Notice of Proposed Rulemaking, Amendments to Article 5, New Section 25501.1, Naturally Occurring Concentrations of Listed Chemicals in Unprocessed Foods

NOTICE IS HEREBY GIVEN that the Office of Environmental Health Hazard Assessment (OEHHA) proposes to adopt a new Section 25501.1 in Article 5 in Title 27 of the California Code of Regulations.  The new section would provide guidance for businesses and the public by establishing default natural background levels for arsenic in rice.  The default background levels would in turn assist businesses in determining the applicability of the requirements of Proposition 65.[1]  The concentration levels derived in Section 25501.1 take into account the possible contribution of anthropogenic sources in deriving the naturally occurring safe harbor values for the section.  The proposed naturally occurring concentrations for of inorganic arsenic in rice are 80 parts per billion (ppb) for white rice and 170 ppb for brown rice.  Additional levels for other listed chemicals or types of foods may be adopted over time. 

PUBLIC PROCEEDINGS

Public Hearing

A public hearing on these proposed regulatory amendments will be scheduled on request.  To request a hearing, send an e-mail to Monet Vela atmonet.vela@oehha.ca.gov(link sends e-mail) or to the address listed above by no later than August 23, 2017, which is 15 days before the close of the comment period.  OEHHA will mail a notice of the hearing to the requester and interested parties on the Proposition 65 mailing list for regulatory public hearings.  The notice will also be posted on the OEHHA web site at least ten days before the public hearing date.  The notice will provide the date, time, and location of the hearing.

If a hearing is scheduled and you have special accommodation or language needs, please contact Monet Vela at (916) 323-2517 or monet.vela@oehha.ca.gov(link sends e-mail) at least one week in advance of the hearing.  TTY/TDD/Speech-to-Speech users may dial the California Relay Service: 1-800-735-2929 (TTY), 1-800-735-2922 (Voice) TTY which is a Telecommunications Device for the Deaf, and is reachable only from phones equipped with a TTY Device.

Written Comment Period

Any written comments concerning this proposed regulatory action, regardless of the form or method of transmission, must be received by OEHHA by 5:00 p.m. on September 7, 2017, the designated close of the written comment period.  All comments will be posted on the OEHHA website at the close of the public comment period.

The public is encouraged to submit written information via e-mail, rather than in paper form.  Send e-mail comments to P65Public.Comments@oehha.ca.gov(link sends e-mail).  Please include “Naturally Occurring – Arsenic in Rice” in the subject line.  Hard-copy comments may be mailed, faxed, or delivered in person to the appropriate address below.

Please be aware that OEHHA is subject to the California Public Records Act and other laws that require the release of certain information upon request.  If you provide comments, please be aware that your name, address and e-mail may be available to third parties.

Inquiries concerning the proposed Proposition 65 regulation described in this notice may be directed to Monet Vela at (916) 323-2517, or by e-mail tomonet.vela@oehha.ca.gov(link sends e-mail).  Mario Fernandez is a back-up contact person for inquiries concerning processing of this action and is available at (916) 323-2635 ormario.fernandez@oehha.ca.gov(link sends e-mail).

AUTHORITY

Health and Safety Code section 25249.12.

REFERENCE

Health and Safety Code sections 25249.6 and 25249.10.

INFORMATIVE DIGEST/POLICY STATEMENT OVERVIEW BACKGROUND

OEHHA is the state entity responsible for the implementation of Proposition 65.  OEHHA has the authority to adopt and amend regulations to make specific and further the purposes of Proposition 65.  Proposition 65 requires businesses to provide a warning when they knowingly and intentionally cause an exposure to a listed chemical[2], and prohibits the discharge of listed chemicals into sources of drinking water[3].  Warnings are not required and the discharge prohibition is not in force when exposures are sufficiently low, as specified in the Act.[4]

Existing regulations provide that naturally occurring background levels of listed chemicals in food are not considered an exposure for purposes of Proposition 65.  The regulations state that the naturally occurring level of a chemical may be established by determining the concentration of the chemical that would be considered as background in the area where the food is grown, raised or obtained, using reliable regional and local data.[5]  However, the existing regulations lack the specificity necessary for businesses to determine the natural background level.

In proposing this regulatory action, OEHHA intends to clarify the means by which natural background levels were derived for arsenic in rice and safe harbor naturally occurring concentration levels were established.  The proposed regulation provides compliance assistance for affected businesses and provides more useful information to Californians about their exposures to listed chemicals including those that occur naturally in certain foods.

SPECIFIC BENEFITS OF THE PROPOSED REGULATIONS

The proposed regulation will benefit the health and welfare of California residents by providing more information to the public and facilitating businesses’ compliance with the Act.  Businesses will be able to rely on the adopted safe harbor natural background levels to help them determine compliance with the requirements of Proposition 65 and the public will be able to make more informed decisions concerning the food products they purchase.

NO INCONSISTENCY OR INCOMPATIBILITY WITH EXISTING REGULATIONS

OEHHA has conducted an evaluation and has determined that this is the only regulation concerning Proposition 65 naturally occurring chemicals in food.  Therefore, the proposed regulation is neither inconsistent nor incompatible with any other existing state regulations. The regulation does not change the existing mandatory requirements on

businesses subject to Proposition 65, state or local agencies and does not address compliance with any other law or regulation.

LOCAL MANDATE/FISCAL IMPACT

Because Proposition 65 by its terms[6] does not apply to local agencies or school districts, OEHHA has determined the