Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Proposed Rules 80773 

objective. The statute also requires 

consideration of international standards 

and, where appropriate, that they be the 

basis for U.S. standards. PHMSA 

participates in the establishment of 

international standards in order to 

protect the safety of the American 

public, and we would assess the effects 

of any rule to ensure that it does not 

exclude imports that meet this objective. 

Accordingly, any proposals would be 

consistent with PHMSA’s obligations 

under the Trade Agreement Act, as 

amended. 

H. Statutory/Legal Authority for This 

Rulemaking 

49 U.S.C. 5103(b) authorizes the 

Secretary of Transportation to prescribe 

regulations for the safe transportation, 

including security, of hazardous 

materials in intrastate, interstate, and 

foreign commerce. 

I. Regulation Identifier Number (RIN) 

A regulation identifier number (RIN) 

is assigned to each regulatory action 

listed in the Unified Agenda of Federal 

Regulations. The Regulatory Information 

Service Center publishes the Unified 

Agenda in April and October of each 

year. The RIN contained in the heading 

of this document can be used to crossreference this action with the Unified 

Agenda. 

Issued in Washington, DC, on December 

17, 2010 under authority delegated in 49 CFR 

part 106. 

Magdy El-Sibaie, 

Associate Administrator for Hazardous 

Materials Safety. 

[FR Doc. 2010–32231 Filed 12–22–10; 8:45 am] 

BILLING CODE 4910–60–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 217 

[Docket No. 100806326–0374–01] 

RIN 0648–AY99 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to Space Vehicle 

and Missile Launch Operations at 

Kodiak Launch Complex, Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS has received an 

application, pursuant to the Marine 

Mammal Protection Act (MMPA), from 

the Alaska Aerospace Corporation 

(AAC) for authorization to take small 

numbers of marine mammals incidental 

to launching space launch vehicles, 

long-range ballistic target missiles, and 

other smaller missile systems at the 

Kodiak Launch Complex (KLC) for the 

period of February 2011 through 

February 2016. Pursuant to the MMPA, 

NMFS is requesting comments on its 

proposal to issue regulations and 

subsequent Letters of Authorization 

(LOAs) to AAC to incidentally harass 

Steller sea lions (Eumetopias jubatus) 

and harbor seals (Phoca vitulina) during 

the specified activity. 

DATES: Comments and information must 

be received no later than January 24, 

2011. 

ADDRESSES: You may submit comments, 

identified by 0648–AY99, by any one of 

the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal: http:// 

www.regulations.gov. 

• Hand delivery or mailing of paper, 

disk, or CD–ROM comments should be 

addressed to P. Michael Payne, Chief, 

Permits, Conservation and Education 

Division, Office of Protected Resources, 

National Marine Fisheries Service, 1315 

East-West Highway, Silver Spring, MD 

20910–3225. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. NMFS will 

accept anonymous comments (enter 

N/A in the required fields if you wish 

to remain anonymous). Attachments to 

electronic comments will be accepted in 

Microsoft Word, Excel, WordPerfect, or 

Adobe PDF file formats only. A copy of 

the application containing a list of 

references used in this document and 

Environmental Assessments (EAs) 

related to this action may be obtained by 

writing to the above address, by 

telephoning the contact listed under FOR

FURTHER INFORMATION CONTACT, or on the 

Internet at: http://www.nmfs.noaa.gov/ 

pr/permits/incidental.htm#applications. 

Documents cited in this proposed rule 

may also be viewed, by appointment, 

during regular business hours at the 

above address. To help NMFS process 

and review comments more efficiently, 

please use only one method to submit 

comments. 

FOR FURTHER INFORMATION CONTACT: 

Michelle Magliocca, Office of Protected 

Resources, NMFS, (301) 713–2289, ext 

123. 

SUPPLEMENTARY INFORMATION: 

Background 

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

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

the Secretary of Commerce to allow, 

upon request, the incidental, but not 

intentional, taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region if certain findings 

are made and either regulations are 

issued or, if the taking is limited to 

harassment, a notice of a proposed 

authorization is provided to the public 

for review. 

Authorization for incidental takings 

shall be granted if NMFS finds that the 

taking will have a negligible impact on 

the identified species or stock(s), will 

not have an unmitigable adverse impact 

on the availability of the species or 

stock(s) for subsistence uses (where 

relevant), and if the permissible 

methods of taking and requirements 

pertaining to the mitigation, monitoring 

and reporting of such takings are set 

forth in the regulations. NMFS has 

defined ‘‘negligible impact’’ in 50 CFR 

216.103 as ‘‘* * * an impact resulting 

from the specified activity that cannot 

be reasonably expected to, and is not 

reasonably likely to, adversely affect the 

species or stock through effects on 

annual rates of recruitment or survival.’’ 

Except with respect to certain 

activities not pertinent here, the MMPA 

defines ‘‘harassment’’ as: 

Any act of pursuit, torment, or annoyance 

which (i) has the potential to injure a marine 

mammal or marine mammal stock in the wild 

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

to disturb a marine mammal or marine 

mammal stock in the wild by causing 

disruption of behavioral patterns, including, 

but not limited to, migration, breathing, 

nursing, breeding, feeding, or sheltering 

[Level B harassment]. 

Summary of Request 

On June 4, 2010, NMFS received a 

complete application for regulations 

from AAC for the taking of small 

numbers of marine mammals incidental 

to launching space launch vehicles, 

long-range ballistic target missiles, and 

other smaller missile systems at the 

KLC. Noise from space vehicles and 

missile launches may result in the 

behavioral (Level B) harassment of 

hauled-out Steller sea lions and harbor 

seals and injury (Level A harassment) or 


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mortality of harbor seal pups on Ugak 

Island. On January 19, 2006, NMFS 

issued regulations and subsequent LOAs 

to AAC authorizing the taking of marine 

mammals incidental to launches at KLC 

(71 FR 4297; January 26, 2006). Those 

regulations expire on February 28, 2011; 

hence, AAC has applied for new 

regulations. The proposed regulations, if 

issued, would be effective from March 

1, 2011 through February 28, 2016. 

Description of the Specified Activity 

AAC conducts space vehicle and 

missile launches from the KLC. This 

facility occupies 3,717 acres of stateowned lands on the Narrow Cape 

Peninsula on the eastern side of Kodiak 

Island, Alaska, approximately 22 miles 

from the city of Kodiak. Ugak Island, 

which is used by Steller sea lions and 

harbor seals, lies approximately 3–4 

miles to the southeast of the launch 

pads (see Figure 1 in application). The 

island is about 2 miles long by about 1 

mile wide. The land slopes steeply 

upward from a spit on the island’s 

northern most point, which is a 

traditionally used Steller sea lion 

haulout (see Figures 4 and 5 in 

application), to the southwest, 

culminating in cliffs that are 

approximately 1,000 feet in elevation. 

These cliffs run the entire length of the 

island’s long axis. Eastward, the narrow 

Outer Continental Shelf (OCS) ends 

about 20 miles offshore, where it 

plunges precipitously to the North 

Pacific abyss. Near shore water depths 

to the immediate south and west of the 

island range to several hundred feet. 

Harbor seal haulouts are present mainly 

on Ugak Island’s eastern shores. 

The area considered to be affected by 

KLC launch operations was defined in 

a September 1996 meeting involving 

AAC and its environmental consultant 

(University of Alaska Anchorage’s 

Environment and Natural Resources 

Institute), and government agencies 

represented by the Federal Aviation 

Administration (FAA), NMFS, the U.S. 

Fish and Wildlife Service (FWS), and 

the Alaska Department of 

Environmental Conservation (ADEC). 

Attendees at that meeting reviewed 

information on the known effects of 

rocket operations on the environment, 

and defined the expected impact area to 

be within a 6-mile radius of the launch 

pad area, including Ugak Island. There 

are several marine mammals present in 

the waters offshore and on haulouts on 

Ugak Island, which lies about 3.5 miles 

distance from the launch pad area; 

however, the only marine mammals 

anticipated to be affected by the 

specified activities are pinnipeds 

hauled-out on nearby Ugak Island. 

The KLC primarily supports launches 

of small to medium space launch 

vehicles—which by definition are those 

used to boost satellites to orbit—ranging 

in size from the small space-launch 

Castor 120 motor (used in the Athena, 

Minotaur IV, Minotaur V, and Taurus I 

systems) to the under-development 

medium-lift Taurus II. The KLC is also 

configured to support launch of the 

Minuteman I-derived Minotaur I Space 

Launch System, and to support launch 

of long-range ballistic systems such as 

the Polaris derived A–3 STARS, the 

Minuteman-derived Minotaur II and III, 

and the C–4. Representative target 

vehicles that might be flown from KLC 

range in size from modified C–4 Trident 

I vehicles, which have a range measured 

in thousands of miles, down to small 

vehicles built up from modified second 

or third stage components of larger 

missile systems, which have much 

shorter ranges. The Quick Reaction 

Launch Vehicle (QRLV) family serves as 

an example of vehicles flown from KLC, 

being built around second stage motors 

used in the Minuteman I. Tactical 

missiles, such as the Patriot and Theater 

High Altitude Area Defense (THAAD) 

might also be flown from KLC, as well 

as very small sounding rockets. 

Launches may occur day or night. The 

number of launches of space launch 

vehicles and ballistic target vehicles 

from KLC is variable. Launch planning 

is a dynamic process, and launch 

delays, which can last from hours to 

more than a year, can and do occur. 

Launch delays occur due to variables 

ranging from technical issues to adverse 

weather. The AAC anticipates the KLC 

can accommodate up to 45 launches, in 

total, for the effective period of the 

proposed regulations. Annually, an 

average of nine but maximum of twelve 

launches may occur. Most of these 

vehicles are expected to be of the 

Minotaur I through V class, including 

civil versions of the Castor 120 known 

as the Athena and Taurus I or smaller 

target vehicles. AAC estimates that of 

the 45 estimated launches from KLC 

over the five-year period in 

consideration, 32 will be of small spacelaunch and target vehicles of the Castor 

120 or smaller size, 10 will be of 

THAAD or smaller size, and three will 

be of the medium-lift Taurus II. A 

description of each class of space 

launch and smaller launch vehicles are 

provided in the application and 

summarized here. 

Castor 120 

The Castor 120 is the largest (and 

loudest) vehicle motor used to launch 

systems into space from the KLC. The 

Castor 120 uses solid fuel and produces 

about 371,000 pounds of thrust. The 

motor mass is about 116,000 pounds 

and the motor is 347 inches long and 93 

inches wide. Modeling shows the rocket 

is about 8 miles above the earth’s 

surface when it overflies Ugak Island, 

and that the sonic boom reaches earth 

between 21 to 35 miles down range, 

which is past the OCS break and over 

the North Pacific abyss (US FAA 1996). 

Sound pressure levels from the Castor 

120 measured at the traditional Steller 

sea lion haulout (located on the 

northern spit of Ugak Island) were 101.4 

dBA (SEL) (Table 1). This location is 3.5 

miles away from the launch pad. None 

of the vehicles expected to be flown 

from KLC over the five-year period 

covered by the proposed regulations are 

anticipated to produce higher sound 

pressures than the Castor 120. 

Taurus II 

The Taurus II is an under 

development, medium class launch 

vehicle similar in size and capability to 

the Delta II, which is being withdrawn 

from service. The U.S. Air Force reports 

that sound pressures of the Delta II were 

slightly less than those from the Taurus 

I (Castor 120) as measured from the 

same point (USAF 2008), thus the 

anticipated sound pressure from the 

very similar Taurus II at the traditional 

Steller sea lion haulout on Ugak Island 

is likely to be at or somewhat less than 

the 101.4 dBA (SEL) recorded for the 

Castor 120. 

Minotaur I 

The Minotaur I is a small lift solid 

propellant space launch vehicle, the 

first stage of which is a modified 

Minuteman II first stage. The first stage 

motor has a diameter of 4.5 feet. This 

launch vehicle has not yet been flown 

from KLC. Sound pressure monitoring 

of two Minotaur I launches was 

accomplished at Vandenberg Air Force 

Base, California (VAFB). The data were 

collected 1.4 miles away from the 

launch point and show sound pressure 

levels of 104.9 to 107.0 dBA (SEL) at 

that distance. Sound energy at sea level 

decreases with the square of the 

distance, and given that the traditional 

Steller sea lion haulout on Ugak Island 

is 2 miles farther away (i.e. the haulout 

is 3.5 miles from the launch point), AAC 

anticipates sound pressure levels from a 

Minotaur I at the Ugak Island traditional 

haulout would range in the low 90s dBA 

(SEL). 

C–4 Trident 

The C–4 Trident I is a solid-fueled 

vehicle and its first stage has a diameter 

of 6.1 feet, which is about 1.5 feet less 

than the Castor 120. The system’s range 


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is around 4,000 miles. It has never been 

flown from KLC, but given it is 

significantly smaller in diameter than 

the Castor 120 and uses a similar fuel, 

it is anticipated that sound pressure 

levels at the traditional Steller sea lion 

haulout would be less than those of the 

Castor 120. NMFS is not aware of any 

available data on sound pressure for the 

C–4 Trident. 

STARS 

The Strategic Target System (STARS) 

utilizes the first stage of the Polaris 

A–3, which is solid fueled and measures 

4.5 feet in diameter. Several STARS 

systems have been flown from KLC. 

Recorded sound pressure levels at Ugak 

Island have ranged from 90.2 to 91.4 

dBA (SEL). 

Smaller Target and Tactical Rocket 

Systems 

A number of smaller tactical missile 

systems, such as the Patriot and Theater 

High Altitude Area Defense (THAAD), 

might also be flown from KLC, as might 

very small sounding rockets. Sound 

pressures from these smaller systems are 

not available, but will be substantially 

less than those from the space launch 

and ballistic vehicles described above 

and pose no potential for disturbance to 

marine mammals. 

Launch Noise 

Launch operations are a major source 

of noise on Kodiak Island, as the 

operation of launch vehicle engines 

produce substantial sound pressures. In 

air, all pressures are referenced to 20 

micoPascals; therefore all dB levels in 

this notice are provided re: 20 microPa, 

unless otherwise noted. Generally, four 

types of noise occur during a launch: (1) 

Combustion noise; (2) jet noise from 

interaction of combustion exhaust gases 

with the atmosphere; (3) combustion 

noise proper; and (4) sonic booms. 

Sonic booms are not a concern for 

pinnipeds on Ugak Island, as sonic 

booms created by ascending rockets 

launched from KLC reach the Earth’s 

surface over deep ocean, well past the 

edge of the OCS (FAA 1996). Spent first 

stage motors from space lift missions 

(i.e. those going to orbit) fall to Earth 11 

to more than 300 miles down range 

(well past the edge of the OCS, 

depending on launch vehicle (US FAA 

1996). In accordance with Federal 

Aviation Administration (FAA), Office 

of Associate Administrator for 

Commercial Space Transportation 

(AST), and 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), launch noise 

from various systems were measured on 

Ugak Island. In addition, a Natural 

Resource Management Plan (NRMP) was 

developed in coordination with NMFS 

to address monitoring and mitigation 

activities for protected species in the 

area and compare anticipated sound 

pressure levels from KLC launches with 

documented marine mammal 

disturbance responses to such noise. 

Motor diameters and representative 

sound pressures for various launch 

vehicles previously launched from KLC 

are presented in Table 1. A complete 

description of how and when these 

measurements were taken is described 

in NMFS’ final rule for AAC’s current 

regulations (71 FR 4297; January 26, 

2006). The vehicles listed in Table 1 

include various ballistic launch vehicles 

and the small-lift Castor 120 space 

launch vehicle, as well as smaller target/ 

interceptor systems and tactical rocket 

systems. All KLC sound measurements 

reported in Table 1 were taken on Ugak 

Island. The Castor 120 would be the 

loudest space vehicle motor used during 

launches at the KLC. Copies of the 

NRMP referred to above may be 

obtained online at http:// 

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

incidental.htm and from the contacts in 

ADDRESSES, above. 

TABLE 1—RECORDED SOUND PRESSURE LEVELS AT UGAK ROCK HAULOUT DURING PREVIOUSLY LAUNCHED SPACE

VEHICLES AND SIZE OF POTENTIALLY LAUNCHED SPACE VEHICLES (FOR COMPARATIVE PURPOSES) 

Launch designator Launch vehicle Date Distance to 

haulout 

Motor 

diameter 

(feet)1

SEL 

(dBA) 

Lmax 

(dBA) 

LPeak 

(dCBA) 

Previously Launched & Recorded at KLC 

ait-1 .................................. QRLV ............................... 11/5/98 3.5 miles 2 ... 4.3 88.4 78.2 97.0 

ait-2 .................................. QRLV ............................... 9/15/99 3.5 miles 2 ... 4.3 92.2 81.5 101.5 

QRLV ............................... QRLV ............................... 3/22/01 3.5 miles 2 ... 4.3 80.3 73.3 87.2 

Athena .............................. Castor 120 ....................... 9/29/01 3.5 miles 2 ... 7.75 101.4 90.8 115.9 

FT–04–1 ........................... Polaris A–3 STARS ......... 2/23/06 4.1 miles 3 ... 4.5 92.3 86.0 109.0 

FTG–02 ............................ Polaris A–3 STARS ......... 9/01/06 4.1 miles 3 ... 4.5 90.1 83.1 105.6 

FTG–03a .......................... Polaris A–3 STARS ......... 9/28/07 4.5 miles 4 ... 4.5 91.4 84.2 107.3 

FTX–03 ............................ Polaris A–3 STARS ......... 7/18/08 4.5 miles 4 ... 4.5 89.6 83.0 108.3 

Potentially Launched in Future 

Taurus II .......................... .................... ..................... .................... 5 <101.4 .................... ....................

Minotaur I ......................... .................... ..................... 4.5 5 90+ .................... ....................

C–4 Trident I .................... .................... ..................... 6.1 .................... .................... ....................

Castor I ............................ .................... ..................... 2.6 .................... .................... ....................

SR19/SR773 .................... .................... ..................... 4.3 .................... .................... ....................

SR19/SR19 ...................... .................... ..................... 4.3 .................... .................... ....................

Castor IVB ....................... .................... ..................... 3.3 .................... .................... ....................

Patriot .............................. .................... ..................... 1.3 .................... .................... ....................

THAAD ............................. .................... ..................... 1.25 .................... .................... ....................

1 Motor sound pressures from solid fueled motors are directly correlated to motor diameter. 

2Traditionally used Steller sea lion seasonal haulout; use has declined significantly in recent times. 

3Alternate Steller sea lion haulout, a tidally exposed small rock located midway between the traditional haulout and the northeastern most 

cape of Ugak Island. 4Second alternate Steller sea lion haulout located on the northeastern most cape of Ugak Island. 

5Estimated. 


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Another component of the AAC’s 

launches includes security overflights. 

In the days preceding the launch, these 

occur approximately 3 times per day 

based on the long-term average. Flights 

associated with the launch will not 

approach occupied pinniped haulouts 

on Ugak Island by closer than 0.25 mile 

(0.4 km), and will maintain a vertical 

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

haulouts when within 0.5 miles (0.8 

km), unless indications of human 

presence or activity warrant closer 

inspection of the area to assure that 

national security interests are protected 

in accordance with law. Over the 

operational history of these flights, 

aircraft have been operated within the 

0.25 mile limit on two occasions; both 

involved direct overflight of the Steller 

sea lion haulout spit, which was 

unoccupied each time the incursions 

occurred. 

Description of Marine Mammals in the 

Area of the Specified Activity 

AAC’s current MMPA regulations (71 

FR 4297), which are set to expire 

February 28, 2011, require aerial 

surveys be conducted before and after 

each launch to monitor for presence and 

abundance of marine mammals within 

the designated 6 mile action area. In 

compliance with these conditions, the 

AAC has completed these surveys since 

2006. Aerial survey data indicate that 

Steller sea lions, harbor seals, gray 

whales (Eschrichtius robustus), 

humpback whales (Megaptera 

novaeangliae), and sea otters (Enhydra 

lutris) occur within the action area. 

Although potentially present, cetaceans 

within the action area are not expected 

to be taken during the specified 

activities. Airborne noise is generally 

reflected at the sea surface outside of a 

26° cone extending downward from the 

ascending rocket (Richardson et al. 

1995); therefore, little sound energy 

passes into the sea across the air-water 

boundary. Submerged animals would 

have to be directly underneath the 

rocket to hear it, and given the 

hypersonic velocity of launch vehicles 

in the atmosphere, the duration of 

sounds reaching any cetacean would be 

discountable. In addition, all spent 

rocket motors will fall into the open 

ocean over deep water. Given the very 

short time a cetacean is at the surface, 

direct impact from spent motors can be 

discounted as can any noise related 

impacts. Based on these reasons, NMFS 

does not anticipate take of cetaceans 

incidental to the specified activity; 

hence, they will not be discussed 

further. Sea otters are managed by the 

U.S. Fish and Wildlife Service; therefore 

no take of sea otters is included in the 

proposed regulations. As such, this 

species is not discussed further in this 

proposed rule. 

Steller Sea Lion 

Steller sea lions are designated into 

two stocks by NMFS. Those west of 144° 

longitude, which includes the KLC area, 

are listed as endangered under the ESA. 

Historically, mature and sub-adult 

males have used a spit on the 

northwestern side of Ugak Island as a 

post-breeding haulout. This spit is 

located 3.5 miles from the launch pad 

complex (see figure 4 and 5 in the 

application). The historic occupancy 

period ranges from June to September 

(post breeding), with peak reported 

numbers in the hundreds (Sease 1997; 

ENRI 1995–1998). However, use has 

declined in recent times in keeping with 

general declines seen in the species as 

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

been surveyed once yearly, with June as 

the target, since the 1990s. Counts since 

2000 have generally been zero (e.g., 

NMFS, 2009; Fritz and Stinchcomb, 

2005), which is in line with the counts 

from all other long-term trend count 

sites in the Kodiak Archipelago over the 

same time period. All of these other 

long-term trend sites are far removed 

from the 6 mile radius anticipated 

impact area up range from KLC (i.e. 

areas opposite to the flight path), in 

areas not exposed to launch noise. 

Hence, Steller sea lion abundance has 

declined throughout the region, not just 

the area affected by launches, and the 

losses are likely not a result of or 

connected with the launches or use of 

KLC. 

Data from AAC’s aerial surveys over 

the past four years also support low use 

of the haulout. Since 1999, five 

launches have occurred during the 

Steller sea lion season. The spit haulout 

has not been used by Steller sea lions 

during launch-monitoring surveys since 

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

however one to several Stellar sea lions 

have been observed from time-to-time 

during recent launch surveys utilizing a 

supratidal rock on eastern Ugak Island 

(termed East Ugak Rock) as a haulout. 

Tables 2 and 4 in the application 

provide a breakdown of survey results 

per day. In summary, two to eight sea 

lions were observed per day on East 

Ugak Rock during surveys for the FTG– 

02 launch (R&M, 2006b) and one to five 

(per day) were observed during the 

FTX–03 launch (R&M, 2008). In 

addition, during one aerial survey that 

was completed outside the JuneSeptember timeframe (during the FTG– 

05 campaign in December 2008), a 

single Stellar sea lion was observed on 

East Ugak Rock. Eastern Ugak Rock is 

located farther east and to the south of 

the KLC than Ugak Island; therefore, one 

can assume launch generated sound 

levels here are less than those at Ugak 

Island. 

Harbor Seals 

Harbor seals are the most abundant 

marine mammal species found within 

the action area. Harbor seals are not 

listed as threatened or endangered 

under the ESA or as depleted under the 

MMPA. Based on AAC aerial survey 

counts from launch monitoring reports 

conducted since January 2006, 

approximately 97% of all harbor seals 

are found on the eastern shore of Ugak 

Island, approximately 5 miles from the 

launch pad complex. The eastern shore 

is backed by high steep cliffs that reach 

up to 1,000 feet above sea level. These 

cliffs form a visual and acoustic barrier 

to rocket operations, and limit effects on 

the species. This conclusion is based on 

review of sound pressure recordings 

made at the haulout spit found on the 

island’s northwestern shore, which 

showed surf and wind-generated sound 

pressures at sea level were generally in 

the >70 dBA (SEL) range on the clearest 

days (Cuccarese et al. 1999, 2000). 

During inclement weather periods 

ambient sound pressures at sea level can 

exceed 100 dBA (SEL). The island’s 

eastern shore is windward to prevailing 

winds and surf noise is routinely high. 

Harbor seals located on Ugak Island’s 

northern shore are not as protected from 

launch noise, and therefore may be 

harassed incidental to AAC’s specified 

activity. However, harbor seal 

abundance on the northern shores is 

limited due to the lack of suitable 

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

aerial surveys conducted by AAC during 

six rocket launches from 2006–2008, no 

seals were observed on North Ugak 

Island on 19 occasions. On surveys 

when seals were present, average 

abundance was 25 with a single day 

count of 125 individuals. 

Because physical access to Ugak 

Island harbor seal haulouts is difficult 

and dangerous, the only abundance and 

behavior data of these seals have been 

derived from aerial surveys conducted 

by AAC. Harbor seals generally breed 

and molt where they haulout, so it is 

assumed that both of these activities 

take place on Ugak Island, and young 

seals have routinely been seen there 

during launch-related aerial surveys. 

Pupping in Alaska takes place generally 

in the May-June time frame; molting 

occurs generally from June to October. 

Both periods contain peaks in haulout 

attendance. Total counts on Ugak Island 

have increased steadily since the 1990s 


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from several hundred (ENRI 1995–1998) 

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

2007a, 2007b, 2008, 2009). 

Potential Effects on Marine Mammals 

As discussed above, launch 

operations are a major source of noise 

on Kodiak Island and can reach Steller 

sea lion and harbor seal haulouts and 

rookeries on Ugak Island. Marine 

mammals produce sounds in various 

contexts and use sound for various 

biological functions including, but not 

limited to (1) Social interactions; (2) 

foraging; (3) orientation; and (4) 

predator detection. Interference with 

producing or receiving these sounds 

may result in adverse impacts. Audible 

distance, or received levels (RLs) will 

depend on the nature of the sound 

source, ambient noise conditions, and 

the sensitivity of the receptor to the 

sound (Richardson et al., 1995). Type 

and significance of marine mammal 

reactions to noise are likely to be 

dependent on a variety of factors 

including, but not limited to, the 

behavioral state (e.g., resting, 

socializing, etc.) of the animal at the 

time it receives the stimulus, frequency 

of the sound, distance from the source, 

and the level of the sound relative to 

ambient conditions (Southall et al., 

2007). In general, marine mammal 

impacts from loud noise can be 

characterized as auditory and nonauditory. 

Potential Auditory Impacts 

Auditory impacts consist of injurious 

(e.g., ruptured ear drums, permanent 

threshold shift [PTS]) or non-injurious 

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

effects. There are no empirical data for 

onset of PTS in any marine mammal; 

therefore, PTS-onset must be estimated 

from TTS-onset measurements and from 

the rate of TTS growth with increasing 

exposure levels above the level eliciting 

TTS-onset. PTS is presumed to be likely 

if the hearing threshold is reduced by ≥ 

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

Given the distance from the pad area 

to Ugak Island and the measured sound 

levels from the Castor 120 (101.4 dB), 

for the loudest space vehicle used at the 

KLC, pinniped auditory injury is not 

anticipated. To further justify that the 

potential for PTS does not exist, we 

examined Auditory Brainstem Response 

(ABR) testing on 18 seals during rocket 

launches at Vandenberg Air Force Base. 

Rocket launches at VAFB create sonic 

booms over pinniped haulouts; 

therefore, noise from these launches are 

much louder than what would be 

audible at haulouts on Ugak Island 

(sonic booms are not audible from Ugak 

Island). These experiments are 

described in detail in NMFS’ 2009 EA 

on the Issuance of Regulations to Take 

Marine Mammals by Harassment 

Incidental to Space Vehicle and Test 

Flight Activities from Vandenberg Air 

Force Base, California. In summary, 

ABR testing on harbor seals was 

conducted after one Delta IV launch in 

2006. During this launch the digital 

audio tape (DAT) recorder was located 

at the VAFB Boathouse (near where the 

harbor seal hearing tests were 

performed). The DAT measured the 

unweighted SEL at 131.3 dB, the Cweighted SEL at 127.5 dB, and the Aweighted SEL at 111.3 dB. The Lmax 

was measured at 102.6 dB (Thorson et 

al., 2007). Harbor seal ABR results 

concluded that there was no evidence 

that the launch noise from the Delta IV 

launch, which has an associated sonic 

boom, caused a loss in harbor seal 

hearing acuity. Therefore, PTS is not a 

concern for pinnipeds exposed to 

launch noise from the KLC as noise 

levels at this location are below those 

experienced during the Delta IV launch, 

and sonic booms are not audible on 

Ugak Island. 

Regarding TTS, although hearing 

sensitivity was not apparently affected 

during the ABR testing, that is not to say 

that TTS did not occur, as seals were 

tested approximately 2 hours after 

launch, not immediately following the 

launch. However, if TTS did occur, 

hearing was fully recovered within 2 

hours. In conclusion, NMFS has 

preliminarily determined PTS would 

not occur in pinnipeds on Ugak Island 

and TTS, although unlikely, may occur. 

If pinnipeds on Ugak Island experience 

TTS, full-hearing recovery is expected 

shortly after exposure. 

Potential Behavioral Impacts 

To comply with their current 

regulations, AAC attempted to collect 

video footage of pinnipeds during 

launches; however, weather, technical, 

and accessibility issues prevented video 

from being obtained. Therefore, no 

immediate responses of pinnipeds to 

AAC launch noise have been 

documented. However, as discussed 

above, VAFB researchers have been 

investigating the short and long-term 

effects of space vehicle launch noise 

and sonic booms on pinnipeds. As 

described in NMFS’ 2009 EA, the 

percentage of seals that left the haul-out 

increased as noise level increased up to 

approximately 100 decibels (dB) Aweighted SEL, after which almost all 

seals leave, although recent data have 

shown that an increasing percentage of 

seals have remained on shore. Using 

time-lapse video photography, VAFB 

discovered that during four launch 

events, the seals that reacted but 

remained on the haulout were all adults. 

VAFB theorized that adult seals may 

have habituated to launch stimuli more 

so than less-experienced younger seals; 

hence the less-severe reactions. 

VAFB researchers also found that the 

louder the launch noise, the longer it 

took for seals to begin returning to the 

haul-out site and for the numbers to 

return to pre-launch levels. In two past 

Athena IKONOS launches with Aweighted SELs of 107.3 and 107.8 dB at 

the closest haul out site, seals began to 

haul-out again approximately 16 to 55 

minutes post-launch (Thorson et al., 

1999a; 1999b). During several Titan II 

launches, where A-weighted sound 

exposure levels ranged from 86.7 to 95.7 

dBA, seals began to return to that 

haulout site within 2 to 8 minutes postlaunch (Thorson and Francine, 1997; 

Thorson et al., 2000). Based on VAFB 

observational data and the loudest 

measured sound pressure level recorded 

on Ugak Island (approximately 101.4 

dBA), NMFS anticipates that if seals and 

sea lions are disturbed, they may begin 

to return to haulout sites on Ugak Island 

within 2 to 55 minutes of the launch 

disturbance. 

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 lion 

stampedes into the water that could not 

be correlated with any observed 

stimulus. There is also evidence that 

both time of day and air 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). 

The infrequent (approximately nine 

times per year) and brief (no more than 

1 minute as heard from Ugak Island) 

nature of these sounds that would result 

from a rocket launch is not expected to 

alter the population dynamics of Steller 

sea lions or harbor seals which utilize 


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Ugak Island as a haulout site. Current 

harbor seal numbers on Ugak Island 

total around 1,500 (R&M 2009), which is 

an increase of about 1,100 since the 

1990s (ENRI 1995–1998); therefore, 

population dynamics of harbor seals 

have also not been negatively impacted 

from past launches originating from 

KLC. Steller sea lion numbers have 

decreased on Ugak Island; however, this 

decline mimics that seen at all other 

long-term trend sites in the Kodiak 

Archipelago. AAC has only launched no 

more than two rockets per year during 

the Steller sea lion season, annually; 

and thus, it is highly unlikely that AAC 

launches are the cause of this 

phenomenon, which is more likely 

related to overall population decline or 

prey resource availability. 

If launches occur during the harbor 

seal pupping period and harbor seals 

have also chosen to pup on the north 

beach, it is possible that harbor seal 

pups could be injured or killed as a 

result of the adults flushing in response 

to the rocket noise, or the mother/pup 

bond could be permanently broken. 

However, NMFS does not expect harbor 

seal pup injury and mortality to occur 

to a great degree. Harbor seal pups are 

extremely precocious, swimming and 

diving immediately after birth and 

throughout the lactation period, unlike 

most other phocids which normally 

enter the sea only after weaning 

(Lawson and Renouff, 1985; Cottrell et 

al., 2002; Burns et al., 2005). NMFS 

recognizes the critical bonding time 

needed between a harbor seal mother 

and her pup to ensure pup survival and 

maximize pup health. Harbor seals pups 

are weened from their mother within 

approximately 4 weeks; however, the 

most critical bonding time is 

immediately (minutes) after birth. 

Lawson and Renouf (1987) conducted 

an in-depth study to investigate harbor 

seal mother/pup bonds in response to 

natural and anthropogenic disturbance. 

In summary, they found that a mutual 

bond is developed within 5 minutes of 

birth, and both the mother and pup play 

a role in maintaining contact with each 

other. The study showed a bilateral 

bond, both on land and in the water, 

and that mothers would often wait for 

or return to a pup if it did not follow 

her. Pups would follow or not move 

away from their mother as she 

approached. Most notably, mothers 

demonstrated overt attention to their 

pups while in the water and during 

times of disturbance on the nursery. 

Increased involvement by the mothers 

in keeping the pairs together during 

disturbances became obvious as they 

would wait for, or return to, their young 

if the pups fell behind. 

In additional to incidental 

harassment, harbor seal pups have been 

the subject of numerous research studies 

resulting in direct, intentional 

harassment. Research activities often 

include capture and handling of very 

young pups and separating pups from 

their mothers for short periods of time. 

Scientists report they have disturbed 

seals during capture, then left the area 

within approximately 1 hour. Seals 

return to the haulout site within 

minutes of the scientists leaving the 

beach (J. Harvey to M. DeAngelis, pers. 

comm., Jan. 12), further demonstrating 

harbor seal pup resilience to 

disturbance. Given that pups are 

precocious at birth, bonds between 

mothers and pups are known to form 

within minutes of birth, and other 

characteristics of mother/pup bonding 

described above, NMFS has 

preliminarily determined that Level A 

harassment or mortality may not occur 

due to the pups precociousness and the 

early bond formed between mothers and 

pups; however, it cannot be discounted. 

Therefore, NMFS is proposing to 

authorize Level A harassment and 

mortality for harbor seal pups. Steller 

sea lion pup injury or mortality is not 

a concern as no pupping for this species 

occurs within the action area. 

Finally, KLC conducts approximately 

three security overflights per day in the 

days preceding a launch. Several studies 

of both harbor seals and Steller sea lions 

cited in Richardson et al. (2005), suggest 

that these animals respond significantly 

less to overflights of both planes and 

helicopters that occur above 305 m (0.2 

mi). NMFS does not anticipate 

harassment from overflights to occur as 

they generally would remain at least 

0.25 miles from a haulout; however, if 

pilot or crew notice overt responses 

from pinnipeds (e.g., flushing) to 

aircraft, this would be noted and 

reported to NMFS in the flight report. 

Observations made of any animals 

displaced by a security overflight are 

reported to the environmental 

monitoring team for inclusion in their 

report of monitoring results. 

Anticipated Effects on Habitat 

Solid fuel rocket boosters 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 occur 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 cone of 

approximately 26 degrees directly below 

the launch vehicle, would not penetrate 

into the water column. The sounds that 

would 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. 

Proposed Mitigation 

In order to issue an incidental take 

authorization (ITA) under section 

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

set forth the permissible methods of 

taking pursuant to such activity, and 

other means of effecting the least 

practicable adverse impact on such 

species or stock and its habitat, paying 

particular attention to rookeries, mating 

grounds, and areas of similar 

significance, and on the availability of 

such species or stock for taking for 

certain subsistence uses. 

To minimize impacts on pinnipeds at 

haulout sites, the AAC has proposed, as 

part of their specified activities, the 

following mitigation measures: (1) 

Security overflights immediately 

associated with the launch would not 

approach occupied pinniped haulouts 

on Ugak Island by closer than 0.25 mile 

(0.4 km), and would maintain a vertical 

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

haulouts when within 0.5 miles (0.8 

km), unless indications of human 

presence or activity warrant closer 

inspection of the area to assure that 

national security interests are protected 

in accordance with law; (2) AAC would 

avoid launches during the harbor seal 

pupping season (May 15–June 30), 

unless constrained by factors including, 

but not limited to, human safety and 

national security; and (3) if launch 

monitoring or quarterly aerial surveys 

indicate that the distribution, size, or 

productivity of the potentially affected 

pinniped populations has been affected 

due to the specified activity, the launch 

procedures and the monitoring methods 

would be reviewed, in cooperation with 

NMFS, and, if necessary, appropriate 

changes may be made through 

modifications to a given LOA, prior to 

conducting the next launch of the same 

vehicle under that LOA. 

NMFS has carefully evaluated the 

applicant’s proposed mitigation 

measures and considered a range of 

other measures in the context of 

ensuring that NMFS prescribes the 

means of effecting the least practicable 

adverse impact on the affected marine 

mammal species and stocks and their 

habitat. Our evaluation of potential 

measures included consideration of the 

following factors in relation to one 

another: (1) The manner and the degree 

to which the successful implementation 


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of the measure is expected to minimize 

adverse impacts to marine mammals; (2) 

the proven or likely efficacy of the 

specific measure to minimize adverse 

impacts as planned; and (3) the 

practicability of the measure for 

applicant implementation, including 

consideration of personnel safety, and 

practicality of implementation. The 

proposed mitigation measures take 

scientific studies (Richardson et al., 

2005) of overflight effects on pinnipeds 

into consideration. By avoiding 

launches during the harbor seal pupping 

season, AAC would subsequently be 

avoiding all Level A harassment and 

mortality. Lastly, the adaptive nature of 

the proposed mitigation measures allow 

for adjustments to be made if launch 

monitoring or quarterly aerial surveys 

indicate that impacts to the distribution, 

size, or productivity of pinniped 

populations are occurring. 

Based on our evaluation of the 

applicant’s proposed measures, as well 

as other measures considered by NMFS 

or recommended by the public in the 

prior rulemaking, NMFS has 

preliminarily determined that the 

proposed mitigation measures provide 

the means of effecting the least 

practicable adverse impacts on marine 

mammals species or stocks and their 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance. 

Proposed Monitoring and Reporting 

In order to issue an ITA for an 

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

MMPA states that NMFS must set forth 

‘‘requirements pertaining to the 

monitoring and reporting of such 

taking.’’ The MMPA implementing 

regulations at 50 CFR 216.104(a)(13) 

indicate that requests for ITAs must 

include the suggested means of 

accomplishing the necessary monitoring 

and reporting that will result in 

increased knowledge of the species and 

of the level of taking or impacts on 

populations of marine mammals that are 

expected to be present. 

AAC proposes to purchase and place 

one remote live streaming video system 

overlooking one of the harbor seal 

haulouts on the eastern side of Ugak 

Island for the first five launches 

conducted under these regulations to 

verify the assumption that seals on the 

eastern side of the island are not 

affected by launches. Although animals 

on the northern shore are more likely to 

be affected by the action, this area is 

predominantly a rocky reef tidal area 

where seals haulout opportunistically, 

either singly or in small numbers on 

exposed rocks. There is more 

confidence seals will be visible and able 

to be monitored on the eastern side of 

the island. After five launches, AAC and 

NMFS will reassess the efficiency of the 

camera system and possibly move it to 

another location (e.g., the traditional 

Steller sea lion haulout). 

The selected haulout would be 

viewed either in real time or via ‘‘tape’’ 

delay for six days using the following 

schedule where day length permits. The 

six-day schedule would be roughly 

centered on the day of launch, with 

launch day being day three of the 

monitoring schedule. The video stream 

would be viewed by professional 

biologists for 4 hours each day with 

monitoring centered on the time of 

launch on launch day, and on low tide 

on the other days. Detailed information 

on when monitoring would occur 

around a launch is provided in AAC’s 

application. Data collected from the live 

stream video would include number of 

animals observed, by age and sex class 

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

animal response to launches, and reoccupation time if disturbed. 

The video system was developed, 

tested, and first put into service in 

Alaska, and has proven itself over many 

years of operation both in Alaska and 

around the world. The video system is 

all weather proven and autonomous, 

drawing energy from a combination of 

wind and solar generators. It features a 

camera that includes a lens that can be 

focused (zoom and pan) on command 

and provides live-streaming video that 

can be made available through internet 

access to interested researchers in real 

time. 

AAC would also carry out quarterly 

aerial surveys to determine long-term 

trend counts of the Steller sea lion and 

harbor seals within the action area. 

Surveys would be flown midday and 

centered around low tide for optimal 

seal counts. The aircraft would survey 

from a distance appropriate to count 

seals or sea lions, but far enough away 

to minimize harassment. Data collected 

would include number of seals or sea 

lions per haulout, by age class when 

possible, and if any disturbance 

behavior is noted from aircraft presence. 

In addition to visual monitoring, 

whenever a new class of rocket is flown 

from the KLC, a real time sound 

pressure record would be obtained for 

documentation purposes and correlated 

with the behavioral response record. 

Two sound pressure monitors would be 

used: One would be placed at the 

established sound pressure recording 

location known as Narrow Cape and the 

other as close as practical to the remote 

video system. 

Estimated Take by Incidental 

Harassment 

Except with respect to certain 

activities not pertinent here, the MMPA 

defines ‘‘harassment’’ as: 

any act of pursuit, torment, or annoyance 

which (i) has the potential to injure a marine 

mammal or marine mammal stock in the wild 

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

to disturb a marine mammal or marine 

mammal stock in the wild by causing 

disruption of behavioral patterns, including, 

but not limited to, migration, breathing, 

nursing, breeding, feeding, or sheltering 

[Level B harassment]. 

As described above, Steller sea lions 

hauled out on Ugak Island may become 

alert or flush into the water in response 

to launch noise. Sound exposure levels 

from the loudest launch may reach 

approximately 101.4 dBA at the 

traditional Steller sea lion haulout. 

Based on this recorded level and the fact 

that audible launch noise would be very 

short in duration, sea lions are not 

expected to incur PTS, and the chance 

of TTS is unlikely. No injury or 

mortality of Stellar sea lions is 

anticipated, nor would any be 

authorized. Therefore, NMFS proposes 

to authorize Steller sea lion take, by 

Level B harassment only, incidental to 

launches from KLC. 

Harbor seals of all age classes hauled 

out on the northern side of Ugak Island 

would likely react in a similar manner 

as Steller sea lions (and may become 

alert or flush into the water) to launches 

from KLC. Therefore, harbor seals may 

be taken by Level B harassment 

incidental to rocket launch noise. 

However, during the pupping season 

(May 15–June 30), pups may also be 

injured, killed, or separated from their 

mother during a flushing event. 

Therefore, AAC has requested, and 

NMFS proposes, to authorize Level A 

harassment and mortality of harbor seal 

pups. 

As discussed above, security 

overflights associated with a launch 

would not closely approach or circle 

any sea lion or seal haulout site. 

Therefore, incidental take from this 

activity is not anticipated. Should the 

pilot or crew on the plane observe 

pinnipeds reacting to their presence, the 

plane would increase altitude and note 

the number of animals reacting to the 

plane. These data would be included in 

AAC’s final marine mammal report. 

AAC estimates that up to 45 launches 

may occur from KLC over the course of 

the 5-year period covered by the 

proposed rulemaking. Annually, AAC 

estimates an average of nine launches 

would occur. Most of these vehicles are 

expected to be of the Minotaur I through 


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V class, including civil versions of the 

Castor 120 known as the Athena and 

Taurus I or smaller target vehicles. AAC 

estimates that no more than one launch 

would occur over a 4-week period, and 

it is likely the frequency of launches 

would be less than this estimate. 

Based on aerial survey data, AAC 

estimates a maximum of ten Steller sea 

lions could be present during launches 

occurring during the Steller sea lion 

season (the maximum number of 

animals sighted during a survey has 

been eight). Any sea lions present 

during the launches would be adult or 

juvenile males; therefore, no 

reproductive processes or pupping 

would be affected by the specified 

activities. Assuming that all nine 

launches (the average number of 

launches predicted by AAC) occur 

during the Steller sea lion season, that 

all nine launches involve the Castor 120 

(the loudest vehicle expected to be 

flown from KLC over the period to be 

covered by the proposed regulations), 

and that there is no habituation to 

rocket motor effects with experience, 

then up to 90 takes by harassment could 

occur per year (ten animals/launch × 

nine launches). However, it is more 

reasonable to assume that a maximum of 

four launches per year could occur 

during the 2-month Steller sea lion 

season, and that no more than eight 

Stellers would be present at any given 

time (the maximum number recorded). 

Therefore, NMFS is proposing to 

authorize the take, by Level B 

harassment, of 32 Steller sea lions per 

year (eight animals × four launches). 

The total number of harbor seals 

present on Ugak Island ranges up to 

about 1,500, most of which are found on 

the island’s eastern shore where they are 

sheltered from launch effects by the 

1,000-foot tall cliffs that stand between 

their haulouts and KLC. Relatively few 

harbor seals use haulouts on the 

northern side of the island across from 

KLC due to the lack of suitable beaches. 

No seals were observed on northern 

haulouts, which consist primarily of 

isolated rocks, during 19 of 30 marine 

mammal surveys flown by AAC from 

2006–2008. When present, the majority 

of counts on northern haulouts were of 

fewer than 25 individuals; however, a 

one-time high count of about 125 

animals on these rocks has been made. 

Using the conservative and rare high 

number of 125 as being a representative 

figure, AAC estimates that up to 125 

individuals might be taken per launch 

operation. Therefore, AAC has 

requested, and NMFS proposes to 

authorize 1,125 harbor seal (125 seals/ 

launch × nine launches/year) takes 

during launch operations. 

The actual number of pups taken by 

Level A harassment or mortality is 

difficult to quantify, as age class was not 

identified during AAC’s previous 

monitoring efforts (age class distinction 

would occur under the proposed 

monitoring and reporting requirements). 

Given that seals do not use the northern 

haulouts in large numbers (as compared 

to the protected eastern haulouts), the 

number of pups on the area of the island 

exposed to launch noise is likely low. 

Actual numbers will likely be smaller 

given the low and variable use of the 

area by harbor seals. NMFS consulted 

with Ms. Kate Wynne, a marine 

mammal specialist with the Alaska Sea 

Grant Marine Advisory Program, who 

has previously flown aerial surveys 

within the action area. Her data, from 

the early 1990s, indicate that pup 

counts on the northern side of Ugak 

Island averaged approximately 17. 

Although this data is not recent, it is the 

best available. NMFS does not 

anticipate that all pups on a haulout 

would be injured or killed during a 

launch and, in fact, many may not be 

taken by Level A harassment or 

mortality. However, in the unlikely 

event injury or mortality occurs, NMFS 

proposes to authorize 17 harbor seal 

pup takes by Level A harassment or 

mortality, annually, incidental to AAC’s 

activities. 

Previous Activities and Monitoring 

As discussed above, under AAC’s 

current regulations (valid February 27, 

2006 through February 28, 2011) and 

annual LOAs, AAC has been conducting 

marine mammal monitoring within the 

action area before and after launch 

events to satisfy the monitoring 

requirements set forth in MMPA 

authorizations. The objective of 

monitoring Steller sea lions and Pacific 

harbor seals is to detect any indications 

of pinniped disturbance, injury, or 

mortality resulting from KLC rocket 

launches at the Ugak Island haulout site. 

Monitoring requirements included: 

(1) Conducting fixed-wing aerial surveys 

at least one day prior to, immediately 

after, and three days post any launches 

taking place from June 15 through 

September 30, weather permitting; 

(2) installing a remote custom-designed, 

closed-circuit, weatherproof, time-lapse 

video camera system at the base of the 

traditional Steller sea lion haulout 

before any launch occurring from June 

15 through September 30; and 

(3) making an attempt to place a video 

camera with zoom lens on the accessible 

western end of the north-facing shore to 

record harbor seal behavior on the 

middle or eastern end of the shore, or 

on the rocks offshore (recall that the 

eastern side of Ugak Island—where the 

majority of seals are—is completely 

inaccessible to pedestrian or boat traffic 

due to the high cliffs and violent surf). 

The regulations also contained noise 

monitoring requirements; however, 

these data are discussed in the Specified 

Activity section above. AAC complied 

with the noise monitoring conditions 

contained within the regulations and 

annual LOAs. 

Since 2006, AAC has conducted five 

launches from the KLC. AAC did not 

exceed the number of launches 

allocated in their regulations during the 

Steller sea lion or harbor seal pupping 

season in any given year. The dates and 

types of launches and types of 

monitoring conducted are provided in 

Table 2. Only one launch has occurred 

during the harbor seal pupping season. 

No launches occurred in 2009 and none 

have occurred in 2010 to date. Results 

of the acoustic monitoring are described 

in the Specified Activities section above 

and are not reiterated here. 

TABLE 2—DATES AND TYPES OF LAUNCHES FROM THE KLC UNDER CURRENT REGULATIONS AND TYPE OF MONITORING

CONDUCTED

Date Launch designator Aerial monitoring 

(Number of days) Video monitoring Acoustic monitoring 

9/1/2006 ............................... FTG–02 ............................... Yes (6) ................................ Yes ...................................... Yes. 

5/25/2007 ............................. FTX–03 ............................... Yes (3) ................................ No 1 ..................................... Yes.3

9/28/2007 ............................. FTG–03a ............................. Yes (5) ................................ Yes ...................................... Yes. 

7/18/2008 ............................. FTX–03 ............................... Yes (5) ................................ Yes 2 .................................... Yes. 

12/1/2008 ............................. FTX–05 ............................... Yes (5) ................................ No ....................................... Yes.3

1Foul weather prevented accessing Ugak Island. 

2Video camera batteries failed prior to launch so no data during launch is available. 

3Only one noise monitor was deployed at Narrow Cape (approximately 0.9 mi from the launch site). Ugak Island was inaccessible. 


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During the September 2006 launch, 

aerial surveys found that Steller sea 

lions did not use the traditional haulout 

site on the spit at the north end of Ugak 

Island; however, one to four Steller sea 

lions used a supralittoral rock on the 

east side of Ugak Island (East Ugak 

Rock). On pre-launch aerial surveys, 

two to four sea lions were hauled out in 

that location. On post-launch aerial 

surveys, one to two sea lions were 

hauled out. Daily harbor seals counts 

within the primary study area ranged 

from 495 seals on August 28th to 961 

seals on September 1st. 

The traditional Steller sea lion 

haulout was not occupied during the 

pre-launch monitoring period during 

the 2006 launch. Therefore, an 

alternative video monitoring site 

overlooking East Ugak Rock was chosen 

on the northeast side of Ugak Island. On 

September 1, the two sea lions on the 

haulout exhibited no reaction indicating 

disturbance during the launch. The 

launch occurred at 09:22. From 07:24 to 

09:44, the two sea lions laid resting on 

the haulout. At 09:44, they sat up and 

interacted for 1 min 12 seconds, then 

laid and rested until monitoring ceased 

at 13:29. 

In 2007, AAC launched two vehicles; 

an FTX–03 launch occurred on May 25, 

2007, and an FTX–03a launch occurred 

on September 28, 2007. For the May 

launch, foul weather (low ceiling, heavy 

fog) hampered or completely prevented 

monitoring efforts except for aerial 

surveys; three aerial surveys were 

completed. Steller sea lions were not 

observed at the traditional haulout or 

East Ugak Rock during the aerial 

surveys. Daily harbor seal counts ranged 

from 136 seals on May 23rd to 402 seals 

on May 27th. For the September launch, 

one aerial survey was completed before 

the launch, and four surveys were 

completed post-launch. Steller sea lions 

were not present at the traditional 

haulout or on East Ugak Rock. Daily 

harbor seal counts within the primary 

study area ranged from zero to 748 seals 

with peak counts two days following the 

launch. Video monitoring at the harbor 

seal haulout did not detect any seals. 

However, glare from the low angle sun 

in the morning and low magnification 

made it difficult to see all the detail on 

the video recording. 

In 2008, AAC launched two vehicles; 

an FTX–03 launch occurred on July 

18th and an FTX–05 launch occurred on 

December 1st. For the July, FTX–03 

launch, one aerial survey was 

completed before the launch and four 

surveys were completed post-launch. 

Foul weather hampered or completely 

prevented all but one of the aerial 

surveys during the FTG–05 launch in 

December; that survey was completed 

on December 7 after the launch. Steller 

sea lions did not occupy the traditional 

haulout on the spit at the north end of 

Ugak Island during either of the two 

launches in 2008; however, small 

numbers (one to five) of sea lions 

occupied East Ugak Rock during the 

aerial surveys conducted for both 

launches. Daily totals within the 

primary study area during the FTX–03 

launch ranged from 610 to 1,534 seals. 

During the single aerial survey 

completed for FTG–05, 971 harbor seals 

were counted in the primary study area. 

Based on the attendance pattern 

gathered from the FTX–03 launch 

(which had complete surveys), seal 

numbers were at pre-launch levels 

within 5 hours after the launch. 

A video camera recorded sea lions at 

East Ugak Rock on July 17–18, 2008 

during the FTX–03 launch campaign. 

The video recorder ran for 

approximately 14 hours before running 

out of power about 2 hours before the 

rocket launch. Therefore, the 

instantaneous response of sea lions to 

the launch was not recorded. On July 

17, the day before the rocket launch, 

zero to three sea lions were recorded on 

the rock and the same number were 

recorded before the launch on July 18. 

Three sea lions were on the rock when 

the recorder quit. Three sea lions also 

were present on the same rock 3 h 17 

min later (1 h 25 min after the launch), 

when the video camera was retrieved. 

Thus, the attendance of sea lions 

observed at East Ugak Rock suggests that 

if there was disturbance, it was shortlived. During the FTG–05 launch in 

December, video equipment could not 

be installed at Ugak Island because of 

heavy fog the day before the launch. 

As anticipated, foul weather proved it 

difficult to access Ugak Island to deploy 

equipment. However, AAC was able to 

collect Steller sea lion reactions to one 

launch; no reactions were observed. 

Although attempted, AAC was 

unsuccessful at monitoring harbor seal 

reactions to the launch. Despite lack of 

direct monitoring during the launch, 

pinniped counts acquired during aerial 

surveys post-launch suggest that, if 

animals are reacting, it is short-lived 

and not having an impact on the 

population. Because AAC fulfilled the 

mitigation and monitoring requirements 

to the best of their ability, NMFS has 

determined that AAC complied with the 

mitigation and monitoring requirements 

set forth in regulations and annual 

LOAs. In addition, NMFS has 

determined that the impacts on marine 

mammals from the activity fell within 

the nature and scope of those 

anticipated and authorized in the 

previous authorization (supporting the 

analysis in the current authorization). 

For the proposed monitoring 

measures, NMFS has shifted its focus 

from direct Steller sea lion to harbor 

seal monitoring. AAC will monitor 

harbor seal reactions to rocket launches 

during the launch itself via a type of 

camera system currently used by the 

Alaska Sea Life Center to monitor 

haulouts and rookeries. The camera will 

be placed at a harbor seal pupping 

location on Ugak Island to better assess 

the likelihood that harbor seal pups may 

be abandoned, injured, or killed as a 

direct result of a rocket launch 

disturbance. The camera system will be 

installed and operating if the AAC 

conducts a launch during the harbor 

seal pupping season. Unlike the 

previous system, this camera system 

does not need to be retrieved to acquire 

data and battery power is not 

problematic. Therefore, AAC can place 

it at a harbor seal haul-out during good 

weather no matter the number of days 

before a launch and does not have to be 

concerned with retrieving it. These 

factors will likely eliminate the previous 

issues with video monitoring designed 

to detect pinniped reactions at the time 

of the launch. In addition, the camera 

system will have a zoom lens for better 

viewing quality. 

Negligible Impact and Small Numbers 

Analysis and Determination 

NMFS has defined ‘‘negligible impact’’ 

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

resulting from the specified activity that 

cannot be reasonably expected to, and is 

not reasonably likely to, adversely affect 

the species or stock through effects on 

annual rates of recruitment or survival.’’ 

In making a negligible impact 

determination, NMFS considers (and 

should explicitly address whenever 

possible) the following: 

(1) Number of anticipated mortalities; 

(2) number and nature of anticipated 

injuries; (3) number, nature, intensity, 

and duration of Level B harassment; 

(4) is the nature of the anticipated takes 

such that we would expect it to actually 

impact rates of recruitment or survival; 

(5) context in which the takes occur; 

and (6) species or stock status. 

In the past few years, AAC has 

conducted only zero to two launches on 

an annual basis. Regardless, NMFS has 

analyzed the specified activity to 

include disturbance events of up to nine 

launches per year as they anticipate the 

capability to carry out more efficient 

mission turn-around time over the 

duration of the proposed regulations. 

Mortalities and injuries are only 

authorized for harbor seal pups, and 

these are not expected due to small and 


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variable harbor seal populations using 

the northern haul-out sites, as well as 

the nature of pups and the early bonds 

formed between pups and mothers. 

Level B harassment of Steller sea lions 

is possible due to rocket launch noise, 

but is considered unlikely based on 

projected sound levels and the short 

duration of the noise. Rates of seal or 

sea lion recruitment or survival are not 

expected to be impacted due to the 

limited number of mortalities or injuries 

to harbor seal pups. Due to the fact that 

no sonic booms are audible from Ugak 

Island, NMFS does not anticipate the 

potential for PTS to occur and TTS is 

unlikely, but possible. These 

assumptions are justified from ABR data 

collected at and around VAFB from 

similar launch activities. Further, based 

on aerial survey data, the harbor seal 

population on this island is increasing. 

Given harbor seals are considered a 

species that is easily disturbed, their 

resilience to launch effects suggests 

impacts from launches are short-term 

and negligible. The amount of take the 

AAC has requested, and NMFS proposes 

to authorize, is considered small (less 

than one percent of Stellers and less 

than three percent of harbor seals) 

relative to the estimated stock 

populations of 41,197 Steller sea lions 

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

seals in the Gulf of Alaska. 

Mitigation measures to reduce noise 

from launches once in the air are 

virtually impossible; however, the noise 

generated on the launch pad during 

ignition moves through a deep trench 

(called a flame trench or flame bucket) 

that diverts the noise/exhaust toward 

the northwest (away from Ugak Island). 

The primary method of minimizing 

impacts to pinnipeds from launch noise 

is to minimize the number of launches 

when possible during sensitive times. 

In addition, improved monitoring 

would better enable AAC and NMFS to 

determine if impacts from rocket 

launches are having short-term and 

long-term impacts on the present day 

pinniped populations on Ugak Island. 

The camera system would be able to 

detect immediate impacts from launch 

exposure, including the number of 

pinnipeds flushing at the haulout site, 

while quarterly aerial surveys would aid 

in determining long-term trends of 

pinniped abundance. Currently, NMFS 

conservatively anticipates a small 

number of pups may be injured or killed 

during a launch. However, there is no 

empirical data to prove or disprove this 

as no video monitoring of seals during 

the launch has been successful (the one 

time a video system was placed near the 

haulout, no seals were observed). As 

discussed previously, the population of 

harbor seals on Ugak Island has 

increased steadily from several hundred 

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

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

2007b, 2008, 2009). Therefore, NMFS 

does not believe there would be any 

long-term impact on the health of the 

population if pup mortality is occurring 

from launches. The proposed 

monitoring measures contained within 

this notice are specifically designed to, 

among other things, determine if pup 

injury or mortality is occurring due to 

rocket launches from AAC. 

Based on the analysis contained 

herein of the likely effects of the 

specified activity on marine mammals 

and their habitat, and taking into 

consideration the implementation of the 

mitigation and monitoring measures, 

NMFS preliminarily finds that space 

vehicle and missile launches at the KLC 

will result in the incidental take of 

small numbers of marine mammals, but 

that the total taking will have a 

negligible impact on the affected species 

or stocks. 

Impact on Availability of Affected 

Species for Taking for Subsistence Uses 

There are no relevant subsistence uses 

of marine mammals implicated by this 

action. Therefore, NMFS has 

determined that the total taking of 

affected species or stocks would not 

have an unmitigable adverse impact on 

the availability of such species or stocks 

for taking for subsistence uses. 

Endangered Species Act (ESA) 

There is one marine mammal species 

under NMFS’ jurisdiction that is listed 

as endangered under the ESA with 

confirmed or possible occurrence in the 

action area: The Steller sea lion. In the 

2003 Biological Opinion, NMFS 

determined that the proposed actions 

would not result in jeopardy to the 

affected species or result in adverse 

modification of critical habitat. In 2005, 

AAC, on behalf of the FAA, consulted 

with NMFS, under Section 7 of the ESA, 

on the impacts of space vehicle and 

rocket launches on Steller sea lions. 

NMFS also consulted internally under 

the ESA on its proposed issuance of 

AAC’s 2006 MMPA regulations and 

subsequent LOAs. NMFS will also 

consult internally on the issuance of the 

proposed regulations under section 

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

activity, which would be effective from 

February 2011 through February 2016. 

Consultation will be concluded prior to 

a determination on the issuance of 

regulations and subsequent LOAs. 

National Environmental Policy Act 

(NEPA) 

In 1996, the FAA prepared an EA, and 

subsequently issued a Finding of No 

Significant Impact (FONSI), for AAC’s 

proposal to construct and operate a 

launch site at Narrow Cape on Kodiak 

Island, Alaska. Since 1998, AAC has 

provided monitoring reports related to 

noise and marine mammal impacts 

associated with ongoing rocket launches 

from KLC. After reviewing the new 

information contained in the monitoring 

reports, and considering the MMC’s 

comments that impacts to harbor seals 

should be more comprehensively 

addressed, NMFS decided that a more 

current environmental analysis was 

necessary. In 2005, NMFS prepared an 

EA and associated FONSI on the 

Promulgation of Regulations 

Authorizing Take of Marine Mammals 

Incidental to Rocket Launches at Kodiak 

Launch Complex, Alaska, and the 

Issuance of Subsequent Letters of 

Authorization. NMFS found that the 

promulgation of a 5-year rulemaking in 

2006, and issuance of subsequent LOAs 

would not significantly impact the 

quality of the human environment and 

therefore issued a FONSI. Accordingly, 

preparation of an Environmental Impact 

Statement or Supplemental 

Environmental Impact Statement for 

this action was not necessary. NMFS 

has determined that because the action 

has not changed significantly from that 

analyzed in previous NEPA documents, 

further analysis under NEPA is not 

necessary for issuance of regulations 

and subsequent LOAs extending into 

2016. 

Classification 

OMB has determined that this 

proposed rule is not significant for 

purposes of Executive Order 12866. 

Pursuant to section 605(b) of the 

Regulatory Flexibility Act (RFA), the 

Chief Counsel for Regulation of the 

Department of Commerce has certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration that this 

proposed rule, if adopted, would not 

have a significant economic impact on 

a substantial number of small entities. A 

description of this rule and its purpose 

are found in the preamble to this 

proposed rule, and are not repeated 

here. The provisions of the rule will 

apply directly only to AAC. The AAC is 

a public corporation of the State of 

Alaska involved in space vehicles and 

guided missiles, and it employs 

approximately 45 people. SBA’s 

regulations implementing the RFA have 

no ‘‘small’’ size standards for public 

administration entities that administer 


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and oversee government programs and 

activities that are not performed by 

private establishments. Accordingly, no 

small entity will be affected by these 

proposed rules. 

The AAC may use a small number of 

contractors to provide services related to 

the proposed reporting requirements. 

However, none of the authorizations or 

requirements imposed by this action 

will result in any of AAC’s contractors 

expending any resources in order to be 

in compliance with these proposed 

regulations. Thus, the rule would have 

no effect, directly or indirectly, on these 

small entities. 

Because AAC is the only entity that 

would be directly affected by this 

proposed regulation and because the 

effects of this regulation would impose 

no costs on any of the contractors— 

whether they are large or small 

entities—there will be no significant 

economic impact on a substantial 

number of small entities. Accordingly, 

no regulatory flexibility analysis is 

necessary, and none has been prepared. 

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 a 

collection-of-information requirement 

subject to the provisions of the PRA. 

This collection has been approved 

previously by OMB under section 

3504(b) of the PRA issued under OMB 

control number 0648–0151, which 

includes applications for LOAs and 

reports. 

List of Subjects in 50 CFR Part 217 

Exports, Fish, Imports, Indians, 

Labeling, Marine mammals, Penalties, 

Reporting and record-keeping 

requirements, Seafood, Transportation. 

Dated: December 17, 2010. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For reasons set forth in the preamble, 

50 CFR part 217 is proposed to be 

amended as follows: 

PART 217–REGULATIONS 

GOVERNING THE TAKE OF MARINE 

MAMMALS INCIDENTAL TO 

SPECIFIED ACTIVITIES 

1. The authority citation for part 217 

continues to read as follows: 

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

2. Subpart H is added to read as 

follows: 

Subpart H—Taking of Marine Mammals 

Incidental to Space Vehicle and Missile 

Launches at Kodiak Launch Complex, 

Alaska 

Sec. 

217.70 Specified activity and specified 

geographical region. 

217.71 Effective dates. 

217.72 Permissible methods of taking. 

217.73 Prohibitions. 

217.74 Mitigation. 

217.75 Requirements for monitoring and 

reporting. 

217.76 Letter of Authorization. 

217.77 Renewal of a Letter of 

Authorization. 

217.78 Modifications to a Letter of 

Authorization. 

Subpart H—Taking of Marine Mammals 

Incidental to Space Vehicle and Missile 

Launches at Kodiak Launch Complex, 

Alaska 

§ 217.70 Specified activity and specified 

geographical region. 

(a) Regulations in this subpart apply 

only to the incidental taking of marine 

mammals specified in paragraph (b) of 

this section by U.S. citizens engaged in 

space vehicle and missile launch 

activities at the Kodiak Launch Complex 

on Kodiak Island, Alaska. 

(b) The incidental take of marine 

mammals under the activity identified 

in paragraph (a) of this section is limited 

to 32 juvenile and adult Steller sea lions 

(Eumetopius jubatus), 1,125 Pacific 

harbor seals (Phoca vitulina) of all ages, 

and 17 harbor seal pups. 

§ 217.71 Effective dates. 

Regulations in this subpart are 

effective from March 1, 2011, through 

February 28, 2016. 

§ 217.72 Permissible methods of taking. 

(a) Under a Letter of Authorization 

issued pursuant to § 216.106 of this 

chapter, the Alaska Aerospace 

Corporation and its contractors may 

incidentally, but not intentionally, take 

Steller sea lions and Pacific harbor seals 

by Level B harassment and harbor seal 

pups by Level A harassment or 

mortality in the course of conducting 

space vehicle and missile launch 

activities within the area described in 

§ 217.70(a), provided all terms, 

conditions, and requirements of these 

regulations and such Letter of 

Authorization are complied with. 

(b) The activities identified in 

§ 217.70(a) must be conducted in a 

manner that minimizes, to the greatest 

extent practicable, adverse impacts on 

marine mammals and their habitat. 

§ 217.73 Prohibitions. 

The following activities are 

prohibited: 

(a) The taking of a marine mammal 

that is other than unintentional. 

(b) The violation of, or failure to 

comply with, the terms, conditions, and 

requirements of this subpart or a Letter 

of Authorization issued under § 216.106 

of this chapter. 

(c) The incidental taking of any 

marine mammal of a species not 

specified, or in a manner not 

authorized, in this subpart. 

§ 217.74 Mitigation. 

(a) The activity identified in 

§ 217.70(a) must be conducted in a 

manner that minimizes, to the greatest 

extent practicable, adverse impacts on 

marine mammals and their habitats. 

When conducting operations identified 

in § 217.70(a), the mitigation measures 

contained in the Letter of Authorization 

issued under § 216.106 of this chapter 

and § 217.76 must be implemented. 

These mitigation measures include (but 

are not limited to): 

(1) Security overflights associated 

with a launch will not approach 

occupied pinniped haulouts on Ugak 

Island by closer than 0.25 mile (0.4 km), 

and will maintain a vertical distance of 

1000 ft (305 m) from the haulouts when 

within 0.5 miles (0.8 km), unless 

indications of human presence or 

activity warrant closer inspection of the 

area to assure that national security 

interests are protected in accordance 

with law; 

(2) For missile and rocket launches, 

holders of Letters of Authorization must 

avoid launches during the harbor seal 

pupping season of May 15 through June 

30, except when launches are necessary 

for the following purposes: human 

safety, national security, space vehicle 

launch trajectory necessary to meet 

mission objectives, or other purposes 

related to missile or rocket launches. 

(3) All flights associated with the 

marine mammal abundance quarterly 

surveys must maintain a minimum 

altitude of 500 ft (152 m) and remain 

0.25 miles from recognized seal 

haulouts. 

(4) If launch monitoring or quarterly 

aerial surveys indicate that the 

distribution, size, or productivity of the 

potentially affected pinniped 

populations has been affected due to the 

specified activity, the launch 

procedures and the monitoring methods 

will be reviewed, in cooperation with 

NMFS, and, if necessary, appropriate 

changes may be made through 

modifications to a given LOA, prior to 

conducting the next launch of the same 

vehicle under that LOA. 


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(5) Additional mitigation measures as 

contained in a Letter of Authorization. 

(b) [Reserved] 

§ 217.75 Requirements for monitoring and 

reporting. 

(a) Holders of Letters of Authorization 

issued pursuant to § 216.106 of this 

chapter and § 217.76 for activities 

described in § 217.70(a) are required to 

cooperate with NMFS, and any other 

Federal, state, or local agency with 

authority to monitor the impacts of the 

activity on marine mammals. Unless 

specified otherwise in the Letter of 

Authorization, the Holder of the Letter 

of Authorization must notify the 

Administrator, Alaska Region, NMFS, 

by letter, email or telephone, prior to 

each launch. If the authorized activity 

identified in § 217.70(a) is thought to 

have resulted in the take of marine 

mammals not identified in § 217.70(b), 

then the Holder of the Letter of 

Authorization must notify the Director, 

Office of Protected Resources, NMFS, or 

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

within 48 hours of the discovery of the 

take. 

(b) Holders of Letters of Authorization 

must designate qualified protected 

species observers, approved in advance 

by NMFS, as specified in the Letter of 

Authorization, to: 

(1) Deploy for AAC a remote camera 

system designed to detect pinniped 

responses to rocket launches for at least 

the first five launches conducted under 

these regulations. AAC will conduct 

visual monitoring for at least 2 hours 

before, during, and after launch; 

(2) Ensure a remote camera system 

will be in place and operating in a 

location which allows visual monitoring 

of a rookery during the launch, if a 

launch during the harbor seal pupping 

season cannot be avoided;. 

(3) Relocate the camera system to 

another haulout to be chosen in 

cooperation with NMFS after the first 

five launches; 

(4) Review and log pinniped presence, 

behavior, and re-occupation time data 

from the visual footage obtained from 

the remote camera system and report 

results to NMFS within 90 days post 

launch; 

(5) Obtain, whenever a new class of 

rocket is flown from the Kodiak Launch 

Complex, a real time sound pressure 

record for documentation purposes and 

to correlate with the behavioral 

response record. Two sound pressure 

monitors shall be used: one shall be 

placed at the established sound pressure 

recording location known as Narrow 

Cape, and the other as close as practical 

to the remote video system. 

(6) Conduct quarterly aerial surveys, 

ideally during mid-day coinciding with 

low tide, to obtain data on pinniped 

presence, abundance, and behavior 

within the action area to determine 

long-term trends in pinniped haulout 

use. Results of these quarterly surveys 

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

accompany the request for a new LOA. 

(c) Holders of Letters of Authorization 

must conduct additional monitoring as 

required under an annual Letter of 

Authorization. 

(d) Holders of Letters of Authorization 

must submit a report to the Alaska 

Region Administrator, NMFS, within 90 

days after each launch. This report must 

contain the following information: 

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

(2) Location of camera system and 

acoustic recorders (if used); 

(3) Design of the monitoring program 

and a description of how data is stored 

and analyzed; and 

(4) Results of the monitoring program, 

including, but not necessarily limited 

to: 

(i) Numbers of pinnipeds, by species 

and age class (if possible), present on 

the haul-out prior to commencement of 

the launch; 

(ii) Numbers of pinnipeds, by species 

and age class (if possible), that may have 

been harassed, including the number 

that entered the water as a result of 

launch noise; 

(iii) The length of time pinnipeds 

remained off the haulout during postlaunch monitoring; 

(iv) Number of harbor seal pups that 

may have been injured or killed as a 

result of the launch; and 

(v) Other behavioral modifications by 

pinnipeds that were likely the result of 

launch noise. 

(5) Results of sound pressure level 

monitoring will be reported in flat 

weighted, A-weighted, and peak 

measurements. 

(e) An annual report must be 

submitted at the time of request for a 

renewal of the Letter of Authorization; 

it will include results of the aerial 

quarterly trend counts of pinnipeds at 

Ugak Island. 

(f) A final report must be submitted at 

least 90 days prior to expiration of these 

regulations if new regulations are sought 

or 180 days after expiration of 

regulations. This report will: 

(1) Summarize the activities 

undertaken and the results reported in 

all previous reports; 

(2) Assess the impacts of launch 

activities on pinnipeds within the 

action area, including potential for pup 

injury and mortality; and 

(3) Assess the cumulative impacts on 

pinnipeds and other marine mammals 

from multiple rocket launches. 

§ 217.76 Letter of Authorization. 

(a) A Letter of Authorization, unless 

suspended or revoked, will be valid for 

a period of time specified in the Letter 

of Authorization, but a Letter of 

Authorization may not be valid beyond 

the effective period of the regulations. 

(b) A Letter of Authorization with a 

period of validity less than the effective 

period of the regulations in this subpart 

may be renewed subject to renewal 

conditions in this section. 

(c) A Letter of Authorization will set 

forth: 

(1) The number of marine mammals, 

by species and age class, authorized to 

be taken; 

(2) Permissible methods of incidental 

taking; 

(3) Specified geographical region; 

(4) Means of effecting the least 

practicable adverse impact on the 

species of marine mammals authorized 

for taking and its habitat; and 

(5) Requirements for monitoring and 

reporting incidental takes. 

(d) Issuance of a Letter of 

Authorization will be based on a 

determination that the total taking by 

the activity as a whole will have no 

more than a negligible impact on the 

affected species or stocks of marine 

mammal(s). 

(e) Notice of issuance or denial of a 

Letter of Authorization will be 

published in the Federal Register 

within 30 days of a determination. 

§ 217.77 Renewal of a Letter of 

Authorization. 

(a) A Letter of Authorization issued 

under § 216.106 of this chapter and 

§ 217.76 for the activity identified in 

§ 217.70(a) will be renewed annually 

upon: 

(1) Notification to NMFS that the 

activity described in the application for 

a Letter of Authorization submitted 

under § 217.76 will be undertaken and 

that there will not be a substantial 

modification to the described activity, 

mitigation, or monitoring undertaken 

during the upcoming season; 

(2) Timely receipt of and acceptance 

by NMFS of the monitoring reports 

required under § 217.75; 

(3) A determination by NMFS that the 

mitigation, monitoring, and reporting 

measures required under §§ 217.74 and 

217.75 and the Letter of Authorization 

were undertaken and will be undertaken 

during the upcoming period of validity 

of a renewed Letter of Authorization; 

and 

(4) A determination that the number 

of marine mammals taken by the 


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activity will have no more than a 

negligible impact on the affected species 

or stocks of marine mammal(s), and that 

the level of taking will be consistent 

with the findings made for the total 

taking allowable under these 

regulations. 

(b) If a request for a renewal of a 

Letter of Authorization issued under 

§§ 216.106 and 216.128 of this chapter 

indicates that a substantial modification 

to the described work, mitigation, or 

monitoring undertaken during the 

upcoming season will occur, NMFS will 

provide the public a period of 30 days 

to review and comment on the request. 

Review and comment on renewals of 

Letters of Authorization are restricted 

to: 

(1) New cited information and data 

indicating that the determinations made 

in this document are in need of 

reconsideration; and 

(2) Proposed changes to the mitigation 

and monitoring requirements contained 

in these regulations or in the current 

Letter of Authorization. 

(c) A notice of issuance or denial of 

a renewal of a Letter of Authorization 

will be published in the Federal 

Register within 30 days of a 

determination. 

§ 217.78 Modifications to a Letter of 

Authorization. 

(a) Except as provided in paragraph 

(b) of this section, no substantive 

modification (including withdrawal or 

suspension) to a Letter of Authorization 

issued pursuant to the provisions of this 

subpart shall be made by NMFS until 

after notification and an opportunity for 

public comment has been provided. A 

renewal of a Letter of Authorization 

under § 217.77 without modification is 

not considered a substantive 

modification. 

(b) If the Assistant Administrator 

determines that an emergency exists 

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

mammals specified in § 217.70(b), a 

Letter of Authorization may be 

substantively modified without prior 

notification and an opportunity for 

public comment. Notification will be 

published in the Federal Register 

within 30 days subsequent to the action. 

[FR Doc. 2010–32343 Filed 12–22–10; 8:45 am] 

BILLING CODE 3510–22–P 


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