63114 Federal Register / Vol. 69, No. 209 / Friday, October 29, 2004 / Proposed Rules 

sections 111 and 129 of the Act, as a 

direct final rule without prior proposal 

because the Agency views this as a 

noncontroversial submittal and 

anticipates no adverse comments. A 

detailed rationale for the approval is set 

forth in the direct final rule. If no 

adverse comments are received in 

response to this action, no further 

activity is contemplated. If EPA receives 

adverse comments, the direct final rule 

will be withdrawn and all public 

comments received will be addressed in 

a subsequent final rule based on this 

proposed rule. EPA will not institute a 

second comment period. Any parties 

interested in commenting on this action 

should do so at this time.

DATES: Comments must be received in 

writing by November 29, 2004.

ADDRESSES: Submit your comments, 

identified by Regional Material in 

EDocket (RME) ID Number R03–OAR–

2004–VA–0002 by one of the following 

methods: 

A. Federal eRulemaking Portal:

http://www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

B. Agency Web Site: http://

www.docket.epa.gov/rmepub/ RME, 

EPA’s electronic public docket and 

comment system, is EPA’s preferred 

method for receiving comments. Follow 

the on-line instructions for submitting 

comments. 

C. E-mail: http://

wilkie.walter@epa.gov.

D. Mail: R03–OAR–2004–VA–0002, 

Walter Wilkie, Chief, Air Quality 

Analysis, Mailcode 3AP22, U.S. 

Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

E. Hand Delivery: At the previouslylisted EPA Region III address. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

RME ID No. R03–OAR–2004–VA–0002. 

EPA’s policy is that all comments 

received will be included in the public 

docket without change, and may be 

made available online at http://

www.docket.epa.gov/rmepub/,

including any personal information 

provided, unless the comment includes 

information claimed to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Do not submit 

information that you consider to be CBI 

or otherwise protected through RME, 

regulations.gov or e-mail. The EPA RME 

and the Federal regulations.gov Web 

sites are an ‘‘anonymous access’’

system, which means EPA will not 

know your identity or contact 

information unless you provide it in the 

body of your comment. If you send an 

e-mail comment directly to EPA without 

going through RME or regulations.gov, 

your e-mail address will be 

automatically captured and included as 

part of the comment that is placed in the 

public docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket: All documents in the 

electronic docket are listed in the RME 

index at http://www.docket.epa.gov/

rmepub/. Although listed in the index, 

some information is not publicly 

available, i.e., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically in RME or 

in hard copy during normal business 

hours at the Air Protection Division, 

U.S. Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

Copies of the State submittal are 

available at the Virginia Department of 

Environmental Quality, 629 East Main 

Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT:

James B. Topsale, P.E., at (215) 814–

2190, or by e-mail at 

topsale.jim@epa.gov.

SUPPLEMENTARY INFORMATION: For 

further information, please see the 

information provided in the direct final 

action, with the same title, that is 

located in the ‘‘Rules and Regulations’’

section of this Federal Register

publication.

Dated: September 27, 2004. 

Thomas C. Voltaggio, 

Acting Regional Administrator, Region III.

[FR Doc. 04–24241 Filed 10–28–04; 8:45 am] 

BILLING CODE 6560–50–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

50 CFR Part 216

[Docket No. 011011247-4249-02; I.D. 

082701E]

RIN 0648-AP62

Taking and Importing Marine 

Mammals; Taking Marine Mammals 

Incidental to Rocket Launches From 

Kodiak Island, AK

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce.

ACTION: Proposed rule; request for 

comments.

SUMMARY: NMFS has received a request 

from the Alaska Aerospace 

Development Corporation (AADC) for 

Authorization to take by harassment 

small numbers of pinnipeds incidental 

to rocket launches from the Kodiak 

Launch Complex (KLC) on Kodiak 

Island, AK. By this document, NMFS is 

proposing regulations to govern that 

take. NMFS also makes a preliminary 

determination that the total taking will 

have a negligible impact on the affected 

species and stocks of marine mammals 

and will not have an unmitigable 

adverse impact on the availability of the 

species or stock(s) for subsistence uses. 

In addition, NMFS proposes reporting 

and monitoring requirements, and 

invites comment on the application and 

proposed regulations.

DATES: Comments and information must 

be received no later than December 13, 

2004.

ADDRESSES: You may submit comments 

on the application and proposed rule, 

using the identifier 082701E, by any of 

the following methods:

• E-mail: PR1.082701E@noaa.gov. You 

must include the identifier 082701E in 

the subject line of the message. 

Comments sent via e-mail, including all 

attachments, must not exceed a 

10-megabyte file size.

• Federal eRulemaking Portal: http://

www.regulations.gov. Follow the 

instructions for submitting comments.

• Hand-delivery or mailing of paper, 

disk, or CD-ROM comments: Stephen L. 

Leathery, Chief, Permits, Conservation 

and Education Division, Office of 

Protected Resources, National Marine 

Fisheries Service, 1315 East-West 

Highway, Silver Spring, MD 

20910-3225.

To help us process and review your 

comments more efficiently, please use

Federal Register / Vol. 69, No. 209 / Friday, October 29, 2004 / Proposed Rules 63115

only one method. A copy of the 

application containing a list of 

references used in this document may 

be obtained by writing to the address 

above or by telephoning the contacts 

listed under FOR FURTHER INFORMATION

CONTACT.

Comments regarding the burden-hour 

estimate or any other aspect of the 

collection of information requirement 

contained in this rule should be sent to 

NFMS via the means stated above, and 

to the Office of Information and 

Regulatory Affairs, Office of 

Management and Budget (OMB), 

Attention: NOAA Desk Officer, 

Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT:

Sarah Hagedorn, (301) 713-2322 ext 117, 

or Brad Smith, (907) 271-3023.

SUPPLEMENTARY INFORMATION:

Background

Section 101(a)(5)(A) of the Marine 

Mammal Protection Act (MMPA)(16 

U.S.C. 1361 et seq.) directs the Secretary 

of Commerce (Secretary) to allow, upon 

request, the incidental, but not 

intentional taking 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 regulations are issued.

Permission may be granted for periods 

of five years or less if the Secretary finds 

that the total taking will have a 

negligible impact on the species or 

stock(s), will not have an unmitigable 

adverse impact on the availability of the 

species or stock(s) for subsistence uses, 

and regulations are prescribed setting 

forth the permissible methods of taking, 

other means of affecting the least 

practicable adverse impact on the 

affected species or stocks and their 

habitats, and the requirements 

pertaining to the monitoring and 

reporting of such taking.

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 for 

categories of activities not pertinent 

here, the MMPA 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 July 26, 2001, NMFS received an 

application from the AADC under 

section 101(a)(5)(A) of the MMPA for 

authorization to take, by harassment, 

Steller sea lions (Eumetopias jubatus) 

incidental to rocket launches from KLC 

on Kodiak Island, Alaska. NMFS 

proposes this rule and regulations to 

govern these authorizations to be 

effective for a period of five years from 

December 1, 2004, through November 

30, 2009. These regulations, if 

implemented, would allow NMFS to 

issue Letters Of Authorization to the 

AADC. A full description of the 

operations is contained in the AADC 

application (AADC, 2001) which is 

available upon request (see ADDRESSES).

The KLC is a commercial rocket 

launch complex owned and operated by 

the State of Alaska through the AADC. 

Located wholly on state-owned lands, 

KLC occupies 43 acres (0.174 km2) 

within a 3,100 acre (12.545 km2) parcel 

on the eastern side of Kodiak Island on 

the Narrow Cape peninsula. The KLC 

was designed to accommodate a variety 

of small, solid rockets including such 

vehicles as the Minuteman II, Taurus, 

Conestoga, and Athena (Lockheed 

Martin Launch Vehicle). The largest 

vehicle that can be launched from KLC 

is the Athena-2 (Lockheed Martin 

Vehicle-2).

Launch operations at the KLC are 

authorized under license from the 

Federal Aviation Administration (FAA), 

Office of Associate Administrator for 

Commercial Space Transportation (AST) 

in accordance with the facility’s 

Environmental Assessment (EA) and 

stipulations in the EA’s Finding of No 

Significant Impact (FONSI) (see 61 FR 

32884, June 25, 1996). These 

stipulations included a requirement to 

develop a Natural Resource 

Management Plan (NRMP) to address 

monitoring and mitigation activities for 

protected species in the area. This plan 

was developed in coordination with 

NMFS utilizing comparison of 

anticipated sound pressure levels from 

rocket motors to be launched from the 

KLC with documented marine mammal 

disturbance responses to such noise.

Measurement of Airborne Sound Levels

The following section is provided to 

facilitate an understanding of airborne 

and impulsive noise characteristics. 

Amplitude is a measure of the pressure 

of a sound wave that is usually 

expressed on a logarithmic scale with 

units of sound level or intensity called 

the decibel (dB). Sound pressure level 

(SPL) is described in units of dB re 

micro-Pascal (micro-Pa, or μPa); for 

energy, the sound exposure level (SEL), 

a measure of the cumulative energy in 

a noise event, is described in terms of 

dB re micro-Pa2 -second; and frequency, 

often referred to as pitch, is described in 

units of cycles per second or Hertz (Hz). 

In other words, SEL is the squared 

instantaneous sound pressure over a 

specified time interval, where the sound 

pressure is averaged over 5 percent to 95 

percent of the duration of the sound.

For airborne noise measurements the 

convention is to use 20 micro-Pa as the 

reference pressure, which is 26 dB 

above the underwater sound pressure 

reference of 1 micro-Pa and is the 

approximate threshold of human 

hearing. However, the conversion from 

air to water intensities is more involved 

than this and is beyond the scope of this 

document. NMFS recommends 

interested readers review NOAA’s 

tutorial on this issue: http://

www.pmel.noaa.gov/vents/acoustics/

tutorial/tutorial.html.

Airborne sounds are also often 

expressed as broadband A-weighted 

(dBA) or C-weighted (dBC) sound levels. 

When frequency levels are made to 

correspond to human hearing, they are 

referred to as being A-weighted or 

A-filtered. With A-weighting, sound 

energy at frequencies below 1 kHz and 

above 6 kHz are de-emphasized and 

approximates the human ear’s response 

to sounds below 55 dB. C-weighting is 

often used in the analysis of 

high-amplitude noises like explosions, 

and corresponds to the relative response 

to the human ear to sound levels above 

85 dB. C-weighting de-emphasizes ear 

frequency components of less than 

about 50 Hz. C-weight scaling is also 

useful for analyses of sounds having 

predominantly low-frequency sounds, 

such as sonic booms. For continuous 

noise like rocket launches, the 

important variables relevant to assessing 

auditory impacts or behavioral 

responses are intensity, frequency 

spectrum, and duration. In this 

document, whenever possible sound 

levels have been provided with 

A-weighting.

Description of the Activity

To date there have been six rocket 

launches from the KLC; however, the 

KLC facility is licensed to launch up to 

nine rockets per year. The first two 

launches used composite vehicles built 

from several stages taken from a 

decommissioned USAF Minuteman II 

launch vehicle, and were part of the 

U.S. Air Force (USAF) atmospheric 

interceptor technology (ait) program. 

The third and the sixth launches (March 

2001 and April 2002) were part of the 

USAF Quick Reaction Launch Vehicle

63116 Federal Register / Vol. 69, No. 209 / Friday, October 29, 2004 / Proposed Rules 

(QRLV) program, and comprised of 

single stage M-56 motors taken from a 

decommissioned USAF Minuteman II 

launch vehicle. The fourth launch 

(September 2001) was a commercial 

Lockheed/Martin Athena rocket, which 

is the largest vehicle to be launched 

from KLC, and it placed four satellites 

into polar orbit. The fifth launch 

(November 2001) was a Department of 

Defense (DoD) Strategic Target System 

(STARS) vehicle.

Launches from the KLC are expected 

to be high inclination with launch 

azimuths ranging from 125 to 225 

degrees in direction (AADC and AST, 

1996). At the easternmost azimuth 

launch vehicle paths would pass over 

the eastern edge of Ugak Island; at the 

westernmost azimuth the vehicle would 

pass along the southeastern edge of the 

Kodiak Archipelago. Approximately 70 

seconds after launch, a typical launch 

vehicle would be more than 8 miles 

high. Spent first-stage rocket motors and 

fuel casings would impact the ocean’s 

surface from 11 to 314 nautical miles 

downrange, depending on the launch 

vehicle (AADC and AST 1996). Rocket 

motor sonic booms are predicted to 

reach the ocean surface over 20 miles 

downrange beyond the outer continental 

shelf over deep ocean.

Launch operations are a major source 

of noise on Kodiak Island, as the 

operation of launch vehicle engines 

produces significant sound levels. 

Generally, four types of noise occur 

during a launch. They are: (1) 

combustion noise from launch vehicle 

chambers; (2) jet noise generated by the 

interaction of the exhaust jet and the 

atmosphere; (3) combustion noise from 

the post-burning of combustion 

products; and (4) sonic booms. The 

principal objective of the KLC rocket 

motor noise monitoring task within the 

NRMP was to measure SPLs at the Ugak 

Island Steller sea lion haulout. A 

secondary objective was to monitor 

sound levels on Narrow Cape close to 

bald eagle and/or Steller’s eider nests 

when present. SPLs were successfully 

recorded for the first four launches from 

KLC at the Ugak Island Steller sea lion 

haulout and on Narrow Cape by the 

University of Alaska Anchorage’s 

Environment and Natural Resources 

Institute (ENRI). The Ugak Island 

haulout is located approximately 2 

miles (3.2 km) from Narrow Cape and 

about 3.5 miles (5.6 km) from the KLC 

launch pad on a narrow sand spit on the 

north side of the Island. The data 

gathered were weighted toward lower 

frequencies and showed a wide 

variation in sound pressures among 

rocket motors, with the highest levels 

being associated with the largest launch 

vehicle flown. Variations in the KLC 

sound pressure record are likely due to 

such variables as engine size, engine 

bell shape, and local atmospheric 

conditions. Summaries of the findings 

for each of the rockets launched to date 

are described below.

ait-1

The first launch from KLC occurred in 

November 1998, and was the first of the 

USAF ait program. Sound 

measurements from the ait-1 launch 

were collected using two sound level 

monitors (SLMs) that were deployed 26 

hours before launch on Ugak Island at 

the base of the spit used as a haulout by 

Steller sea lions. The SLMs were set to 

highlight sounds exceeding 65 dB, 

which was done after checking real-time 

sound levels in the field at each site 

prior to setting them to record data. If 

the exceedance levels were set too low, 

the SLMs would be deluged with data, 

and if they were set too high the SLMs 

would miss the event of interest. A 

digital audio tape (DAT) recorder was 

used to provide redundancy in 

recording noise frequencies and was 

placed about 0.75 mi (1.2 km) from the 

KLC launch pad.

Recorded maximum SPLs of rocket 

motor noise for the ait-1 at the Ugak 

Island haulout site were 78.2 dB re 20 

μPa with a peak level of 97 dB. The SEL 

at the Ugak Island haulout site was 88.4 

dB. In addition, the SEL at the nearest 

location measured by the DAT recorder 

was 110 dB for a duration of 59 seconds. 

The bulk of the sound energy was at low 

frequencies and generally less than 4000 

Hz. Most of the energy was from 100 to 

500 Hz.

Of the eight noise events recorded 

above 65 dB at Ugak Island, ENRI 

determined that two are attributable to 

helicopter noise and one to the firing of 

the ait-1 rocket motor. Sounds at the 

Ugak Island site were above 65 dB for 

a total of 33 seconds at the time the 

rocket motor was firing. Due to the 

isolation of this site, the remainder of 

the events are most likely attributable to 

surf or wind action.

ait-2

USAF launched a second rocket from 

KLC on September 15, 1999. Based on 

experience from the first launch, ENRI 

set the SLMs to highlight sounds 

exceeding 70 dB and deployed them 

about 19 hours before the launch. Sound 

pressures at Ugak Island were slightly 

higher for the second launch than for 

the first launch. Recorded maximum 

SPLs of rocket motor noise for the ait-2 

at the Ugak Island haulout site were 

81.5 dB, with a peak level of 101.5 dB, 

and a corresponding SEL of 92.2 dB. 

The bulk of the sound energy was at low 

frequencies and generally less than 2500 

Hz. Most of the energy was from 25 to 

1000 Hz.

There were 15 noise events above 70 

dB within the 19 hours of recording at 

Ugak Island, all of which can be 

attributed to helicopter, airplane, or 

rocket noise; none coincides with the 

stampede of Steller sea lions off the 

Ugak Island haulout 3.5 hours previous 

to the rocket launch. Sounds at the Ugak 

Island site were above 70 dB for a total 

of 30 seconds at the time the rocket 

motor was firing. Natural background 

noise levels above 70 dB were almost 

nonexistent during this launch.

QRLV-1

On March 22, 2001, the USAF 

conducted the third launch from KLC. 

SLMs set to highlight sounds exceeding 

70 dB at the base of the Ugak Island sea 

lion haulout were again used by ENRI 

to record sound frequency and intensity, 

and were deployed 22 hours before the 

launch. The recorded sound levels at 

Ugak Island were significantly lower for 

the QRLV-1 launch than for either of the 

ait launches. This is likely due to the 

vehicle being smaller, and possibly to a 

different trajectory and local 

atmospheric condition. Recorded 

maximum SPLs resulting from QRLV 

rocket motor noise at the Ugak Island 

haulout site were 73.3 dB, with a peak 

level of 87.2 dB, and a corresponding 

SEL of 80.3 dB. The bulk of the sound 

energy was at low frequencies and 

generally less than 2500 Hz. Most of the 

energy was from 16 to 2000 Hz.

There were 17 noise events above 70 

dB at Ugak Island. With the exception 

of the rocket launch, all can be related 

to helicopter noise. Sounds at the Ugak 

Island site were above 70 dB for a total 

of 10.9 seconds at the time the rocket 

motor was firing. Natural background 

noise levels above 70 dB were almost 

nonexistent during this launch. Rocket 

noise measurements for the QRLV-2 

rocket launch on April 24, 2002, the 

sixth rocket launched from KLC, were 

not recorded.

Athena

The fourth launch from KLC occurred 

on September 29, 2001, and involved a 

commercial Lockheed/Martin Athena, 

which is the largest vehicle to be 

launched from KLC. SLMs were again 

set to highlight sounds exceeding 70 dB 

and were deployed by ENRI at the Ugak 

Island haulout four hours before the 

launch. The recorded sound levels at 

Ugak Island were significantly higher 

for the Athena launch than for previous 

launches, which is likely due to the size 

of the vehicle. Recorded maximum SPLs

Federal Register / Vol. 69, No. 209 / Friday, October 29, 2004 / Proposed Rules 63117

resulting from Athena rocket motor 

noise at the Ugak Island haulout site 

were 90.8 dB, with a peak level of 115.9 

dB, and a corresponding SEL of 101.4 

dB. The bulk of the sound energy was 

at low frequencies and generally less 

than 2000 Hz.

There were three exceedance events 

above 70 dB at Ugak Island and Narrow 

Cape within the four hours of recording, 

two of which can be attributed to 

helicopter noise and the other to the 

rocket launch. Sounds at the Ugak 

Island site were above 70 dB for 49.6 

seconds at the time the rocket motor 

was firing. Natural background noise 

levels above 70 dB were nonexistent 

during this launch.

STARS

On November 9, 2001, the Department 

of Defense launched a STARS vehicle 

from KLC; however, the rocket was 

deliberately destroyed over open ocean 

almost immediately because it lost 

communication with KLC. The STARS 

program provides ballistic missile 

targets to test various sensors and 

ground-based interceptors. STARS 

vehicles will include first- and 

second-stage Polaris A3 boosters and a 

third-stage Orbus-1 booster. The range 

of this system is 620 to 3,418 miles (998 

to 5500 km). SLMs were set to record 

noise events above 70 dB and were to 

be deployed four hours prior to launch, 

but safety concerns associated with 

inclement weather on the day of the 

launch precluded the helicopter from 

being flown from the Kodiak airport to 

the launch facility. Consequently, ENRI 

was unable to set up the SLMs prior to 

the rocket launch and no sound data 

were collected for this launch. Sound 

levels from this type of rocket motor 

would likely be similar to those 

recorded for the ait and ARLV missions 

given the size and thrust characteristics 

of these vehicles. Accordingly, it is 

expected that sound exposure levels at 

Ugak Island would have likely ranged 

from 80 to 90 dB. Sound pressure levels 

from future launch operations from KLC 

are expected to be in the range of those 

recorded during the first four launches.

Description of Habitat and Marine 

Mammals Affected by the Activity

Narrow Cape, Ugak Island, and the 

adjacent waters within the primary KLC 

study area provide habitat for sea otters 

(Enhydra lutris), harbor seals (Phoca 

vitulina), Steller sea lions (Eumetopias 

jubatus, listed as endangered), gray 

whales (Eschrichtius robustus), 

humpback whales (Megaptera 

novaeangliae, listed as endangered), 

northern fur seals (Callorhinus ursinus), 

Northern Right whales (Eubalaena 

glacialis), and minke whales 

(Balaenoptera acutorostrata). Harbor 

seals and sea otters are common 

year-round, as are killer whales 

(Orcinus orca), Dall’s porpoise 

(Phocoenoides dalli), and harbor 

porpoise (Phocoena phocoena). Other 

species of cetaceans that may occur in 

the area, such as Pacific white-sided 

dolphins (Lagenorhynchus obliquidens), 

Risso’s dolphins (Grampus griseus), 

northern right whale dolphins 

(Lissodelphis borealis), pilot whales 

(Globicephala macrorhynchus), Cuvier’s 

beaked whales (Ziphius cavirostris), 

Baird’s beaked whale (Berardius 

bairdii), Stegneger’s beaked whale 

(Mesoplodon stejnegeri), sperm whales 

(Physeter macrocephalus), fin whales 

(Balaenoptera physalus), sei whales 

(Balaenoptera borealis) and blue whales 

(Balaenoptera musculus) are rare as 

they are primarily pelagic (ENRI, 

1995-98). General information on harbor 

seals and other marine mammal species 

can be found in Caretta et al. (2001, 

2002), which are available at the 

following URL: http://

www.nmfs.noaa.gov/protlres/PR2/

StocklAssessmentlProgram/

sars.html. Sea otters are managed by the 

U.S. Fish and Wildlife Service. 

Information on this species may be 

found at www.fws.gov. Please refer to 

those documents and the application for 

further information on these species.

Potential Effects of Rocket Launches on 

Marine Mammals

As outlined in several previous NMFS 

documents, the effects of noise on 

marine mammals are highly variable, 

and can be categorized as follows (based 

on Richardson et al., 1995):

(1) The noise may be too weak to be 

heard at the location of the pinniped 

(i.e., lower than the prevailing ambient 

noise level, the hearing threshold of the 

animal at relevant frequencies, or both);

(2) The noise may be audible but not 

strong enough to elicit any overt 

behavioral response;

(3) The noise may elicit reactions of 

variable conspicuousness and variable 

relevance to the well being of the 

pinniped; these can range from 

temporary alert responses to active 

avoidance reactions such as stampedes 

into the sea from terrestrial haulout 

sites;

(4) Upon repeated exposure, 

pinnipeds may exhibit diminishing 

responsiveness (habituation), or 

disturbance effects may persist; the 

latter is most likely with sounds that are 

highly variable in characteristics, 

infrequent and unpredictable in 

occurrence (as are vehicle launches), 

and associated with situations that the 

pinniped perceives as a threat;

(5) Any anthropogenic noise that is 

strong enough to be heard has the 

potential to reduce (mask) the ability of 

pinnipeds to hear natural sounds at 

similar frequencies, including calls from 

conspecifics, and environmental sounds 

such as surf noise;

(6) If mammals remain in an area 

because it is important for feeding, 

breeding or some other biologically 

important purpose even though there is 

chronic exposure to noise, it is possible 

that there could be noise-induced 

physiological stress; this might (in turn) 

have negative effects on the well-being 

or reproduction of the animals involved; 

and

(7) Very strong sounds have the 

potential to cause temporary or 

permanent reduction in hearing 

sensitivity. In terrestrial mammals, and 

presumably marine mammals, received 

sound levels must far exceed the 

animal’s hearing threshold for there to 

be any temporary threshold shift (TTS). 

For transient sounds, the sound level 

necessary to cause TTS is inversely 

related to the duration of the sound. 

Received sound levels must be even 

higher for there to be risk of permanent 

hearing impairment.

Solid rocket boosters from KLC 

launches will fall into the ocean away 

from any known or potential haul-out 

sites and do not pose any threat to Ugak 

Island. Launch noise is expected to 

occur over the coastal habitats of 

Narrow Cape and Ugak Island during 

every launch, while sonic booms will 

occur approximately 40 nautical miles 

(74 km) downrange over open ocean, 

beyond the outer continental shelf and 

are unlikely to affect marine mammals. 

Airborne launch sounds will mostly 

reflect or refract from the water surface 

and, except for sounds within a 

diameter of approximately 30 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.

The Ugak Island Steller sea lion 

haulout is the only haul-out site within 

the Narrow Cape region that has the 

potential to be impacted by the sights 

and sounds of rocket launches from 

KLC. Harbor seals haul out on the 

southeast side of Ugak Island, but this 

area is sheltered from direct sight of and 

sound from KLC by a 300 ft (91.44 m) 

island cliff and because it receives 

heavy surf, it already has high ambient 

noise levels. Because background 

ambient noise often interferes with or 

masks the ability of an animal to detect 

a sound even when that sound is above

63118 Federal Register / Vol. 69, No. 209 / Friday, October 29, 2004 / Proposed Rules 

its absolute hearing threshold 

(Richardson et al., 1995), it seems 

unlikely that animals hauled out at this 

location would hear noise associated 

with rocket launches from KLC. In 

contrast, the sea lion haulout on Ugak 

Island is on a spit facing KLC and 

animals at this location would likely 

hear a rocket launch. Steller sea lions 

generally occupy this haulout from late 

summer to the early fall post-breeding 

period (late June to early October) by up 

to several hundred sea lions.

ENRI was tasked under contract to the 

AADC to conduct environmental 

monitoring studies for each rocket 

launch from KLC. In addition to 

collecting rocket noise data, ENRI 

conducted aerial surveys over and 

collected real-time video footage at the 

seasonally occupied Ugak Island 

haulout site in conjunction with the 

three KLC launches when Steller sea 

lions might have been present at the 

haulout: ait-1 on November 5, 1998; 

ait-2 on September 15, 1999; and 

Athena on September 29, 2001. The 

only time Steller sea lions were 

observed occupying the haulout was 

during the ait-2 launch monitoring 

period. Sixty to seventy animals were 

on the haulout about five hours 

pre-launch. Due to below freezing 

temperatures, the video system shut off 

about four hours prior to the ait-2 

launch. The video data show Steller sea 

lions fighting or sleeping on the haulout 

just minutes before the system stopped 

recording. The animals are then seen 

stampeding into the water and milling 

about immediately offshore. The cause 

of the stampede is not apparent in the 

video and no stimulus could be linked 

to the response. When, or if, any of the 

Steller sea lions returned to the haulout 

before the ait-2 launch is unknown. 

Although rocket noise might have 

caused the sea lions to flee the haulout, 

a clear-cut stimulus response of sea lion 

behavior to rocket noise cannot be 

postulated without video data from the 

time of the launch. Approximately one 

hour after the rocket was launched, no 

sea lions were seen hauled out and fifty 

to sixty sea lions were observed in the 

water immediately offshore. The day 

after the launch, sixty to seventy 

animals were seen hauled out, 

indicating that sea lions were not 

significantly affected by the launch. 

This finding parallels that from other 

spaceports, where sea lions have been 

shown to accommodate to disturbance 

from rocket launches (Thorson and 

Francine, 1997).

Because no Steller sea lions were 

present at the Ugak Island haulout 

during the ait-1 and Athena launches, it 

is not possible to relate any behavioral 

responses to the recorded noise levels. 

For all launches, however, launch 

noises recorded at the haulout site were 

within the audible ranges of pinnipeds 

(Richardson et al., 1995) and Steller sea 

lions would have heard them had they 

been present. Further, recorded sound 

pressures were at, and sometimes above, 

levels known to occasionally induce 

startle responses in pinnipeds 

(Richardson et al., 1995). Rocket 

launches will present Steller sea lions 

with novel visual and possibly tactile 

stimuli as well as unusually loud 

sounds and bright lights from the 

burning rocket and white exhaust flume. 

This potential for startle responses and 

stampede/evacuation of the haulout led 

the AADC to submit a request to NMFS 

for authorization for the incidental take 

of Steller sea lions during launches from 

KLC. The AADC recognizes in their 

application that despite the lack of 

direct stimulus-response data tying sea 

lion behavior to rocket launches from 

KLC, the unusual, high-intensity stimuli 

resulting from brief launch-related 

sights and sounds means that 

evacuation of the Ugak haul-out site by 

sea lions could reasonably be expected.

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. Porter (1997) 

observed Steller sea lions fleeing into 

the water for a wide variety of reasons 

such as helicopter overflights, bird 

flybys, and the presence of nearby 

humans. He also noted sea lions 

stampedes into the water that could not 

be correlated with any observed 

stimulus. There is also evidence that 

both time of day and temperature alter 

the probability of entry into the water 

(animals are more likely to enter the 

water when already overheated) 

(Bowles, 2000). Steller sea lions have 

been seen to mill about just offshore 

with their heads up in a heightened 

state of watchfulness (Porter, 1997) and 

remain close to the haulout until they 

sense it is safe to go back ashore 

(Lockheed Martin Environmental 

Services, 1999).

Noise generated from aircraft and 

helicopter activities associated with the 

launches may provide a potential 

secondary source of incidental 

harassment, and the physical presence 

of aircraft or biologists could also lead 

to non-acoustic effects on marine 

mammals involving visual or other cues. 

However, other disturbance-related data 

collected during the ait-2 study (ENRI, 

2000) does not fit well with stimulus 

response data from other sources. Sea 

lions are widely thought to be intolerant 

of helicopter noise (Porter, 1997), yet 

the animals in question did not appear 

to respond to multiple exposures of 

more intense helicopter noise at Ugak 

Island than that from the rocket (ENRI, 

2000). They are also thought to be 

intolerant of humans on foot, yet a video 

from the ait-2 study shows hauled-out 

sea lions on Ugak Island undisturbed by 

biologists actively engaged in work 

within 328 ft (100 m) of them. The Ugak 

Island haulout is also regularly exposed 

to disturbances from aircraft and fishing 

vessels transiting Narrow Strait.

Recent studies (Lawson et al., 2002, 

and NAWS, 2002) show that Level B 

harassment, as evidenced by beach 

flushing, will sometimes occur upon 

exposure to launch sounds with SEL’s 

of 100 dBA (re 20 micro-Pa2 -sec) or 

higher. It is expected that most received 

noise levels at Ugak Island would be 

below levels which are likely to cause 

disturbance. The infrequent and brief 

nature of these sounds would cause 

masking for not more than a very small 

fraction of the time during any single 

launch day and it is unlikely that 

pinnipeds will become habituated to 

launch sounds. In addition, the 

extremely rapid departure of the rockets 

means that pinnipeds would be exposed 

to increased sound levels for very short 

time intervals, and because launches are 

conducted relatively infrequently, 

neither physiological stress nor hearing 

related injuries are likely. Therefore, 

AADC anticipates that the effects of 

rocket launches from KLC would have 

no significant effects on the abilities of 

pinnipeds to hear one another or to 

detect natural environmental sounds, 

and would have no more than a 

negligible impact on pinniped 

populations.

Numbers of Marine Mammals Expected 

to Be Taken by Harassment

The Steller sea lion is described by 

two stocks - those west of 144° west 

longitude listed as endangered, and the 

eastern stock listed as threatened. Sea 

lions present hauled out on Ugak Island 

are of the western stock. The most 

recent comprehensive estimate (pups 

and non-pups) of Steller sea lion 

abundance in Alaska is based on aerial 

surveys and ground based pup counts in 

June and July 1998 from Southeast 

Alaska to the western Aleutian Islands 

(Sease and Loughlin 1999). In addition, 

surveys of all non-pup trend sites, 

haulout sites, and rookeries were 

conducted during 2000 (Sease et al.,

Federal Register / Vol. 69, No. 209 / Friday, October 29, 2004 / Proposed Rules 63119

2001). The best available population 

estimate for the western stock of Steller 

sea lions is the sum of the total number 

of non-pups counted in 2000 (25,384) 

and the number of pups counted in 

1998 (9,211). The 2000 count of 

non-pups (25,384) plus the number of 

pups in 1998 (9,211) is 34,595, which 

will be used as the minimum 

population estimate for the western U. 

S. stock of Steller sea lion (Wade and 

Angliss 1997). This is considered a 

minimum estimate because it has not 

been corrected to account for animals 

which were at sea during the surveys.

The numbers of individual Steller sea 

lions that might stampede or otherwise 

shift position on the Ugak Island spit in 

response to an AADC generated 

disturbance are difficult to estimate. 

Because this haulout is occupied 

primarily from late June to early 

October, the possible number of animals 

taken would depend upon the timing of 

rocket launches. If a launch were to 

occur outside of this time frame, it is 

likely that no animals would be exposed 

to noise resulting from rocket launches. 

The highest count of sea lions at the 

Ugak Island haulout was 177 in July 

1997 (ENRI 1995-98); this then 

represents the highest number of 

animals that could be disturbed by a 

rocket launch during the season of 

haulout occupancy.

Effects of Rocket Launches on 

Subsistence Needs

There are no subsistence uses of 

pinniped species in Alaska waters 

within the KLC primary study area, and, 

thus, there are no anticipated effects on 

subsistence needs.

Effects of Rocket Launches on Marine 

Mammal Habitat

Solid rocket boosters would fall into 

the ocean away from any known or 

potential haulouts. All sonic booms that 

reach the earth’s surface would be 

expected to be over open ocean beyond 

the outer continental shelf. Airborne 

launch sounds would mostly reflect or 

refract from the water surface and, 

except for sounds within a diameter of 

approximately 30 degrees directly below 

the launch vehicle, would not penetrate 

into the water column. The sounds that 

do penetrate would not persist in the 

water for more than a few seconds. 

Overall, rocket launch activities from 

KLC would not be expected to cause any 

impacts to habitats used by marine 

mammals, including pinniped haulouts, 

or to their food sources.

Mitigation

Based on data collected from previous 

launches from KLC, there is no evidence 

of a direct stimulus-response 

relationship between Steller sea lion 

behavior and rocket launches. At this 

time, because of the absence of a 

significant response by Steller sea lions 

and because this is not a rookery with 

pups, NMFS believes there is no need 

for the implementation of any specific 

mitigation measures other than the 

monitoring requirements described 

below, which includes immediately 

notifying NMFS if indications of a 

disturbance to Steller sea lions are 

recorded, if noise levels are observed 

above 100 dBA, and in the 

unanticipated event that any cases of 

pinniped mortality are judged to result 

from launch activities at any time 

during the period covered by these 

regulations. If data from the monitoring 

program collected during future 

launches show the need for additional 

mitigation, specific measures would be 

developed by the AADC in cooperation 

with NMFS and implemented through 

the LOAs.

Monitoring

Environmental monitoring studies for 

rocket launches are modeled after those 

outlined in the KLC Environmental 

Monitoring Plan (EMP), which is an 

integral part of the NRMP (discussed 

previously). The EMP was reviewed and 

approved by the federal and state 

agencies having oversight of the various 

natural resources in and around KLC, 

and addresses stipulations in the FONSI 

for the EA for construction of KLC, KLC 

development permits, and NRMP goals 

and objectives. The primary KLC 

environmental monitoring study area 

was set in September 1996 at a meeting 

between AADC and representatives of 

the U.S. Fish and Wildlife Service, 

NMFS, the FAA, and ENRI. It includes 

the lands and waters within a 6-mile 

(9.7 km) radius extending out from the 

KLC launchpad. The EMP requires that 

monitoring of Steller sea lions be done 

at the seasonally occupied (late June to 

early October), non-breeding haulout on 

Ugak Island. The EMP also requires 

monitoring of rocket noise, bald eagle 

nests, Steller’s Eiders, and other 

environmental quality parameters such 

as water chemistry, macroinvertebrates, 

stream sediment, and vegetation.

It was determined in September of 

1996 that this monitoring plan would be 

limited to the first five rocket launches 

from KLC, provided that at least one of 

the launches represented the largest 

class of rocket that could be flown from 

the facility. ENRI prepared individual 

monitoring reports for each launch. The 

fifth rocket was launched from KLC in 

November of 2001, and a Lockheed/

Martin Athena (the largest vehicle that 

can currently be flown from KLC) was 

launched in September 2001. This 

meant that the studies required in the 

EMP were complete. ENRI also 

monitored the 6th launch using the 

same protocols as in previous launches.

In a summary document of the 

monitoring reports for the first five 

launches (ENRI, 2002), ENRI and AADC 

recommended that KLC environmental 

monitoring activities involving rocket 

launches include the continuation of 

Steller sea lion monitoring and the 

collection of rocket noise data when sea 

lions are present at the Ugak Island 

haulout. Even though no apparent 

behavioral responses of Steller sea lions 

to rocket launches were observed, sound 

pressure levels are within the audible 

range of Steller sea lions and the 

potential for disruption of behavioral 

patterns exists. NMFS agrees with this 

finding, and in addition to any other 

applicable state and federal permits, 

regulations, and environmental 

monitoring agreements that AADC has 

with other agencies, NMFS proposes to 

include in its regulations issued for 

rocket launches from KLC the 

continuation of rocket motor noise data 

collection and Steller sea lion 

monitoring as laid out within the KLC 

EMP.

Steller Sea Lion Monitoring

The objective of monitoring Steller 

sea lions is to detect any indications of 

disturbance that result from KLC rocket 

launches to individuals at the 

seasonally occupied Ugak Island 

haulout site. Monitoring would be 

conducted for launches that take place 

from June through October, the only 

time sea lions are likely to occupy the 

Ugak Island haulout. The haulout area 

would be monitored before, during, and 

after launch operations to document and 

characterize any observed responses. 

Monitoring would be designed to 

determine the type of disturbance 

reactions and their relationship to 

noises associated with rocket launches. 

Fixed-wing aerial surveys would be 

flown for any launches taking place 

from June through October using a 

minimum flight altitude of 152.5 m (500 

ft) ASL to be flown at low tide or, with 

consultation, toward evening. The 

aircraft would come no closer than 

one-quarter mile to the haulout. 

Depending on aircraft availability, one 

or two biologist observers would 

accompany the pilot. Data would be 

gathered both visually and on 35-mm 

color film with a camera having a zoom 

lens. A total of five surveys would be 

flown, if weather conditions permit. The 

first would occur the day prior to a 

scheduled launch and the second as

63120 Federal Register / Vol. 69, No. 209 / Friday, October 29, 2004 / Proposed Rules 

soon after the launch as possible. 

Replicate surveys would be flown the 

following three successive days to 

determine post-launch haulout-use 

patterns.

For any launches that occur from June 

through October, a real-time video 

record would be made of sea lions 

reactions to launch-related noises. This 

would be accomplished by the 

installation of a remote 

custom-designed, closed-circuit, 

weatherproof, time-lapse video camera 

system at the base of the Ugak Island sea 

lion haulout before a launch, which 

would be retreived post-launch. Results 

of the aerial and video surveys would be 

compared, providing information on 

startle effects and durations. In addition, 

video data would be time-correlated 

with rocket motor noise measurements 

to provide objective information on any 

startle responses or indications of 

disturbance reactions that may occur 

resulting from rocket launches. 

Comparisons would also be made with 

baseline data assembled by AADC to 

help gauge any natural trends that may 

be occurring.

Acoustical Measurements

Rocket motor noise monitoring would 

be done concurrently with video 

monitoring at the Ugak Island haulout. 

These data would be synchronized to 

the video data to document correlations 

between noise signatures and pinniped 

responses. Sound intensity and 

frequency metrics would be recorded 

before, during, and after a launch by an 

SLM mounted on a permanent 

stanchion upon the Ugak Island haulout 

one day or more before a launch and 

retrieved within one day post-launch. 

The SLM would be set to highlight 

sounds greater than 70 dBA.

Reporting

If indications of a disturbance to 

Steller sea lions are recorded, and/or if 

noise levels are observed above 100 

dBA, AADC would contact NMFS with 

such information. In the unanticipated 

event that any cases of pinniped 

mortality are judged to result from 

launch activities at any time during the 

period covered by these regulations, this 

event would be reported to NMFS 

immediately.

Data from monitoring activities would 

be reduced, analyzed, and reported to 

NMFS within 90 calendar days 

following cessation of field activities for 

each launch. The report would 

summarize the timing and nature of 

launch operations, summarize sea lion 

behavioral observations, and estimate 

the amount and nature of take by 

harassment. AADC would also include 

this information in its Annual 

Environmental Monitoring and Natural 

Resources Management Report.

An interim technical report is 

proposed to be submitted to NMFS 60 

days prior to the expiration of each 

annual LOA issued under these 

regulations, along with any request for 

a subsequent annual LOA. This interim 

technical report would provide full 

documentation of methods, results, and 

interpretation pertaining to all 

monitoring tasks for launches during the 

period covered by the LOA. However, 

only preliminary information would be 

available to be included for any 

launches during the 60–day period 

immediately preceding submission of 

the interim report to NMFS.

In addition to annual interim LOA 

reports, NMFS proposes to require 

AADC to submit a draft comprehensive 

final technical report to NMFS 180 days 

prior to the expiration of the 

regulations. This draft technical report 

would provide full documentation of 

methods, results, and interpretation of 

all monitoring tasks for launches during 

the first four LOA’s, plus preliminary 

information for launches during the first 

6 months of the final LOA.

National Environmental Policy Act 

(NEPA)

The FAA prepared an Environmental 

Assessment (EA) (June 1996) to evaluate 

the AADC’s proposal to construct and 

operate a launch site at Narrow Cape on 

Kodiak Island, Alaska. After reviewing 

and analyzing currently available data 

and information on existing conditions, 

project impacts, and measures to 

mitigate those impacts, and after 

considering public comments, the Office 

of the Associate Administrator for 

Commercial Space Transportation (AST) 

issued a Finding of No Significant 

Impact (FONSI) based on the 

determination that licensing the 

operation of the proposed launch site is 

not a major Federal action that would 

significantly affect the quality of the 

human environment, and that 

preparation of an Environmental Impact 

Statement (EIS) is not required (61 FR 

54248). NMFS is reviewing this EA and 

will either adopt it or perform its own 

NEPA analysis before making a 

determination on the issuance of an 

LOA.

Endangered Species Act (ESA)

Under section 7 of the ESA, NMFS 

has begun consultation on the proposed 

issuance of an incidental take 

authorization and regulations under 

section 101(a)(5)(A) of the MMPA for 

this activity. Consultation will be 

concluded prior to promulgation of a 

final rule. The final rule and LOAs 

issued thereunder will comply with the 

requirements of section 7(a)(2) of the 

ESA and the implementing regulations.

Classification

This action has been determined to be 

not significant for purposes of Executive 

Order 12866.

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 proposed rule, 

if adopted, would not have a significant 

economic impact on a substantial 

number of small entities. The rule 

would apply only to AADC, which may 

in turn use a small number of 

contractors to provide services related to 

the proposed reporting requirements. 

The rule would have no effect, directly 

or indirectly, on small businesses. 

Because of this certification, a 

regulatory flexibility analysis is not 

required.

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 proposed rule contains 

collection-of-information requirements 

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, and includes 

applications for LOAs and reports.

Information Solicited

Regulations, if issued, would 

authorize NMFS to issue annual LOAs 

for the taking of small numbers of 

Steller sea lions incidental to rocket 

launches associated with the ait, QRLV, 

STARS, and other commercial space 

launch programs from KLC. NMFS 

requests interested persons and 

organizations to submit comments, 

information, and suggestions concerning 

the request and the content of the 

proposed regulations to authorize 

taking. NMFS will consider this 

information in developing proposed 

regulations to authorize the taking. All 

commenters are encouraged to review 

the application prior to submitting 

comments.

List of Subjects in 50 CFR Part 216

Exports, Fish, Imports, Indians, 

Labeling, Marine mammals, Penalties, 

Reporting and record-keeping 

requirements, Seafood, Transportation.

Federal Register / Vol. 69, No. 209 / Friday, October 29, 2004 / Proposed Rules 63121

Dated: October 22, 2004.

Rebecca Lent,

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service.

For reasons set forth in the preamble, 

50 CFR part 216 is proposed to be 

amended as follows:

PART 216—REGULATIONS 

GOVERNING THE TAKING AND 

IMPORTING OF MARINE MAMMALS

1. The authority citation for part 216 

continues to read as follows:

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

2. Subpart S is added and reserved.

3. Subpart T is added and reserved.

4. Subpart U is proposed to be added 

to read as follows:

Subpart U—Taking of Marine Mammals 

Incidental to Rocket Launches From 

the Kodiak Launch Complex, Kodiak 

Island, AK

Sec.

216.230 Specified activity and specified 

geographical region.

216.231 Effective dates.

216.232 Permissible methods of taking.

216.233 Prohibitions.

216.234 Mitigation, monitoring and 

reporting.

216.235 Letter of Authorization.

216.236 Renewal of a Letter of 

Authorization.

216.237 Modifications to a Letter of 

Authorization.

Subpart U—Taking of Marine Mammals 

Incidental to Rocket Launches From 

the Kodiak Launch Complex, Kodiak 

Island, AK

§ 216.230 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 

rocket 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 Steller sea lions (Eumetopius 

jubatus).

§ 216.231 Effective dates.

Regulations in this subpart are 

effective from December 1, 2004, 

through November 30, 2009.

§ 216.232 Permissible methods of taking.

(a) Under a Letter of Authorization 

issued pursuant to § 216.106, the Alaska 

Aerospace Development Corporation 

and its contractors, may incidentally, 

but not intentionally, take those marine 

mammals specified in § 216.230(b) by 

Level B harassment, in the course of 

conducting missile launch activities 

within the area described in 

§ 216.230(a), provided all terms, 

conditions, and requirements of these 

regulations and such Letter of 

Authorization are complied with.

(b) The activities identified in 

§ 216.230(a) must be conducted in a 

manner that minimizes, to the greatest 

extent practicable, adverse impacts on 

marine mammals and their habitat.

§ 216.233 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.

(c) The incidental taking of any 

marine mammal of a species not 

specified, or in a manner not 

authorized, in this subpart.

§ 216.234 Mitigation, monitoring and 

reporting.

(a) The holder of the Letter of 

Authorization must implement the 

following measures for all launches 

occurring from June through October:

(1) Conduct five replicate fixed-wing 

aerial surveys of Steller sea lions hauled 

out at Ugak Island, each flown at low 

tide (weather permitting), using a 

minimum flight altitude of 500 feet 

ASL, with an approach no closer than 

one-quarter mile to the haulout, and 

conducted a day prior to, directly 

following, and for three consecutive 

days after a launch.

(2) At least one biologist observer will 

accompany the pilot during aerial all 

surveys.

(3) Data gathered during aerial 

surveys will be gathered visually and on 

color film through the use of a 35 mm 

camera with a zoom lens.

(4) A real-time video record of Steller 

sea lion reactions to launch noise will 

be made using a video camera system 

placed upon the Ugak Island haulout 

before a scheduled launch and then 

retrieved after the launch.

(5) Sound intensities and frequencies 

of rocket motor noise will be recorded 

before, during, and after a launch by a 

sound level monitor set to highlight 

sounds greater than 70 dBA that is 

mounted upon the Ugak Island haulout 

one day or more before a launch and 

retrieved within one day post-launch.

(b) The holder of the Letter of 

Authorization is required to cooperate 

with the National Marine Fisheries 

Service and any other Federal, state or 

local agency monitoring the impacts of 

the activity on marine mammals. Unless 

agreed to in writing otherwise, the 

holder must notify the Alaska Regional 

Administrator at least 2 weeks prior to 

commencing monitoring activities.

(c) Activities related to the monitoring 

described in paragraph (a) of this 

section, or in the Letter of Authorization 

issued under §§ 216.106 and 216.236 

may be conducted without a separate 

scientific research permit.

(d) In coordination and compliance 

with the Alaska Aerospace Development 

Corporation, at its discretion, the 

National Marine Fisheries Service may 

place an observer on Kodiak or Ugak 

Islands for any marine mammal 

monitoring activity prior to, during, or 

after a missile launch to monitor 

impacts on marine mammals.

(e) The holder of the Letter of 

Authorization must comply with any 

other applicable state or federal permits, 

regulations, and environmental 

monitoring agreements set up with other 

agencies.

(f) The National Marine Fisheries 

Service must be informed immediately 

of any proposed changes or deletions to 

any portions of the monitoring 

requirements.

(g) The holder of the Letter of 

Authorization must implement the 

following reporting requirements:

(1) If indications of a disturbance or 

injurious or lethal take are recorded, 

and/or if recorded noise levels are above 

100 dBA, the Alaska Regional 

Administrator, National Marine 

Fisheries Service, or his/her designee, 

will be contacted within 48 hours and, 

in cooperation with the National Marine 

Fisheries Service, launch procedure, 

mitigation measures, and monitoring 

methods must be reviewed and 

appropriate changes made prior to the 

next launch.

(2) Data from monitoring activities 

will be reported to the National Marine 

Fisheries Service within 90 days 

following cessation of field activities for 

each launch.

(3) An interim technical report must 

be submitted to the Office of Protected 

Resources and the Alaska Regional 

Office at least 60 days prior to the 

expiration of each annual Letter of 

Authorization. This report must contain 

the following information:

(i) Timing and nature of launch 

operations;

(ii) Summary of pinniped behavioral 

observations;

(iii) Estimate of the amount and 

nature of all takes by harassment or by 

other means.

(4) A draft comprehensive technical 

report will be submitted to the Office of

63122 Federal Register / Vol. 69, No. 209 / Friday, October 29, 2004 / Proposed Rules 

Protected Resources and Alaska 

Regional Office, National Marine 

Fisheries Service, 180 days prior to the 

expiration of these regulations with full 

documentation of the methods, results, 

and interpretation of all monitoring 

tasks for launches during all expired 

Letters of Authorization, plus 

preliminary information for launches 

during the first 6 months of the final 

Letter of Authorization.

(5) A revised final technical report, 

including all monitoring results during 

the entire period of the Letter of 

Authorization will be due 90 days after 

the end of the period of effectiveness of 

these regulations.

(6) Both the interim and draft 

comprehensive reports will be subject to 

review and comment by the National 

Marine Fisheries Service. Any 

recommendations made by the National 

Marine Fisheries Service must be 

addressed in the final comprehensive 

report prior to acceptance by the 

National Marine Fisheries Service.

§ 216.235 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 § 216.236.

(c) A Letter of Authorization will set 

forth:

(1) Species of marine mammals 

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 number of 

marine mammals taken by the activity 

will be small, and 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.

§ 216.236 Renewal of a Letter of 

Authorization.

(a) A Letter of Authorization for the 

activity identified in § 216.230(a) will be 

renewed upon:

(1) Notification to the National Marine 

Fisheries Service that the activity 

described in the application for a Letter 

of Authorization submitted under 

§ 216.235 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 the National Marine Fisheries 

Service of the monitoring reports 

required under § 216.234;

(3) A determination by the National 

Marine Fisheries Service that the 

mitigation, monitoring and reporting 

measures required under §§ 216.232 and 

216.234 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 be small and that the total 

taking 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) 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.

§ 216.237 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 the National 

Marine Fisheries Service until after 

notification and an opportunity for 

public comment has been provided. A 

renewal of a Letter of Authorization 

under § 216.236 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 

§ 216.230(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. 04–24234 Filed 10–28–04; 8:45 am]

BILLING CODE 3510–22–S

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

50 CFR Parts 216 and 300

[Docket No. 040920271–4271–01; I.D. 

102004A]

RIN 0648–AS05

Taking of Marine Mammals Incidental 

to Commercial Fishing Operations; 

Tuna Purse Seine Vessels in the 

Eastern Tropical Pacific Ocean (ETP)

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce.

ACTION: Proposed rule; collection-ofinformation requirements; request for 

comments.

SUMMARY: NMFS proposes regulations to 

implement resolutions adopted by the 

Inter-American Tropical Tuna 

Commission (IATTC) and by the Parties 

to the Agreement on the International 

Dolphin Conservation Program (IDCP). 

These regulations would prohibit 

activities that undermine the effective 

implementation and enforcement of the 

Marine Mammal Protection Act 

(MMPA), Dolphin Protection Consumer 

Information Act (DPCIA), and 

International Dolphin Conservation 

Program Act (IDCPA). This proposed 

rule would enlarge the class of vessels 

required to pay observer fees. The 

procedure to categorize tuna purse seine 

vessels as ‘‘active’’ in the Eastern 

Tropical Pacific Ocean (ETP) and the 

deadline for submitting vessel permit 

applications would change. Procedures 

are proposed for managing the capacity 

of the U.S. tuna purse seine fleet 

operating in the ETP through 

maintenance of a Vessel Register, the 

definitive list of vessels authorized to 

purse seine for tuna in the ETP. This 

proposed rule is intended to contribute 

to the long-term conservation of dolphin 

and tuna stocks and to ensure that the 

domestic tuna tracking and verification 

program remains consistent with 

international standards.

DATES: Comments on the proposed 

regulations must be received by 

November 29, 2004.

ADDRESSES: Send comments on the rule 

and the Initial Regulatory Flexibility 

Analysis to Jeremy Rusin, NMFS,