[Federal Register Volume 76, Number 56 (Wednesday, March 23, 2011)]
[Rules and Regulations]
[Pages 16311-16320]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6886]


=======================================================================
-----------------------------------------------------------------------

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 East-West 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),

[[Page 16312]]

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[deg] 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[deg] 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 long-term 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

[[Page 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 wind-generated 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 non-auditory.

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 less-experienced 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

[[Page 16314]]

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 live-streaming 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 video-camera 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

[[Page 16315]]

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 re-
occupation 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),

[[Page 16316]]

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 x 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 x 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 x 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

[[Page 16317]]

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 long-
term 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

[[Page 16318]]

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-of-information 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

0
1. The authority citation for part 217 continues to read as follows:

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


0
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


Sec.  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.


Sec.  217.71  Effective dates.

    Regulations in this subpart are effective from March 22, 2011 
through March 22, 2016.


Sec.  217.72  Permissible methods of taking.

    (a) Under a Letter of Authorization issued pursuant to Sec.  
216.106 of this

[[Page 16319]]

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 Sec.  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 Sec.  217.70(a) must be conducted 
in a manner that minimizes, to the greatest extent practicable, adverse 
impacts on marine mammals and their habitat.


Sec.  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 Sec.  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.


Sec.  217.74  Mitigation.

    (a) The activity identified in Sec.  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 Sec.  217.70(a), the mitigation measures 
contained in the Letter of Authorization issued under Sec. Sec.  
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]


Sec.  217.75  Requirements for monitoring and reporting.

    (a) Holders of Letters of Authorization issued pursuant to 
Sec. Sec.  216.106 of this chapter and 217.76 for activities described 
in Sec.  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 Sec.  217.70(a) is thought to have resulted in the take of marine 
mammals not identified in Sec.  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 year-end 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 
post-launch 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.

[[Page 16320]]

    (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.


Sec.  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 Sec.  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.


Sec.  217.77  Renewal of a Letter of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 of this 
chapter and Sec.  217.76 for the activity identified in Sec.  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 Sec.  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 Sec.  217.75;
    (3) A determination by NMFS that the mitigation, monitoring, and 
reporting measures required under Sec. Sec.  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 Sec. Sec.  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.


Sec.  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 Sec.  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 well-being of the species 
or stocks of marine mammals specified in Sec.  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