[Federal Register Volume 75, Number 246 (Thursday, December 23, 2010)]
[Proposed Rules]
[Pages 80773-80785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32343]
=======================================================================
-----------------------------------------------------------------------
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
[[Page 80774]]
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 state-owned 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 space-launch and target vehicles of the Castor 120
or smaller size, 10 will be of THAAD or smaller size, and three will be
of the medium-lift Taurus II. A 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
[[Page 80775]]
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)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Motor
Launch designator Launch vehicle Date Distance to haulout diameter SEL (dBA) Lmax (dBA) LPeak
(feet)\1\ (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.
\2\ Traditionally used Steller sea lion seasonal haulout; use has declined significantly in recent times.
\3\ Alternate Steller sea lion haulout, a tidally exposed small rock located midway between the traditional haulout and the northeastern most cape of
Ugak Island.
\4\ Second alternate Steller sea lion haulout located on the northeastern most cape of Ugak Island.
\5\ Estimated.
[[Page 80776]]
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[deg]
cone extending downward from the ascending rocket (Richardson et al.
1995); therefore, little sound energy passes into the sea across the
air-water boundary. Submerged animals would have to be directly
underneath the rocket to hear it, and given the hypersonic velocity of
launch vehicles in the atmosphere, the duration of sounds reaching any
cetacean would be discountable. In addition, all spent rocket motors
will fall into the open ocean over deep water. Given the very short
time a cetacean is at the surface, direct impact from spent motors can
be discounted as can any noise related impacts. Based on these reasons,
NMFS does not anticipate take of cetaceans incidental to the specified
activity; hence, they will not be discussed further. Sea otters are
managed by the U.S. Fish and Wildlife Service; therefore no take of sea
otters is included in the proposed regulations. As such, this species
is not discussed further in this proposed rule.
Steller Sea Lion
Steller sea lions are designated into two stocks by NMFS. Those
west of 144[deg] longitude, which includes the KLC area, are listed as
endangered under the ESA. Historically, mature and sub-adult males have
used a spit on the northwestern side of Ugak Island as a post-breeding
haulout. This spit is located 3.5 miles from the launch pad complex
(see figure 4 and 5 in the application). The historic occupancy period
ranges from June to September (post breeding), with peak reported
numbers in the hundreds (Sease 1997; ENRI 1995-1998). However, use has
declined in recent times in keeping with general declines seen in the
species as a whole. The spit is designated a long-term trend count site
by NMFS and has been surveyed once yearly, with June as the target,
since the 1990s. Counts since 2000 have generally been zero (e.g.,
NMFS, 2009; Fritz and Stinchcomb, 2005), which is in line with the
counts from all other long-term trend count sites in the Kodiak
Archipelago over the same time period. All of these other long-term
trend sites are far removed from the 6 mile radius anticipated impact
area up range from KLC (i.e. areas opposite to the flight path), in
areas not exposed to launch noise. Hence, Steller sea lion abundance
has declined throughout the region, not just the area affected by
launches, and the losses are likely not a result of or connected with
the launches or use of KLC.
Data from AAC's aerial surveys over the past four years also
support low use of the haulout. Since 1999, five launches have occurred
during the Steller sea lion season. The spit haulout has not been used
by Steller sea lions during launch-monitoring surveys since 1999 (ENRI,
2000, R&M, 2007a,b, 2008); however 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 June-September 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
[[Page 80777]]
from several hundred (ENRI 1995-1998) up to a peak of about 1,500 today
(R&M 2007a, 2007b, 2008, 2009).
Potential Effects on Marine Mammals
As discussed above, launch operations are a major source of noise
on Kodiak Island and can reach Steller sea lion and harbor seal
haulouts and rookeries on Ugak Island. Marine mammals produce sounds in
various contexts and use sound for various biological functions
including, but not limited to (1) Social interactions; (2) foraging;
(3) orientation; and (4) predator detection. Interference with
producing or receiving these sounds may result in adverse impacts.
Audible distance, or received levels (RLs) will depend on the nature of
the sound source, ambient noise conditions, and the sensitivity of the
receptor to the sound (Richardson et al., 1995). Type and significance
of marine mammal reactions to noise are likely to be dependent on a
variety of factors including, but not limited to, the behavioral state
(e.g., resting, socializing, etc.) of the animal at the time it
receives the stimulus, frequency of the sound, distance from the
source, and the level of the sound relative to ambient conditions
(Southall et al., 2007). In general, marine mammal impacts from loud
noise can be characterized as auditory and non-auditory.
Potential Auditory Impacts
Auditory impacts consist of injurious (e.g., ruptured ear drums,
permanent threshold shift [PTS]) or non-injurious (e.g., temporary
threshold shift [TTS]) effects. There are no empirical data for onset
of PTS in any marine mammal; therefore, PTS-onset must be estimated
from TTS-onset measurements and from the rate of TTS growth with
increasing exposure levels above the level eliciting TTS-onset. PTS is
presumed to be likely if the hearing threshold is reduced by >= 40 dB
(i.e., 40 dB of TTS).
Given the distance from the pad area to Ugak Island and the
measured sound levels from the Castor 120 (101.4 dB), for the loudest
space vehicle used at the KLC, pinniped auditory injury is not
anticipated. 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 C-weighted SEL at 127.5 dB, and the A-
weighted 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) A-weighted 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 A-weighted 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 post-launch (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
[[Page 80778]]
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
[[Page 80779]]
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 re-
occupation time if disturbed.
The video system was developed, tested, and first put into service
in Alaska, and has proven itself over many years of operation both in
Alaska and around the world. The video system is all weather proven and
autonomous, drawing energy from a combination of wind and solar
generators. It features a camera that includes a lens that can be
focused (zoom and pan) on command and provides live-streaming video
that can be made available through internet access to interested
researchers in real time.
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
[[Page 80780]]
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 x nine launches). However, it is more reasonable to assume that
a maximum of four launches per year could occur during the 2-month
Steller sea lion season, and that no more than eight Stellers would be
present at any given time (the maximum number recorded). Therefore,
NMFS is proposing to authorize the take, by Level B harassment, of 32
Steller sea lions per year (eight animals x four launches).
The total number of harbor seals present on Ugak Island ranges up
to about 1,500, most of which are found on the island's eastern shore
where they are sheltered from launch effects by the 1,000-foot tall
cliffs that stand between their haulouts and 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 x nine launches/year) takes during launch operations.
The actual number of pups taken by Level A harassment or mortality
is difficult to quantify, as age class was not identified during 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
----------------------------------------------------------------------------------------------------------------
Aerial
Date Launch monitoring Video monitoring Acoustic monitoring
designator (Number of days)
----------------------------------------------------------------------------------------------------------------
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\
----------------------------------------------------------------------------------------------------------------
\1\ Foul weather prevented accessing Ugak Island.
\2\ Video camera batteries failed prior to launch so no data during launch is available.
\3\ Only one noise monitor was deployed at Narrow Cape (approximately 0.9 mi from the launch site). Ugak Island
was inaccessible.
[[Page 80781]]
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 short-lived. 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
[[Page 80782]]
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
[[Page 80783]]
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
Sec. 217.70 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the incidental taking
of marine mammals specified in paragraph (b) of this section by U.S.
citizens engaged in space vehicle and missile launch activities at the
Kodiak Launch Complex on Kodiak Island, Alaska.
(b) The incidental take of marine mammals under the activity
identified in paragraph (a) of this section is limited to 32 juvenile
and adult Steller sea lions (Eumetopius jubatus), 1,125 Pacific harbor
seals (Phoca vitulina) of all ages, and 17 harbor seal pups.
Sec. 217.71 Effective dates.
Regulations in this subpart are effective from March 1, 2011,
through February 28, 2016.
Sec. 217.72 Permissible methods of taking.
(a) Under a Letter of Authorization issued pursuant to Sec.
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 Sec. 217.70(a), provided all terms, conditions, and requirements of
these regulations and such Letter of Authorization are complied with.
(b) The activities identified in Sec. 217.70(a) must be conducted
in a manner that minimizes, to the greatest extent practicable, adverse
impacts on marine mammals and their habitat.
Sec. 217.73 Prohibitions.
The following activities are prohibited:
(a) The taking of a marine mammal that is other than unintentional.
(b) The violation of, or failure to comply with, the terms,
conditions, and requirements of this subpart or a Letter of
Authorization issued under Sec. 216.106 of this chapter.
(c) The incidental taking of any marine mammal of a species not
specified, or in a manner not authorized, in this subpart.
Sec. 217.74 Mitigation.
(a) The activity identified in Sec. 217.70(a) must be conducted in
a manner that minimizes, to the greatest extent practicable, adverse
impacts on marine mammals and their habitats. When conducting
operations identified in Sec. 217.70(a), the mitigation measures
contained in the Letter of Authorization issued under Sec. 216.106 of
this chapter and Sec. 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.
[[Page 80784]]
(5) Additional mitigation measures as contained in a Letter of
Authorization.
(b) [Reserved]
Sec. 217.75 Requirements for monitoring and reporting.
(a) Holders of Letters of Authorization issued pursuant to Sec.
216.106 of this chapter and Sec. 217.76 for activities described in
Sec. 217.70(a) are required to cooperate with NMFS, and any other
Federal, state, or local agency with authority to monitor the impacts
of the activity on marine mammals. Unless specified otherwise in the
Letter of Authorization, the Holder of the Letter of Authorization must
notify the Administrator, Alaska Region, NMFS, by letter, email or
telephone, prior to each launch. If the authorized activity identified
in Sec. 217.70(a) is thought to have resulted in the take of marine
mammals not identified in Sec. 217.70(b), then the Holder of the
Letter of Authorization must notify the Director, Office of Protected
Resources, NMFS, or designee, by telephone (301-713-2289), within 48
hours of the discovery of the take.
(b) Holders of Letters of Authorization must designate qualified
protected species observers, approved in advance by NMFS, as specified
in the Letter of Authorization, to:
(1) Deploy for AAC a remote camera system designed to detect
pinniped responses to rocket launches for at least the first five
launches conducted under these regulations. AAC will conduct visual
monitoring for at least 2 hours before, during, and 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 year-end summary report that will
accompany the request for a new LOA.
(c) Holders of Letters of Authorization must conduct additional
monitoring as required under an annual Letter of Authorization.
(d) Holders of Letters of Authorization must submit a report to the
Alaska Region Administrator, NMFS, within 90 days after each launch.
This report must contain the following information:
(1) Date(s) and time(s) of the launch;
(2) Location of camera system and acoustic recorders (if used);
(3) Design of the monitoring program and a description of how data
is stored and analyzed; and
(4) Results of the monitoring program, including, but not
necessarily limited to:
(i) Numbers of pinnipeds, by species and age class (if possible),
present on the 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
post-launch monitoring;
(iv) Number of harbor seal pups that may have been injured or
killed as a result of the launch; and
(v) Other behavioral modifications by pinnipeds that were likely
the result of launch noise.
(5) Results of sound pressure 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.
Sec. 217.76 Letter of Authorization.
(a) A Letter of Authorization, unless suspended or revoked, will be
valid for a period of time specified in the Letter of Authorization,
but a Letter of Authorization may not be valid beyond the effective
period of the regulations.
(b) A Letter of Authorization with a period of validity less than
the effective period of the regulations in this subpart may be renewed
subject to renewal conditions in 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.
Sec. 217.77 Renewal of a Letter of Authorization.
(a) A Letter of Authorization issued under Sec. 216.106 of this
chapter and Sec. 217.76 for the activity identified in Sec. 217.70(a)
will be renewed annually upon:
(1) Notification to NMFS that the activity described in the
application for a Letter of Authorization submitted under Sec. 217.76
will be undertaken and that there will not be a substantial
modification to the described activity, mitigation, or monitoring
undertaken during the upcoming season;
(2) Timely receipt of and acceptance by NMFS of the monitoring
reports required under Sec. 217.75;
(3) A determination by NMFS that the mitigation, monitoring, and
reporting measures required under Sec. Sec. 217.74 and 217.75 and the
Letter of Authorization were undertaken and will be undertaken during
the upcoming period of validity of a renewed Letter of Authorization;
and
(4) A determination that the number of marine mammals taken by the
[[Page 80785]]
activity will have no more than a negligible impact on the affected
species or stocks of marine mammal(s), and that the level of taking
will be consistent with the findings made for the total taking
allowable under these regulations.
(b) If a request for a renewal of a Letter of Authorization issued
under Sec. Sec. 216.106 and 216.128 of this chapter indicates that a
substantial modification to the described work, mitigation, or
monitoring undertaken during the upcoming season will occur, NMFS will
provide the public a period of 30 days to review and comment on the
request. Review and comment on renewals of Letters of Authorization are
restricted to:
(1) New cited information and data indicating that the
determinations made in this document are in need of reconsideration;
and
(2) Proposed changes to the mitigation and monitoring requirements
contained in these regulations or in the current Letter of
Authorization.
(c) A notice of issuance or denial of a renewal of a Letter of
Authorization will be published in the Federal Register within 30 days
of a determination.
Sec. 217.78 Modifications to a Letter of Authorization.
(a) Except as provided in paragraph (b) of this section, no
substantive modification (including withdrawal or suspension) to a
Letter of Authorization issued pursuant to the provisions of this
subpart shall be made by NMFS until after notification and an
opportunity for public comment has been provided. A renewal of a Letter
of Authorization under Sec. 217.77 without modification is not
considered a substantive modification.
(b) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species
or stocks of marine mammals specified in Sec. 217.70(b), a Letter of
Authorization may be substantively modified without prior notification
and an opportunity for public comment. Notification will be published
in the Federal Register within 30 days subsequent to the action.
[FR Doc. 2010-32343 Filed 12-22-10; 8:45 am]
BILLING CODE 3510-22-P