[Federal Register Volume 66, Number 214 (Monday, November 5, 2001)]
[Proposed Rules]
[Pages 55909-55910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27734]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 011011247-1247-01; I.D. 082701E]
RIN 0648-AP62


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to Rocket Launches from the Kodiak Launch Complex, Kodiak 
Island, AK

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of receipt of a petition for regulations and an 
application for a small take exemption; request for comment and 
information.

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SUMMARY: NMFS has received a request from the Alaska Aerospace 
Development Corporation (AADC) for a Letter of Authorization (LOA) to 
take small numbers of marine mammals incidental to rocket launches from 
the Kodiak Launch Complex (KLC), Kodiak Island, AK. In order to issue 
an LOA, regulations must first be established. As a result of that 
request, NMFS is considering whether to propose regulations that would 
authorize the incidental taking of a small number of marine mammals. In 
order to issue such regulations, NMFS must determine that these takings 
will have a negligible impact on the affected species and stocks of 
marine mammals and will not have an unmitigable adverse impact on the 
availability of marine mammal species or stocks for subsistence uses. 
NMFS invites comments and suggestions on the content of the 
regulations.

DATES: Comments and information must be received no later than December 
5, 2001.

ADDRESSES: Comments should be addressed to Donna Wieting, Chief, Marine 
Mammal Conservation Division, Office of Protected Resources, NMFS, 1315 
East-West Highway, Silver Spring, MD 20910-3225. Comments will not be 
accepted if submitted via e-mail or Internet. A copy of the application 
may be obtained by writing to this address or by telephoning one of the 
contacts listed here.

FOR FURTHER INFORMATION CONTACT: Simona P. Roberts, (301) 713-2322, ext 
106 or Brad Smith, (907) 271-3023.

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, notice of a proposed authorization is 
provided to the public for review and comment.
    Permission may be granted if NMFS finds that the taking will have 
no more than a negligible impact on the species or stock(s) and will 
not have an unmitigable adverse impact on the availability of the 
species or stock(s) for subsistence uses and that the permissible 
methods of taking and requirements pertaining to the monitoring and 
reporting of such taking are set forth. 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.'' As new information is 
developed, through monitoring, reporting, or research, the regulations 
may be modified, in whole or in part, after notice and opportunity for 
public review.

Summary of Request

    On July 26, 2001, NMFS received a request from AADC for an LOA to 
take, by harassment, small numbers of marine mammals, specifically 
Steller sea lions (Eumetopias jubatus), incidental to the launch of 
rockets from KLC on Kodiak Island, Alaska.

Specified Activities and Geographic Area

    KLC is a commercial rocket launch complex owned and operated by the 
State of Alaska through AADC. It occupies 43 acres (174 kilometers, 
km\2\) within a 3,100 acre (12,545 km\2\) parcel of state-owned lands 
on the eastern side of Kodiak Island on the Narrow Cape peninsula. KLC 
was designed to accommodate a variety of small, solid rocket motors 
including such vehicles as the Minuteman II, Taurus, Conestoga, and 
Athena (Lockheed Martin Launch Vehicle). The largest vehicle that can 
be launched from KLC is the Athena-2 (Lockheed Martin Vehicle-2).
    To date, three rockets have been launched from KLC. The first two 
launches (November 1998 and September 1999) were part of the U.S. Air 
Force (USAF) atmospheric interceptor technology (ait) program and the 
third (March 2001) was part of the USAF Quick Reaction Launch Vehicle 
(QRLV) program. All three launches were done in support of suborbital 
Department of Defense (DoD) missions and involved very small vehicles 
composed of motors from decommissioned USAF Minuteman I or II launch 
vehicles and a Castor IV motor.
    The facility is licensed to launch up to nine rockets per year, and 
has two more scheduled launches in 2001. The first 2001 launch will be 
an orbital commercial space launch of an Athena I and the second 2001 
launch will be a DoD Strategic Target System (STARS) launch under the 
auspices of the U.S. Army Space and Missile Defense Command. STARS 
vehicles will include first- and second-stage Polaris A3 boosters and a 
third-stage Orbus-1 booster. Three launches are anticipated in 2002, 
one in the USAF's QRLV program and two in the U.S. Army STARS program.
    Launch operations at KLC are authorized under license from the 
Federal Aviation Administration, Office of Associate Administrator for 
Commercial Space Transportation (AST) in accordance with the facility's 
Environmental Assessment (EA) and stipulations in the EA's Finding of 
No Significant Impact (FONSI, 61 FR 32884, June 25, 1996). These 
stipulations included a requirement to develop a Natural Resource 
Management Plan to address monitoring and mitigation activities for 
protected species in the area. This plan was developed in coordination 
with NMFS utilizing comparison of anticipated sound pressure levels 
from rocket motors to be launched from KLC with documented marine 
mammal disturbance responses to such noise.

Anticipated Impacts on Marine Mammals and Their Habitat

    Launch operations are a major source of noise. The operation of 
launch vehicle engines produces significant sound levels. Generally, 
four types of noise occur during a launch. They are: (1) combustion 
noise from launch vehicle chambers; (2) jet noise generated by the 
interaction of the exhaust jet and the atmosphere; (3) combustion noise 
from the post-burning of combustion products; and (4) sonic booms.
    The Natural Resource Management Plan includes an Environmental

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Monitoring Plan that requires monitoring of Steller sea lions be done 
at the seasonally occupied (during late June to early October only), 
non-breeding haul-out on Ugak Island. Specifically, the Monitoring Plan 
requires that AADC conduct pre- and post-launch aerial surveys, as well 
as real-time video monitoring and rocket motor noise measurements on 
the Ugak Island Steller sea lion haul-out. The Ugak haul-out is located 
approximately 2 miles (3.2 km) from Narrow Cape and about 3.5 miles 
(5.6 km) from the launch pad on a narrow sand spit on the north side of 
the Island facing the KLC. This is the only haul-out site within the 
Narrow Cape region that has the potential to be impacted by the sights 
and sounds of rocket launches from KLC.
    Harbor seals (Phoca vitulina) haul out on the southeast side of 
Ugak Island, but this area is sheltered from direct sight of KLC by a 
300 foot (9.1 meter, m) tall island cliff and receives heavy surf that 
creates a lot of background ambient noise. Because of the ambient noise 
levels at this site, the heavy surf often interferes with the ability 
of an animal to detect a sound even when that sound is above its 
absolute hearing threshold (Richardson et al., 1995). Therefore, it 
seems unlikely that harbor seals, because of the location of their 
haul-out, would hear noise associated with rocket launches from KLC.
    During the September 1999 ait launch, Steller sea lions were 
observed on the Ugak Island haul-out pre-launch. Post-launch, the sea 
lions were observed in the water immediately offshore approximately 1 
hour after the rocket was launched. Video documentation was made of the 
haul-out area pre-launch but failed during the launch, so no direct 
stimulus-response data tying sea lion behavior to rocket noise could be 
made. However, the pre-launch video showed a stampede off the haul-out 
approximately 4.5 hours before the launch that could not be correlated 
with any documented disturbance near the haul-out, and it is possible 
that the sea lions may have remained in the water until the post-launch 
survey.
    AADC recognizes in their application that despite the lack of 
direct stimulus-response data tying sea lion behavior to rocket 
launches from KLC, the unusual, high-intensity stimuli resulting from 
launch-related sights and sounds means that evacuation of the Ugak 
haul-out site by sea lions could reasonably be expected.
    Solid rocket boosters from KLC launches will fall into the ocean 
away from any known or potential haul-out sites and do not pose any 
threat to Ugak Island. Therefore, the anticipated impacts on marine 
mammals would be infrequent and unintentional incidental harassment 
resulting from the sights and sounds generated by rocket launches. 
Launch noises may cause a startle response and flight to water for 
those Steller sea lions hauled-out on northern Ugak Island. Launch 
noise is expected to occur over the coastal habitats of Narrow Cape and 
Ugak Island during every launch, while sonic booms will occur 
approximately 40 nautical miles (74 km) downrange, beyond the outer 
continental shelf over open ocean and pose no threat to hauled-out 
pinnipeds.
    Because the sights and sounds of rocket launches have the potential 
to result in harassment of pinnipeds, an MMPA authorization under 
section 101(a)(5)(A) or (D) is required in order to exempt the 
applicant from the penalties of the MMPA for taking by harassment.
    Regulations, if issued, would authorize NMFS to issue a LOA for the 
taking of small numbers of Steller sea lions incidental to rocket 
launches associated with the ait, QRLV, STARS, and other commercial 
space launch programs from Kodiak Launch Complex on Kodiak Island, 
Alaska.

    Dated: October 26, 2001.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 01-27734 Filed 11-2-01; 8:45 am]
BILLING CODE 3510-22-S