16308 Federal Register / Vol. 76, No. 56 / Wednesday, March 23, 2011 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2005–0477; FRL–8866–2] 

Dichlormid; Pesticide Tolerances 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation establishes 

tolerances for residues of dichlormid in 

or on field corn, pop corn, and sweet 

corn commodities. Dow AgroSciences 

requested these tolerances under the 

Federal Food, Drug, and Cosmetic Act 

(FFDCA). 

DATES: This regulation is effective 

March 23, 2011. Objections and requests 

for hearings must be received on or 

before May 23, 2011, and must be filed 

in accordance with the instructions 

provided in 40 CFR part 178 (see also 

Unit I.C. of the SUPPLEMENTARY

INFORMATION). 

ADDRESSES: EPA has established a 

docket for this action under docket 

identification (ID) number EPA–HQ– 

OPP–2005–0477. All documents in the 

docket are listed in the docket index 

available at http://www.regulations.gov. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available in the electronic docket at 

http://www.regulations.gov, or, if only 

available in hard copy, at the OPP 

Regulatory Public Docket in Rm. S– 

4400, One Potomac Yard (South Bldg.), 

2777 S. Crystal Dr., Arlington, VA. The 

Docket Facility is open from 8:30 a.m. 

to 4 p.m., Monday through Friday, 

excluding legal holidays. The Docket 

Facility telephone number is (703) 305– 

5805. 

FOR FURTHER INFORMATION CONTACT: Pv 

Shah, Registration Division (7505P), 

Office of Pesticide Programs, 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460–0001; telephone number: 

(703) 308–1846; e-mail address: 

shah.pv@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

You may be potentially affected by 

this action if you are an agricultural 

producer, food manufacturer, or 

pesticide manufacturer. Potentially 

affected entities may include, but are 

not limited to those engaged in the 

following activities: 

• Crop production (NAICS code 111). 

• Animal production (NAICS code 

112). 

• Food manufacturing (NAICS code 

311). 

• Pesticide manufacturing (NAICS 

code 32532). 

This listing is not intended to be 

exhaustive, but rather to provide 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 person listed under FOR FURTHER

INFORMATION CONTACT. 

B. How can I get electronic access to 

other related information? 

You may access a frequently updated 

electronic version of EPA’s tolerance 

regulations at 40 CFR part 180 through 

the Government Printing Office’s e-CFR 

site at http://www.gpoaccess.gov/ecfr. 

C. How can I file an objection or hearing 

request? 

Under FFDCA section 408(g), 21 

U.S.C. 346a, any person may file an 

objection to any aspect of this regulation 

and may also request a hearing on those 

objections. You must file your objection 

or request a hearing on this regulation 

in accordance with the instructions 

provided in 40 CFR part 178. To ensure 

proper receipt by EPA, you must 

identify docket ID number EPA–HQ– 

OPP–2005–0477 in the subject line on 

the first page of your submission. All 

objections and requests for a hearing 

must be in writing, and must be 

received by the Hearing Clerk on or 

before May 23, 2011. Addresses for mail 

and hand delivery of objections and 

hearing requests are provided in 40 CFR 

178.25(b). 

In addition to filing an objection or 

hearing request with the Hearing Clerk 

as described in 40 CFR part 178, please 

submit a copy of the filing that does not 

contain any CBI for inclusion in the 

public docket. Information not marked 

confidential pursuant to 40 CFR part 2 

may be disclosed publicly by EPA 

without prior notice. Submit a copy of 

your non-CBI objection or hearing 

request, identified by docket ID number 

EPA–HQ–OPP–2005–0477, by one of 

the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• Mail: Office of Pesticide Programs 

(OPP) Regulatory Public Docket (7502P), 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460–0001. 

• Delivery: OPP Regulatory Public 

Docket (7502P), Environmental 

Protection Agency, Rm. S–4400, One 

Potomac Yard (South Bldg.), 2777 S. 

Crystal Dr., Arlington, VA. Deliveries 

are only accepted during the Docket 

Facility’s normal hours of operation 

(8:30 a.m. to 4 p.m., Monday through 

Friday, excluding legal holidays). 

Special arrangements should be made 

for deliveries of boxed information. The 

Docket Facility telephone number is 

(703) 305–5805. 

II. Summary of Petitioned-For 

Tolerance 

In the Federal Register of December 

22, 2010 (75 FR 80489) (FRL–8857–8), 

EPA issued a notice pursuant to section 

408(d)(3) of FFDCA, 21 U.S.C. 

346a(d)(3), announcing the filing of a 

pesticide petition (PP 9E7517) by Dow 

AgroSciences, 9330 Zionsville Rd., 

Indianapolis, IN 46268. The petition 

requested that 40 CFR part 180 be 

amended by establishing permanent 

tolerances for residues of the herbicide 

safener dichlormid, N,N-diallyl-2,2- 

dichloroacetamide, in or on corn, field, 

forage; corn, field, grain; corn, field, 

stover; corn, pop, grain; corn, pop, 

stover; corn, sweet, forage; corn, sweet, 

kernel plus cob with husks removed; 

and corn, sweet, stover at 0.05 parts per 

million (ppm). That notice referenced a 

summary of the petition prepared by 

Dow AgroSciences, the registrant, which 

is available in the docket, http:// 

www.regulations.gov. Comments were 

received on the notice of filing. EPA’s 

response to these comments is 

discussed in Unit IV.C. 

III. Aggregate Risk Assessment and 

Determination of Safety 

Section 408(b)(2)(A)(i) of FFDCA 

allows EPA to establish a tolerance (the 

legal limit for a pesticide chemical 

residue in or on a food) only if EPA 

determines that the tolerance is ‘‘safe.’’ 

Section 408(b)(2)(A)(ii) of FFDCA 

defines ‘‘safe’’ to mean that ‘‘there is a 

reasonable certainty that no harm will 

result from aggregate exposure to the 

pesticide chemical residue, including 


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Federal Register / Vol. 76, No. 56 / Wednesday, March 23, 2011 / Rules and Regulations 16309 

all anticipated dietary exposures and all 

other exposures for which there is 

reliable information.’’ This includes 

exposure through drinking water and in 

residential settings, but does not include 

occupational exposure. Section 

408(b)(2)(C) of FFDCA requires EPA to 

give special consideration to exposure 

of infants and children to the pesticide 

chemical residue in establishing a 

tolerance and to ‘‘ensure that there is a 

reasonable certainty that no harm will 

result to infants and children from 

aggregate exposure to the pesticide 

chemical residue.’’ 

Consistent with section 408(b)(2)(D) 

of FFDCA, and the factors specified in 

section 408(b)(2)(D) of FFDCA, EPA has 

reviewed the available scientific data 

and other relevant information in 

support of this action. EPA has 

sufficient data to assess the hazards of 

and to make a determination on 

aggregate exposure for dichlormid 

including exposure resulting from the 

tolerances established by this action. 

EPA’s assessment of exposures and risks 

associated with dichlormid follows. 

In the Federal Register of March 27, 

2000 (65 FR 16143) (FRL–6498–7), EPA 

published a final rule establishing timelimited tolerances for residues of the 

herbicide safener dichlormid in or on 

field corn forage, grain and stover; and 

pop corn grain and stover at 0.05 ppm. 

In the Federal Register of September 30, 

2004 (69 FR 58285) (FRL–7680–8), EPA 

published a final rule establishing timelimited tolerances for residues of 

dichlormid in or on sweet corn forage, 

kernel plus cob with husks removed, 

and stover at 0.05 ppm. EPA has 

extended the expiration date of the 

time-limited tolerances on several 

occasions, most recently in the Federal 

Register of July 29, 2009 (74 FR 37621) 

(FRL–8422–2). The tolerances expired 

on December 31, 2010. 

The corn tolerances were time-limited 

due to an incomplete database for 

dichlormid. Data gaps included several 

chemistry and toxicology studies, as 

identified in the March 27, 2000 and 

September 30, 2004 final rules. In 

addition, in December, 2007, EPA began 

requiring functional immunotoxicity 

testing of all food and non-food use 

pesticides (40 CFR part 158, subpart F), 

including safeners, such as dichlormid. 

The outstanding chemistry and 

toxicology data (including 

immunotoxicity testing) have all been 

submitted and reviewed, so that the 

database for dichlormid is now 

considered complete. No changes in 

tolerance levels or toxicological 

endpoints and doses used in the human 

health risk assessment for dichlormid 

are needed as a result of the new data. 

Copies of EPA’s reviews of these data 

may be found in docket ID number 

EPA–HQ–OPP–2005–0477. 

The risk assessments that EPA relied 

on in establishing and extending the 

time-limited tolerances for dichlormid 

were highly conservative. Due to the 

nature and number of data gaps and 

qualitative evidence of increased 

susceptibility of in utero rabbits in a 

prenatal developmental toxicity study, 

the FQPA safety factor (SF) was retained 

at 10X for the acute dietary risk 

assessment and increased to 30X for the 

chronic dietary risk assessment. Since 

the data gaps have been filled, 

uncertainty factors associated with 

database deficiencies may be removed. 

In addition, EPA used tolerance level 

residues, 100 percent crop treated, and 

default processing factors in the dietary 

food exposure assessments and made 

conservative (protective) assumptions in 

the modeling used to assess exposure to 

dichlormid in drinking water. Using 

these highly conservative assumptions 

and SFs, acute dietary exposure to 

dichlormid in food was estimated to be 

less than or equal to 7.5% of the acute 

population adjusted dose (aPAD) for all 

population subgroups; chronic dietary 

exposure to dichlormid in food was 

estimated to be less than or equal to 

15% of the chronic population adjusted 

dose (cPAD) for all populations 

subgroups. 

Because this prior risk assessment 

showed dichlormid risks to be 

acceptable and the effect of submission 

of the required data on the assessment 

of dichlormid risk will be to lower 

estimated risks (due to the removal of 

additional safety factors), EPA is relying 

on that prior risk assessment and the 

findings in the prior dichlormid FR 

notices, subject to one modification, to 

demonstrate the safety of the tolerances 

established in this action. The one 

modification of the prior risk 

assessment and FR notices is to update 

how exposure to dichlormid in drinking 

water is factored into the risk 

assessment. 

Previously, EPA assessed aggregate 

exposure (food and drinking water) to 

dichlormid using the DWLOC (drinking 

water level of comparison) approach. 

The DWLOC is the concentration of a 

chemical in drinking water that would 

be acceptable as an upper limit 

considering total aggregate exposure to 

that chemical from food, water, and 

residential sources. In this case, there 

are no residential uses of dichlormid. 

Acute and chronic aggregate risks from 

dichlormid exposure were assessed by 

comparing the calculated DWLOCs to 

the estimated environmental 

concentrations (EECs) of dichlormid in 

surface water and groundwater. Since 

the EECs (< 1 ppm in both surface and 

groundwater) were well below the 

calculated DWLOCs for acute exposure 

(73 parts per billion (ppb)) and chronic 

exposure (20 ppb), acute and chronic 

aggregate risks were determined to be 

below the Agency’s level of concern. 

Details of the risk assessment for 

dichlormid may be found in the 

document ‘‘Human Health Risk 

Assessment for Dichlormid-Request for 

Establishing Permanent Tolerances for 

Dichlormid on Corn,’’ which is available 

in docket ID number EPA–HQ–OPP– 

2005–0477. 

The Agency no longer uses the 

DWLOC approach for assessing 

aggregate exposure to pesticides. Rather, 

estimated drinking water concentrations 

(EDWCs) are directly entered into the 

dietary exposure model to assess the 

contribution of drinking water exposure 

to aggregate exposure. EPA then 

determines whether acute and chronic 

dietary pesticide exposures are safe by 

comparing aggregate exposure estimates 

to the aPAD and cPAD. Using this 

approach, together with the 

conservative assumptions and SFs 

discussed earlier in this unit, EPA has 

concluded that acute and chronic 

exposure to dichlormid from food and 

water will utilize 56% of the aPAD and 

34% of the cPAD for infants, less than 

one year old, the population group 

receiving the greatest exposure. 

Based on the prior and updated risk 

assessments as well as the findings in 

the prior dichlormid FR notices, EPA 

concludes that there is a reasonable 

certainty that no harm will result to the 

general population, or to infants and 

children from aggregate exposure to 

dichlormid residues. 

IV. Other Considerations 

A. Analytical Enforcement Methodology 

Adequate enforcement methodology 

(gas chromatography with nitrogen 

selective thermionic detection) is 

available to enforce the tolerance 

expression. The method may be 

requested from: Chief, Analytical 

Chemistry Branch, Environmental 

Science Center, 701 Mapes Rd., Ft. 

Meade, MD 20755–5350; telephone 

number: (410) 305–2905; e-mail address: 

residuemethods@epa.gov. 

B. International Residue Limits 

In making its tolerance decisions, EPA 

seeks to harmonize U.S. tolerances with 

international standards whenever 

possible, consistent with U.S. food 

safety standards and agricultural 

practices. EPA considers the 

international maximum residue limits 


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16310 Federal Register / Vol. 76, No. 56 / Wednesday, March 23, 2011 / Rules and Regulations 

(MRLs) established by the Codex 

Alimentarius Commission (Codex), as 

required by FFDCA section 408(b)(4). 

The Codex Alimentarius is a joint U.N. 

Food and Agriculture Organization/ 

World Health Organization food 

standards program, and it is recognized 

as an international food safety 

standards-setting organization in trade 

agreements to which the United States 

is a party. EPA may establish a tolerance 

that is different from a Codex MRL; 

however, FFDCA section 408(b)(4) 

requires that EPA explain the reasons 

for departing from the Codex level. 

The Codex has not established a MRL 

for dichlormid in or on corn 

commodities. 

C. Response to Comments 

An anonymous comment was 

received objecting to the presence of any 

pesticide residue on food. The Agency 

understands the commenter’s concerns 

and recognizes that some individuals 

believe that pesticides should be banned 

completely. However, the existing legal 

framework provided by section 408 of 

the FFDCA contemplates that tolerances 

greater than zero may be set when 

persons seeking such tolerances or 

exemptions have demonstrated that the 

pesticide meets the safety standard 

imposed by that statute. This citizen’s 

comment appears to be directed at the 

underlying statute and not EPA’s 

implementation of it; the citizen has 

made no contention that EPA has acted 

in violation of the statutory framework. 

D. Revisions to Petitioned-for 

Tolerances 

EPA is revising the requested 

tolerance expression to clarify the 

chemical moieties that are covered by 

the tolerances and specify how 

compliance with the tolerances is to be 

measured. The revised tolerance 

expression makes clear that the 

tolerances cover residues of the 

herbicide safener dichlormid, including 

its metabolites and degradates, but that 

compliance with the tolerances is to be 

determined by measuring only 

dichlormid (2,2-dichloro-N,N-di-2- 

propenylacetamide). EPA has 

determined that it is reasonable to make 

this change final without prior proposal 

and opportunity for comment, because 

public comment is not necessary, in that 

the change has no substantive effect on 

the tolerance, but rather is merely 

intended to clarify the existing tolerance 

expression. 

V. Conclusion 

Therefore, tolerances are established 

for residues of dichlormid, including its 

metabolites and degradates, in or on 

corn, field, forage; corn, field, grain; 

corn, field, stover; corn, pop, grain; 

corn, pop, stover; corn, sweet, forage; 

corn, sweet, kernel plus cob with husks 

removed; and corn, sweet, stover at 0.05 

ppm. Compliance with the tolerances is 

to be determined by measuring only 

dichlormid (2,2-dichloro-N,N-di-2- 

propenylacetamide). 

VI. Statutory and Executive Order 

Reviews 

This final rule establishes tolerances 

under section 408(d) of FFDCA in 

response to a petition submitted to the 

Agency. The Office of Management and 

Budget (OMB) has exempted these types 

of actions from review under Executive 

Order 12866, entitled Regulatory 

Planning and Review (58 FR 51735, 

October 4, 1993). Because this final rule 

has been exempted from review under 

Executive Order 12866, this final rule is 

not subject to Executive Order 13211, 

entitled Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use (66 FR 28355, May 

22, 2001) or Executive Order 13045, 

entitled Protection of Children from 

Environmental Health Risks and Safety 

Risks (62 FR 19885, April 23, 1997). 

This final rule does not contain any 

information collections subject to OMB 

approval under the Paperwork 

Reduction Act (PRA), 44 U.S.C. 3501 et 

seq., nor does it require any special 

considerations under Executive Order 

12898, entitled Federal Actions to 

Address Environmental Justice in 

Minority Populations and Low-Income 

Populations (59 FR 7629, February 16, 

1994). 

Since tolerances and exemptions that 

are established on the basis of a petition 

under section 408(d) of FFDCA, such as 

the tolerance in this final rule, do not 

require the issuance of a proposed rule, 

the requirements of the Regulatory 

Flexibility Act (RFA) (5 U.S.C. 601 et 

seq.) do not apply. 

This final rule directly regulates 

growers, food processors, food handlers, 

and food retailers, not States or tribes, 

nor does this action alter the 

relationships or distribution of power 

and responsibilities established by 

Congress in the preemption provisions 

of section 408(n)(4) of FFDCA. As such, 

the Agency has determined that this 

action will not have a substantial direct 

effect on States or tribal governments, 

on the relationship between the national 

government and the States or tribal 

governments, or on the distribution of 

power and responsibilities among the 

various levels of government or between 

the Federal Government and Indian 

tribes. Thus, the Agency has determined 

that Executive Order 13132, entitled 

Federalism (64 FR 43255, August 10, 

1999) and Executive Order 13175, 

entitled Consultation and Coordination 

with Indian Tribal Governments (65 FR 

67249, November 9, 2000) do not apply 

to this final rule. In addition, this final 

rule does not impose any enforceable 

duty or contain any unfunded mandate 

as described under Title II of the 

Unfunded Mandates Reform Act of 1995 

(UMRA) (Pub. L. 104–4). 

This action does not involve any 

technical standards that would require 

Agency consideration of voluntary 

consensus standards pursuant to section 

12(d) of the National Technology 

Transfer and Advancement Act of 1995 

(NTTAA), Public Law 104–113, section 

12(d) (15 U.S.C. 272 note). 

VII. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report to each House of 

the Congress and to the Comptroller 

General of the United States. EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of this final rule in the 

Federal Register. This final rule is not 

a ‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

List of Subjects in 40 CFR Part 180 

Environmental protection, 

Administrative practice and procedure, 

Agricultural commodities, Pesticides 

and pests, Reporting and recordkeeping 

requirements. 

Dated: March 8, 2011. 

Lois Rossi, 

Director, Registration Division, Office of 

Pesticide Programs. 

Therefore, 40 CFR chapter I is 

amended as follows: 

PART 180—[AMENDED] 

■ 1. The authority citation for part 180 

continues to read as follows: 

Authority: 21 U.S.C. 321(q), 346a and 371. 

■ 2. Section 180.469 is amended by 

revising paragraph (a) to read as follows: 

§ 180.469 Dichlormid; tolerances for 

residues. 

(a) General. Tolerances are 

established for residues of dichlormid, 

including its metabolites and 

degradates, when used as an inert 

ingredient (herbicide safener) in 

pesticide formulations, in or on the 

commodities in the following table. 


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Federal Register / Vol. 76, No. 56 / Wednesday, March 23, 2011 / Rules and Regulations 16311 

Compliance with the tolerances is to be 

determined by measuring only 

dichlormid (2,2-dichloro-N,N-di-2- 

propenylacetamide). 

Commodity Parts per 

million 

Corn, field, forage ..................... 0.05 

Corn, field, grain ....................... 0.05 

Corn, field, stover ..................... 0.05 

Corn, pop, grain ........................ 0.05 

Corn, pop, stover ...................... 0.05 

Corn, sweet, forage .................. 0.05 

Corn, sweet, kernel plus cob 

with husks removed .............. 0.05 

Corn, sweet, stover .................. 0.05 

* * * * * 

[FR Doc. 2011–6440 Filed 3–22–11; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 217 

[Docket No. 100806326–1088–02] 

RIN 0648–AY99 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to Space Vehicle 

and Missile Launch Operations at 

Kodiak Launch Complex, AK 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS, upon application from 

the Alaska Aerospace Corporation 

(AAC), is issuing regulations to govern 

the unintentional taking of small 

numbers of marine mammals incidental 

to rocket launches from the Kodiak 

Launch Complex (KLC) on Kodiak 

Island, AK. Issuance of regulations is 

required by the Marine Mammal 

Protection Act (MMPA) when the 

Secretary of Commerce (Secretary), after 

notice and opportunity for comment, 

finds, as here, that such takes will have 

a negligible impact on the species and 

stocks of marine mammals and will not 

have an unmitigable adverse impact on 

their availability for subsistence uses. 

These regulations do not authorize the 

AAC’s rocket launch activities; such 

authorization is not within the 

jurisdiction of the Secretary. Rather, 

these regulations govern the issuance of 

Letters of Authorization (LOAs) for the 

unintentional and incidental take of 

marine mammals in connection with 

this activity and prescribe methods of 

taking and other means of effecting the 

least practicable adverse impact on 

marine mammal species and their 

habitat, and on the availability of the 

species for subsistence uses. In addition, 

NMFS incorporates reporting and 

monitoring requirements on these 

activities. 

DATES: Effective March 22, 2011 to 

March 22, 2016. 

ADDRESSES: A copy of the AAC’s 

application and other related documents 

may be obtained by writing to P. 

Michael Payne, Chief, Permits, 

Conservation and Education Division, 

Office of Protected Resources, National 

Marine Fisheries Service, 1315 EastWest Highway, Silver Spring, MD 

20910–3225, by telephoning the contact 

listed under FOR FURTHER INFORMATION

CONTACT, or on the Internet at: http:// 

www.nmfs.noaa.gov/pr/permits/ 

incidental.htm#applications. 

Documents cited in this final rule may 

also be viewed, by appointment, during 

regular business hours at the above 

address. 

FOR FURTHER INFORMATION CONTACT: 

Michelle Magliocca, Office of Protected 

Resources, NMFS, 301–713–2289, ext 

123. 

SUPPLEMENTARY INFORMATION: 

Background 

Sections 101(a)(5)(A) and (D) of the 

MMPA (16 U.S.C. 1361 et seq.) direct 

the Secretary of Commerce to allow, 

upon request, the incidental, but not 

intentional, taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region if certain findings 

are made and either regulations are 

issued or, if the taking is limited to 

harassment, a notice of a proposed 

authorization is provided to the public 

for review. 

Authorization for incidental takings 

shall be granted if NMFS finds that the 

taking will have a negligible impact on 

the identified species or stock(s), will 

not have an unmitigable adverse impact 

on the availability of the species or 

stock(s) for subsistence uses (where 

relevant), and if the permissible 

methods of taking and requirements 

pertaining to the mitigation, monitoring 

and reporting of such takings are set 

forth in the regulations. NMFS has 

defined ‘‘negligible impact’’ in 50 CFR 

216.103 as ‘‘ * * * an impact resulting 

from the specified activity that cannot 

be reasonably expected to, and is not 

reasonably likely to, adversely affect the 

species or stock through effects on 

annual rates of recruitment or survival.’’ 

Except with respect to certain 

activities not pertinent here, the MMPA 

(16 U.S.C. 1362(18)(A)) defines 

‘‘harassment’’ as: 

Any act of pursuit, torment, or annoyance 

which (i) has the potential to injure a marine 

mammal or marine mammal stock in the wild 

[Level A harassment]; or (ii) has the potential 

to disturb a marine mammal or marine 

mammal stock in the wild by causing 

disruption of behavioral patterns, including, 

but not limited to, migration, breathing, 

nursing, breeding, feeding, or sheltering 

[Level B harassment]. 

Summary of Request 

On June 4, 2010, NMFS received a 

complete application for regulations 

from AAC for the taking of small 

numbers of marine mammals incidental 

to launching space launch vehicles, 

long-range ballistic target missiles, and 

other smaller missile systems at the 

KLC. A proposed rule was published on 

December 23, 2010 (75 FR 80773). 

NMFS received 12 comments on the 

proposed rule from eight private 

citizens, the Kodiak Chamber of 

Commerce, the Kodiak Island Borough 

Mayor, the City of Kodiak Mayor, and 

the Marine Mammal Commission 

(Commission). The majority of the 

comments supported the proposed rule. 

These regulations will allow NMFS to 

issue Letters of Authorization (LOAs) to 

the AAC over a 5-year period. A full 

description of the operations is 

contained in the AAC’s application 

which is available upon request (see 

ADDRESSES) or at: http:// 

www.nmfs.noaa.gov/pr/permits/ 

incidental.htm#applications. 

The AAC conducts space vehicle and 

missile launches from the KLC, a 

commercial spaceport that supports 

civilian and Federal launch customers. 

The facility occupies 3,717 acres of 

State-owned lands on the Narrow Cape 

Peninsula on the eastern side of Kodiak 

Island, Alaska. The KLC primarily 

supports launches of small to medium 

space launch vehicles—which are those 

used to boost satellites to orbit—ranging 

in size from the small space-launch 

Castor 120 motor (used in the Athena, 

Minotaur IV, Minotaur V, and Taurus I 

systems) to the under-development 

medium-lift Taurus II. The KLC is also 

configured to support launch of the 

Minuteman I-derived Minotaur I Space 

Launch System, and to support the 

launch of long-range ballistic systems 

such as the Polaris derived A–3 STARS, 

the Minuteman-derived Minotaur II and 

III, and the C–4. Launch operations are 

authorized under license from the 

Federal Aviation Administration (FAA), 


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