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Daily Rules, Proposed Rules, and Notices of the Federal Government

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 725

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

RIN 2070-AJ65

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

AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
SUMMARY: EPA received petitions to addTrichoderma reeseiandBacillus amyloliquefaciensto the list of microorganisms that may be used as recipient microorganisms in order to qualify for the exemption from full notification and reporting procedures under the Toxic Substances Control Act (TSCA) for new microorganisms that are being manufactured for introduction into commerce. Based on EPA's evaluation of these petitions, EPA has made a preliminary determination that certain strains of both microorganisms will not present an unreasonable risk of injury to health or the environment when used as a recipient microorganism provided that certain criteria for the introduced genetic material and the physical containment conditions are met. Therefore, EPA is proposing to add two additional microorganisms to the list of recipient microorganisms that are eligible for exemptions from full reporting for the manufacture (including import) of new microorganisms.
DATES: Comments must be received on or before November 5, 2012.

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

ADDRESSES: Submit your comments, identified by docket ID number EPA-HQ-OPPT-2011-0740, by one of the following methods:

*Federal eRulemaking Portal: http://www.regulations.gov.Follow the online instructions for submitting comments.

*Mail:Document Control Office (7407M), Office of Pollution Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

*Hand Delivery:OPPT Document Control Office (DCO), EPA East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC. Attention: Docket ID Number EPA-HQ-OPPT-2011-0740. The DCO is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the DCO is (202) 564-8930. Such deliveries are only accepted during the DCO's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions:Direct your comments to docket ID number EPA-HQ-OPPT-2011-0740. EPA's policy is that all comments received will be included in the docket without change and may be made available online athttp://www.regulations.gov,including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov or email. The regulations.gov Web site is an "anonymous access" system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket:All documents in the docket are listed in the docket index available athttp://www.regulations.gov. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available electronically athttp://www.regulations.gov, or, if only available in hard copy, at the OPPT Docket. The OPPT Docket is located in the EPA Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave. NW., Washington, DC. The EPA/DC Public Reading Room hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number of the EPA/DC Public Reading Room is (202) 566-1744, and the telephone number for the OPPT Docket is (202) 566-0280. Docket visitors are required to show photographic identification, pass through a metal detector, and sign the EPA visitor log. All visitor bags are processed through an X-ray machine and subject to search. Visitors will be provided an EPA/DC badge that must be visible at all times in the building and returned upon departure.

FOR FURTHER INFORMATION CONTACT: For technical information contact:Brian Lee, Chemical Control Division (7405M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (202) 564-6293; email address:lee.brian@epa.gov.

For general information contact:The TSCA-Hotline, ABVI-Goodwill, 422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 554-1404; email address:TSCA-Hotline@epa.gov.

SUPPLEMENTARY INFORMATION: I. General Information A. Does this action apply to me?

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

• Basic Chemical Manufacturing (NAICS code 3251).

• Pesticide, Fertilizer and other Agricultural Chemical manufacturing (NAICS code 3253).

• Other Chemical Product and Preparation Manufacturing (NAICS code 3259).

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed underFOR FURTHER INFORMATION CONTACT.

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

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

2.Tips for preparing your comments.When submitting comments, remember to:

i. Identify the document by docket ID number and other identifying information (subject heading,Federal Registerdate and page number).

ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

iv. Describe any assumptions and provide any technical information and/or data that you used.

v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

vi. Provide specific examples to illustrate your concerns and suggest alternatives.

vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

viii. Make sure to submit your comments by the comment period deadline identified.

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

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

II. Background A. What action is the agency taking?

EPA received petitions to addTrichoderma reeseiandBacillus amyloliquefaciensto the list of recipient microorganisms at § 725.420 that are eligible for the regulatory exemptions applicable to new microorganisms that are manufactured for introduction into commerce (Refs. 1-3). EPA has made a preliminary determination that both of the microorganisms, with certain limitations, meet the criteria for addition to the list—i.e., they will not present an unreasonable risk of injury to health or the environment provided that the other conditions of the exemptions at 40 CFR part 725, subpart G, relating to the introduced genetic material, and the physical containment of the new microorganisms, have been met. Therefore, this document proposes to grant the exemption petition for these two microorganisms.

EPA is proposing to restrict the exemption forTrichoderma reeseito theTrichoderma reeseistrain QM6a and its derivatives (hereafter,T. reeseiQM6a). In addition, EPA is proposing to restrict theT. reeseiQM6a exemption to use under submerged standard industrial fermentation conditions; as described in this proposed rule, these conditions are typical throughout industry and would also meet the existing physical containment and control requirements for the tiered exemptions under § 725.422. EPA would also restrict theT. reeseiQM6a exemption to fermentation operations in which no solid plant material or insoluble substrate is present in the fermentation broth. EPA is also proposing to require that any fermentation of solid plant material or insoluble substrate may only be initiated after the inactivation ofT. reeseiQM6a by a procedure that meets the existing requirements in § 725.422(d), i.e., by a procedure that has been demonstrated and documented to be effective in reducing the viable microbial population by at least 6 logs.

Additionally, EPA is proposing to limit the exemption forB. amyloliquefaciensto only industrial strains ofBacillus amyloliquefaciensthat would fall into the subspeciesBacillus amyloliquefacienssubsp.amyloliquefaciens(hereafter,B. amyloliquefaciens).

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

This action is being taken under the authority of TSCA section 5(h)(4) (15 U.S.C. 2604(h)(4)).

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

C. Existing EPA Regulatory Requirements and Exemption Standard

Manufacturers are required to report certain information to EPA 90 daysbefore commencing the manufacture of intergeneric microorganisms that are not listed on the TSCA Inventory. EPA regulations at 40 CFR part 725 establish the mechanisms for reporting this information.

Any manufacturer of a living intergeneric microorganism who is required to report under TSCA section 5 must file a Microbial Commercial Activity Notice (MCAN) with EPA, unless the activity is eligible for one of the specific exemptions. The general procedures for filing MCANs are described in 40 CFR part 725, subpart B.

EPA regulations establish two exemptions for new microorganisms, after the research and development stage, which are being manufactured for introduction into commerce: The Tier I and Tier II exemptions.

Under the Tier I exemption, if three criteria are met, manufacturers are only required to notify EPA that they are manufacturing a new microorganism that qualifies for this exemption 10 days before commencing manufacture, and to keep certain records. 40 CFR 725.400. To qualify for the Tier I exemption, a manufacturer must use one of the recipient organisms listed in § 725.420, and must implement specific physical containment and control technologies. In addition, the genetic material introduced into the recipient microorganism must be well-characterized, limited in size, poorly mobilizable, and free of certain sequences. 40 CFR 725.421.

A manufacturer who otherwise meets the conditions of the Tier I exemption may modify the specified containment restrictions, but must submit a Tier II exemption notification. 40 CFR 725.428. The Tier II exemption requires manufacturers to submit an abbreviated notification describing the modified containment, and provides for a 45 day period, during which EPA would review the proposed containment. 40 CFR 725.450 and 725.470. The manufacturer may not proceed under this exemption until EPA approves the exemption. 40 CFR 725.470.

EPA established a petition process at § 725.67 to provide a mechanism for the public to propose additional microorganisms as candidates for the tiered exemptions.

Section 725.67 directs a petitioner to submit information to demonstrate that “any activities affected by the requested exemption will not present an unreasonable risk of injury to health or the environment.” 40 CFR 725.67(a)(2). In addition, a petitioner is responsible to provide supporting information for this determination in four general categories:

1. The effects of the new microorganism on health and the environment.

2. The magnitude of exposure of human beings and the environment to the new microorganism.

3. The benefits of the new microorganism for various uses and the availability of substitutes for such uses.

4. The reasonably ascertainable economic consequences of granting or denying the petition, including effects on the national economy, small business, and technological innovation.

Section 725.67 also specifies that when applying to list a recipient microorganism for the tiered exemption under § 725.420, petitioners should include information addressing six specified criteria, which EPA will use to evaluate the microorganism for listing. 40 CFR 725.67(a)(3)(iii). The six criteria are:

• Identification and classification of the microorganism using available genotypic and phenotypic information.

• Information to evaluate the relationship of the microorganism to any other closely related microorganisms which have a potential for adverse effects on health or the environment.

• A history of safe commercial use for the microorganism.

• Commercial uses indicating that the microorganism products might be subject to TSCA.

• Studies which indicate the potential for the microorganism to cause adverse effects to health or the environment.

• Studies which indicate the survival characteristics of the microorganism in the environment.

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

Pursuant to § 725.67, Genencor International, Inc., (subsequently supported by the Enzyme Technical Association (ETA)) and Novozymes North America, Inc., submitted Letters of Application to EPA requesting thatTrichoderma reeseiandBacillus amyloliquefaciens(Refs. 1 and 2) be added to § 725.420 as candidate recipient microorganisms for the tiered exemptions. The letters of application provided information that the submitters believed demonstrate that activities affected by the requested exemptions would not present an unreasonable risk of injury to health or the environment. Information regarding the criteria specified in §§ 725.67(a)(2) and 725.67(a)(3)(iii) were addressed in these letters of application to listTrichoderma reeseiandBacillus amyloliquefaciensas recipient microorganisms under § 725.420.

EPA has made a preliminary determination based on the information provided in the Letters of Application (Refs. 1 and 2), supplemental information provided by ETA (Refs. 4 and 5), and other information available to EPA thatT. reeseiQM6a, with certain restrictions, andB. amyloliquefacienswill not present an unreasonable risk of injury to health or the environment when used as a recipient microorganism provided the existing criteria for the introduced genetic material and for physical containment conditions at § 725.422 are met. EPA's Risk Assessments for these two microorganisms (Refs. 6 and 7) are available in the docket. This unit presents a summary of EPA's evaluation of the available information pertinent to the six criteria delineated in § 725.67(a)(3)(iii) for both microorganisms. These criteria follow:

• Identification and classification of the microorganism using available genotypic and phenotypic information.

• Information to evaluate the relationship of the microorganism to any other closely related microorganisms that have a potential for adverse effects on health or the environment.

• A history of safe commercial use for the microorganism.

• Commercial uses indicating that the microorganism products might be subject to TSCA.

• Studies which indicate the potential for the microorganism to cause adverse effects to health or the environment.

• Studies which indicate the survival characteristics of the microorganism in the environment.

Units V. and VI. summarize EPA's evaluation of the information relating to the criteria delineated in § 725.67(a)(2) that address hazard, exposure, benefits, and economic consequences. Specifically:

• The effects of the new microorganism on health and the environment.

• The magnitude of exposure of human beings and the environment to the new microorganism.

• The benefits of the new microorganism for various uses and the availability of substitutes for such uses.

• The reasonably ascertainable economic consequences of granting or denying the exemption, including effects on the national economy, small business, and technological innovation.

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

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

1.Identification and classification of the microorganism using available genotypic and phenotypic information. T. reeseiis a fungus originally isolated in the Solomon Islands in 1944.T. reeseiis a hypercellulolytic fungus found on deteriorating military fabrics such as tents and clothing. This isolate, designated as QM6a, was initially namedTrichoderma viride.Approximately 20 years later, QM6a was re-classified asTrichoderma reesei.

Trichoderma reeseiis the species name given to the anamorphic form (this form reproduces asexually) of the fungus whose telemorphic form (this form reproduces sexually) is now understood to beHypocrea jecorina.

Recent taxonomic studies have shown that the speciesT. reeseiconsists only of this single isolate QM6a and its derivatives. Many other strains calledT. reeseiisolated elsewhere have now been proposed as belonging to a newly named species,T. parareesei,based on differences in habitat, sporulation, and metabolic versatility.T. reeseihas been shown to belong to a single species now referred to asH. jecorina/T. reesei(QM6a) which reflects its relationship to its teleomorphH. jecorina.The only anamorphic strains within the speciesH. jecorina/T. reeseiare those of QM6a and its derivatives. The petition to addT. reeseito the list of microorganisms at § 725.420 requested that EPA include all strains ofT. reesei.However, given these recent taxonomic publications, all fungal strains correctly namedT. reeseiare, by definition, QM6a or a derivative.

Adequate genotypic and phenotypic information is available for classification ofT. reeseiQM6a and its derivatives. The American Type Culture Collection (ATCC) designation for this original strain ofT. reeseiQM6a is ATCC 13631.

2.Information to evaluate the relationship of the microorganism to any other closely related microorganisms that have a potential for adverse effects on health or the environment.The petition to addT. reeseito the list of microorganisms at § 725.420 requested that EPA include all strains ofT. reesei.Closely related members of sectionLongibrachiatumdo not have a potential for adverse effects; other less closely relatedTrichodermaspecies have a potential to cause adverse effects as pathogens of commercially produced mushrooms. These less closely related species include various species of the Harzianum clade,T. aggressivum, T. pleuotrophilum,andT. fulvidumthat are responsible for significant loss of the mushroom crops ofAgaricus bisporusandPleurotus ostreatus.

T. reesei/H. jecorinacan be distinguished from otherTrichodermaspecies by a comprehensive approach employing criteria of the Genealogical Concordance Phylogenetic Species Recognition (GCPSR) concept, which commonly requires the use of genealogies of three or four genes, not just the sequences of spacer regions as previously utilized for identification. Use of the GCPSR protocol will separateT. reesei(sensu lato) from the opportunistic pathogens within the sectionLongibrachiatum,includingT. longibrachiatumandT. citronoviridae/H. schweinitzii,as well as the mold disease pathogens of mushrooms.

3.A history of safe commercial use for the microorganism. T. reeseiQM6a has a long history of safe use producing a variety of commercial enzymes.T. reeseiQM6a cellulases, beta-glucanases, and xylanases are used by the animal feed, baking, beverages, textile processing, detergent, pulp and paper, industrial chemicals, and biofuels industries.

For industrial enzyme production,T. reeseiis generally grown in a closed, submerged fermentation system. In submerged fermentation, growth of the microorganism occurs beneath the surface of the liquid growth medium. As described in this unit, this type of fermentation system appears to be typical throughout the industry, based on EPA's review of MCAN submissions over the years. This type of fermentation system would also comply with the existing tiered exemption requirements relating to physical containment and control technologies, which are laid out in § 725.422.

Under this type of fermentation system, the fermentation broth is a defined mixture of carbon and nitrogen sources, minerals, salts, and other nutrients, is maintained at optimal pH and temperature, and is typically aerated and mixed with no solid plant material or insoluble substrate present. These conditions support the active growth and productivity of the organisms. Submerged fermentation systems reduce the potential for exposure of workers to the production organism and fermentation broth aerosols, reduce the potential for contamination of the culture and make the collection of extracellular enzyme simpler and less costly. The fermentation process is terminated before theT. reeseiQM6a organisms go into the stationary growth phase (i.e., before secondary metabolism begins). At the end of the fermentation process, the production organisms are separated from the fermentation broth and inactivated. Throughout theSUPPLEMENTARY INFORMATIONsection, EPA refers to this process as “submerged standard industrial fermentation.”

The Food and Drug Administration (FDA) has determined that several enzymes produced byT. reeseiQM6a are Generally Recognized As Safe (GRAS). This determination supports the Agency's preliminary conclusion that commercial use ofT. reeseiQM6a as a recipient microorganism for commercial enzyme production will not present an unreasonable risk of injury to health or the environment.T. reeseiQM6a enzymes used in foods that have been granted GRAS status include cellulase, hemicellulase, transglucosidase, pectin lyase, acid fungal protease, and a chymosin enzyme preparation. Data supporting the GRAS petitions included the results of pathogenicity tests for theT. reeseiQM6a production organisms and toxicity tests for the enzyme products. The data showed that the production strains are not pathogenic and did not produce toxins during enzyme fermentation.

4.Commercial uses indicating that the microorganism products might be subject to TSCA.EPA has reviewed several MCANs involving intergenericT. reeseiQM6a production organisms. More detailed information on MCANs submitted to EPA can be viewed on EPA's TSCA Biotechnology Program Web page:http://www.epa.gov/oppt/biotech/pubs/submain.htm.

IntergenericT. reeseiQM6a strains could also be used to manufacture industrial chemicals other than enzymes such as surfactants or specialty chemicals.

5.Studies which indicate the potential for the microorganism to cause adverse effects to health or the environment—a. Human health hazards—i.Pathogenicity. Trichoderma reeseiQM6a is not pathogenic to humans. Due to its long history of use for production of enzymes used in foodapplications, the potential for the fungus and its products to be pathogenic or toxic to humans has been evaluated numerous times. Various studies have been conducted assessingT. reeseiQM6a's pathogenic potential in healthy and immunocompromised laboratory animals. Most studies have shown a lack of pathogenicity ofT. reeseiQM6a.Pathogenicity studies have been conducted as part of submissions submitted to FDA for GRAS petitions for several different enzymes used in the food industry. Studies using intraperitoneal (ip) injection ofT. reeseiQM6a in rats, using intravenous (IV) injection ofT. reeseiQM6a in both healthy and immunosuppressed rats, and using ip injection of viable and heat-killed cells ofT. reeseiQM6ain rats have all demonstrated a lack of potential pathogenicity to humans.

T. reeseiQM6A is not known to possess any virulence factors associated with colonization or disease such as adherence factors, penetration factors, necrotic factors, toxins, or the ability to grow at human body temperature, 37 °C. There are no reports in the literature on infection in healthy humans byT. reeseiQM6A.There are no reports of harmful effects associated with the use of or exposure toT. reeseiQM6A strains given decades of commercial use for enzyme production. The body of evidence indicates thatT. reeseiQM6A does not pose concerns regarding human pathogenicity.

ii.Toxicity.Available data indicate thatT. reeseiQM6a strains used in submerged standard industrial fermentation operations in which no solid plant material or insoluble substrate is present in the fermentation broth do not present human toxicity concerns. A number of studies have been conducted assessing the potential forT. reeseiQM6a to produce toxins during submerged fermentation for production of enzymes for food, pharmaceutical, or industrial uses. A cellulase enzyme known as celluclast produced byT. reeseiQM6a has been tested for general oral toxicity and inhalation toxicity. Acute oral toxicity studies conducted in mice, rats, and dogs showed thatT. reeseiQM6a cellulase was not toxic to any of the test animals. Subchronic toxicity studies showed no evidence of systemic effects in dogs or rats. Additional toxicity studies have been conducted on other enzymes produced byT. reeseiQM6a,the results of which have been presented in various GRAS petitions. Acute oral toxicity tests on two endoglucanases and a glucoamylase showed a lack of toxins. Subchronic feeding studies conducted on a cellulase, two xylanases, two endoglucanases, a protease, and a glucoamylase also showed a lack of toxicity in rats.

Industrial strains ofT. reeseiQM6a are routinely checked by the enzyme producers to confirm the absence of antibiotic activity and toxins including aflatoxin B, ochratoxin A, sterigmatocystin, T-2 toxin, and zearalenone according to the recommendations of the Joint Food and Agriculture Organization and the World Health Organization (FAO/WHO) Expert Committee on Food Additives. Relying on the data that showT. reeseiQM6a has a long history of safe use in the production of food enzymes where there is a need to routinely check for the absence of toxins, EPA has preliminarily concluded that strains used industrially would not be expected to produce these compounds under the growth conditions used for enzyme fermentation.

iii.Mycotoxins and other secondary metabolites.The only health concern associated withT. reeseiQM6a is its ability to produce a secondary metabolite called paracelsin, which is a peptaibol. Peptaibols are small linear peptides of 1,000-2,000 daltons characterized by a high content of the non-proteinogenic amino acid α-amino-isobutyric acid (Aib), with anN-terminus that is typically acetylated, and aC-terminus that is linked to an amino alcohol, which is usually phenylalaninol, or sometimes valinol, leucinol, isoleucinol, or tryptophanol. Peptaibols are associated with a wide variety of biological activities and have antifungal, antibacterial, sometimes antiviral, antiparasitic, and neurotoxic activity. Paracelsin has been shown to have toxicity toward mammalian cells such as hemolytic activity on human erythrocytes and cytotoxicity to rat adrenal medulla PC12 cells. Paracelsin showed toxicity to PC12 cells (a cell line derived from a pheochromocytoma of the rat adrenal medulla) with a CC50(cytotoxicity concentration of 50%) of 21.8 micromolar (µM) (Ref. 6). Thein vitrohemolytic activity of paracelsin has been reported to be C50= 3.7 × 10−5mole/liter (mol/L) (Ref. 6).

Paracelsin has not been detected in the use ofT. reeseiQM6a under submerged standard industrial fermentation operations in which no solid plant material or insoluble substrate is present in the fermentation broth; numerous toxicity studies on enzyme products ofT. reeseiQM6a have demonstrated a lack of toxicity to laboratory animals. EPA therefore generally expects that paracelsin production will be of insignificant concern with submerged standard industrial fermentation operations in which no solid plant material or insoluble substrate is present in the fermentation broth.

However, under non-standard conditions of fermentation, such as with extended duration of fermentation, or fermentation in the presence of insoluble carbon sources such as cellulose or in the presence of solid plant material, paracelsin may be produced (Ref. 6). Neither the information submitted with the petition, nor the information that is otherwise available is sufficient to allow EPA to determine the extent of paracelsin formation under these non-standard conditions. Consequently, EPA is unable to determine whether the use of the microbe under these non-standard conditions will pose an unreasonable risk to human health and/or the environment (Ref. 6).

b.Environmental hazards—i.Hazards to animals. T. reeseiQM6a is not pathogenic to domesticated animals or wildlife. However, the secondary metabolite paracelsin produced byT. reeseiQM6a has been shown to exhibit toxicity to aquatic species. Twenty-four hour exposure of paracelsin toArtemia salina(brine shrimp) suggested a lethal concentration of 50% (LC50) of 21.26 µM (40.84 micrograms per milliliter (µg/ml)) which decreased to 9.66 µM (18.56 µg/ml) with a 36-hour (hr) exposure. WithDaphnia magna,paracelsin was found to be moderately toxic, with an LC50of 7.70 µM (14.79 µg/ml) with a 24-hr exposure, and 5.60 µM (10.76 µg/ml) with a 36-hr exposure.

ii.Hazards to plants. Trichoderma reeseiQM6a is not a pathogen of plants. Although it is capable of degrading cellulose and hemicellulose due to the copious quantities of the enzymes it can produce, it cannot be a primary colonizer on plant tissue as genetic studies have shown that it does not contain any genes for ligninases that are required for initial breakdown of plant material. This species is known as a wood rot fungus, but it apparently attacks only decaying plant material, not live plants.

iii.Effects on other organisms.Peptaibols are toxic to Gram-positive bacteria and various fungi. The inhibitory action of peptaibols on various fungi is the reason that many species ofTrichodermaare used as biocontrol agents of plant pathogenic fungi.T. reeseiQM6a,which is known to produce only the peptaibol paracelsin, has been shown to be inhibitory to one particular fungus,Phoma destructiva.

Some species ofTrichoderma,specificallyT. aggressivum, T. pleuotrophilum,andT. fulvidumare pathogens of mushrooms. However,T. reeseiQM6a is not a pathogen of mushrooms.

6.Studies which indicate the survival characteristics of the microorganism in the environment.The speciesT. reeseiis known only from the single original isolate QM6a from the Solomon Islands. Therefore, there is little information on its prevalence or behavior in the environment. Microcosm studies have been conducted that suggest it would survive in the environment if inadvertently released in the plant rhizosphere and in bulk soils.

AlthoughT. reeseiwas originally isolated from a tropical climatic region, it would be expected to persist in soils for extended periods of time, even after cold temperatures.

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

1.Identification and classification of the microorganism using available genotypic and phenotypic information. Bacillus amyloliquefacienswas initially proposed as a unique species in 1943. The nameBacillus amyloliquefacienslost standing when it was not included on the Approved List of Bacterial Names with Standing in Nomenclature in 1980. Since classical phenotypic tests could not differentiate it as a species unique fromBacillus subtilis,it was regarded as a subspecies ofB. subtilisfor several decades. However, molecular evidence from various subsequent studies led to the conclusion thatBacillus amyloliquefaciensdid indeed deserve independent status. The DNA homology betweenB. subtilisandB. amyloliquefaciensis only about 15%. In addition, there were several phenotypic properties that differed between the two species. Chemotaxonomic studies revealed additional capability of separating strains ofB. amyloliquefaciensfrom the other related species,B. subtilis, B. licheniformis,andB. pumilus.The species has remained within the genusBacillus sensu strictosince it was last established as a separate species.

Recently, it has been proposed that there are two subspecies within the speciesB. amyloliquefaciens, B. amyloliquefacienssubsp.amyloliquefaciensandB.amyloliquefacienssubsp.plantarum.The former subspecies includes the type strain and likely most, if not all, of the industrial strains ofB. amyloliquefaciensused for enzyme production. The latter subspecies consists of plant-associated strains used as biocontrol agents since they produce a number of antifungal lipopeptide and antibacterial polyketide toxins. This proposed exemption would be restricted to the subspeciesB. amyloliquefacienssubsp.amyloliquefacienswhich contains the industrial strains used for enzyme production. Adequate genotypic and phenotypic information is available to accurately identifyB. amyloliquefacienssubsp.amyloliquefaciens.

2.Information to evaluate the relationship of the microorganism to any other closely related microorganisms which have a potential for adverse effects on health or the environment.There are several species in the genusBacillusthat are known pathogens. These includeB. anthracis,which is pathogenic to humans and other animals, andB. cereus,which is a common cause of food poisoning.B. thuringiensis, B. larvae, B. lentimorbus, B. popilliae,and some strains ofB. sphaericusare pathogenic or toxigenic to certain insects. The new subspeciesB. amyloliquefaciens subsp. plantarumhas been shown to exhibit toxicity mainly to plant pathogenic fungi, but can also be cytotoxic to mammalian cells. It is possible, using polyphasic approaches, to differentiate betweenBacillus amyloliquefaciens subsp. amyloliquefaciensand these other species and subspecies that have the potential to adversely affect humans or other organisms.B. amyloliquefacienscan be distinguished from the very similarB. subtilisby a few phenotypic traits and DNA dissimilarity.

3.A history of safe commercial use for the microorganism. Bacillus amyloliquefacienshas been used to produce commercial enzymes for more than 50 years. It produces carbohydrases, proteases, nucleases, xylanases, and phosphatases that have applications in the food, brewing, distilling, and textile industries.

For commercial enzyme production,B. amyloliquefaciensis grown in a closed, submerged fermentation system. In submerged fermentation, growth of the microorganism occurs beneath the surface of the liquid growth medium. The fermentation broth is a defined liquid growth medium (with no solid plant material or insoluble substrate) of carbon and nitrogen sources, minerals, salts, and other nutrients that is maintained at optimal pH and temperature. These conditions support the active growth and productivity of the organisms. Submerged fermentation systems reduce the potential for exposure of workers to the production organism and fermentation broth aerosols, reduce the potential for contamination of the culture, and make the collection of extracellular enzyme simpler and less costly. The fermentation process is terminated before theB. amyloliquefaciensorganisms go into the stationary growth phase (i.e., before secondary metabolism begins). At the end of the fermentation process, the production organisms are separated from the fermentation broth and inactivated. The enzyme preparation may also be subjected to other purification processes.

B. amyloliquefacienshas a long history of safe use for the production of enzymes with both food and industrial uses with no incidences associated with human pathogenicity. In response to a petition from the ETA, FDA affirmed that carbohydrase enzyme preparations and protease enzyme preparations derived from eitherB. subtilisorB. amyloliquefaciensare GRAS for use as direct food ingredients. The European Food Safety Authority (EFSA) has putB. amyloliquefacienson their list of bacteria that have a “qualified presumption of safety” (QPS) because of a long history of apparent safe use in food and feed production. However, it was put on the list with a qualifier that only strains ofB. amyloliquefaciensthat do not have toxigenic potential be used.

One strain ofB. amyloliquefaciensalso has been used as a biopesticide. A naturally occurring strain ofB. amyloliquefaciens subsp. plantarumwas registered in 2000 as a biopesticide active ingredient under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). It can only be used on certain ornamental, non-food plants in greenhouses and other closed structures.

4.Commercial uses indicating that the microorganism products might be subject to TSCA.It is expected that intergeneric strains ofB. amyloliquefacienswill be used to produce enzymes and to manufacture other industrial chemicals subject to TSCA. Many enzymes produced byB. amyloliquefaciens,particularly α-amylase, are used in laundry detergents and in textile processing.B. amyloliquefaciensalso makes a surfactant known as surfactin which functions as an antibiotic.

5.Studies which indicate the potential for the microorganism to cause adverse effects to health or the environment—a.Human health hazards—i.Pathogenicity.

Bacillus amyloliquefaciensis not pathogenic to humans. There are no reports in the literature associatingB. amyloliquefacienswith infection or disease in humans.B. amyloliquefaciens has been categorized as a Biosafety 1 microorganism by the Centers for Disease Control and Prevention (CDC). Biosafety 1 microorganisms are well-characterized agents not known to consistently cause disease in immunocompetent adult humans, and which present minimal potential hazard to laboratory personnel and the environment. Animal toxicity studies were performed withB. amyloliquefaciensstrain FZB24 to support its registration as a biopesticide. Tests for acute oral toxicity/pathogenicity, acute pulmonary toxicity/pathogenicity, and acute injection toxicity/pathogenicity showed little to no adverse effects, which indicated low mammalian toxicity and a lack of pathogenicity/infectivity.

ii.Toxins and other secondary metabolites.Although another species in the genusBacillus, B.cereus,has the potential to produce food poisoning toxins which cause both emetic and diarrheal syndromes, and a variety of local and systemic infections, the risk of food-borne disease caused by bacilli other thanB. cereusis generally considered to be negligible because usually onlyB. cereushas the genes that encode food poisoning toxins. Industrial strains ofBacillusspecies belonging to theB. subtilisgroup, which includesB. amyloliquefaciens,do not expressB. cereustoxins. In addition, there are no reported cases of food poisoning being caused byB. amyloliquefaciens.

Some strains ofB. amyloliquefacienshave been shown to produce bioactive cyclic lipopeptide metabolites such as iturin, surfactin, fengycin, and bacillomycin D. These are cyclical lipoprotein biosurfactants produced by non-ribosomal peptide synthesis. They have a low mammalian toxicity as demonstrated by a lethal dose of 50% (LD50) of >2,500 milligram/kilogram (mg/kg) in an acute toxicity test of surfactin C, and a No Observed Adverse Effect Level (NOAEL) of 500 mg/kg-day in a repeat dose oral gavage study. Some strains ofB. amyloliquefaciensmay also produce the polyketide toxins macrolactin, bacillanene, and difficidin.B. amyloliquefaciensalso produces the protein toxin barnase and the antifungal protein baciamin.

There are several reports of the isolation ofB. amyloliquefaciensfrom water-damaged buildings in which occupants were suffering ill health symptoms. Extracts from biomass of isolated strains ofBacillusexhibiting antifungal properties were assessed for the toxicity endpoints. All of the isolatedB. cereusandB. amyloliquefaciensstrains studied showed cytotoxicity as evidenced by inhibition of boar spermatozoa motility; however, theB. amyloliquefaciensstrains affected boar spermatozoa differently from the indoorB. cereusisolates and the reference food-poisoning strain.

The isolation of cytotoxic strains ofB. amyloliquefaciensfrom water-damaged buildings is of little concern in relation to this exemption ofB. amyloliquefacienssubsp.amyloliquefaciens.It is important to note that all of theB. amyloliquefaciensstrains studied in water-damaged buildings were specifically selected for further study because the isolates exhibited antifungal activity. Some of the secondary metabolites produced by these biocontrol-type strains ofB. amyloliquefaciensapparently also exhibit cytotoxicity to mammalian cells (i.e., boar spermatozoa). However, industrial strains ofB. amyloliquefaciensthat would fall into the classification asB. amyloliquefacienssubsp.amyloliquefacienshave been shown not to produce most, if not all, of the antifungal and antibacterial lipopeptides and polyketides produced by the biocontrol-type strains. The genome of the type strain ofB. amyloliquefaciensDSM 7T(nowB. amyloliquefacienssubsp.amyloliquefaciens) is very similar to the genome of the biocontrol strain FZB42 (B. amyloliquefacienssubsp.plantarum). However, the latter subspecieshad genomic islands carrying prophage sequences, transposases, integrases, and recombinases that the DSM 7Ttype strain did not have. The DSM 7Ttype strain was shown to have a diminished capacity to non-ribosomally synthesize secondary metabolites with antifungal and antibacterial activities. The DSM 7Ttype strain could not produce the polyketides difficidin or macrolantin, and could not produce lipopeptide such as iturin, macrolantin, and other compounds except for the compound surfactin.

The only other reported instance of mammalian toxin production byB. amyloliquefacienswas during the 1980s with the commercial production of tryptophan, by a genetically engineered strain ofB. amyloliquefaciens,strain IAM 1521. The consumption of the tryptophan food supplement from various retail lots produced by one specific company resulted in an epidemic of a disease known as eosinophilia-myalgia syndrome (EMS) in which 1,511 were sickened, and 37 people died. Although this disease incidence was widely studied, the cause of the disease was never confirmed. It was thought to be due to the consumption of a chemical constituent that was associated with specific tryptophan manufacturing processes. This included the combination of using reduced quantities of powdered carbon for a purification step with the use of a “new” strain ofB. amyloliquefacienscalled Strain V. There purportedly was a chemical substance produced as a result of the genetic engineering of this certain strain, but the toxin was not attributable to the parental strain ofB. amyloliquefaciensas not all production batches were toxic.

Although there are isolated reports of toxin production in several antifungal, environmental isolates ofB. amyloliquefaciens,the larger body of studies available on the safety and toxicity ofB. amyloliquefaciensstrains used industrially for enzyme production (Ref. 6) indicate that these strains are safe and non-toxic. For example, the toxicity of industrial strains ofB. amyloliquefaciens, B. subtilis,andB. licheniformisused for large-scale enzyme production has been studied. The industrial strains did not exhibit any cytotoxicity in Chinese hamster ovary tests. In Europe, the toxicity of two strains ofB. amyloliquefaciensused for the production of α-amylase and bacillolysin for the product Kemzyme W Dry was assessed by the EFSA's Scientific Panel on Additives and Products or Substances used in Animal Feed. The panel concluded that theB. amyloliquefaciensproduction strains DSM9553 and DSM9554 when used as a source of extracellular enzyme do not present a toxigenic risk. Given its widespread distribution in the environment, its long history of safe use in industrial fermentation, the absence of reports on pathogenicity to humans, and the limited reports of cytotoxicity, all indicate that the use ofB. amyloliquefaciensin fermentation facilities for production of enzymes or specialty chemicals does not present a human health concern.

b.Environmental hazards—i.Hazards to animals.There are no reports suggesting thatB. amyloliquefaciensis pathogenic to domesticated animals or wildlife. The cytotoxicity of antifungal secondary metabolites to mammalian cells by biocontrol stains ofB. amyloliquefaciensis discussed in this unit.

ii.Hazards to plants. B. amyloliquefaciensis not pathogenic to plants.There are plant-associated strains ofB. amyloliquefaciensthat are beneficial to plants because they inhibit the growth of fungal plant pathogens. Various antifungal and antibacterial secondary metabolites produced bystrains ofB. amyloliquefacienssuch as various iturins, surfactins, fengycin, bacillomycins, and azalomycin have been shown to inhibit the growth ofRhizoctonia solani, Xanthomonas campestrispv.campestris, Alternaria brassicae, Botyris cinerea, Leptosphaeria maculans, Verticillium longisporum, Pythium ultimatum, Aspergillusspp.,Fusariumspp.,Bipolaris sorokiniana,andFusarium oxysporum.

In addition to the ability ofB. amyloliquefaciensto produce antifungal and antibacterial compounds, the bacterium is known as a plant growth-promoting rhizobacterium. Some of the biological control strains ofB. amyloliquefaciensproduce the phytohormone indole-3-acetic acid (IAA).

6.Studies which indicate the survival characteristics of the microorganism in the environment.Using polymerase chain reaction (PCR) techniques, it has been found that populations of viableB. amyloliquefaciensinoculated at high densities to intact soil-core microcosms decreased to below the detection limit within 1 month. Survival was longer for a genetically modifiedB. amyloliquefaciensstrain on leaf surfaces; vegetative cells were still detected for over 2 months in the phylloplane. Viable cells were not detectable in plant roots after 1 month or in soils after a few days. Given that the natural habitat forB. amyloliquefaciensis typically in soil, on plant roots, or as an endophyte within the roots or stems of plants, the bacterium is likely to survive for a least some period of time if inadvertently released to the environment. However, like other bacilli, survival in soil may occur predominately as the resistant endospore state, whereas in the rhizosphere, it may exist as active vegetative cells.

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

The estimated releases of the microorganism from an enzyme manufacturing facility and exposures of the microorganisms to workers, the general population, and the environments are based on a generic scenario developed by EPA for large-scale closed system fermentation. Assumptions in the generic scenario are that the facility operates 350 days/year, produces 100 batches/year, and the maximal cell concentration in the fermentation broth is 1 × 107colony-forming units (cfu)/ml, and the volume of the fermentation broth is 70,000 L. The process consists of the main steps of laboratory propagation, fermentation and then recovery where filtration operations separate out the biomass from the concentrated desired product. The operations, sources of exposure and release are described in more detail in EPA's Release and Exposure Assessments (Ref. 8).

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

The estimated releases of the microorganism from an enzyme manufacturing facility and exposures of the microorganisms to workers, the general population, and the environments are based on a generic scenario developed by EPA for large-scale closed system fermentation. Assumptions in the generic scenario are that the facility operates 350 days/year, produces 100 batches/year, and the maximal cell concentration in the fermentation broth is 1 × 1011cfu/ml and the volume of the fermentation broth is70,000 L. The process consists of the main steps of laboratory propagation, fermentation and then recovery where filtration operations separate out the biomass from the concentrated desired product. The operations, sources of exposure and release are described in more detail in EPA's Release and Exposure Assessments (Ref. 9).

Additionally, containment and control technologies are delineated in the§ 725.422 for Tier I and Tier II exemptions.

V. Risk Assessment A. Risk Assessment for T. reesei QM6a

There is only one potential concern for human health and environmental hazards associated withT. reeseiQM6a, and that is for paracelsin production. Paracelsin production is not expected to occur in submerged standard industrial fermentation operations in which no solid plant material or insoluble substrate is present in the fermentation broth. There is no concern for potential pathogenicity ofT. reeseiQM6a to humans, plants, domesticated animals, or wildlife. Pathogenicity test data on various industrial strains typically do not show adverse effects. Toxicity testing on a number of enzymes produced byT. reeseiindicates that the fungus does not produce toxins under the standard conditions used for enzyme production.

T. reeseihas a long history of safe use and would be expected to present low hazard to workers, the general public, and the environment. Although direct monitoring data are unavailable, worst-case estimates of potential exposures made by EPA in its assessment of potential risks (Ref. 6) do not indicate high levels of exposure ofT. reeseito either workers or the public resulting from the submerged industrial enzyme fermentation operations that are standard throughout the industry. Standard industrial hygiene management practices currently used in the fermentation industry reduce the potential for adverse health effects in the workplace. The standard use of engineering controls (closed fermentation systems), appropriate work practices, personal protective equipment, and personal hygiene reduce the potential for worker exposure. Thus, current practices reduce the potential for the dermal and respiratory exposures estimated by EPA.

EPA has made a preliminary determination based on worst-case exposure scenarios and toxicity of the microorganism that the potential risk to workers, the general public, and to the environment resulting from the use ofT. reeseiQM6a in submerged standard industrial fermentation as a recipient microorganism is low, provided the additional criteria of the tiered exemptions for the introduced genetic material and the physical containment conditions are met (Ref. 6).

B. Risk Assessment for B. amyloliquefaciens

Industrial strains ofBacillus amyloliquefaciensthat would fall into the subspeciesBacillus amyloliquefacienssubsp.amyloliquefaciensare not pathogenic to humans, plants, domesticated animals, or wildlife, and do not produce many of the toxic secondary metabolites found in biological control strains ofB. amyloliquefacienssubsp.plantarum.The long history of safe use of enzymes produced by industrial strains ofB. amyloliquefaciensin food is evidence that the bacterium does not produce toxins under standard conditions used for enzyme production.

Current practices in the fermentation industry reduce the potential for adverse health effects in the workplace. The use of engineering controls (closed fermentation systems), appropriate work practices, personal protective equipment, and personal hygiene reduce the potential for worker exposure. Thus, current practices reduce the potential for dermal and respiratory exposures.

Industrial strains ofB. amyloliquefacienshave a long history ofsafe use and would be expected to present low hazard to workers, the general public, and the environment. Although direct monitoring data are unavailable, worst-case estimates do not suggest high levels of exposure ofB. amyloliquefaciensto either workers or the public resulting from the submerged industrial enzyme fermentation operations that are standard throughout the industry.

EPA has made a preliminary determination based on worst-case exposure scenarios and toxicity of the microorganism, that the potential risk to workers, the general public, and the environment, associated with the use of industrial strains ofB. amyloliquefacienssubsp.amyloliquefaciensin submerged standard industrial fermentationas a recipient microorganism is low provided the additional criteria of the tiered exemptions for the introduced genetic material and the physical containment conditions are met (Ref. 7).

VI. Economic Impacts

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

VII. Rationale for Proposed Regulatory Action A. Statutory Background

Pursuant to TSCA section 5(h)(4), EPA is authorized to exempt the manufacturer of any new chemical substance from all or part of the requirements of TSCA section 5 if EPA determines that the manufacture, processing, distribution in commerce, use, or disposal of the chemical substance, or any combination of such activities, will not present an unreasonable risk of injury to human health or the environment. Section 26(c) of TSCA provides that any action authorized under TSCA for an individual chemical substance may be taken for a category of such chemical substances.

While TSCA does not contain a definition of “unreasonable risk,” the legislative history indicates that the determination of unreasonable risk requires a balancing of the considerations of both the severity and the probability that harm will occur against the effect of the final regulatory action on the availability to society of the benefits of the chemical substance (Ref. 11). This analysis can include an estimate of factors such as market potential, the effect of the regulation on promoting or hindering the economic appeal of a chemical substance, environmental effects, and many other factors which are difficult to define and quantify precisely. EPA may rely not only on data available to it, but also on its professional judgment. Congress recognized that the implementation of the unreasonable risk standard “will vary on the specific regulatory authority which the Administrator seeks to exercise” [Ibid.].

B. EPA's Approach

In determining whetherT. reeseiQM6a andBacillus amyloliquefacienssubsp.amyloliquefacienswill not present an unreasonable risk of injury to human health or the environment, the Agency considers more than just the inherent risks presented by the two microorganisms. The Agency also considers the full range of societal benefits associated with the exemption; for example, as discussed in more detail in Unit V., EPA considers not only the cost savings to the users of the microorganism, but also the societal benefits that flow from promotion of the use of low-risk recipient microorganisms, while allowing the Agency to direct its resources toward higher risk microorganisms.

EPA is only proposing to revise one aspect of the existing tiered exemptions at§ 725.420; specifically, EPA is proposing to expand the exemption to apply to two specific microorganisms. EPA is not reconsidering or otherwise reopening any other aspect of those exemptions. The narrow scope of this action necessarily affects the scope of EPA's cost-benefit analysis. This means, for example, that EPA compares the risks and benefits of the two microorganisms being considered for an exemption with the risks that would have resulted if those same two microorganisms remained subject to full MCAN submission requirements and 90-day EPA review. But EPA does not compare the risks and benefits that would result from use of these two microorganisms in the absence of any regulation.

It is also significant that the standard applicable to this proposed rule is that the microorganisms will present “no unreasonable risk,” rather than “no risk.” It is not possible to eliminate all risks associated with the manufacture, processing, distribution in commerce, use, and disposal of any new microorganism nor was this Congress' intent. The standard embodied by a TSCA section 5(h)(4) exemption does not require the Agency to ensure absolute safety from the activities associated with an exempted chemical substance.

C. Application of No Unreasonable Risk Factors

The following is an explanation of the factors and their analyses relevant to the no unreasonable risk finding.

1.Risks associated with microorganisms.EPA's evaluation of the available information concerningT. reeseiQM6a andB. amyloliquefacienssubsp.amyloliquefaciensagainst these criteria is presented in detail in Unit III., and is summarized again here for the readers' convenience.

The Agency developed specific criteria in § 725.67 that the Agency uses in determining the extent of a potential recipient microorganism's risks, and consequently, its eligibility for listing at § 725.420. These criteria were explained in detail in the proposed “biotech” rule (Ref. 12) and final “biotech” rule (Ref. 13), and are discussed again in Units II. and III. EPA's conclusions regarding the low-risk potential for these two microorganisms are based on the available data and EPA's scientific professional judgment based on 14 years experience reviewing notifications for new intergeneric microorganisms submitted in accordance with the regulations at 40 CFR part 725.

T. reeseiQM6a is not pathogenic to humans, plants, domesticated animals, or wildlife and the fungus does not produce toxins under standard industrial conditions used for enzyme production.T. reeseiQM6a has a long history of safe use and is generally expected to present low risk to workers, the general public, and the environment resulting from submerged standard industrial enzyme fermentation operations that are standard throughout the industry. Under non-standard conditions of fermentation, such as with extended duration of fermentation, or fermentation in the presence of insoluble carbon sources such ascellulose or other solid surfaces, paracelsin may be produced. The risks associated with the production of paracelsin may be significant due to the toxicity of paracelsin to mammalian cells, aquatic species, Gram-positive bacteria, and various fungi. However, the potential risk associated with any paracelsin production would be significantly reduced by this proposed rule, which proposes to limit the exemption to fermentation operations using submerged standard industrial fermentation operations, and in which no solid plant material or insoluble substrate is present in the fermentation broth.

Industrial strains ofBacillus amyloliquefaciensthat would fall into the subspeciesBacillus amyloliquefacienssubsp.amyloliquefaciensare not pathogenic to humans, plants, domesticated animals, or wildlife, and do not produce toxins under standard conditions used for enzyme production. Industrial strains ofB. amyloliquefacienssubsp.amyloliquefaciensused in fermentation facilities for the production of enzymes have a long history of s