[Federal Register Volume 83, Number 33 (Friday, February 16, 2018)]
[Proposed Rules]
[Pages 7002-7007]
[FR Doc No: 2018-03269]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2016-0749; FRL-9974-59--Region 10]

Approval and Promulgation of State Implementation Plans; Alaska;
Regional Haze Progress Report

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a revision to the Alaska Regional Haze State Implementation
Plan (SIP), submitted by the State of Alaska on March 10, 2016. Alaska
submitted its Regional Haze Progress Report (``progress report'' or
``report'') and a negative declaration stating that further revision of
the existing regional haze SIP is not needed at this time. Alaska
submitted both the progress report and the negative declaration in the
form of implementation plan revisions as required by federal
regulations. The progress report addresses the federal Regional Haze
Rule (RHR) requirements under the Clean Air Act (CAA) to submit a
report describing progress in achieving reasonable progress goals
(RPGs) established for regional haze and a determination of the
adequacy of the state's existing plan addressing regional haze. We are
also proposing to approve minor updates to the Enhanced Smoke
Management Plan, Long-Term Strategy, and Commitment to Future 308 Plan
Revision sections of the regional haze SIP, submitted concurrently with
the progress report.

DATES: Comments must be received on or before March 19, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2016-0749 at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e. on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Jeff Hunt, Air Planning Unit, Office
of Air and Waste (OAW-150), Environmental Protection Agency--Region 10,
1200 Sixth Ave., Seattle, WA 98101; telephone number:<PHONE_NUMBER>,
email address: [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, it is intended to refer to the EPA.

I. Background

    Alaska submitted its initial regional haze SIP to the EPA on March
29, 2011, for the first regional haze planning period ending in 2018,
which the EPA approved on February 14, 2013.\1\ Five years after
submittal of the initial regional haze plan, states are required to
submit progress reports that evaluate progress towards the RPGs for
each mandatory Class I Federal area \2\ (Class I area) within the state
and in each Class I area outside the state which may be affected by
emissions from within the state. 40 CFR 51.308(g). States are also
required to submit, at the same time as the progress report, a
determination of the adequacy of the state's existing regional haze
plan. 40 CFR 51.308(h). On March 10, 2016, the Alaska Department of
Environmental Conservation (ADEC) submitted as a SIP revision a report
on the progress made in the first implementation period towards the
RPGs for Class I areas. EPA is proposing to approve Alaska's progress
report on the basis that it satisfies the requirements of 40 CFR
51.308. We also propose to find that Alaska's progress report
demonstrates that the state's long-term strategy and emission control
measures in the existing regional haze SIP are sufficient to enable
Alaska to meet all established RPGs for 2018.
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    \1\ See 78 FR 10546.
    \2\ Areas designated as mandatory Class I Federal areas consist
of national parks exceeding 6000 acres, wilderness areas and
national memorial parks exceeding 5000 acres, and all international
parks that were in existence on August 7, 1977 (42 U.S.C. 7472(a)).
Listed at 40 CFR part 81 subpart D.
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II. Context for Understanding Alaska's Progress Report

    To facilitate a better understanding of Alaska's progress report as
well as the EPA's evaluation of it, this section provides background on
the regional haze program in Alaska.

A. Framework for Measuring Progress

    The EPA has established a metric for determining visibility
conditions at Class I areas referred to as the ``deciview index,''
which is measured in deciviews, as defined in 40 CFR 51.301. The
deciview index is calculated using monitoring data collected from the
Interagency Monitoring of Protected Visual Environments (IMPROVE)
network monitors. Alaska has four Class I areas within its borders:
Denali National Park and Preserve, Tuxedni National Wildlife Refuge,
Simeonof Wilderness Area, and the Bering Sea Wilderness Area. In
developing its initial regional haze SIP, Alaska determined, and the
EPA in its approval agreed, that due to lack of proximity to other
states, visibility in Alaska's Class I areas is not affected by
emission

sources in other states. Likewise, Alaska determined, and the EPA
agreed, that emission sources in Alaska do not affect visibility in
Class I areas in other states. Therefore, Alaska's progress report does
not address visibility impacts from sources in other states or the
visibility impact of Alaska sources on Class I areas in other states.
    Under the RHR, a state's initial regional haze SIP must establish
two RPGs for each of its Class I areas: One for the 20 percent least
impaired days and one for the 20 percent most impaired days. The RPGs
must provide for an improvement in visibility on the 20 percent most
impaired days and ensure no degradation in visibility on the 20 percent
least impaired days, as compared to visibility conditions during the
baseline period. In establishing the RPGs, a state must consider the
uniform rate of visibility improvement from the baseline to natural
conditions in 2064 and the emission reductions measures needed to
achieve it. Alaska set the RPGs for the Denali, Tuxedni, and Simeonof
Class I areas. In setting the RPGs for these three Class I areas,
Alaska used atmospheric air quality modeling based on projected
emission reductions from control strategies in Alaska's regional haze
SIP, as well as emission reductions expected to result from other
federal, state and local air quality programs.
    Alaska's fourth Class I area, the Bering Sea Wilderness Area, is
extremely remote, with no IMPROVE monitoring site. Therefore, no RPG
was established for this area in Alaska's regional haze SIP, and
Alaska's progress report does not address visibility progress in this
area.\3\
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    \3\ As explained in the EPA's proposed rule to approve Alaska's
RH SIP on February 24, 2012, the Bering Sea Wilderness Area is 350
miles southwest of Nome, Alaska and dominated by a harsh
environment. There is no electricity in the Wilderness Area and the
nearest major stationary sources are located hundreds of miles away.
Accordingly, establishing and maintaining an IMPROVE monitoring site
in the area is unnecessary and impractical. 77 FR 11022, 11028.
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B. Data Sources for Alaska's Progress Report

    Alaska relied on the Western Regional Air Partnership (WRAP)
technical data and analyses in a report titled ``Western Regional Air
Partnership Regional Haze Rule Reasonable Progress Summary Report''
(WRAP Report), dated June 28, 2013, included as an appendix in the
progress report. The WRAP Report analyzes monitoring data collected in
Alaska during the 2005-2009 period, and relies on emission data
reported to the EPA's National Emissions Inventory (NEI) for 2008.
Alaska then supplemented the information in the WRAP report with more
current 2009-2013 visibility data for its Class I areas as part of the
progress report adopted by the state in 2015.

III. The EPA's Evaluation of Alaska's Progress Report

    This section describes the contents of Alaska's progress report and
the EPA's evaluation of the report, as well as the EPA's evaluation of
the determination of adequacy required by 40 CFR 51.308(h) and the
requirement for state and Federal Land Manager coordination in 40 CFR
51.308(i).

A. Status of Implementation of All Measures Included in the Regional
Haze SIP

    In its progress report, Alaska provides a description of the
control measures in the state's regional haze SIP that the state relied
on to implement the regional haze program. According to the progress
report, Alaska relied in its regional haze SIP upon, among other
things, Best Available Retrofit Technology (BART) controls, its
Prevention of Significant Deterioration/New Source Review permitting
program, and its smoke management programs for agricultural and
forestry burning to achieve the reasonable progress goals it
established for its Class I areas. Alaska included a description of
these programs in the progress report, which are summarized below.
1. BART-Level Controls
    Alaska's regional haze SIP imposed BART-level controls on one
source, the Golden Valley Electric Association's (GVEA) Healy Power
Plant, Unit 1. The Healy Power Plant consists of two power generating
units. Unit 1 is a nominal 25 megawatt (MW) coal-fired electric
generating unit. The EPA approved the state's BART determination for
this unit when we approved the Alaska regional haze SIP. Alaska
determined that BART for Unit 1 included installation of Selective Non
Catalytic Reduction (SNCR) to reduce nitrogen oxide (NOX)
emissions. Accordingly, GVEA installed SNCR on Unit 1 in August of
2016. Unit 2, also referred to as the Healy Clean Coal Project, is a
nominal 50 MW coal-fired electric generating unit not subject to
BART.\4\ At the time of Alaska's regional haze SIP submittal, Unit 2
had not operated since test runs were completed in the late 1990's.
GVEA started burning coal at Unit 2 in August 2015; however, Unit 2
ceased operation due to operational problems in March 2016 and then
again a few days after a startup attempt in November 2016.
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    \4\ 78 FR 10546, February 14, 2013.
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    On November 19, 2012, the United States and GVEA entered into a
consent decree that specifies conditions on Unit 1 and Unit 2 at the
Healy Power Plant, separate from the BART-level controls required by
Alaska's regional haze SIP.\5\ In particular, by December 31, 2022,
GVEA must elect to either permanently retire Unit 1 by December 31,
2024, or install Selective Catalytic Reduction (SCR) on that unit to
further reduce NOX emissions and begin operation of SCR by
no later than December 31, 2024. In addition, the November 19, 2012,
decree required GVEA to install SCR on Unit 2 by the later of September
30, 2015, or 24 months after it first fires coal, and to comply with
specified emission limits. On August 8, 2017, the United States and
GVEA filed amendments to the Consent Decree that require GVEA to
install SCR on Unit 2 no later than 120 unit operating days after
restart.\6\ In its progress report, Alaska provided an assessment of,
among other things, the emissions limits that will be achieved through
installation of SCR on Unit 2 once it becomes operational.\7\
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    \5\ United States v. Golden Valley Electric Association, Inc.
and Alaska Industrial Development and Export Authority, Civ. No.
4:12-cv-00025-RRB (D. Alaska).
    \6\ United States v. Golden Valley Electric Association, Inc.,
Civ. No. 4:12-cv-00025-RRB (D. Alaska).
    \7\ Appendix III.K10-38, Comment Section C2.d.
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2. Major New Source Review (NSR)/Prevention of Significant
Deterioration (PSD)
    Alaska's progress report states that a key regulatory program for
addressing visibility impairment from new or modified industrial
stationary sources is the state's Major New Source Review (NSR)/
Prevention of Significant Deterioration (PSD) rule. According to
Alaska, this rule protects visibility in Class I areas from impacts
from new or modified major stationary sources. Alaska's regulations (18
AAC 50 Article 3) and the Alaska SIP require visibility impact
assessments and mitigation of emissions from new and modified major
stationary sources through protection of air quality related values
(AQRVs). AQRVs are scenic and environmentally related values that may
be adversely affected by a change in air quality, including visibility,
odor, noise, vegetation, and soils. These visibility requirements were
approved by the EPA into the Alaska SIP in 1983.
3. Smoke Management
    In its regional haze SIP, Alaska predicted that implementation of
more

effective smoke management techniques in its Enhanced Smoke Management
Plan (ESMP) would mitigate impacts of planned prescribed burning on
visibility in its Class I areas. ADEC developed and implemented an
ESMP, and included this ESMP as part of the long-term strategy approved
as part of the initial 2011 regional haze SIP. According to the
progress report, Alaska continues to implement the ESMP to reduce the
impact of prescribed burns on air quality. The progress report contains
an assessment of the emissions reduced as a result of prescribed fires.
Alaska concludes in the progress report that prescribed fires have
reduced the emissions from the area burned to close to half of what
they would have been if they had burned during a wildfire.
    Additionally, On June 3, 2015, the Alaska Wildfire Coordinating
Group approved a routine 5-year update to the Alaska ESMP, which ADEC
submitted as a SIP revision along with the progress report. The 2015
revisions to the ESMP were generally minor in nature, such as updating
the summary text to note the EPA's approval of the initial regional
haze SIP and availability of additional electronic tools for submitting
controlled burn applications developed since the original ESMP. The
most substantive change to the ESMP was an update of Chapter 6.2
``Public Notification and Exposure Reduction'' to reflect changes to
Alaska's air quality episode and advisory regulations, which the EPA
approved in a separate action on September 8, 2017 (82 FR 42457).
    Alaska also submitted a minor update to the long-term strategy,
with two sentences edited to reflect adoption of the revised ESMP in
2015. The EPA is proposing to approve this set of minor revisions to
the SIP.

B. Summary of Visibility Conditions

    In addition to the evaluation of control measures, Alaska
documented in the progress report the differences between the
visibility conditions during the baseline period (2000-2004), the first
progress period (2005-2009), and the most current five year averaging
period (2009-2013) available at the time Alaska adopted the progress
report in 2015. As part of our review, the EPA supplemented this
information with current 2012-2016 data, as shown in Table 1.\8\
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    \8\ See ``visibility data trends'' included in the docket.

                               Table 1--Alaska Class I Area Visibility Conditions on the 20% Most and Least Impaired Days
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                                                                          First progress     Progress       Most recent        2018
                                                          Baseline (2002-  period (2005-   report update    data (2012-     Reasonable        Natural
                      Class I area                        2004) (dv) \9\    2009) (dv)      (2009-2013)     2016) (dv)     progress goal    conditions
                                                                                (dv)                            (dv)            (dv)
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20% Most Impaired Days:
    Denali Headquarters.................................             9.9            10.6            10.2             9.2             9.3             7.3
    Trapper Creek (Denali)..............................            11.6            11.9            10.7            10.0            10.9             8.4
    Tuxedni.............................................            14.1            13.5            12.2          * 12.4            13.4            11.3
    Simeonof............................................            18.6            18.5            17.7            17.0            17.9            15.6
20% Least Impaired Days:
    Denali Headquarters.................................             2.4             2.4             2.5             2.3             2.4            1.77
    Trapper Creek (Denali)..............................             3.5             3.9             3.8             3.4             3.5            2.71
    Tuxedni.............................................             4.0             4.1             3.9           * 3.8             4.0            3.15
    Simeonof............................................             7.6             8.0             7.9             7.5             7.6            5.28
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* 2015-16 data not available, see discussion below.

    Alaska's concluded that for the 20% most impaired days, five-year
average visibility remained about the same at the Simeonof and Tuxedni
sites for the first progress period (2005-2009) compared to baseline
conditions, but improved for the 2009-2013 averaging period. At the
Denali Headquarters site, the visibility decreased during the first
progress period compared to the baseline period, but showed an
improvement in visibility for the 2009-2013 period. This improvement
continued in the 2012-2016 period with the Denali Headquarters site now
meeting the 2018 RPG. The Trapper Creek site showed a small visibility
decrease during the first progress period compared to baseline
conditions, but a visibility improvement during the 2009-2013 and 2012-
2016 periods. Overall, visibility conditions for Denali Headquarters,
Trapper Creek, Simeonof, and Tuxedni are all meeting 2018 RPGs for the
20% most impaired days based on 2012-2016 data. Regarding the
visibility conditions on the 20% least impaired days, the WRAP
performed a statistical trends analysis for the period 2002-2009, with
only the 2005-2009 Trapper Creek monitoring data showing a
statistically significant increase from the baseline.\10\ The most
current 2012-2016 data shows all monitors meeting the 2018 RPGs for the
20% least impaired days.
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    \9\ For several Alaska Class I area sites, monitoring began in
late 2001; therefore, only three complete years of monitoring data,
2002-2004, define their baselines. See page III.K.4-2 of the 2011
regional haze SIP.
    \10\ Using an 85% confidence interval. Please see the WRAP
supporting documentation included as Appendix D of the progress
report for a full site by site analysis.
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    Regarding visibility monitoring, Alaska intends to continue relying
on the IMPROVE network sites that represent the state's Class I areas
for complying with the monitoring requirement in the RHR. As described
in the progress report, the Tuxedni monitor discontinued operation in
December 2014, when the property owner and site operator notified the
U.S. Fish and Wildlife Service that he would no longer be able to
service the site. The progress report also noted efforts by the U.S.
National Park Service and U.S. Fish and Wildlife Service to establish a
new site across the Cook Inlet, which they succeeded in doing roughly 3
miles south of the community of Ninilchik.\11\ EPA finds that Alaska
has adequately reviewed its visibility monitoring strategy, and
proposes to determine that the strategy meets the regulatory
requirements and that no modifications to the monitoring strategy are
needed at this time.
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    \11\ See 2016 Air Quality Monitoring Plan, included in the
docket for this action.
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C. Summary of Emissions Reductions

    Alaska's progress report summarizes the emissions reductions
attributable to anthropogenic sources and attributable to managing
wildfire emissions. Regarding anthropogenic sources, the progress
report summarizes reductions

in sulfur dioxide (SO2), NOX, and
PM2.5 emissions from implementation of the measures
discussed above, as well as other emission reduction programs.
Statewide anthropogenic NOX and SO2 emissions
showed a downward trend between 2008 and 2013. These reductions,
according to the progress report, are primarily attributable to (1)
replacement of electric generating units, and (2) federal motor vehicle
requirements.
    Regarding the replacement of electric generating units, Alaska
concludes that some of the reductions in NOX and
SO2 point source emissions during the 2009-2013 period and
beyond resulted from electricity generation sources installing cleaner
generation units. Over the last several years, power plant owners and
operators in south central Alaska have brought new generation
facilities online and are reducing their use of older, more polluting
equipment; typically, these older units have become reserves.
Specifically, Alaska described three recent, significant changes made
to the electricity generation sector in south central Alaska:
     Anchorage Municipal Light and Power's George Sullivan
Plant Two's unit 1, a gas turbine generator rated for 480 million
British thermal units (BTU)/hour, was put into limited operation as a
reserve unit, resulting in reduced emissions from this unit.
     Chugach Electric Association's Beluga plant's units 3 and
5, both rated for 940 million BTU/hour, were put on reserve status,
resulting in reduced emissions from these units.
     In 2014, Alaska Electricity and Energy Cooperative's
Nikiski plant added a steamer unit to improve efficiency, reducing
overall fuel requirements within the grid and thus reducing emissions
from this plant.
    Overall, Alaska concluded that NOX emissions show a
downward trend for the 2009-2013 period, from 43,896 to 41,930 tons per
year. Similarly, the SO2 annual emissions generally
decreased with the exception of 2009, when emissions were noticeably
higher. Alaska concluded that the SO2 increase during 2009
was primarily driven by operational changes at the North Pole Power
Plant. The quantity of fuel combusted at this one power plant dropped
by almost half from 2009 to 2010. Alaska also determined that over the
same period, statewide PM10 emissions increased from 1,002
to 1,115 tons per year.
    In addition, the progress report includes a discussion of control
measures to attain and maintain the particulate matter national ambient
air quality standards, such as wood smoke reduction programs for Eagle
River, the Mendenhall Valley, and the Fairbanks North Star Borough.
Current control measures in Fairbanks include an opacity limit and
mandatory curtailment program for solid-fuel fired heating devices,
emission standards for new wood-fired heating devices installed in the
area, a requirement to burn only dry wood in wood heaters, a woodstove
changeout program, a prohibition on open burning, and public education,
among other requirements. Alaska noted in its progress report that
these control measures could potentially reduce overall area source
emissions inventories in the future.
    In addition to reductions of emissions from anthropogenic sources,
the progress report describes emissions reductions attributable to
wildfire management. Specifically, the report states that in recent
years, prescribed fires have reduced the emissions from the area burned
by close to half of what they would have been if they had burned during
a wildfire. According to the progress report, over the period of 2007
to 2013, hundreds of tons of PM2.5 emissions were averted by
using prescribed burning to prevent wildfires.
    The progress report also contains an analysis tracking the change
in statewide emissions between 2002 and 2008. The 2002 inventory was
used in the development of the original Alaska regional haze SIP. At
the time Alaska prepared the progress report, the 2008 inventory was
the most recent year that complete emission inventories were available
for the state. Alaska notes that the differences between the 2002 and
2008 inventories for some source categories do not accurately reflect a
change in emissions, as a number of methodology changes and
enhancements have occurred between the developments of the individual
inventories, as described in more detail below. Summaries from the
progress report are included in Tables 2 and 3. A more detailed
description of each inventory is provided in section 3.2.1 of Appendix
A to the progress report.

                                             Table 2--Sulfur Dioxide, Nitrogen Oxides, and Ammonia Emissions
                                                                       [Tons/year]
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                                                                        SO2                             NOX                           Ammonia
                                                         -----------------------------------------------------------------------------------------------
                                                               2002            2008            2002            2008            2002            2008
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Point...................................................           6,813           5,039          74,471          68,564             580             178
Area....................................................           1,872           3,365          14,742          19,404               0             356
On-Road Mobile..........................................             324             490           7,077          15,696             307             230
Off-Road Mobile.........................................              49             395           4,111           3,387               8               7
Aviation................................................             335             (*)           3,265             (*)               6             (*)
Commercial Marine.......................................           4,979           5,180          11,258          24,370               5              11
                                                         -----------------------------------------------------------------------------------------------
    Total Anthropogenic.................................        * 14,037        * 14,469       * 111,659       * 131,421           * 900           * 782
Fire....................................................          34,304           4,482         125,110          16,344          26,233           3,417
                                                         -----------------------------------------------------------------------------------------------
        Total...........................................        * 48,341        * 18,951       * 236,769       * 147,765        * 27,133         * 4,199
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* Sums and differences do not include aviation emissions, as 2008 inventory totals were not available from this source for comparison purposes.

                                        Table 3--Volatile Organic Compound, Fine Soil, and Coarse Mass Emissions
                                                                       [Tons/year]
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                                                                        VOC                          Fine soil                      Coarse mass
                                                         -----------------------------------------------------------------------------------------------
                                                               2002            2008            2002            2008            2002            2008
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Point...................................................           5,697           4,582           1,237             563           4,696           2,392
Area....................................................         128,271          10,890          30,636           2,289          76,349             121
On-Road Mobile..........................................           7,173           6,740             158           1,194              46             164
Off-Road Mobile.........................................           7,585          19,094             392             670              24              46
Aviation................................................           1,566             (*)             667             (*)              20             (*)
Commercial Marine.......................................             356             609             643           1,114              32              64
                                                         -----------------------------------------------------------------------------------------------
    Total Anthropogenic.................................       * 149,082        * 41,915        * 33,066         * 5,830        * 81,147         * 2,787
Fire....................................................         274,436          35,761         478,057          63,330          79,346          10,495
                                                         -----------------------------------------------------------------------------------------------
        Total...........................................       * 423,518        * 77,676       * 511,123        * 69,160       * 160,493        * 13,282
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* Sums and differences do not include aviation emissions, as 2008 inventory totals were not available from this source for comparison purposes.

    Regarding emissions inventories, Alaska made the following
observations:
     Fire emission inventory estimates decreased. Note that
these differences are not necessarily reflective of changes in
monitored data, as the five-year baseline period is represented by a
2000-2004 average of fire emissions developed by the WRAP, and the
five-year progress period is represented by fires that occurred in
2008.
     Point source inventories showed decreases for all species.
     Area source inventories showed increases in SO2
and NOX, but large decreases in volatile organic compounds
(VOCs), fine soil, and coarse mass.
     On-road mobile source inventory comparisons showed
increases in SO2, NOX, fine soil, and coarse
mass, but a decrease in VOCs. Off-road mobile source inventories showed
decreases in NOX, but increases in VOCs. (See section 6.1.2
of Appendix C.)
     Commercial marine sources showed large increases in
NOX inventories, and only small changes in other parameters.
Alaska attributed this increase, at least in part, to different
emission inventory methodologies.
    Alaska also notes that during high fire years, emissions from
wildland fires can make up a significant portion of the state's overall
emissions for some pollutants. Further, wildfire activity varies
greatly from year to year, and unlike other emission sources, the
locations vary from year to year. Alaska also notes that one
contributing source of anthropogenic emissions not included in the
emissions inventory is international anthropogenic emissions. According
to the progress report, Alaska receives a significant amount of
globally transported pollution, particularly from Asia and Russia.
Continued industrial growth in these areas is likely to increase
emissions of pollutants that contribute to regional haze in Alaska,
although the extent of this contribution to haze in Alaska has not been
determined due to lack of accurate international emission inventories.

D. Determination of Adequacy (40 CFR 51.308(h))

    In accordance with 40 CFR 51.308(h)(1), ``If the state determines
[at the time the five-year progress report is submitted] that the
existing implementation plan requires no further substantive revision
at this time in order to achieve established goals for visibility
improvement and emissions reductions, the state must provide to the
Administrator a negative declaration that further revision of the
existing implementation plan is not needed at this time.'' Within the
progress report, the State of Alaska provided a negative declaration
stating that further revision of the existing implementation plan is
not needed. The basis for the state's negative declaration is the
finding that visibility on the 20% most impaired days has improved, and
2018 RPGs attained, at all Alaska IMPROVE monitors, except for the
Denali Headquarters monitor, which shows a slight decrease in
visibility for the current period compared to the baseline due to smoke
from wildfires in Alaska in 2009.
    Accordingly, the EPA proposes to find that Alaska adequately
addressed the requirements in 40 CFR 51.308(h) in its determination
that the existing Alaska regional haze SIP requires no substantive
revisions at this time to achieve the established RPGs for Alaska Class
I areas. We note in particular that, based on the visibility conditions
for the most recent five-year period (2012-2016), Alaska is meeting
2018 RPGs at all Alaska IMPROVE monitors.

E. Consultation With Federal Land Managers (40 CFR 51.308(i))

    In accordance with 40 CFR 51.308(i), the state must provide the
Federal Land Managers (FLMs) with an opportunity for consultation, in
person and at least 60 days prior to holding any public hearings on an
implementation plan (or plan revision). The state must also include a
description of how it addressed any comments provided by the FLMs. The
State of Alaska provided an opportunity for FLM consultation at least
60 days prior to holding any public hearing on a draft progress report.
This progress report was submitted to the FLMs on April 27, 2015, for
review and comment. Comments were received from the FLMs on June 30,
2015. The FLM comments and state responses are presented in the
progress report. In accordance with 40 CFR 51.308(i)(4), Alaska's
progress report reaffirms the state' commitment to the regional haze
SIP procedures for continuing consultation between the State of Alaska
and FLMs on, among other things, the implementation of Alaska's
regional haze SIP.
    The EPA proposes to find that Alaska has addressed the requirements
in 40 CFR 51.308(i) to provide the FLMs with an opportunity for
consultation in person and at least 60 days prior to a public hearing
on the progress report, included a description of how it addressed any
comments from the FLMs, and provided a commitment for continuing
consultation between the state and the FLMs. FLM comments and ADEC
responses are provided in section E of the progress report.

IV. Additional Revision to the Regional Haze SIP To Reflect Adoption of
Progress Report

    Concurrent with the progress report, Alaska submitted an update to
the

``Commitment to Future 308 Plan Revisions'' chapter of the regional
haze SIP. The revision notes the adoption and submission of the
progress report. The EPA is proposing to approve this revision to the
regional haze SIP.

V. The EPA's Proposed Action

    The EPA is proposing to approve the Alaska Regional Haze Progress
Report submitted to the EPA on March 10, 2016, as meeting the
applicable requirements of the CAA and RHR, as set forth in 40 CFR
51.308(g). The EPA proposes to find that the existing regional haze SIP
is adequate to meet the state's visibility goals and requires no
substantive revision at this time, as set forth in 40 CFR 51.308(h). We
propose to find that Alaska fulfilled the requirements in 40 CFR
51.308(i) regarding state coordination with FLMs. Lastly, we propose to
approve updates to the Enhanced Smoke Management Plan, Long-Term
Strategy, and Commitment to Future 308 Plan Revision sections of the
regional haze SIP, submitted concurrently with the Alaska Regional Haze
Progress Report.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations.\12\ Thus, in reviewing SIP submissions, the EPA's
role is to approve state choices, provided that they meet the criteria
of the CAA. Accordingly, this proposed action merely approves state law
as meeting Federal requirements, and does not impose additional
requirements beyond those imposed by state law. For that reason, this
proposed action:
---------------------------------------------------------------------------

    \12\ 42 U.S.C. 7410(k); 40 CFR 52.02(a).
---------------------------------------------------------------------------

     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because actions such as SIP approvals are
exempted under Executive Order 12866;
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because this rulemaking does not involve technical standards; and
     Does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed action does not apply on any Indian
reservation land or in any other area where the EPA or an Indian tribe
has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Visibility, and Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: February 7, 2018.
Chris Hladick,
Regional Administrator, Region 10.
[FR Doc. 2018-03269 Filed 2-15-18; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 86, Number 128 (Thursday, July 8, 2021)]
[Notices]
[Pages 36142-36144]
[FR Doc No: 2021-14490]

=======================================================================
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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket Nos. FDA-2019-E-5322 and FDA-2019-E-5323]

Determination of Regulatory Review Period for Purposes of Patent
Extension; PIQRAY

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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SUMMARY: The Food and Drug Administration (FDA or the Agency) has
determined the regulatory review period for PIQRAY and is publishing
this notice of that determination as required by law. FDA has made the
determination because of the submission of applications to the Director
of the U.S. Patent and Trademark Office (USPTO), Department of
Commerce, for the extension of a patent which claims that human drug
product.

DATES: Anyone with knowledge that any of the dates as published (see
SUPPLEMENTARY INFORMATION) are incorrect may submit either electronic
or written comments and ask for a redetermination by September 7, 2021.
Furthermore, any interested person may petition FDA for a determination
regarding whether the applicant for extension acted with due diligence
during the regulatory review period by January 4, 2022. See
``Petitions'' in the SUPPLEMENTARY INFORMATION section for more
information.

ADDRESSES: You may submit comments as follows. Please note that late,
untimely filed comments will not be considered. Electronic comments
must be submitted on or before September 7, 2021. The https://www.regulations.gov electronic filing system will accept comments until
11:59 p.m. Eastern Time at the end of September 7, 2021. Comments
received by mail/hand delivery/courier (for written/paper submissions)
will be considered timely if they are postmarked or the delivery
service acceptance receipt is on or before that date.

Electronic Submissions

    Submit electronic comments in the following way:
     Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments. Comments submitted
electronically, including attachments, to https://www.regulations.gov
will be posted to the docket unchanged. Because your comment will be
made public, you are solely responsible for ensuring that your comment
does not include any confidential information that you or a third party
may not wish to be posted, such as medical information, your or anyone
else's Social Security number, or confidential business information,
such as a manufacturing process. Please note that if you include your
name, contact information, or other information that identifies you in
the body of your comments, that information will be posted on https://www.regulations.gov.
     If you want to submit a comment with confidential
information that you do not wish to be made available to the public,
submit the comment as a written/paper submission and in the manner
detailed (see ``Written/Paper Submissions'' and ``Instructions'').

Written/Paper Submissions

    Submit written/paper submissions as follows:
     Mail/Hand Delivery/Courier (for written/paper
submissions): Dockets Management Staff (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
     For written/paper comments submitted to the Dockets
Management Staff, FDA will post your comment, as well as any
attachments, except for information submitted, marked and identified,
as confidential, if submitted as detailed in ``Instructions.''
    Instructions: All submissions received must include the Docket Nos.
FDA-2019-E-5322 and FDA-2019-E-5323 for ``Determination of Regulatory
Review Period for Purposes of Patent Extension; PIQRAY.'' Received
comments, those filed in a timely manner (see ADDRESSES), will be
placed in the docket and, except for those submitted as ``Confidential
Submissions,'' publicly viewable at https://www.regulations.gov or at
the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through
Friday,<PHONE_NUMBER>.
     Confidential Submissions--To submit a comment with
confidential information that you do not wish to be made publicly
available, submit your comments only as a written/paper submission. You
should submit two copies total. One copy will include the information
you claim to be confidential with a heading or cover note that states
``THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.'' The Agency will
review this copy, including the claimed confidential information, in
its consideration of comments. The second copy, which will have the
claimed confidential information redacted/blacked out, will be
available for public viewing and posted on https://www.regulations.gov.
Submit both copies to the Dockets Management Staff. If you do not wish
your name and contact information to be made publicly available, you
can provide this information on the cover sheet and not in the body of
your comments and you must identify this information as
``confidential.'' Any information marked as ``confidential'' will not
be disclosed except in accordance with Sec.  10.20 (21 CFR 10.20) and
other applicable disclosure law. For more information about FDA's
posting of comments to public dockets, see 80 FR 56469, September 18,
2015, or access the information at: https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23389.pdf
    Docket: For access to the docket to read background documents or
the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in
the heading of this document, into the ``Search'' box and follow the
prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane,
Rm. 1061, Rockville, MD 20852,<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Beverly Friedman, Office of Regulatory
Policy, Food and Drug Administration, 10903 New Hampshire Ave., Bldg.
51, Rm. 6250, Silver Spring, MD 20993,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Background

    The Drug Price Competition and Patent Term Restoration Act of 1984
(Pub. L. 98-417) and the Generic Animal Drug and Patent Term
Restoration Act (Pub. L. 100-670) generally provide that a patent may
be extended for a period of up to 5 years so long as the patented item
(human drug product, animal drug product, medical device, food
additive, or color additive) was subject to regulatory review by FDA
before the item was marketed. Under these acts, a product's regulatory
review period forms the basis for determining the amount of extension
an applicant may receive.
    A regulatory review period consists of two periods of time: A
testing phase and an approval phase. For human drug products, the
testing phase begins when the exemption to permit the clinical
investigations of the drug becomes effective and runs until the
approval phase begins. The approval phase starts with the initial
submission of an application to market the human drug product and
continues until FDA grants permission to market the drug product.
Although only a portion of a regulatory review period may count toward
the actual amount of extension that the Director of USPTO may award
(for example, half the testing phase must be subtracted as well as any
time that may have occurred before the patent was issued), FDA's
determination of the length of a regulatory review period for a human
drug product will include all of the testing phase and approval phase
as specified in 35 U.S.C. 156(g)(1)(B).
    FDA has approved for marketing the human drug product, PIQRAY
(alpelisib). PIQRAY is indicated in combination with fulvestrant for
the treatment of postmenopausal women, and men, with hormone receptor-
positive, human epidermal growth factor receptor 2-negative, PIK3CA-
mutated, advanced or metastatic breast cancer as detected by an FDA-
approved test following progression on or after an endocrine-based
regimen. Subsequent to this approval, the USPTO received patent term
restoration applications for PIQRAY (U.S. Patent Nos. 8,277,462 and
8,476,268) from Novartis AG and the USPTO requested FDA's assistance in
determining the patents' eligibility for patent term restoration. In a
letter dated December 23, 2019, FDA advised the USPTO that this human
drug product had undergone a regulatory review period and that the
approval of PIQRAY represented the first permitted commercial marketing
or use of the product. Thereafter, the USPTO requested that FDA
determine the product's regulatory review period.

II. Determination of Regulatory Review Period

    FDA has determined that the applicable regulatory review period for
PIQRAY is 3,264 days. Of this time, 3,106 days occurred during the
testing phase of the regulatory review period, while 158 days occurred
during the approval phase. These periods of time were derived from the
following dates:
    1. The date an exemption under section 505(i) of the Federal Food,
Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 355(i)) became effective:
June 18, 2010. FDA has verified the applicant's claim that the date the
investigational new drug application became effective was on June 18,
2010.
    2. The date the application was initially submitted with respect to
the human drug product under section 505 of the FD&C Act: December 18,
2018. The applicant claims October 26, 2018, as the date the new drug
application (NDA) for PIQRAY (NDA 212526) was initially submitted.
However, FDA records indicate that NDA 212526 was submitted on December
18, 2018.
    3. The date the application was approved: May 24, 2019. FDA has
verified the applicant's claim that NDA 212526 was approved on May 24,
2019.
    This determination of the regulatory review period establishes the
maximum potential length of a patent extension. However, the USPTO
applies several statutory limitations in its calculations of the actual
period for patent extension. In its applications for patent extension,
this applicant seeks 969 or 1,156 days of patent term extension.

III. Petitions

    Anyone with knowledge that any of the dates as published are
incorrect may submit either electronic or written comments and, under
21 CFR 60.24, ask for a redetermination (see DATES). Furthermore, as
specified in Sec.  60.30 (21 CFR 60.30), any interested person may
petition FDA for a determination regarding whether the applicant for
extension acted with due diligence during the regulatory review period.
To meet its burden, the petition must comply with all the requirements
of Sec.  60.30, including but not limited to: Must be timely (see
DATES), must be filed in accordance with Sec.  10.20, must contain
sufficient facts to merit an FDA investigation, and must certify that a
true and complete copy of the petition has been served upon the patent
applicant. (See H. Rept. 857, part 1, 98th Cong., 2d sess., pp. 41-42,
1984.) Petitions should be in the format specified in 21 CFR 10.30.
    Submit petitions electronically to https://www.regulations.gov at
Docket No. FDA-2013-S-0610. Submit written petitions (two copies are
required) to the Dockets Management Staff (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    Dated: June 22, 2021.
Lauren K. Roth,
Acting Principal Associate Commissioner for Policy.
[FR Doc. 2021-14490 Filed 7-7-21; 8:45 am]
BILLING CODE 4164-01-P


UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D. C. 20460 OFFICE OF PREVENTION PESTICIDES AND TOXIC SUBSTANCES FEB 09 2006 MEMORANDUM SUBJECT Environmental Fate and Risk Assessment for mCry3A Protein in Syngenta's MIR604 field corn ( MRIDs 462656 01, 462656 13, and 462656 14).

TO Michael Mendelsohn Senior Regulatory Action Leader Microbial Pesticides Branch Biopesticides and Pollution Prevention Division ( 7511C)

FROM Tessa Milofsky, M. S. Agronomist signed 2 9 06 Microbial Pesticides Branch Biopesticides and Pollution Prevention Division ( 7511C)

THROUGH Zigfridas Vaituzis, Ph. D, Microbiologist signed 2 9 06 Microbial Pesticides Branch Biopesticides and Pollution Prevention Division ( 7511C)

Recommendations It is recommended that additional studies should be conducted to evaluate plant produced mCry3A protein degradation, accumulation, and persistence in a variety of soil types, including those high in clay and humic acids, into which all non harvested corn plant material is incorporated.

Background Syngenta, Ltd. is requesting a full and unrestricted FIFRA Section 3 registration for commercialization of MIR604 corn rootworm protected field corn, a new end use product containing the mCry3A protein and the genetic material necessary for its production in corn, which includes the PMI inert marker. This memo includes summaries and DERs for the Environmental Safety Assessment, Environmental Fate Assessment, and Laboratory Soil Degradation studies submitted in support of the MIR604 registration. Reviews of the non target studies included in this data package are covered in a separate memo.

Study: Environmental Safety Assessment ( summary document) of Modified Cry3A Protein and Event MIR604 to Non Target Organisms MRID No.: 462656 01 Classification: Supplemental Study Summary: Summary information is presented in support of the Section 3 registration of MIR604 rootworm protected field corn, which contains the mCry3A protein. The safety assessment document provides summaries of the non target laboratory studies that were used to evaluate the potential adverse effects of mCry3A on non target organisms. According to expected environmental concentration ( EEC) calculations performed and justified by Syngenta, non target test species were exposed to 11.2 to 2,600 times the EEC or daily dietary dose of mCry3A without significant adverse effects. BPPD Review: The reviewer generally agrees with summary information presented by the study authors. Justifications/ explanations provided for EEC calculations seem reasonable. It is noted, however, that many of the assumptions used to calculate margins of exposure for test species were not submitted to EPA for 2 review and therefore, could not be verified by the reviewer. It is further noted that the potency of cornderived protein was found to be twice the potency of bacteria derived MCRY3A 0102 ( MRID 461556 03). Despite the lower relative toxicity of the bacteria derived protein, the reviewer agrees that, based on study results and EEC calculations presented by the registrant, it is unlikely that exposure to plant produced mCry3A protein will result in significant adverse effects to non target organisms.

Study: Environmental Fate Assessment of Modified Cry3A Protein in Event MIR604 Corn MRID No.: 462656 13 Classification: Supplemental Study Summary: MIR604 corn plants have been shown to express mCry3A protein in leaves, kernels, roots, and silks, but the protein was not detected in corn pollen. Corn leaf assays were used to verify that mCry3A expression is stable over multiple generations and a soil degradation study showed that MCRY3A 0102 degrades readily, with a DT50 of 7.6 days in silty clay loam soil. Due to corn's lack of invasive characteristics and the low probability that the mcry3A gene from Event MIR604 would transfer to a wild relative of corn, it is unlikely that mCry3A will spread beyond cultivated sites and persist in weedy populations. It is also unlikely that genes present in MIR604 corn would be subject to horizontal gene transfer at a frequency that exceeds the rate of transfer in other plants. In the unlikely event that mcry3A is stably integrated and expressed in a soil microorganism, no harmful effects are expected. Laboratory based non target studies indicate that expected environmental exposure to mCry3A protein will not result in unreasonable adverse effects to beneficial organisms. The submission also notes the low likelihood that aquatic organisms will be exposed to mCry3A, since it is unlikely that the protein will enter watercourses via soil particle movement, pollen dispersal, or seed spillage. BPPD Review: The reviewer agrees with the above conclusions.

Study: Laboratory Soil Degradation of Modified Cry3A Protein ( MCRY3A 0102) MRID No.: 462656 14 Classification: Supplemental Study Summary: Degradation of MCRY3A 0102 ( microbe produced mCry3A protein) in silty clay loam soil was evaluated in a laboratory study, where treated soil samples were maintained under conditions that mimicked the field environment. MCRY3A 0102 activity in soil was evaluated with a Colorado potato beetle ( CPB) ( Leptinotarsa decemlineata) larval bioassay. The test protein was incorporated into the test soil at a nominal rate of 230 µ g MCRY3A 0102/ g of dry soil. Soil samples were collected at days 0, 1, 3, 7, 12, and 30 and frozen until needed for CPB diet formulation. CPB larvae were maintained on each soil/ diet mixture for 72 hrs, after which mortality was determined. Larval mortality was 48 53% when fed diets containing soil from days 0, 1, 3, and 7; mortality declined to 9% when fed diet containing soil from day 30. Based on these results, a simple first order kinetic model determined that the DT50 for mCry3A in this silty clay loam soil is 7.6 days. BPPD Review: These results indicate that microbe produced MCRY3A 0102 insecticidal protein degrades rapidly in silt loam soil. However, silt loam soil is just one of many soil classes used for corn production in the United States. A more useful study would evaluate protein degradation, accumulation, and persistence in a range of soil types, including those with high clay and humic acid content, due to their known binding affinity for proteins.

It is also noted that this study utilized field soil spiked with microbe derived insecticidal protein. This approach is useful because dose responses can be easily quantified. However, the degradation and accumulation of Cry proteins found within decaying plant tissue may behave differently than proteins in artificially spiked soil and MCRY3A 0102 was shown to be half as potent as plant produced protein ( MRID 461556 03). Consequently, aside from showing that MCRY3A 0102 does degrade in soil, the studies are incomplete and the long term relevance of these study results is unclear. 3 To account for the above concerns, it is recommended that additional studies should be conducted to evaluate plant produced mCry3A protein degradation, accumulation, and persistence in a variety of soil types, including those high in clay and humic acids, into which all non harvested corn plant material is incorporated. Sampling should be conducted each year for three years in a field sown with continuous MIR604 corn. Soil should be monitored for a minimum of one growing season after harvest and continued until the mCry3A protein can no longer be detected. It is recommended that these studies should be included as a condition of registration. 4 DATA EVALUATION RECORD Primary Reviewer: Eric B. Lewis, M. S. EPA Secondary Reviewer: Tessa Milofsky, M. S.

STUDY TYPE: Nonguideline MRID NO: 46265601 DP BARCODE: DP303605 TEST MATERIAL: mCry3A Protein in Event MIR604 Corn STUDY NO: Not provided SPONSOR: Syngenta Seeds, Inc., Research Triangle Park, NC TESTING FACILITY: N/ A TITLE OF REPORT: Environmental Safety Assessment of Modified Cry3A Protein and Event MIR604 Corn to Non Target Organisms AUTHOR: Raybould, A.

STUDY COMPLETED: April 27, 2004 CONFIDENTIALITY CLAIMS: None GOOD LABORATORY PRACTICE: A signed GLP statement was provided. The study is a compilation and is not subject to GLP standards.

STUDY SUMMARY: Summary information is presented in support of the Section 3 registration of MIR604 rootworm protected field corn, which contains the mCry3A protein. The safety assessment document provides summaries of the non target laboratory studies that were used to evaluate the potential adverse effects of mCry3A on non target organisms. According to expected environmental concentration ( EEC) calculations performed and justified by Syngenta, non target test species were exposed to 11.2 to 2,600 times the EEC or daily dietary dose of mCry3A without significant adverse effects.

CLASSIFICATION: Supplemental Introduction 5 Laboratory studies were conducted using a range of non target organisms to evaluate the environmental safety of modified Cry3A ( mCry3A) protein ( Table 1). To ensure an adequate " safety margin," the studies were designed to expose non target arthropods to at least 10 times the estimated environmental concentration ( EEC) of mCry3A, which was calculated to be 50 µ g mCry3A/ g based on preliminary studies indicating that the mCry3A concentration in leaves of MIR604 hybrid corn was 5 µ g/ g fresh weight. Other plant tissues contained less than this value, and because non target arthropods tend not to eat corn leaf tissue, this exposure estimate was considered to be a worst case exposure scenario. To achieve this safety margin ( 10 x EEC), most of the test species were exposed using a preparation of microbe produced mCry3A ( test substance MCRY3A 0102, 90.3% w/ w mCry3A) in artificial diets, rather than using plant material containing mCry3A ( lower dose test substance). The mCry3A in MCRY3A 0102 was shown to be chemically and biologically equivalent to mCry3A produced in Event MIR604 corn.

Further evaluation of corn leaf tissue indicated that mCry3A expression over four time points ranged from 3.8 µ g mCry3A/ g ( anthesis) to 7.8 µ g mCry3A/ g at seed maturity, with an average over all time periods of 6.6 µ g mCry3A/ g fresh weight. Based on these findings, the 50 µ g mCry3A/ g exposure level is less than 10 x the exposure level in leaves. However, Syngenta argues that " mCry3A concentration in corn leaf tissue is not a realistic EEC, because ( by definition) non target organisms do not consume significant quantities of crop plant tissues".

The EEC for earthworms was based on the concentration of mCry3A protein present in senescent corn leaf tissue, while the exposure level used for the bird study was calculated from mCry3A concentrations present in corn grain. The fish study was the only non target organism study that did not use microbe produced MCRY3A 0102 as the test substance. In this case, corn grain was incorporated in fish feed.

TABLE 1. Ecotoxicolgy studies using exposure to mCry3A Test species Exposure route Minimum Margin of Exposure Dosing Endpoints Bobwhite quail ( Colinus virginianus) Capsule 1400 X DDD1 Single oral 14 d mortality, body wt, feed consumption Rainbow trout ( Oncorhyncus mykiss) Feed formulated with 50% MIR604 grain 37.0 X EEC2 Daily 28 d mortality and growth Flower bug ( Orius insidiosus) Protein in artificial diet 10.6 X EEC Daily Pre imaginal mortality Ladybird beetle ( Coccinella septempunctata) Aphids dipped in solution of protein 12.3 X EEC Daily until pupation and after adult emergence Pre imaginal mortality and development, adult mortality Rove beetle ( Aleochara bilineata) Protein in artificial diet 15.6 X EEC Daily for first 35 days of test Fecundity Carabid beetle Protein 11.2 X EEC Daily until Pre imaginal mortality 6 ( Poecilus cupreus) injected into blowfly pupae pupation Honeybee ( Apis mellifera) Protein in sugar solution 36 X EEC Daily for first 5 days of test Brood development, adult and larval mortality Earthworm ( Eisenia foetida) Protein in artificial soil 46 X EEC Single 14 d mortality, body wt Mouse3 Protein in methylcellulos e solution 2600 X DDD Single oral 14 d mortality, body wt, organ wt, feed consumption 1DDD = Daily dietary dose 2EEC = Estimated environmental exposure 3Mammalian toxicity study Results of Toxicity Tests Bobwhite quail ( MRID 46155616)

Five male and five female young adult northern bobwhite quail ( Colinus virginianus) were administered a single oral dose of 722 mg MCRY3A 0102/ kg body wt ( nominally equivalent to approximately microbe produced 652 mg mCry3A protein/ kg body wt) and observed for 14 days. There were no treatment related adverse clinical signs or mortality. Body weight and feed consumption of the test birds were comparable to those of controls. The acute oral nominal LD50 was greater than 722 mg MCRY3A 0102/ kg body wt ( microbe produced 652 mg mCry3A protein/ kg body wt), and the nominal NOEL was equal to 722 mg MCRY3A 0102/ kg body wt ( microbe produced 652 mg mCry3A protein/ kg body wt).

The margin of exposure for seed eating birds was calculated using the formula DDD = ( FIR/ bw) x C, where DDD is daily dietary dose, FIR is food intake rate, bw is body weight, and C is the mCry3A concentration in the food. Based on a FIR/ bw ratio of 0.11 to 0.35 for seed eating birds and an average mCry3A concentration of 1.3 µ g mCry3A/ g fresh weight in kernels of MIR604 hybrids, the daily dietary dose for seed eating birds ranges from 0.14 to 0.46 mg mCry3A/ kg body weight. The 652 mg MCRY3A 0102/ kg dose used in the quail study would therefore provide 1417 to 4657 times the estimated daily dietary dose of mCry3A for seed eating birds that ate a diet of 100% fresh kernels from MIR604 plants.

Rainbow trout ( MRID 46155617)

In a 28 day flow through acute toxicity study, 40 juvenile rainbow trout ( Onchorhynchus mykiss) were fed twice daily with a formulated fish feed containing 50% by weight Event MIR604 grain, which contains mCry3A protein. Transient discoloration, sounding, and surfacing were seen in one to three fish in the test group after day 15, and one fish was found dead on day 21. No significant differences were detected in the weight of the control or test fish at 0, 14, or 28 days, and no significant difference in length was seen at 14 or 28 days. The actual concentration of mCry3A in the grain used to prepare the fish feed was subsequently determined to be 0.30 µ g/ g fresh weight, and the concentration of mCry3A in the formulated feed was 0.09 ± 0.005 µ g/ g fresh weight ( MRID 46265602).

The margin of exposure via the feed prepared in the study was calculated to be 37 times the EEC, based on the assumptions that feed would not likely be formulated using 100% grain from MIR604 hybrids and that the adoption rate of MIR604 hybrids would be no more than about 5% of field corn grown in the U. S. 7 Insidious Flower Bug ( MRID 46265609)

Predatory bug ( Orius insidiosus) nymphs were provided artificial meat based diet containing MCRY3A 0102 at a rate nominally equivalent to 50 µ g microbe produced mCry3A/ g diet for 21 days. A negative control group received artificial diet mixed with deionized water only, and a positive control group received diet containing teflubenzuron ( 0.01 mg a. i./ g of diet). At the end of the test, there was no statistically significant difference in the percent mortality of the MCRY3A 0102 and negative control groups. Mortality in the positive control group was appropriate. The nominal LC50 was > 50 µ g microbe produced mCry3A/ g diet, and the nominal NOEC was 50 µ g mCry3A/ g diet. Subsequent analysis of the treated diet recovered 95.6% of the mCry3A, indicating mCry3A was present at the intended concentration ( 50 µ g/ g diet), and a CPB larvae assay showed the mCry3A was intact in the diet for at least 4 days ( MRID 46265610).

Potential routes of field exposure of Orius to mCry3A include ingestion of corn silks and spider mites ( Tetranychus urticae) that feed on MIR604 hybrids. Assuming a concentration of 1.7 µ g mCry3A/ g fresh weight of MIR604 corn silks, the exposure for Orius in the above study ( 50 µ g/ g diet) was calculated to be 29.4 times the EEC. Assuming a concentration of 4.7 µ g mCry3A/ g fresh weight of spider mites, the exposure was 10.6 times the EEC.

Ladybird beetle ( MRID 46265603)

Four day old ladybird beetle larvae ( Coccinella septempunctata) were fed daily with live pea aphids ( Acyrthosiphon pisum) that had been immersed for 30 seconds in diluted wetting solution containing approximately 50 µ g of MCRY3A 0102 protein/ ml solution. Negative control larvae received aphids dipped in wetting solution only, and positive control larvae received aphids dipped in teflubenzuron. The larvae were allowed to pupate ( approximately 9 to 10 days from study initiation to pupation), and adult beetles that emerged were fed treated aphids for 14 days. There were no statistically significant differences in pre imaginal or adult survival between the negative control and mCry3A treatments; all larvae in the positive control treatment died in the pre imaginal stage. There was no significant difference in the mean number of days for pupae to form in the negative control and mCry3A treatments, but the mean number of days to adult emergence was significantly lower in the mCry3A group. A subsequent study ( MRID 46265604) determined that the actual mCry3A concentration in the treated aphids was 9 µ g MCRY3A 0102/ g of aphid ( 9 ng MCRY3A 0102/ aphid).

Potential routes of field exposure of Coccinella to mCry3A include aphids and spider mites feeding on MIR604 corn hybrids. Based on the aphids containing 0.026 µ g mCry3A/ g fresh weight and the mites containing 4.7 µ g mCry3A/ g fresh weight, the EEC for ladybird beetle larvae consuming a diet of 85% aphids and 15% spider mites would be 0.73 µ g mCry3A/ g fresh weight of diet. The exposure in the above ladybird beetle toxicity test ( 9 µ g mCry3A/ g of aphid) was therefore 12.3 times the EEC.

Rove beetle ( MRID 46265607)

Adult rove beetles ( Aleochara bilineata) were provided beef paste diet containing MCRY3A 0102 at a rate nominally equivalent to 50 µ g microbe produced mCry3A/ g of diet for 35 days. Negative control beetles were fed diet mixed with deionized water only, and positive control beetles were fed diet mixed with teflubenzuron ( 0.01 mg a. i./ g of diet). To assess the effects of treatment on fecundity, approximately 500 onion fly ( Delia antiqua) pupae, which are parasitized by rove beetles, were placed in the beetle habitat on days 14, 21, and 28 of the study. During days 35 to 76, emergence of adult rove beetles from the onion fly pupae was monitored. There was no statistically significant difference in day 35 mortality among any of the rove beetle groups, and no statistically significant difference in the mean number of progeny produced by the negative control and MCRY3A 0102 groups from days 35 to 76. Reproduction in the positive control group was significantly reduced. Subsequent analysis ( MRID 46265608) of the treated diet recovered 91.7% of the mCry3A, indicating the test material was present at the intended concentration ( 50 µ g/ g diet). 8 Rove beetles ( Staphylinidae) generally feed on other invertebrates, although some species feed on decaying plant material or parasitize other insects. A worst case EEC was calculated using an MIR604 root concentration of 3.7 µ g mCry3A/ g fresh weight. If soil invertebrates incorporated the root mCry3A at 1.4 times less than the root concentration, the soil invertebrates would average 2.6 µ g mCry3A/ g fresh weight. The rove beetle exposure in the above study ( 50 µ g/ g diet) was then 19.2 times the EEC. If rove beetles consumed decaying plant material containing 3.2 µ g mCry3A/ g fresh weight ( based on 15 day silage), the margin of exposure in the above study would be 15.6 times the EEC.

Ground dwelling beetle ( MRID 42665605)

Ground dwelling beetle ( Poecilus cupreus) larvae were fed daily with blowfly ( Calliphora vomitoria) pupae that had been injected with MCRY3A 0102 at a rate nominally equivalent to 50 µ g microbeproduced mCry3A protein/ g fly pupa. A negative control of fly pupae injected with deionized water only, and a positive control of fly pupae injected with teflubenzuron ( 0.664 ng a. i./ g of fly pupa) were also used in the test. When the P. cupreus larvae pupated, feeding stopped and adult emergence was monitored. There was no statistically significant difference in the percent pre imaginal mortality or mean weight of emerged P. cupreus adults between the MCRY3A 0102 and negative control groups. Treatment with the positive control produced 100% pre imaginal mortality. A subsequent study ( MRID 46465606) found the mean concentration of microbe produced mCry3A in the fly pupae used in the test was 12 µ g mCry3A/ g pupa.

The likely route of field exposure of non target Carabids to mCry3A would be prey that had ingested tissue of MIR604 hybrids, e. g., black cutworm ( Agrotis ipsilon) larvae. Assuming the cutworm larvae contained 0.15 µ g mCry3A/ g fresh weight ( based on studies with Cry1Ab), the beetle exposure in the above study ( 12 µ g/ g pupa) was 80 times the EEC. In a worst case exposure based on the cutworm larvae containing 1.07 µ g mCry3A/ g fresh weight ( using a spider mite mCry3A concentration 1.4 times lower than that of MIR604 tissue), the exposure in the beetle study would be 11.2 times the EEC.

Honeybee ( MRID 46155618)

Honeybees ( Apis mellifera) were exposed via in hive feeders to a nominal concentration of 50 µ g MCRY3A 0102/ g of sucrose solution, 0.375 mg of diflubenzuron insect growth regulator/ mL of sucrose solution, or 50% w/ v sucrose solution alone for 5 days and monitored for 21 days. There were no statistically significant differences in egg cell mortality, larval cell mortality, or pre and post test hive condition between the test and sucrose solution only groups. The diflubenzuron positive control produced 100% mortality in both egg and larval cells, and significantly reduced post treatment hive condition. Adult bees were generally not affected by any of the treatments.

Honeybees are not likely to be exposed to mCry3A via MIR604, since corn does not produce nectar and detectable amounts of mCry3A are not found in the pollen. The honeybee was used to represent the order Hymenoptera, which contains wasps that are parasites of corn pests, primarily Lepidoptera. There is currently no validated test to expose parasitic Hymenoptera larvae to high doses of protein, so honeybee larvae were used. Assuming the average concentration of mCry3A in Lepidoptera larvae is 1.4 µ g/ g fresh weight ( based on studies with Cry1Ab), the margin of exposure for honeybee larvae in the above study was 35.7 times the EEC.

Earthworm ( MRID 46265611)

Groups of 10 earthworms ( Eisenia fetida) in artificial soil were exposed to MCRY3A 0102 equivalent to a nominal concentration of 250 µ g microbe produced mCry3A/ g moistened soil for 14 days. Controls were exposed to the same soil without MCRY3A 0102. The LC50 for a positive control ( 2 chloroacetamide) group in the same soil was also determined. At test end, the test material group 9 worms had a mortality rate of 5% and a mean weight loss of 5.8%. Negative control worms had a mortality rate of 0% and a mean weight loss of 11.4%. The LC50 for the positive control worms was 18.0 mg/ kg dry soil. Subsequent extraction of mCry3A from treated soil samples collected on days 0, 3, 7, and 14 of the study recovered 18.1%, 14.8%, 6.3%, and 7.6% of the nominal concentration, respectively ( MRID 46265612). The low recovery rate at day 0 was attributed to low extractability from the soil, because a CPB larval bioassay showed that the test material was active for at least 5 days, and a Western blot assay showed intact mCry3A was present at 14 days, although some degradation did occur.

The most likely route of field exposure of earthworms to mCry3A would be ingestion of senescent plant material incorporated into the soil. Assuming that earthworms ate 100% senescing MIR604 leaves ( conservative scenario) containing 5.5 µ g mCry3A/ g fresh weight, the 250 µ g mCry3A/ g moistened soil in the above study would be 46 times the EEC.

Other toxicity tests No ecotoxicity studies were carried out using wild mammals, but an acute oral toxicity study with mice was conducted. Mice ( 5/ sex) received a single oral dose of MCRY3A 0102 representing approximately 2377 mg mCry3A/ kg body weight. After 14 days, there were no signs of toxicity, and all endpoints were comparable between the treated and control groups. The LD50 for males and females was > 2377 mg MCRY3A 0102/ kg body weight.

Rodents such as squirrels, mice, voles, and woodchucks, and larger mammals such as raccoons and deer ingest corn seed or ripening ears. The DDD of mCry3A for mammals can be calculated using the formula described above for birds. The FIR/ bw ratios for the harvest mouse ( Micromys minutus) and the wood mouse ( Apodemus sylvaticus) consuming cereal seeds have been estimated to be 0.33 and 0.28, respectively. Based on MIR604 hybrid kernels averaging 1.3 µ g mCry3A/ g fresh weight, and assuming 100% of the diet is kernels, the DDD for rodents was estimated to be 0.43 mg mCry3A/ kg body weight. The dose used in the acute oral toxicity study with mice discussed above would be over 5500 times the DDD.

Animals grazing on corn ears may consume both leaf material and kernels. Assuming that the ears contain 10.1 µ g mCry3A/ g fresh weight ( a worst case exposure, since MIR604 hybrid leaves average 10.1 µ g mCry3A/ g fresh weight, while the kernels, which would compose most of the ear, average only 1.6 µ g mCry3A/ g fresh weight) and the FIR/ bw ratio for deer is 0.09, the DDD for large mammals eating a 100% diet of MIR604 corn ears is 0.91 mg mCry3A/ kg body weight. The dose used in the acute oral toxicity study with mice discussed above would be 2600 times the large mammal DDD.

Potential for exposure of non target Coleoptera The registrant states that mCry3A activity is expected to be limited to beetles, particularly some members of the Chrysomelidae ( leaf beetles, flea beetles, rootworms), Curculionidae ( weevils and snout beetles), and Tenebrionidae ( darkling beetles) families. The Chrysomelidae and Curculionidae are herbivores and could potentially be exposed to MIR604 pollen. However, since mCry3A has not been detected in MIR604 pollen, exposure of these beetles is unlikely. Tenebrionidae larvae and adults are plant material scavengers, and some mealworm species are pests of stored grain. Darkling beetles are not recorded as a pest of corn, but may be exposed to mCry3A by feeding on senescent MIR604 tissue in cornfields. The LD50 of a native Cry3A to yellow mealworm ( Tenebrio molitor), a representative Tenebrionid, has been found to be 11.4 µ g Cry3A/ g larvae. Assuming that the activity of mCry3A to T. molitor is roughly equal to that of native Cry3A, and the mCry3A concentration in senescing MIR604 hybrid leaves is 5.5 µ g/ g fresh weight, a larva would need to ingest about 2.1 g of senescing leaf tissue to receive the median lethal dose. This represents about 3500 times the body weight of a first instar larva and about 15 times the body weight of a final instar. Since Tenebrionidae 10 are omnivorous and mCry3A rapidly degrades in soil, darkling beetles are unlikely to be exposed to sufficient mCry3A to be significantly impacted.

Endangered species considerations The registrant states that no harmful effects of mCry3A, native Cry3A, or other Cry3 proteins have been shown in taxa outside Coleoptera. The activity of mCry3A is expected to be limited to certain species of the Chrysomelidae, Curculionidae, and Tenebrionidae families, and there are currently no endangered or threatened species in these families. Additionally, there are no known endangered or threatened beetle species in habitats where corn is grown. Therefore, no endangered or threatened beetles are expected to be harmed by mCry3A pollen expressed in MIR604 hybrids.

The lack of detectable expression of mCry3A in MIR604 pollen, the lack of weediness in corn, the absence of sexually compatible wild relatives of corn in the U. S., and the low probability of significant mCry3A dispersal in soil indicates that endangered or threatened species would only be exposed to mCry3A by eating MIR604 plants or organisms that had fed on MIR604 tissue. The Agency has reviewed the likelihood of endangered bird and bat species exposure to Cry3Bb1, a coleopteran active protein expressed in Event MON863, concluding that endangered birds and bats rarely forage in agricultural fields and that insectivorous species tend to take flying insects rather than larvae ( the life stage most likely to contain Cry protein). Similarly, cultivation of MIR604 is unlikely to have any harmful effects on endangered or threatened species. 11 DATA EVALUATION RECORD Primary Reviewer: Eric B. Lewis, M. S. EPA Secondary Reviewer: Tessa Milofsky, M. S.

STUDY TYPE: Nonguideline MRID NO: 46265613 DP BARCODE: DP303605 TEST MATERIAL: mCry3A Protein in Event MIR604 Corn SPONSOR: Syngenta Seeds, Inc., Research Triangle Park, NC TESTING FACILITY: N/ A TITLE OF REPORT: Environmental Fate Assessment of Modified Cry3A Protein in Event MIR604 Corn AUTHOR: Raybould, A.

STUDY COMPLETED: April 27, 2004 CONFIDENTIALITY CLAIMS: None GOOD LABORATORY PRACTICE: A signed GLP statement was provided. The study is a compilation and is not subject to GLP standards.

STUDY SUMMARY: MIR604 corn plants have been shown to express mCry3A protein in leaves, kernels, roots, and silks, but the protein was not detected in corn pollen. Corn leaf assays were used to verify that mCry3A expression is stable over multiple generations and a soil degradation study showed that mCry3A degrades readily, with a DT50 of 7.6 days in silty clay loam soil. Due to corn's lack of invasive characteristics and the low probability that the mCry3A gene from Event MIR604 would transfer to a wild relative of corn, it is unlikely that mCry3A will spread beyond cultivated sites and persist in weedy populations. It is also unlikely that genes present in MIR604 corn would be subject to horizontal gene transfer at a frequency that exceeds the rate of transfer in other plants. In the unlikely event that mcry3A is stably integrated and expressed in a soil microorganism, no harmful effects are expected. Laboratory based non target studies indicate that expected environmental exposure to mCry3A protein will not result in unreasonable adverse effects to beneficial organisms. The submission also notes the low likelihood that aquatic organisms will be exposed to mCry3A, since it is unlikely that the protein will enter watercourses via soil particle movement, pollen dispersal, or seed spillage. 12 CLASSIFICATION: Supplemental Introduction The cry3A gene from Bacillus thuringiensis subsp. tenebrionsis was synthetically recreated to optimize for expression in corn, and changed so that the encoded modified Cry3A ( mCry3A) protein has enhanced activity against the western corn rootworm ( Diabrotica virgifera virgifera) and the northern corn rootworm ( D. longicornis barberi). Corn plants transformed with mCry3A, such as Event MIR604, display resistance to these pests.

mCry3A Levels in MIR604 Hybrids In MIR604 corn plants sampled at four growth stages ( whorl stage, 6 weeks after planting; anthesis, 10 11 weeks after planting; seed maturity, 18 20 weeks after planting; and senescence, about 24 weeks after planting), mCry3A was found in the leaves, kernels, roots, and silks at each growth stage, but not in pollen ( limit of detection = 0.07 µ g/ g fresh wt). The expression profile appears to be stable over multiple generations. In four successive backcrosses under greenhouse conditions, leaf tissue sampled at anthesis showed that the concentration of mCry3A in each generation was similar, with no trend toward increased or decreased expression.

Degradation in Soil Evidence indicates that Cry proteins undergo enzymatic degradation by soil proteases. Laboratory soil degradation studies on lepidopteran active proteins ( Cry1Ab, Cry1Ac, Cry1F) indicate they are rapidly degraded, with a DT50 ( time for the Cry protein concentration or bioactivity to fall to half its initial value) of 2 to 22 days for Cry1A proteins and a DT50 of just over 3 days for Cry1F. The DT50 for Cry3Bb1 protein, which is active against certain Coleoptera, is between less than 1 day and up to 9 days. In a laboratory degradation test using mCry3A incorporated into a silty clay loam soil ( MRID 46265614), a Colorado potato beetle bioassay determined the DT50 of MCRY3A 0102 protein was 7.6 days.

Spread and Persistence of the mCry3A gene The probability of the mcry3A gene from MIR604 transferring to wild relatives of corn is very low. Corn will hybridize with a group of taxa collectively known as teosinte, which are native to Central America. Teosinte species have co existed with cultivated corn for several thousand years, but have remained genetically distinct from cultivated varieties despite occasional introgression. While teosinte species are grown in the U. S. in botanical gardens, fertilization of these plants by MIR604 pollen is unlikely.

Species of the genus Tripsacum, three of which occur in the U. S., are considered to be close relatives of corn. However, hybrids between Tripsacum and corn are difficult to obtain and are often sterile. T. dactyloides is widespread, but does not hybridize readily with corn, and the probability of backcross or F2 progeny of Tripsacum x Zea hybrids being produced in the field is negligible. In the environmental assessment section of the BRAD for Bt plant incorporated protectants ( 2001), the Agency concluded that the chance of natural introgression of genes from corn to Tripsacum was extremely remote. 13 In its reassessment of the environmental safety of Bt plant incorporated protectants, the Agency reviewed information concerning the theoretical risks of horizontal gene transfer ( HGT), and found no evidence for HGT under field conditions. Non agency reviews found very few examples of HGT, and these cases involved artificially high sequence homology between the transgene and the potential recipient. Data comparing full genomic sequences of various prokaryotes and eukaryotes have identified putative HGT events, although the data are subject to interpretation. There is no reason to suppose that corn derived from Event MIR604 is likely to transfer genes by HGT at a higher rate than any other plant.

The likelihood of exposure to mCry3A via microorganisms expressing the mcry3A gene from MIR604 is minimal. Should a cry gene be transferred from a transgenic plant to a microorganism, there should be no significant hazards. B. thuringiensis is common in soil, and cry genes have been available for HGT to other species for long periods. No harmful effects appear to have resulted from the prolonged exposure. Soil microorganisms have not previously been exposed to the mcry3A gene contained in MIR604. The DNA sequence of mcry3A was substantially altered from native cry3A to optimize codon use for expression in plants, so the mcry3A gene likely has lower homology to potential recombination sites in soil microorganisms than the native cry3A gene does. Should mcry3A be integrated into a plasmid or chromosome of a bacterium, mCry3A protein is unlikely to be produced because the maize metallothionen promoter linked to mcry3A in MIR604 is unlikely to function in bacteria and codon use in mcry3A is optimized for expression in corn, not bacteria. Laboratory tests of the effects of mCry3A protein on a variety of non target organisms have revealed no adverse effects. In the unlikely event that mcry3A is stably integrated and expressed in a soil microorganism, no harmful effects are expected.

Weediness Corn has lost the ability to survive outside cultivation, and is unlikely to form self sustaining populations as a weed since a) it is easily controlled with herbicides, b) seed dispersal is limited, c) the seeds lack dormancy and are exposed to winter conditions, d) it requires disturbed ground to germinate, and e) it is not competitive with perennial vegetation. The lack of invasiveness of corn in non agricultural habitats makes it unlikely that mCry3A will spread from cultivated sites and persist as weedy populations of MIR604.

Environmental Exposure and Fate Ecologically significant exposure to mCry3A outside cultivation is unlikely to occur through contact with pollen, since mCry3A protein has not been detected in MIR604 hybrid pollen. Due to its rapid degradation in soil, mCry3A is not likely to spread from cultivation to surface or ground water. Exposure to mCry3A during cultivation would be limited to contact with MIR604 tissues, and possibly short term exposure to exuded proteins in soil. After harvest, mCry3A may remain in MIR604 plant tissue until the tissue degrades. The mCry3A is expected to degrade rapidly and not move offsite.

Aquatic organisms are not likely to be exposed to mCry3A since it is unlikely that mCry3A will enter watercourses via soil particle movement, pollen dispersal, or seed spillage. Other than humans or animals that eat corn grain, forage, or silage, the only organisms likely to be exposed to mCry3A from cultivation of MIR604 are pests and non target organisms that feed on corn tissue, predators and parisitoids of these animals, and soil organisms. Exposure of non target organisms feeding on the above ground parts of corn will be limited to the period of cultivation. 14 Soil organisms may be exposed to mCry3A during cultivation and afterward by material incorporated into the soil following harvest. Due to the rapid degradation of mCry3A in soil, the post harvest exposure of soil organisms to significant amounts of mCry3A would be limited to a few weeks. A second exposure of non target organisms could arise if MIR604 volunteers occur. This exposure would be much lower. 15 DATA EVALUATION RECORD Primary Reviewer: Eric B. Lewis, M. S. EPA Secondary Reviewer: Tessa Milofsky, M. S.

STUDY TYPE: Nonguideline MRID NO: 46265614 DP BARCODE: DP303605 TEST MATERIAL: MCRY3A 0102 STUDY NO: SSB 015004 SPONSOR: Syngenta Seeds, Inc., Research Triangle Park, NC TESTING FACILITY: Syngenta Biotechnology, Inc., Regulatory Science Laboratory, Research Triangle Park, NC 27709 2257 TITLE OF REPORT: Laboratory Soil Degradation of Modified Cry3A Protein ( MCRY3A 0102)

AUTHORS: Kramer, C. and R. Joseph STUDY COMPLETED: April 27, 2004 CONFIDENTIALITY CLAIMS: None GOOD LABORATORY PRACTICE: A signed GLP statement was provided. The study was GLP compliant.

STUDY SUMMARY: Degradation of MCRY3A 0102 ( microbe produced mCry3A protein) in silty clay loam soil was evaluated in a laboratory study, where treated soil samples were maintained under conditions that mimicked the field environment. MCRY3A 0102 activity in soil was evaluated with a Colorado potato beetle ( CPB) ( Leptinotarsa decemlineata) larval bioassay. The test protein was incorporated into the test soil at a nominal rate of 230 µ g microbe produced mCry3A/ g of dry soil. Soil samples were collected at days 0, 1, 3, 7, 12, and 30 and frozen until needed for CPB diet formulation. CPB larvae were maintained on each soil/ diet mixture for 72 hrs, after which mortality was determined. Larval mortality was 48 53% when fed diets containing soil from days 0, 1, 3, and 7; mortality declined to 9% when fed diet containing soil from day 30. Based on these results, a simple first order kinetic model determined that the DT50 for mCry3A in this silty clay loam soil is 7.6 days.

CLASSIFICATION: Supplemental 16 Test Material The test substance, MCRY3A 0102, E. coli produced mCry3A protein, Batch Number not provided, was supplied by the sponsor with a reported purity of 90.3% w/ w. No expiration date was reported. The test substance was stored at  20 ° C prior to use.

Test Methods The test soil was a silty clay loam collected from a corn growing region of Iowa. Characterization of the soil is provided in Appendix A of MRID 462656 14. The soil was passed through a 2 mm sieve and acclimated at 25 ± 1 ° C at a constant moisture level for 10 days prior to the test. One day prior to the test, 50 g of equivalent dry weight soil (~ 59 g) at 18.25% moisture level was added to 250 mL glass incubation flasks.

At test start, MCRY3A 0102 was prepared in deionized water at a concentration of 2.3 mg microbe produced mCry3A/ mL and applied in a volume of 5 mL to each of 24 flasks of soil for a dose corresponding to 230 µ g microbe produced mCry3A/ g of soil on a dry weight basis. One control flask and 6 biomass determination flasks were prepared using soil dosed with 5 mL of deionized water only. The flasks were capped, shaken, and weighed to determine moisture content. Flasks were maintained at 25 ± 1 ° C and moisture levels were adjusted throughout the test to 75 ± 12% of field moisture capacity at 1/ 3 bar. Samples were collected from the dosed flasks after 0, 1, 3, 7, 12, and 30 days of incubation and frozen prior to their use in a degradation bioassay using Colorado potato beetle ( CPB) ( Leptinotarsa decemlineata) larvae. Microbial activity of soil in the biomass determination flasks was measured on days 0 and 42 using a Micro Oxymax analyzer ( procedure described in Appendix A of MRID 462656 14).

For the bioassay, soil collected at each incubation time point was incorporated into a stock CPB diet at a concentration of 10% w/ w, and the resulting suspension was poured into Petri dishes. A negative control dosed with sterile water only was prepared in the same manner, and a positive control containing no soil was prepared by adding MCRY3A 0102 test solution to CPB diet to give a concentration of 23 µ g microbe produced mCry3A/ g of diet ( equivalent to that in the day 0 soil samples). Ten freshly hatched CPB larvae ( from eggs obtained from New Jersey Dept of Agriculture, Trenton) were added to each dish of diet, covered, and maintained under ambient laboratory conditions. The test material and negative control treatments were replicated 12 times ( 120 larvae total each) and the positive control plates were replicated 4 times ( 40 larvae total). Larval mortality was assessed at 72 hours.

Results Summary Results of the larval bioassay are given in Table 1. Mean CPB larvae mortality in MCRY3A 0102 treated soil was 48 54% during the first week, then declined rapidly to 9% on day 30. The loss rate of mCry3A activity was estimated by plotting the mean percent mortality against days of incubation and fitting simple first order kinetics to the data using ModelManager ( Cherwell Scientific Publishing, Oxford, UK). The DT50 value ( time for 50% of initial bioactivity to dissipate) for degradation of MCRY3A 0102 in this soil was estimated to be 7.6 days. Biomass determinations of soil at study start and end showed that microbial activity was maintained during the study. 17 TABLE 1. MCRY3A 0102 activity in treated soil as measured by Colorado potato beetle mortality (%)

Mean percent mortality MCRY3A 0102 Negative control Positive control Day 0 Day 1 Day 3 Day 7 Day 12 Day 30 18 53 53 54 48 51 11 9 Data from p. 15, MRID 46265614 Study Authors' Conclusions The study authors concluded that mCry3A was rapidly degraded in soil, with a first order DT50 of 7.6 days.