Pesticide Registration (PR) Notice 2007-2

NOTICE TO MANUFACTURERS, FORMULATORS, PRODUCERS AND REGISTRANTS OF
PESTICIDE PRODUCTS

ATTENTION:	Persons Responsible for Registration of Pesticide Products

SUBJECT:	Guidance on Small-Scale Field Testing and Low-level Presence in
Food of Plant-Incorporated Protectants (PIPs)

	This PR Notice provides clarification on the process by which EPA
reviews and ensures the safety of residues of plant-incorporated
protectants (PIPs) potentially present in low levels in food or feed,
and the conditions under which a tolerance or exemption from the
requirement of a tolerance would be required for field tests for
biotechnology-derived food and feed crop plants containing
plant-incorporated protectants.

There are no new rules, policies or interpretations in this PR Notice.
This PR Notice summarizes, explains, and provides guidance to
researchers and others using or testing plant-incorporated protectants
regarding compliance with existing rules under the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA) and the Federal Food, Drug, and
Cosmetic Act (FFDCA).  Some researchers and other users of PIPs may not
be aware of their obligations regarding small scale field studies.
Because those obligations are contained in several different rules, the
Agency seeks to assist these individuals in understanding the existing
requirements to facilitate compliance, and therefore prevent potential
violations.

I.  BACKGROUND

The use of bioengineered plants for food production, including plants
engineered to express plant-incorporated protectants, has markedly
increased over the past decade.  A plant-incorporated protectant is a
pesticidal substance that is intended to be produced and used in a
living plant, or in the produce thereof, and the genetic material
necessary for production of such a pesticidal substance.  It also
includes any inert ingredient (such as selective markers used to ensure
the active ingredient is inserted into the plant) contained in the
plant, or produce thereof.

This PR Notice elaborates on policies the U. S. Environmental Protection
Agency (EPA) described in the August 2, 2002, Federal Register Notice
(67 FR 50578) on “Proposed Federal Actions to Update Field Test
Requirements for Biotechnology Derived Plants and to Establish Early
Food Safety Assessments for New Proteins Produced by Such Plants”
issued under the auspices of the Office of Science and Technology Policy
(OSTP).  The OSTP notice was issued to outline what measures federal
agencies would take to prevent low levels of biotechnology derived genes
and gene products from being found in commercial food and feed until the
appropriate safety standards have been met.  The OSTP notice stated that
EPA would rely on existing processes and publish guidance for
individuals and organizations conducting field testing of
Plant-Incorporated Protectants.

As discussed further in Section II, regulations promulgated under the
Federal Insecticide, Fungicide and Rodenticide Act typically allow
small-scale field trials (<10 acres) without the issuance of an
Experimental Use Permit (EUP), and do not require the issuance of a
temporary tolerance for residues in food if the crop is destroyed or fed
only to experimental animals (animals used for research purposes that
will not enter the human food chain).  Such small scale tests are thus
not expected to result in residues in food that have not been evaluated
for safety by EPA.  This is important since food containing pesticide
residues that have no tolerance or tolerance exemption is adulterated
under the FFDCA and may not be moved in interstate commerce.

Potential users of PIPs or researchers conducting such small scale field
trials should however be cognizant of the possibility of dispersal of
PIPs and PIP residues.  PIPs are produced and used in living organisms
and living organisms have the potential to spread genetic material and
subsequently produced pesticidal proteins through several routes among
plant populations.  Depending on the biology of the crop expressing a
PIP, agronomic practices employed and the conduct of the studies, there
is the potential for the PIP to inadvertently spread from test plants
into other commercial, breeding or experimental crops and into the food
supply.  Transfer can occur through cross-pollination with surrounding
crops, or the inadvertent mixing of seeds or other plant propagative or
food/feed material after harvest.  If PIPs are transferred, the
consequence may be that low-levels of biotechnology-derived genes and
gene products that have not been evaluated for dietary safety and do not
have needed residue tolerances enter the commodity stream and the food
supply.

Depending on the specific circumstances of a field trial (e.g. biology
of the crop, location of the trial, etc.), EPA urges potential
registrants and researchers to consult early with the EPA to ensure that
appropriate physical and/or biological controls are in place to restrict
the flow of genetic material, including seeds, from field tests to
minimize the potential for such adulterants to enter the food supply.
During this consultation, EPA would discuss the planned confinement
measures, and provide recommendations as to whether those measures would
adequately ensure that residues of the tested PIP do not enter the food
supply.  In general, EPA would consider field trials less than 10 acres
to have sufficient physical or biological controls if they are conducted
under APHIS authorization and are in compliance with APHIS requirements.
 As part of the consultation, EPA could also recommend measures that
could be taken to destroy affected crops, or measures to prevent the
commingling of seeds or other plant material if the crop is to be held
and used only for future research purposes.  In some cases, EPA may
recommend that the developer seek a temporary tolerance.  EPA might also
conclude that an EUP is required in order for the test to proceed.   If
there is a reasonable expectation that residues of a PIP being tested
could enter the food supply (through any route, e.g., pollen flow,
mixing of seed), albeit at low levels, all crops affected by such tests
must either be destroyed, be kept from the food/feed supply while
additional studies using the crop are conducted, or a tolerance
determination must be made at any size of field test (i.e., including
any field test at or less than 10 acres of land).   It is the
responsibility of the company and/or researcher to ensure that all
studies comply with this regulatory requirement.

A. Scope

The purpose of this PR Notice is to provide guidance to those
individuals conducting field trials with plant-incorporated protectants
that have either not received a registration or an EUP and do not have a
tolerance/exemption or temporary tolerance/exemption.  As described in
Part 174.3 of Title 40 of the Code of Federal Regulations (CFR), a
plant-incorporated protectant is a pesticidal substance that is intended
to be produced and used in a living plant, or in the produce thereof,
and the genetic material necessary for production of such a pesticidal
substance. It also includes any inert ingredient contained in the plant,
or produce thereof.  Part 174.3 defines living plant as “a plant,
plant organ, or plant part that is alive, viable, or dormant.  Examples
of plant parts include, but are not limited to, seeds, fruits, leaves,
stems, flowers, and pollen.”  PIPs are pesticides under the Federal
Insecticide, Fungicide, and Rodenticide Act, because they meet the
section 2(u) definition of pesticide which reads in part:   “(1) Any
substance or mixture of substances intended for preventing, destroying,
repelling, or mitigating any pest . . . .”

B. FFDCA Section 408 Requirements

Residues of PIPs in food are pesticide chemical residues under the
Federal Food, Drug, and Cosmetics Act.  Food includes articles used for
food or drink by humans or other animals (animal feed).  Under FFDCA
section 408, EPA regulates pesticide residues by establishing tolerances
limiting the amounts of residues that may be present in or on food, or
by establishing exemptions from the requirement of a tolerance for such
residues.  A tolerance is a legal limit or maximum amount of residues of
the pesticidal substance allowed in food and feed. A tolerance (or
exemption form a tolerance) is required for all pesticide residues on
food or feed whether imported into the United States or domestically
produced.  An exemption from the requirement of tolerance can be issued
if it can be shown that the aggregate exposure of any amount of the
pesticide meets the legal standard of a reasonable certainty of no harm
(FFDCA sec. 408(e)(2)(ii)).  Typically a tolerance exemption may be
granted for a PIP when testing indicates no toxicity from the pesticide
and no indication of allergenicity from the pesticidal (or inert)
proteins.  A food containing pesticide residues may not be moved in
interstate commerce without an appropriate tolerance or an exemption
from the requirement of a tolerance.  This applies also to food
generated during field testing of a PIP and includes any food/feed crops
not part of the testing that contain any detectable level of a PIP
originating from such tests, with the exception that tolerance issues
need not be addressed for plant materials containing the PIP provided
that such materials are being moved only for the purposes of additional
experimentation and do not enter the food/feed supply.

C.  Small Scale Field Testing of Pesticides

Section 5 of FIFRA, and 40 CFR part 172 provide for issuance by the
Agency of EUPs for the testing of new pesticides or new unregistered
uses of registered pesticides, including PIPs.  Under Section 5 of
FIFRA, Congress authorizes EPA to issue EUPs in order to allow
interested parties the ability to gather sufficient information on a new
pesticide or a new use of an existing pesticide to support registration
under Section 3 of FIFRA.   Before issuing an EUP, the Agency must
determine that use of the experimental product, under the conditions
proposed in the EUP application, will not result in “unreasonable
adverse effects,” as defined in section 2 (bb) of FIFRA, to human
health or the environment.

EUPs are generally required for a small-scale test involving use of a
particular pesticide that is conducted on a cumulative total of more
than 10 acres of land per pest.  An EUP is generally not required for
testing at or under 10 acres, because such tests are generally presumed
not to involve unreasonable adverse effects.  The regulations regarding
EUPs allow additional acreage for testing that involves multiple pests
that do not occur in the same geographic area or at the same time.  This
means that testing a PIP to evaluate control of two separate pest
species that do not occur in the same geographic vicinity or at the same
time may be done on up to 20 acres (i.e., two separate 10 acre test
sites) without triggering the requirement for an EUP.  On the other
hand, if control of the two pests may be evaluated at the same location
or at the same time, testing may include no more than 10 acres without
triggering the need for an EUP.   Part 172.3(c) states generally that an
EUP would be required for testing conducted on 10 acres or less under
certain circumstances.  Specifically, if there is a reasonable
expectation that residues of a pesticide could get into food or feed,
then a tolerance or exemption from the requirement of a tolerance is
required in order for the test to proceed without an EUP, unless all of
the plant material potentially containing the residue is destroyed or
used for additional experimentation and will not enter the food supply.

II.  ISSUES

 PIP pesticide residues can be contained in pollen moving from the test
plants to surrounding crops or as a result of pollen transfer from a PIP
crop to a sexually compatible crop nearby.  The accidental mixing of
seed or the growth of volunteer plants may also present an opportunity
for PIP residues to move. Note that this characteristic of living plants
does not necessarily mean that an EUP is required at 10 acres or less,
but that tolerance issues must be addressed before the testing
commences.  Where the testing involves food or feed crops, additional
conditions apply to the  presumption that small scale field testing is
exempt from EUP requirements as described in 40 CFR 172.3(c)(1)(ii),
which reads as follows:

“(ii) 	Any food or feed crops involved in, or affected by, such tests
(including, but not limited to, crops subsequently grown on such land
which may reasonably be expected to contain residues of the tested
pesticides) shall be destroyed or consumed only by experimental animals
unless an appropriate tolerance or exemption from a tolerance has been
established under the Federal Food, Drug, and Cosmetic Act (FFDCA) for
residues of the pesticide.”

Specifically, testing conducted under 10 acres may proceed without an
EUP if all food or feed crops involved in or affected by such tests are
destroyed or held for further experimentation and prevented from
entering the food supply.  Alternatively if the developer chooses not to
destroy or hold the crops for additional testing,  an EUP with
appropriate conditions would be required for any testing under 10 acres
unless a tolerance for the pesticide residues had been established for
any food crops involved in or affected by such tests.  The regulations
do not provide exclusion from the need for a tolerance for residues
resulting from pollen transfer.  Nor would such an interpretation be
consistent with EPA’s long-standing implementation of this provision.
For PIPs, the terms “involved in” or “affected by” would include
the presence of a pesticide residue as a result of, for example, pollen
transfer from a PIP crop to a sexually compatible crop.  For example, a
five acre uncontained study using field corn containing a PIP without a
tolerance or exemption from the requirement of a tolerance which is
planted close enough to a commercial field of corn (whether containing a
PIP or not) such that pollen from the study plot will at least partially
fertilize the corn nearby, would require a tolerance (or exemption from
the requirement of a tolerance) or an EUP.  On the other hand, the same
study design would not require a tolerance or exemption or an EUP if
sufficient confinement measures (such as those mentioned later in
Section III) were instituted.

Note that the spread of pollen from the test corn in the study mentioned
above to a sexually incompatible crop such as soybeans would not require
a tolerance or tolerance exemption nor an EUP as pollen residues
generally quickly break down in the environment.  However, the
registrants must use sufficient measures to prevent the inadvertent
spread of the PIP trait,  Therefore, registrants may wish to consult
with the Agency for tests under 10 acres to verify that under the test
conditions, tolerance and EUP requirements are not triggered.

III.  RESIDUE CONFINEMENT IN SMALL SCALE FIELD TESTING

Testing at 10 acres or less does not require an EUP if a tolerance
exists for residues of the PIP involved.  Additionally, the presumption
that an EUP is not required may still pertain when the PIP does not have
a tolerance providing that the test is conducted in a manner that will
provide for the destruction of all crop material containing PIP residues
or such crop material is fed to experimental animals not entering the
food supply, and that the test design precludes potential contamination
of the food supply by the PIP from gene transfer or other routes such as
seed mixing.

Several methods exist that may reduce the probability for PIP residues
to enter the food and feed supply from small scale field tests.  These
include procedures to control reproduction, pollen movement, and seed
movement through identity preservation, and quality assurance/quality
control mechanisms related to the identification of seeds and other
propagative materials.

A.  Procedures to Control Reproduction and Pollen Movement

1.  Spatial isolation of test plants.  This may involve considerable
distance as pollen from some species may move long distances.

2.  Physical isolation such as exclusion barriers to pollination such as
bagging corn or the planting of crops to intercept pollen.

3.  Reproductive isolation such as emasculation or sterilization of
plants.

4. Temporal isolation to ensure that potentially receptive plants are
not sexually synchronous with test plants.

5.  Elimination of pollinating insects either through physical barriers
such as netting or through the use of insecticide applications.

Usually several techniques are used in combination to ensure that no
detectable residues of unapproved PIP proteins can result from gene
transfer.   Since the appropriate techniques and isolation distances
vary from crop to crop, questions may arise related to test design --
specifically with respect to reproduction and pollen movement.  In these
cases, it is suggested that developers and researchers involved in the
small-scale field testing of PIPs consult with EPA.

B.  Identity Preservation

The mixing of seeds used during or derived from testing, along with any
similar propagative or food/feed materials with materials, (i.e., grain
or seeds) to be used for food or feed can be prevented by the
development of a strict and thorough system of identity preservation.
Several items are important steps in such a program:

1.  Labeling of propagative plant materials including seeds before,
during and after the study.

2.  Written plans and records related to planting locations and the
compatibility of plantings within the distance of potential gene
transfer.

3.  Written records and documentation with respect to activities to
prevent gene transfer such as emasculation or the installation of
barriers.

4.  Procedures to check potential compatible recipients and/or their
seeds or other propagative materials for the presence of unintended
events regardless of any prior mechanisms to prevent pollen spread.

5.  Tracking systems to ensure that seeds and plant materials held for
further experimentation are not unintentionally commingled with other
similar plant materials also held at the facility, or other facilities
where they may be sent for testing.

Note that the test procedures to detect PIP residues are extremely
sensitive and that methods for assuring phenotypic purity may not be
adequate to address low-level PIP contamination.   Laboratory analysis
for inadvertent presence of additional events may therefore be an
important step in QA/QC procedures.

IV.  IMPORTANT CONSIDERATIONS IN TOLERANCE DETERMINATIONS

	Sometimes the actions necessary to prevent low-level presence are not
compatible with the test design for a particular study, and the
researcher(s) will need to apply for a tolerance. When a tolerance is
needed for an EUP or registration action, information is submitted that
allows the Agency to evaluate the potential of the PIP to have effects
on human health.  The Agency must consider whether any part of the PIP
is a potential allergen, toxin, or has any other deleterious effect.  To
date, tolerance requests for PIPs have been limited to pesticidal and
inert proteins and the genetic material necessary for their production.
In July2001 (66 FR 37817), EPA issued a tolerance exemption for nucleic
acids; this tolerance exemption applies to residues of nucleic acids
that are part of the PIP.  For the tolerances approved thus far, the EPA
has received several types of data to support the finding of a
reasonable certainty that no harm will result from the aggregate
exposure to the protein portion of a PIP.  The information is intended
to show that:  1) the protein behaves as would be expected of a protein
ordinarily found in the diet; 2) the protein is not structurally related
to any known allergen or protein toxin, and, if appropriate; 3) the
protein does not show any oral toxicity when administered at high doses.
 Data submitted to make these determinations thus far have consisted of
characterization of the introduced gene(s) and protein, an in vitro
digestion assay, amino acid sequence homology comparisons of the
introduced protein with known allergens and toxins and, in many cases,
an acute oral toxicity test.  Details on these studies follow:

A.  Characterization.   Applicants have provided data with sufficient
information (e.g. sequence data, Southern and Northern blots) regarding
the DNA that is inserted into the plant and the protein expressed,
molecular weight, post-translational modification, expression, stability
of the protein to heat, genetic stability and biological activity of the
protein.  Characterization data are critical to understanding the way in
which the PIP was made and the unique nature and potential exposure of
each PIP.  Characterization data provide information on the specific
transformation systems used for each product, the actual DNA that is
inserted into the plant, and protein expression levels for various plant
tissues.

B. In vitro digestibility assay.  EPA looks at the in vitro
digestibility test to determine whether the protein is unstable in the
presence of simulated human digestive fluids and whether it is unusually
persistent in the average human digestive tract.  This test provides
information on the potential of the protein to be a food allergen.

C. Amino acid homology.  Amino acid sequence comparisons using protein
databases are typically performed to identify similarities with known
toxins or allergens.

D. Acute oral toxicity. In certain instances, acute toxicity testing
data have been provided.  This testing relies on the fact that toxic
proteins generally express toxicity at relatively low doses.  Therefore
when a protein has no apparent effects in the acute oral toxicity test,
particularly at relatively high doses, the protein is considered
non-toxic.  The acute oral toxicity test is done at maximum-hazard dose
levels using purified protein of the plant-incorporated protectant as a
test substance.  If the purified protein is derived from microbial
production, then data demonstrating equivalence to the protein as
expressed in the plant has typically been submitted.

V.  SCOPE OF POLICY

	This PR Notice describes certain requirements set forth by FIFRA and
FFDCA along with associated regulations and provides general guidance to
EPA and affected parties.  While the requirements in FIFRA and its
regulation are binding on EPA and other affected parties, this PR Notice
is intended to provide guidance to EPA, applicants, registrants and the
public.  As guidance, this policy is not binding on either EPA or any
outside parties, and EPA may depart from the guidance where
circumstances warrant and without prior notice.  Registrants and
applicants may propose alternatives to the recommendation in this PR
Notice, and the EPA will assess them on a case-by-case basis.

VI.  PAPERWORK REDUCTION ACT NOTICE

The information collection activities associated with the application
process for EUPs that are also described in this PR Notice are already
approved by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq.  The corresponding
Information Collection Request (ICR) document has been assigned EPA ICR
number 0276, and is approved OMB control number 2070-0040.  Under that
ICR, the total estimated annual respondent paperwork burden associated
with the application process for EUPs is 10.10 hours per application.  A
copy of the most recent version of this ICR is available under Docket ID
No. EPA-HQ-OPP-2006-0632 at   HYPERLINK "http://www.regulations.gov"
www.regulations.gov .  Under the PRA, “burden” means the total time,
effort, or financial resources expended by persons to generate,
maintain, retain, or disclose or provide information to or for a Federal
agency. For this collection, it is the time reading the regulations,
planning the necessary data collection activities, conducting tests,
analyzing data, generating reports and completing other required
paperwork, and storing, filing, and maintaining the data.

Under the PRA, an agency may not conduct or sponsor, and a person is not
required to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations codified in Chapter 40 of the CFR, after appearing in the
preamble of the final rule, are listed in 40 CFR part 9, are displayed
either by publication in the Federal Register or by other appropriate
means, such as on the related collection instrument or form, if
applicable.  The display of OMB control numbers in certain EPA
regulations is consolidated in 40 CFR part 9.  For the ICR activity
contained in this PR Notice, EPA is displaying the applicable OMB
control number in the PR Notice above, and the applicable OMB control
number also appears on the EUP application.

VII.  FOR FURTHER INFORMATION

The Agency recognizes the difficulty of completely containing living
organisms by seeking to avoid pollen drift and cross pollination or of
commingling of seeds or grain or other living plant parts after harvest.
 Therefore, potential applicants desiring additional information or
confirmation that confinement measures are adequate may consult with EPA
in order to discuss these topics and/or making applications for
tolerances, tolerance exemptions, or EUPs. Applicants can request
written responses to specific questions if needed.  The appropriate
contact for such consultation is:

Patricia Moe, Team Leader

Microbial Pesticides Branch (7511P)

Office of Pesticide Programs

U.S. Environmental Protection Agency

1200 Pennsylvania Ave. NW

Washington, DC 20460

Telephone number<PHONE_NUMBER>

Email:    HYPERLINK<EMAIL_ADDRESS><EMAIL_ADDRESS>
__________________________________________

Debra Edwards, PhD, Director

Office of Pesticide Programs

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