[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]


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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.

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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