[Federal Register Volume 82, Number 12 (Thursday, January 19, 2017)]
[Proposed Rules]
[Pages 6456-6472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00621]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 160809705-6705-01]
RIN 0648-BG25


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Space Vehicle and Missile Launch 
Operations at Pacific Spaceport Complex Alaska, Kodiak Island, 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 and other smaller missile 
systems at the Pacific Spaceport Complex Alaska (PSCA) for the period 
of March 15, 2017, through March 14, 2022. NMFS is proposing 
regulations to govern that take, and requests comments on the proposed 
regulations.

DATES: Comments and information must be received no later than February 
21, 2017.

ADDRESSES: You may submit comments on this document by any of the 
following methods:
     Electronic submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov, enter 2017-0002 in the ``Search'' box, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Comments should be addressed to Jolie Harrison, 
Chief, Permits and Conservation Division, Office of Protected 
Resources, National Marine Fisheries Service, 1315 East West Highway, 
Silver Spring, MD 20910.
    Instructions: NMFS may not consider comments if they are sent by 
any other method, to any other address or individual, or received after 
the end of the comment period. Attachments to electronic comments will 
be accepted in Microsoft Word or Excel or Adobe PDF file formats only. 
To help NMFS process and review comments more efficiently, please use 
only one method to submit comments. All comments received are a part of 
the public record and will generally be posted on www.regulations.gov 
without change. All personal identifying information (e.g., name, 
address) 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).

FOR FURTHER INFORMATION CONTACT: Stephanie Egger, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION: 

Availability

    A copy of AAC's application and any supporting documents, as well 
as a list of the references cited in this document, may be obtained 
online at: www.nmfs.noaa.gov/pr/permits/incidental/research.htm. In 
case of problems accessing these documents, please call the contact 
listed above (see FOR FURTHER INFORMATION CONTACT).

Purpose and Need for Regulatory Action

    This proposed rule, to be issued under the authority of the MMPA, 
would establish a framework for authorizing the take of marine mammals 
incidental to launching space vehicles, target missiles, and other 
smaller missile systems at the PSCA. We received an application from 
AAC requesting 5-year regulations and authorization to take one species 
of marine mammals. Take would occur by Level B harassment only, 
incidental to the space vehicle launches (also referred to as rocket 
launches). The regulations would be valid from March 15, 2017, to March 
14, 2022. Please see Background below for definitions of harassment.

Legal Authority for the Proposed Action

    Section 101(a)(5)(A) of the MMPA directs 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 for up to five years if, after notice and public 
comment, the agency makes certain findings and issues regulations that 
set forth permissible methods of taking pursuant to that activity, as 
well as monitoring and reporting requirements. Section 101(a)(5)(A) of 
the MMPA and the implementing regulations at 50 CFR part 216, subpart I 
provide the legal basis for issuing this proposed rule containing 5-
year regulations, and for any subsequent Letters of Authorization 
(LOA). As directed by this legal authority, this proposed rule contains 
mitigation, monitoring, and reporting requirements.

Summary of Major Provisions Within the Proposed Rule

    The following provides a summary of some of the major provisions 
within the proposed rulemaking for AAC's rocket launch activities. We 
have preliminarily determined that AAC's adherence to the proposed 
mitigation, monitoring, and reporting measures listed below would 
achieve the least adverse impact practicable on the affected marine 
mammals. They include:

[[Page 6457]]

     Required monitoring of Ugak Island to detect the presence 
and abundance of marine mammals before and after deployment of rocket 
launch operations.
     Required monitoring of Ugak Island to survey the presence 
and abundance of marine mammals once per year (outside of rocket launch 
operations).
     Required mitigation of using time-lapsed photography to 
determine the immediate response impacts to marine mammals during 
rocket launches, particularly during the pupping season (should rocket 
launches occur during that time).

Background

    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
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.''
    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 April 25, 2016, NMFS received a request for regulations from AAC 
for the taking of small numbers of marine mammals incidental to 
launching space launch vehicles long-range and other smaller missile 
systems at the PSCA. We received revised drafts on June 20, 2016, and 
September 19, 2016. On September 27, 2016, we published a notice of 
receipt of AAC's application in the Federal Register (81 FR 66264), 
requesting comments and information for thirty days related to AAC's 
request. On November 10, 2016, we received an adequate and complete 
application. We received comments from the Marine Mammal Commission 
(MMC) which we considered in the development of this proposed rule.
    AAC proposes taking of small numbers of marine mammals incidental 
to rocket launch operations specifically noise from space vehicles and 
missile launches that may result in the Level B harassment of harbor 
seals (Phoca vitulina richardii). NMFS has previously issued 
regulations and subsequent LOAs to AAC authorizing the taking of marine 
mammals incidental to launches at PSCA (76 FR 16311, March 23, 2011; 
and 71 FR 4297, January 26, 2006). The current regulations recently 
expired on March 22, 2016; hence, AAC has applied for new regulations. 
The proposed regulations, if issued, would be effective from March 15, 
2017, through March 14, 2022.

Description of the Specified Activity

Overview

    PCSA is located on the Narrow Cape Peninsula, on Kodiak Island in 
the Gulf of Alaska. Kodiak Island is approximately 99 miles (mi) long 
and 10 to 60 mi wide. PSCA is approximately 22 air mi from the City of 
Kodiak, which is the largest settlement on the Kodiak Island. The land 
area occupied by PSCA is owned by the State of Alaska and is 
administered by AAC under terms of an Interagency Land Management 
Assignment (ILMA) issued by AAC's sister agency, the Alaska Department 
of Natural Resources. AAC conducts space vehicle and missile launches 
from the PSCA. Launch operations are authorized under license from the 
Federal Aviation Administration (FAA), Office of the Associate 
Administrator for Space Transportation, in accordance with the 
facility's Environmental Assessment (EA) and stipulations in the EA's 
Finding of No Significant Impact (FONSI) (FAA 1996) and subsequent 
licenses (FAA 1998, 2003, 2005, and 2013). The area considered to be 
affected by PSCA 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 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-mi radius of the launch pad 
area, inclusive of Ugak Island. A more recent EA was completed in April 
2016 that addresses the potential environmental impacts of the proposed 
action where the FAA would modify the AAC launch site operator license 
for the PSCA. The EA evaluates the potential environmental impacts of 
modifying the launch site operator license to include medium-lift 
launch capability at PSCA with the addition of new infrastructure 
necessary to support these types of launches, including the 
construction of a launch pad and associated facilities.
    There are several marine mammals present in the waters offshore, 
however, the only marine mammals anticipated to be affected by the 
specified activities are pinnipeds hauled out on Ugak Island.

Dates and Duration

    The specified activity may occur at any time during the 5-year 
period of validity of the proposed regulations. Dates and duration of 
individual rocket launches are inherently uncertain. Launch timing is 
not determined by AAC, but is driven by customer needs that include 
variables ranging from: (1) Availability of down range assets necessary 
to support launch, (2) orbital parameters, and (3) exigencies requiring 
rapid response to requests for replacement of lost assets, or to 
augment existing ones to support vital defense, humanitarian, or 
commercial needs. Launches can, and do, occur year round. Typical 
launches will be spread out in time; however, some of these launches 
may occur in clusters to meet a customer's need.
    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. These factors have controlling influence over the numbers of 
vehicles by class that are actually launched in any given year from 
PSCA. Launches take place year round when all variables affecting 
launch decisions are in correct alignment.
    AAC estimates the total number of vehicles that might be launched 
from PSCA over the course of the 5-year period covered by the requested 
rulemaking is 45, with an average of nine launches per year. However, 
in previous years, AAC did not launch the authorized number, but fewer 
or none in some years. Few launches are on contract at this time, so a 
specific distribution cannot be given. The first anticipated launch is 
estimated to occur in May 2017. Generally, the frequency will be 
separated by months or years; however, there may be limited instances 
of a rapid succession of launches in the course of hours, or days. 
Launches can, and do, occur year-round. The duration

[[Page 6458]]

of the possible disturbance will be at levels that may cause 
disturbances for only a few seconds tapering off to inaudible in a few 
minutes.

Specified Geographical Region

    The PSCA facility occupies 3,717 acres of state-owned lands on the 
eastern side of Kodiak Island. Ugak Island lies approximately three to 
four mi to the south/southeast of the launch pads on Kodiak Island (see 
Figure 2 in AAC's application). Ugak Island is about two mi long by 
about one mi wide. The land slopes steeply upward from a spit on the 
island's northern most point, which has previously been (although not 
in consistently in recent years) used as a Steller sea lion (Eumetopias 
jubatus) haulout (see Figures 3 in AAC's application), to the 
southwest, culminating in cliffs that are approximately 1,000 feet (ft) 
in elevation. These cliffs run the entire length of the island's long 
axis. Eastward, the narrow Outer Continental Shelf (OCS) ends about 20 
mi 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, but also in smaller numbers at the 
northern end of the island (see Figure 3 in AAC's application).

Detailed Description of Activities

    Orbital and suborbital launch vehicles (i.e., rockets, missiles) 
are launched from PSCA as part of the aerospace industry. A rocket 
launch operation takes years to plan and execute, as well as a large 
preparation effort weeks before the launch. In preparation for the 
launch, launch vehicles are checked, integrated, and erected. At this 
time, PSCA has two launch pads, designated as Launch Pad 1 (LP1) and 
Launch Pad 2 (LP2). LP1 is capable of launching small lift class 
vehicles and is 3.5 mi from the nearest point on Ugak Island. Small 
lift vehicles are generically categorized as being capable of carrying 
payloads of up to 4,400 pounds (lb). LP1 has a flame trench that 
directs exhaust (and much of the sound) horizontally eastward during 
liftoff, while LP2 is a flat pad. LP1 is larger and better suited for 
the larger vehicles within AAC's capabilities. The vehicles that 
produce the most sound are likely to be launched from LP1.
    PSCA launch azimuths range from 110 degrees to 220 degrees. The 
eastern most launch azimuth of 110 degrees is within a few degrees of 
most orbital launches, and crosses the extreme eastern edge of Ugak 
Island where several pinniped haulouts are found. Modeling done of 
Castor 120 space launches indicates the vehicle is passing through 
45,000 ft altitude by the time it reaches the island about 70 seconds 
post launch (FAA 1996).
    A typical launch vehicle is deployed by igniting the vehicle 
through a controlled means to send it on a very specific flight path. 
The ignition starts a burn on the ground that usually lasts less than 
several seconds after which the vehicle accelerates upward rapidly. 
During launch, burning fuel from the launch vehicle creates noise and 
light in the surrounding area. The components of a launch that may 
result in take are a source of noise and light on Kodiak Island created 
by the first stage vehicle motor, as the operation of launch vehicle 
engines produce sound pressures that may be high enough to cause a 
disturbance. Combustion noise and jet noise are the two main sources of 
sound pressures and are projected in all directions. The sound produced 
subsides to inaudible within a few minutes.
    Another component of the AAC's launches includes security 
overflights. In the days preceding the launch, these occur 
approximately three 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 mi (0.4 kilometer (km)), 
and will maintain a vertical distance of 1,000 ft (305 meter (m)) from 
the haulouts when within 0.5 mi (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 mi limit on two occasions; both involved 
direct overflight of the Steller sea lion northwestern haulout spit, 
which was unoccupied each time the incursions occurred.

Description of the Sound Sources

    This section contains a brief technical background on sound, the 
characteristics of certain sound types and the proposed sound sources 
relevant to AAC's specified activity.
    Pulsed sound sources (e.g., sonic booms, explosions, gunshots, 
impact pile driving) produce signals that are brief (typically 
considered to be less than one second), broadband, atonal transients 
(ANSI 1986; Harris 1998; NIOSH 1998; ISO 2003; ANSI 2005) and occur 
either as isolated events or repeated in some succession. Pulsed sounds 
are all characterized by a relatively rapid rise from ambient pressure 
to a maximal pressure value followed by a rapid decay period that may 
include a period of diminishing, oscillating maximal and minimal 
pressures, and generally have an increased capacity to induce physical 
injury as compared with sounds that lack these features.
    Non-pulsed sounds can be tonal, narrowband, or broadband, brief or 
prolonged, and may be either continuous or non-continuous (ANSI 1995; 
NIOSH 1998). Some of these non-pulsed sounds can be transient signals 
of short duration but without the essential properties of pulses (e.g., 
rapid rise time). Examples of non-pulsed sounds include those produced 
by rocket launches and landings, vessels, aircraft, machinery 
operations such as drilling or dredging, and vibratory pile driving. 
The duration of such sounds, as received at a distance, can be greatly 
extended in a highly reverberant environment.
    Sound travels in waves, the basic components of which are 
frequency, wavelength, velocity, and amplitude. Frequency is the number 
of pressure waves that pass by a reference point per unit of time and 
is measured in hertz (Hz) or cycles per second. Wavelength is the 
distance between two peaks of a sound wave; lower frequency sounds have 
longer wavelengths than higher frequency sounds and attenuate 
(decrease) more rapidly in shallower water. Amplitude is the height of 
the sound pressure wave or the `loudness' of a sound and is typically 
measured using the decibel (dB) scale. A dB is the ratio between a 
measured pressure (with sound) and a reference pressure (sound at a 
constant pressure, established by scientific standards). It is a 
logarithmic unit that accounts for large variations in amplitude; 
therefore, relatively small changes in dB ratings correspond to large 
changes in sound pressure. When referring to sound pressure levels 
(SPLs; the sound force per unit area), sound is referenced in the 
context of underwater sound pressure to 1 microPascal ([mu]Pa). One 
pascal is the pressure resulting from a force of one newton exerted 
over an area of one square meter. The source level (SL) represents the 
sound level at a distance of 1 m from the source (referenced to 1 
[mu]Pa). The received level is the sound level at the listener's 
position. Note that all underwater sound levels in this document are 
referenced to a pressure of 1 [micro]Pa and all airborne sound levels 
in this document are referenced to a pressure of 20 [micro]Pa.
    Root mean square (rms) is the quadratic mean sound pressure over 
the duration of an impulse, and is calculated by squaring all of the 
sound

[[Page 6459]]

amplitudes, averaging the squares, and then taking the square root of 
the average (Urick 1983). Rms accounts for both positive and negative 
values; squaring the pressures makes all values positive so that they 
may be accounted for in the summation of pressure levels (Hastings and 
Popper 2005). This measurement is often used in the context of 
discussing behavioral effects, in part because behavioral effects, 
which often result from auditory cues, may be better expressed through 
averaged units than by peak pressures.
    Sound exposure level (SEL; represented as dB re 1 [mu]Pa\2\-s) 
represents the total energy contained within a pulse, and considers 
both intensity and duration of exposure. For a single pulse, the 
numerical value of the SEL measurement is usually 5-15 dB lower than 
the rms sound pressure in dB re 1 [mu]Pa, with the comparative 
difference between measurements of rms and SEL measurements often 
tending to decrease with increasing range (Greene 1997; McCauley et 
al., 1998). Peak sound pressure is the maximum instantaneous sound 
pressure measurable in the water at a specified distance from the 
source, and is represented in the same units as the rms sound pressure. 
Another common metric is peak-to-peak sound pressure (p-p), which is 
the algebraic difference between the peak positive and peak negative 
sound pressures. Peak-to-peak pressure is typically approximately 6 dB 
higher than peak pressure (Southall et al., 2007).

Proposed Sound Sources for AAC

    We now describe specific airborne acoustic sources for AAC. Sounds 
levels are different for each type of vehicle and further discussed 
below. Orbital and suborbital vehicles may be launched from several 
locations on site; however, no launch pads are closer to the haulouts 
on Ugak Island than LP1, from which the largest and, therefore, loudest 
vehicles will be launched. A description of each class of space launch 
and smaller launch vehicles are provided in the application and 
summarized here.
Peacekeeper Derivatives--Castor 120, Athena, Minotaur IV and V, and 
Taurus I
    The Castor 120 was the base vehicle analyzed in the EA conducted by 
the FAA (US FAA 1996) in support of the decision to issue a launch 
license to AAC. The Castor 120 uses solid fuel and produces about 
371,000 lbs of thrust. The motor mass is about 116,000 lbs and the 
motor is 347 inches (in) long and 93 in wide. Modeling shows the rocket 
is about eight mi above the earth's surface when it overflies Ugak 
Island, and that the sonic boom reaches earth between 21 to 35 mi down 
range, which is past the OCS and over the North Pacific abyss (US FAA 
1996). Sound pressure from the Castor 120 at the spit on Ugak Island's 
northern most point was measured to be 101.4 dBA (dBA can be defined as 
dB with A-weighting designed to match the average frequency response of 
human hearing and enables comparison of the intensity of noise with 
different frequency characteristics) SEL. None of the vehicles expected 
to be flown from PSCA over the five-year period covered by this 
proposed rule is known to be louder than the Castor 120.
Minuteman Derivative--Minotaur I
    The Minotaur I is a small lift solid propellant space launch 
vehicle, the first stage of which is a modified Minuteman II. The first 
stage motor has a diameter of 4.5 ft. This launch vehicle has not yet 
been flown from PSCA. Sound pressure monitoring of two Minotaur I 
launches was accomplished at Vandenberg Air Force Base, California 
(VAFB). The data were collected 1.4 mi 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 spit on Ugak Island's northern most point 
is two mi further (i.e., spit is 3.5 mi from the launch point), the 
anticipated sound pressure levels from a Minotaur I at the spit on Ugak 
Island's northern most point would be less than that of the Castor 120.
Trident Derivatives--C-4 Trident I
    The C-4 is a solid fueled vehicle and its first stage has a 
diameter of 6.1 ft, which is about 1.5 ft less than the Castor 120. 
Because it is significantly smaller in diameter than the Castor 120 and 
uses a similar fuel, it is anticipated that sound pressure levels at 
the spit on Ugak Island's northern most point would be less than those 
of the Castor 120.
Polaris Derivatives--A-3 STARS
    The Strategic Target System (STARS) utilizes the first stage of the 
Polaris A-3, which is solid fueled and measures 4.5 ft in diameter. 
Several STARS systems have been flown from PSCA. Recorded sound 
pressure levels at Ugak Island have ranged from 90.2 to 91.4 dBA (SEL).
Smaller Vehicles and Tactical Rocket Systems
    A number of smaller missile systems, such as tactical or target 
vehicles, have the possibility of being flown from PSCA. Representative 
smaller systems range from about a foot in diameter up to about four 
foot in diameter. Sound pressures from these smaller systems are not 
available, but will be substantially less than those from the space 
launch and ballistic vehicles described and pose little potential for 
disturbance to marine mammals.
    Even smaller systems ranging down in size to several inches in 
diameter will conceivably be flown as well. Small sounding and research 
rockets (defined as less than 5,000 lbs in weight) will be excluded 
from this request, including its mitigations and reporting, as the 
rockets' small shape and energy are too small to transmit an 
appreciable sound pressure on Ugak Island, and are expected to be well 
below the threshold for an active response.
Summary of Launch Vehicles
    Table 1 provides motor diameters and representative sound pressures 
for various launch vehicles, some of which have been launched 
previously from PSCA. The listed vehicles 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 PSCA sound measurements reported in Table 1 were taken at a 
distance of 3.5 mi from the launch pad at the nearest point of Ugak 
Island. It is important to note that the Castor 120 (previously 
launched from PSCA) is the loudest launch vehicle motor expected to be 
launched from PSCA over the 5-year period covered by the proposed 
regulations.

                                                      Table 1--Past and Anticipated Launch Vehicles
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                                      Previously Launched & Recorded at PSCA (also Potentially Launched in Future)
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                                                                                          Motor diameter
        Launch designator             Launch vehicle        Date     Distance to haulout     (ft) \1\        SEL (dBA)      Lmax (dBA)      LPeak (dBA)
--------------------------------------------------------------------------------------------------------------------------------------------------------
QRLV.............................  ...................      11/5/98  3.5 mi \2\.........             4.3            88.4            78.2            97.0

[[Page 6460]]

 
QRLV.............................  ...................      9/15/99  3.5 mi \2\.........             4.3            92.2            81.5           101.5
QRLV.............................  ...................      3/22/01  3.5 mi \2\.........             4.3            80.3            73.3            87.2
Athena...........................  Castor 120.........      9/29/01  3.5 mi \2\.........            7.75           101.4            90.8           115.9
FT-04-1..........................  Polaris A-3 STARS..      2/23/06  4.1 mi.............             4.5            92.3            86.0           109.0
FTG-02...........................  Polaris A-3 STARS..      9/01/06  4.1 mi.............             4.5            90.1            83.1           105.6
FTG-03a..........................  Polaris A-3 STARS..      9/28/07  4.1 mi.............             4.5            91.4            84.2           107.3
FTX-03...........................  Polaris A-3 STARS..      7/18/08  4.1 mi.............             4.5            89.6            83.0           108.3
                                   Minotaur I.........  ...........  ...................             4.5         \2\ 90+  ..............  ..............
                                   C-4 Trident I......  ...........  ...................             6.1  ..............  ..............  ..............
                                   Castor I...........  ...........  ...................             2.6  ..............  ..............  ..............
                                   SR19/SR773.........  ...........  ...................             4.3  ..............  ..............  ..............
                                   SR19/SR19..........  ...........  ...................             4.3  ..............  ..............  ..............
                                   Castor IVB.........  ...........  ...................             3.3  ..............  ..............  ..............
Tactical Vehicles................  ...................  ...........  ...................            <1.5  ..............  ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
\1\ Motor sound pressures from solid fueled motors, roughly, correlate to motor diameter.
\2\ Estimated.

    Spent first stage rocket motors impact the ocean from 11 to more 
than 300 mi down range, depending on launch vehicle. Sonic booms reach 
the earth's surface beyond the OCS (US FAA 1996). Both falling first 
stage rocket motors and sonic booms are too far from land to take 
pinnipeds and are not expected to affect whales.

Description of Marine Mammals in the Area of the Specified Activity

    Sections 4 and 5 of AAC's application and the monitoring reports 
contain detailed information on the abundance, status, and distribution 
of the species on Ugak Island from surveys that they have conducted 
over the last decade. This information is summarized below and may be 
viewed in detail at http://www.nmfs.noaa.gov/pr/permits/incidental/research.htm. Additional information is available in the NMFS SARs for 
Alaska at http://www.nmfs.noaa.gov/pr/sars/region.htm.
    Marine mammals under NMFS' jurisdiction that occur in the vicinity 
of PSCA include the harbor seal, Steller sea lion, gray whale 
(Eschrichtius robustus), humpback whale (Megaptera novaeangliae) (Table 
2). All are protected under the MMPA and the Steller sea lion and 
humpback whale are listed as threatened or endangered under the 
Endangered Species Act (ESA). Sea otters (Enhydra lutris) also occur in 
the area, but are managed by FWS; therefore, sea otters are not 
discussed further in this application.

                                        Table 2--Summary of MMPA Species
----------------------------------------------------------------------------------------------------------------
         Common name          Scientific name       Status         Occurrence      Seasonality     Daily counts
----------------------------------------------------------------------------------------------------------------
Harbor seal.................  Phoca vitulina.  MMPA...........  Common.........  Year-round,            32-1,500
                                                                                  Trends.
                                                                                 toward Summer..
Steller sea lion............  Eumetopias       Endangered.....  Rare...........  Trends toward              0-19
                               jubatus.                                           Summer.
Gray whale..................  Eschrichtius     MMPA...........  Seasonal.......  Spring and fall            0-32
                               robustus.
Humpback whale..............  Megaptera        Endangered.....  Seasonal.......  Summer and fall             0-4
                               novaeangliae.
----------------------------------------------------------------------------------------------------------------

    Airborne noise is generally reflected at the sea surface outside of 
a 26 degrees 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.

Steller Sea Lions

    After discussions with AAC and NOAA's Alaska Regional Office (AKR), 
it was determined there would be no take of Steller sea lions for the 
proposed activities. In the most recent National Marine Mammal 
Laboratory (NMML) survey (NOAA's Alaska Fisheries Science Center) of a 
location within the action area (July 2015) and of Ugak Island, no sea 
lions were observed (Fritz et al., 2015). Personal communication 
between AKR and L. Fritz (Research Fishery Biologist, NMML's Alaska 
Ecosystem Program) (September 28, 2016) indicate that sea lions have 
rarely been seen on Ugak Island in recent times. Under those surveys, 
sea lions were last seen at Ugak Island during the summer of 1994, when 
one sea lion was observed, and in December 1994, when

[[Page 6461]]

20 sea lions were documented (L. Fritz pers. comm. 2016). Sea lions 
were last seen in large numbers during the 1985-1986 surveys when more 
than 300 sea lions were observed. It was concluded that the habitat on 
Ugak Island is not highly suitable for sea lions (L. Fritz pers. comm. 
2016).
    In addition, AAC has been conducting regular aerial marine mammal 
surveys since 2006 as a requirement of their previous regulations and 
LOAs and has also documented Steller sea lion presence as rare. During 
their previous regulations (2011-2016), 17 aerial surveys were flown. 
During those surveys, Steller sea lions were only seen in one year with 
19 observed in September 2011 at East Ugak Rock away from the Ugak spit 
haulout. This was the last sighting of Steller sea lions by AAC. Prior 
to 2011, sea lions were seen in small numbers on occasion during the 
2006-2008 surveys. In 2006, 6 out of 14 surveys found sea lions, 
ranging from one to eight animals. In 2007, 1 out of 8 surveys revealed 
two sea lions. In 2008, 8 out of 8 surveys found one to five sea lions. 
AAC also noted that the Ugak spit haulout looks smaller than it has in 
the past (AAC 2016). The spit is under the influence of longshore 
currents and its geomorphology shifts over time (AAC 2016). This may 
now make it unsuitable as a haulout and it may have thus been abandoned 
by sea lions.
    It was determined that take will not occur for Steller sea lions 
based on the historic and recent survey data available. Sea lions are 
likely absent from the area (except a rare visitor) and the likelihood 
of an animal being present during the nine times a year a launch may be 
planned is highly unlikely. Therefore, Steller sea lions are not 
discussed further in these proposed regulations.
    The only marine mammals anticipated to be affected by the specified 
activities and proposed as take for Level B harassment are harbor seals 
hauled out on Ugak Island and therefore they are the only marine mammal 
discussed further in these proposed regulations.

Harbor Seals

    Harbor seals range from Baja California north along the west coasts 
of Washington, Oregon, California, British Columbia, and Southeast 
Alaska; west through the Gulf of Alaska, Prince William Sound, and the 
Aleutian Islands; and north in the Bering Sea to Cape Newenham and the 
Pribilof Islands. The current statewide abundance estimate for Alaskan 
harbor seals is 205,090 (Boveng et al. in press as cited in Muto et 
al., 2015), based on aerial survey data collected during 1998-2011. In 
2010, harbor seals in Alaska were partitioned into 12 separate stocks 
based largely on genetic structure (Allen and Angliss 2010). Harbor 
seals have declined dramatically in some parts of their range over the 
past few decades, while in other parts their numbers have increased or 
remained stable over similar time periods.
    Seals on Ugak Island are considered part of the South Kodiak stock 
(Table 3)--ranging from Middle Cape on the west coast of Kodiak Island 
southwest to Chirikof Island and east along the south coast of Kodiak 
Island to Spruce Island, including the Trinity Islands, Tugidak Island, 
Sitkinak Island, Sundstrom Island, Aiaktalik Island, Geese Islands, Two 
Headed Island, Sitkalidak Island, Ugak Island, and Long Island (Muto et 
al., 2015). A significant portion of the harbor seal population within 
the South Kodiak stock is located at and around Tugidak Island off the 
southwest coast of Kodiak Island. Sharp declines in the number of seals 
present on Tugidak were observed between 1976 and 1998. The highest 
rate of decline was 21 percent per year between 1976 and 1979 (Pitcher 
1990 as cited by Muto et al., 2015). While the number of seals on 
Tugidak has stabilized and shown some evidence of increase since the 
decline, the population in 2000 remained reduced by 80 perent compared 
to the levels in the 1970s (Jemison et al., 2006 as cited by Muto et 
al., 2015). The current (2007-2011) estimate of the South Kodiak 
population trend is -461 seals per year, with a probability that the 
stock is decreasing of 0.72 (Muto et al., 2015). Only the South Kodiak 
stock is considered in this application because other stocks occur 
outside the geographic area under consideration.

                                                         Table 3--Harbor Seal Status Information
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             ES)/MMPA
                                                             status;      Stock abundance (Nmin,                     Annual M/SI    Relative occurrence/
              Species                       Stock           Strategic     most recent abundance        PBR \3\           \4\        season of occurrence
                                                            (Y/N) \1\          survey) \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal.......................  South Kodiak (Alaska)        --; N      19,199 (17,479; 2011)             314             128  Harbor seals are year-
                                                                                                                                    round inhabitants of
                                                                                                                                    Ugak Island, Alaska.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (--) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR (see footnote 3) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species
  or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ Nmin is the minimum estimate of stock abundance. The most recent abundance survey that is reflected in the abundance estimate is presented; there
  may be more recent surveys that have not yet been incorporated into the estimate.
\3\ Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a
  marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP).
\4\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value. All
  values presented here are from the final 2015 Harbor Seal, Alaska SAR. (http://www.nmfs.noaa.gov/pr/sars/pdf/stocks/alaska/2015/ak2015_sehr.pdf).

    Harbor seals are the most abundant marine mammal species found 
within the action area and present year-round. Based on AAC aerial 
survey counts from launch monitoring reports conducted since January 
2006, approximately 97 percent of all harbor seals are found on the 
eastern shore of Ugak Island, approximately 5 mi from LP1. The eastern 
shore is backed by high steep cliffs that reach up to 1,000 ft above 
sea level. These cliffs form a visual and acoustic barrier to rocket 
operations, and limit effects on the species. Additionally, sound 
pressure recordings that showed surf and wind-generated sound pressures 
at sea level were generally in the greater than >70 dBA (SEL) range on 
the best weather and surf days (Cuccarese et al., 1999; 2000); while 
sound pressures at sea level can

[[Page 6462]]

exceed 100 dBA (SEL) during inclement weather. Ugak's eastern shore is 
windward to prevailing winds and surf noise is routinely high. The 
remaining three percent of the harbor seals identified during surveys 
are found at the northern shore of Ugak Island. Harbor seals located on 
the northern shore are not as protected from launch noise, and 
therefore may be harassed (Level B) incidentally to AAC's rocket launch 
activities. However, harbor seal abundance on the northern shore 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. 
During surveys when seals were present, the average abundance was 25 
seals with a single day count of 125 individuals (Figure 1 below).
[GRAPHIC] [TIFF OMITTED] TP19JA17.013

    Because access to Ugak Island harbor seal haulouts is difficult, 
little is known of how seals use these habitats. Harbor seals generally 
breed and molt where they haulout, so it is assumed that both of these 
activities take place on Ugak Island. This assumption is supported by 
the fact that young seals have routinely been seen there during aerial 
surveys. These haulouts are the only haulouts used by harbor seals 
within the 6-mi radius area designated as being affected by launch 
operations.
    Harbor seals haul out on rocks, reefs, beaches, and drifting 
glacial ice (Allen and Angliss 2014). They are non-migratory; their 
local movements are associated with tides, weather, season, food 
availability, and reproduction, as well as sex and age class (Allen and 
Angliss 2014; Boveng et al., 2012; Lowry et al., 2001; Swain et al., 
1996). Pupping in Alaska generally takes place in May and June; while 
molting generally occurs from June to October.

Potential Effects of the Specified Activity on Marine Mammals

    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. The generic thresholds described below 
(Table 4) are used to estimate when harassment may occur (i.e., when an 
animal is exposed to levels equal to or exceeding the relevant 
criterion) in specific contexts. However, useful contextual information 
that may inform our assessment of effects is typically lacking and we 
consider these thresholds as step functions.

[[Page 6463]]



        Table 4--Current Acoustic Exposure Criteria for Pinnipeds
------------------------------------------------------------------------
           Criterion                Definition           Threshold
------------------------------------------------------------------------
Level B harassment              Behavioral         120 dB (non-impulse,
 (underwater).                   disruption.        continuous source,
                                                    i.e., combustion
                                                    effects of launch
                                                    vehicles) (rms).
Level B harassment (airborne).  Behavioral         90 dB (harbor seals).
                                 disruption.
------------------------------------------------------------------------

    While low-frequency cetaceans and pinnipeds have been observed to 
respond behaviorally to low- and mid-frequency sounds (e.g., Frankel, 
2005), there is little evidence of behavioral responses in these 
species to high-frequency sound exposure (e.g., Jacobs and Terhune 
2002; Kastelein et al., 2006). If a marine mammal does perceive a 
signal from an AAC acoustic source, it is likely that the response 
would be, at most, behavioral in nature.
    As discussed above, launch operations are a major source of 
acoustic stimuli on Kodiak Island and can reach pinniped haulouts on 
Ugak Island. The activities proposed for taking of marine mammals under 
these regulations have the potential to cause harassment through 
acoustic stimuli. The PSCA launch activities create two types of noise: 
continuous (but short-duration) noise, due mostly to combustion effects 
of launch vehicles; and impulsive noise, due to sonic boom effects. 
Generally, noise is generated from four sources during launches: (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. Launch noise levels are highly dependent on the type of 
first-stage booster and the fuel used to propel the vehicle. Therefore, 
there is a great similarity in launch noise production within each 
class size of launch vehicles. For the proposed activity, sonic booms 
will reach the earth's surface beyond the OCS (US FAA 1996) and are not 
anticipated to impact marine mammals and are therefore not discussed 
further.
    Noise from rocket launches may cause the pinnipeds to lift their 
heads, move towards the water, or enter the water. It is unlikely there 
would be significant visual disturbance as space vehicles would be too 
far away to cause significant stimuli. Modeling done of Castor 120 
space launches indicates the vehicle is passing through 45,000 ft 
altitude by the time it reaches Ugak Island about 70 seconds following 
launch (US FAA 1996). Therefore, we have determined that the 
possibility of marine mammal harassment from visual stimuli associated 
with the proposed activities is so low as to be considered discountable 
and it is therefore not considered further.
    Disturbance of pinnipeds caused by AAC's rocket launches would be 
expected to last for only short periods of time, separated by 
significant amounts of time in which no disturbance occurs. Because 
such disturbance is sporadic, rather than chronic, and of low 
intensity, individual marine mammals are unlikely to incur any 
detrimental impacts to vital rates or ability to forage and, thus, loss 
of fitness. Correspondingly, even local populations, are extremely 
unlikely to accrue any significantly detrimental impacts, much less the 
overall stocks of animals To comply with their previous 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. AAC will attempt another method 
of documenting pinniped response to launch noise by using time-lapsed 
photography methods. Time lapse photography has already been 
implemented by NOAA for other pinnipeds (Steller sea lions) in harsh 
conditions of the western Aleutians of the U.S. with great success.
    The infrequent (approximately nine times per year) and brief 
(approximately one 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 harbor seals which utilize 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 
PSCA.
    Harbor seal pups could be present at times during AAC's rocket 
launches, but 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 Renouf 1985; Cottrell et al., 2002; Burns et al., 
2005). In summary, they found that the most critical bonding time is 
within minutes after birth. As such, it is unlikely that infrequent 
disturbance resulting from AAC's rocket launches would interrupt the 
brief mother-pup bonding period within which disturbance could result 
in separation. 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 weaned from their mother within 
approximately four 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 five 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.
    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 is 
unlikely to occur and can therefore be discounted.
    Finally, PSCA has conducted up to 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 mi from a haulout; however, if pilot or crew 
notice overt responses from

[[Page 6464]]

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.
    The following information provides background on marine mammal 
responses to launch noise that has been gathered under previous LOAs 
and Incidental Harassment Authorizations for similar rocket launch 
activities, including at VAFB in California, and been used to inform 
our analysis for AAC's proposed rocket launch activities.

Marine Mammal Response to Launch Noise at VAFB

    Seals may leave a haulout site and enter the water due to the noise 
created by launch vehicles during launch operations. The percentage of 
seals leaving a haulout increases with noise level up to approximately 
100 dB ASEL (A-weighted SEL), after which almost all seals leave, 
although data have shown that some percentage of seals have remained on 
shore during launches. Time-lapse video photography during four launch 
events at VAFB revealed that the seals that reacted to the launch 
noise, but did not leave the haulout were all adults. Because adult 
seals reacted less strongly than younger seals, this suggests that 
adults had possibly experienced other launch disturbances and had 
habituated to them.
    The louder the launch noise, the longer it took for seals to begin 
returning to the haulout site and for the numbers to return to pre-
launch levels. Seals may begin to return to the haulout site within 2-
55 min of the launch disturbance, and the haulout site usually returned 
to pre-launch levels within 45-120 min. In two past Athena IKONOS 
launches with ASELs of 107.3 and 107.8 dB at the closest haulout site, 
seals began to haulout again approximately 16-55 min post-launch 
(Thorson et al., 1999a; 1999b). In contrast, noise levels from an Atlas 
launch and several Titan II launches had ASELs ranging from 86.7 to 
95.7 dB at the closest haulout, and seals began to return to the 
haulout site within 2-8 min post-launch (Thorson and Francine 1997; 
Thorson et al., 2000).

Auditory Brainstem Response Tests at VAFB

    To justify that the potential for permanent threshold shift (PTS) 
is unlikely, Auditory Brainstem Response (ABR) testing on 21 seals 
during rocket launches at VAFB was conducted. VAFB launches 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). To determine if 
harbor seals experience changes in their hearing sensitivity as a 
result of launch noise at VAFB, ABR testing was conducted on harbor 
seals for four Titan IV launches, one Taurus launch, and two Delta IV 
launches by the USAF in accordance with issued scientific research 
permits. Following standard ABR testing protocol, the ABR was measured 
from one ear of each seal using sterile, sub-dermal, stainless steel 
electrodes. A conventional electrode array was used, and low-level 
white noise was presented to the non-tested ear to reduce any 
electrical potentials generated by the non-tested ear. A computer was 
used to produce the click and an 8 kilohertz (kHz) tone burst stimuli, 
through standard audiometric headphones. Over 1,000 ABR waveforms were 
collected and averaged per trial. Initially the stimuli were presented 
at SPLs loud enough to obtain a clean reliable waveform, and then 
decreased in 10 dB steps until the response was no longer reliably 
observed. Once response was no longer reliably observed, the stimuli 
were then increased in 10 dB steps to the original SPL. By obtaining 
two ABR waveforms at each SPL, it was possible to quantify the 
variability in the measurements.
    Good replicable responses were measured from most of the seals, 
with waveforms following the expected pattern of an increase in latency 
and decrease in amplitude of the peaks, as the stimulus level was 
lowered. One seal had substantial decreased acuity to the 8 kHz tone-
burst stimuli prior to the launch. The cause of this hearing loss was 
unknown, but was most likely congenital or from infection. Another seal 
had a great deal of variability in waveform latencies in response to 
identical stimuli. This animal moved repeatedly during testing, which 
may have reduced the sensitivity of the ABR testing on this animal for 
both the click and 8 kHz tone burst stimuli. Two of the seals were 
released after pre-launch testing but prior to the launch of the Titan 
IV B-34, as the launch was delayed for many days, and five days is the 
maximum duration permitted to hold the seals for testing.
    Detailed analysis of the changes in waveform latency and waveform 
replication of the ABR measurements for the 14 seals showed no 
detectable changes in the seals' hearing sensitivity as a result of 
exposure to the launch noise. The delayed start (1.75 to 3.5 hrs after 
the launches) for ABR testing allows for the possibility that the seals 
may have recovered from a temporary threshold shift (TTS) before 
testing began. However, it can be said with confidence that the post-
launch tested animals did not have permanent hearing changes due to 
exposure to the launch noise from the Titan IV, Taurus, or Delta IV 
SLVs. These results are consistent with previous NMFS conclusions for 
such activities in its prior rulemakings (63 FR 39055, July 21, 1998; 
69 FR 5720, February 6, 2004; 74 FR 6236, February 6, 2009). 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 PSCA, pinniped auditory injury is not anticipated. Therefore, PTS 
is not a concern for pinnipeds exposed to launch noise from the PSCA as 
noise levels at this location are below those experienced during the 
VAFB launches, and sonic booms are not audible on Ugak Island.

Summary of Marine Mammal Impacts from Launches

    NMFS does not anticipate a significant impact on any of the species 
or stocks of marine mammals from launches from PSCA. The effects of the 
activities are expected to be limited to short-term startle responses 
and localized behavioral changes. In general, if the received level of 
the noise stimulus exceeds both the background (ambient) noise level 
and the auditory threshold of the animals, and especially if the 
stimulus is novel to them, there may be a behavioral response. The 
probability and degree of response will also depend on the season, the 
group composition of the pinnipeds, and the type of activity in which 
they are engaged. Minor and brief responses, such as short-duration 
startle or alert reactions, are not likely to constitute disruption of 
behavioral patterns, such as migration, nursing, breeding, feeding, or 
sheltering and would not cause injury or mortality to marine mammals. 
On the other hand, startle and alert reactions accompanied by large-
scale movements, such as stampedes into the water of hundreds of 
animals, may rise to the degree of Level A harassment because they 
could result in injury of individuals. In addition, such large-scale 
movements by dense aggregations of marine mammals or at pupping sites 
could potentially lead to takes by injury or death. However, there is 
no potential for large-scale movements leading to serious injury or 
mortality near for the harbor seals at the northern end of Ugak Island 
because, historically, the number of harbor seals hauled out near the 
site

[[Page 6465]]

is less than 30 individuals, and these animals do not stampede, but 
flush into the water. Based on similar observational data (at VAFB) and 
for the largest launch vehicle, the Castor 120 (approximately 101.4 
dBA), NMFS anticipates that if seals are disturbed there may be a 
startle response and flush into the water. Harbor seals would likely 
return to haulout sites on Ugak Island within 2 to 55 minutes of the 
launch disturbance. No PTS is anticipated, and the likelihood of TTS is 
low. In addition, because aircraft will fly at altitudes greater than 
305 m (1,000 ft) around pinniped haulouts and rookeries, animals are 
not anticipated to react to security overflights.
    The potential effects to marine mammals described in this section 
of the document do not take into consideration the proposed monitoring 
and mitigation measures described later in this document (see the 
``Proposed Mitigation'' and ``Proposed Monitoring and Reporting'' 
sections) which, as noted, should affect the least adverse impact 
practicable on affected marine mammal species and stocks.

Anticipated Effects on Marine Mammal 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 OCS. 
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 PSCA 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 
affecting the least adverse impact practicable 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 mi (0.4 km), and would maintain a vertical 
distance of 1,000 ft (305 m) from the haulouts when within 0.5 mi (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) 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; 
(3) AAC will purchase and install time-lapsed photography systems in 
order to survey each of the three pinniped haulout locations around 
Ugak Island to confirm the abundance of pinnipeds at the haulouts and 
allow for the more complete surveying efforts. The number of camera 
systems, equipment capabilities, placement of the systems to be used, 
and the daily photo frequency will be determined through a cooperative 
effort between AAC, NMFS, and field experts; (4) AAC will conduct a 
correlation study in coordination with NMFS. The purpose of the study 
is to evaluate the effectiveness of the time-lapsed photography systems 
(specifically, the accuracy of the photography systems compared with 
aerial count surveys). The results of this study will determine the 
need to continue aerial surveys. The study will be conducted through a 
minimum of five launches; and (5) All Castor 120 equivalent launches 
will be conducted at LP1 which is equipped with a concrete and water-
filled flame trench. The purpose of the flame trench is to direct smoke 
away from the launch pad and to absorb light and noise at their 
respective peaks (i.e. lift-off) to reduce the noise created during 
each launch.
    NMFS has carefully evaluated AAC's proposed mitigation measures and 
considered a range of other measures in the context of ensuring that 
NMFS prescribes the means of affecting the least adverse impact 
practicable 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 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. 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 affecting the least 
adverse impacts practicable 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 the following for 
monitoring and reporting: (1) Deploy time-lapsed photography systems 
designed to monitor pinniped abundance and detect pinniped responses to 
rocket launches conducted under these regulations. AAC will monitor the 
effectiveness of these systems, comparing the results to aerial surveys 
from at least five launches; (2) Ensure the time-lapsed photography 
systems will be in place and operating in locations that allow for 
visual monitoring of all three pinniped haulouts during launches; (3) 
Relocate the time-lapsed photography systems in cooperation with NMFS 
after five launches if the system is not accurately capturing all three 
pinniped haulouts and total pinniped abundance during

[[Page 6466]]

the launches; (4) Review and log pinniped presence, abundance, 
behavior, and re-occupation time from the data obtained from the time-
lapsed photography systems and report results to NMFS within 90 days of 
the first five launches under this system; (5) Conduct one pre-launch 
aerial survey and one post-launch aerial survey for each launch similar 
to previous years. AAC will conduct a minimum of one aerial survey 
annually (in the event no launch occurs during a calendar year); and 
(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. Data collected 
would include number of seals per haulout, by age class when possible, 
and if any disturbance behavior is noted from aircraft presence.

Estimated Take by Incidental Harassment

    The following text describes the potential range of takes possible 
of harbor seals on PSCA during launches. AAC estimates that up to 45 
launches may occur from PSCA over the course of the 5-year period 
covered by the proposed rulemaking. Annually, AAC requests nine 
launches to be authorized. 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.
    Harbor seals of all age classes hauled out on the northern shores 
of Ugak Island may become alert or flush into the water in response to 
rocket to launches from PSCA. The total number of harbor seals present 
on Ugak Island ranges up to a maximum of approximately 1,500 seals in 
the last ten years, and 1,150 seals in the last five years. However, 
approximately 97 percent of harbor seals are found at the eastern shore 
haulout where they are sheltered from launch effects by the 1,000 ft 
cliffs that stand between this haulout and PSCA. Only about three 
percent of harbor seals use the northern haulout across from PSCA 
because of the lack of suitable beaches. When present, the majority of 
counts at the northern haulout were of less than 25 individuals (Figure 
1). An exceptional one-time high count of about 125 seals occurred 
within the last 10 years. The mean number of harbor seals present at 
the northern haulout is 10 seals with a standard deviation of 25 seals. 
Therefore, a representative harbor seal population at the northern 
haulout of 35 seals (the mean plus one standard deviation) is used for 
the following take estimate.
    Assuming that all 35 harbor seals at the northern haulout are 
expected to be present and taken by Level B Harassment during a launch, 
and that all 9 launches are of the Castor 120 (loudest space vehicle), 
a maximum of 315 harbor seals annually could be taken by Level B 
harassment with 1,575 harbor seals taken over the 5-year effective 
period of the regulations. Depending on the type of rocket being 
launched, the time of day, time of the year, weather conditions, tide 
and swell conditions, the number of seals that may be taken will range 
between 0 and 35 per launch. Launches may occur at any time of the 
year, so any age classes and gender may be taken.
    SELs from the loudest launch may reach approximately 101.4 dBA at 
the traditional Steller sea lion haulout (approximately 3.5 mi from the 
launch site) which is similar distance to the northern beaches where 
harbor seal haulout (approximately 4 mi from the launch site). Based on 
this recorded level and the fact that audible launch noise would be 
very short in duration, harbor seals are not expected to incur PTS, and 
the chance of TTS is low to unlikely. No injury or mortality of harbor 
seals is anticipated, nor would any be authorized. Therefore, NMFS 
proposes to authorize harbor seal take, by Level B harassment only, 
incidental to launches from PSCA.
    As discussed above, security overflights associated with a launch 
would not closely approach or circle any pinniped. 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 marine mammal 
reports.

Previous Monitoring

    The primary monitoring method has involved conducting aerial 
surveys along set transect lines to observe and count harbor seals and 
Steller sea lions. Marine mammals other than harbor seals and Steller 
sea lions, although observed and recorded, were not specifically 
targeted by the launch-related aerial surveys. Marine mammal abundance 
and distribution were recorded during aerial surveys flown in a single-
engine fixed-wing airplane with floats. The aerial survey route was 
designed for harbor seals and Steller sea lions and was flown using a 
Global Positioning System (GPS) for navigation. All surveys were 
intended to be flown within two hours of the daytime low tide and 
during mid-day, when haulout attendance peaks for harbor seals.
    The aerial survey schedule during the formal monitoring period 
consisted of daily surveys one day prior to the launch, immediately 
following the launch (on the launch day), and each day of the three 
days following the launch date, weather conditions permitting (NMFS 
2008). Two additional surveys were often conducted prior to the formal 
monitoring period at AAC's discretion. The two additional surveys were 
conducted to balance the pre-launch sample size with the three post-
launch surveys to allow calculation of the variance in pre-launch 
counts for subsequent statistical analysis. The aerial surveys were 
flown 1,000 ft above sea level at 80-90 nautical mph and the flight 
line was kept >=0.25 mi from known haulouts. Digital photographs of 
groups of pinnipeds (generally greater than 10 pinnipeds) were taken 
with a Nikon D70 camera (equipped with a 70 to 300 millimeter zoom 
lens) or a Canon Powershot S5 camera with image stabilized zoom. Images 
were reviewed on a personal computer and counts of pinnipeds were 
summarized from sets of overlapping images. All counts greater than 15 
pinnipeds were made from digital images taken from the aircraft, unless 
the images were blurred or underexposed, in which cases the visual 
estimates were used.
    Foul weather, daylight considerations, launch timing, and timing of 
tidal flux have all contributed to the difficulty in collecting the 
data. Foul weather precludes aerial surveys primarily due to 
visibility, excessive turbulence, and other dangerous conditions. In 
addition, rockets can often be launched during periods of weather that 
are not conducive to operation of small aircraft.
    Total counts on Ugak Island (both the northern and eastern haulouts 
combined) have increased steadily and remained stable since the 1990s 
from several hundred (ENRI 1995-1998) up to a peak of about 1,500 in 
the last 10 years (R&M 2008). The number of harbor seals tallied at 
Ugak Island during the July 2008 FTX-03 surveys reached a record for 
monitoring surveys at 1,534 seals (R&M 2008). Table 5 presents daily 
counts, by species, of the marine mammals that have been observed 
during launch-related environmental monitoring activities from 2006-
2008. Seal numbers in Table 5 are highest during August and September 
because they were conducted during the annual molt, when maximal

[[Page 6467]]

numbers of harbor seals tend to haulout (Calambokidis et al., 1987).

 Table 5--Marine Mammal Observations (2006-2008) During Launch-Related Environmental Monitoring Within Six-Mi Radius Study Area and on Haulouts on Ugak
                                                                         Island
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                      Pre-launch survey
               Date                   Steller sea     Harbor seal     Gray whale    Humpback whale    (number days pre-      Post-Launch survey (number
                                       lion \1\           \2\                                              launch)               days post-launch)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2/18/2006.........................  ..............             684  ..............  ..............  Yes (5)..............
2/19/2006.........................  ..............             519               2  ..............  Yes (4)..............
2/20/2006.........................  ..............             201  ..............  ..............  Yes (3)..............
2/21/2006.........................  ..............             405               8  ..............  Yes (2)..............
2/22/2006.........................  ..............             350  ..............  ..............  Yes (1)..............
2/23/2006.........................  ..............             211               1  ..............  .....................  Yes (Same Day).
2/24/2006.........................  ..............             270               1  ..............  .....................  Yes (1).
2/25/2006.........................  ..............              58  ..............  ..............  .....................  Yes (2).
8/28/2006.........................               3             495  ..............  ..............  Yes (3)..............
8/29/2006.........................               4             652  ..............  ..............  Yes (2)..............
8/31/2006.........................           \3\ 8             901  ..............  ..............  Yes (1)..............
9/1/2006..........................               2             961  ..............  ..............  .....................  Yes (Same Day).
9/2/2006..........................               1             954               2               1  .....................  Yes (1).
9/3/2006..........................               1             789  ..............               1  .....................  Yes (2).
5/23/2007.........................  ..............             136               2  ..............  Yes (2)..............
5/27/2007.........................  ..............             402               3  ..............  .....................  Yes (2).
5/28/2007.........................  ..............             224               1  ..............  .....................  Yes (3).
9/25/2007.........................  ..............             381               4  ..............  Yes (3)..............
9/26/2007.........................               2             265  ..............  ..............  Yes (2)..............
9/27/2007.........................  ..............             461               8  ..............  Yes (1)..............
9/30/2007.........................  ..............             686               6  ..............  .....................  Yes (2).
10/1/2007.........................  ..............             748  ..............  ..............  .....................  Yes (3).
7/15/2008.........................               4             700               9  ..............  Yes (3)..............
7/16/2008.........................               5             611              32  ..............  Yes (2)..............
7/17/2008.........................               1             853               9  ..............  Yes (1)..............
7/18/2008.........................               4             840              12  ..............  .....................  Yes (Same Day).
7/19/2008.........................               4             744               1  ..............  .....................  Yes (1).
7/20/2008.........................               5             610               5  ..............  .....................  Yes (2).
7/21/2008.........................               3            1534  ..............  ..............  .....................  Yes (3).
12/7/2008.........................               1             971               5  ..............  .....................  Yes (2).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. Steller sea lions pup mid-May to mid-July and breed late-May to late-July at rookeries. Molt is late July to early December (Hoover 1988). Haulouts
  are used for resting. Ugak Island is a haulout not a rookery. The Ugak Haulout has been used in the past between July and October.
2. Harbor seals pup from mid-May to late-June (Jemison and Kelly 2001) and molt from June to October. Both periods contain peaks in haulout attendance.
3. Five individuals observed by aerial survey, eight captured on unmanned video.

    During the most effective period of the recent regulations (2011-
2016), there were 17 quarterly surveys flown (Table 6). An average of 
644 harbor seals was observed with a range of 32 to 1133 seals and 
standard deviation of 307 seals. From the first quarter of the calendar 
year through the fourth, the average number of seals was as follows: 
441, 698, 608, and 810, respectively (AAC 2016).

 Table 6--Marine Mammal Observations (2011-2016) During Launch-Related Environmental Monitoring Within Six-Mi Radius Study Area and on Haulouts on Ugak
                                                                         Island
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        Number sea     Number harbor
             Year                    Quarter              Date         Time (local)        lions           seals                     Notes
--------------------------------------------------------------------------------------------------------------------------------------------------------
2011..........................  2nd (Apr-Jun)....  N/A..............  ..............  ..............  ..............  Source selection for flights.
2011..........................  3rd (Jul-Sep)....  21-Sep-11........       1330-1430              19             462  Only sea lion sighting.
2011..........................  4th (Oct-Dec)....  5-Dec-11.........  ..............  ..............  ..............  Postponed twice due to multiple
                                                                                                                       storms.
2012..........................  1st (Jan-Mar)....  Mar-12...........       0930-1030               0              32  Results Typical.
2012..........................  2nd (Apr-Jun)....  N/A..............  ..............  ..............  ..............  Postponed due to storms.
2012..........................  3rd (Jul-Sep)....  8-Jul-12.........       1600-1626               0             747  Results Typical.
2012..........................  4th (Oct-Dec)....  20-Oct-12........       1200-1330               0             975  Results Typical.
2013..........................  1st (Jan-Mar)....  16-Mar-13........       1209-1334               0             823  Results Typical.
2013..........................  2nd (Apr-Jun)....  16-Jun-13........       1342-1408               0             332  Results Typical.
2013..........................  3rd (Jul-Sep)....  1-Oct-13.........       1210-1316               0             955  Results Typical.
2013..........................  4th (Oct-Dec)....  14-Nov-13........         N/A-N/A               0             847  Results Typical.
2014..........................  1st (Jan-Mar)....  21-Jan-14........       1115-1230               0             144  Results Typical.
2014..........................  2nd (Apr-Jun)....  5-Apr-14.........       1218-1338               0            1133  Results Typical.
2014..........................  3rd (Jul-Sep)....  3-Jul-14.........       1110-1239               0             513  Results Typical.
2014..........................  4th (Oct-Dec)....  30-Oct-14........       1100-1207               0             810  Results Typical.

[[Page 6468]]

 
2015..........................  1st (Jan-Mar)....  26-Jan-15........       1100-1200               0             312  Results Typical.
2015..........................  2nd (Apr-Jun)....  23-Apr-15........       1230-1330               0             631  Results Typical.
2015..........................  3rd (Jul-Sep)....  24-Aug-15........       1520-1610               0             726  Results Typical.
2015..........................  4th (Oct-Dec)....  18-Oct-15........       1100-1154               0             609  Results Typical.
2016..........................  1st (Jan-Mar)....  21-Mar-16........       1100-1200               0             898  Results Typical.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Previous rocket launches did not appear to depress the daily 
attendance of pinnipeds at haulouts on Ugak Island (Table 7).

            Table 7--Harbor Seal Counts Pre- and Post-Launch
                               [2006-2008]
------------------------------------------------------------------------
                                            Numbers pre    Numbers post
            Launch name/date                  launch          launch
------------------------------------------------------------------------
FT-04-1 (02/23/06) \1\..................         \6\ 350         \6\ 211
FTG-02 (09/01/06) \2\...................         \7\ 901         \7\ 961
FTG-03 (05/27/07) \3\...................         7 8 136         7 8 402
FTG-03a (09/28/07) \4\..................         \7\ 461           \9\ 0
FTX-03 (07/18/08) \5\...................         \7\ 853         \7\ 840
------------------------------------------------------------------------
1. R&M et al. 2006. Environmental Monitoring Report FT-04-1 Launch.
  Report for Alaska Aerospace Development Corporation. Anchorage,
  Alaska. 28pp + Appendices.
2. R&M et al. 2006. Environmental Report FTG-02 Launch. Report for
  Alaska Aerospace Development Corporation. Anchorage, Alaska. 32pp +
  Appendices.
3. R&M et al. 2007. Environmental Monitoring Report FTG-03 Launch.
  Report for Alaska Aerospace Development Corporation. Anchorage,
  Alaska. 24pp + Appendices.
4. R&M et al. 2007. Environmental Monitoring Report FTG-03a Launch.
  Report for the Alaska Aerospace Development Corporation. Anchorage,
  Alaska. 28pp + Appendices.
5. R&M et al. 2008. Environmental Monitoring Report FTX-03 Launch.
  Report for Alaska Aerospace Development Corporation. Anchorage,
  Alaska. 29pp + Appendices.
6. Visual count; launch coincided with execution of LOA that requires
  photographic documentation of seal numbers.
7. Counts from photographs.
8. Data are not representative of launch period. Sole pre-launch survey
  was done two days prior to launch (weather precluded surveys on launch
  day), and first post launch survey was done two days after launch due
  to adverse weather conditions.
9. Survey occurred at high tide when haulouts were flooded.

Analyses and Preliminary Determinations

Negligible Impact Analysis

    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.'' A negligible impact finding is based on the 
lack of likely adverse effects on annual rates of recruitment or 
survival (i.e., population-level effects). An estimate of the number of 
Level B harassment takes alone is not enough information on which to 
base an impact determination. In addition to considering estimates of 
the number of marine mammals that might be ``taken'' through behavioral 
harassment, we consider other factors, such as the likely nature of any 
responses (e.g., intensity, duration), the context of any responses 
(e.g., critical reproductive time or location, migration), as well as 
the number and nature of estimated Level A harassment takes, the number 
of estimated mortalities, and effects on habitat. In making a 
negligible impact determination, NMFS considers (and should explicitly 
address whenever possible) the following:
    (1) The number of anticipated injuries, serious injuries, or 
mortalities;
    (2) The number, nature, and intensity, and duration of Level B 
harassment (all relatively limited);
    (3) The context in which the takes occur (i.e., impacts to areas of 
significance, impacts to local populations, and cumulative impacts when 
taking into account successive/contemporaneous actions when added to 
baseline data);
    (4) The status of stock or species of marine mammals (i.e., 
depleted, not depleted, decreasing, increasing, stable, impact relative 
to the size of the population);
    (5) Impacts on habitat affecting rates of recruitment/survival; and
    (6) The effectiveness of monitoring and mitigation measures.
    For reasons stated previously in this document, the specified 
activities are not likely to cause long-term behavioral disturbance, 
abandonment of the haulout area, serious injury, or mortality because:
    (1) The possibility of injury, serious injury, or mortality may 
reasonably be considered discountable;
    (2) The effects of the activities are expected to be limited to 
short-term startle responses and localized behavioral changes;
    (3) The considerable evidence, based on over 10 years of monitoring 
data, suggesting no long-term changes in the use by harbor seal 
haulouts in the project area as a result of launch operations. Launches 
will not occur more than a maximum of nine times per year over the next 
five years. In past years, AAC has conducted zero to two launches on an 
annual basis. NMFS has analyzed the specified activity to include 
disturbance events of up to nine launches per year as AAC anticipate 
the capability to carry out more efficient mission turn-around time 
over the duration of the proposed regulations;

[[Page 6469]]

    (4) Based on aerial survey data, the harbor seal population on Ugak 
Island has increased and is stable. 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 
in 2008 (R&M 2007a, 2007b, 2008, 2009). Therefore, NMFS does not 
believe there would be any long-term impact on the health of the 
population. Given harbor seals are considered a species that is easily 
disturbed, their resilience to launch effects suggest impacts from 
launches are short-term and negligible;
    (5) 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 OCS. 
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 PSCA would not be expected to cause any impacts to habitats used 
by marine mammals, including pinniped haulouts, or to their food 
sources or would impact their survival, and;
    (6) 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).
    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 time-lapse photography system would be able to detect 
impacts (takes) from launch exposure, including the number of pinnipeds 
flushing at the haulout sites, while quarterly aerial surveys would aid 
in determining long-term trends of pinniped abundance. The proposed 
monitoring measures contained within this notice are specifically 
designed to, among other things, determine if Level B Harassment 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 PSCA will have a negligible impact on the affected 
marine mammal species or stock.

Small Numbers Analysis

    The numbers of proposed authorized takes would be considered small 
relative to the relevant stocks or populations, eight percent for 
harbor seals. But, it is important to note that the number of expected 
takes does not necessarily represent of the number of individual 
animals expected to be taken. Our small numbers analysis accounts for 
this fact. Multiple exposures to Level B harassment can accrue to the 
same individuals over the course of an activity that occurs multiple 
times in the same area (such as AAC's proposed activity). This is 
especially likely in the case of species that have limited ranges and 
that have site fidelity to a location within the project area, as is 
the case with harbor seals.
    As described above, harbor seals are non-migratory, rarely 
traveling more than 50 km from their haulout sites. Thus, while the 
estimated abundance of the South Kodiak stock of harbor seals is 19,199 
(Muto et al., 2015), a substantially smaller number of individual 
harbor seals is expected to occur within the project area. We expect 
that, because of harbor seals' site fidelity to locations at Ugak 
Island, and because of their limited ranges, the same individuals are 
likely to be taken repeatedly over the course of the proposed 
activities. Therefore, the number of exposures to Level B harassment 
over the course of proposed authorization (the total number of takes 
described in the Estimated Take by Incidental Harassment section) is 
expected to accrue to a much smaller number of individuals. The maximum 
number of harbor seals expected to be taken by Level B harassment over 
the 5-year regulations is 1,575. As we believe the same individuals are 
likely to be taken repeatedly over the course of the proposed 
activities, we use the estimate of 1,575 individual animals taken for 
the purposes of estimating the percentage of the stock abundance likely 
to be taken.
    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, we preliminarily find that small numbers of marine mammals 
will be taken relative to the populations of the affected species or 
stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    Several communities on Kodiak Island use harbor seals (and Steller 
sea lions) for subsistence uses. The communities closest to Ugak Island 
are Old Harbor and Kodiak City; each is over 35 miles from Ugak Island. 
The Alaska Native Harbor Seal Commission quantified the Kodiak area 
subsistence take of harbor seals (and Steller sea lions) in a report 
issued in 2011. Within the last ten years, 2011, 2008, 2007, and 2006 
were surveyed. On average, during the years surveyed in the last 10 
years, Kodiak city took 35.3 harbor seals and Old Harbor took 35.2 
harbor seals annually. Specific locations of take are not mentioned in 
this document.
    Based on the distance from each community and the opportunities 
closer to each community, either a small fraction of the averages 
provided, or no take can be estimated from each community. It is 
possible that some fraction of the average number of harbor seals taken 
listed above were taken from Ugak Island specifically, but there is no 
documentation to support that conclusion.
    There is no expectation that harbor seals will abandon sealing 
grounds, based on AAC's launches or the launches at other launch sites 
(e.g.,VAFB). In addition, no permanent barriers will be placed between 
the subsistence hunter and pinnipeds on Ugak Island. There are 
temporary closures of Ugak Island for a portion of a 24-hour day during 
each launch.
    AAC will consult (as they have for previous regulations) with the 
Alaska Native Harbor Seal Commission as well as the Kodiak communities 
before the issuance of any final regulations to ensure project 
activities do not impact relevant subsistence uses of marine mammals 
implicated by this action.

Endangered Species Act

    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. NMFS and AAC 
consulted internally with AKR under the ESA on its proposed issuance of 
AAC's 2017 MMPA regulations and subsequent LOAs. It was determined that 
no effect would occur from the proposed activities; therefore, ESA 
consultation, formal or informal is not required.

National Environmental Policy Act

    In 1996, the FAA prepared an EA, and subsequently issued FONSI, for 
AAC's proposal to construct and operate a

[[Page 6470]]

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 PSCA. 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 Pacific Spaceport 
Complex Alaska, Kodiak Island, 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. A more recent EA and FONSI was completed in 
April 2016 that addresses the potential environmental impacts of the 
proposed action where the FAA would modify the AAC launch site operator 
license for the PSCA. The EA evaluates the potential environmental 
impacts of modifying the launch site operator license to include 
medium-lift launch capability at PSCA with the addition of new 
infrastructure necessary to support these types of launches, including 
the construction of a launch pad and associated facilities. NMFS has 
determined that the proposed action was fully analyzed in the previous 
NEPA documents, particularly the 2016 EA, and NMFS will adopt the 2016 
EA as necessary for the final issuance of the regulations and 
subsequent LOA(s).

Classification

    Pursuant to the procedures established to implement section 6 of 
Executive Order 12866, the Office of Management and Budget has 
determined that this proposed rule is not significant.
    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. 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 and oversee government programs and activities that are 
not performed by private establishments. Accordingly, no small entity 
will be affected by this proposed rule.
    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: January 9, 2017.
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

0
1. The authority citation for part 217 continues to read as follows:

    Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

0
2. Add subpart H to part 217 to read as follows:
Subpart H--Taking of Marine Mammals Incidental to Space Vehicle and 
Missile Launches at Pacific Spaceport Complex Alaska (PSCA), Alaska by 
Alaska Aerospace Corporation (AAC).
Sec.
217.70 Specified activity and specified geographical region.
217.71 [Reserved]
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 Pacific Spaceport Complex Alaska (PSCA), Kodiak 
Island, Alaska by Alaska Aerospace Corporation (AAC).


Sec.  217.70  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the AAC at the PSCA 
on Kodiak Island, Alaska, and those persons it authorizes to conduct 
activities on its behalf for the taking of marine mammals that occurs 
in the area outlined in paragraph (b) of this section and incidental to 
conducting up to nine space vehicle launches each year from PSCA, for a 
total of 45 launches over the 5-year period of these regulations.
    (b) The incidental take of marine mammals under the activity 
identified in paragraph (a) of this section is limited to 315 harbor 
seals (Phoca vitulina richardii) of all ages annually (total of 1,575 
seals over the 5-year period of these regulations).

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Sec.  217.71  [Reserved]


Sec.  217.72  Permissible methods of taking.

    Under a Letter of Authorization (LOA) issued pursuant to Sec.  
216.106 of this chapter and Sec.  217.70, the holder of the LOA (herein 
after AAC) and its contractors may incidentally, but not intentionally, 
take harbor seals by Level B harassment 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.


Sec.  217.73  Prohibitions.

    Notwithstanding takings contemplated in Sec.  217.70(b) and 
authorized by an LOA issued under Sec.  216.106 of this chapter and 
Sec.  217.76, no person in connection with the activities described in 
Sec.  217.70 may:
    (a) Take any marine mammal not specified in Sec.  217.70(b);
    (b) Take any marine mammal specified in Sec.  217.70(b) other than 
by incidental, unintentional Level B harassment;
    (c) Take a marine mammal specified in Sec.  217.70(b) if NMFS 
determines such taking results in more than a negligible impact on the 
species or stocks of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or an LOA issued under Sec.  216.106 of 
this chapter and Sec.  217.76.


Sec.  217.74  Mitigation.

    (a) When conducting operations identified in Sec.  217.70(a), the 
mitigation measures contained in the LOA issued under Sec.  216.106 of 
this chapter and Sec.  217.76 must be implemented. 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. 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 miles 
(mi) (0.4 kilometer (km)), and will maintain a vertical distance of 
1,000 feet (ft) (305 meter (m)) from the haulouts when within 0.5 mi 
(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) If launch monitoring detects pinniped injury or death, or if 
long-term trend counts from 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;
    (3) AAC will purchase and install time-lapsed photography systems 
in order to survey each of the three pinniped haulout locations around 
Ugak Island to confirm the abundance of pinnipeds at the haulouts and 
allow for the more complete surveying efforts. The number of camera 
systems, equipment capabilities, placement of the systems to be used, 
and the daily photo frequency will be determined through a cooperative 
effort between AAC, NMFS, and field experts;
    (4) AAC will conduct a correlation study in coordination with NMFS. 
The purpose of the study is to evaluate the effectiveness of the time-
lapsed photography systems (specifically, the accuracy of the 
photography systems compared with aerial count surveys). The results of 
this study will determine the need to continue aerial surveys. The 
study will be conducted through a minimum of five launches;
    (5) All Castor 120 equivalent launches will be conducted at LP1 
which is equipped with a concrete and water-filled flame trench. The 
purpose of the flame trench is to direct smoke away from the launch pad 
and to absorb light and noise at their, respective peaks (i.e. lift-
off) to reduce the noise created during each launch; and
    (6) Additional mitigation measures as contained in an LOA.
    (b) [Reserved]


Sec.  217.75  Requirements for monitoring and reporting.

    (a) Holders of LOAs 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 LOA, the holder of 
the LOA must notify the Administrator, Alaska Region, NMFS, by letter, 
email or telephone, at least two weeks prior to each launch. If the 
authorized activity identified in Sec.  217.70(a) is thought to have 
resulted in the mortality or injury of any marine mammals or take of 
marine mammals not identified in Sec.  217.70(b), then the holder of 
the LOA must notify the Director, Office of Protected Resources, NMFS, 
or designee, by telephone (301-427-8401), within 48 hours of the injury 
or death.
    (b) Holders of LOAs must designate qualified, on-site individuals 
approved in advance by NMFS, as specified in the LOA, to:
    (1) Deploy for AAC, time-lapsed photography systems designed to 
monitor pinniped abundance and detect pinniped responses to rocket 
launches conducted under these regulations. AAC will monitor the 
effectiveness of these systems, comparing the results to aerial surveys 
from at least five launches;
    (2) Ensure the time-lapsed photography systems will be in place and 
operating in locations that allow for visual monitoring of all three 
pinniped haulouts during launches.
    (3) Relocate the time-lapsed photography systems in cooperation 
with NMFS after five launches if the system is not accurately capturing 
all three pinniped haulouts and total pinniped abundance during the 
launches;
    (4) Review and log pinniped presence, abundance, behavior, and re-
occupation time from the data obtained from the time-lapsed photography 
systems and report results to NMFS within 90 days of the first five 
launches under this system;
    (5) Conduct one pre-launch aerial survey and one post-launch aerial 
survey for each launch. AAC will conduct a minimum of one aerial survey 
annually (in the event no launch occurs during a calendar year); and
    (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 annual report required under paragraph 
(e) of this section.
    (c) Holders of LOAs must conduct additional monitoring as required 
under an LOA.
    (d) Holders of an LOA 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 the time-lapsed photography systems;
    (3) Design of the monitoring program for the time-lapsed 
photography systems and a description of how data is stored and 
analyzed; and
    (4) Results of the monitoring program for the time-lapsed 
photography

[[Page 6472]]

systems, including, but not necessarily limited to:
    (i) Numbers of pinnipeds, by species and age class (if possible), 
present on the haulout 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.
    (e) An annual report must be submitted on March 1 of each year that 
will include results of the aerial quarterly trend counts of pinnipeds 
and comparison of the results using the time-lapsed photography systems 
on Ugak Island. Future aerial surveys may be reduced if the time-lapsed 
photography systems capture similar or better data than aerial surveys.
    (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;
    (3) Assess the cumulative impacts on pinnipeds and other marine 
mammals from multiple rocket launches; and
    (4) State the date(s), location(s), and findings of any research 
activities related to monitoring using time-lapsed photography systems 
on marine mammal populations.


Sec.  217.76  Letter of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, AAC must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of these regulations.
    (c) If an LOA expires prior to the expiration date of these 
regulations, AAC must apply for and obtain a renewal of the LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, AAC must apply 
for and obtain a modification of the LOA as described in Sec.  217.77.
    (e) The LOA 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) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species of marine mammals authorized for taking, its 
habitat, and on the availability of the species for subsistence uses; 
and
    (4) Requirements for monitoring and reporting.
    (f) Issuance of an LOA shall be based on a determination that the 
level of taking will be consistent with the findings made for the total 
taking allowable under these regulations.
    (g) Notice of issuance or denial of an LOA will be published in the 
Federal Register within 30 days of a determination.


Sec.  217.77  Renewal of a Letter of Authorization.

    (a) An LOA issued under Sec.  216.106 of this chapter and Sec.  
217.76 for the activity identified in Sec.  217.70(a) will be renewed 
or modified upon request by the applicant, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations (excluding changes 
made pursuant to the adaptive management provision in Sec.  
217.77(c)(1)), and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For an LOA modification or renewal requests by the applicant 
that include changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision in Sec.  217.77(c)(1)) that do not change the findings made 
for the regulations or result in no more than a minor change in the 
total estimated number of takes (or distribution by species or years), 
NMFS may publish a notice of proposed LOA in the Federal Register, 
including the associated analysis illustrating the change, and solicit 
public comment before issuing the LOA.
    (c) An LOA issued under Sec.  216.106 of this chapter and Sec.  
217.76 for the activity identified in Sec.  217.70(a) may be modified 
by NMFS under the following circumstances:
    (1) Adaptive Management--NMFS may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after 
consulting with AAC regarding the practicability of the modifications) 
if doing so creates a reasonable likelihood of more effectively 
accomplishing the goals of the mitigation and monitoring set forth in 
the preamble for these regulations:
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA:
    (A) Results from AAC's monitoring from the previous year(s);
    (B) Results from other marine mammal and/or sound research or 
studies; and
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
will publish a notice of proposed LOA in the Federal Register and 
solicit public comment.
    (2) Emergencies--If NMFS 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. Sec.  217.70(b) and 217.72(a), an LOA 
may be modified without prior notice or opportunity for public comment. 
Notice would be published in the Federal Register within 30 days of the 
action.

[FR Doc. 2017-00621 Filed 1-18-17; 8:45 am]
BILLING CODE 3510-22-P