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

Compliance with the tolerances is to be 

determined by measuring only 

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

propenylacetamide). 

Commodity Parts per 

million 

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

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

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

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

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

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

Corn, sweet, kernel plus cob 

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

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

* * * * * 

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

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 217 

[Docket No. 100806326–1088–02] 

RIN 0648–AY99 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to Space Vehicle 

and Missile Launch Operations at 

Kodiak Launch Complex, AK 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS, upon application from 

the Alaska Aerospace Corporation 

(AAC), is issuing regulations to govern 

the unintentional taking of small 

numbers of marine mammals incidental 

to rocket launches from the Kodiak 

Launch Complex (KLC) on Kodiak 

Island, AK. Issuance of regulations is 

required by the Marine Mammal 

Protection Act (MMPA) when the 

Secretary of Commerce (Secretary), after 

notice and opportunity for comment, 

finds, as here, that such takes will have 

a negligible impact on the species and 

stocks of marine mammals and will not 

have an unmitigable adverse impact on 

their availability for subsistence uses. 

These regulations do not authorize the 

AAC’s rocket launch activities; such 

authorization is not within the 

jurisdiction of the Secretary. Rather, 

these regulations govern the issuance of 

Letters of Authorization (LOAs) for the 

unintentional and incidental take of 

marine mammals in connection with 

this activity and prescribe methods of 

taking and other means of effecting the 

least practicable adverse impact on 

marine mammal species and their 

habitat, and on the availability of the 

species for subsistence uses. In addition, 

NMFS incorporates reporting and 

monitoring requirements on these 

activities. 

DATES: Effective March 22, 2011 to 

March 22, 2016. 

ADDRESSES: A copy of the AAC’s 

application and other related documents 

may be obtained by writing to P. 

Michael Payne, Chief, Permits, 

Conservation and Education Division, 

Office of Protected Resources, National 

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

20910–3225, by telephoning the contact 

listed under FOR FURTHER INFORMATION

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

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

incidental.htm#applications. 

Documents cited in this final rule may 

also be viewed, by appointment, during 

regular business hours at the above 

address. 

FOR FURTHER INFORMATION CONTACT: 

Michelle Magliocca, Office of Protected 

Resources, NMFS, 301–713–2289, ext 

123. 

SUPPLEMENTARY INFORMATION: 

Background 

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

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

the Secretary of Commerce to allow, 

upon request, the incidental, but not 

intentional, taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region if certain findings 

are made and either regulations are 

issued or, if the taking is limited to 

harassment, a notice of a proposed 

authorization is provided to the public 

for review. 

Authorization for incidental takings 

shall be granted if NMFS finds that the 

taking will have a negligible impact on 

the identified species or stock(s), will 

not have an unmitigable adverse impact 

on the availability of the species or 

stock(s) for subsistence uses (where 

relevant), and if the permissible 

methods of taking and requirements 

pertaining to the mitigation, monitoring 

and reporting of such takings are set 

forth in the regulations. NMFS has 

defined ‘‘negligible impact’’ in 50 CFR 

216.103 as ‘‘ * * * an impact resulting 

from the specified activity that cannot 

be reasonably expected to, and is not 

reasonably likely to, adversely affect the 

species or stock through effects on 

annual rates of recruitment or survival.’’ 

Except with respect to certain 

activities not pertinent here, the MMPA 

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

‘‘harassment’’ as: 

Any act of pursuit, torment, or annoyance 

which (i) has the potential to injure a marine 

mammal or marine mammal stock in the wild 

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

to disturb a marine mammal or marine 

mammal stock in the wild by causing 

disruption of behavioral patterns, including, 

but not limited to, migration, breathing, 

nursing, breeding, feeding, or sheltering 

[Level B harassment]. 

Summary of Request 

On June 4, 2010, NMFS received a 

complete application for regulations 

from AAC for the taking of small 

numbers of marine mammals incidental 

to launching space launch vehicles, 

long-range ballistic target missiles, and 

other smaller missile systems at the 

KLC. A proposed rule was published on 

December 23, 2010 (75 FR 80773). 

NMFS received 12 comments on the 

proposed rule from eight private 

citizens, the Kodiak Chamber of 

Commerce, the Kodiak Island Borough 

Mayor, the City of Kodiak Mayor, and 

the Marine Mammal Commission 

(Commission). The majority of the 

comments supported the proposed rule. 

These regulations will allow NMFS to 

issue Letters of Authorization (LOAs) to 

the AAC over a 5-year period. A full 

description of the operations is 

contained in the AAC’s application 

which is available upon request (see 

ADDRESSES) or at: http:// 

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

incidental.htm#applications. 

The AAC conducts space vehicle and 

missile launches from the KLC, a 

commercial spaceport that supports 

civilian and Federal launch customers. 

The facility occupies 3,717 acres of 

State-owned lands on the Narrow Cape 

Peninsula on the eastern side of Kodiak 

Island, Alaska. The KLC primarily 

supports launches of small to medium 

space launch vehicles—which are those 

used to boost satellites to orbit—ranging 

in size from the small space-launch 

Castor 120 motor (used in the Athena, 

Minotaur IV, Minotaur V, and Taurus I 

systems) to the under-development 

medium-lift Taurus II. The KLC is also 

configured to support launch of the 

Minuteman I-derived Minotaur I Space 

Launch System, and to support the 

launch of long-range ballistic systems 

such as the Polaris derived A–3 STARS, 

the Minuteman-derived Minotaur II and 

III, and the C–4. Launch operations are 

authorized under license from the 

Federal Aviation Administration (FAA), 


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16312 Federal Register / Vol. 76, No. 56 / Wednesday, March 23, 2011 / Rules and Regulations 

Office of the Associate Administrator for 

Space Transportation, in accordance 

with the facility’s Environmental 

Assessment (EA), stipulations in the 

EA’s Finding of No Significant Impact, 

and in subsequent licenses. 

Description of the Specified Activity 

The AAC anticipates that the KLC can 

accommodate up to 45 launches, in 

total, for the effective period of the 

regulations. Annually, an average of 

nine but maximum of 12 launches may 

occur. Most of these vehicles are 

expected to be of the Minotaur I through 

V class, including civil versions of the 

Castor 120 known as the Athena and 

Taurus I, or smaller target vehicles. The 

AAC estimates that of the 45 estimated 

launches from KLC over the 5-year 

period in consideration, 32 will be of 

small space-launch and target vehicles 

of the Castor 120 or smaller size, 10 will 

be of THAAD or smaller size, and three 

will be of the medium-lift Taurus II. A 

summarized description of each class of 

space launch and smaller launch 

vehicles was published in the Federal 

Register (75 FR 80774, December 23, 

2010) and a full description can be 

found online (http:// 

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

incidental.htm#applications) within the 

AAC’s application. 

Launch Noise 

Launch operations are a major source 

of noise on Kodiak Island, as the 

operation of launch vehicle engines 

produce substantial sound pressures. In 

air, all pressures are referenced to 20 

micoPascals; therefore all dB levels in 

this notice are provided re: 20 MicroPa, 

unless otherwise noted. Generally, four 

types of noise occur during a launch: 

(1) Combustion noise; (2) jet noise from 

interaction of combustion exhaust gases 

with the atmosphere; (3) combustion 

noise proper; and (4) sonic booms. 

Sonic booms are not a concern for 

pinnipeds on Ugak Island, as sonic 

booms created by ascending rockets 

launched from KLC reach the Earth’s 

surface over deep ocean, well past the 

edge of the Outer Continental Shelf 

(OCS) (FAA 1996). Spent first-stage 

motors from space lift missions (i.e., 

those going to orbit) fall to Earth at least 

11, and possibly more than 300, miles 

down range (well past the edge of the 

OCS), depending on launch vehicle 

(U.S. FAA 1996). A complete 

description of launch noise measured 

from Ugak Island, including previously 

launched and recorded space vehicles, 

can be found in the proposed rule (75 

FR 80775, December 23, 2010). 

Another component of the AAC’s 

launches includes security overflights. 

In the days preceding the launch, these 

occur approximately 3 times per day 

based on the long-term average. Flights 

associated with the launch will not 

approach occupied pinniped haulouts 

on Ugak Island by closer than 0.25 mile 

(0.4 km), and will maintain a vertical 

distance of 1,000 ft (305 m) from the 

haulouts when within 0.5 miles (0.8 

km), unless indications of human 

presence or activity warrant closer 

inspection of the area to assure that 

national security interests are protected 

in accordance with law. Over the 

operational history of these flights, 

aircraft have been operated within the 

0.25-mile limit on two occasions; both 

involved direct overflight of the Steller 

sea lion haulout spit, which was 

unoccupied each time the incursions 

occurred. 

Description of Marine Mammals in the 

Area of the Specified Activity 

The AAC’s current MMPA regulations 

(71 FR 4297, January 26, 2006), which 

are set to expire February 28, 2011, 

require aerial surveys be conducted 

before and after each launch to monitor 

for presence and abundance of marine 

mammals within the designated 6-mile 

action area. In compliance with these 

conditions, the AAC has completed 

these surveys since 2006. Aerial survey 

data indicate that Steller sea lions, 

harbor seals, gray whales (Eschrichtius 

robustus), humpback whales (Megaptera 

novaeangliae), and sea otters (Enhydra 

lutris) occur within the action area. 

Although potentially present, cetaceans 

within the action area are not expected 

to be taken during the specified 

activities. Airborne noise is generally 

reflected at the sea surface outside of a 

26° cone extending downward from the 

ascending rocket (Richardson et al., 

1995); therefore, little sound energy 

passes into the sea across the air-water 

boundary. Submerged animals would 

have to be directly underneath the 

rocket to hear it, and given the 

hypersonic velocity of launch vehicles 

in the atmosphere, the duration of 

sounds reaching any cetacean would be 

discountable. In addition, all spent 

rocket motors will fall into the open 

ocean over deep water. Given the very 

short time a cetacean is at the surface, 

direct impact from spent motors can be 

discounted as can any noise related 

impacts. Based on these reasons, NMFS 

does not anticipate take of cetaceans 

incidental to the specified activity; 

hence, they will not be discussed 

further. Sea otters are managed by the 

U.S. Fish and Wildlife Service; therefore 

no take of sea otters is included in the 

proposed regulations. As such, this 

species is not discussed further in this 

final rule. 

Steller Sea Lions 

Steller sea lions are designated into 

two stocks by NMFS. Those west of 144° 

longitude, which includes the KLC area, 

are listed as endangered under the ESA. 

Historically, mature and sub-adult 

males have used a spit on the 

northwestern side of Ugak Island as a 

post-breeding haulout. This spit is 

located 3.5 miles from the launch pad 

complex (see figure 4 and 5 in the 

application). The historic occupancy 

period ranges from June to September 

(post breeding), with peak reported 

numbers in the hundreds (Sease 1997; 

ENRI 1995–1998). However, use has 

declined in recent times in keeping with 

general declines seen in the species as 

a whole. The spit is designated a longterm trend count site by NMFS and has 

been surveyed once yearly, with June as 

the target, since the 1990s. Counts since 

2000 have generally been zero (e.g., 

NMFS, 2009; Fritz and Stinchcomb, 

2005), which is in line with the counts 

from all other long-term trend count 

sites in the Kodiak Archipelago over the 

same time period. All of these other 

long-term trend sites are far removed 

from the 6-mile radius anticipated 

impact area up range from KLC (i.e., 

areas opposite to the flight path), in 

areas not exposed to launch noise. 

Hence, Steller sea lion abundance has 

declined throughout the region, not just 

the area affected by launches, and the 

losses are likely not a result of or 

connected with the launches or use of 

KLC. 

Data from AAC’s aerial surveys over 

the past four years also support low use 

of the haulout. Since 1999, five 

launches have occurred during the 

Steller sea lion season. The spit haulout 

has not been used by Steller sea lions 

during launch-monitoring surveys since 

1999 (ENRI, 2000, R&M, 2007a,b, 2008); 

however, during recent launch surveys 

one to several Stellar sea lions have 

been observed from time-to-time 

utilizing a supratidal rock on eastern 

Ugak Island (termed East Ugak Rock) as 

a haulout. Tables 2 and 4 in the 

application provide a breakdown of 

survey results per day. In summary, two 

to eight sea lions were observed per day 

on East Ugak Rock during surveys for 

the FTG–02 launch (R&M, 2006b), and 

one to five (per day) were observed 

during the FTX–03 launch (R&M, 2008). 

In addition, during one aerial survey 

that was completed outside the June to 

September timeframe (during the FTG– 

05 campaign in December 2008), a 

single Stellar sea lion was observed on 

East Ugak Rock. East Ugak Rock is 


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Federal Register / Vol. 76, No. 56 / Wednesday, March 23, 2011 / Rules and Regulations 16313 

located farther east and to the south of 

the KLC than Ugak Island; therefore, one 

can assume launch generated sound 

levels here are less than those at Ugak 

Island. 

Harbor Seals 

Harbor seals are the most abundant 

marine mammal species found within 

the action area. Harbor seals are not 

listed as threatened or endangered 

under the ESA or as depleted under the 

MMPA. Based on the AAC’s aerial 

survey counts from launch monitoring 

reports conducted since January 2006, 

approximately 97% of all observed 

harbor seals are found on the eastern 

shore of Ugak Island, approximately 5 

miles from the launch pad complex. The 

eastern shore is backed by high steep 

cliffs that reach up to 1,000 feet above 

sea level. These cliffs form a visual and 

acoustic barrier to rocket operations, 

and alleviate effects on the species. This 

conclusion is based on review of sound 

pressure recordings made at the haulout 

spit found on the island’s northwestern 

shore, which showed surf and windgenerated sound pressures at sea level 

were generally in the >70 dBA (SEL) 

range on the clearest days (Cuccarese et 

al., 1999, 2000). During inclement 

weather periods ambient sound 

pressures at sea level can exceed 100 

dBA (SEL). The island’s eastern shore is 

windward to prevailing winds and surf 

noise is routinely high. Harbor seals 

located on Ugak Island’s northern shore 

are not as protected from launch noise, 

and therefore may be harassed 

incidental to the AAC’s specified 

activity. However, harbor seal 

abundance on the northern shores is 

limited due to the lack of suitable 

habitat (i.e., few beaches). During 30 

aerial surveys conducted by the AAC 

during six rocket launches from 2006 to 

2008, no seals were observed on North 

Ugak Island on 19 occasions. During 

surveys when seals were present, 

average abundance was 25 with a single 

day count of 125 individuals. 

Because physical access to Ugak 

Island harbor seal haulouts is difficult 

and dangerous, the only abundance and 

behavior data of these seals have been 

derived from aerial surveys conducted 

by the AAC. Harbor seals generally 

breed and molt where they haul out, so 

it is assumed that both of these activities 

take place on Ugak Island, and young 

seals have routinely been seen there 

during launch-related aerial surveys. 

Pupping in Alaska takes place generally 

in the May to June time frame; molting 

occurs generally from June to October. 

Both periods contain peaks in haulout 

attendance. Total counts on Ugak Island 

have increased steadily since the 1990s 

from several hundred (ENRI 1995–1998) 

up to a peak of about 1,500 today (R&M 

2007a, 2007b, 2008, 2009). 

Potential Effects on Marine Mammals 

As discussed above, launch 

operations are a major source of noise 

on Kodiak Island and can reach Steller 

sea lion and harbor seal haulouts and 

rookeries on Ugak Island. Marine 

mammals produce sounds in various 

contexts and use sound for various 

biological functions including, but not 

limited to: (1) Social interactions; (2) 

foraging; (3) orientation; and (4) 

predator detection. Interference with 

producing or receiving these sounds 

may result in adverse impacts. Audible 

distance, or received levels (RLs), will 

depend on the nature of the sound 

source, ambient noise conditions, and 

the sensitivity of the receptor to the 

sound (Richardson et al., 1995). Type 

and significance of marine mammal 

reactions to noise are likely to be 

dependent on a variety of factors 

including, but not limited to, the 

behavioral state (e.g., resting, 

socializing, etc.) of the animal at the 

time it receives the stimulus, frequency 

of the sound, distance from the source, 

and the level of the sound relative to 

ambient conditions (Southall et al., 

2007). In general, marine mammal 

impacts from loud noise can be 

characterized as auditory and nonauditory. 

Potential Auditory Impacts 

Auditory impacts consist of injurious 

(e.g., ruptured ear drums, permanent 

threshold shift [PTS]) or non-injurious 

(e.g., temporary threshold shift [TTS]) 

effects. There are no empirical data for 

onset of PTS in any marine mammal; 

therefore, PTS-onset must be estimated 

from TTS-onset measurements and from 

the rate of TTS growth with increasing 

exposure levels above the level eliciting 

TTS-onset. PTS is presumed to be likely 

if the hearing threshold is reduced by ≥ 

40 dB (i.e., 40 dB of TTS). 

Given the distance from the pad area 

to Ugak Island and the measured sound 

levels from the Castor 120 (101.4 dB), 

for the loudest space vehicle used at the 

KLC, pinniped auditory injury is not 

anticipated. Further explanation was 

provided in the proposed rule Federal 

Register notice (75 FR 80777, December 

23, 2010). Regarding TTS, although 

hearing sensitivity was not apparently 

affected during the ABR testing, that is 

not to say that TTS did not occur, as 

seals were tested approximately 2 hours 

after launch, not immediately following 

the launch. However, if TTS did occur, 

hearing was fully recovered within 2 

hours. In conclusion, NMFS has 

preliminarily determined PTS would 

not occur in pinnipeds on Ugak Island 

and TTS, although unlikely, may occur. 

However, if pinnipeds on Ugak Island 

experience TTS, full-hearing recovery is 

expected shortly after exposure. 

Potential Behavioral Impacts 

To comply with their current 

regulations, the AAC attempted to 

collect video footage of pinnipeds 

during launches; however, weather, 

technical, and accessibility issues 

prevented video coverage from being 

obtained. Therefore, no immediate 

responses of pinnipeds to the AAC’s 

launch noise have been documented. 

However, as discussed above, VAFB 

researchers have been investigating the 

short- and long-term effects of space 

vehicle launch noise and sonic booms 

on pinnipeds. As described in NMFS’ 

2009 EA, the percentage of seals that left 

the haulout increased as noise level 

increased up to approximately 100 

decibels (dB) A-weighted SEL, after 

which almost all seals left, although 

recent data have shown that an 

increasing percentage of seals may 

remain on shore. Using time-lapse video 

photography, VAFB discovered that 

during four launch events, the seals that 

reacted but remained on the haulout 

were all adults. VAFB theorized that 

adult seals may have habituated to 

launch stimuli more so than lessexperienced younger seals; hence the 

less-severe reactions. Further 

information on this research can be 

found within the proposed rule (75 FR 

80777, December 23, 2010). 

The behavioral data record for Steller 

sea lions is small throughout the North 

Pacific range and typically is focused on 

reproductive behaviors. In general, 

studies have shown that responses of 

pinnipeds on beaches to acoustic 

disturbance arising from rocket and 

target missile launches are highly 

variable. This variability may be due to 

many factors, including species, age 

class, and time of year. 

The infrequent (approximately nine 

times per year) and brief (no more than 

1 minute as heard from Ugak Island) 

nature of these sounds that would result 

from a rocket launch is not expected to 

alter the population dynamics of Steller 

sea lions or harbor seals which utilize 

Ugak Island as a haulout site. If 

launches occur during the harbor seal 

pupping period and harbor seals have 

also chosen to pup on the north beach, 

it is possible that harbor seal pups could 

be injured or killed as a result of the 

adults flushing in response to the rocket 

noise, or the mother/pup bond could be 

permanently broken. However, NMFS 

does not expect harbor seal pup injury 


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and mortality to occur to a great degree, 

due to previous research studies that are 

summarized in the proposed rule (75 FR 

80778, December 23, 2010). 

Finally, the KLC conducts 

approximately three security overflights 

per day in the days preceding a launch. 

Several studies of both harbor seals and 

Steller sea lions cited in Richardson et 

al. (2005) suggest that these animals 

respond significantly less to overflights 

of both planes and helicopters that 

occur above 305 m (0.2 mi). NMFS does 

not anticipate harassment from 

overflights to occur as they generally 

remain at least 0.25 miles from a 

haulout; however, if the pilot or crew 

notice overt responses from pinnipeds 

(e.g., flushing) to aircraft, this response 

will be noted and reported to NMFS in 

the flight report. Observations made of 

any animals displaced by a security 

overflight are reported to the 

environmental monitoring team for 

inclusion in their report of monitoring 

results. 

Anticipated Effects on Habitat 

Solid-fuel rocket boosters will fall 

into the ocean away from any known or 

potential haulouts. All sonic booms that 

reach the earth’s surface are expected to 

occur over open ocean, beyond the OCS. 

Airborne launch sounds will mostly 

reflect or refract from the water surface 

and, except for sounds within a cone of 

approximately 26 degrees directly below 

the launch vehicle, will not penetrate 

into the water column. The sounds that 

do penetrate will not persist in the 

water for more than a few seconds. 

Overall, rocket launch activities from 

the KLC are not expected to cause any 

impacts to habitats used by marine 

mammals, including pinniped haulouts, 

or to their food sources. 

Comments and Responses 

On December 23, 2010 (75 FR 80773), 

NMFS published a notice of proposed 

rulemaking on the AAC’s request to take 

marine mammals incidental to rocket 

launches at KLC and requested 

comments, information, and suggestions 

concerning the request. During the 30- 

day public comment period, NMFS 

received comments from eight private 

citizens, the Kodiak Chamber of 

Commerce, the Kodiak Island Borough 

Mayor, the City of Kodiak Mayor, and 

the Commission. Six of the private 

citizens—four of them residents of 

Kodiak, Alaska—and all of the city/ 

borough officials wrote in support of the 

proposed rule. One private citizen 

expressed general opposition to 

anything related to the military. The 

remaining comments and NMFS’ 

responses are detailed below. 

Comment 1: The AAC should be 

required to obtain video footage of the 

harbor seal reactions to launches from 

the KLC. Furthermore, NMFS does not 

provide specific indications of what will 

be reviewed or potentially modified 

should the distribution, size, or 

productivity of either pinniped 

population be affected from the 

launches. 

Response: As explained in the 

proposed rule, the AAC will be 

purchasing and placing one remote livestreaming video system to overlook a 

harbor seal haulout on the eastern side 

of Ugak Island. The purpose is to 

monitor for any behavioral reactions of 

harbor seals to the launches. The 

language about reviewing monitoring 

data and potentially modifying 

mitigation and monitoring requirements 

is put in place as an adaptive 

management measure. Data from aerial 

surveys and camera footage will be 

reviewed for unusual behavior, injury, 

or death. Any modifications to the 

mitigation or monitoring requirements 

will be determined on a case-by-case 

basis. 

Comment 2: The Commission 

recommends that NMFS include in its 

final rule all of the applicant’s proposed 

mitigation and monitoring measures, 

including those described in the 

preamble of the proposed rule. 

Response: NMFS has included all of 

the required mitigation and monitoring 

measures in the final rule, including 

those described in the preamble. 

Comment 3: The Commission 

recommends that NMFS require the 

AAC to use a remote video-camera 

system to monitor harbor seals on the 

eastern side of Ugak Island during at 

least five launches. If the cameras detect 

any disturbance, then the Commission 

recommends that the applicant and 

NMFS consult to determine what 

monitoring adjustments are needed and, 

if the authorized harbor seal takes are 

exceeded due to disturbance on the 

eastern side of the island, the applicant 

should consult with NMFS to determine 

if amendments to the regulations or 

letters of authorization are needed. 

Response: The use of a remote videocamera system to monitor harbor seals 

on the eastern side of Ugak Island 

during at least five launches is a 

required monitoring measure for the 

AAC under this rulemaking. If any 

disturbance to the animals’ behavior is 

detected, the regulations require that the 

AAC consult with NMFS to determine 

if any mitigation or monitoring 

modifications are necessary. 

Furthermore, if the authorized harbor 

seal takes are exceeded, the regulations 

require that the AAC consult with 

NMFS to determine if amendments to 

the regulations or letters of 

authorization are needed. 

Comment 4: The Commission 

recommends that NMFS require 

appropriate monitoring of Steller sea 

lions before, during, and after launches 

to determine if the launches are 

disturbing the sea lions’ use of Ugak 

Island and possibly discouraging more 

sea lions from hauling out there. 

Response: After the first five 

launches, cameras may be repositioned 

to monitor Steller sea lions on Ugak 

Island. Monitoring of Stellers under the 

previous rule (2006 to 2011) showed 

one of the following: (1) No sea lions 

present during a launch; (2) all sea lions 

present became alert but did not move 

immediately following a launch; or (3) 

some sea lions present were flushed into 

the water temporarily. Attempts will be 

made by the AAC to capture further sea 

lion behavioral responses at the time of 

launch. 

Comment 5: The Commission 

recommends that NMFS advise the 

applicant of the need to consult with the 

Fish and Wildlife Service regarding the 

potential incidental take of sea otters. 

Response: The AAC is aware of the 

Fish and Wildlife Service’s jurisdiction 

over the incidental take of sea otters. 

Mitigation 

In order to issue an Incidental Take 

Authorization (ITA) under section 

101(a)(5)(A) of the MMPA, NMFS must 

set forth the permissible methods of 

taking pursuant to such activity, and 

other means of effecting the least 

practicable adverse impact on such 

species or stock and its habitat, paying 

particular attention to rookeries, mating 

grounds, and areas of similar 

significance, and on the availability of 

such species or stock for taking for 

certain subsistence uses. 

To minimize impacts on pinnipeds at 

haulout sites, NMFS is requiring the 

following mitigation measures: (1) 

Security overflights associated with the 

launch will not approach occupied 

pinniped haulouts on Ugak Island by 

closer than 0.25 mile (0.4 km), and will 

maintain a vertical distance of 1,000 ft 

(305 m) from the haulouts when within 

0.5 miles (0.8 km), unless indications of 

human presence or activity warrant 

closer inspection of the area to assure 

that national security interests are 

protected in accordance with law; (2) 

the AAC will avoid launches during the 

harbor seal pupping season (May 15 to 

June 30), unless constrained by factors 

including, but not limited to, human 

safety and national security; and (3) if 

launch monitoring detects pinniped 

injury or death, or if long-term trend 


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counts from quarterly aerial surveys 

indicate that the distribution, size, or 

productivity of the potentially affected 

pinniped populations has been affected 

due to the specified activity, the launch 

procedures and the monitoring methods 

will be reviewed, in cooperation with 

NMFS, and, if necessary, appropriate 

changes may be made through 

modifications to a given LOA, prior to 

conducting the next launch of the same 

vehicle under that LOA. 

NMFS carefully evaluated the 

applicant’s proposed mitigation 

measures and considered a range of 

other measures in the context of 

ensuring that NMFS prescribes the 

means of effecting the least practicable 

adverse impact on the affected marine 

mammal species and stocks and their 

habitat. Our evaluation of potential 

measures included consideration of the 

following factors in relation to one 

another: (1) The manner and the degree 

to which the successful implementation 

of the measure is expected to minimize 

adverse impacts to marine mammals; (2) 

the proven or likely efficacy of the 

specific measure to minimize adverse 

impacts as planned; and (3) the 

practicability of the measure for 

applicant implementation, including 

consideration of personnel safety, and 

practicality of implementation. The 

required mitigation measures take 

scientific studies (Richardson et al., 

2005) of overflight effects on pinnipeds 

into consideration. By avoiding 

launches during the harbor seal pupping 

season, the AAC will avoid all Level A 

harassment and mortality, which is only 

anticipated to occur as a result of pups 

being trampled or separated from their 

mothers. Lastly, the adaptive nature of 

the proposed mitigation measures allow 

for adjustments to be made if launch 

monitoring or quarterly aerial surveys 

indicate that impacts to the distribution, 

size, or productivity of pinniped 

populations are occurring. 

Based on our evaluation of the 

applicant’s proposed measures, as well 

as other measures considered by NMFS 

or recommended by the public during 

the 30-day comment period, NMFS has 

determined that the aforementioned 

mitigation measures provide the means 

of effecting the least practicable adverse 

impacts on marine mammals species or 

stocks and their habitat, paying 

particular attention to rookeries, mating 

grounds, and areas of similar 

significance. 

Monitoring and Reporting 

In order to issue an ITA for an 

activity, section 101(a)(5)(A) of the 

MMPA states that NMFS must set forth 

‘‘requirements pertaining to the 

monitoring and reporting of such 

taking.’’ The MMPA implementing 

regulations at 50 CFR 216.104(a)(13) 

indicate that requests for ITAs must 

include the suggested means of 

accomplishing the necessary monitoring 

and reporting that will result in 

increased knowledge of the species and 

of the level of taking or impacts on 

populations of marine mammals that are 

expected to be present. 

The AAC plans to purchase and place 

one remote live-streaming video system 

overlooking one of the harbor seal 

haulouts on the eastern side of Ugak 

Island for the first five launches 

conducted under these regulations to 

verify the assumption that seals on the 

eastern side of the island are not 

affected by launches. Although animals 

on the northern shore are more likely to 

be affected by the action, this area is 

predominantly a rocky reef tidal area 

where seals haul out opportunistically, 

either singly or in small numbers on 

exposed rocks. There is more 

confidence seals will be visible and able 

to be monitored on the eastern side of 

the island. After five launches, AAC and 

NMFS will reassess the efficiency of the 

camera system and possibly move it to 

another location (e.g., the traditional 

Steller sea lion haulout). 

The selected haulout will be viewed 

either in real time or via ‘‘tape’’ delay for 

six days using the following schedule 

where day length permits. The six-day 

schedule will be roughly centered on 

the day of launch, with launch day 

being day three of the monitoring 

schedule. The video stream will be 

viewed by professional biologists for 4 

hours each day with monitoring 

centered on the time of launch on 

launch day, and on low tide on the 

other days. Detailed information on 

when monitoring will occur around a 

launch is provided in the AAC’s 

application. Data collected from the live 

stream video will include number of 

animals observed, by age and sex class 

when possible, behavior (e.g., resting), 

animal response to launches, and reoccupation time if disturbed. 

The video system was developed, 

tested, and first put into service in 

Alaska, and has proven itself over many 

years of operation both in Alaska and 

around the world. The video system is 

all weather proven and autonomous, 

drawing energy from a combination of 

wind and solar generators. It features a 

camera that includes a lens that can be 

focused (zoom and pan) on command 

and provides live-streaming video that 

can be made available through Internet 

access to interested researchers in real 

time. 

The AAC will also carry out quarterly 

aerial surveys to determine long-term 

trend counts of Steller sea lions and 

harbor seals within the action area. 

Surveys will be flown midday and 

centered around low tide for optimal 

seal counts. The aircraft will survey 

from a distance appropriate to count 

seals or sea lions, but far enough away 

to minimize harassment. Data collected 

will include number of seals or sea lions 

per haulout, by age class when possible, 

and if any disturbance behavior is noted 

from aircraft presence. 

In addition to visual monitoring, 

whenever a new class of rocket is flown 

from the KLC, a real time sound 

pressure record will be obtained for 

documentation purposes and correlated 

with the behavioral response record. 

Two sound pressure monitors will be 

used: one will be placed at the 

established sound pressure recording 

location known as Narrow Cape and the 

other as close as practical to the remote 

video system. 

Estimated Take by Incidental 

Harassment 

Except with respect to certain 

activities not pertinent here, the MMPA 

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

‘‘harassment’’ as: 

any act of pursuit, torment, or annoyance 

which (i) has the potential to injure a marine 

mammal or marine mammal stock in the wild 

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

to disturb a marine mammal or marine 

mammal stock in the wild by causing 

disruption of behavioral patterns, including, 

but not limited to, migration, breathing, 

nursing, breeding, feeding, or sheltering 

[Level B harassment]. 

As described above, Steller sea lions 

hauled out on Ugak Island may become 

alert or flush into the water in response 

to launch noise. Sound exposure levels 

from the loudest launch may reach 

approximately 101.4 dBA at the 

traditional Steller sea lion haulout. 

Based on this recorded level and the fact 

that audible launch noise will be very 

short in duration, sea lions are not 

expected to incur PTS, and the chance 

of TTS is unlikely. No injury or 

mortality of Stellar sea lions is 

anticipated, nor is any authorized. 

Therefore, NMFS authorizes Steller sea 

lion take, by Level B harassment only, 

incidental to launches from KLC. 

Harbor seals of all age classes hauled 

out on the northern side of Ugak Island 

will likely react in a similar manner as 

Steller sea lions (and may become alert 

or flush into the water) to launches from 

KLC. Therefore, harbor seals may be 

taken by Level B harassment incidental 

to rocket launch noise. However, during 

the pupping season (May 15 to June 30), 


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pups may also be injured, killed, or 

separated from their mother during a 

flushing event. Therefore, NMFS 

authorizes Level A harassment and 

mortality of harbor seal pups, should 

launches during the harbor seal pupping 

season be unavoidable. 

As discussed above, security 

overflights associated with a launch will 

not closely approach or circle any sea 

lion or seal haulout site. Therefore, 

incidental take from this activity is not 

anticipated. Should the pilot or crew on 

the plane observe pinnipeds reacting to 

their presence, the plane will increase 

altitude and note the number of animals 

reacting to the plane. This data will be 

included in the AAC’s final marine 

mammal report. 

The AAC estimates that up to 45 

launches may occur from the KLC over 

the course of the 5-year period covered 

by the proposed rulemaking. Annually, 

the AAC estimates an average of nine 

launches will occur. Most of these 

vehicles are expected to be of the 

Minotaur I through V class, including 

civil versions of the Castor 120 known 

as the Athena and Taurus I or smaller 

target vehicles. The AAC estimates that 

no more than one launch will occur 

over a 4-week period, and it is likely the 

frequency of launches will be less than 

this estimate. 

Based on aerial survey data, the AAC 

estimates a maximum of ten Steller sea 

lions could be present during launches 

occurring during the Steller sea lion 

season (the maximum number of 

animals sighted during a survey of this 

season has been eight). Any sea lions 

present during the launches will be 

adult or juvenile males; therefore, no 

reproductive processes or pupping will 

be affected by the specified activities. 

Assuming that all nine launches (the 

average number of launches predicted 

by the AAC) occur during the Steller sea 

lion season, that all nine launches 

involve the Castor 120 (the loudest 

vehicle expected to be flown from KLC 

over the period to be covered by the 

proposed regulations), and that there is 

no habituation to rocket motor effects 

with experience, then up to 90 takes by 

harassment could occur per year (ten 

animals/launch × nine launches). 

However, it is more reasonable to 

assume that a maximum of four 

launches per year could occur during 

the 2-month Steller sea lion season, and 

that no more than eight Stellers would 

be present at any given time (the 

maximum number recorded). Therefore, 

NMFS authorizes the take, by Level B 

harassment, of 32 Steller sea lions per 

year (eight animals × four launches). 

The total number of harbor seals 

present on Ugak Island ranges up to 

about 1,500, most of which are found on 

the island’s eastern shore where they are 

sheltered from launch effects by the 

1,000-foot tall cliffs that stand between 

their haulouts and the KLC. Relatively 

few harbor seals use haulouts on the 

northern side of the island across from 

the KLC due to the lack of suitable 

beaches. No seals were observed on 

northern haulouts, which consist 

primarily of isolated rocks, during 19 of 

30 marine mammal surveys flown by 

the AAC from 2006 to 2008. When 

present, the majority of counts on 

northern haulouts showed fewer than 25 

individuals; however, a one-time high 

count of about 125 animals on these 

rocks has been made. Using the 

conservative and rare high number of 

125 as being a representative figure, the 

AAC estimates that up to 125 

individuals might be taken per launch 

operation. Therefore, NMFS authorizes 

1,125 harbor seal (125 seals/launch × 

nine launches/year) takes during launch 

operations. 

The actual number of pups taken by 

Level A harassment or mortality is 

difficult to quantify, as age class was not 

identified during the AAC’s previous 

monitoring efforts (age class distinction 

will occur under the current monitoring 

and reporting requirements). Given that 

seals do not use the northern haulouts 

in large numbers (as compared to the 

protected eastern haulouts), the number 

of pups on the area of the island 

exposed to launch noise is likely low. 

Actual numbers will likely be smaller 

given the low and variable use of the 

area by harbor seals. 

To better determine the potential 

number of pups on Ugak Island during 

launches, NMFS consulted with Ms. 

Kate Wynne, a marine mammal 

specialist with the Alaska Sea Grant 

Marine Advisory Program, who has 

previously flown aerial surveys within 

the action area. Her data, from the early 

1990s, indicates that pup counts on the 

northern side of Ugak Island averaged 

approximately 17. Although this data is 

not recent, it is the best available. NMFS 

does not anticipate that all pups on a 

haulout would be injured or killed 

during a launch and, in fact, many may 

not be taken by Level A harassment or 

mortality. However, in the unlikely 

event injury or mortality occurs, NMFS 

authorizes 17 harbor seal pup takes by 

Level A harassment or mortality, 

annually, incidental to AAC’s activities. 

Previous Activities and Monitoring 

As previously discussed, under AAC’s 

current regulations (valid February 27, 

2006 through February 28, 2011) and 

annual LOAs, AAC has been conducting 

marine mammal monitoring within the 

action area before and after launch 

events to satisfy the monitoring 

requirements set forth in MMPA 

authorizations. The objective of 

monitoring Steller sea lions and Pacific 

harbor seals is to detect any indications 

of pinniped disturbance, injury, or 

mortality resulting from KLC rocket 

launches at the Ugak Island haulout site. 

Monitoring requirements included: (1) 

Conducting fixed-wing aerial surveys at 

least one day prior to, immediately after, 

and three days following any launches 

taking place from June 15 through 

September 30, weather permitting; (2) 

installing a remote custom-designed, 

closed-circuit, weatherproof, time-lapse 

video camera system at the base of the 

traditional Steller sea lion haulout 

before any launch occurring from June 

15 through September 30; and (3) 

making an attempt to place a video 

camera with zoom lens on the accessible 

western end of the north-facing shore to 

record harbor seal behavior on the 

middle or eastern end of the shore, or 

on the rocks offshore (recall that the 

eastern side of Ugak Island—where the 

majority of seals are—is completely 

inaccessible to pedestrian or boat traffic 

due to the high cliffs and violent surf). 

The regulations also contained noise 

monitoring requirements; these data are 

discussed in the Description of the 

Specified Activity section above. The 

AAC complied with the noise 

monitoring conditions contained within 

the regulations and annual LOAs. 

Further information on the AAC’s 

previous activities and monitoring 

results can be found within the 

proposed rule (75 FR 80780, December 

23, 2010). 

NMFS has shifted its focus from 

direct Steller sea lion to harbor seal 

monitoring under these regulations. The 

AAC will monitor harbor seal reactions 

to rocket launches during the launch 

itself via a type of camera system 

currently used by the Alaska Sea Life 

Center to monitor haulouts and 

rookeries. The camera will be placed at 

a harbor seal pupping location on Ugak 

Island to better assess the likelihood 

that harbor seal pups may be 

abandoned, injured, or killed as a direct 

result of a rocket launch disturbance. 

The camera system will be installed and 

operating if the AAC conducts a launch 

during the harbor seal pupping season. 

Unlike the previous system, this camera 

system does not need to be retrieved to 

acquire data and battery power is not 

problematic. Therefore, the AAC can 

place it at a harbor seal haulout during 

good weather no matter the number of 

days before a launch and does not have 

to be concerned with retrieving it. These 

factors will likely eliminate the previous 


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issues with video monitoring designed 

to detect pinniped reactions at the time 

of the launch. In addition, the camera 

system will have a zoom lens for better 

viewing quality. 

Negligible Impact and Small Numbers 

Analysis and Determination 

NMFS has defined ‘‘negligible impact’’ 

in 50 CFR 216.103 as ‘‘* * * an impact 

resulting from the specified activity that 

cannot be reasonably expected to, and is 

not reasonably likely to, adversely affect 

the species or stock through effects on 

annual rates of recruitment or survival.’’ 

In making a negligible impact 

determination, NMFS considers (and 

should explicitly address whenever 

possible) the following: (1) Number of 

anticipated mortalities; (2) number and 

nature of anticipated injuries; (3) 

number, nature, intensity, and duration 

of Level B harassment; (4) is the nature 

of the anticipated takes such that we 

would expect it to actually impact rates 

of recruitment or survival; (5) context in 

which the takes occur; and (6) species 

or stock status. 

In the past few years, the AAC has 

conducted no more than two launches 

on an annual basis. Regardless, NMFS 

has analyzed the specified activity to 

include disturbance events of up to nine 

launches per year as they anticipate the 

capability to carry out more efficient 

mission turn-around time over the 

duration of the final regulations. 

Mortalities and injuries are only 

authorized for harbor seal pups, and 

these are not expected due to small and 

variable harbor seal populations using 

the northern haulout sites, as well as the 

nature of pups and the early bonds 

formed between pups and mothers. 

Level B harassment of Steller sea lions 

is possible due to rocket launch noise, 

but is considered unlikely based on 

projected sound levels and the short 

duration of the noise; therefore, rates of 

sea lion recruitment or survival are not 

expected to be impacted. Rates of harbor 

seal recruitment or survival are also not 

expected to be impacted due to the 

limited number of mortalities or injuries 

to harbor seal pups (less than one 

percent of population). Due to the fact 

that no sonic booms are audible from 

Ugak Island, NMFS does not anticipate 

the potential for PTS to occur and TTS 

is unlikely, but possible. These 

assumptions are justified from ABR data 

collected at and around VAFB from 

similar launch activities. Further, based 

on aerial survey data, the harbor seal 

population on this island is increasing. 

Given that harbor seals are considered a 

species that is easily disturbed, their 

resilience to launch effects suggest any 

impacts from launches are short-term 

and negligible. The amount of take the 

AAC has requested, and NMFS 

authorizes, is considered small (less 

than one percent of Stellers and less 

than three percent of harbor seals) 

relative to the estimated stock 

populations of 41,197 Steller sea lions 

in the Western U.S. and 44,453 harbor 

seals in the Gulf of Alaska. 

Mitigation measures to reduce noise 

from launches once in the air are 

virtually impossible; however, the noise 

generated on the launch pad during 

ignition moves through a deep trench 

(called a flame trench or flame bucket) 

that diverts the noise/exhaust toward 

the northwest (away from Ugak Island). 

The primary method of minimizing 

impacts to pinnipeds from launch noise 

is to minimize the number of launches 

when possible during sensitive times. 

In addition, improved monitoring will 

better enable the AAC and NMFS to 

determine if impacts from rocket 

launches are having short-term and 

long-term impacts on the present day 

pinniped populations on Ugak Island. 

The camera system will be able to detect 

immediate impacts from launch 

exposure, including the number of 

pinnipeds flushing at the haulout site, 

while quarterly aerial surveys will aid 

in determining long-term trends of 

pinniped abundance. NMFS 

conservatively anticipates a small 

number of pups may be injured or killed 

during a launch. However, there is no 

empirical data to prove or disprove this 

as no video monitoring of seals during 

the launch has been successful (the one 

time a video system was placed near the 

haulout, no seals were observed). As 

discussed previously, the population of 

harbor seals on Ugak Island has 

increased steadily from several hundred 

in the 1990s (ENRI 1995–1998) to a peak 

of about 1,500 today (R&M 2007a, 

2007b, 2008, 2009). Therefore, NMFS 

does not believe there will be any longterm impact on the health of the 

population if pup mortality occurs from 

launches. The required monitoring 

measures contained within this notice 

are specifically designed to, among 

other things, determine if pup injury or 

mortality is occurring (i.e., from 

flushing, separation of mothers and 

pups, etc.) due to rocket launches from 

the AAC. 

Based on the analysis contained 

herein of the likely effects of the 

specified activity on marine mammals 

and their habitat, and taking into 

consideration the implementation of the 

mitigation and monitoring measures, 

NMFS finds that space vehicle and 

missile launches at the KLC will result 

in the incidental take of small numbers 

of marine mammals, but that the total 

taking will have a negligible impact on 

the affected species or stocks. 

Impact on Availability of Affected 

Species for Taking for Subsistence Uses 

There are no relevant subsistence uses 

of marine mammals implicated by this 

action. Therefore, NMFS has 

determined that the total taking of 

affected species or stocks will not have 

an unmitigable adverse impact on the 

availability of such species or stocks for 

taking for subsistence uses. 

Endangered Species Act (ESA) 

The Steller sea lion is the only marine 

mammal species under NMFS’ 

jurisdiction that is listed as endangered 

under the ESA with confirmed or 

possible occurrence in the action area. 

In the 2003 Biological Opinion, NMFS 

determined that the proposed actions 

would not result in jeopardy to the 

affected species or result in adverse 

modification of critical habitat. In 2005, 

the AAC, on behalf of the FAA, 

consulted with NMFS, under Section 7 

of the ESA, on the impacts of space 

vehicle and rocket launches on Steller 

sea lions. NMFS consulted internally 

under the ESA on its proposed issuance 

of the AAC’s 2006 MMPA regulations 

and subsequent LOAs. NMFS also 

consulted internally on the issuance of 

the final regulations (effective from 

March 2011, through February 2016) for 

this activity under section 101(a)(5)(A) 

of the MMPA. In a Biological Opinion 

(BiOp), NMFS Alaska Region concluded 

that the AAC’s activities at the KLC and 

NMFS’ issuance of these regulations are 

not likely to jeopardize the continued 

existence of Steller sea lions or destroy 

or adversely modify any designated 

critical habitat. 

NMFS Alaska Region will also issue 

BiOps and associated incidental take 

statements (ITSs) to NMFS’ Permits, 

Conservation, and Recreation Division 

to exempt the take (under the ESA) that 

NMFS authorizes in the LOAs under the 

MMPA. Because of the difference 

between the statutes, it is possible that 

ESA analysis of the applicant’s action 

could produce a take estimate that is 

different than the takes requested by the 

applicant (and analyzed for 

authorization by NMFS under the 

MMPA process), despite the fact that the 

same proposed action (i.e., number and 

type of launches) was being analyzed 

under each statute. When this occurs, 

NMFS staff coordinates to ensure that 

the most conservative (lowest) number 

of takes is authorized. For the AAC’s 

activities at the KLC, coordination with 

the NMFS Alaska Region indicates that 

they will likely allow for the same 


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amount of take of Steller sea lions that 

was requested by the applicant. 

The ITS(s) issued for each LOA will 

contain implementing terms and 

conditions to minimize the effect of the 

marine mammal take authorized 

through the 2011 LOA (and subsequent 

LOAs in 2012, 2013, 2014, and 2015). 

With respect to listed marine mammals, 

the terms and conditions of the ITSs 

will be incorporated into the LOAs. 

National Environmental Policy Act 

(NEPA) 

In 1996, the FAA prepared an EA, and 

subsequently issued a Finding of No 

Significant Impact (FONSI), for the 

AAC’s proposal to construct and operate 

a launch site at Narrow Cape on Kodiak 

Island, Alaska. Since 1998, the AAC has 

provided monitoring reports related to 

noise and marine mammal impacts 

associated with ongoing rocket launches 

from KLC. After reviewing the new 

information contained in the monitoring 

reports, and considering the 

Commission’s comments that impacts to 

harbor seals should be more 

comprehensively addressed, NMFS 

decided that a more current 

environmental analysis was necessary. 

In 2005, NMFS prepared an EA and 

associated FONSI on the Promulgation 

of Regulations Authorizing Take of 

Marine Mammals Incidental to Rocket 

Launches at Kodiak Launch Complex, 

Alaska, and the Issuance of Subsequent 

Letters of Authorization. NMFS found 

that the promulgation of a 5-year 

rulemaking in 2006 and issuance of 

subsequent LOAs would not 

significantly impact the quality of the 

human environment, and therefore 

issued a FONSI. Accordingly, 

preparation of an Environmental Impact 

Statement or Supplemental 

Environmental Impact Statement for 

this action was not necessary. NMFS 

has determined that because neither the 

action nor the environmental baseline in 

the area has changed significantly from 

that analyzed in previous NEPA 

documents, further analysis under 

NEPA is not necessary for issuance of 

regulations and subsequent LOAs 

extending into 2016. 

Classification 

The Office of Management and Budget 

(OMB) has determined that this 

proposed rule is not significant for 

purposes of Executive Order 12866. 

Good cause exists to waive the 30-day 

delay in effectiveness for this rule 

pursuant to 5 U.S.C. 553(d), because 

delaying the rule’s effectiveness is 

contrary to the public interest and is 

unnecessary. While there are no 

launches specifically scheduled for 

March 2011, the U.S. Air Force has told 

the AAC to be prepared for a potential 

launch as early as March. Because these 

launches may be necessary for national 

security, it is in the public’s interest to 

have these regulations take effect 

immediately, before the AAC’s current 

regulations expire on February 28, 2011. 

The AAC has requested a waiver of the 

30-day delay in effectiveness for this 

rule in order to ensure that the rule goes 

into effect March 1, 2011, the day after 

the current regulations expire. A launch 

delay would lead to increased risk for 

personnel if there is increased handling 

time for hazardous materials or 

ordnance that has to be deactivated or 

offloaded, depending on the stage of 

launch preparations at the time of delay. 

Delaying this initial launch could also 

delay other scheduled launches for the 

following months. Additionally, the 

measures contained in this final rule are 

substantially similar to the measures 

contained in the five-year rule that 

expires on February 28, 2011. 

Accordingly, delaying the effectiveness 

of these rules is not necessary to provide 

time to allow the affected entities to 

come into compliance with the rules. 

Moreover, this rule does not impose any 

requirements or obligations on the 

public. For these reasons, there is good 

cause to waive the 30-day delay in 

effectiveness of this rule. 

Pursuant to section 605(b) of the 

Regulatory Flexibility Act (RFA), the 

Chief Counsel for Regulation of the 

Department of Commerce has certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration that this 

final rule will not have a significant 

economic impact on a substantial 

number of small entities. A description 

of this final rule and its purpose are 

found in the preamble to this rule, and 

are not repeated here. NMFS received 

no comments or questions regarding this 

certification. For a copy of the 

certification, see ADDRESSES. 

Notwithstanding any other provision 

of law, no person is required to respond 

to nor shall a person be subject to a 

penalty for failure to comply with a 

collection of information subject to the 

requirements of the Paperwork 

Reduction Act (PRA) unless that 

collection of information displays a 

currently valid OMB control number. 

This rule contains a collection-ofinformation requirement subject to the 

provisions of the PRA. This collection 

has been approved previously by OMB 

under section 3504(b) of the PRA issued 

under OMB control number 0648–0151, 

which includes applications for LOAs 

and reports. 

List of Subjects in 50 CFR Part 217 

Exports, Fish, Imports, Indians, 

Labeling, Marine mammals, Penalties, 

Reporting and recordkeeping 

requirements, Seafood, Transportation. 

Dated: February 16, 2011. 

Eric C. Schwaab, 

Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

For reasons set forth in the preamble, 

50 CFR part 217 is amended as follows: 

PART 217—REGULATIONS 

GOVERNING THE TAKING AND 

IMPORTING OF MARINE MAMMALS 

■ 1. The authority citation for part 217 

continues to read as follows: 

Authority: 16 U.S.C. 1361 et seq. 

■ 2. Subpart H is added to read as 

follows: 

Subpart H—Taking of Marine Mammals 

Incidental to Space Vehicle and Missile 

Launches at Kodiak Launch Complex, 

Alaska 

Sec. 

217.70 Specified activity and specified 

geographical region. 

217.71 Effective dates. 

217.72 Permissible methods of taking. 

217.73 Prohibitions. 

217.74 Mitigation. 

217.75 Requirements for monitoring and 

reporting. 

217.76 Letter of Authorization. 

217.77 Renewal of a Letter of Authorization 

and adaptive management. 

217.78 Modifications to a Letter of 

Authorization. 

Subpart H—Taking of Marine Mammals 

Incidental to Space Vehicle and Missile 

Launches at Kodiak Launch Complex, 

Alaska 

§ 217.70 Specified activity and specified 

geographical region. 

(a) Regulations in this subpart apply 

only to the incidental taking of marine 

mammals specified in paragraph (b) of 

this section by U.S. citizens engaged in 

space vehicle and missile launch 

activities at the Kodiak Launch Complex 

on Kodiak Island, Alaska. 

(b) The incidental take of marine 

mammals under the activity identified 

in paragraph (a) of this section is limited 

to 32 juvenile and adult Steller sea lions 

(Eumetopius jubatus), 1,125 Pacific 

harbor seals (Phoca vitulina) of all ages, 

and 17 harbor seal pups. 

§ 217.71 Effective dates. 

Regulations in this subpart are 

effective from March 22, 2011 through 

March 22, 2016. 

§ 217.72 Permissible methods of taking. 

(a) Under a Letter of Authorization 

issued pursuant to § 216.106 of this 


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chapter, the Alaska Aerospace 

Corporation and its contractors may 

incidentally, but not intentionally, take 

Steller sea lions and Pacific harbor seals 

by Level B harassment and harbor seal 

pups by Level A harassment or 

mortality in the course of conducting 

space vehicle and missile launch 

activities within the area described in 

§ 217.70(a), provided all terms, 

conditions, and requirements of these 

regulations and such Letter of 

Authorization are complied with. 

(b) The activities identified in 

§ 217.70(a) must be conducted in a 

manner that minimizes, to the greatest 

extent practicable, adverse impacts on 

marine mammals and their habitat. 

§ 217.73 Prohibitions. 

The following activities are 

prohibited: 

(a) The taking of a marine mammal 

that is other than unintentional. 

(b) The violation of, or failure to 

comply with, the terms, conditions, and 

requirements of this subpart or a Letter 

of Authorization issued under § 216.106 

of this chapter. 

(c) The incidental taking of any 

marine mammal of a species not 

specified, or in a manner not 

authorized, in this subpart. 

§ 217.74 Mitigation. 

(a) The activity identified in 

§ 217.70(a) must be conducted in a 

manner that minimizes, to the greatest 

extent practicable, adverse impacts on 

marine mammals and their habitats. 

When conducting operations identified 

in § 217.70(a), the mitigation measures 

contained in the Letter of Authorization 

issued under §§ 216.106 of this chapter 

and 217.76 must be implemented. These 

mitigation measures include (but are not 

limited to): 

(1) Security overflights by helicopter 

associated with a launch will not 

approach occupied pinniped haulouts 

on Ugak Island by closer than 0.25 mile 

(0.4 km), and will maintain a vertical 

distance of 1000 ft (305 m) from the 

haulouts when within 0.5 miles (0.8 

km), unless indications of human 

presence or activity warrant closer 

inspection of the area to assure that 

national security interests are protected 

in accordance with law; 

(2) For missile and rocket launches, 

holders of Letters of Authorization must 

avoid launches during the harbor seal 

pupping season of May 15 through June 

30, except when launches are necessary 

for the following purposes: human 

safety, national security, space vehicle 

launch trajectory necessary to meet 

mission objectives, or other purposes 

related to missile or rocket launches. 

(3) All flights by fixed-wing aircraft 

associated with the marine mammal 

abundance quarterly surveys must 

maintain a minimum altitude of 500 ft 

(152 m) and remain 0.25 miles from 

recognized seal haulouts. 

(4) If launch monitoring or quarterly 

aerial surveys indicate that the 

distribution, size, or productivity of the 

potentially affected pinniped 

populations has been affected due to the 

specified activity, the launch 

procedures and the monitoring methods 

will be reviewed, in cooperation with 

NMFS, and, if necessary, appropriate 

changes may be made through 

modifications to a given LOA, prior to 

conducting the next launch of the same 

vehicle under that LOA. 

(5) Additional mitigation measures as 

contained in a Letter of Authorization. 

(b) [Reserved] 

§ 217.75 Requirements for monitoring and 

reporting. 

(a) Holders of Letters of Authorization 

issued pursuant to §§ 216.106 of this 

chapter and 217.76 for activities 

described in § 217.70(a) are required to 

cooperate with NMFS, and any other 

Federal, State, or local agency with 

authority to monitor the impacts of the 

activity on marine mammals. Unless 

specified otherwise in the Letter of 

Authorization, the Holder of the Letter 

of Authorization must notify the 

Administrator, Alaska Region, NMFS, 

by letter, e-mail or telephone, prior to 

each launch. If the authorized activity 

identified in § 217.70(a) is thought to 

have resulted in the take of marine 

mammals not identified in § 217.70(b), 

then the Holder of the Letter of 

Authorization must notify the Director, 

Office of Protected Resources, NMFS, or 

designee, by telephone (301–713–2289), 

within 48 hours of the discovery of the 

take. 

(b) Holders of Letters of Authorization 

must designate qualified protected 

species observers, approved in advance 

by NMFS, as specified in the Letter of 

Authorization, to: 

(1) Deploy for AAC a remote camera 

system designed to detect pinniped 

responses to rocket launches for at least 

the first five launches conducted under 

these regulations. AAC will conduct 

visual monitoring for at least 2 hours 

before, during, and 2 hours after launch; 

(2) Ensure a remote camera system 

will be in place and operating in a 

location which allows visual monitoring 

of a harbor seal rookery, if a launch 

during the harbor seal pupping season 

cannot be avoided; 

(3) Relocate the camera system to or 

re-aim the camera system on another 

haulout to be chosen in cooperation 

with NMFS after the first five launches 

with harbor seals present; 

(4) Review and log pinniped presence, 

behavior, and re-occupation time data 

from the visual footage obtained from 

the remote camera system and report 

results to NMFS within 90 days post 

launch; 

(5) Obtain, whenever a new class of 

rocket is flown from the Kodiak Launch 

Complex, a real-time sound pressure 

and sound exposure record for 

documentation purposes and to 

correlate with the behavioral response 

record. Two monitors shall be used: one 

shall be placed at the established 

recording location known as Narrow 

Cape, and the other as close as practical 

to the remote video system; 

(6) Conduct quarterly aerial surveys, 

ideally during midday coinciding with 

low tide, to obtain data on pinniped 

presence, abundance, and behavior 

within the action area to determine 

long-term trends in pinniped haulout 

use. Results of these quarterly surveys 

will be reported once as part of the yearend summary report that will 

accompany the request for a new LOA. 

(c) Holders of Letters of Authorization 

must conduct additional monitoring as 

required under an annual Letter of 

Authorization. 

(d) Holders of Letters of Authorization 

must submit a report to the Alaska 

Region Administrator, NMFS, within 90 

days after each launch. This report must 

contain the following information: 

(1) Date(s) and time(s) of the launch; 

(2) Location of camera system and 

acoustic recorders (if used); 

(3) Design of the monitoring program 

and a description of how data is stored 

and analyzed; and 

(4) Results of the monitoring program, 

including, but not necessarily limited 

to: 

(i) Numbers of pinnipeds, by species 

and age class (if possible), present on 

the haulout prior to commencement of 

the launch; 

(ii) Numbers of pinnipeds, by species 

and age class (if possible), that may have 

been harassed, including the number 

that entered the water as a result of 

launch noise; 

(iii) The length of time pinnipeds 

remained off the haulout during postlaunch monitoring; 

(iv) Number of harbor seal pups that 

may have been injured or killed as a 

result of the launch; and 

(v) Other behavioral modifications by 

pinnipeds that were likely the result of 

launch noise. 

(5) Results of sound pressure and 

sound exposure level monitoring will be 

reported in flat weighted, A-weighted, 

and peak measurements. 


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16320 Federal Register / Vol. 76, No. 56 / Wednesday, March 23, 2011 / Rules and Regulations 

(e) An annual report must be 

submitted at the time of request for a 

renewal of the Letter of Authorization; 

it will include results of the aerial 

quarterly trend counts of pinnipeds at 

Ugak Island. 

(f) A final report must be submitted at 

least 90 days prior to expiration of these 

regulations if new regulations are sought 

or 180 days after expiration of 

regulations. This report will: 

(1) Summarize the activities 

undertaken and the results reported in 

all previous reports; 

(2) Assess the impacts of launch 

activities on pinnipeds within the 

action area, including potential for pup 

injury and mortality; and 

(3) Assess the cumulative impacts on 

pinnipeds and other marine mammals 

from multiple rocket launches. 

§ 217.76 Letter of Authorization. 

(a) A Letter of Authorization, unless 

suspended or revoked, will be valid for 

a period of time specified in the Letter 

of Authorization, but a Letter of 

Authorization may not be valid beyond 

the effective period of the regulations. 

(b) A Letter of Authorization with a 

period of validity less than the effective 

period of the regulations in this subpart 

may be renewed subject to renewal 

conditions in § 217.76. 

(c) A Letter of Authorization will set 

forth: 

(1) The number of marine mammals, 

by species and age class, authorized to 

be taken; 

(2) Permissible methods of incidental 

taking; 

(3) Specified geographical region; 

(4) Means of effecting the least 

practicable adverse impact on the 

species of marine mammals authorized 

for taking and its habitat; and 

(5) Requirements for monitoring and 

reporting incidental takes. 

(d) Issuance of a Letter of 

Authorization will be based on a 

determination that the total taking by 

the activity as a whole will have no 

more than a negligible impact on the 

affected species or stocks of marine 

mammal(s). 

(e) Notice of issuance or denial of a 

Letter of Authorization will be 

published in the Federal Register 

within 30 days of a determination. 

§ 217.77 Renewal of a Letter of 

Authorization and adaptive management. 

(a) A Letter of Authorization issued 

under § 216.106 of this chapter and 

§ 217.76 for the activity identified in 

§ 217.70(a) will be renewed annually 

upon: 

(1) Notification to NMFS that the 

activity described in the application for 

a Letter of Authorization submitted 

under § 217.76 will be undertaken and 

that there will not be a substantial 

modification to the described activity, 

mitigation, or monitoring undertaken 

during the upcoming season; 

(2) Timely receipt of and acceptance 

by NMFS of the monitoring reports 

required under § 217.75; 

(3) A determination by NMFS that the 

mitigation, monitoring, and reporting 

measures required under §§ 217.74 and 

217.75 and the Letter of Authorization 

were undertaken and will be undertaken 

during the upcoming period of validity 

of a renewed Letter of Authorization; 

and 

(4) A determination that the number 

of marine mammals taken by the 

activity will have no more than a 

negligible impact on the affected species 

or stocks of marine mammal(s), and that 

the level of taking will be consistent 

with the findings made for the total 

taking allowable under these 

regulations. 

(b) If a request for a renewal of a 

Letter of Authorization issued under 

§§ 216.106 and 216.128 of this chapter 

indicates that a substantial modification 

to the described work, mitigation, or 

monitoring undertaken during the 

upcoming season will occur, NMFS will 

provide the public a period of 30 days 

to review and comment on the request. 

Review and comment on renewals of 

Letters of Authorization are restricted 

to: 

(1) New cited information and data 

indicating that the determinations made 

in this document are in need of 

reconsideration; and 

(2) Proposed changes to the mitigation 

and monitoring requirements contained 

in these regulations or in the current 

Letter of Authorization. 

(c) A notice of issuance or denial of 

a renewal of a Letter of Authorization 

will be published in the Federal 

Register within 30 days of a 

determination. 

(d) NMFS, in response to new 

information and in consultation with 

the AAC, may modify the mitigation or 

monitoring measures in subsequent 

LOAs if doing so creates a reasonable 

likelihood of more effectively 

accomplishing the goals of mitigation or 

monitoring set forth in the preamble of 

these regulations. Below are some of the 

possible sources of new data that could 

contribute to the decision to modify the 

mitigation or monitoring measures: 

(1) Results from the AAC’s monitoring 

from the previous year. 

(2) Results from general marine 

mammal and sound research. 

§ 217.78 Modifications to a Letter of 

Authorization. 

(a) Except as provided in paragraph 

(b) of this section, no substantive 

modification (including withdrawal or 

suspension) to a Letter of Authorization 

issued pursuant to the provisions of this 

subpart shall be made by NMFS until 

after notification and an opportunity for 

public comment has been provided. A 

renewal of a Letter of Authorization 

under § 217.77 without modification is 

not considered a substantive 

modification. 

(b) If the Assistant Administrator 

determines that an emergency exists 

that poses a significant risk to the wellbeing of the species or stocks of marine 

mammals specified in § 217.70(b), a 

Letter of Authorization may be 

substantively modified without prior 

notification and an opportunity for 

public comment. Notification will be 

published in the Federal Register 

within 30 days subsequent to the action. 

[FR Doc. 2011–6886 Filed 3–22–11; 8:45 am] 

BILLING CODE 3510–22–P 


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