[Federal Register Volume 69, Number 209 (Friday, October 29, 2004)]
[Proposed Rules]
[Pages 63114-63122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24234]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 011011247[hyphen]4249[hyphen]02; I.D. 082701E]
RIN 0648[hyphen]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.

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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:
    <bullet> E[hyphen]mail: <a href="/cdn-cgi/l/email-protection#a3f3f1928d939b91949392e6e3cdccc2c28dc4ccd5"><span class="__cf_email__" data-cfemail="c09092f1eef0f8f2f7f0f18580aeafa1a1eea7afb6">[email protected]</span></a>. You must include the 
identifier 082701E in the subject line of the message. Comments sent 
via e[hyphen]mail, including all attachments, must not exceed a 
10[hyphen]megabyte file size.
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Hand[hyphen]delivery or mailing of paper, disk, or 
CD[hyphen]ROM comments: Stephen L. Leathery, Chief, Permits, 
Conservation and Education Division, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East[hyphen]West Highway, 
Silver Spring, MD 20910[hyphen]3225.
    To help us process and review your comments more efficiently, 
please use

[[Page 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[hyphen]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[hyphen]2322 
ext 117, or Brad Smith, (907) 271[hyphen]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[hyphen]owned lands, KLC occupies 43 acres (0.174 km\2\) within a 
3,100 acre (12.545 km\2\) 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[hyphen]2 (Lockheed Martin Vehicle[hyphen]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[hyphen]Pascal (micro[hyphen]Pa, or [micro]Pa); 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[hyphen]Pa\2\ 
[hyphen]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[hyphen]Pa as the reference pressure, which is 26 dB above the 
underwater sound pressure reference of 1 micro[hyphen]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[hyphen]weighted (dBC) sound levels. When frequency levels 
are made to correspond to human hearing, they are referred to as being 
A[hyphen]weighted or A[hyphen]filtered. With A[hyphen]weighting, sound 
energy at frequencies below 1 kHz and above 6 kHz are 
de[hyphen]emphasized and approximates the human ear's response to 
sounds below 55 dB. C[hyphen]weighting is often used in the analysis of 
high[hyphen]amplitude noises like explosions, and corresponds to the 
relative response to the human ear to sound levels above 85 dB. 
C[hyphen]weighting de[hyphen]emphasizes ear frequency components of 
less than about 50 Hz. C[hyphen]weight scaling is also useful for 
analyses of sounds having predominantly low[hyphen]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[hyphen]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

[[Page 63116]]

(QRLV) program, and comprised of single stage M[hyphen]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[hyphen]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[hyphen]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[hyphen]1

    The first launch from KLC occurred in November 1998, and was the 
first of the USAF ait program. Sound measurements from the ait[hyphen]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[hyphen]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[hyphen]1 at 
the Ugak Island haulout site were 78.2 dB re 20 [micro]Pa 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[hyphen]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[hyphen]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[hyphen]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[hyphen]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[hyphen]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[hyphen]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

[[Page 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[hyphen]based interceptors. STARS vehicles will 
include first[hyphen] and second[hyphen]stage Polaris A3 boosters and a 
third[hyphen]stage Orbus[hyphen]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[hyphen]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[hyphen]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[hyphen]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/prot_res/PR2/Stock_Assessment_Program/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[hyphen]induced physiological stress; this might (in 
turn) have negative effects on the well[hyphen]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[hyphen]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[hyphen]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

[[Page 63118]]

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[hyphen]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[hyphen]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[hyphen]1 on November 5, 1998; ait[hyphen]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[hyphen]2 launch 
monitoring period. Sixty to seventy animals were on the haulout about 
five hours pre[hyphen]launch. Due to below freezing temperatures, the 
video system shut off about four hours prior to the ait[hyphen]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[hyphen]2 launch is unknown. Although rocket noise might have caused 
the sea lions to flee the haulout, a clear[hyphen]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[hyphen]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[hyphen]response data tying sea lion behavior to rocket 
launches from KLC, the unusual, high[hyphen]intensity stimuli resulting 
from brief launch[hyphen]related sights and sounds means that 
evacuation of the Ugak haul[hyphen]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[hyphen]acoustic effects on marine 
mammals involving visual or other cues. However, other 
disturbance[hyphen]related data collected during the ait[hyphen]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[hyphen]2 
study shows hauled[hyphen]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[hyphen]Pa\2\ [hyphen]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 [hyphen] those west 
of 144[deg] 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[hyphen]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[hyphen]pup trend sites, haulout 
sites, and rookeries were conducted during 2000 (Sease et al.,

[[Page 63119]]

2001). The best available population estimate for the western stock of 
Steller sea lions is the sum of the total number of non[hyphen]pups 
counted in 2000 (25,384) and the number of pups counted in 1998 
(9,211). The 2000 count of non[hyphen]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[hyphen]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[hyphen]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[hyphen]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[hyphen]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[hyphen]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[hyphen]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[hyphen]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

[[Page 63120]]

soon after the launch as possible. Replicate surveys would be flown the 
following three successive days to determine post[hyphen]launch 
haulout[hyphen]use patterns.
    For any launches that occur from June through October, a 
real[hyphen]time video record would be made of sea lions reactions to 
launch[hyphen]related noises. This would be accomplished by the 
installation of a remote custom[hyphen]designed, closed[hyphen]circuit, 
weatherproof, time[hyphen]lapse video camera system at the base of the 
Ugak Island sea lion haulout before a launch, which would be retreived 
post[hyphen]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[hyphen]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[hyphen]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[hyphen]of[hyphen]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[hyphen]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[hyphen]keeping requirements, Seafood, 
Transportation.


[[Page 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


Sec.  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).


Sec.  216.231  Effective dates.

    Regulations in this subpart are effective from December 1, 2004, 
through November 30, 2009.


Sec.  216.232  Permissible methods of taking.

    (a) Under a Letter of Authorization issued pursuant to Sec.  
216.106, the Alaska Aerospace Development Corporation and its 
contractors, may incidentally, but not intentionally, take those marine 
mammals specified in Sec.  216.230(b) by Level B harassment, in the 
course of conducting missile launch activities within the area 
described in Sec.  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 Sec.  216.230(a) must be conducted 
in a manner that minimizes, to the greatest extent practicable, adverse 
impacts on marine mammals and their habitat.


Sec.  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 Sec.  216.106.
    (c) The incidental taking of any marine mammal of a species not 
specified, or in a manner not authorized, in this subpart.


Sec.  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[hyphen]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[hyphen]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[hyphen]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[hyphen]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 
Sec. Sec.  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

[[Page 63122]]

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.


Sec.  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 Sec.  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.


Sec.  216.236  Renewal of a Letter of Authorization.

    (a) A Letter of Authorization for the activity identified in Sec.  
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 Sec.  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 Sec.  
216.234;
    (3) A determination by the National Marine Fisheries Service that 
the mitigation, monitoring and reporting measures required under 
Sec. Sec.  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.


Sec.  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 Sec.  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[hyphen]being of the 
species or stocks of marine mammals specified in Sec.  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


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