[Federal Register Volume 71, Number 17 (Thursday, January 26, 2006)]
[Rules and Regulations]
[Pages 4297-4310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-765]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 011011247-6006-03; I.D. 082701E]
RIN 0648-AP62
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to Rocket Launches from Kodiak Island, AK
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS, upon application from the Alaska Aerospace Development
Corporation (AADC), is issuing regulations to govern the unintentional
takings of small numbers of marine mammals incidental to rocket
launches from the Kodiak Launch Complex (KLC) on Kodiak Island, AK.
Issuance of regulations is required by the Marine Mammal Protection Act
(MMPA) when the Secretary of Commerce (Secretary), after notice and
opportunity for comment, finds, as here, that such takes will have a
negligible impact on the species and stocks of marine mammals and will
not have an unmitigable adverse impact on their availability for
subsistence uses. These regulations do not authorize AADC's rocket
launch activities, as such authorization is not within the jurisdiction
of the Secretary.
[[Page 4298]]
Rather, these regulations govern the issuance of ``Letters of
Authorization'' (LOAs) for the unintentional incidental take of marine
mammals in connection with this activity and prescribe methods of
taking and other means of effecting the least practicable adverse
impact on marine mammal species and their habitat, and on the
availability of the species for subsistence uses. In addition, NMFS
incorporates reporting and monitoring requirements.
DATES: Effective from February 27, 2006 through February 28, 2011.
A copy of the AADC application which contains a list of the
references used in this document may be obtained by writing to Steve
Leathery, Division of Permits, Conservation, and Education, Office of
Protected Resources, National Marine Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910-3226 or by telephoning the contact
listed here (see FOR FURTHER INFORMATION CONTACT). The NMFS
Administrative Record will be maintained at the above address.
Comments regarding the burden-hour estimate or any other aspect of
the collection of information requirement contained in this proposed
rule should be sent to NMFS via the means stated above, and to the
Office of Information and Regulatory Affairs, Office of Management and
Budget (OMB), Attention: NOAA Desk Officer, Washington, DC 20503,
[email protected].
FOR FURTHER INFORMATION CONTACT: Jolie Harrison, (301) 713-2289 ext
166, or Brad Smith, (907) 271-3023.
SUPPLEMENTARY INFORMATION:
Background
Section 101(a)(5)(A) of the MMPA(16 U.S.C. 1361 et seq.) directs
the Secretary to allow, upon request, the incidental, but not
intentional taking of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and regulations are
issued.
Authorization may be granted for periods of 5 years or less if the
Secretary finds that the total 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, and
regulations are prescribed setting forth the permissible methods of
taking, other means of effecting the least practicable adverse impact
on the affected species or stocks and their habitats, and the
requirements pertaining to the monitoring and reporting of such taking.
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 categories of 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 July 26, 2001, NMFS received an application from the AADC under
section 101(a)(5)(A) of the MMPA for authorization to take, by
harassment, Steller sea lions (Eumetopias jubatus) incidental to rocket
launches from KLC on Kodiak Island, Alaska. A proposed rule was
published on October 29, 2004 (69 FR 63114). Comments on the proposed
rule received from the Marine Mammal Commission (MMC) recommended NMFS
consider also authorizing take of Pacific harbor seals (Phoca vitulina
richardsi), as they are also found in the vicinity of KLC. After
consulting with AADC and reanalyzing the distribution and habits of
harbor seals in the area, NMFS has included take of harbor seals in the
final rule. These regulations will allow NMFS to issue annual Letters
Of Authorization (LOAs) to the AADC. A full description of the
operations is contained in the AADC application (AADC, 2001) which is
available upon request (see ADDRESSES) or at: http://www.nmfs.noaa.gov/prot_res/PR2/Small_Take/smalltake_info.htm#applications.
The KLC is a commercial rocket launch complex owned and operated by
the State of Alaska through the AADC. Located wholly on state-owned
lands, KLC occupies 43 acres (0.2 km\2\) within a 3,100 acre (12.6
km\2\) parcel on the eastern side of Kodiak Island on the Narrow Cape
peninsula. The KLC was designed to accommodate a variety of small,
solid rockets including such vehicles as the Minuteman II, Taurus,
Conestoga, and Athena (Lockheed Martin Launch Vehicle). The largest
vehicle that can be launched from KLC is the Athena-2 (Lockheed Martin
Vehicle-2).
Launch operations at the KLC are authorized under license from the
Federal Aviation Administration (FAA), Office of Associate
Administrator for Commercial Space Transportation (AST), in accordance
with the facility's Environmental Assessment (EA) and stipulations in
the EA's Finding of No Significant Impact (FONSI) (see 61 FR 32884,
June 25, 1996). These stipulations included a requirement to develop a
Natural Resource Management Plan (NRMP) to address monitoring and
mitigation activities for protected species in the area. This plan was
developed in coordination with NMFS utilizing comparison of anticipated
sound pressure levels from rocket motors to be launched from the KLC
with documented marine mammal disturbance responses to such noise.
Measurement of Airborne Sound Levels
The following section is provided to facilitate an understanding of
airborne and impulsive noise characteristics. Amplitude is a measure of
the pressure of a sound wave that is usually expressed on a logarithmic
scale with units of sound level or intensity called the decibel (dB).
Sound pressure level (SPL) is described in units of dB re micro-Pascal
(micro-Pa); for energy, the sound energy level (SEL), a measure of the
cumulative energy in a noise event, is described in terms of dB re
micro-Pa\2\-second (dB re micro-Pa\2\-s); and frequency, often referred
to as pitch, is described in units of cycles per second or Hertz (Hz).
In other words, SEL is the squared instantaneous sound pressure over a
specified time interval, where the sound pressure is averaged over 5
percent to 95 percent of the duration of the sound.
For airborne noise measurements the convention is to use 20 micro-
Pa as the reference pressure, which is the approximate threshold for
onset of human hearing and is 26 dB above the underwater sound pressure
reference of 1 micro-Pa and is. However, the conversion from air to
water intensities is more involved than this and is beyond the scope of
this document. NMFS recommends interested readers review NOAA's
tutorial on this issue: http://www.pmel.noaa.gov/vents/acoustics/tutorial/tutorial.html.
Airborne sounds are also often expressed as broadband A-weighted
(dBA) or C-weighted (dBC) sound levels. When frequency levels are made
to correspond to human hearing, they are referred to as being A-
weighted or A-filtered. With A-weighting, sound energy at frequencies
below 1 kHz and above 6 kHz are de-emphasized and approximates the
human ear's response to sounds below 55 dB. C-weighting is often used
in the analysis of high-
[[Page 4299]]
amplitude noises like explosions, and corresponds to the relative
response to the human ear to sound levels above 85 dB. C-weighting de-
emphasizes ear frequency components of less than about 50 Hz. C-weight
scaling is also useful for analyses of sounds having predominantly low-
frequency sounds, such as sonic booms. For continuous noise like rocket
launches, the important variables relevant to assessing auditory
impacts or behavioral responses are intensity, frequency spectrum, and
duration. In this document, sound levels have been provided with A-
weighting.
Description of the Activity
To date there have been eight rocket launches from the KLC;
however, the KLC facility is licensed to launch up to nine rockets per
year. The first two launches used composite vehicles built from several
stages taken from a decommissioned USAF Minuteman II launch vehicle,
and were part of the U.S. Air Force (USAF) atmospheric interceptor
technology (ait) program. The third and the sixth launches (March 2001
and April 2002) were part of the USAF Quick Reaction Launch Vehicle
(QRLV) program, and comprised of single stage M-56 motors taken from a
decommissioned USAF Minuteman II launch vehicle. The fourth launch
(September 2001) was a commercial Lockheed/Martin Athena rocket, which
is the largest vehicle to be launched from KLC, and it placed four
satellites into polar orbit. The fifth, seventh, and eighth launches
(November 2001, December 2004, and February 2005) were Department of
Defense (DoD) Strategic Target System (STARS) vehicles and consisted of
the first two stages of a decommissioned A-3 missile and an Orbis third
stage.
Launches from the KLC are expected to be at high inclination with
launch azimuths ranging from 125 to 225 degrees in direction (AADC and
AST, 1996). At the easternmost azimuth, launch vehicle paths would pass
over the eastern edge of Ugak Island; at the westernmost azimuth, the
vehicle would pass along the southeastern edge of the Kodiak
Archipelago. Approximately 70 seconds after launch, a typical launch
vehicle would be more than 8 miles (12.5 km) high. Spent first-stage
rocket motors and fuel casings would impact the ocean's surface from 11
to 314 n-mi (20 to 582 km) downrange, depending on the launch vehicle
(AADC and AST, 1996). Rocket motor sonic booms are predicted to reach
the ocean surface over 20 miles (32 km) downrange beyond the outer
continental shelf over deep ocean.
Launch operations are a major source of noise on Kodiak Island, as
the operation of launch vehicle engines produces significant sound
levels. Generally, four types of noise occur during a launch. They are:
(1) Combustion noise from launch vehicle chambers; (2) jet noise
generated by the interaction of the exhaust jet and the atmosphere; (3)
combustion noise from the post-burning of combustion products; and (4)
sonic booms. The principal objective of the KLC rocket motor noise
monitoring task within the NRMP was to measure A-weighted Sound Energy
Levels (ASELs) at the Ugak Island Steller sea lion haulout. A secondary
objective was to monitor sound levels on Narrow Cape close to bald
eagle and/or Steller's eider nests when present. ASELs were
successfully recorded for the first four and the seventh launches from
KLC at the Ugak Island Steller sea lion haulout and on Narrow Cape by
the University of Alaska Anchorage's Environment and Natural Resources
Institute (ENRI). The Ugak Island haulout is located approximately 2
miles (3.2 km) from Narrow Cape and about 3.5 miles (5.6 km) from the
KLC launch pad on a narrow sand spit on the north side of the Island.
The data gathered were weighted toward frequencies that humans are more
sensitive to (1-6 kHz, A-weighted) and showed a wide variation in sound
pressures among rocket motors, with the highest levels being associated
with the largest launch vehicle flown. Variations in the KLC sound
pressure record are likely due to such variables as engine size, engine
bell shape, and local atmospheric conditions. Summaries of the findings
for each of the measured rocket launches to date are described below. A
complete description of the proposed rocket launches from KLC may be
found in AADC's application, which may be viewed at: http://www.nmfs.noaa.gov/prot_res/PR2/Small_Take/smalltake_info.htm#applications. This information is incorporated into this
document by reference.
ait-1
The first launch from KLC occurred in November 1998, and was the
first of the USAF ait program. Sound measurements from the ait-1 launch
were collected using two sound level monitors (SLMs) that were deployed
26 hours before launch on Ugak Island at the base of the spit used as a
haulout by Steller sea lions. The SLMs were set to highlight sounds
exceeding 65 dB, which was done after checking real-time sound levels
in the field at each site prior to setting them to record data. If the
exceedance levels were set too low, the SLMs would be deluged with
data, and if they were set too high the SLMs would miss the event of
interest. A digital audio tape (DAT) recorder was used to provide
redundancy in recording noise frequencies and was placed about 0.75 mi
(1.2 km) from the KLC launch pad.
Recorded sound pressure levels (SPLs) of rocket motor noise for the
ait-1 at the Ugak Island haulout site were 78.2 dB re 20 microPa with a
peak level of 97 dB (Table 1). The associated ASEL at the Ugak Island
haulout was 88.4 dB re 20 microPa2 s. In addition, the ASEL at the
nearest location measured by the DAT recorder was 110 dB for a duration
of 59 seconds. The bulk of the sound energy was at low frequencies and
generally less than 4000 Hz. Most of the energy was from 100 to 500 Hz.
[[Page 4300]]
[GRAPHIC] [TIFF OMITTED] TR26JA06.000
Of the eight noise events recorded above 65 dB at Ugak Island, ENRI
determined that two are attributable to helicopter noise and one to the
firing of the ait-1 rocket motor. Sounds at the Ugak Island site were
above 65 dB for a total of 33 seconds at the time the rocket motor was
firing. Due to the isolation of this site, the remainder of the events
are most likely attributable to surf or wind action.
ait-2
USAF launched a second rocket from KLC on September 15, 1999. Based
on experience from the first launch, ENRI set the SLMs to highlight
sounds exceeding 70 dB and deployed them about 19 hours before the
launch. Sound pressures at Ugak Island were slightly higher for the
second launch than for the first launch. Recorded maximum SPLs of
rocket motor noise for the ait-2 at the Ugak Island haulout site were
81.5 dB, with a peak level of 101.5 dB, and a corresponding SEL of 92.2
dB. The bulk of the sound energy was at low frequencies and generally
less than 2500 Hz. Most of the energy was from 25 to 1000 Hz.
There were 15 noise events above 70 dB within the 19 hours of
recording at Ugak Island, all of which can be attributed to helicopter,
airplane, or rocket noise; none coincides with a stampede of Steller
sea lions off the Ugak Island haulout 3.5 hours previous to the rocket
launch. Sounds at the Ugak Island site were above 70 dB for a total of
30 seconds at the time the rocket motor was firing. Natural background
noise levels above 70 dB were almost nonexistent during this launch.
QRLV-1
On March 22, 2001, the USAF conducted the third launch from KLC.
SLMs set to highlight sounds exceeding 70 dB at the base of the Ugak
Island sea lion haulout were again used by ENRI to record sound
frequency and intensity, and were deployed 22 hours before the launch.
The recorded sound levels at Ugak Island were significantly lower for
the QRLV-1 launch than for either of the ait launches. This is likely
due to the vehicle being smaller, and possibly to a different
trajectory and local atmospheric condition. Recorded maximum SPLs
resulting from QRLV rocket motor noise at the Ugak Island haulout site
were 73.3 dB, with a peak level of 87.2 dB, and a corresponding SEL of
80.3 dB. The bulk of the sound energy was at low frequencies and
generally less than 2500 Hz. Most of the energy was from 16 to 2000 Hz.
There were 17 noise events above 70 dB at Ugak Island. With the
exception of the rocket launch, all can be related to helicopter noise.
Sounds at the Ugak Island site were above 70 dB for a total of 10.9
seconds at the time the rocket motor was firing. Natural background
noise levels above 70 dB were almost nonexistent during this launch.
Rocket noise measurements for the QRLV-2 rocket launch on April 24,
2002, the sixth rocket launched from KLC, were not recorded, though
most likely they would be similar to those measured during the first
QRLV launch.
Athena
The fourth launch from KLC occurred on September 29, 2001, and
involved a commercial Lockheed/Martin Athena, which is the largest
vehicle to be launched from KLC. SLMs were again set to highlight
sounds exceeding 70 dB and were deployed by ENRI at the Ugak Island
haulout four hours before the launch. The recorded sound levels at Ugak
Island were significantly higher for the Athena launch than for
previous launches, which is likely due to the size of the vehicle.
Recorded maximum SPLs resulting from Athena rocket motor noise at the
Ugak Island haulout site were 90.8 dB, with a peak level of 115.9 dB,
and a corresponding SEL of 101.4
[[Page 4301]]
dB. The bulk of the sound energy was at low frequencies and generally
less than 2000 Hz.
There were three exceedance events above 70 dB at Ugak Island and
Narrow Cape within the four hours of recording, two of which can be
attributed to helicopter noise and the other to the rocket launch.
Sounds at the Ugak Island site were above 70 dB for 49.6 seconds at the
time the rocket motor was firing. Natural background noise levels above
70 dB were nonexistent during this launch.
STARS
On November 9, 2001, the Department of Defense launched a STARS
vehicle from KLC; however, the rocket was deliberately destroyed over
open ocean almost immediately because it lost communication with KLC.
The STARS program provides ballistic missile targets to test various
sensors and ground-based interceptors. STARS vehicles will include
first- and second-stage Polaris A3 boosters and a third-stage Orbus-1
booster. The range of this system is 620 to 3,418 miles (998 to 5500
km).
The seventh launch from KLC, of the STARS IFT 13C, occurred on
December 14, 2004. SLMs were set to highlight sounds exceeding 70 dB
and were deployed by ENRI only at Narrow Cape (because sea lions were
not present at Ugak Island) eight hours before the launch. Narrow Cape
is significantly closer to the launch site than Ugak Island. The
recorded sound levels at Narrow Cape were higher for this launch than
for previous launches, which is likely due to a different trajectory
and local atmospheric conditions. Recorded maximum SPLs resulting from
rocket motor noise at Narrow Cape were 105.2 dB, with a peak level of
128.8 dB, and a corresponding SEL of 114.3 dB. The bulk of the sound
energy was at low frequencies and generally less than 2000 Hz. There
were over three hundred exceedance events above 70 dB at Narrow Cape
within the eighteen hours of recording, two of which can be attributed
to helicopter noise and the other to the rocket launch. With the
exception of helicopter noise and the rocket launch, all exceedances at
or just above 70 dB can be connected to weather-related noise (wind and
rain).
Rocket noise measurements for the STARS IFT 14 rocket launch on
February 13, 2005, the eighth rocket launched from KLC, were not
recorded, though most likely they would be similar to those measured
during the STAR IFT 13C launch.
Comments and Responses
On October 29, 2004 (69 FR 63114), NMFS published a notice of
proposed rulemaking on AADC's request to take marine mammals incidental
to rocket launches at KLC and requested comments, information and
suggestions concerning the request. During the 45-day public comment
period, NMFS received comments from three members of the public and the
MMC. The MMC supports NMFS' intent to implement incidental take
regulations for the AADC's activities at KLC provided that the
mitigation and monitoring activities described in the AADC application
for regulations are incorporated into the proposal.
Comment 1: The MMC noted that harbor seals and other marine mammals
occur in the vicinity of KLC and recommended that NMFS consider
providing additional coverage to the applicant by authorizing take of
harbor seals and other marine mammals to reduce the possibility that
the applicant may engage in an impermissible taking.
Response: After reviewing available information regarding the
abundance, distribution, and behavior of marine mammals around KLC and
consulting with AADC, NMFS has included authorization for the take of
harbor seals in this final rule. NMFS determined, however, that no
other marine mammals were likely to be taken by the rocket launches,
and, therefore, AADC has not been authorized for the take of any other
marine mammal species.
Comment 2: The MMC recommended that AADC contact the U.S. Fish and
Wildlife Service (USFWS) to determine if authorization for the
incidental taking of small numbers of sea otters is needed.
Response: AADC is consulting with the USFWS regarding potential
take of sea otters.
Comment 3: The MMC further recommended that the proposed monitoring
program be expanded to determine the effects on harbor seals, sea
otters, and other marine mammal species to determine if authorizations
for these species are needed or, if authorization to take these species
is provided, to verify that the impacts on the affected stocks are
negligible.
Response: As take of harbor seals is authorized under this rule,
comprehensive requirements for the monitoring of harbor seals are now
included. Additionally, AADC is required to report sightings of any
marine mammals seen during aerial surveys or on videotapes.
Comment 4: One commenter expressed strong objections to the rocket
launch facility and asserted that it was damaging to the ecosystem and
a waste of money.
Response: These regulations do not authorize AADC's rocket launch
activities, because such authorization is not within the jurisdiction
of the Secretary. Rather, these regulations authorize the unintentional
incidental take of marine mammals in connection with this activity and
prescribe methods of taking and other means of effecting the least
practicable adverse impact on marine mammal species and their habitat,
and on the availability of the species for subsistence uses. Thus, the
comment is outside of the scope of this rulemaking.
Comment 5: Another commenter also objected forcefully to the
project (see response to Comment 4, above) and further asserted that
there is no reason to allow this killing of marine mammals. This
commenter also expressed doubt in the accuracy of the measured noise
levels at the site.
Response: Section 101(a)(5)(A) of the Marine Mammal Protection Act
(MMPA) (16 U.S.C. 1361 et seq.) states that the Secretary shall allow
the incidental, but not intentional taking of small numbers of marine
mammals by U.S. citizens who engage in a specified activity (other than
commercial fishing) within a specified geographical region if certain
findings are made and regulations are issued. NMFS has determined that
this activity will take only small numbers of marine mammals, that the
taking will have a negligible impact on the affected species or stocks,
and that the activity will not have an unmitigable adverse effect on
the availablility of the species or stock for subsistence uses. NMFS
has also set forth permissible methods of taking, means of effecting
the least practicable adverse effect on the species or stock, and
requirements pertaining to the monitoring and reporting of such taking.
Therefore, NMFS has promulgated these regulations and will issue the
authorization.
The sound measurements reported from Ugak Island are similar in
level to those reported at other launch sites. If information were
provided to NMFS that suggested AADC's sound measurements were
incorrect, NMFS would investigate. The rule includes the following
requirement: ``In coordination and compliance with the Alaska Aerospace
Development Corporation, the National Marine Fisheries Service may
place an observer on Kodiak or Ugak Islands for any marine mammal
monitoring activity prior to, during, or after a missile launch to
monitor impacts on marine mammals, provided observers are not within
the calculated
[[Page 4302]]
danger zone of the rocket's flight path during a launch.''
Description of Habitat and Marine Mammals Affected by the Activity
The KLC is located on the southeast facing tip of a small peninsula
on the eastern side of Kodiak Island. The rocket launch site is
approximately one mile (1.6 km) from the southeast shore (Narrow Cape).
The primary KLC environmental monitoring study area, and area of
anticipated effects, was set in September 1996 at a meeting between
AADC and representatives of the USFWS, NMFS, the FAA, and ENRI. The
area was chosen based on modeled ASELs and includes the lands and
waters within a 6-mile (9.7-km) radius extending out from the KLC
launchpad. The only marine mammal haulouts within this area are on Ugak
Island.
Ugak Island is a triangular-shaped island located about 3.5 miles
(5.6 km) southeast of the launch site. The north side of Ugak island
culminates in a sandy spit on the west end where most of the sea lions
haul out, though some also haul out at the southern tip of the island.
The southeastern facing side of the island, where most of the harbor
seals haul out, is very rocky, backed by 300-ft (91-km) cliffs (or
higher), and is subject to very strong wave action. The west side of
the island is steeper than the north side, but not as steep as the
east, but does not appear to be used much by either pinniped.
Narrow Cape, Ugak Island, and the adjacent waters within the
primary KLC study area provide habitat for sea otters, harbor seals,
Steller sea lions (listed as endangered), gray whales, humpback whales
(listed as endangered), northern fur seals, northern right whales, and
minke whales. Harbor seals and sea otters are common year-round, as are
killer whales, Dall's porpoise, and harbor porpoise. Other species of
cetaceans that may occur in the area, such as Pacific white-sided
dolphins, Risso's dolphins, northern right whale dolphins, pilot
whales, Cuvier's beaked whales, Baird's beaked whale, Stegneger's
beaked whale, sperm whales, fin whales, sei whales and blue whales are
rare as they are primarily pelagic (ENRI, 1995-98). General information
on harbor seals and other marine mammal species can be found in Angliss
and Lodge (2004), which are available at the following URL: http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_Program/sars.html.
Sea otters (Enhydra lutris) are managed by the USFWS. Information on
this species may be found at www.fws.gov. Please refer to those
documents and the application for further information on these species.
Steller Sea Lions
The Steller sea lion is described by two stocks - those west of
144[deg] W. long. listed as endangered under the ESA, and the eastern
stock listed as threatened under the ESA. Sea lions hauled out on Ugak
Island, the northern spit of which is designated as critical habitat
for this species, are of the western stock. The most recent
comprehensive estimate (pups and non-pups) of Steller sea lion
abundance in Alaska is based on aerial surveys of non-pups in June 2002
and ground based pup counts in June and early July of 2001 and 2002.
Data from these surveys represents actual counts at all major rookeries
and haulouts. The best available minimum population estimate for the
western stock of Steller sea lions is the sum of the total number of
non-pups counted in 2002 (26,602) and the number of pups counted in
2001 and 2002 (9,211), which is 34,779 (Angliss and Lodge, 2004). This
is considered a minimum estimate because it has not been corrected to
account for animals which were at sea during the surveys. Though non-
pup numbers increased 5.5-13.7 percent from 2000-2002, the 2002 count
was still 5.4 percent below the 1998 count and 36.7 percent below the
1990 count and the long-term, average decline for 1990-02 is 4.3
percent per year (Angliss and Lodge, 2004).
On Ugak Island sea lions haul out primarily on the northern-most
sand spit of the island, but also less frequently on the east/south
side of the island. These haulouts are occupied primarily from late
June to early October. Opportunistic counts of Steller sea lions
conducted at Ugak Island every year since 1993 indicate a maximum of
over 350 animals in the fall of 1997 and a steady decrease in numbers
to less than 40 since 2001 (Kate Wynne, pers. comm, 2005). Two of the 8
launches have occurred during times when sea lions are typically
present, during September of 1999, 60-70 sea lions were seen, and
during September of 2001, no sea lions were present on the days before
and after the launch.
Pacific Harbor Seals
Harbor seals live in the Pacific Ocean from Baja California in
Mexico northward to the Aleutian Islands of Alaska. The population is
not listed as ``endangered'' or ``threatened'' under the ESA; nor is
this species listed as ``depleted'' or as a ``strategic stock'' under
the MMPA. Harbor seals are primarily non-migratory and the seals around
KLC are considered part of the Gulf of Alaska stock, which occurs from
Cape Suckling to Unimak Pass, including animals throughout the Aleutian
Islands. The most recent comprehensive aerial survey of harbor seals in
Alaska were conducted in 1994 and 1996. When a correction factor is
used to account for animals that were in the water during the counts, a
minimum population estimate of this stock of harbor seals is 28,917
(Angliss and Lodge, 2004). The Kodiak Island population is estimated to
have increased 7.2 percent annually from 1992-1996 (Angliss and Lodge,
2004) and survey data from 1992-2004 shows an even steeper increase at
Ugak Island (Wynne, per. Comm., 2005), though numbers throughout the
Gulf of Alaska are still lower than they were in the 1970s and 1980s.
Harbor seals are present on Ugak Island year round. They are found
primarily on the east/south side of the island, backed by high, steep
cliffs, but they also sometimes haul out on the north side of the
island and on the rock croppings on the north and east sides of the
island. Harbor seal pupping occurs on both Ugak between the middle of
May and June. Yearly harbor seal counts at Ugak Island taken in August
since 1992 show a steady increase from approximately 200 animals in
1992 to over 900 in 2004 (Wynne, pers. Comm., 2005). Surveys conducted
in 1993 and 1994 found 88 and 96 harbor seal pups, respectively (AADC
1996).
Northern Fur Seals
The northern fur seal (Callorhinus ursinus) occurs offshore of the
KLC site near the continental shelf break from January through April.
Because of the distance from the launch site and the fact that they
will be swimming through and not stopping (see Cetaceans, below), NMFS
believes it unlikely that fur seals will be affected by the launch
noise and they will not be addressed further.
Cetaceans
As noted, several species of cetaceans occupy the waters around
KLC. However, airborne noise is generally reflected at the sea surface
outside of a 26[deg] cone extending down from an airborne source
(Richardson et al., 1995). Submerged animals would have to be directly
under the noise sources before they could hear it, and, approximately
70 seconds after launch, a typical launch vehicle would be more than 8
miles (12.9 km) high. Underwater acoustic transmissions are complex,
and affected by the level and frequency of noise, sea state and other
surface conditions, and water depth. Given the
[[Page 4303]]
specific area, within a specific short time that a cetacean would need
to be traveling through surface/or close to surface water to be exposed
to rocket noise and the measured rocket sound levels and the
attenuation that would occur before the noise reached deeper waters,
NMFS believes it unlikely that any cetaceans will be impacted by the
rocket noise.
Potential Effects of Rocket Launches on Marine Mammals
As outlined in several previous NMFS documents, the effects of
noise on marine mammals are highly variable, and can be categorized as
follows (based on Richardson et al., 1995):
(1) The noise may be too weak to be heard at the location of the
pinniped (i.e., lower than the prevailing ambient noise level, the
hearing threshold of the animal at relevant frequencies, or both);
(2) The noise may be audible but not strong enough to elicit any
overt behavioral response;
(3) The noise may elicit reactions of variable conspicuousness and
variable relevance to the well being of the pinniped; these can range
from temporary alert responses to active avoidance reactions such as
stampedes into the sea from terrestrial haulout sites;
(4) Upon repeated exposure, pinnipeds may exhibit diminishing
responsiveness (habituation), or disturbance effects may persist; the
latter is most likely with sounds that are highly variable in
characteristics, infrequent and unpredictable in occurrence (as are
vehicle launches), and associated with situations that the pinniped
perceives as a threat;
(5) Any anthropogenic noise that is strong enough to be heard has
the potential to reduce (mask) the ability of pinnipeds to hear natural
sounds at similar frequencies, including calls from conspecifics, and
environmental sounds such as surf noise;
(6) If mammals remain in an area because it is important for
feeding, breeding or some other biologically important purpose even
though there is chronic exposure to noise, it is possible that there
could be noise-induced physiological stress; this might (in turn) have
negative effects on the well-being or reproduction of the animals
involved; and
(7) Very strong sounds have the potential to cause temporary or
permanent reduction in hearing sensitivity. In terrestrial mammals, and
presumably marine mammals, received sound levels must far exceed the
animal's hearing threshold for there to be any temporary threshold
shift (TTS). For transient sounds, the sound level necessary to cause
TTS is inversely related to the duration of the sound. Received sound
levels must be even higher for there to be risk of permanent hearing
impairment. In addition, intense acoustic or explosive events may cause
trauma to tissues associated with organs vital for hearing, sound
production, respiration, and other functions. This trauma may include
minor to severe hemorrhage.
Solid rocket boosters from KLC launches will fall into the ocean
away from any known or potential haul-out sites and do not pose any
measurable threat to marine mammals. Launch noise is expected to occur
over the coastal habitats of Narrow Cape and Ugak Island during every
launch, while sonic booms will occur approximately 40 nm (74 km)
downrange over open ocean, beyond the outer continental shelf, and are
unlikely to affect marine mammals. Airborne launch sounds will mostly
reflect or refract from the water surface and, except for sounds within
a diameter of approximately 26 degrees directly below the launch
vehicle, will not penetrate into the water column. The sounds that do
penetrate will not persist in the water for more than a few seconds.
The primary sea lion haulout on Ugak Island is a spit facing KLC,
and animals at this location would likely hear a rocket launch. Steller
sea lions generally occupy this haulout from late summer to the early
fall post-breeding period (late June to early October), historically by
up to several hundred sea lions. Small numbers of harbor seals may haul
out on the eastern end of the shoreline that extends from the spit.
Harbor seals and, less frequently sea lions, also haul out on the
southeast side of Ugak Island, but this area is sheltered from direct
sight of and sound from KLC by a 300-ft (91.4-m) island cliff and,
because it receives heavy surf, it already has high ambient noise
levels. Because background ambient noise often interferes with or masks
the ability of an animal to detect a sound even when that sound is
above its absolute hearing threshold (Richardson et al., 1995), it
seems unlikely that animals hauled out at this location would hear
noise associated with rocket launches from KLC.
Past Monitoring Results at KLC
ENRI was tasked under contract to the AADC to conduct environmental
monitoring studies for rocket launches from KLC. In addition to
collecting rocket noise data on the northern spit of Ugak Island, ENRI
conducted aerial surveys over and collected real-time video footage at
the seasonally occupied northern spit haulout site in conjunction with
the three KLC launches when Steller sea lions might have been present
at the haulout: ait-1 on November 5, 1998; ait-2 on September 15, 1999;
and Athena on September 29, 2001. The only time Steller sea lions were
observed occupying the haulout was during the ait-2 launch monitoring
period. Sixty to seventy animals were on the haulout about 5 hours pre-
launch. Due to below freezing temperatures, the video system shut off
about 4 hours prior to the ait-2 launch. The video data show Steller
sea lions fighting or sleeping on the haulout, and then suddenly
stampeding into the water and milling about immediately offshore. The
cause of the stampede is not apparent in the video and no stimulus
could be linked to the response (from the noise recordings or
otherwise). When, or if, any of the Steller sea lions returned to the
haulout before the ait-2 launch is unknown. Although sea lions may have
returned to the rocks and fled the haulout again as a result of rocket
noise, a clear-cut stimulus response of sea lion behavior to rocket
noise cannot be postulated without video data from the time of the
launch. Approximately 1 hour after the rocket was launched, no sea
lions were seen hauled out and 50 to 60 sea lions were observed in the
water immediately offshore. The day after the launch, 60 to 70 animals
were seen hauled out at the same spot. Some of these animals could be
the same ones that were flushed from the haulout the day before though
they could also be different animals. Though sea lions have been shown
to acclimate to disturbance from rocket launches at other spaceports
(Thorson and Francine, 1999), it is unlikely that this is the case at
KLC considering the infrequency of launches. Alternatively,
approximately 280 harbor seals were seen at two locations on the east
side of the island (next to the 300-ft (91-m) cliffs) during the aerial
survey flown 5 hours pre-launch. During the one hour post-launch aerial
overflight, the same number of harbor seals were hauled out at the same
locations, which would suggest that they did not flush into the water,
which would further suggest that the sound was blocked or masked by the
high cliffs and high ambient noise on that side of the island. Though
it is possible that the harbor seals were flushed into the water and
then quickly hauled out again before the post-flight aerial survey, it
seems unlikely considering that harbor seals are typically
significantly more sensitive to
[[Page 4304]]
noise than sea lions and the sea lions were still in the water.
Unlike at the ait-2 launch discussed above, no Steller sea lions
were present at the Ugak Island haulout during the ait-1 and Athena
launches and it was not possible to relate any behavioral responses to
the recorded noise levels. Harbor seals were present at the other two
launches, but monitoring was not required and the surveys were not
conducted immediately before and after the launch and could not
establish a stimulus response to the rocket launch. For all launches,
however, launch noises recorded at the haulout site were within the
audible ranges of pinnipeds (Richardson et al., 1995) and both Steller
sea lions and harbor seals would have heard them had they been present.
Further, recorded sound pressures were at, and sometimes above, levels
known to occasionally induce startle responses in pinnipeds (Richardson
et al., 1995). Rocket launches will present Steller sea lions and
harbor seals with novel visual and possibly tactile stimuli as well as
unusually loud sounds and bright lights from the burning rocket and
white exhaust flume.
Steller Sea Lions
The behavioral data record for Steller sea lions is small
throughout the North Pacific range and typically is focused on
reproductive behaviors. In general, studies have shown that responses
of pinnipeds on beaches to acoustic disturbance arising from rocket and
target missile launches are highly variable. This variability may be
due to many factors, including species, age class, and time of year.
Porter (1997) observed Steller sea lions fleeing into the water for a
wide variety of reasons such as helicopter overflights, bird flybys,
and the presence of nearby humans. He also noted sea lions stampedes
into the water that could not be correlated with any observed stimulus.
There is also evidence that both time of day and temperature alter the
probability of entry into the water (animals are more likely to enter
the water when already overheated) (Bowles, 2000). Steller sea lions
have been seen to mill about just offshore with their heads up in a
heightened state of watchfulness (Porter, 1997) and remain close to the
haulout until they sense it is safe to go back ashore (Lockheed Martin
Environmental Services, 1999).
Noise generated from aircraft and helicopter activities associated
with the launches may provide a potential secondary source of
incidental harassment, and the physical presence of aircraft or
biologists could also lead to non-acoustic effects on marine mammals
involving visual or other cues. However, other disturbance-related data
collected during the ait-2 study (ENRI, 2000) does not fit well with
stimulus response data from other sources. Sea lions are widely thought
to be intolerant of helicopter noise (Porter, 1997), yet the animals in
question did not appear to respond to multiple exposures of more
intense helicopter noise at Ugak Island than that from the rocket
(ENRI, 2000). They are also thought to be intolerant of humans on foot,
yet a video from the ait-2 study shows hauled-out sea lions on Ugak
Island undisturbed by biologists actively engaged in work within 328 ft
(100 m) of them. The Ugak Island haulout is also regularly exposed to
disturbances from aircraft and fishing vessels transiting Narrow
Strait.
Recent studies (Lawson et al., 2002, and NAWS, 2002) suggest that
Level B harassment, as evidenced by beach flushing, will sometimes
occur upon exposure to launch sounds with ASEL's of 100 dBA (re 20
micro-Pa\2\ -sec) or higher. It is expected that most received noise
levels at Ugak Island would be at levels which are likely to cause a
temporary disturbance. The infrequent (up to nine times per year) and
brief (no more than one minute as heard from Ugak Island) nature of
these sounds that would result from a rocket launch would cause masking
for not more than a very small fraction of the time during any single
launch day and it is unlikely that pinnipeds will become habituated to
launch sounds. In addition, the extremely rapid departure of the
rockets means that pinnipeds would be exposed to increased sound levels
for very short time intervals, and because launches are conducted
relatively infrequently, neither physiological stress nor hearing
related injuries are likely. Therefore, NMFS anticipates that the
effects of rocket launches from KLC would have no significant effects
on the abilities of sea lions to hear one another or to detect natural
environmental sounds, and would have no more than a negligible impact
on Steller sea lion populations.
Harbor Seals
An ongoing scientific research program has been conducted since
1997 to determine the long-term cumulative impacts of space vehicle
launches on the haul-out behavior, population dynamics and hearing
acuity of harbor seals at Vandenberg Air Force Base (VAFB) in
California. The response of harbor seals to rocket launch noise
depended on the intensity of the noise (dependent on the size of the
vehicle and its proximity) and the age of the seal. The percentage of
seals leaving the haul-out increases with noise level up to
approximately 100 dB ASEL, after which almost all seals leave, although
recent data has shown that an increasing percentage of seals have
remained on shore, and those that remain are adults (Thorson et al.,
1999). Given the high degree of site fidelity among harbor seals, it is
likely that those seals that remained on the haul-out site during
rocket launches had previously been exposed to launches; that is, it is
possible that adult seals have become acclimated to the launch noise
and react differently than the younger inexperienced seals. 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. 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
minutes post-launch (Thorson et al., 1999). 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 within 2-8 minutes post-launch. Seals returned to the
haulouts within 2 to 55 minutes of the launch disturbance, and the
haulout usually returned to pre-launch levels within 45 to 120 minutes.
In addition to behavioral disturbance, loud sounds may also cause
TTS, which is a slight, recoverable loss of hearing. In order to
further determine if harbor seals experience any change in their
hearing sensitivity as a result of launch noise, researchers conducted
Auditory Brainstem Response (ABR) testing on 10 harbor seals prior to,
and after, the launches of 3 Titan IV rockets (one of the loudest
launch vehicles at the south VAFB haul-out site). Detailed analysis of
the changes in waveform latency and waveform replication of the ABR
measurements showed that there were no detectable changes in the seals'
hearing sensitivity as a result of the launch noise (SRS Technologies,
2001).
The launches at VAFB do not appear to have had long-term effects on
the harbor seal population in this area. The total population of harbor
seals at VAFB is estimated to be 1,040 animals and has been increasing
at an annual rate of 12.6 percent. Since 1997, there have been 5 to 7
space vehicle launches per year and there appears to be only short-term
disturbance effects to harbor seals as a result of launch noise (SRS
Technologies, 2001). Harbor seals will temporarily leave their haul-out
when exposed to launch noise; however they generally return to the
haul-out within one hour.
[[Page 4305]]
Harbor seals use Ugak Island as a pupping site. Though no launches
have as yet taken place during the pupping period at Ugak Island (late
May through mid-June), they may at some point in the future. There has
been little systematic study of the reactions of pinnipeds to rocket
launches or aircraft overflights during pupping periods. Pinnipeds
hauled out for pupping or molting are generally the most responsive to
aircraft overflights (Richardson et al., 1995). Harbor seals often
leave beaches when aircraft fly over and then sometimes haulout at a
different site afterwards, which results in permanent separation if
pups are unable to follow their mothers into the water. Additionally,
very young pups that are pushed into the water as the adults flush may
subsequently drown. One study showed more than 10 percent of
approximately 2000 pups born on one Alaskan island died as a result of
disturbance from low-flying aircraft (Richardson et al., 1995). The
same study found that aircraft were more disturbing on calm days, when
at low altitudes, and after recent disturbances. Since harbor seals
have been shown to flush into the water in response to rocket launch
noise of a level similar to that occurring at Ugak Island, one can
infer that separation of pups from their mothers could occur if the
launch occurred during a pupping period and the harbor seals were using
the north side of the island to pup on.
Rocket launches at KLC have associated security overflights that
occur an approximate total of 5 to 10 times per day in the days
preceding and following the 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). One mitigation
requirement included in the rule is that security overflights
immediately associated with the launch will not approach occupied
pinniped haulouts on Ugak Island by closer than 0.25 mile (0.4 km), and
will maintain a vertical distance of 1000 ft (305 m) from the haulouts
when within 0.5 miles (0.8 km), unless indications of human presence or
activity warrant closer inspection of the area to assure that national
security interests are protected in accord with law. Monitoring flights
will not approach closer than 0.25 (0.4 km) mile from the island. It is
unlikely that either of these overflights will add noticeably to any
harassment of pinnipeds surrounding the rocket launches.
Harbor seals primarily use the east side of Ugak Island, though
they sometimes use the north side of the island both for hauling out
and for pupping. For several reasons, NMFS believes that the seals
using the east side of the island are not likely to be harassed by
rocket launch noise: the eastern shoreline faces away from the point
the rocket noise is emanating from and is backed up by a 300-500-ft
(91.4-152.4 km) cliff; the rough seas hitting rocks make the ambient
noise very loud on the eastern shoreline; and data collected during the
ait-2 launch showed that one hour after the launch, when sea lions were
swimming immediately off the rocks on the north shore, the harbor seals
were still hauled out in the same numbers and at the same locations
that they were 5 hours before the launch. NMFS believes that harbor
seals hauled out on the north beach may be temporarily behaviorally
disturbed and possibly temporarily displaced from their haulouts
immediately following rocket launches. If launches occur during the
harbor seal pupping period and harbor seals have also chosen to pup on
the north beach, it is possible that harbor seal pups could die as a
result of the adults flushing in response to the rocket noise. NMFS
believes that the proposed action may result in the temporary
behavioral disturbance and, less likely, mortality (pups only) of small
numbers, in relation to the population numbers (see next section), of
harbor seals. NMFS anticipates that these impacts will have no more
than a negligible effect on the species stock.
Numbers of Marine Mammals Expected to be Taken by Harassment
The highest number of Steller sea lions seen at one time on Ugak
Island since 1993 is approximately 375 (1997). However, based on both
dedicated and opportunistic surveys by one researcher, approximately
160 were seen in 1999 and numbers have decreased since then (Wynne,
pers. comm., 2005). Approximately 50 were seen in 2001 and numbers have
further decreased since then. Steller sea lions seasonally use the Ugak
island sites (the northern spit, and occasionally the southwest tip) as
haulout sites from late June to early October. While not logistically
optimal for the applicant, the fastest that KLC can prepare the
facilities for a new launch right after a launch is 4 weeks, which
means that at most it would be logistically possible to have four
launches a year within the time that the sea lions are using Ugak
Island as a haulout. Based on the maximum number seen and the sea lion
trend over the last several years, NMFS anticipates that the most sea
lions likely to be harassed during one launch is 300. This translates
to the potential harassment of 1,200 Steller sea lions in one year
(assuming different individual sea lions are harassed each launch).
However a mitigation measure is required that will limit the number of
launches within the time that sea lions are present to three, which
lowers the number of potential harassments to 900 animals annually.
This is a small number relative to the affected stock.
Harbor seal numbers have steadily increased at Ugak Island since
1992, and just over 900 were counted during the molt in 2004 (Wynne,
pers. comm., 2005). The last pupping season counts showed 290 adults
and 88 pups in 1993, and 292 adults and 96 pups in 1994. According to
local researchers, the primary haulout for harbor seals is on the east
side of the island (where NMFS does not believe there are likely to be
any effects from the rocket launch noise) and the majority of the seals
may be found there. In three days of her 1994 survey, Wynne (2005)
found that an average of approximately 25 percent of both adults and
pups were hauled out on the north side of the beach. Therefore, NMFS
estimates that of a maximum of 900 harbor seals present during any
launch, 275 of them may be located on the north side of the island and
exposed to the rocket launch noise. Harbor seals are present at Ugak
all year, which means that if there were nine launches in one year, a
maximum of 2,475 harbor seals could be exposed to the noise and
potentially harassed in one year (assuming different individuals were
present each launch, else the number is smaller, but some may be
harassed more than one time). The harbor seal pupping season runs from
mid-May through June. Since it takes a minimum of 4 weeks to prepare
for a new launch, it would be logistically possible to have two
launches during that time. The highest number of pups seen at Ugak was
96 in 1994. Though numbers of pups have probably increased with the
numbers of adults since 1994 (by a factor of three), only a minority of
pups (estimated one fourth) will likely be present on the north side of
the island and exposed to the noise and potential flushing of adults.
One scientist reported that more than 10 percent of 2000 harbor seal
pups died on an Alaskan Island following disturbance from exposures to
low flying aircrafts (Richardson et al., 1995). NMFS estimates that if
72 pups (highest number seen (in 1996) multiplied by three for
population increase and divided by four to account for number exposed
on north side of island) were
[[Page 4306]]
twice exposed to rocket noise sufficient to flush the adults, up to 20
harbor seal pups (15 percent) might die. However, one required
mitigation measure limits AADC to one launch during the pupping season,
which lowers the potential mortality of harbor seal pups to 11 annually
(55 over the life of the regulations). NMFS believes that a small
number (no more than 2,488) of harbor seals may be affected relative to
the population estimates.
Effects of Rocket Launches on Subsistence Needs
There are no subsistence uses of pinniped species in Alaska waters
within the KLC primary study area, and, therefore, NMFS anticipates no
effects on subsistence needs.
Effects of Rocket Launches on Marine Mammal Habitat
Solid rocket boosters would fall into the ocean away from any known
or potential haulouts and the chances of a cetacean being in the wrong
place at the wrong time are discountable. All sonic booms that reach
the earth's surface would be expected to be over open ocean beyond the
outer continental shelf. Airborne launch sounds would mostly reflect or
refract from the water surface and, except for sounds within a diameter
of approximately 26 degrees directly below the launch vehicle, would
not penetrate into the water column. The sounds that do penetrate would
not persist in the water for more than a few seconds. Overall, rocket
launch activities from KLC would not be expected to cause any impacts
to habitats used by marine mammals, including pinniped haulouts, or to
their food sources.
Mitigation
Under Section 101(a)(5) of the MMPA, adverse impacts are to be
reduced to the lowest level practicable. Due to the nature of the
rocket launches and the pinnipeds responses, the most obvious way to
mitigate for the effects of the rocket launch noise is to minimize the
number of launches that the Steller sea lions and harbor seals are
exposed to. This sort of mitigation is logistically difficult and
impracticable for AADC, as their launch operations are driven by the
needs of the agencies and companies that utilize their facilities.
However, NMFS and the applicant have worked out a way to reduce the
potential Level B Harassment of sea lions by 25 percent and to reduce
the potential Level A Harassment or mortality of harbor seal pups by 50
percent.
In their application, AADC asked for authorization to take marine
mammals during nine rocket launches annually. The quickest that the
launch pad can be turned around for another launch is four weeks. This
means that it would be logistically possible to launch 4 rockets during
the season that the Steller sea lions are using Ugak Island, and
logistically possible to launch two rockets during the harbor seal
pupping season. As a mitigation measure, NMFS has incorporated into the
rule and LOAs a requirement that not more than an average of three
launches per year could occur within the sea lion season, and not more
than an average of one launch per year could occur during the harbor
seal pupping season. Therefore, no more than 15 launches would occur
within the sea lion season (June 15 - September 30) over the course of
the 5-year rule, and no more than 5 launches would occur during the
harbor seal pupping season (May 15 - June 30) over the course of the 5-
year rule.
Even though the video monitoring of Steller sea lions at Ugak
Island indicates they did not flush in response to helicopter or noise
recorded during the same time period, the scientific literature shows
that pinnipeds will often have an adverse response to low-flying
aircraft. AADC typically flies several security overflights in
conjunction with a rocket launch. As a result, NMFS has incorporated a
mitigation measure wherein the security flights immediately associated
with rocket launches would not approach closer than 0.25 mile (0.4 km)
to occupied pinniped haulout sites or fly lower than 1000 ft (305 m)
when the plane is closer than 0.5 miles (0.8 km) from occupied pinniped
sites on Ugak Island unless indications of human presence or activity
warrant closer inspection of the area to assure that national security
interests are protected in accord with law.
Monitoring
Marine Mammal Monitoring
The objective of monitoring Steller sea lions and Pacific harbor
seals is to detect any indications of pinniped disturbance, injury, or
mortality that results from KLC rocket launches at the Ugak Island
haulout site. Monitoring would be conducted on Ugak Island for launches
that take place between June 15 and September 30, an observation period
that includes the seasonal occupation of the Steller sea lions as well
as the molting period of the harbor seals (when their numbers are
higher and their responses to disturbance potentially greater).
Launches occurring during the harbor seal pupping season (May 15 - June
30) would also be monitored. All haulout areas on Ugak Island would be
monitored before, during, and after launch operations to document and
characterize any observed responses. Monitoring would be designed to
determine the type of reactions (or injury or mortality) and their
relationship to noises associated with rocket launches. Fixed-wing
aerial surveys would be flown for any launches taking place from June
15 through September 30 using a minimum flight altitude of 156 m (500
ft) above sea level (ASL) to be flown at low tide or, with
consultation, toward evening. The aircraft would come no closer than
0.25 miles (0.4 km) to the haulout. Depending on aircraft availability,
one or two NMFS-approved biologist observers would accompany the pilot.
Data will be gathered both visually and with a camera having a zoom
lens. A total of five surveys would be flown, if weather conditions
permit. The first would occur the day prior to a scheduled launch and
the second as soon after the launch as possible. Replicate surveys will
be flown the following three successive days to determine post-launch
haulout-use patterns.
For any launches that occur from June 15 through September 30, a
real-time video record will be made of sea lion reactions to launch-
related noises. This will be accomplished by the installation of a
remote custom-designed, closed-circuit, weatherproof, time-lapse video
camera system at the base of the Ugak Island sea lion haulout before a
launch, which will be retrieved post-launch. Results of the aerial and
video surveys will be compared, providing information on startle
effects and durations. In addition, video data will be time-correlated
with rocket motor noise measurements to provide objective information
on any startle responses or indications of disturbance reactions that
may occur resulting from rocket launches. Comparisons will also be made
with baseline data assembled by AADC to help gauge any natural trends
that may be occurring.
The majority of harbor seals haul out on the eastern side of Ugak
Island, which is completely inaccessible to pedestrian or boat traffic
due to the high cliffs and violent surf, so it is not possible to set
up video recorders there. However, approximately 25 percent of the
harbor seals haul out on the eastern end of the north-facing shore of
Ugak Island. Though it has not yet been attempted, it may be possible
to set up a camera with a zoom lens on the accessible western end of
the north-facing shore to record harbor seal behavior on the middle or
eastern end
[[Page 4307]]
of the shore, or on the rocks off shore. At some time prior to the
first launch that occurs between May 15 and June 30, when harbor seals
are present (perhaps immediately before or after the camera has already
been set up to record sea lions), AADC will test the efficacy of using
the camera on the harbor seal haulout and report their findings to
NMFS. If successful, the same real-time video and acoustic measurements
(see below) will be conducted when launches occur during the harbor
seal pupping season as occur when the sea lions are present.
NMFS believes it unlikely that the security overflights immediately
preceding and following the rocket launches would result in the
harassment of marine mammals. However, when pinnipeds are present at
haulouts during security overflights associated with rocket launches, a
member of the flight crew will note and record whether pinnipeds
appeared to flush as a result of the overflight and estimate a number.
Acoustic Measurements
Rocket motor noise monitoring would be done concurrently with video
monitoring at the Ugak Island haulouts. These data will be synchronized
to the video data to document correlations between noise signatures and
pinniped responses. Sound intensity and frequency metrics will be
recorded before, during, and after a launch by an SLM mounted on a
permanent stanchion upon the Ugak Island haulout one day or more before
a launch and retrieved within one day post-launch. The SLM will be set
to highlight sounds greater than 70 dBA.
Reporting
In the event that any cases of pinniped injury or mortality are
judged to result from launch activities at any time during the period
covered by these regulations, this event will be reported to NMFS
immediately.
Data from monitoring activities would be analyzed, summarized, and
reported to NMFS within 90 calendar days following cessation of field
activities for each launch. The report would include the timing and
nature (vehicle type, azimuth, measured sound data) of launch
operations as well as the times of the monitoring flights. The report
would include sea lion and harbor seal counts (separated into adult and
pup), as well as observations of any other marine mammals seen during
monitoring or security overflights. The report will summarize
behavioral observations in relation to recorded, or other known,
stimuli (launches or aircraft), and estimate the number of the affected
animals and the nature of their reactions. The report will include a
summary of the acoustic measurements. The report will include a copy of
all videotapes containing sea lion and harbor seal footage, and
selected illustrative 35mm pictures, cross-referenced to the
appropriate launches and acoustic measurements. AADC would also include
this information in its Annual Environmental Monitoring and Natural
Resources Management Report.
An interim technical report is proposed to be submitted to NMFS 60
days prior to the expiration of each annual LOA issued under these
regulations, along with any request for a subsequent annual LOA. This
interim technical report would provide full documentation of methods,
results, and interpretation pertaining to all monitoring tasks for
launches during the period covered by the LOA. NMFS recognizes that
only preliminary information would be available for any launches during
the 60-day period immediately preceding the expiration of the LOA.
In addition to annual interim technical reports, NMFS is requiring
AADC to submit a draft comprehensive technical report to NMFS 180 days
prior to the expiration of the regulations. This draft technical report
would provide full documentation of methods, results, and
interpretation of all monitoring tasks for launches during the first
four LOA's, plus preliminary information for launches during the first
6 months of the final LOA. AADC will incorporate NMFS recommendations
on the draft report and submit a final comprehensive technical report
within 60 days of the expiration of the regulations.
National Environmental Policy Act (NEPA)
The FAA prepared an Environmental Assessment (EA) and subsequently
issued a Finding of No Significant Impact (FONSI) for AADC's proposal
to construct and operate a launch site at Narrow Cape on Kodiak Island,
Alaska. Since 1998, AADC has provided monitoring reports related to
noise and marine mammal impacts associated with ongoing rocket launches
from KLC. After reviewing the new information contained in the
monitoring reports and considering the MMC's comments that impacts to
harbor seals should be more comprehensively addressed, NMFS decided
that a more current environmental analysis was necessary. In 2005, NMFS
prepared an EA on the Promulgation of Regulations Authorizing Take of
Marine Mammals Incidental to Rocket Launches at Kodiak Launch Complex,
Alaska, and the Issuance of Subsequent Letters of Authorization. NMFS
found that the promulgation of a 5-yr Rule and issuance of LOAs will
not significantly impact the quality of the human environment and
issued a Finding of No Significant Impact (FONSI). Accordingly,
preparation of an Environmental Impact Statement or Supplemental
Environmental Impact Statement for this action was not necessary.
Endangered Species Act (ESA)
The endangered Steller sea lion is the only federally listed marine
mammal under NMFS' jurisdiction that is likely to be adversely affected
by the proposed action. Ugak Island also contains designated critical
habitat for the Steller sea lion. The FAA and NMFS have consulted with
the Endangered Species Division of the NMFS Alaska Region. A Biological
Opinion (BO) issued in November, 2003 found that the proposed action is
not likely to jeopardize the continued existence of listed species nor
result in the destruction or adverse modification of critical habitat.
The northern sea otter, federally listed as threatened under the
ESA, may be found in the KLC area throughout the year. The northern sea
otter is within the jurisdiction of the USFWS, which is responsible for
issuing authorizations and incidental take statements for takes of this
species. AADC is currently in consultation with USFWS regarding the sea
otter.
Steller's eider, federally listed threatened and under the
jurisdiction of the USFWS, is found in the vicinity of the KLC.
Following several years of recommended monitoring of both Steller's
eiders and bald eagles (not federally listed in Alaska), the USFWS
concurred with AADC's conclusion that the rocket launches at AADC have
no effect on either of these species.
Classification
This action has been determined to be not significant for purposes
of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration at the proposed rule stage that this rule would not have
a significant economic impact on a substantial number of small
entities. The rule would apply only to AADC, and would have no effect,
directly or indirectly, on small businesses. The rule may affect a
small number of contractors providing services related to reporting the
impact
[[Page 4308]]
of the activity on marine mammals, some of whom may be small
businesses, but the number involved would not be substantial. Because
of this certification, a regulatory flexibility analysis is not
required, and none was prepared. No comments concerning this
certification were 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 Office of Management and Budget (OMB)
control number. This proposed rule contains collection-of-information
requirements 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, and includes applications for LOAs
and reports.
List of Subjects in 50 CFR Part 216
Exports, Fish, Imports, Indians, Labeling, Marine mammals,
Penalties, Reporting and record keeping requirements, Seafood,
Transportation.
0
For reasons set forth in the preamble, 50 CFR part 216 is amended as
follows:
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
0
1. The authority citation for part 216 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq.
0
2. Subparts R, S, and T are added and reserved.
0
3. Subpart U is added to read as follows:
Subpart U--Taking of Marine Mammals Incidental to Rocket Launches
from the Kodiak Launch Complex, Kodiak Island, AK
Sec.
216.230 Specified activity and specified geographical region.
216.231 Effective dates.
216.232 Permissible methods of taking.
216.233 Prohibitions.
216.234 Mitigation, monitoring and reporting.
216.235 Letter of Authorization.
216.236 Renewal of a Letter of Authorization.
216.237 Modifications to a Letter of Authorization.
Subpart U--Taking of Marine Mammals Incidental to Rocket Launches
from the Kodiak Launch Complex, Kodiak Island, AK
Sec. 216.230 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the incidental taking
of marine mammals specified in paragraph (b) of this section by U.S.
citizens engaged in rocket launch activities (up to nine launches per
year) at the Kodiak Launch Complex on Kodiak Island, Alaska.
(b) The incidental take of marine mammals under the activity
identified in paragraph (a) of this section is limited to Steller sea
lions (Eumetopius jubatus) and Pacific harbor seals (Phoca vitulina
richardsi).
Sec. 216.231 Effective dates.
Regulations in this subpart are effective from February 27, 2006
through February 28, 2011.
Sec. 216.232 Permissible methods of taking.
(a) Under a Letter of Authorization issued pursuant to Sec.
216.106, the Alaska Aerospace Development Corporation and its
contractors, may incidentally, but not intentionally, take Steller sea
lions by Level B harassment, take adult Pacific harbor seals by Level B
harassment, and take harbor seal pups by Level B or Level A harassment
or mortality, in the course of conducting missile launch activities
within the area described in Sec. 216.230(a), provided all terms,
conditions, and requirements of these regulations and such Letter of
Authorization are complied with.
(b) The activities identified in Sec. 216.230(a) must be conducted
in a manner that minimizes, to the greatest extent practicable, adverse
impacts on marine mammals and their habitat.
Sec. 216.233 Prohibitions.
The following activities are prohibited:
(a) The taking of a marine mammal that is other than unintentional.
(b) The violation of, or failure to comply with, the terms,
conditions, and requirements of this subpart or a Letter of
Authorization issued under Sec. 216.106.
(c) The incidental taking of any marine mammal of a species not
specified, or in a manner not authorized, in this subpart.
Sec. 216.234 Mitigation, monitoring and reporting.
(a) No more than five launches may occur between May 15 and June 30
within the 5-year period, and no more than 15 launches may occur
between June 15 and September 30 within the 5-year period.
(b) The holder of the Letter of Authorization must implement the
following measures for all launches occurring from June through
October:
(1) Conduct five replicate fixed-wing aerial surveys of all hauled
out Steller sea lions and harbor seals at Ugak Island, each flown at
low tide (weather permitting), using a minimum flight altitude of 500
feet (152 meters) above sea level, with an approach no closer than 0.25
mi (0.40 km) to the haulout, and conducted a day prior to, directly
following, and for three consecutive days after a launch.
(2) At least one biologist observer will accompany the pilot during
all aerial surveys.
(3) Data gathered during aerial surveys will be gathered visually
and through the use of a camera with a zoom lens.
(4) A real-time video record of Steller sea lion reactions to
launch noise will be made using a video camera system placed upon the
Ugak Island haulout before a scheduled launch and then retrieved after
the launch.
(5) Sound intensities and frequencies of rocket motor noise will be
recorded before, during, and after a launch by a sound level monitor
mounted upon the Ugak Island haulout and set to highlight sounds
greater than 70 dBA. Monitors will be installed one day or more before
a launch and retrieved within one day post-launch.
(c) A trial effort to obtain real-time video records of harbor
seals hauled out at the eastern end of the northern side of the island
and their reactions to launch noise will be made as soon as
practicable. A brief report summarizing the efficacy of this monitoring
effort should be included in the standard monitoring reports for that
launch and year. If valuable data may be gathered using this method,
real-time video records of harbor seals reactions to launch noise will
be made before launches scheduled between May 15 and June 30, and
between June 30 and September 30 if the equipment is not being used to
record Steller sea lions, and then retrieved after the launches.
(d) Security flights immediately associated with rocket launches
may not approach closer than 0.25 mile (0.4 km) to occupied pinniped
haulout sites on Ugak Island or fly lower than 1000 ft (305 m) when the
plane is closer than 0.5 miles (0.8 km) from occupied pinniped sites on
Ugak Island unless indications of human presence or activity warrant
closer inspection of the area to assure that national security
[[Page 4309]]
interests are protected in accordance with the law.
(e) When pinnipeds are present at haulouts during security
overflights associated with rocket launches, and when practicable, a
member of the flight crew will note and record whether pinnipeds
appeared to flush as a result of the overflight and estimate a number.
(f) The holder of the Letter of Authorization is required to
cooperate with the National Marine Fisheries Service and any other
Federal, state or local agency monitoring the impacts of the activity
on marine mammals. The holder must notify the NMFS Alaska Assistant
Regional Administrator for Protected Resources and to the NMFS Division
of Permits, Conservation, and Education, Office of Protected Resources
at least 2 weeks prior to commencing monitoring activities.
(g) Activities related to the monitoring described in paragraph (a)
of this section or in the Letter of Authorization may be conducted
without a separate scientific research permit.
(h) In coordination and compliance with the Alaska Aerospace
Development Corporation, the National Marine Fisheries Service may
place an observer on Kodiak or Ugak Islands for any marine mammal
monitoring activity prior to, during, or after a missile launch to
monitor impacts on marine mammals, provided observers are not within
the calculated danger zone of the rocket's flight path during a launch.
(i) The holder of the Letter of Authorization must comply with any
other applicable state or federal permits, regulations, and
environmental monitoring agreements set up with other agencies.
(j) The National Marine Fisheries Service must be informed
immediately of any proposed changes or deletions to any portions of the
monitoring requirements.
(k) The holder of the Letter of Authorization must implement the
following reporting requirements:
(1) If indications of injurious or lethal take are recorded, the
NMFS Alaska Assistant Regional Administrator for Protected Resources
and the NMFS Division of Permits, Conservation, and Education, Office
of Protected Resources, or their designees, will be contacted within 48
hours. In consultation with the National Marine Fisheries Service,
launch procedure, mitigation measures, and monitoring methods must be
reviewed and appropriate changes made prior to the next launch.
(2) Data from monitoring activities will be reported to the
National Marine Fisheries Service within 90 days following cessation of
field activities for each launch. After the trial effort to videotape
harbor seals at the eastern end of the north side of Ugak island, a
summary of the effectiveness of the videotaping will be included in the
associated launch report.
(3) An interim technical report must be submitted to the NMFS
Alaska Assistant Regional Administrator for Protected Resources and to
the NMFS Division of Permits, Conservation, and Education, Office of
Protected Resources at least 60 days prior to the expiration of each
annual Letter of Authorization. This report must contain the following
information:
(i) Timing and nature of launch operations and monitoring flights;
(ii) A summary of marine mammal behavioral observations in relation
to recorded acoustic stimuli and other known visual or audio stimuli;
(iii) An estimate of the amount and nature of all takes.
(iv) A copy of all videotapes containing sea lion and harbor seal
footage, and selected illustrative 35 mm or digital pictures, cross-
referenced to the appropriate launches and acoustic measurements.
(4) A draft comprehensive technical report will be submitted to the
NMFS Alaska Assistant Regional Administrator for Protected Resources
and to the NMFS Division of Permits, Conservation, and Education,
Office of Protected Resources, 180 days prior to the expiration of
these regulations with full documentation of the methods, results, and
interpretation of all monitoring tasks for launches during all expired
Letters of Authorization, plus preliminary information for launches
during the first 6 months of the final Letter of Authorization.
(5) A revised final comprehensive technical report, including all
monitoring results during the entire period of the Letter of
Authorization, will be due 90 days after the end of the period of
effectiveness of these regulations.
(6) The interim and draft comprehensive technical reports will be
subject to review and comment by the National Marine Fisheries Service.
Any recommendations made by the National Marine Fisheries Service must
be addressed in the final comprehensive technical report prior to
acceptance by the National Marine Fisheries Service.
Sec. 216.235 Letter of Authorization.
(a) A Letter of Authorization, unless suspended or revoked, will be
valid for a period of time specified in the Letter of Authorization,
but a Letter of Authorization may not be valid beyond the effective
period of the regulations.
(b) A Letter of Authorization will set forth:
(1) Species of marine mammals authorized to be taken;
(2) Permissible methods of incidental taking;
(3) Specified geographical region;
(4) Means of effecting the least practicable adverse impact on the
species of marine mammals authorized for taking and its habitat; and
(5) Requirements for monitoring and reporting incidental takes.
(c) Issuance of a Letter of Authorization will be based on a
determination that the number of marine mammals taken by the activity
will be small, and that the total taking by the activity as a whole
will have no more than a negligible impact on the affected species or
stocks of marine mammal(s).
(d) Notice of issuance or denial of a Letter of Authorization will
be published in the Federal Register within 30 days of a determination.
Sec. 216.236 Renewal of a Letter of Authorization.
(a) A Letter of Authorization for the activity identified in Sec.
216.230(a) will be renewed upon:
(1) Notification to the National Marine Fisheries Service that the
activity described in the application for a Letter of Authorization
submitted under Sec. 216.235 will be undertaken and that there will
not be a substantial modification to the described activity, mitigation
or monitoring undertaken during the upcoming season;
(2) Timely receipt of and acceptance by the National Marine
Fisheries Service of the monitoring reports required under Sec.
216.234;
(3) A determination by the National Marine Fisheries Service that
the mitigation, monitoring and reporting measures required under
Sec. Sec. 216.232 and 216.234 and the Letter of Authorization were
undertaken and will be undertaken during the upcoming period of
validity of a renewed Letter of Authorization; and
(4) A determination that the number of marine mammals taken by the
activity will be small and that the total taking by the activity will
have no more than a negligible impact on the affected species or stocks
of marine mammal(s), and that the level of taking will be consistent
with the findings made for the total taking allowable under these
regulations.
(b) A notice of issuance or denial of a renewal of a Letter of
Authorization will be published in the Federal
[[Page 4310]]
Register within 30 days of a determination.
Sec. 216.237 Modifications to a Letter of Authorization.
(a) Except as provided in paragraph (b) of this section, no
substantive modification (including withdrawal or suspension) to a
Letter of Authorization issued pursuant to the provisions of this
subpart shall be made by the National Marine Fisheries Service until
after notification and an opportunity for public comment has been
provided. A renewal of a Letter of Authorization under Sec. 216.236
without modification is not considered a substantive modification.
(b) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species
or stocks of marine mammals specified in Sec. 216.230(b), a Letter of
Authorization may be substantively modified without prior notification
and an opportunity for public comment. Notification will be published
in the Federal Register within 30 days of the action.
Dated: January 19, 2006.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
[FR Doc. 06-765 Filed 1-25-06; 8:45 am]
BILLING CODE 3510-22-S