficacy after registration.

EPA has relied on post-registration mechanisms, including

enforcement monitoring, good laboratory practice monitoring and data

audits, testing by EPA and States as co-regulators, registrant

reporting under FIFRA section 6(a)(2), and user complaints to target

inefficacious products in the marketplace. In recent years, enforcement

actions have found a number of incidents of product failure which have

called into question the ability or willingness of producers to ensure

and maintain the efficacy of their products after registration. As a

result, EPA has since 1990 undertaken a systematic testing program for

antimicrobial pesticides. In cooperation with FDA, EPA has tested

sterilant products and has brought a number of enforcement and

regulatory actions against products found to be inefficacious. EPA is

now testing tuberculocides and hospital disinfectants.

After a product has been identified as failing in efficacy, EPA may

use enforcement measures (such as Stop Sale, Use and Removal Orders) to

correct problems. EPA may also use remedies such as cancellation of

registration under FIFRA section 6 to remove inefficacious products

from the marketplace. EPA has found that post-registration reporting,

monitoring, testing and cancellation processes can be cumbersome and

time-consuming. In some cases, products that EPA has found to be

inefficacious have taken years for resolution through the hearing and

appeals processes available to registrants.

EPA agrees wholeheartedly that measures to strengthen the Agency's

oversight of antimicrobial efficacy as part of registration are

desirable

ing,

monitoring, testing and cancellation processes can be cumbersome and

time-consuming. In some cases, products that EPA has found to be

inefficacious have taken years for resolution through the hearing and

appeals processes available to registrants.

EPA agrees wholeheartedly that measures to strengthen the Agency's

oversight of antimicrobial efficacy as part of registration are

desirable. Today's proposal contains two specific provisions to improve

and strengthen EPA's regulatory oversight of the efficacy of public

health antimicrobial pesticides:

1. EPA proposes to incorporate into its regulations, as subpart W

of part 156, the efficacy performance standards for public health

products that are now contained only in its Labeling Guidelines. Unit

XII. further discusses efficacy performance standards for public health

antimicrobial pesticides.

2. EPA proposes to limit the duration of registrations bearing

public health claims to 5 years. In order to extend the registration

for an additional 5 years, each registrant would have to confirm by

analysis that the product composition was the same as that in Agency

files previously demonstrated to be efficacious, and that the product

continued to meet efficacy standards specified in subpart W for each

public health claim. Unit IX. discusses the 5-year duration provision

in greater detail.

EPA believes that these two regulatory provisions will fulfill the

statutory requirement that EPA ensure continued product efficacy

through the registration process.

F. Implementing Deadlines for Process Management

and that the product

continued to meet efficacy standards specified in subpart W for each

public health claim. Unit IX. discusses the 5-year duration provision

in greater detail.

EPA believes that these two regulatory provisions will fulfill the

statutory requirement that EPA ensure continued product efficacy

through the registration process.

F. Implementing Deadlines for Process Management

FIFRA section 3(h)(3)(A)(ii)(V) requires that EPA ``implement

effective and reliable deadlines for process management.'' EPA believes

that the ``deadlines'' referred to are those contained in FIFRA section

3(h)(1), which requires EPA to identify and evaluate reforms to the

antimicrobial registration process; FIFRA section 3(h)(2), which

establishes goals for reduction of review periods for antimicrobial

applications for registration; and FIFRA section 3(h)(3)(D), which

establishes default review periods that apply if EPA fails to issue its

final antimicrobial rule by the statutorily required deadline. As

discussed more fully in Unit VIII.H., EPA is today proposing in

Sec. 152.457 to adopt the ``goal'' review periods rather than the

``default'' review periods.

G. Certification Process for Regulatory Actions

FIFRA section 3(h)(3)(B)(iii)(I) requires that, in issuing final

regulations, EPA must ``consider the establishment of a certification

process for regulatory actions involving risks that can be responsibly

managed, consistent with the degree of risk, in the most cost-efficient

manner.''

Certification statements are currently permitted by

Sec. 152.44(b)(2) for various types of amendments to registration when

directed by EPA. Typically, EPA uses certification to accomplish

specific changes to registration (frequently labeling changes). EPA has

included in this proposal a broader provision that would allow the

Agency to implement self-certification programs as needed in

ner.''

Certification statements are currently permitted by

Sec. 152.44(b)(2) for various types of amendments to registration when

directed by EPA. Typically, EPA uses certification to accomplish

specific changes to registration (frequently labeling changes). EPA has

included in this proposal a broader provision that would allow the

Agency to implement self-certification programs as needed in

the future administratively. Unit VIII.A. discusses further this

provision.

With respect to data certification, EPA has considered two self-

certification programs in the recent past, and has implemented one of

these. PR Notice 98-1, Self-Certification of Product Chemistry Data,

was issued on January 12, 1998. In that notice, EPA describes the types

of product chemistry information (product characteristics) that can be

supplied to the Agency together with a self-certification that the data

were conducted according to EPA Guidelines. Under this program, EPA

would generally review only the summarized results of testing at the

time of application, but could review full study reports if EPA

determines that a complete evaluation of the study is warranted. Review

of the summary results of testing rather than of the complete study

report would decrease the time needed for all applications for

registration of new products and reregistration of existing products.

EPA also considered a similar self-certification procedure for

acute toxicity data, and intends in the future to implement such a

program for antimicrobial products only. EPA originally considered an

acute toxicity data self-certification program because a backlog of

applications requiring acute toxicity data review extended review

periods while applications waited in queue. The certification mechanism

considered would have been available only with respect to a study

indicating that the product should be assigned to Toxicity Category III

or IV

products only. EPA originally considered an

acute toxicity data self-certification program because a backlog of

applications requiring acute toxicity data review extended review

periods while applications waited in queue. The certification mechanism

considered would have been available only with respect to a study

indicating that the product should be assigned to Toxicity Category III

or IV. The certification procedure was viewed as a means of reducing

the resources needed for review, and thus making more decisions with

the same level of resources. At the same time, EPA recognized that the

certification procedure could also reduce to some extent the Agency's

confidence in hazard and precautionary statements on labeling. Since

EPA issued its notice for comment, however, the Agency has achieved a

significant reduction in the backlog and consequently in the review

times for applications in the queue. The Agency decided therefore not

to pursue a certification approach for acute toxicity studies at this

time.

Although EPA has decided not to adopt such an approach for

pesticides in general, the Agency has decided to consider a pilot

program that allows applicants for registration of antimicrobial

product to certify the results of an acute toxicity study when the test

data would indicate the product is in Toxicity Category I (the highest

toxicity category). Because such a product would be subject to the most

stringent labeling requiements, applicants would have no incentive to

certify that a product of lower toxicity was in Toxicity Category I.

Moreover, EPA's review of such data would add little value and would

use limited resources. EPA invites comment on this proposed approach to

certification of acute toxicity data, which would be implemented by a

notice to registrants if EPA decides to adopt it.

H. Certification of Laboratories

ants would have no incentive to

certify that a product of lower toxicity was in Toxicity Category I.

Moreover, EPA's review of such data would add little value and would

use limited resources. EPA invites comment on this proposed approach to

certification of acute toxicity data, which would be implemented by a

notice to registrants if EPA decides to adopt it.

H. Certification of Laboratories

FIFRA section 3(h)(3)(B)(iii)(II) requires EPA to ``consider the

establishment of a certification process by approved laboratories as an

adjunct to the review process.'' EPA currently has underway a broad

program across the Agency evaluating the feasibility of laboratory

accreditation mechanisms for a variety of program and regulatory needs.

The Office of Pesticide Programs has also been actively working with

outside groups, such as the Chemical Specialties Manufacturers'

Association to further their efforts to develop laboratory

accreditation programs for antimicrobial products. EPA has considered

whether a program could be instituted at this time for antimicrobial

products, and believes that these efforts need further evaluation and

development before being integrated into the Agency's regulatory

programs. EPA intends to continue its cooperative work, and to fold its

efforts into the larger Agency process. Thus, EPA is not today

proposing a specific laboratory accreditation process as part of this

proposed rule.

I. Notification Processes

FIFRA section 3(h)(3)(B)(iii)(III)(aa) requires that, in issuing

final regulations, EPA must use ``expanded use of notification and non-

notification procedures.'' This requirement dovetails neatly with the

statutorily expanded scope of notifications under FIFRA section

3(c)(9). EPA is today proposing to include in new Sec. 152.446 the new

procedures to expand the use of notification as a mechanism for the

label modification as directed by section 3(c)(9).

J. Revised Procedures for Application Review

e of notification and non-

notification procedures.'' This requirement dovetails neatly with the

statutorily expanded scope of notifications under FIFRA section

3(c)(9). EPA is today proposing to include in new Sec. 152.446 the new

procedures to expand the use of notification as a mechanism for the

label modification as directed by section 3(c)(9).

J. Revised Procedures for Application Review

FIFRA section 3(h)(3)(B)(iii)(III)(bb) requires that, in issuing

final regulations, EPA must use ``revised procedures for application

review.'' As outlined in Unit VII, EPA's current regulations for

registration of pesticide products, including antimicrobial pesticides,

are generally limited to describing the applicant's and Agency's

responsibilities and interactions. The summary description given in

that unit is similar for all pesticides. EPA intends to issue or revise

its current non-regulatory guidance documents that address the

application process in greater detail. To the extent that EPA develops

different procedures for antimicrobial products than for other

products, EPA will make those procedures available via direct notice to

affected registrants, and will make them widely available by all

feasible means, including electronic accessibility.

The Agency has already implemented a number of administrative

reforms to improve the process, including revised procedures for

review. Since FQPA was enacted, the Agency has established a separate

Division solely responsible for antimicrobial products. The new

Antimicrobials Division is charged with all aspects of antimicrobial

regulation, and includes a full complement of scientific personnel in

biology, microbiology, chemistry, toxicology, and other scientific

disciplines, as well as an ombudsman to deal directly with registrant

issues and concerns.

The new Division has focussed initially on meeting the review

period goals established by the statute for all new applications

arged with all aspects of antimicrobial

regulation, and includes a full complement of scientific personnel in

biology, microbiology, chemistry, toxicology, and other scientific

disciplines, as well as an ombudsman to deal directly with registrant

issues and concerns.

The new Division has focussed initially on meeting the review

period goals established by the statute for all new applications. To

assist this effort, a dedicated Expedited Review Team has been formed

for the purpose of processing notifications and screening and

processing applications that are ``fast-track'' or with review periods

of 90 days or less. By identifying and handling the less complex

actions, this team allows the Division to channel its scientific and

management resources into review of applications that are of higher

priority or that require in-depth review. The Division has added more

Product Managers, so that each Product Manager has a smaller and more

focussed product universe.

The Division has also targeted increased outreach, communication

and information exchange as a high priority. Training materials,

information sheets, operating procedures and science reviews have been

developed or reevaluated for streamlining opportunities.

Additional administrative accomplishments and plans are detailed in

the Agency's first progress report to Congress, Streamlining

Registration of Antimicrobial Pesticides, July 1997. EPA will issue

this report annually as required by section 3(h)(4). Each report will

identify further progress in management and administrative reforms.

K. Allocation of Resources

FIFRA section 3(h)(3)(B)(iii)(III)(cc) requires that, in issuing

final

s and plans are detailed in

the Agency's first progress report to Congress, Streamlining

Registration of Antimicrobial Pesticides, July 1997. EPA will issue

this report annually as required by section 3(h)(4). Each report will

identify further progress in management and administrative reforms.

K. Allocation of Resources

FIFRA section 3(h)(3)(B)(iii)(III)(cc) requires that, in issuing

final

regulations, EPA must address ``allocation of appropriate resources to

ensure streamlined management of antimicrobial pesticide

registrations.'' The allocation of resources is not a reform that can

be accomplished by Agency regulations, and EPA is not proposing any

regulations for doing so. Budget and resource allocations are guided by

Executive branch and Congressional priorities and are determined year

by year based on overall needs of the Agency and the pesticide program.

L. Completeness of Applications

FIFRA section 3(h)(3)(B)(iii)(IV) requires that, in issuing final

regulations, EPA must ``clarify criteria for determination of the

completeness of an application.'' EPA is today proposing in Sec. 152.3

a definition of a ``complete application'' for all registration

applications. In addition, specific to antimicrobial products, and

directly responsive to the requirement of FIFRA section 3(h)(3)(B), EPA

is proposing in Sec. 152.450 to describe in detail the contents of an

application, and the criteria that will be used to judge the

completeness of the application as a whole, and of its individual

components. EPA's proposals are discussed further in Unit VIII.F.

V. Other Statutory Provisions Addressed in this Proposal

A. Changes to the Definition of ``Pesticide''

IFRA section 3(h)(3)(B), EPA

is proposing in Sec. 152.450 to describe in detail the contents of an

application, and the criteria that will be used to judge the

completeness of the application as a whole, and of its individual

components. EPA's proposals are discussed further in Unit VIII.F.

V. Other Statutory Provisions Addressed in this Proposal

A. Changes to the Definition of ``Pesticide''

FQPA modified FIFRA section 2(u) to exclude certain liquid chemical

sterilant products from the definition of ``pesticide,'' and to include

certain nitrogen stabilizer products. This provision was effective on

August 3, 1996. In recognition of this provision, EPA is proposing to

add a new Sec. 152.6 entitled ``Substances excluded from regulation by

FIFRA.'' EPA has issued a notice to registrants, entitled ``Liquid

Chemical Sterilant Products'' (PR Notice 98-2; January 15, 1998),

explaining how it will treat liquid chemical sterilants affected by

section 2(u). Units XIV. and XV. discuss chemical sterilants and

nitrogen stabilizers.

B. Notification Procedures

FIFRA section 3(c)(9)(C) now authorizes registrants of

antimicrobial products to make certain defined labeling modifications

by notification to the Agency instead of amendment, and establishes a

procedure for notifications and Agency decisions. This provision was

effective on August 3, 1996, and the new procedures are exclusive to

antimicrobial products. Today's proposal codifies these new

notification procedures. The substance of the expanded notifications

permitted by FIFRA section 3(c)(9) is issued in notices to registrants

(PR Notices), and not in today's proposal. Unit XVI. discusses

antimicrobial notifications.

C. Use Dilution Labeling

ion was

effective on August 3, 1996, and the new procedures are exclusive to

antimicrobial products. Today's proposal codifies these new

notification procedures. The substance of the expanded notifications

permitted by FIFRA section 3(c)(9) is issued in notices to registrants

(PR Notices), and not in today's proposal. Unit XVI. discusses

antimicrobial notifications.

C. Use Dilution Labeling

FIFRA section 3(c)(9)(D) authorizes registrants to include on their

labeling precautionary statements about the product as diluted for use

(use dilution labeling). This provision was effective on August 3,

1996. EPA proposes to reformat its human hazard labeling requirements

in Sec. 156.10(h) and to incorporate use dilution requirements in

appropriate sections. Unit XIII.A. discusses use dilution labeling.

VI. What is an Antimicrobial Pesticide?

EPA proposes in Sec. 152.3 a definition and interpretation of

antimicrobial pesticide. The proposed definition is paraphrased from

that in section 2(mm) of FIFRA, and interprets the undefined elements.

Because FIFRA section 3(h) directs EPA to develop and implement special

procedures in its regulatory program for antimicrobial pesticides, it

is important that there be a well-defined and commonly understood

universe of products to which the statutory provisions apply. The

practical consequences of being included or excluded as an

``antimicrobial pesticide'' are significant for both pesticide

producers and the Agency. FIFRA section 2(mm) defines the term

``antimicrobial pesticide,'' carefully delineating its boundaries to

mesh with the practical implementation of section 3(h) requirements.

This unit discusses the definition in detail.

A. General Definition

Under FIFRA section 2(mm)(1)(A), an antimicrobial pesticide is

defined as

:(A) [A pesticide that] is intended to:

sticide

producers and the Agency. FIFRA section 2(mm) defines the term

``antimicrobial pesticide,'' carefully delineating its boundaries to

mesh with the practical implementation of section 3(h) requirements.

This unit discusses the definition in detail.

A. General Definition

Under FIFRA section 2(mm)(1)(A), an antimicrobial pesticide is

defined as

:(A) [A pesticide that] is intended to:

(i) disinfect, sanitize, reduce or mitigate growth or

development of microbiological organisms; or

(ii) protect inanimate objects, industrial processes or systems,

surfaces, water, or other chemical substances from contamination,

fouling or deterioration caused by bacteria, viruses, fungi,

protozoa, algae, or slime;

With respect to the scope of pests covered by the definition,

paragraph (i) focusses on the intended pesticidal function (disinfect,

sanitize, etc.) against non-specific ``microbiological organisms,''

while paragraph (ii) focusses on non-specific ``protection'' provided

by the pesticide against specified microorganisms (bacteria, viruses,

etc). As a practical matter, EPA believes that the term

``microbiological organisms'' in paragraph (i) should be considered to

include each of the specific types of microorganisms in paragraph

(ii)--bacteria, viruses, fungi, protozoa, and algae. Therefore, EPA

will consider any product intended for use against the microorganisms

specified in paragraph (ii) to be an antimicrobial pesticide (subject

to the exclusions discussed in Unit VI.B. and C.)

Having identified the universe of substances that, based upon the

intended pesticidal purpose, are antimicrobial pesticides, the

definition goes on in paragraphs (1)(B) and (2) to exclude certain

pesticides from the definition of antimicrobial pesticide. These

exclusions may be characterized as use-based, that is, a pesticide is

excluded because of how or where it is used, and not because of the

pests or purpose of use.

B. Food Use Exclusion

ased upon the

intended pesticidal purpose, are antimicrobial pesticides, the

definition goes on in paragraphs (1)(B) and (2) to exclude certain

pesticides from the definition of antimicrobial pesticide. These

exclusions may be characterized as use-based, that is, a pesticide is

excluded because of how or where it is used, and not because of the

pests or purpose of use.

B. Food Use Exclusion

FIFRA section 2(mm)(1)(B) excludes from ``antimicrobial pesticide''

those pesticides whose intended antimicrobial use is such that residues

in food requiring regulation under section 408 or 409 of the FFDCA

might result.

(B) [A pesticide that] in the intended use is exempt from, or

otherwise not subject to, a tolerance under section 408 of the

Federal Food, Drug, and Cosmetic Act (21 U.S.C. 346a and 348) or a

food additive regulation under section 409 of such Act.

In creating this exclusion, Congress recognized that applications

for registration of food uses that require clearance under FFDCA

require extensive data and relatively complex risk assessments that

take longer to review. Moreover, obtaining an FFDCA clearance is a

formal regulatory procedure. As discussed in Unit VIII.H., FIFRA

section 3(h) establishes goals for completion of Agency review of an

application for registration. In EPA's view, Congress recognized the

difficulty of requiring the review timeframes for registration to

encompass the complexities of FFDCA clearance as well. Accordingly, EPA

believes that Congress intended the statutory definition to allow

exclusion of any antimicrobial pesticide that would require the

extensive clearance process of the FFDCA.

The statutory language uses the phrases ``exempt from'' and ``not

subject to'' a clearance under FFDCA. The phrase ``exempt from'' is

clear and has meaning under FFDCA: an exemption from the requirement of

a tolerance is a formal regulatory determination made by EPA.

Exemptions from the requirement of a tolerance are found in 40 CFR part

180.

re the

extensive clearance process of the FFDCA.

The statutory language uses the phrases ``exempt from'' and ``not

subject to'' a clearance under FFDCA. The phrase ``exempt from'' is

clear and has meaning under FFDCA: an exemption from the requirement of

a tolerance is a formal regulatory determination made by EPA.

Exemptions from the requirement of a tolerance are found in 40 CFR part

180.

The phrase ``not subject to'' is not a formal determination under

FFDCA. Any product that bears a food use is ``subject to'' a tolerance,

that is, a tolerance or other clearance is required, whether that

tolerance has been established or not. EPA believes the statutory

language may be unintentionally broad in not differentiating between

food uses subject to an ``existing'' tolerance and those subject to a

``new'' tolerance. Products and uses subject to an existing tolerance

do not require extensive review; only products subject to a new

tolerance require such review. As written, the definition excludes both

types of antimicrobial pesticides, although the apparent intent is to

exclude only those requiring the lengthy and complicated tolerance-

setting review associated with a new clearance.

In its discretion, EPA proposes to narrow the food use exclusion to

conform to what it believes is the probable intent of Congress. EPA

proposes to exclude from the definition of ``antimicrobial pesticide''

only products bearing one or more uses for which a new clearance is

needed, or an amendment of an existing clearance. EPA proposes to

include in the definition of ``antimicrobial pesticide'' (to exclude

from the exclusion) product/uses ``subject to'' an existing tolerance

it believes is the probable intent of Congress. EPA

proposes to exclude from the definition of ``antimicrobial pesticide''

only products bearing one or more uses for which a new clearance is

needed, or an amendment of an existing clearance. EPA proposes to

include in the definition of ``antimicrobial pesticide'' (to exclude

from the exclusion) product/uses ``subject to'' an existing tolerance.

EPA believes that this narrower policy choice, while not required, more

closely reflects the intent to include in the definition of

``antimicrobial pesticide'' products requiring little or no review and

to exclude only products needing the extensive and time-consuming

evaluation associated with the establishment of a new or amended

clearance.

An antimicrobial pesticide, then, is a product bearing only non-

food uses, only food uses covered by an existing clearance under FFDCA,

or some combination of these two.

Given the food use exclusion, it is clear that the status of an

antimicrobial product as an ``antimicrobial pesticide'' within the

meaning of FIFRA section 3(h) is not necessarily a permanent

designation, but may shift according to its intended use. A product

could be included or excluded from the definition if the intended use

changes. The status of a pesticide as an ``antimicrobial pesticide''

becomes pertinent and can only be determined at the time of submission

of an application for Agency decision. At that time, EPA must determine

whether the pesticide application is for an antimicrobial pesticide

within the meaning of the statutory definition.

The prime example of this use-dependent phenomenon is an

application seeking the first food use of an antimicrobial pesticide. A

product that heretofore has been an ``antimicrobial pesticide'' because

it bears only non-food uses or tolerance-covered food uses is no longer

an ``antimicrobial pesticide'' for purposes of EPA review and decision

on that first food use action

tatutory definition.

The prime example of this use-dependent phenomenon is an

application seeking the first food use of an antimicrobial pesticide. A

product that heretofore has been an ``antimicrobial pesticide'' because

it bears only non-food uses or tolerance-covered food uses is no longer

an ``antimicrobial pesticide'' for purposes of EPA review and decision

on that first food use action. Provisions of FIFRA applying only to

``antimicrobial pesticides,'' notably the review periods, would not be

triggered for that action. Once the food use issue is resolved or a

tolerance issued, such that the food use is covered by an existing

tolerance, the product may revert to ``antimicrobial pesticide'' status

for a subsequent action.

C. Other Specific Exclusions

FIFRA section 2(mm)(2) contains further specific exclusions to the

definition. These are intended to clarify that certain types of

products that might be considered ``antimicrobial pesticides'' because

they have a pesticidal effect on the defined types of microorganisms

are nonetheless not to be regulated as antimicrobial pesticides for

purposes of FIFRA section 3(h). It should be noted that certain types

of antimicrobial products are already excluded from regulation under

FIFRA, and therefore from any coverage under this proposed rule.

Products used against microorganisms in or on man or other living

animals are not pesticides because such microorganisms are not

``pests'' under FIFRA section 2(t). Products intended for use against

microorganisms in or on man and animals are regulated solely by FDA.

This is not a change from longstanding FIFRA provisions.

1. Certain wood preservatives and antifouling paints. Any product

that is a wood preservative or antifoulant paint, and that also bears

any claim for a pesticidal activity other than or in addition to those

specified in section 2(mm)(1) is not an antimicrobial pesticide

icroorganisms in or on man and animals are regulated solely by FDA.

This is not a change from longstanding FIFRA provisions.

1. Certain wood preservatives and antifouling paints. Any product

that is a wood preservative or antifoulant paint, and that also bears

any claim for a pesticidal activity other than or in addition to those

specified in section 2(mm)(1) is not an antimicrobial pesticide. The

pesticidal activities that generally define an ``antimicrobial

pesticide'' include activity against any microbiological organisms, and

``protection'' against the destructive effects of bacteria, viruses,

fungi, protozoa, algae, and slime.

Both wood preservatives and antifoulant paints (which are used to

protect surfaces in contact with water such as boats) may function to

protect against bacteria, fungi, etc., and thus, without a specific

exclusion, would be deemed to be antimicrobial pesticides. However,

since most wood preservatives also protect against insect damage, and

most antifouling paints also protect against barnacles, the majority of

these products are not likely to be ``antimicrobial pesticides.'' As

discussed in Unit VIII.H., however, some wood preservative products may

be eligible for the review deadlines that apply to antimicrobial

pesticides.

2. Agricultural fungicides. The definition of antimicrobial

pesticide in FIFRA section 2(mm) excludes ``agricultural fungicides.''

Traditionally, the term ``fungus'' in an agricultural context has been

used to mean microorganisms that are pathogenic to plants. Fungi (and

other microorganisms) that are pathogenic to man and animals have

historically been treated separately because of their public health

implications. However, FIFRA section 2(k) defines ``fungus'' broadly to

include a variety of other microorganisms, including rust, smut,

mildew, mold, yeast, and bacteria, without specific reference to

whether the microorganisms are pathogenic to plants or to man and

animals

nisms) that are pathogenic to man and animals have

historically been treated separately because of their public health

implications. However, FIFRA section 2(k) defines ``fungus'' broadly to

include a variety of other microorganisms, including rust, smut,

mildew, mold, yeast, and bacteria, without specific reference to

whether the microorganisms are pathogenic to plants or to man and

animals.

EPA intends the term ``agricultural fungicide'' to apply to all

products applied in or on growing crops or to soil (i.e., pre-harvest

application), regardless of the type of pest fungus. Although this

would exclude as ``antimicrobial pesticides'' products applied pre-

harvest against microorganisms that might be pathogenic to man and

animals, EPA is not aware that any pesticides are currently registered

against human and animal pathogens on growing crops. EPA would regulate

such products if the need arose, but they would not be covered by

subpart W.

Under this interpretation, a product intended for post-harvest

application against fungi (including bacteria) would not be an

``agricultural fungicide.'' Significantly, however, such a product

would not necessarily be an ``antimicrobial pesticide'' either, since

the food use exclusion also comes into play. Post-harvest application

of fungicides or antimicrobial products to food or feed crops would run

afoul of the food use exclusion if a new or amended tolerance were

needed to cover pesticide residues. All post-harvest use antimicrobial

products would be subject to subpart W generally; however, not all

would be ``antimicrobial pesticides'' eligible for the review periods

in Sec. 152.457.

3. Aquatic herbicides. Further, the definition of antimicrobial

pesticide excludes aquatic herbicide products. EPA interprets the term

aquatic herbicide to mean pesticides used in or near environmental

bodies of water, such as lakes, streams, or ponds, for the control of

algae or weeds. In contrast, a

all

would be ``antimicrobial pesticides'' eligible for the review periods

in Sec. 152.457.

3. Aquatic herbicides. Further, the definition of antimicrobial

pesticide excludes aquatic herbicide products. EPA interprets the term

aquatic herbicide to mean pesticides used in or near environmental

bodies of water, such as lakes, streams, or ponds, for the control of

algae or weeds. In contrast, a

product intended for control of algae in industrial systems or

processes or swimming pools would be considered an antimicrobial

product.

D. Products Included

Finally, section 2(mm)(3) lists a number of products that are

deemed to be antimicrobial pesticides, to ensure that they are not

inadvertently excluded by application of the various exclusions

elsewhere. These include chemical sterilants other than those excluded

under FIFRA section 2(u), other disinfectant products, industrial

microbiocides, and preservatives other than wood preservatives.

VII. Current Registration Procedures for Pesticides

Under FIFRA prior to FQPA, antimicrobial pesticides were not

singled out as a class of pesticide products requiring special

procedural attention. Antimicrobial pesticides were registered using

the same procedures and policies as other pesticide products.

Antifoulants, wood preservatives, and traditional antimicrobial

pesticides were in separate organizational units within EPA.

A. Overview of Procedures

A brief discussion of the registration procedures which have

applied to all products follows. Even though products that are

``antimicrobial pesticides'' will now be subject to a more carefully

drawn and rigorously applied regulatory program, the basic procedures

for registration will continue to apply.

1. A person seeking to register any pesticide product must submit

an application for registration

discussion of the registration procedures which have

applied to all products follows. Even though products that are

``antimicrobial pesticides'' will now be subject to a more carefully

drawn and rigorously applied regulatory program, the basic procedures

for registration will continue to apply.

1. A person seeking to register any pesticide product must submit

an application for registration. That application contains information

on the pesticide, copies of the proposed labeling of the product, and

data of various types supporting the registration (such as chemistry,

toxicology, environmental fate, ecological effects). If a food use is

involved, data supporting a clearance for residues in food are also

required, and if the product is of public health significance, efficacy

data must be submitted. Current regulations governing submission of

applications are found in 40 CFR part 152. Data requirements are

described in 40 CFR part 158, and labeling requirements in 40 CFR part

156. The tolerance-setting process is contained in 40 CFR part 180.

2. At EPA, the application is processed in several stages, each of

which evaluates different elements of the application.

a. A ``front end'' process assigns administrative numbers, checks

that basic elements are contained in the application, does a data check

for formatting purposes, and packages the application for review.

b. The application package is directed to the appropriate review

Division and thence to a Product Management (PM) team. Until recently,

two Divisions, the Registration Division and the Biopesticides and

Pollution Prevention Division, were the regulatory Divisions which

reviewed all applications. Antimicrobial pesticide applications were

processed within one branch, and antifoulants and wood preservatives

were located in a different branch, both in the Registration Division

ce to a Product Management (PM) team. Until recently,

two Divisions, the Registration Division and the Biopesticides and

Pollution Prevention Division, were the regulatory Divisions which

reviewed all applications. Antimicrobial pesticide applications were

processed within one branch, and antifoulants and wood preservatives

were located in a different branch, both in the Registration Division.

EPA has established a separate Antimicrobials Division (AD) to help

focus its regulatory management of these products, and antifoulants and

most wood preservatives are also now assigned to this Division.

c. The PM team enters the application into a tracking system,

reviews product labeling and data compensation elements, and determines

whether a scientific review is needed. Every application for new

registration contains some data; the amount and type of data vary

depending on the type of product, its composition and uses. Even

applications without new data often require scientific consultation to

determine the relevance and adequacy of existing data to support the

application.

d. If a scientific review is needed, the PM team sends the

application and data to various scientific reviewers. These reviews are

generally conducted in parallel, although certain assessments must

await the results of other reviews (for example, ecological effects

risk assessment may depend upon the environmental fate profile of the

chemical).

3. Upon completion of all reviews, the PM team consolidates review

recommendations and decisions and determines whether the product can be

registered. If it can, EPA issues a registration, approves the labeling

(often with required modifications), and notifies the applicant. If the

application cannot be approved, the PM notifies the applicant of

deficiencies (data, labeling, administrative) that must be corrected

before proceeding

M team consolidates review

recommendations and decisions and determines whether the product can be

registered. If it can, EPA issues a registration, approves the labeling

(often with required modifications), and notifies the applicant. If the

application cannot be approved, the PM notifies the applicant of

deficiencies (data, labeling, administrative) that must be corrected

before proceeding.

Once issued, a registration may be amended by submission of an

application for amendment, which undergoes a similar review process as

outlined above. The significant difference is that many amendments are

administrative, or require no scientific review, and thus entail a less

intensive and time-consuming process. Often amendments can be handled

entirely within a PM team. Some minor modifications to registration can

be accomplished by notification; these are modifications EPA has

determined have no potential for adverse effects. Notifications require

the most minimal review, primarily to ensure compliance with pre-

existing Agency policies or guidance.

B. Volume of Work

Typically, applications for new registration comprise about one-

third of the applications processed by the Agency, but require more

time and resources per application because of the scientific review

involved. Applications for registration of new chemicals and major new

uses require the most resources, but are relatively few in number. For

sheer numbers, the bulk of registration actions are (and likely will

continue to be) amendments to existing registrations that require no

scientific review (so-called ``fast track'' amendments). In FY 1997,

ending September 1997, EPA received a total of 635 actions related to

new applications for registration of pesticides assigned to AD,

including 11 high-resource new chemicals. In addition, there were 1,189

actions related to amendments to existing registrations, including 61

high-resource new uses

istrations that require no

scientific review (so-called ``fast track'' amendments). In FY 1997,

ending September 1997, EPA received a total of 635 actions related to

new applications for registration of pesticides assigned to AD,

including 11 high-resource new chemicals. In addition, there were 1,189

actions related to amendments to existing registrations, including 61

high-resource new uses. The number of ``actions'' includes both the

initial submission of applications for new and amended registration and

resubmissions of information after EPA has notified the applicant that

the application is deficient.

Finally, there were 506 notifications for antimicrobial products,

which under FIFRA section 3(c)(9) must be reviewed and a decision

issued within 30 days of receipt. While these require minimal review,

the large volume coupled with the short review time requires dedicated

resources.

C. Review Times

As with any complex process, the speed at which an application can

be reviewed and a decision made depends upon many things, some within

the control of the Agency, others dependent upon the applicant. FIFRA

prescribes in section 3(c)(3) that an application decision be reached

``as expeditiously as possible.'' Until modified by FQPA, FIFRA

contained only a single statutory decision deadline of 90 days, for so-

called ``fast-track'' applications--those which require no review of

scientific data. This review time is predicated upon receipt of a

``complete'' application. EPA is not required to review and reach a

decision on a fast-track application until it is deemed to be complete

(however, EPA must determine whether such an application

is complete within 45 days after receipt).

``Fast-track'' deadlines continue to apply to all products,

including antimicrobial pesticides. For antimicrobial pesticides,

however, FIFRA as modified by FQPA imposes additional statutory review

periods.

D. Non-Regulatory Guidance Documents

rack application until it is deemed to be complete

(however, EPA must determine whether such an application

is complete within 45 days after receipt).

``Fast-track'' deadlines continue to apply to all products,

including antimicrobial pesticides. For antimicrobial pesticides,

however, FIFRA as modified by FQPA imposes additional statutory review

periods.

D. Non-Regulatory Guidance Documents

EPA uses detailed guidance documents to amplify, clarify, and

interpret its regulations in areas such as data and labeling

development and review, process changes, and applicant

responsibilities. EPA has developed a number of documents, which are

available to applicants and registrants, to elaborate on the general

regulations. In particular:

1. A guidance document called simply the ``Blue Book'' provides

specific details about the application process.

2. The Labeling Manual contains guidance for developing labeling

which complies with FIFRA and EPA regulations.

3. The Pesticide Assessment Guidelines describe test methods,

standards, and data reporting requirements used to satisfy data

requirements.

4. Standard Evaluation Procedures describe how EPA will review and

evaluate each type of study submitted in support of registration.

5. EPA uses direct notice to registrants (PR Notices) to inform

them of procedural changes, to clarify and interpret its regulations in

specific circumstances, and for general information purposes.

All of these will continue to apply to antimicrobial pesticides.

Given the special attention FIFRA now focusses on antimicrobial

products, EPA may develop specific guidance documents for antimicrobial

pesticides that would augment or replace existing guidance.

VIII. Proposed Antimicrobial Procedures

This unit discusses in detail the proposed procedural regulations

applicable to antimicrobial products. Proposed changes that apply to

all pesticides are discussed in later units of this preamble.

A. Organization of Proposed Subpart W and Relationship to Current

Regulations

for antimicrobial

pesticides that would augment or replace existing guidance.

VIII. Proposed Antimicrobial Procedures

This unit discusses in detail the proposed procedural regulations

applicable to antimicrobial products. Proposed changes that apply to

all pesticides are discussed in later units of this preamble.

A. Organization of Proposed Subpart W and Relationship to Current

Regulations

40 CFR part 152 currently contains regulations pertaining to the

registration of pesticide products, including antimicrobial pesticides.

Part 152 contains appropriate definitions and criteria for determining

whether a product is a pesticide that must be registered (subpart A);

exemptions from FIFRA requirements (subpart B); procedures for applying

for registration (subpart C); data compensation procedures (subpart E);

the Agency's review of an application (subpart F); fees for

applications (subpart U) (currently suspended), and criteria and

procedures for classifying a pesticide for restricted use (subpart I).

Most of these provisions are unaffected by changes in FIFRA that target

antimicrobial program reform measures, and will continue to apply to

antimicrobial products as well as other pesticides.

However, FIFRA section 3(h)(3)(A) requires that EPA propose

procedural regulations focussing on antimicrobial pesticides. Because

the statutory reform measures are designed to implement specific goals

directed at antimicrobial products only, EPA proposes to create an

entirely separate subpart devoted to antimicrobial registration

procedures. Proposed new subpart W, entitled ``Registration of

Antimicrobial Products,'' would be a freestanding subpart describing

the application and Agency review procedures mandated by FIFRA section

3(h).

1. Relationship of subpart W to other subparts in part 152. Subpart

W would supersede subpart C of current part 152 for antimicrobial

products only; subpart C would continue to apply to all other products

d new subpart W, entitled ``Registration of

Antimicrobial Products,'' would be a freestanding subpart describing

the application and Agency review procedures mandated by FIFRA section

3(h).

1. Relationship of subpart W to other subparts in part 152. Subpart

W would supersede subpart C of current part 152 for antimicrobial

products only; subpart C would continue to apply to all other products.

In addition, subpart W--for antimicrobial products only--would

supersede certain individual sections of subpart F--Agency Review of

Applications; subpart F would continue to apply to all other products.

Specifically, the following sections would be superseded:

a. Sec. 152.104, Completeness of applications. Completeness of

applications covered by subpart W is contained in Sec. 152.450,

Contents of application.

b. Sec. 152.110, Time for Agency review. Review periods for

applications covered by subpart W are contained in Sec. 152.457, Review

period for applications.

c. Sec. 152.115, Conditions of registration. Conditions of

registration for products covered by subpart W are contained in

Sec. 152.459, Terms and conditions of registration.

d. Sec. 152.117, Notification to applicant. Notification of Agency

decision on an application is contained in Sec. 152.455, Action on

applications.

e. Sec. 152.118, Denial of application. Denial of an application

covered by subpart W is also included in Sec. 152.455, Action on

applications, although the procedures for denial in Sec. 152.118 are

cross-referenced in Sec. 152.455.

As described in Sec. 152.440, all other subparts of part 152 would

continue to apply to products covered by subpart W and other

pesticides. Some minor modifications are proposed to current Sec. 152.1

to properly refer to the antimicrobial subpart. If subpart W and

subpart F conflict for an antimicrobial product or application,

Sec. 152.440 states that subpart W would take precedence.

2. Requirements duplicated in subpart C and subpart W

ts of part 152 would

continue to apply to products covered by subpart W and other

pesticides. Some minor modifications are proposed to current Sec. 152.1

to properly refer to the antimicrobial subpart. If subpart W and

subpart F conflict for an antimicrobial product or application,

Sec. 152.440 states that subpart W would take precedence.

2. Requirements duplicated in subpart C and subpart W. To be

comprehensive, avoid confusion for users, and avoid cross-referencing

unnecessarily, EPA has repeated in subpart W certain elements of its

current registration regulations from subpart C. In so doing, EPA has

made minor editorial changes not requiring proposal for clarity and

organization. EPA has captured the content of the following sections in

subpart W, and is not requesting comment at this time:

a. Sec. 152.40, Who may apply, which also appears as new

Sec. 152.443.

b. Sec. 152.42, Application for new registration, which has been

incorporated into new Sec. 152.443.

c. Sec. 152.43, Alternate formulations, which also appears as

Sec. 152.444, unchanged.

d. Sec. 152.44, Application for amended registration, which is also

incorporated into new Sec. 152.443.

EPA has incorporated into proposed Sec. 152.443(e) a general

provision for certification programs at the Agency's discretion and

direction. Current regulations in Sec. 152.44(b)(2) allow a

certification submission, in the Agency's discretion, which EPA has

typically used only for Agency-directed actions. EPA has not to date

expanded the certification option to a class of actions submitted on

the applicant's initiative. EPA believes that it may implement

certification programs administratively without regulations.

Nonetheless, in light of the statutory provision requiring

consideration of a certification process, EPA proposes a broader, but

still discretionary, use of certification programs. Under today's

proposal, EPA could identify elements of an application that the Agency

believes are amenable to a certification mechanism

t may implement

certification programs administratively without regulations.

Nonetheless, in light of the statutory provision requiring

consideration of a certification process, EPA proposes a broader, but

still discretionary, use of certification programs. Under today's

proposal, EPA could identify elements of an application that the Agency

believes are amenable to a certification mechanism. EPA would issue a

guidance document (typically a notice to registrants) that would detail

how a certification program would be used.

B. Applicability of Subpart W

The applicability of subpart W is governed by the statutory mandate

of FIFRA section 3(h) in the first instance. However, because of

differences in scope between the statutory mandate and the Agency's

administration of the antimicrobial program, EPA proposes a

broader applicability than is provided for by the statute. This unit

explains why certain products would be covered by subpart W and others

would not be.

1. Antimicrobial pesticides and food/feed use antimicrobial

products are covered by subpart W. Although this proposal reflects the

mandate of FIFRA to address ``antimicrobial pesticides,'' EPA has

chosen to cover a broader range of antimicrobial products than

mandated. It makes sense for these procedural regulations to mesh as

closely as possible with the Agency's organization and administration

of the antimicrobial program, so as not to cause confusion either

within the regulated community or within EPA itself. EPA has created an

Antimicrobial Division within the Office of Pesticide Programs, whose

responsibilities extend to all antimicrobial products, not just those

defined as ``antimicrobial pesticides.''

Accordingly, EPA proposes that subpart W would apply to both

``antimicrobial pesticides,'' as defined by FIFRA section 2(mm) and

antimicrobial products that are food/feed use pesticides, but are not

defined as ``antimicrobial pesticides'' by FIFRA section 2(mm)

icide Programs, whose

responsibilities extend to all antimicrobial products, not just those

defined as ``antimicrobial pesticides.''

Accordingly, EPA proposes that subpart W would apply to both

``antimicrobial pesticides,'' as defined by FIFRA section 2(mm) and

antimicrobial products that are food/feed use pesticides, but are not

defined as ``antimicrobial pesticides'' by FIFRA section 2(mm).

Virtually all products in these two categories are processed within the

Antimicrobial Division. The procedures and requirements of subpart W

would be applied equally to these two categories of products (with the

exception of review periods).

2. Wood preservatives and antifouling products are not covered by

subpart W. This subpart would not apply to any product that is neither

an ``antimicrobial pesticide'' as defined by FIFRA nor a food/feed use

antimicrobial product. Inclusion in this subpart would complicate the

registration process for products not processed in the Antimicrobials

Division, which are subject to the registration procedures of subpart

C.

The status of wood preservatives and antifoulant paints is

complicated under FIFRA. FIFRA is very specific in defining certain

types of products as antimicrobial pesticides and excluding other,

similar products, depending upon the type of claims made for the

product. A wood preservative or antifoulant paint that makes only an

antimicrobial pesticidal claim is an ``antimicrobial pesticide'' and

would be covered by subpart W as an antimicrobial pesticide. By

contrast, any multi-claim wood preservative or antifoulant paint is not

an ``antimicrobial pesticide'' and would not be covered by subpart W.

As a practical matter, because most antifoulant paints assert non-

antimicrobial barnacle claims, they would not be covered by subpart W.

Likewise, many wood preservatives make insecticidal or fungicidal

claims and would not be covered by subpart W

. By

contrast, any multi-claim wood preservative or antifoulant paint is not

an ``antimicrobial pesticide'' and would not be covered by subpart W.

As a practical matter, because most antifoulant paints assert non-

antimicrobial barnacle claims, they would not be covered by subpart W.

Likewise, many wood preservatives make insecticidal or fungicidal

claims and would not be covered by subpart W.

Under FIFRA section 3(h)(3)(E), certain wood preservative products

that would not be covered by subpart W may nonetheless be eligible for

the same review periods as antimicrobial pesticides that are covered by

subpart W (see Unit VIII.H. for a full discussion of this provision).

EPA's responsibility for wood preservative products that qualify under

section 3(h)(3)(E) is fulfilled by ensuring that the statutory review

period is met. EPA need not, and does not propose to, make subpart W

apply to these products merely to implement the statutory review

periods.

Because the status of wood preservatives and antifoulant paints is

complex, EPA is providing in Table 1 below a summary of the status of

these products. The table breaks down wood preservatives and

antifoulant paints by type of claim (or combination of claims). Column

1 of the table lists the claim or combination of claims possible;

Columns 2, 3, and 4 answer the questions posed at the top of each

column.

Table 1.--Status of Wood Preservatives and Antifoulant Paints

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

Is this product

Is this product an Will this product be eligible for

``antimicrobial subject to this statutorily-required

pesticide''? proposal? review periods?

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

Wood Preservatives

Insecticide claims only No No No

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

Fungicide claims only No No No

------

crobial subject to this statutorily-required

pesticide''? proposal? review periods?

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

Wood Preservatives

Insecticide claims only No No No

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

Fungicide claims only No No No

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

Antimicrobial claims only Yes Yes Yes

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

Fungicide and insecticide claims No No No

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

Antimicrobial and insecticide claims No No Yes

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

Antimicrobial and fungicide claims No No Yes

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

Antimicrobial, insecticide and No No Yes

fungicide claims

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

Antifoulant Paints

Insecticide claims (barnacles) only No No No

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

Antimicrobial claims only Yes Yes Yes

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

Antimicrobial and insecticide claims No No No

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

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

Antimicrobial claims only Yes Yes Yes

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

Antimicrobial and insecticide claims No No No

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

3. Applicability is not dependent on where a product application is

processed. EPA has chosen to extend the proposal to food/feed use

antimicrobials for practical organizational reasons. However, EPA

emphasizes that where a product application is reviewed does not in any

way determine whether subpart W applies. For example, the Antimicrobial

Division currently reviews most antifoulant products, that for the most

part are not covered by subpart W. The Antimicrobial Division also

reviews those wood preservatives that do not make insecticidal claims,

some of which are covered by subpart W. This allocation of products may

change based upon workload and resource needs.

EPA may, in its discretion and for its convenience, choose to treat

products that are not covered by subpart W as if

they were covered. For example, EPA currently reviews applications for

non-covered products within the review periods of Sec. 152.457, but,

except for the narrow class of wood preservatives discussed above, the

Agency is not required to do so, and would not be subject to any

consequences if it failed to meet a review period.

C. Definitions

at

products that are not covered by subpart W as if

they were covered. For example, EPA currently reviews applications for

non-covered products within the review periods of Sec. 152.457, but,

except for the narrow class of wood preservatives discussed above, the

Agency is not required to do so, and would not be subject to any

consequences if it failed to meet a review period.

C. Definitions

Section 152.442 contains definitions that apply to subpart W.

Relatively few definitions are needed here, since most terms are

defined elsewhere, either in FIFRA itself or in part 152. Terms

pertaining to antimicrobial levels of activity (e.g., sterilant,

disinfectant) are defined in subpart W of part 156, because they are

used in conjunction with labeling and not with registration procedures.

Comments are solicited on any additional terms that should be defined

in subpart W to inform or clarify the subpart.

Proposed Sec. 152.442 defines the following terms:

1. The term ``clearance'' is proposed to refer to all types of

clearances required under a regulatory authority other than FIFRA

before a product may be marketed. The term encompasses food tolerances,

exemptions and food additive regulations under FFDCA section 408 and

409, and FDA clearances for medical devices under FFDCA section 510.

2. The term ``complete application'' is the general definition

describing an application that may be placed into formal review. A

complete application is one that contains all elements described by

Sec. 152.450, but not necessarily all information required for

approving a registration or amendment.

3. The terms ``major new use,'' ``substantive amendment,'' and

``minor amendment'' are proposed as concise terms for application types

defined in rather longer phrases in the statute.

D. Types of Applications

rmal review. A

complete application is one that contains all elements described by

Sec. 152.450, but not necessarily all information required for

approving a registration or amendment.

3. The terms ``major new use,'' ``substantive amendment,'' and

``minor amendment'' are proposed as concise terms for application types

defined in rather longer phrases in the statute.

D. Types of Applications

1. What the statute requires. FIFRA section 3(h)(2) establishes

review period goals for antimicrobial applications, shown in Table 2

below, and requires in section 3(h)(3) that EPA differentiate in its

regulations the types of review undertaken for antimicrobial

pesticides. As discussed in Unit IV.C., EPA intends that defining these

application types in this proposal, coupled with EPA's part 158

proposal, will serve to adequately differentiate the types of review

undertaken by the Agency. EPA proposes in Sec. 152.445 to define

application types that correspond to the statutory review period goals

prescribed in the statute. The categories EPA proposes are discussed in

this unit.

Table 2.--Statutory Application Categories and Review Periods

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

Review period goal

Description of application type ---------------------------------------

Days Months

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

Product containing a new active 540 18

ingredient

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

Product that is identical or 90 3

substantially similar (to

another registered product)

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

Other new product 120 4

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

A new antimicrobial use of a 270 9

registered active ingredient

(either a new registration or

an amendment)

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

Other amendment that does not 90 3

require scientific review of

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

Other new product 120 4

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

A new antimicrobial use of a 270 9

registered active ingredient

(either a new registration or

an amendment)

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

Other amendment that does not 90 3

require scientific review of

data

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

Other amendment that requires 90 - 180 3 - 6

scientific review of data

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

2. Applications requiring FFDCA clearance. The review periods for

which application types must be described apply only to antimicrobial

pesticides as defined in FIFRA section 2(mm). That definition excludes

food/feed use products that require a clearance under FFDCA. Before

assigning an application to a category having a review period, EPA must

first exclude any application for a food/feed use that requires a new

or revised clearance under FFDCA.

All other antimicrobial pesticide applications fall into one of the

categories, described in proposed Sec. 152.445(b) for new registrations

and proposed 152.445(c) for amendments to existing products.

3. Current application categories. Currently, EPA does not define

types of applications for registration by regulation, but has a

detailed tracking system (the Pesticide Regulatory Action Tracking

System or PRATS) for actions of all types flowing through the pesticide

review process. The system works by assigning action codes to each type

of action for purposes of PRATS tracking, reporting and process

management; the action code definitions are detailed and do not

correlate exactly with the six described in the statute. The PRATS

system describes application types and assigns target review periods

based on features that are not addressed by the general descriptions in

the statute, including:

a

gning action codes to each type

of action for purposes of PRATS tracking, reporting and process

management; the action code definitions are detailed and do not

correlate exactly with the six described in the statute. The PRATS

system describes application types and assigns target review periods

based on features that are not addressed by the general descriptions in

the statute, including:

a. The applicant's method of support for the application

(eligibility for the formulator's exemption, for example).

b. The amounts and types of data that require scientific review

(product chemistry or confirmatory efficacy data, for example, require

minimal review, while toxicology studies require considerable review

time).

c. In the case of amendments, what aspect of the registration is

being amended (composition, labeling).

d. Whether the application is an initial submission or a

resubmission following a rejection of an initial application.

Moreover, combinations of registration actions (for example, a

change in composition and labeling simultaneously, each with supporting

data requirements) complicate EPA's task of describing a categorization

scheme in simple terms.

It would be costly and inefficient for EPA to develop and manage

separate tracking systems for antimicrobial decisions and other

registration decisions. Nor does it make sense to do so. If EPA is to

successfully manage the review process and track review periods for

antimicrobial applications, it must use its existing tracking system.

Accordingly, EPA's approach to defining types of antimicrobial

applications was to crosswalk the types of applications defined by the

statute with the descriptors used in PRATS.

nd other

registration decisions. Nor does it make sense to do so. If EPA is to

successfully manage the review process and track review periods for

antimicrobial applications, it must use its existing tracking system.

Accordingly, EPA's approach to defining types of antimicrobial

applications was to crosswalk the types of applications defined by the

statute with the descriptors used in PRATS.

EPA first sorted the categories of actions in PRATS and identified

those that should be included in one of the six statutory categories.

EPA then fleshed out the statutory descriptions using the greater

detail of PRATS action code descriptions for purposes of this proposal.

The results of this approach are presented in proposed Sec. 152.445.

4. Terms defined for this proposal. EPA proposes to define more

concise terms than the statutory ones for the purposes of this proposed

rule. EPA proposes the following terms: (1) The term ``major new use''

for the statutory term ``new antimicrobial use of a registered active

ingredient''; (2) the term ``substantive amendment'' for the statutory

term ``amendment to an antimicrobial registration that requires

sceintific review of data''; and (3) the term ``minor amendment'' for

the statutory term ``amendment to an antimicrobial product that does

not require scientific review of data.''

5. Single category. Because each antimicrobial pesticide

application type will have a prescribed review period under FIFRA, and

EPA's failure to issue a decision within that review period will be

judicially reviewable, each application must be assigned to a single

application category. Ideally, the applicant and EPA would have a

common understanding of the designation of an application to avoid

disputes over the review period. In all situations, the application

categories in proposed Sec. 152.445 are discrete, that is, there is

only one possible application type that logically should apply

ially reviewable, each application must be assigned to a single

application category. Ideally, the applicant and EPA would have a

common understanding of the designation of an application to avoid

disputes over the review period. In all situations, the application

categories in proposed Sec. 152.445 are discrete, that is, there is

only one possible application type that logically should apply. An

application either is for a new registration or is an amendment to an

existing registration. Beyond that broad division, the categories may

be less well understood and subject to disagreement. Under proposed

Sec. 152.445(a), EPA would determine the appropriate category.

There is one situation in which the statutorily designated review

period cuts across the application types as defined in the proposal.

The Act sets a review period of 270 days for a ``new antimicrobial use

of a registered active ingredient'' or ``major new use.'' Proposed

Sec. 152.445 defines application types in the first instance according

to whether they are submitted to EPA as applications for new

registration or amended registration. In the construct of the proposal,

therefore, an application for a ``major new use'' may be either an

application for new registration that includes a major new use, or an

application for amended registration to add a major new use.

Accordingly, both Sec. 152.445(b) and (c) include a separate category

for ``major new use. In both cases, the review period would be 270

days.

6. Applications for new registration--a. A product containing a new

active ingredient. Products containing new active ingredients are a

well-understood category. An application that proposes the registration

of an active ingredient that has never before been registered falls

into this category. A product containing a new active ingredient

typically requires review of considerably more data than one containing

already registered active ingredients.

b. A product bearing a major new use

s containing new active ingredients are a

well-understood category. An application that proposes the registration

of an active ingredient that has never before been registered falls

into this category. A product containing a new active ingredient

typically requires review of considerably more data than one containing

already registered active ingredients.

b. A product bearing a major new use. This category consists of an

application for new registration of a product bearing a major new use.

A major new use is any use that is not registered for one or more of

the active ingredients in a product. Typically a major new use would

involve a significantly different pattern of use that changes or

increases the exposures to the active ingredient, such that substantial

amounts of new data are required to evaluate the different or

incremental risks presented. This definition is comparable to that in

Sec. 152.3 for ``new use'' for non-antimicrobial products.

EPA intends in its part 158 proposal to categorize all

antimicrobial uses into one of the following 12 use categories. All

currently registered antimicrobial use patterns are included in one of

these larger use classifications for data requirement purposes, but EPA

has not to date classified the existing use patterns in this organized

fashion.

Agricultural premises and equipment.

Food handling/storage establishments premises and

equipment.

Commercial, institutional, and industrial premises and

equipment.

Residential and public access premises.

Medical premises and equipment.

Human drinking water systems.

Materials preservatives.

Industrial processes and water systems.

Antifouling coatings.

Wood preservatives.

Swimming pools.

Aquatic areas.

Some categories would be further divided into subcategories.

Subcategories would generally be defined on the basis of similar

exposures and data requirements

tial and public access premises.

Medical premises and equipment.

Human drinking water systems.

Materials preservatives.

Industrial processes and water systems.

Antifouling coatings.

Wood preservatives.

Swimming pools.

Aquatic areas.

Some categories would be further divided into subcategories.

Subcategories would generally be defined on the basis of similar

exposures and data requirements. Examples of significant use/exposure

differentials among use categories and subcategories are food/non-food

use and indoor/outdoor use or exposure.

Using these categories and subcategories of antimicrobial use

patterns, EPA would regard as a major new use of an antimicrobial

active ingredient any use in a different use category or subcategory

from currently registered uses for that active ingredient. As an

example, an active ingredient is registered with uses in the category

of ``Materials Preservatives'' and subcategory ``Indoor non-food

uses.'' If a registrant proposed a new use either in that same category

for an ``Indoor food use'' (a different subcategory), or in the

different category of ``Residential and Public Access Premises,'' that

application would be a major new use of that active ingredient.

c. A product that is identical to an existing product. For clarity,

this proposal separates ``identical'' and ``substantially similar''

products into two categories, even though they have the same review

period. Applications for end use products of these types are generally

indistinguishable from the so-called ``fast-track'' applications of

FIFRA section 3(c)(3).

Identical products are those that have an identical composition to

another registered product and bear identical use patterns. Both active

and inert ingredients must be identical and in exactly the same

proportion as the existing product. In the universe of antimicrobial

products, ``identical'' products include products that are formulated

by one company and simply repackaged by another company

entical products are those that have an identical composition to

another registered product and bear identical use patterns. Both active

and inert ingredients must be identical and in exactly the same

proportion as the existing product. In the universe of antimicrobial

products, ``identical'' products include products that are formulated

by one company and simply repackaged by another company. These so-

called ``repacks'' must be separately registered by the repackager.

Identical products also include those that are actually formulated by a

second producer based upon specifications provided by another

registrant. The significant difference between these two types of

identical products is that ``repacks'' require virtually no data for

registration, while those that are produced separately require certain

minimal ``bridging'' data to ensure that they are actually identical in

composition and efficacy.

Identical use patterns mean that the label does not deviate in

terms of organisms controlled, use sites, or directions for use. An

applicant's product may have fewer (but identical) claims than another

registered product and still be an ``identical'' product, but may not

have different or expanded claims.

d. A product that is substantially similar to an existing product.

Substantially similar products are those that are permitted to have

minor differences in three areas--composition, use pattern, or method

of data support--from another registered product. When evaluated

against another identified registered product, a ``substantially

l'' product, but may not

have different or expanded claims.

d. A product that is substantially similar to an existing product.

Substantially similar products are those that are permitted to have

minor differences in three areas--composition, use pattern, or method

of data support--from another registered product. When evaluated

against another identified registered product, a ``substantially

similar'' product must have the same active ingredients as the claimed

similar product, in substantially the same proportion. The inert

ingredients must also be substantially similar in chemical composition

and functionality to the claimed similar product. For example,

emulsifiers, fillers, solvents, propellants, etc., in the applicant's

product must have similar counterparts in the cited registered product

so EPA can reasonably conclude that both formulated products will have

essentially the same chemical and physical characteristics and toxicity

profile. Because substantial similarity may depend on the

characteristics of the individual products or the active and inert

ingredients, decisions on similarity would be made on a case-by-case

basis.

Substantially similar use means that the product bears a use

pattern similar to the claimed product. Again, fewer use patterns do

not make the product dissimilar, but adding or changing use patterns

would exclude the applicant's product from treatment as a substantially

similar product. A use pattern is a claim for control of a specified

organism on a specified site under specified conditions of use. With

respect to public health products, for which efficacy considerations

are paramount, use sites must be carefully considered in relation to

the pest organism, and small formulation changes or variations in use

directions can mean the difference between an efficacious product and a

non-efficacious product. For this reason, ``substantially similar'' use

patterns for public health products would be limited to identical

organisms on both products

acy considerations

are paramount, use sites must be carefully considered in relation to

the pest organism, and small formulation changes or variations in use

directions can mean the difference between an efficacious product and a

non-efficacious product. For this reason, ``substantially similar'' use

patterns for public health products would be limited to identical

organisms on both products. For non-public health products,

substantially similar use patterns could involve organisms that are

similar but not identical.

A similar method of data support means that the applicant is using

methods of data support that do not require EPA to evaluate data (other

than product chemistry data) to review the application. As a practical

matter, this means that the applicant is either citing all required

studies or requesting a waiver of required studies. Many antimicrobial

products must be supported by efficacy data of some sort. Such products

are not substantially similar even if they are similar in composition

and use pattern to another product, because the submitted efficacy data

must be reviewed by EPA. Such products would be considered ``other''

products.

e. ``Other'' products. All applications for new registration other

than new chemicals, identical or substantially similar products, or

those bearing a major new use, would be assigned to the ``other''

category. These are products which have significant differences in

composition, uses, method of data support or labeling. Proposed

Sec. 152.445(b)(5) provides examples of applications that would be

categorized as ``other'' new applications, but is not comprehensive or

explicit, since it is essentially a default category of application. If

a new application cannot readily be categorized either as a ``new

active ingredient'' or as an ``identical'' or ``substantially similar''

application, it would routinely be placed in this category.

7. Applications for amendment

lications that would be

categorized as ``other'' new applications, but is not comprehensive or

explicit, since it is essentially a default category of application. If

a new application cannot readily be categorized either as a ``new

active ingredient'' or as an ``identical'' or ``substantially similar''

application, it would routinely be placed in this category.

7. Applications for amendment. Applications for amendment to an

existing registration are categorized in much the same fashion as new

applications, that is, by defining the ends of the review spectrum, and

placing all amendments not clearly delineated into a middle category.

EPA therefore defines in this proposal three categories of amendments.

a. Amendment to add a major new use. As noted earlier, a major new

use may be presented to EPA in the form of a new registration or an

amendment. This category is for amendments to add a major new use to an

existing registration (as opposed to a new registration that bears a

major new use). ``Major new use'' would be the same as described

earlier.

b. Minor amendment. At the other end of the amendment spectrum, EPA

proposes an application category termed ``minor amendment.'' This

category is intended to parallel the ``identical or substantially

similar'' category for new applications, and is also identical to the

statutorily-defined ``fast-track'' provision of FIFRA section 3(c)(3).

In no case would a minor amendment require the review of any data. The

examples in proposed Sec. 152.445(c)(3) list minor amendments not in

terms of the actual registration changes that might be proposed, but in

terms of the nature of the evaluation that EPA must do. EPA does not

believe that this proposal can, or needs to, describe all the possible

types of ``minor amendments.''

The following are some characteristics of a minor amendment:

The evaluation can be conducted entirely within a Product

Manager team, without any scientific consultation

al registration changes that might be proposed, but in

terms of the nature of the evaluation that EPA must do. EPA does not

believe that this proposal can, or needs to, describe all the possible

types of ``minor amendments.''

The following are some characteristics of a minor amendment:

The evaluation can be conducted entirely within a Product

Manager team, without any scientific consultation.

The decision relies only on non-technical, non-scientific

information readily at hand.

The decision requires only regulatory or administrative

judgments, not scientific ones.

The decision applies existing policy, evaluates adherence

to existing policy, or ensures consistency among decisions.

The evaluation consists of simple comparisons among products.

The evaluation requires no separate documentation (such as

a scientific review) beyond the decision itself.

c. Substantive amendment. EPA proposes a category termed

``substantive'' amendments. This type of application would parallel the

``other'' category of new registrations, and would encompass all

amendments that are neither ``major new uses'' nor ``minor''

amendments. This category consists of amendments that require the

review of any scientific data.

Most changes in label precautionary statements or use directions

are included in this category, as well as many changes in product

composition. Inclusion of such a wide variety of amendments in this

category simply reflects the fact that these changes require the review

of some data. The data may consist solely of bridging or confirmatory

chemistry, toxicity, or efficacy data to demonstrate that the product

and its uses, as modified, would not significantly increase risks, or

that the product as modified remains efficacious. Moreover, the review

may be a cursory evaluation of existing data to determine that the

amendment is adequately supported

e the review

of some data. The data may consist solely of bridging or confirmatory

chemistry, toxicity, or efficacy data to demonstrate that the product

and its uses, as modified, would not significantly increase risks, or

that the product as modified remains efficacious. Moreover, the review

may be a cursory evaluation of existing data to determine that the

amendment is adequately supported. Nonetheless, the defining

characteristic of a substantive amendment is the need to review some

data, either submitted by the applicant or cited from Agency files.

This category is the only one in the statute that carries a range

of review periods (90 to 180 days), a provision that recognizes the

variety of amendments that can conceivably be proposed to a

registration. Arguably, the inclusion of a range of review periods

suggests that there are gradations of application types within this

range--applications that are relatively less complex that could fall at

the short end of the review period (90 to 120 days) and others that

require the full 180 days. Under this interpretation, EPA could be

expected to establish by regulation subcategories of application to

which a specific review period within the 90- to 180-day range would

apply. Equally consistent with the statute would be an interpretation

holding that the range was included simply to allow EPA the flexibility

to deal on a case-by case basis with the wide variety of amendments

covered by this category, and that no further differentiation or other

regulatory treatment is required.

EPA adheres to the latter view. EPA does not believe that it is

statutorily obligated to establish subcategories of 90- to 180-day

substantive

ation

holding that the range was included simply to allow EPA the flexibility

to deal on a case-by case basis with the wide variety of amendments

covered by this category, and that no further differentiation or other

regulatory treatment is required.

EPA adheres to the latter view. EPA does not believe that it is

statutorily obligated to establish subcategories of 90- to 180-day

substantive

amendments. EPA has not discerned any great benefit to the Agency in

doing so, especially by regulation, while noting a number of

disadvantages. A proliferation of categories in itself creates

administrative burdens for EPA in tracking applications. The more

categories that are created--each having its own description against

which applications must be judged and a distinct review period--the

more time it takes EPA generally to administer a tracking system and

ensure that review periods are met. Likewise, the more EPA is bound by

regulatory categories and review periods, the less flexibility the

Agency has to respond to changing review needs or critical priorities

without running afoul of its regulations. EPA is not precluded from

adopting administrative subcategories if it does not choose to adopt

regulatory ones. Moreover, it is not clear that there would be

significant benefits to applicants in gaining a decision 30 to 60 days

earlier that would justify the additional administrative burden for

EPA. Accordingly, EPA is not proposing any specific subcategories.

Under today's proposal, all substantive amendments would be afforded

the same review period, that is, a maximum of 180 days.

In its stakeholder meetings over the past year, however, industry

representatives requested that EPA solicit comment on whether

subcategories should be established. Suggestions from the Chemical

Specialties Manufacturers' Association (CSMA) included the following,

all of which would be classified as substantive amendments:

1

e afforded

the same review period, that is, a maximum of 180 days.

In its stakeholder meetings over the past year, however, industry

representatives requested that EPA solicit comment on whether

subcategories should be established. Suggestions from the Chemical

Specialties Manufacturers' Association (CSMA) included the following,

all of which would be classified as substantive amendments:

1. Amendment with data to add a ``me-too'' use that requires full

toxicology and efficacy review.

2. Amendment with data to change a formulation that requires full

toxicology and efficacy review.

3. Amendment with data to modify a label requiring a toxicology or

efficacy review.

4. Amendment without data to modify a label which requires a

toxicology or efficacy review.

EPA solicits comments on these and other sub-categorizations and

review periods. Commenters should consider the following factors

important to EPA's decision:

A suggested category must be capable of unambiguous

description. EPA would likely not consider a category of uncertain

description that could be subject to dispute between applicants and the

Agency.

A suggested category must be meaningful in terms of both

numbers of applications likely to fall in that category and in the

suggested shorter review period. A category that includes relatively

few amendments would be equally unsatisfactory as one that includes too

many amendments. A suggested review period with less than a 30-day

decrement (180 to 160 days for example) would likely not be considered

meaningful. Nor would EPA likely adopt a category with a suggested

review period of 90 days, since there would then be no distinction

between that subcategory of substantive amendment and a minor

amendment.

A suggested category must be comprised of amendments that

can be reviewed within a review period of less than 180 days without

jeopardizing EPA's ability to meet other review periods

red

meaningful. Nor would EPA likely adopt a category with a suggested

review period of 90 days, since there would then be no distinction

between that subcategory of substantive amendment and a minor

amendment.

A suggested category must be comprised of amendments that

can be reviewed within a review period of less than 180 days without

jeopardizing EPA's ability to meet other review periods. EPA is

committed to making decisions on applications as rapidly as possible,

and currently is meeting the review period goal of 180 days

consistently for all substantive amendments, but without consideration

of subcategories.

If commenters persuade EPA that additional subcategories should be

established, and that the benefits of less than 180-day decisions

outweigh the added administrative burdens (bearing in mind that the

Agency has limited resources and that additional administrative burdens

mean fewer resources for reviewing applications), EPA may in the final

rule adopt one or more subcategories of substantive amendments that

would refine the review period within the 90- to 180-day range. EPA

will not consider subcategories of any types of applications other than

substantive amendments.

E. Consultations During the Application Process

Because EPA is required to process complete applications for

registration within judicially reviewable timeframes, it is critical

that applications and data be complete and conform to Agency

requirements, and, as much as possible, that applicants and the Agency

have a common understanding of requirements and expectations about the

process and its outcomes.

EPA recognizes that the registration process can be complicated for

persons who are unfamiliar with FIFRA and its requirements; even for

those who deal routinely with the Agency, keeping up with new policies

and procedures can be challenging

nd, as much as possible, that applicants and the Agency

have a common understanding of requirements and expectations about the

process and its outcomes.

EPA recognizes that the registration process can be complicated for

persons who are unfamiliar with FIFRA and its requirements; even for

those who deal routinely with the Agency, keeping up with new policies

and procedures can be challenging.

In the past, deficiencies in applications or data have been

resolved during or after the review process, either informally, for

example with a telephone call for a minor problem, or formally, by

rejecting an application with significant deficiencies. The current

review process has tended to encourage consultation only after an

application has been rejected, when EPA can explain both the results of

its review and what an applicant needs to do to correct deficiencies.

Pre-submission consultation has not typically been the case with

antimicrobial products.

With the completeness of an application at stake for an applicant,

and strict review periods in place for EPA, it makes sense for both to

consult as much as is practicable and as early as possible.

Misunderstandings about requirements and expectations may lead to

needless determinations of incompleteness or denial for the applicant,

while impeding EPA's ability to reach decisions in a timely fashion as

required by the statute.

EPA encourages consultation with the Agency on any application

prior to a determination of completeness. However, the majority of

antimicrobial applications are for so-called ``me-too'' products and

uses, those which are identical or substantially similar to others

already registered. Such applications are relatively easy to submit

correctly, seldom raise new or controversial issues, and should not

routinely require specific consultation

any application

prior to a determination of completeness. However, the majority of

antimicrobial applications are for so-called ``me-too'' products and

uses, those which are identical or substantially similar to others

already registered. Such applications are relatively easy to submit

correctly, seldom raise new or controversial issues, and should not

routinely require specific consultation. Once an application has been

determined to be complete, and has been placed in review, the applicant

should not need or expect to consult the Agency until the end of the

appropriate review period (which for ``me-too'' products is only 90

days), or until EPA notifies the applicant of a deficiency.

However, EPA has identified two areas where it believes advance

consultation is essential to the submission of a complete application,

and proposes in Sec. 152.447 to require pre-submission consultation.

The first is applications for new chemicals and major new uses. These

consultations, which are common for agricultural chemicals but rare for

antimicrobial chemicals, help the applicant and the Agency agree upon

data requirements, data waivers, or issues that typically arise for new

chemicals and major new uses (such as food use status).

In addition, EPA proposes to require pre-submission consultation

whenever an efficacy test protocol or method must be approved by the

Agency either because there is no protocol or because the applicant

wishes to modify an exising protocol.

The regulation does not prescribe how consultation is to be

accomplished. There is no requirement that a required consultation

occur in a meeting; a conference call, letter, or other form of

pre-submission consultation

whenever an efficacy test protocol or method must be approved by the

Agency either because there is no protocol or because the applicant

wishes to modify an exising protocol.

The regulation does not prescribe how consultation is to be

accomplished. There is no requirement that a required consultation

occur in a meeting; a conference call, letter, or other form of

communication may be sufficient, depending on the nature of the new

chemical, new use, or protocol approval needs. However, proposed

Sec. 152.447 emphasizes that any regulatory determinations must be in

writing. EPA expects the applicant to follow up any consultation with a

summary of any decisions so that EPA may confirm them in writing.

Proposed Sec. 152.450 would require written documentation of a

consultation describing the substance of the consultation to be

submitted with the application to verify that the consultation took

place as required.

In turn, EPA would commit to adhere to the decisions agreed upon in

a pre-submission consultation unless the circumstances of the

application change, its determinations were in error, or a question of

adverse effects arises.

F. Contents of Applications

1. What the statute requires. FIFRA section 3(h) requires formal

Agency review only upon submission of a ``complete'' application, and

requires that EPA clarify its criteria for completeness of an

application. Current regulations in 40 CFR 152.50 describe the contents

of an application for registration, including applications for

antimicrobial products. EPA proposes in subpart W an expanded and more

detailed description of the contents of a complete application,

including some new elements of an application not currently required.

2. Definition of complete application. First, EPA is proposing a

general definition of ``complete application'' in Sec. 152.3, a

definition that would apply to all applications for registration

imicrobial products. EPA proposes in subpart W an expanded and more

detailed description of the contents of a complete application,

including some new elements of an application not currently required.

2. Definition of complete application. First, EPA is proposing a

general definition of ``complete application'' in Sec. 152.3, a

definition that would apply to all applications for registration. Other

provisions of FIFRA also link Agency priority, review or action to

completeness of an application, for example, the fast-track and minor

use provisions of section 3(c)(3), and the expedited review provisions

of section 3(c)(10). The general definition is repeated in Sec. 152.442

to apply to antimicrobial applications.

The definition draws a distinction between the completeness of the

application itself (which allows EPA to commence formal Agency review),

and the completeness of the information needed for EPA to approve the

application. It is relatively easy to define a core set of items--

forms, labels, routine and uncomplicated data--which, if present in an

application, suffice to begin review. But completeness for Agency

decision purposes encompasses an element of ``adequacy'' that, for many

applications, can only be determined on a case-by-case basis, and only

during or after substantive review of the application. Accordingly, the

decision by EPA that an application is ``complete'' (and, for

``antimicrobial pesticides,'' that begins a review period), represents

only a preliminary or interim determination of overall completeness

intended to allow EPA to initiate formal review.

Completeness becomes a question of adequacy as the amount of

scientific data and the complexity of the risk assessment increase.

Typically, applications for new chemicals or new uses, and actions

involving food uses or increased non-dietary exposures require more

data. FQPA significantly expanded the scope of dietary risk assessment

under the FFDCA, particularly for infants and children

iew.

Completeness becomes a question of adequacy as the amount of

scientific data and the complexity of the risk assessment increase.

Typically, applications for new chemicals or new uses, and actions

involving food uses or increased non-dietary exposures require more

data. FQPA significantly expanded the scope of dietary risk assessment

under the FFDCA, particularly for infants and children.

Correspondingly, EPA will be enhancing its non-dietary assessment of

risks to infants and children, such as might occur with antimicrobial

pesticides. However, ``fast-track'' or ``me-too'' applications that

require little or no scientific review comprise the bulk of

antimicrobial applications submitted to EPA. These actions are

relatively straightforward as to application and approval criteria and

EPA expects that the completeness determinations for review purposes

and for approval of the application generally would be equivalent. For

these types of applications, EPA would be less likely to find during

its formal review that it requires data or information beyond that

provided at the time of application.

3. Contents of an antimicrobial application. FIFRA section 3(h)

requires that, in its final regulation, EPA clarify criteria for

determination of the completeness of an application for antimicrobial

pesticides. EPA is proposing in Sec. 152.450 detailed requirements for

applications, which, if satisfied, would allow a preliminary

determination of completeness.

Current requirements in Sec. 152.50 form the basis for the

requirements in proposed Sec. 152.450, but EPA proposes an expanded

level of detail. Table 3 below sets out each element of an

antimicrobial application as proposed today. Column 1 identifies the

application requirement. Column 2 gives the reference in proposed

Sec. 152.450 of the requirement. Column 3 gives the cross-reference to

Sec. 152.50, or indicates that the requirement is new. New elements are

discussed more fully afterwards

EPA proposes an expanded

level of detail. Table 3 below sets out each element of an

antimicrobial application as proposed today. Column 1 identifies the

application requirement. Column 2 gives the reference in proposed

Sec. 152.450 of the requirement. Column 3 gives the cross-reference to

Sec. 152.50, or indicates that the requirement is new. New elements are

discussed more fully afterwards. Column 4 provides explanatory notes,

indicating that a requirement is unchanged from current requirements,

or describing additions or changes for antimicrobial applications.

Table 3.--Contents of an Antimicrobial Application for Registration

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

Explanatory notes/

differences for

Requirement Sec. 152.450 reference Sec. 152.50 reference antimicrobial

applications

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

Application form (a) (a) Unchanged. Detail is

provided on the

elements and

completeness of the

form.

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

Authorization for agent (b) (b)(3) Unchanged.

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

Summary of application (c) (c) Unchanged. This summary

and that required for

results of studies may

be consolidated.

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

Statement of formula (d) (d), (f)(2) Unchanged. The Statement

of Formula includes

both product identity

and composition.

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

Draft labeling submission (e) (e) Unchanged. Detail is

provided on the

presentation and

completeness of the

labeling submission

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

Statement of formula (d) (d), (f)(2) Unchanged. The Statement

of Formula includes

both product identity

and composition.

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

Draft labeling submission (e) (e) Unchanged. Detail is

provided on the

presentation and

completeness of the

labeling submission.

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

Method of support documentation (f) (f)(1) Unchanged. Consists of

forms and information

required to demonstrate

compliance with data

compensation

requirements of FIFRA.

Sec. 152.450

summarizes the existing

methods of data

support.

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

Data (g) (c), (f)(2) Unchanged.

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

Adverse effects information (h) (f)(3) Unchanged. The proposal

clarifies that such

information is not

required with an

application for

amendment.

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

Tolerances or other food clearances (i) (i) Unchanged.

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

Consultation documentation (j) New If a pre-submission

consultation occurred

under Sec. 152.447, or

decisions or agreements

were made at an

optional consultation,

the applicant would be

required to provide

documentation of that

consultation.

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

Data reviews conducted by other (k) New If reviews have been, or

regulatory authorities are being, conducted by

other regulatory

authorities, the

applicant would be

required to submit

those that are

available

ant would be

required to provide

documentation of that

consultation.

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

Data reviews conducted by other (k) New If reviews have been, or

regulatory authorities are being, conducted by

other regulatory

authorities, the

applicant would be

required to submit

those that are

available.

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

Other clearances (l) Not previously in Unchanged. Applicants

regulatory form are currently required

to provide evidence

that the applicant has

requested clearances

required by other

Agencies.

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

Packaging (m) (g) Unchanged. Clarifies

that packaging itself

is not to be submitted

with an application

unless specifically

requested by EPA.

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

Product samples (n) Not previously in Unchanged. Clarifies

regulatory form that product samples

are not to be submitted

with an application

unless requested by

EPA.

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

Self-addressed means of EPA (o) New Voluntary submission of

notification a postcard or other

means for EPA to notify

the applicant of a

preliminary

determination of

completeness.

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

Fees (p) Part 152, subpart U Unchanged. Application

fees are currently

suspended. Included

here only for

completeness.

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

Authorization to share data and data (q) New Optional

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

Fees (p) Part 152, subpart U Unchanged. Application

fees are currently

suspended. Included

here only for

completeness.

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

Authorization to share data and data (q) New Optional. The applicant

reviews is requested to

authorize EPA to share

either data or EPA

reviews of data with

State, Federal,

national, or

international

regulatory authorities.

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

4. New required elements of applications. Only three required

elements of an application are entirely new in today's proposal.

Proposed Sec. 152.450(j) would require that applicants submit

documentation of the results of pre-submission conferences, either

those required by Sec. 152.447 or optional ones, at which regulatory-

related decisions were discussed or agreements reached. The

documentation could be minutes of the meeting that EPA has reviewed, or

could be a letter from EPA confirming the decisions reached or

approving a specific test regimen or protocol.

Proposed Sec. 152.450(k) would require the applicant to submit

available reviews of the application, or of individual studies, that

have been conducted by other regulatory agencies or organizations. If

an application has been submitted for regulatory review elsewhere, the

applicant would be required to inform EPA of that fact. Applications

may have been submitted concurrently to international regulatory

bodies, or to Federal Agencies or States. If EPA is able to use the

results of reviews conducted elsewhere, it will save time and resources

in reaching a decision on the application, which may allow earlier

entry into the marketplace

tory review elsewhere, the

applicant would be required to inform EPA of that fact. Applications

may have been submitted concurrently to international regulatory

bodies, or to Federal Agencies or States. If EPA is able to use the

results of reviews conducted elsewhere, it will save time and resources

in reaching a decision on the application, which may allow earlier

entry into the marketplace. An applicant would not be required to

either await the results of ongoing reviews or to specifically obtain

copies of the reviews to submit with his/her application. However, if

reviews have been provided, the applicant would be required to submit

them to EPA with his/her application.

Proposed Sec. 152.450(l) would require that applicants provide EPA

with documentation that they have received (or have applied for) any

other clearances from Federal agencies that might be necessary to

market or use the product. EPA currently requires such documentation

before issuing a registration bearing the use in question. Submission

with the application of evidence that the clearance has been requested

or obtained would help assure EPA that the applicant is fully aware of

its obligations under other laws. Ensuring that all regulatory

clearances are underway concurrently also makes the review periods for

EPA meaningful. EPA approval of an application within a review period

would have little meaning if the applicant cannot market the product or

users cannot use it because additional clearances are needed.

5. Non-mandatory or clarified elements of applications. Four

further elements of the antimicrobial application are either clarified

by inclusion of explanatory language, or are voluntary information.

Proposed Sec. 152.450(m)(2) clarifies that product packaging is not

to be submitted unless requested. The submission of labeling is

accomplished using draft typescript copies or mock-ups that are

suitable for microfilming and filing.

Proposed Sec

s. Four

further elements of the antimicrobial application are either clarified

by inclusion of explanatory language, or are voluntary information.

Proposed Sec. 152.450(m)(2) clarifies that product packaging is not

to be submitted unless requested. The submission of labeling is

accomplished using draft typescript copies or mock-ups that are

suitable for microfilming and filing.

Proposed Sec. 152.450(n) clarifies that applicants are not to

submit actual product samples with an application unless requested. EPA

typically requires samples of active ingredients or analytical

standards in conjunction with

setting tolerances. EPA may also request samples of antimicrobial

pesticides bearing public health claims for EPA evaluation of efficacy.

In each case, EPA will separately request such samples and instruct the

applicant how and where to provide them.

Proposed Sec. 152.450(o) provides that applicants who wish to be

notified whether an application is preliminarily complete (and

therefore has been placed into review with a review period) furnish EPA

with a means of notifying them. This could take the form of a postcard,

form letter, or other means of such notification. Without an easy means

of notification, EPA cannot commit to written notification. Nor will

EPA use notification methods such as telephone or e-mail that cannot

properly be documented by an authorized signature as EPA-originated,

although advances in technology may make this feasible in the future.

Finally, EPA would notify the applicant only at the time the

application is determined to be complete; at that time the formal

review period would have started, and EPA's next communication with the

applicant would normally be a decision on the application

(Sec. 152.455, Action on applications.) EPA would not accept multiple

postcards or requests simply to advise the applicant of the status of

the application review during the review period.

Proposed Sec

lication is determined to be complete; at that time the formal

review period would have started, and EPA's next communication with the

applicant would normally be a decision on the application

(Sec. 152.455, Action on applications.) EPA would not accept multiple

postcards or requests simply to advise the applicant of the status of

the application review during the review period.

Proposed Sec. 152.450(q) requests, but does not require, that the

applicant provide authorization for EPA to share the data or EPA

reviews of data with other regulatory agencies. The ability to share

data and reviews among regulatory authorities will contribute to

streamlining EPA review processes for antimicrobial products, and is an

essential element in achieving harmonization of reviews.

An applicant who intends to market a product in the United States

may be required to register the product with individual States; an

applicant who intends to market the product abroad (such as in Canada)

must meet the regulatory requirements of other countries. While the

depth of regulatory scrutiny of a product varies among States and

countries, many require the submission of equivalent amounts of data as

the applicant has submitted to EPA. The ability to share data submitted

to one regulatory authority with others can reduce the paperwork and

review burden of all by reducing multiple identical submissions and

allowing the sharing of the review load. EPA already is engaging in

work-sharing efforts with the State of California and with Canada.

This effort can be complicated by confidentiality claims under

FIFRA section 10(b) or the disclosure restrictions of section 10(g).

Section 10(g) permits the Agency to disclose data in support of

registration only to those who affirm that they will not further

disclose the information to foreign or multinational pesticide

producers

haring efforts with the State of California and with Canada.

This effort can be complicated by confidentiality claims under

FIFRA section 10(b) or the disclosure restrictions of section 10(g).

Section 10(g) permits the Agency to disclose data in support of

registration only to those who affirm that they will not further

disclose the information to foreign or multinational pesticide

producers. Although a mere claim of confidentiality under FIFRA section

10(b) does not conclusively prevent disclosure of information, it does

require the Agency to follow certain procedures (which may include

obtaining a substantiation of the claim from the registrant) to

determine whether the information is entitled to confidential

treatment. These procedures can interfere with free and unimpeded

exchange of information and data among regulatory authorities.

On November 27, 1985, EPA issued Class Determination 3-85 (50 FR

48833). EPA declared as non-confidential (and not subject to the

disclosure restrictions of FIFRA section 10(g)) reviews of data that do

not contain information which would disclose: (1) Manufacturing or

quality control processes; (2) the details of any methods for testing,

detecting, or measuring the quantity of any deliberately added inert

ingredient of a pesticide product; (3) the identity or percentage

quantity of any deliberately added inert ingredient of a pesticide

product; (4) unpublished information concerning the production,

distribution, sale, or inventories of a pesticide (such information

might appear in reviews which discuss the amount of a pesticide sold or

used in a given time, and thus might concern the significance of data

from a test or experiment); (5) any complete unpublished report

submitted to EPA by a registrant or applicant; or (6) excerpts or

restatements of any such report which reveal the full methodology and

complete results of the study, test, or experiment, and all explanatory

information necessary to understand the methodology or interpret the

results

d thus might concern the significance of data

from a test or experiment); (5) any complete unpublished report

submitted to EPA by a registrant or applicant; or (6) excerpts or

restatements of any such report which reveal the full methodology and

complete results of the study, test, or experiment, and all explanatory

information necessary to understand the methodology or interpret the

results.

Agency data reviews are normally drafted to avoid inclusion of

information that is within the six categories described in the

paragraph above, but EPA cannot guarantee that all reviews will meet

these criteria. Moreover, as discussed above, the Agency may have a

need to share raw data in addition to study reviews with States and

other countries.

EPA believes it is in the interest of both applicants and the

Agency to have free and unimpeded exchange of information and data

among regulatory authorities. To that end, this proposal requests that

applicants authorize such exchange at the time of application. Sharing

data and reviews with other regulatory authorities would not compromise

the protection against disclosure provided by section 10, because such

sharing would not constitute a public disclosure of the information.

To authorize data- or review-sharing, the applicant would submit a

statement authorizing EPA to share either any data submitted with the

application or EPA's reviews of such data with regulatory authorities

as needed. An appropriate permission statement would be similar to the

following:

This letter grants permission for EPA to share all data submitted

with this application, EPA reviews of data submitted with this

application, with State, other U.S. Federal, or other national

regulatory authorities. This authorization does not waive any

restrictions on public disclosure of the data reviews.

G. EPA Action on Applications

ermission statement would be similar to the

following:

This letter grants permission for EPA to share all data submitted

with this application, EPA reviews of data submitted with this

application, with State, other U.S. Federal, or other national

regulatory authorities. This authorization does not waive any

restrictions on public disclosure of the data reviews.

G. EPA Action on Applications

1. Completeness screens. EPA currently screens all applications for

completeness, not just antimicrobial applications. The Office of

Pesticide Programs Front End Processing Unit (FEPU) receives all

applications, processes them administratively, and conducts a simple

screen to ensure that required application items are present and

properly submitted. An application accompanied by data is subsequently

screened for submission and format requirements of the data itself.

Data submissions must include specific items prescribed by Agency

regulations in 40 CFR 158.32 and 158.33, as well as meet format and

presentation requirements detailed in PR Notice 86-5. Neither of these

screens evaluates the substance of the application or the data. In

either the FEPU or data screen, EPA may identify deficiencies that must

be corrected. Depending on the nature of the deficiency, the

application may be placed into review anyway, and deficiencies

corrected during the review process. This informal screening and

correction process has served the Agency and applicants well over the

years.

Nonetheless, because FIFRA directs EPA to develop completeness

criteria, and because antimicrobial pesticides are now subject to

review periods, which are computed only if an application is determined

to be complete, it is imperative that EPA not only establish more

formal criteria for completeness, but that EPA conduct a more rigorous

completeness screen before determining even preliminarily that an

application is complete. Section 152.455 of today's proposal describes

what actions EPA

l pesticides are now subject to

review periods, which are computed only if an application is determined

to be complete, it is imperative that EPA not only establish more

formal criteria for completeness, but that EPA conduct a more rigorous

completeness screen before determining even preliminarily that an

application is complete. Section 152.455 of today's proposal describes

what actions EPA

may take on complete and incomplete applications.

2. Preliminary determination of completeness. In addition to the

FEPU administrative screen and the data review screen, the

Antimicrobial Division has instituted a more in-depth screening process

to ensure that only applications that meet the standards of proposed

Sec. 152.450 enter formal Agency review. The antimicrobial screening

process builds on the earlier screens in two ways: by evaluating the

adequacy of certain application items that are typically not evaluated

in a simple administrative screen (e.g., are clearly required studies

included?), and by evaluating application requirements peculiar to

antimicrobial pesticides (e.g., efficacy data requirements).

Based on this screen, EPA would make a preliminary determination

whether an application is complete (proposed Sec. 152.455(a) and (b)).

If the application is incomplete, EPA would notify the applicant,

describe the deficiencies and await resubmission by the applicant. If

complete, and a self-addressed notification has been provided in

accordance with proposed Sec. 152.450(o), EPA would notify the

applicant of the determination, compute the date under proposed

Sec. 152.457 when a decision may be expected (calculated from date of

receipt of the application), and place the application into formal

review. If no self-addressed notification is provided, EPA would place

the application into formal review, but would not notify the applicant

with proposed Sec. 152.450(o), EPA would notify the

applicant of the determination, compute the date under proposed

Sec. 152.457 when a decision may be expected (calculated from date of

receipt of the application), and place the application into formal

review. If no self-addressed notification is provided, EPA would place

the application into formal review, but would not notify the applicant.

Because some elements of completeness cannot be evaluated until the

application is reviewed in depth, a determination of completeness

sufficient to place the application into formal review must, of

necessity, be a preliminary one.

EPA is likely to apply its completeness criteria very strictly, for

several reasons. Strict application of completeness criteria appears to

be consistent with the statutory direction to base enforceable

deadlines on completeness determinations. Further, consistent treatment

of applications is more likely if EPA establishes and adheres to

relatively ``bright line'' criteria for completeness. Finally, the

sheer number of applications that EPA receives means that it must

allocate its review resources very carefully. EPA does not believe it

unreasonable to use completeness determinations as a management tool

for those resources. While refusing entry into review for a minor

deficiency may appear inflexible, it is important to recognize that

what is flexibility for one applicant may appear to be inconsistency or

inequity to another. EPA believes that lack of completeness criteria

and inconsistent application of such criteria have been a source of

applicant dissatisfaction.

3. Effect of incompleteness determination on review period.

Regardless of when a determination of incompleteness is made, the

consequence is the same: the review period would either not be computed

or would be halted and recomputed anew upon receipt of all items

completing the application. EPA would notify the applicant that the

application is incomplete, and specify how it can be made complete.

4

ect of incompleteness determination on review period.

Regardless of when a determination of incompleteness is made, the

consequence is the same: the review period would either not be computed

or would be halted and recomputed anew upon receipt of all items

completing the application. EPA would notify the applicant that the

application is incomplete, and specify how it can be made complete.

4. Applicant resubmission. Proposed Sec. 152.455(b) specifies that

EPA will deem the review period to have begun only upon receipt of the

last item that completes an application. Partial information clearly

does not satisfy the completeness criteria, or allow the application to

be placed into review. EPA discourages applicants from correcting

application deficiencies in a piecemeal fashion; nonetheless,

historically this has happened (and been tolerated by the Agency)

because some deficiencies are easy to correct (a form not signed, an

unreadable draft label), while others may take longer (a missing

required study).

An applicant may wish to resubmit rapidly what can be readily

corrected, and EPA may wish to accommodate the applicant's desire to

begin review of available information. As noted earlier, under the

current application review system, both of these can often be

accommodated. EPA frequently is requested and agrees to place an

application into review while waiting for some item that has not yet

been submitted, expecting that the missing item can ``catch up'' before

it is needed for review. Under the tight review periods provided for

antimicrobial application review, however, EPA cannot afford the time

and resources that may be lost if an applicant fails to provide the

needed information in a timely manner. Other applicants also suffer

because their applications are not reviewed as promptly as possible.

Accordingly, EPA would not place an application into review until all

deficiencies are corrected, and a preliminary determination of

completeness can be made.

5. Agency review

ord the time

and resources that may be lost if an applicant fails to provide the

needed information in a timely manner. Other applicants also suffer

because their applications are not reviewed as promptly as possible.

Accordingly, EPA would not place an application into review until all

deficiencies are corrected, and a preliminary determination of

completeness can be made.

5. Agency review. Once EPA has issued a preliminary determination

of completeness, EPA will place the application into substantive Agency

review. EPA conducts scientific reviews in parallel as much as

possible, although some reviews depend upon the results of others and

must be conducted sequentially. Proposed Sec. 152.455(d) specifies

that, once in review, EPA will complete all reviews for the application

before issuing a decision of any sort, even a determination that the

application remains incomplete. EPA intends, however, to continue, to

the extent practicable, its longstanding practice of communicating

informally with applicants about interim results of reviews as they are

completed. Informal communications are not Agency decisions on the

application itself, and are entirely at the Agency's discretion.

6. EPA decisions after review. Section 3(h)(3)(F)(i) provides that:

[T]he Administrator shall notify an applicant whether an

application has been granted or denied not later than the final day

of the appropriate review period under this paragraph, unless the

applicant and the Administrator agree to a later date.

cisions on the

application itself, and are entirely at the Agency's discretion.

6. EPA decisions after review. Section 3(h)(3)(F)(i) provides that:

[T]he Administrator shall notify an

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Registration Requirements for Antimicrobial Pesticide Products and Other Pesticide Regulatory Changes · 64 FR 50672 | Frix