Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Space Vehicle and Missile Launch Operations, 14996-15005 [2017-05663]

Download as PDF 14996 Federal Register / Vol. 82, No. 56 / Friday, March 24, 2017 / Rules and Regulations 2. Section 73.202(b), the table is amended under Texas, by adding Mullin, Channel 277A to read as follows: § 73.202 * Table of Allotments. * * (b) * * * * * Channel No. * * * * A copy of AAC’s application and 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 below (see FOR FURTHER INFORMATION CONTACT). FOR FURTHER INFORMATION CONTACT: Stephanie Egger, Office of Protected Resources, NMFS, (301) 427–8401. SUPPLEMENTARY INFORMATION: ADDRESSES: ■ * Texas Purpose and Need for Regulatory Action * * * * * These regulations, issued under the authority of the Marine Mammal Mullin .................................... 277A Protection Act (MMPA) (16 U.S.C. 1361 et seq.), establish a framework for * * * * * authorizing the take of marine mammals incidental to space vehicle and missile * * * * * launch operations at the PSCA. We [FR Doc. 2017–05855 Filed 3–23–17; 8:45 am] received an application from AAC BILLING CODE 6712–01–P requesting five-year regulations and authorization to take one species of marine mammal. Take may occur by DEPARTMENT OF COMMERCE Level B harassment only, incidental to the space vehicle and missile launches National Oceanic and Atmospheric (also referred to as rocket launches). The Administration regulations are valid for five years from the date of issuance. Please see 50 CFR Part 217 ‘‘Background’’ below for definitions of [Docket No. 160809705–7102–02] harassment. RIN 0648–BG25 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Space Vehicle and Missile Launch Operations National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: NMFS, upon request from the Alaska Aerospace Corporation (AAC), hereby issues regulations to govern the incidental taking of marine mammals incidental to space vehicle and missile launch operations at the Pacific Spaceport Complex Alaska (PSCA) on Kodiak Island, Alaska, over the course of five years (2017–2022). These regulations, which allow for the issuance of Letters of Authorization (LOA) for the incidental take of marine mammals during the described activities and specified timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, and establish requirements pertaining to the monitoring and reporting of such taking. DATES: Effective from April 24, 2017, through April 25, 2022. jstallworth on DSK7TPTVN1PROD with RULES SUMMARY: VerDate Sep<11>2014 13:12 Mar 23, 2017 Jkt 241001 Legal Authority for the Regulatory Action Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) 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 final rule containing fiveyear regulations, and for any subsequent Letters of Authorization. As directed by this legal authority, this final rule contains mitigation, monitoring, and reporting requirements. Summary of Major Provisions Within the Regulations The following provides a summary of some of the major provisions within the rulemaking for AAC’s rocket launch activities. We have determined that AAC’s adherence to the planned PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 mitigation, monitoring, and reporting measures listed below will achieve the least practicable adverse impact on the affected marine mammals. They include: • Required monitoring of Ugak Island to detect the presence and abundance of marine mammals before and after deployment of space vehicle and missile launch operations. • Required monitoring of Ugak Island to survey the presence and abundance of marine mammals quarterly (space vehicle and missile launch operations). • Required mitigation using timelapsed photography to determine the immediate response impacts to marine mammals during space vehicle and missile launch operations, particularly during the pupping season (should space vehicle and missile launch operations occur during that time). Background Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review. 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.’’ NMFS has defined ‘‘unmitigable adverse impact’’ in 50 CFR 216.103 as an impact resulting from the specified activity: (1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (i) Causing the marine mammals to abandon or avoid hunting areas; (ii) directly displacing subsistence users; or (iii) placing physical barriers between the marine E:\FR\FM\24MRR1.SGM 24MRR1 Federal Register / Vol. 82, No. 56 / Friday, March 24, 2017 / Rules and Regulations mammals and the subsistence hunters; and (2) That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met. Except with respect to certain activities not pertinent here, section 3(18) of 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 space vehicle and missile launch operations 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 30 days related to AAC’s request. On November 10, 2016, we received a revised final application. We received comments from the Marine Mammal Commission (MMC), which we considered during development of the proposed rulemaking (82 FR 6456; January 19, 2017) and which are available online at: www.nmfs.noaa.gov/ pr/permits/incidental/research.htm. AAC requests taking of small numbers of marine mammals incidental to space vehicle and missile launch operations; such operations produce noise 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). These regulations are valid for five years from the date of issuance. jstallworth on DSK7TPTVN1PROD with RULES Description of the Specified Activity Overview PSCA is located on the Narrow Cape Peninsula, on Kodiak Island in the Gulf VerDate Sep<11>2014 13:12 Mar 23, 2017 Jkt 241001 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 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 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. 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 five-year period of validity of the 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. 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 estimated 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. Any disturbances to pinnipeds from space PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 14997 vehicle and missile launch operations will span 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. 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 consistently in recent years) used by Steller sea lions (Eumetopias jubatus) as a haulout, 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 A detailed description of AAC’s planned activities was provided in our notice of proposed rulemaking (82 FR 6456; January 19, 2017) and is not repeated here. No changes have been made to the specified activities described therein. 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 5year period covered by these regulations. E:\FR\FM\24MRR1.SGM 24MRR1 14998 Federal Register / Vol. 82, No. 56 / Friday, March 24, 2017 / Rules and Regulations TABLE 1—PAST AND ANTICIPATED LAUNCH VEHICLES Previously launched & recorded at PSCA (also potentially launched in future) Launch designator Launch vehicle QRLV ................................................. QRLV ................................................. QRLV ................................................. Athena ............................................... FT–04–1 ............................................ FTG–02 .............................................. FTG–03a ............................................ FTX–03 .............................................. ........................................................... ........................................................... ........................................................... Castor 120 ........................................ Polaris A–3 STARS .......................... Polaris A–3 STARS .......................... Polaris A–3 STARS .......................... Polaris A–3 STARS .......................... Minotaur I .......................................... C–4 Trident I ..................................... Castor I ............................................. SR19/SR773 ..................................... SR19/SR19 ....................................... Castor IVB ......................................... ........................................................... 11/5/98 9/15/99 3/22/01 9/29/01 2/23/06 9/01/06 9/28/07 7/18/08 .................... .................... .................... .................... .................... .................... .................... Distance to haulout (mi) Date Tactical Vehicles ................................ 2 3.5 2 3.5 2 3.5 2 3.5 4.1 4.1 4.1 4.1 .................... .................... .................... .................... .................... .................... .................... Motor diameter (ft) 1 4.3 4.3 4.3 7.75 4.5 4.5 4.5 4.5 4.5 6.1 2.6 4.3 4.3 3.3 <1.5 SEL (dBA) Lmax (dBA) LPeak (dBA) 88.4 92.2 80.3 101.4 92.3 90.1 91.4 89.6 2 90+ .................... .................... .................... .................... .................... .................... 78.2 81.5 73.3 90.8 86.0 83.1 84.2 83.0 .................... .................... .................... .................... .................... .................... .................... 97.0 101.5 87.2 115.9 109.0 105.6 107.3 108.3 .................... .................... .................... .................... .................... .................... .................... Notes: 1 Motor sound pressures from solid fueled motors, roughly, correlate to motor diameter. 2 Estimated. jstallworth on DSK7TPTVN1PROD with RULES Comments and Responses We published a notice of proposed rulemaking in the Federal Register on January 19, 2017 (82 FR 6456) and requested comments and information from the public. During the thirty-day comment period, we received one letter from the Marine Mammal Commission (Commission). The comments and our responses are provided here, and the comments have been posted on the Internet at: www.nmfs.noaa.gov/pr/ permits/incidental/research.htm. Please see the comment letter for the full rationale behind the recommendations we respond to below. Comment 1: The Commission recommends that NMFS require AAC to avoid conducting launches during the harbor seal pupping season from May 15 through June 30, except when launches are necessary for human safety or national security purposes or are necessary to achieve space vehicle launch trajectories to meet mission objectives. Response: It is unlikely that infrequent disturbance resulting from AAC’s rocket launches will 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 seal 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 VerDate Sep<11>2014 13:12 Mar 23, 2017 Jkt 241001 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. In addition, there is no potential for large-scale flushing events that will lead to serious injury or mortality for the harbor seals at the northern end of Ugak Island because, historically, the number of harbor seals hauled out near the site is less than 30 individuals, and these animals do not stampede, but flush into the water. Harbor seals are a species that does not cause accidental mortality of their pups when the adults flush into the water even during the pupping season. Given the infrequent (approximately nine times per year) and brief (approximately one minute as heard from Ugak Island) nature of these sounds, as well as the characteristics of mother/pup bonding as described above and the absence of potential for mortality during flushing events (if they occur), NMFS believes that a measure to restrict launches during the pupping season is unnecessary to reach the least practicable adverse impact on the affected marine mammals, when considered in context of practicability for the applicant. The applicant could PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 potentially be forced to schedule their client to another time period that may result in additional costs for both the client and applicant if they have to avoid the pupping season. Should launch monitoring or quarterly aerial surveys indicate that unanticipated impacts to harbor seal pups or impacts to the distribution, size, or productivity of pinniped populations are occurring, the adaptive management component of this rulemaking can allow for adjustments to be made to the required mitigation measures. Description of the Sound Sources A detailed description of sound sources was provided in our notice of proposed rulemaking (82 FR 6456; January 19, 2017) and is not repeated here. No changes have been made to the specified activities described therein. Description of Marine Mammals in the Area of the Specified Activity We previously reviewed AAC’s species descriptions—which summarized available information regarding status, trends, and distribution of the potentially affected species—for accuracy and completeness and referred readers to Sections 4 and 5 of AAC’s application, as well as to NMFS’s Stock Assessment Reports (SARs; www.nmfs.noaa.gov/pr/sars/). We also provided information related to all species with expected potential for take around Kodiak and Ugak Islands where AAC plans to conduct the specified activities, summarizing information related to the population or stock. Please see Tables 2 and 3 in our notice of proposed rulemaking (82 FR 6456; January 19, 2017) for that information, which is not reprinted here. E:\FR\FM\24MRR1.SGM 24MRR1 Federal Register / Vol. 82, No. 56 / Friday, March 24, 2017 / Rules and Regulations jstallworth on DSK7TPTVN1PROD with RULES The only marine mammals anticipated to be affected by the specified activities, and for which take by Level B harassment is authorized, are harbor seals hauled out on Ugak Island. Therefore, they are the only marine mammal discussed further in these regulations. Potential Effects of the Specified Activity on Marine Mammals A detailed description of the specified activity on marine mammals was provided in our notice of proposed rulemaking (82 FR 6456; January 19, 2017) and is not repeated here. No changes have been made to the specified activities described therein. 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 will 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 largescale 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 for the harbor seals at the northern end of Ugak Island because, historically, the number of harbor seals hauled out near the site 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 (Lmax measured at 90.8 dBA), NMFS anticipates that if seals are disturbed there may be a startle response and flush into the water. Harbor seals will likely return to haulout sites on Ugak Island within 2 to 55 minutes of the VerDate Sep<11>2014 13:12 Mar 23, 2017 Jkt 241001 launch disturbance. Based on AAC’s measurements as described for the Castor 120 above, any response that will occur will be behavioral. No permanent threshold shift (PTS) or temporary threshold shift (TTS) is anticipated. 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 monitoring and mitigation measures described later in this document (see the ‘‘Mitigation’’ and ‘‘Monitoring and Reporting’’ sections) which, as noted, should effect the least adverse impact practicable on affected marine mammal species and stocks. Anticipated Effects on Marine Mammal Habitat Solid fuel rocket boosters will fall into the ocean away from any known or potential haulouts. All sonic booms that reach the earth’s surface will be expected to occur over open ocean beyond the OCS. Airborne launch sounds will mostly reflect or refract from the water surface and, except for sounds within a cone of approximately 26 degrees directly below the launch vehicle, will not penetrate into the water column. The sounds that will penetrate will not persist in the water for more than a few seconds. Overall, NMFS does not expect rocket launch activities from PSCA to cause any impacts to habitats used by marine mammals, including pinniped haulouts, or to their food sources. Mitigation In order to issue an incidental take authorization (ITA) under section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for subsistence uses. NMFS’s implementing regulations require applicants for ITAs to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)). To minimize impacts on pinnipeds at haulout sites, the AAC will continue the PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 14999 following mitigation measures, as implemented during the previous ITAs, designed to minimize impact to affected species and stocks: (1) Security overflights immediately associated with the launch will not approach pinniped haulouts on Ugak Island by closer than 0.25 mi (0.4 km), and will 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; and (2) All Castor 120-equivalent launches (i.e., the loudest rocket used by AAC) will be conducted at a launch pad equipped with a concrete and water-filled flame trench in order to direct smoke away from the launch pad, but also to absorb light and noise at their respective peaks (i.e., lift-off). NMFS has carefully evaluated AAC’s mitigation measures and considered their effectiveness in past implementation to determine whether they are likely to effect the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: (1) The manner and the degree to which the successful implementation 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 mitigation measures take scientific studies (Richardson et al., 2005) of overflight effects on pinnipeds into consideration. Lastly, the adaptive nature of the mitigation measures allows 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 measures, as well as other measures considered by NMFS, NMFS has determined that the mitigation measures provide the means of effecting 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. 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 E:\FR\FM\24MRR1.SGM 24MRR1 jstallworth on DSK7TPTVN1PROD with RULES 15000 Federal Register / Vol. 82, No. 56 / Friday, March 24, 2017 / Rules and Regulations ‘‘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 in the planned action area. Any monitoring requirement we prescribe should improve our understanding of one or more of the following: • Occurrence of marine mammal species in action area (e.g., presence, abundance, distribution, density). • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the action; or (4) biological or behavioral context of exposure (e.g., age, calving, or feeding areas). • Individual responses to acute stressors, or impacts of chronic exposures (behavioral or physiological). • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of an individual; or (2) population, species, or stock. • Effects on marine mammal habitat and resultant impacts to marine mammals. • Mitigation and monitoring effectiveness. AAC will implement the following for monitoring and reporting: • Install time-lapsed photography systems designed to monitor pinniped abundance and detect pinniped responses to rocket launches at all pinniped haulout locations around Ugak Island. 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 the technical experts (qualified, on-site experts who have implemented time-lapsed photography technology for wildlife studies); • Ensure the time-lapsed photography systems will be in place and operating in locations that allow for visual monitoring of all pinniped haulouts during launches; • Relocate the time-lapsed photography systems in cooperation with NMFS after five launches if the VerDate Sep<11>2014 13:12 Mar 23, 2017 Jkt 241001 system is not accurately capturing all pinniped haulouts and total pinniped abundance during the launches; • Monitor and review the effectiveness of these systems, comparing the results to aerial surveys for pinniped presence, abundance, behavior, and re-occupation time from the data obtained from the time-lapsed photography systems for the first five launches and report results to NMFS within 90 days (after the 5th launch); • Conduct a study in coordination with NMFS 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; • Conduct one pre-launch aerial survey and one post-launch aerial survey for each launch to obtain data on pinniped presence, abundance, and behavior capturing all pinniped haulouts; • 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 capturing all pinniped haulouts. Results of these quarterly surveys will be reported once as part of the year-end summary report; • Conduct quarterly surveys in the event no launch occurs during a calendar year; and • If launch monitoring or quarterly aerial surveys indicate that the distribution, size, or productivity of the potentially affected pinniped populations has been affected due to the specified activity, the launch procedures and the monitoring methods will be reviewed, in cooperation with NMFS, and, if necessary, appropriate changes may be made through modifications to a given LOA, prior to conducting the next launch of the same vehicle under that LOA. Data collected and reported will, at a minimum, include number of seals per haulout, by age class when possible, noting if any disturbance behavior is noted from aircraft presence. If a freshly dead or seriously injured pinniped is found during post-launch monitoring, the incident must be reported within 48 hours to the NMFS Office of Protected Resources and the NMFS Alaska Regional Office. Previous Monitoring A detailed description of AAC’s previous monitoring was provided in PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 our notice of proposed rulemaking (82 FR 6456; January 19, 2017) and is not repeated here. No changes have been made to the specified activities described therein. 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 five-year period covered by these regulations. Annually, AAC requests nine launches to be authorized. AAC estimates that no more than one launch will occur over a 4-week period, and it is likely the frequency of launches will 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 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. 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. Launches may occur at any time of the year, so any age classes and gender may be taken. The Lmax from the loudest launch (Castor 120) may reach approximately 90.8 dBA at the traditional Steller sea lion haulout (approximately 3.5 mi from the launch site) which is a similar distance to the northern beaches where E:\FR\FM\24MRR1.SGM 24MRR1 Federal Register / Vol. 82, No. 56 / Friday, March 24, 2017 / Rules and Regulations jstallworth on DSK7TPTVN1PROD with RULES harbor seals haul out (approximately 4 mi from the launch site). Based on this recorded level and the fact that audible launch noise will be very short in duration, any response will be behavioral in nature and harbor seals are not expected to incur PTS or TTS. No injury or mortality of harbor seals is anticipated, nor is any authorized. Therefore, NMFS plans to authorize harbor seal take, by Level B harassment only, incidental to launches from PSCA. As discussed above, security overflights associated with a launch will 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 will increase altitude and note the number of animals reacting to the plane. These data will be included in AAC’s marine mammal reports. Changes to the Proposed Regulations As a result of clarifying discussions with AAC we made certain changes to the proposed regulations as described here. These changes are considered minor and do not affect any of our preliminary determinations. Mitigation Measures 2, 3, and 4 were moved into the ‘‘Monitoring and Reporting’’ section and combined with relevant monitoring measures. In the ‘‘Monitoring and Reporting’’ section, we clarified that AAC will only conduct quarterly surveys, and not five surveys, in the event that no launch occurs during a calendar year. The proposed rule may have implied that AAC would conduct an additional survey if no launches occurred that year. However, AAC is already conducting quarterly surveys regardless of the numbers of launches each year at PSCA. It was determined that an additional (or fifth survey) was not necessary as the biological monitoring would be adequately covered under quarterly surveys. The proposed rule stated that AAC would monitor ‘‘three’’ of the pinniped haulouts. However, the specific number of haulout locations was removed to ensure that all pinniped haulouts would be monitored during the five-year period covered by these regulations if haulout dynamics change (i.e., there are additional or fewer haulouts documented in the future). For reporting purposes, we eliminated the need for AAC to send reports 90 days after each launch. After further consideration, NMFS believes annual reports and a five-year report adequately provide the necessary biological monitoring data, and requiring an additional report 90 days after each VerDate Sep<11>2014 13:12 Mar 23, 2017 Jkt 241001 launch would be excessive. NMFS also eliminated the need for AAC to contact the NMFS’s Alaska Regional Office two weeks prior to each launch. After coordinating with NMFS’s Alaska Regional Office, it was agreed upon that it was unnecessary for AAC as they already have methods for informing the public of launches. Analyses and 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., populationlevel 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, injury, serious injury, or mortality because: PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 15001 (1) 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; (2) 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 will be any longterm 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; (3) Overall, rocket launch activities from PSCA are not be expected to cause any impacts to habitats used by marine mammals, including pinniped haulouts, or to their food sources or impact their survival, and; (4) 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). 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 finds that space vehicle and missile launch operations at the PSCA will have a negligible impact on the affected marine mammal species or stock. Small Numbers Analysis The number of authorized takes is considered small relative to the relevant stocks or populations, eight percent for harbor seals. However, it is important to note that the number of expected takes does not necessarily represent 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 planned activity). This is especially likely in the case of species that have limited ranges and that have site fidelity to a location within the E:\FR\FM\24MRR1.SGM 24MRR1 15002 Federal Register / Vol. 82, No. 56 / Friday, March 24, 2017 / Rules and Regulations jstallworth on DSK7TPTVN1PROD with RULES 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 planned activities. Therefore, the number of exposures to Level B harassment over the course of the 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 incidents of harassment of harbor seals during the period of validity of the 5-year regulations is expected to be 1,575. We therefore use this estimate of 1,575 incidents of harassment 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 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 of Ugak Island 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 VerDate Sep<11>2014 13:12 Mar 23, 2017 Jkt 241001 harbor seals 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 consulted (as they have for previous regulations) with the Alaska Native Harbor Seal Commission as well as the Kodiak communities for the issuance of final regulations to ensure project activities do not impact relevant subsistence uses of marine mammals implicated by this action. AAC met with the Kodiak Tribal Council in October 2016 during their quarterly meeting and briefed them on AAC’s activity and AAC’s request for their concurrence on the lack of impact on subsistence activities from space and vehicle launch operations. The Kodiak Regional Subsistence Director concurred there would not be negative impact to subsistence uses from AAC’s project activities. 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 have determined that the total taking of affected species or stocks will not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes. Adaptive Management The regulations governing the take of marine mammals incidental to space and vehicle launch operations contain an adaptive management component. The reporting requirements associated with this rule are designed to provide NMFS with monitoring data from the previous year to allow consideration of whether any changes are appropriate. The use of adaptive management allows NMFS to consider new information from different sources to determine (with input from AAC regarding practicability) on an annual basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications would have a reasonable likelihood of reducing adverse effects to marine mammals and if the measures are practicable. PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 AAC’s monitoring program (see ‘‘Monitoring and Reporting’’) will be managed adaptively. Changes to the monitoring program may be adopted if they are reasonably likely to better accomplish the MMPA monitoring goals described previously or may better answer the specific questions associated with the AAC’s monitoring plan. The following are some of the possible sources of applicable data to be considered through the adaptive management process: (1) Results from monitoring reports, as required by MMPA authorizations; (2) results from time-lapsed photography systems; and (3) any information which reveals that marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or subsequent LOAs. In addition, improved monitoring will better enable AAC and NMFS to determine if impacts from space vehicle and missile launch operations are having short-term and long-term impacts on the present day pinniped populations on Ugak Island. The timelapse photography system will be able to detect impacts (takes) from launch exposure, including the number of pinnipeds flushing at the haulout sites, while quarterly aerial surveys will aid in determining long-term trends of pinniped abundance. Endangered Species Act There is one marine mammal species under NMFS’s jurisdiction that is listed as endangered under the Endangered Species Act (ESA) with confirmed or possible occurrence in the action area, the Steller sea lion. NMFS and AAC consulted internally with NMFS’s Alaska Regional Office under the ESA on its issuance of regulations and subsequent LOAs to AAC. It was determined that the planned activities will not affect Steller sea lions; therefore, ESA consultation is not required. National Environmental Policy Act In the proposed rule, we described our plan to adopt FAA’s 2016 EA as necessary for the final issuance of the regulations and subsequent LOA(s). However, in compliance with NOAA policy, the National Environmental Policy Act (NEPA), and the Council on Environmental Quality Regulations (40 CFR parts 1500–1508), NMFS has now determined the issuance of the regulations and subsequent LOA(s) qualifies to be categorically excluded from NEPA review. This action is consistent with categories of activities identified in CE B4 of the Companion Manual for NOAA Administrative Order E:\FR\FM\24MRR1.SGM 24MRR1 Federal Register / Vol. 82, No. 56 / Friday, March 24, 2017 / Rules and Regulations 216–6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and we have not identified any extraordinary circumstances that will preclude this categorical exclusion. Classification Pursuant to the procedures established to implement Executive Order 12866, the Office of Management and Budget has determined that this 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 certified to the Chief Counsel for Advocacy of the Small Business Administration at the proposed rule stage that this rule will not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis is not required 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 (COI) subject to the requirements of the Paperwork Reduction Act (PRA) unless that COI displays a currently valid OMB control number. These requirements have been approved by OMB under control number 0648–0151 and include applications for regulations, subsequent LOAs, and reports. List of Subjects in 50 CFR Part 217 Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation. Dated: March 17, 2017. Alan D. Risenhoover, Acting Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. jstallworth on DSK7TPTVN1PROD with RULES For reasons set forth in the preamble, NMFS amends 50 CFR part 217 as follows: PART 217—REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS INCIDENTAL TO SPECIFIED ACTIVITIES 1. The authority citation for part 217 continues to read as follows: ■ Authority: 16 U.S.C. 1361 et seq., unless otherwise noted. ■ 2. Add subpart H to read as follows: VerDate Sep<11>2014 13:12 Mar 23, 2017 Jkt 241001 Subpart H—Taking of Marine Mammals Incidental to Space Vehicle and Missile Launches Sec. 217.70 Specified activity and specified geographical region. 217.71 Effective dates. 217.72 Permissible methods of taking. 217.73 Prohibitions. 217.74 Mitigation. 217.75 Requirements for monitoring and reporting. 217.76 Letters of Authorization. 217.77 Renewals and modifications of Letters of Authorization. 217.78 [Reserved] 217.79 [Reserved] § 217.70 Specified activity and specified geographical region. (a) Regulations in this subpart apply only to the Alaska Aerospace Corporation (AAC) and those persons it authorizes to conduct activities on its behalf for the taking of marine mammals that occurs in the area identified in paragraph (b) of this section and that occurs incidental to conducting up to nine space vehicle launches each year from PSCA, for a total of 45 launches over the period of these regulations. (b) The taking of marine mammals by AAC may be authorized in a Letter of Authorization (LOA) only if it occurs at the Pacific Spaceport Alaska Complex (PSCA) on Kodiak Island, AK. § 217.71 Effective dates. Regulations in this subpart are effective from April 24, 2017, through April 25, 2022. § 217.72 Permissible methods of taking. Under an LOA issued pursuant to § 216.106 of this chapter and § 217.70, the Holder of the LOA (hereinafter ‘‘AAC’’) and its contractors may incidentally, but not intentionally, take harbor seals (Phoca vitulina) by Level B harassment in the course of conducting space vehicle and missile launch operations within the area described in § 217.70(b), provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOA. § 217.73 Prohibitions. Notwithstanding authorization under these regulations and any LOA issued under § 216.106 of this chapter and § 217.76, no person conducting the activities described in § 217.70 may: (a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or an LOA issued under § 216.106 of this chapter and § 217.76; (b) Take any marine mammal not specified in such LOA; PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 15003 (c) Take any marine mammal specified in such LOA in any manner other than as specified; (d) Take a marine mammal specified in such LOA if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or (e) Take a marine mammal specified in such LOA if NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses. § 217.74 Mitigation. (a) When conducting operations identified in § 217.70(a), the mitigation measures contained in any LOA issued under § 216.106 of this chapter and § 217.76 must be implemented. These mitigation measures include: (1) Security overflights immediately associated with the launch shall not approach pinniped haulouts on Ugak Island by closer than 0.25 mi (0.4 km), and shall 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; and (2) All Castor 120 equivalent launches shall be conducted at LP1. (b) [Reserved] § 217.75 Requirements for monitoring and reporting. (a) If the authorized activity identified in § 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 § 217.70(b), then the Holder of the LOA must notify NMFS Office of Protected Resources and NMFS Alaska Regional Office, within 48 hours of the injury or death. (b) Holders of LOAs must designate qualified, on-site individuals, technical experts who have implemented timelapsed photography technology for wildlife studies, approved in advance by NMFS Office of Protected Resources to: (1) Install time-lapsed photography systems designed to monitor pinniped abundance and detect pinniped responses to rocket launches at each of the pinniped haulout locations around Ugak Island. The number of camera systems, equipment capabilities, placement of the systems to be used, and the daily photo frequency shall be determined through a cooperative effort between AAC, NMFS Office of Protected Resources, and the technical experts; (2) Ensure the time-lapsed photography systems shall be in place E:\FR\FM\24MRR1.SGM 24MRR1 jstallworth on DSK7TPTVN1PROD with RULES 15004 Federal Register / Vol. 82, No. 56 / Friday, March 24, 2017 / Rules and Regulations and operating in locations that allow for visual monitoring of all 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 pinniped haulouts and total pinniped abundance during the launches; (4) Monitor and review the effectiveness of these systems, comparing the results to aerial surveys for pinniped presence, abundance, behavior, and re-occupation time from the data obtained from the time-lapsed photography systems for the first five launches and report results to NMFS Office of Protected Resources within 90 days (after the 5th launch); and (5) Conduct a study in coordination with NMFS Office of Protected Resources 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 shall determine the need to continue aerial surveys. The study shall be conducted through a minimum of five launches. (c) AAC shall conduct one pre-launch aerial survey and one post-launch aerial survey for each launch to obtain data on pinniped presence, abundance, and behavior at all pinniped haulouts. Results of these pre- and post-launch surveys shall be reported to NMFS Office of Protected Resources once as part of the year-end summary report required under paragraph (e) of this section. (d) AAC shall 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 capturing all pinniped haulouts. Results of these quarterly surveys shall be reported to NMFS Office of Protected Resources once as part of the year-end summary report required under paragraph (e) of this section. (e) A year-end summary report must be submitted on March 1 of each year to NMFS Office of Protected Resources that shall include results of the pre- and post-launch aerial surveys, quarterly aerial survey 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. This report must contain the following information: (1) Date(s) and time(s) of the launches; VerDate Sep<11>2014 13:12 Mar 23, 2017 Jkt 241001 (2) Locations 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 pre- and post-launch aerial surveys, quarterly aerial surveys, and the timelapsed photography 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 postlaunch 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. (f) A final 5-year report must be submitted to NMFS Office of Protected Resources at least 90 days prior to expiration of these regulations if new regulations are sought or 180 days after expiration of regulations. This report shall: (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 (g) AAC shall conduct quarterly aerial surveys in the event no launch occurs during a calendar year. These quarterly surveys shall be reported in the yearend summary report as described in paragraph (e) of this section; and (h) If NMFS believes that 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 shall be reviewed in cooperation with NMFS, and, if necessary, appropriate changes may be made through modifications to a given LOA, prior to PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 conducting the next launch of the same vehicle under that LOA. § 217.76 Letters 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 § 217.77. (e) The LOA shall set forth: (1) The number of marine mammals, by species, 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 shall be consistent with the findings made for the total taking allowable under these regulations. (g) Notice of issuance or denial of an LOA shall be published in the Federal Register within 30 days of a determination. § 217.77 Renewals and modifications of Letters of Authorization. (a) An LOA issued under § 216.106 of this chapter and § 217.76 for the activity identified in § 217.70(a) shall be renewed or modified upon request by the applicant, provided that: (1) The 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 paragraph (c)(1) of this section), 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 request by the applicant that includes changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to E:\FR\FM\24MRR1.SGM 24MRR1 jstallworth on DSK7TPTVN1PROD with RULES Federal Register / Vol. 82, No. 56 / Friday, March 24, 2017 / Rules and Regulations the adaptive management provision in paragraph (c)(1) of this section) 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 of the change, and solicit public comment before issuing the LOA. (c) An LOA issued under § 216.106 of this chapter and § 217.76 for the activity identified in § 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 any LOA issued under §§ 216.106 and 217.76 of this chapter. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS shall 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 §§ 217.70(b) and 217.72(a), an LOA may be modified without prior notice or opportunity for public comment. A notice shall be published in the Federal Register within 30 days of the action. § 217.78 [Reserved] § 217.79 [Reserved] [FR Doc. 2017–05663 Filed 3–23–17; 8:45 am] BILLING CODE 3510–22–P VerDate Sep<11>2014 13:12 Mar 23, 2017 Jkt 241001 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 130403320–4891–02] RIN 0648–XF283 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; SnapperGrouper Resources of the South Atlantic; 2017–2018 Recreational Fishing Season for Black Sea Bass National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; recreational season length. AGENCY: NMFS announces that the length of the recreational season for black sea bass in the exclusive economic zone (EEZ) of the South Atlantic will extend throughout the 2017–2018 fishing year. Announcing the length of recreational season for black sea bass is one of the accountability measures (AMs) for the recreational sector. This announcement allows recreational fishers to maximize their opportunity to harvest the recreational annual catch limit (ACL) for black sea bass during the fishing season while managing harvest to protect the black sea bass resource. DATES: This rule is effective from 12:01 a.m., local time, April 1, 2017, until 12:01 a.m., local time, April 1, 2018, unless changed by subsequent notification in the Federal Register. FOR FURTHER INFORMATION CONTACT: Nikhil Mehta, NMFS Southeast Regional Office, telephone: 727–824–5305, email: nikhil.mehta@noaa.gov. SUPPLEMENTARY INFORMATION: The snapper-grouper fishery includes black sea bass in the South Atlantic and is managed under the Fishery Management Plan for the SnapperGrouper Fishery of the South Atlantic Region (FMP). The South Atlantic Fishery Management Council prepared the FMP and the FMP is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. The final rule implementing Regulatory Amendment 14 to the FMP revised the recreational fishing year for black sea bass to be April 1 through March 31 (79 FR 66316, November 7, 2014). The final rule also revised the recreational AMs for black sea bass. Prior to the start of each recreational SUMMARY: PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 15005 fishing year on April 1, NMFS will project the length of the upcoming recreational fishing season based on when NMFS projects the recreational ACL to be met and will announce the recreational season end date in the Federal Register (50 CFR 622.193(e)(2)). The purpose of this AM is to have a more predictable recreational season length while still constraining harvest at or below the recreational ACL to protect the stock from experiencing adverse biological consequences. NMFS estimates that recreational landings for the 2017–2018 fishing year will be less than the 2017–2018 recreational ACL. To make this determination, NMFS compared landings in the last 3 fishing years to the 2017–2018 fishing year’s recreational ACL of 848,455 lb (384,853 kg), gutted weight, 1,001,177 lb (454,126 kg), round weight. The recreational ACL was set through the final rule for Regulatory Amendment 19 to the FMP on September 23, 2013 (78 FR 58249). Landings in each of the past 3 years are below the 2017–2018 recreational ACL; therefore, recreational landings in 2017– 2018 are projected to be less than the 2017–2018 recreational ACL. Accordingly, the season end date for recreational fishing for black sea bass in the South Atlantic EEZ, south of 35°15.9′ N. lat., is the end of the 2017– 2018 fishing year, March 31, 2018. Classification The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of South Atlantic black sea bass and is consistent with the Magnuson-Stevens Act and other applicable laws. This action is taken under 50 CFR 622.193(e)(2) and is exempt from review under Executive Order 12866. These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment. This action responds to the best scientific information available. The Assistant Administrator for Fisheries, NOAA (AA), finds that the need to immediately implement the notice of the recreational season length constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), because prior notice and opportunity for public comment on this temporary rule is unnecessary. Such procedures are unnecessary, because the rule establishing the AM E:\FR\FM\24MRR1.SGM 24MRR1

Agencies

[Federal Register Volume 82, Number 56 (Friday, March 24, 2017)]
[Rules and Regulations]
[Pages 14996-15005]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-05663]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 160809705-7102-02]
RIN 0648-BG25


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Space Vehicle and Missile Launch 
Operations

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

ACTION: Final rule.

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SUMMARY: NMFS, upon request from the Alaska Aerospace Corporation 
(AAC), hereby issues regulations to govern the incidental taking of 
marine mammals incidental to space vehicle and missile launch 
operations at the Pacific Spaceport Complex Alaska (PSCA) on Kodiak 
Island, Alaska, over the course of five years (2017-2022). These 
regulations, which allow for the issuance of Letters of Authorization 
(LOA) for the incidental take of marine mammals during the described 
activities and specified timeframes, prescribe the permissible methods 
of taking and other means of effecting the least practicable adverse 
impact on marine mammal species or stocks and their habitat, and 
establish requirements pertaining to the monitoring and reporting of 
such taking.

DATES: Effective from April 24, 2017, through April 25, 2022.

ADDRESSES: A copy of AAC's application and 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 below (see FOR FURTHER INFORMATION CONTACT).

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

SUPPLEMENTARY INFORMATION: 

Purpose and Need for Regulatory Action

    These regulations, issued under the authority of the Marine Mammal 
Protection Act (MMPA) (16 U.S.C. 1361 et seq.), establish a framework 
for authorizing the take of marine mammals incidental to space vehicle 
and missile launch operations at the PSCA. We received an application 
from AAC requesting five-year regulations and authorization to take one 
species of marine mammal. Take may occur by Level B harassment only, 
incidental to the space vehicle and missile launches (also referred to 
as rocket launches). The regulations are valid for five years from the 
date of issuance. Please see ``Background'' below for definitions of 
harassment.

Legal Authority for the Regulatory Action

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) 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 final rule containing five-year regulations, and for any 
subsequent Letters of Authorization. As directed by this legal 
authority, this final rule contains mitigation, monitoring, and 
reporting requirements.

Summary of Major Provisions Within the Regulations

    The following provides a summary of some of the major provisions 
within the rulemaking for AAC's rocket launch activities. We have 
determined that AAC's adherence to the planned mitigation, monitoring, 
and reporting measures listed below will achieve the least practicable 
adverse impact on the affected marine mammals. They include:
     Required monitoring of Ugak Island to detect the presence 
and abundance of marine mammals before and after deployment of space 
vehicle and missile launch operations.
     Required monitoring of Ugak Island to survey the presence 
and abundance of marine mammals quarterly (space vehicle and missile 
launch operations).
     Required mitigation using time-lapsed photography to 
determine the immediate response impacts to marine mammals during space 
vehicle and missile launch operations, particularly during the pupping 
season (should space vehicle and missile launch operations occur during 
that time).

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    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.''
    NMFS has defined ``unmitigable adverse impact'' in 50 CFR 216.103 
as an impact resulting from the specified activity:
    (1) That is likely to reduce the availability of the species to a 
level insufficient for a harvest to meet subsistence needs by: (i) 
Causing the marine mammals to abandon or avoid hunting areas; (ii) 
directly displacing subsistence users; or (iii) placing physical 
barriers between the marine

[[Page 14997]]

mammals and the subsistence hunters; and
    (2) That cannot be sufficiently mitigated by other measures to 
increase the availability of marine mammals to allow subsistence needs 
to be met.
    Except with respect to certain activities not pertinent here, 
section 3(18) of 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 space 
vehicle and missile launch operations 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 30 days 
related to AAC's request. On November 10, 2016, we received a revised 
final application. We received comments from the Marine Mammal 
Commission (MMC), which we considered during development of the 
proposed rulemaking (82 FR 6456; January 19, 2017) and which are 
available online at: www.nmfs.noaa.gov/pr/permits/incidental/research.htm.
    AAC requests taking of small numbers of marine mammals incidental 
to space vehicle and missile launch operations; such operations produce 
noise 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). These regulations are valid for five years 
from the date of issuance.

Description of the Specified Activity

Overview

    PSCA 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 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 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.
    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 five-year 
period of validity of the 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.
    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 estimated 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. Any 
disturbances to pinnipeds from space vehicle and missile launch 
operations will span 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. 
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 consistently in recent years) used by 
Steller sea lions (Eumetopias jubatus) as a haulout, 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

    A detailed description of AAC's planned activities was provided in 
our notice of proposed rulemaking (82 FR 6456; January 19, 2017) and is 
not repeated here. No changes have been made to the specified 
activities described therein.
    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 these regulations.

[[Page 14998]]



                                                      Table 1--Past and Anticipated Launch Vehicles
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                      Previously launched & recorded at PSCA (also potentially launched in future)
---------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         Distance to     Motor
             Launch designator                       Launch vehicle             Date        haulout     diameter    SEL  (dBA)  Lmax  (dBA)     LPeak
                                                                                             (mi)       (ft) \1\                                (dBA)
--------------------------------------------------------------------------------------------------------------------------------------------------------
QRLV.......................................  .............................      11/5/98      \2\ 3.5          4.3         88.4         78.2         97.0
QRLV.......................................  .............................      9/15/99      \2\ 3.5          4.3         92.2         81.5        101.5
QRLV.......................................  .............................      3/22/01      \2\ 3.5          4.3         80.3         73.3         87.2
Athena.....................................  Castor 120...................      9/29/01      \2\ 3.5         7.75        101.4         90.8        115.9
FT-04-1....................................  Polaris A-3 STARS............      2/23/06          4.1          4.5         92.3         86.0        109.0
FTG-02.....................................  Polaris A-3 STARS............      9/01/06          4.1          4.5         90.1         83.1        105.6
FTG-03a....................................  Polaris A-3 STARS............      9/28/07          4.1          4.5         91.4         84.2        107.3
FTX-03.....................................  Polaris A-3 STARS............      7/18/08          4.1          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.

Comments and Responses

    We published a notice of proposed rulemaking in the Federal 
Register on January 19, 2017 (82 FR 6456) and requested comments and 
information from the public. During the thirty-day comment period, we 
received one letter from the Marine Mammal Commission (Commission). The 
comments and our responses are provided here, and the comments have 
been posted on the Internet at: www.nmfs.noaa.gov/pr/permits/incidental/research.htm. Please see the comment letter for the full 
rationale behind the recommendations we respond to below.
    Comment 1: The Commission recommends that NMFS require AAC to avoid 
conducting launches during the harbor seal pupping season from May 15 
through June 30, except when launches are necessary for human safety or 
national security purposes or are necessary to achieve space vehicle 
launch trajectories to meet mission objectives.
    Response: It is unlikely that infrequent disturbance resulting from 
AAC's rocket launches will 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 seal 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.
    In addition, there is no potential for large-scale flushing events 
that will lead to serious injury or mortality for the harbor seals at 
the northern end of Ugak Island because, historically, the number of 
harbor seals hauled out near the site is less than 30 individuals, and 
these animals do not stampede, but flush into the water. Harbor seals 
are a species that does not cause accidental mortality of their pups 
when the adults flush into the water even during the pupping season.
    Given the infrequent (approximately nine times per year) and brief 
(approximately one minute as heard from Ugak Island) nature of these 
sounds, as well as the characteristics of mother/pup bonding as 
described above and the absence of potential for mortality during 
flushing events (if they occur), NMFS believes that a measure to 
restrict launches during the pupping season is unnecessary to reach the 
least practicable adverse impact on the affected marine mammals, when 
considered in context of practicability for the applicant. The 
applicant could potentially be forced to schedule their client to 
another time period that may result in additional costs for both the 
client and applicant if they have to avoid the pupping season. Should 
launch monitoring or quarterly aerial surveys indicate that 
unanticipated impacts to harbor seal pups or impacts to the 
distribution, size, or productivity of pinniped populations are 
occurring, the adaptive management component of this rulemaking can 
allow for adjustments to be made to the required mitigation measures.

Description of the Sound Sources

    A detailed description of sound sources was provided in our notice 
of proposed rulemaking (82 FR 6456; January 19, 2017) and is not 
repeated here. No changes have been made to the specified activities 
described therein.

Description of Marine Mammals in the Area of the Specified Activity

    We previously reviewed AAC's species descriptions--which summarized 
available information regarding status, trends, and distribution of the 
potentially affected species--for accuracy and completeness and 
referred readers to Sections 4 and 5 of AAC's application, as well as 
to NMFS's Stock Assessment Reports (SARs; www.nmfs.noaa.gov/pr/sars/). 
We also provided information related to all species with expected 
potential for take around Kodiak and Ugak Islands where AAC plans to 
conduct the specified activities, summarizing information related to 
the population or stock. Please see Tables 2 and 3 in our notice of 
proposed rulemaking (82 FR 6456; January 19, 2017) for that 
information, which is not reprinted here.

[[Page 14999]]

    The only marine mammals anticipated to be affected by the specified 
activities, and for which take by Level B harassment is authorized, are 
harbor seals hauled out on Ugak Island. Therefore, they are the only 
marine mammal discussed further in these regulations.

Potential Effects of the Specified Activity on Marine Mammals

    A detailed description of the specified activity on marine mammals 
was provided in our notice of proposed rulemaking (82 FR 6456; January 
19, 2017) and is not repeated here. No changes have been made to the 
specified activities described therein.
    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 will 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 for the 
harbor seals at the northern end of Ugak Island because, historically, 
the number of harbor seals hauled out near the site 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 (Lmax measured at 90.8 dBA), 
NMFS anticipates that if seals are disturbed there may be a startle 
response and flush into the water. Harbor seals will likely return to 
haulout sites on Ugak Island within 2 to 55 minutes of the launch 
disturbance. Based on AAC's measurements as described for the Castor 
120 above, any response that will occur will be behavioral. No 
permanent threshold shift (PTS) or temporary threshold shift (TTS) is 
anticipated. 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 monitoring and 
mitigation measures described later in this document (see the 
``Mitigation'' and ``Monitoring and Reporting'' sections) which, as 
noted, should effect the least adverse impact practicable on affected 
marine mammal species and stocks.

Anticipated Effects on Marine Mammal Habitat

    Solid fuel rocket boosters will fall into the ocean away from any 
known or potential haulouts. All sonic booms that reach the earth's 
surface will be expected to occur over open ocean beyond the OCS. 
Airborne launch sounds will mostly reflect or refract from the water 
surface and, except for sounds within a cone of approximately 26 
degrees directly below the launch vehicle, will not penetrate into the 
water column. The sounds that will penetrate will not persist in the 
water for more than a few seconds. Overall, NMFS does not expect rocket 
launch activities from PSCA to cause any impacts to habitats used by 
marine mammals, including pinniped haulouts, or to their food sources.

Mitigation

    In order to issue an incidental take authorization (ITA) under 
section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible 
methods of taking pursuant to such activity and other means of 
effecting the least practicable adverse impact on such species or stock 
and its habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance, and on the availability of 
such species or stock for subsistence uses. NMFS's implementing 
regulations require applicants for ITAs to include information about 
the availability and feasibility (economic and technological) of 
equipment, methods, and manner of conducting such activity or other 
means of effecting the least practicable adverse impact upon the 
affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
    To minimize impacts on pinnipeds at haulout sites, the AAC will 
continue the following mitigation measures, as implemented during the 
previous ITAs, designed to minimize impact to affected species and 
stocks: (1) Security overflights immediately associated with the launch 
will not approach pinniped haulouts on Ugak Island by closer than 0.25 
mi (0.4 km), and will 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; and (2) All Castor 120-equivalent launches (i.e., the loudest 
rocket used by AAC) will be conducted at a launch pad equipped with a 
concrete and water-filled flame trench in order to direct smoke away 
from the launch pad, but also to absorb light and noise at their 
respective peaks (i.e., lift-off).
    NMFS has carefully evaluated AAC's mitigation measures and 
considered their effectiveness in past implementation to determine 
whether they are likely to effect the least practicable adverse impact 
on the affected marine mammal species and stocks and their habitat. Our 
evaluation of potential measures included consideration of the 
following factors in relation to one another: (1) The manner and the 
degree to which the successful implementation 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 mitigation measures take scientific 
studies (Richardson et al., 2005) of overflight effects on pinnipeds 
into consideration. Lastly, the adaptive nature of the mitigation 
measures allows 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 measures, as well as 
other measures considered by NMFS, NMFS has determined that the 
mitigation measures provide the means of effecting 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.

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

[[Page 15000]]

``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 in the planned action area.
    Any monitoring requirement we prescribe should improve our 
understanding of one or more of the following:
     Occurrence of marine mammal species in action area (e.g., 
presence, abundance, distribution, density).
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving, or feeding areas).
     Individual responses to acute stressors, or impacts of 
chronic exposures (behavioral or physiological).
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of an individual; or (2) population, 
species, or stock.
     Effects on marine mammal habitat and resultant impacts to 
marine mammals.
     Mitigation and monitoring effectiveness.
    AAC will implement the following for monitoring and reporting:
     Install time-lapsed photography systems designed to 
monitor pinniped abundance and detect pinniped responses to rocket 
launches at all pinniped haulout locations around Ugak Island. 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 the technical 
experts (qualified, on-site experts who have implemented time-lapsed 
photography technology for wildlife studies);
     Ensure the time-lapsed photography systems will be in 
place and operating in locations that allow for visual monitoring of 
all pinniped haulouts during launches;
     Relocate the time-lapsed photography systems in 
cooperation with NMFS after five launches if the system is not 
accurately capturing all pinniped haulouts and total pinniped abundance 
during the launches;
     Monitor and review the effectiveness of these systems, 
comparing the results to aerial surveys for pinniped presence, 
abundance, behavior, and re-occupation time from the data obtained from 
the time-lapsed photography systems for the first five launches and 
report results to NMFS within 90 days (after the 5th launch);
     Conduct a study in coordination with NMFS 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;
     Conduct one pre-launch aerial survey and one post-launch 
aerial survey for each launch to obtain data on pinniped presence, 
abundance, and behavior capturing all pinniped haulouts;
     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 capturing all pinniped haulouts. Results 
of these quarterly surveys will be reported once as part of the year-
end summary report;
     Conduct quarterly surveys in the event no launch occurs 
during a calendar year; and
     If launch monitoring or quarterly aerial surveys indicate 
that the distribution, size, or productivity of the potentially 
affected pinniped populations has been affected due to the specified 
activity, the launch procedures and the monitoring methods will be 
reviewed, in cooperation with NMFS, and, if necessary, appropriate 
changes may be made through modifications to a given LOA, prior to 
conducting the next launch of the same vehicle under that LOA.
    Data collected and reported will, at a minimum, include number of 
seals per haulout, by age class when possible, noting if any 
disturbance behavior is noted from aircraft presence.
    If a freshly dead or seriously injured pinniped is found during 
post-launch monitoring, the incident must be reported within 48 hours 
to the NMFS Office of Protected Resources and the NMFS Alaska Regional 
Office.

Previous Monitoring

    A detailed description of AAC's previous monitoring was provided in 
our notice of proposed rulemaking (82 FR 6456; January 19, 2017) and is 
not repeated here. No changes have been made to the specified 
activities described therein.

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 five-year period 
covered by these regulations. Annually, AAC requests nine launches to 
be authorized. AAC estimates that no more than one launch will occur 
over a 4-week period, and it is likely the frequency of launches will 
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 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. 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. Launches may occur at any time of the year, 
so any age classes and gender may be taken.
    The Lmax from the loudest launch (Castor 120) may reach 
approximately 90.8 dBA at the traditional Steller sea lion haulout 
(approximately 3.5 mi from the launch site) which is a similar distance 
to the northern beaches where

[[Page 15001]]

harbor seals haul out (approximately 4 mi from the launch site). Based 
on this recorded level and the fact that audible launch noise will be 
very short in duration, any response will be behavioral in nature and 
harbor seals are not expected to incur PTS or TTS. No injury or 
mortality of harbor seals is anticipated, nor is any authorized. 
Therefore, NMFS plans to authorize harbor seal take, by Level B 
harassment only, incidental to launches from PSCA.
    As discussed above, security overflights associated with a launch 
will 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 will 
increase altitude and note the number of animals reacting to the plane. 
These data will be included in AAC's marine mammal reports.

Changes to the Proposed Regulations

    As a result of clarifying discussions with AAC we made certain 
changes to the proposed regulations as described here. These changes 
are considered minor and do not affect any of our preliminary 
determinations. Mitigation Measures 2, 3, and 4 were moved into the 
``Monitoring and Reporting'' section and combined with relevant 
monitoring measures. In the ``Monitoring and Reporting'' section, we 
clarified that AAC will only conduct quarterly surveys, and not five 
surveys, in the event that no launch occurs during a calendar year. The 
proposed rule may have implied that AAC would conduct an additional 
survey if no launches occurred that year. However, AAC is already 
conducting quarterly surveys regardless of the numbers of launches each 
year at PSCA. It was determined that an additional (or fifth survey) 
was not necessary as the biological monitoring would be adequately 
covered under quarterly surveys.
    The proposed rule stated that AAC would monitor ``three'' of the 
pinniped haulouts. However, the specific number of haulout locations 
was removed to ensure that all pinniped haulouts would be monitored 
during the five-year period covered by these regulations if haulout 
dynamics change (i.e., there are additional or fewer haulouts 
documented in the future).
    For reporting purposes, we eliminated the need for AAC to send 
reports 90 days after each launch. After further consideration, NMFS 
believes annual reports and a five-year report adequately provide the 
necessary biological monitoring data, and requiring an additional 
report 90 days after each launch would be excessive. NMFS also 
eliminated the need for AAC to contact the NMFS's Alaska Regional 
Office two weeks prior to each launch. After coordinating with NMFS's 
Alaska Regional Office, it was agreed upon that it was unnecessary for 
AAC as they already have methods for informing the public of launches.

Analyses and 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, injury, serious injury, or mortality 
because:
    (1) 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;
    (2) 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 will 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;
    (3) Overall, rocket launch activities from PSCA are not be expected 
to cause any impacts to habitats used by marine mammals, including 
pinniped haulouts, or to their food sources or impact their survival, 
and;
    (4) 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).
    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 finds that space vehicle and missile launch operations 
at the PSCA will have a negligible impact on the affected marine mammal 
species or stock.

Small Numbers Analysis

    The number of authorized takes is considered small relative to the 
relevant stocks or populations, eight percent for harbor seals. 
However, it is important to note that the number of expected takes does 
not necessarily represent 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 planned activity). This is especially likely in the case 
of species that have limited ranges and that have site fidelity to a 
location within the

[[Page 15002]]

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 planned 
activities. Therefore, the number of exposures to Level B harassment 
over the course of the 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 incidents of harassment of harbor seals during the period of 
validity of the 5-year regulations is expected to be 1,575. We 
therefore use this estimate of 1,575 incidents of harassment 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 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 of Ugak Island 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 
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 consulted (as they have for previous regulations) with the 
Alaska Native Harbor Seal Commission as well as the Kodiak communities 
for the issuance of final regulations to ensure project activities do 
not impact relevant subsistence uses of marine mammals implicated by 
this action. AAC met with the Kodiak Tribal Council in October 2016 
during their quarterly meeting and briefed them on AAC's activity and 
AAC's request for their concurrence on the lack of impact on 
subsistence activities from space and vehicle launch operations. The 
Kodiak Regional Subsistence Director concurred there would not be 
negative impact to subsistence uses from AAC's project activities.
    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 have determined that the total taking of affected species 
or stocks will not have an unmitigable adverse impact on the 
availability of such species or stocks for taking for subsistence 
purposes.

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
space and vehicle launch operations contain an adaptive management 
component.
    The reporting requirements associated with this rule are designed 
to provide NMFS with monitoring data from the previous year to allow 
consideration of whether any changes are appropriate. The use of 
adaptive management allows NMFS to consider new information from 
different sources to determine (with input from AAC regarding 
practicability) on an annual basis if mitigation or monitoring measures 
should be modified (including additions or deletions). Mitigation 
measures could be modified if new data suggests that such modifications 
would have a reasonable likelihood of reducing adverse effects to 
marine mammals and if the measures are practicable.
    AAC's monitoring program (see ``Monitoring and Reporting'') will be 
managed adaptively. Changes to the monitoring program may be adopted if 
they are reasonably likely to better accomplish the MMPA monitoring 
goals described previously or may better answer the specific questions 
associated with the AAC's monitoring plan.
    The following are some of the possible sources of applicable data 
to be considered through the adaptive management process: (1) Results 
from monitoring reports, as required by MMPA authorizations; (2) 
results from time-lapsed photography systems; and (3) any information 
which reveals that marine mammals may have been taken in a manner, 
extent, or number not authorized by these regulations or subsequent 
LOAs.
    In addition, improved monitoring will better enable AAC and NMFS to 
determine if impacts from space vehicle and missile launch operations 
are having short-term and long-term impacts on the present day pinniped 
populations on Ugak Island. The time-lapse photography system will be 
able to detect impacts (takes) from launch exposure, including the 
number of pinnipeds flushing at the haulout sites, while quarterly 
aerial surveys will aid in determining long-term trends of pinniped 
abundance.

Endangered Species Act

    There is one marine mammal species under NMFS's jurisdiction that 
is listed as endangered under the Endangered Species Act (ESA) with 
confirmed or possible occurrence in the action area, the Steller sea 
lion. NMFS and AAC consulted internally with NMFS's Alaska Regional 
Office under the ESA on its issuance of regulations and subsequent LOAs 
to AAC. It was determined that the planned activities will not affect 
Steller sea lions; therefore, ESA consultation is not required.

National Environmental Policy Act

    In the proposed rule, we described our plan to adopt FAA's 2016 EA 
as necessary for the final issuance of the regulations and subsequent 
LOA(s). However, in compliance with NOAA policy, the National 
Environmental Policy Act (NEPA), and the Council on Environmental 
Quality Regulations (40 CFR parts 1500-1508), NMFS has now determined 
the issuance of the regulations and subsequent LOA(s) qualifies to be 
categorically excluded from NEPA review. This action is consistent with 
categories of activities identified in CE B4 of the Companion Manual 
for NOAA Administrative Order

[[Page 15003]]

216-6A, which do not individually or cumulatively have the potential 
for significant impacts on the quality of the human environment and we 
have not identified any extraordinary circumstances that will preclude 
this categorical exclusion.

Classification

    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
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 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration at the proposed rule stage that this rule will not have 
a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis is not required 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 (COI) subject to the 
requirements of the Paperwork Reduction Act (PRA) unless that COI 
displays a currently valid OMB control number. These requirements have 
been approved by OMB under control number 0648-0151 and include 
applications for regulations, subsequent LOAs, and reports.

List of Subjects in 50 CFR Part 217

    Exports, Fish, Imports, Indians, Labeling, Marine mammals, 
Penalties, Reporting and recordkeeping requirements, Seafood, 
Transportation.

    Dated: March 17, 2017.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

    For reasons set forth in the preamble, NMFS amends 50 CFR part 217 
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 read as follows:

Subpart H--Taking of Marine Mammals Incidental to Space Vehicle and 
Missile Launches

Sec.
217.70 Specified activity and specified geographical region.
217.71 Effective dates.
217.72 Permissible methods of taking.
217.73 Prohibitions.
217.74 Mitigation.
217.75 Requirements for monitoring and reporting.
217.76 Letters of Authorization.
217.77 Renewals and modifications of Letters of Authorization.
217.78 [Reserved]
217.79 [Reserved]


Sec.  217.70   Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the Alaska Aerospace 
Corporation (AAC) and those persons it authorizes to conduct activities 
on its behalf for the taking of marine mammals that occurs in the area 
identified in paragraph (b) of this section and that occurs incidental 
to conducting up to nine space vehicle launches each year from PSCA, 
for a total of 45 launches over the period of these regulations.
    (b) The taking of marine mammals by AAC may be authorized in a 
Letter of Authorization (LOA) only if it occurs at the Pacific 
Spaceport Alaska Complex (PSCA) on Kodiak Island, AK.


Sec.  217.71   Effective dates.

    Regulations in this subpart are effective from April 24, 2017, 
through April 25, 2022.


Sec.  217.72   Permissible methods of taking.

    Under an LOA issued pursuant to Sec.  216.106 of this chapter and 
Sec.  217.70, the Holder of the LOA (hereinafter ``AAC'') and its 
contractors may incidentally, but not intentionally, take harbor seals 
(Phoca vitulina) by Level B harassment in the course of conducting 
space vehicle and missile launch operations within the area described 
in Sec.  217.70(b), provided the activity is in compliance with all 
terms, conditions, and requirements of the regulations in this subpart 
and the applicable LOA.


Sec.  217.73   Prohibitions.

    Notwithstanding authorization under these regulations and any LOA 
issued under Sec.  216.106 of this chapter and Sec.  217.76, no person 
conducting the activities described in Sec.  217.70 may:
    (a) 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;
    (b) Take any marine mammal not specified in such LOA;
    (c) Take any marine mammal specified in such LOA in any manner 
other than as specified;
    (d) Take a marine mammal specified in such LOA if NMFS determines 
such taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (e) Take a marine mammal specified in such LOA if NMFS determines 
such taking results in an unmitigable adverse impact on the species or 
stock of such marine mammal for taking for subsistence uses.


Sec.  217.74   Mitigation.

    (a) When conducting operations identified in Sec.  217.70(a), the 
mitigation measures contained in any LOA issued under Sec.  216.106 of 
this chapter and Sec.  217.76 must be implemented. These mitigation 
measures include:
    (1) Security overflights immediately associated with the launch 
shall not approach pinniped haulouts on Ugak Island by closer than 0.25 
mi (0.4 km), and shall 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; and
    (2) All Castor 120 equivalent launches shall be conducted at LP1.
    (b) [Reserved]


Sec.  217.75   Requirements for monitoring and reporting.

    (a) 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 NMFS Office of Protected 
Resources and NMFS Alaska Regional Office, within 48 hours of the 
injury or death.
    (b) Holders of LOAs must designate qualified, on-site individuals, 
technical experts who have implemented time-lapsed photography 
technology for wildlife studies, approved in advance by NMFS Office of 
Protected Resources to:
    (1) Install time-lapsed photography systems designed to monitor 
pinniped abundance and detect pinniped responses to rocket launches at 
each of the pinniped haulout locations around Ugak Island. The number 
of camera systems, equipment capabilities, placement of the systems to 
be used, and the daily photo frequency shall be determined through a 
cooperative effort between AAC, NMFS Office of Protected Resources, and 
the technical experts;
    (2) Ensure the time-lapsed photography systems shall be in place

[[Page 15004]]

and operating in locations that allow for visual monitoring of all 
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 pinniped haulouts and total pinniped abundance during the launches;
    (4) Monitor and review the effectiveness of these systems, 
comparing the results to aerial surveys for pinniped presence, 
abundance, behavior, and re-occupation time from the data obtained from 
the time-lapsed photography systems for the first five launches and 
report results to NMFS Office of Protected Resources within 90 days 
(after the 5th launch); and
    (5) Conduct a study in coordination with NMFS Office of Protected 
Resources 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 shall determine 
the need to continue aerial surveys. The study shall be conducted 
through a minimum of five launches.
    (c) AAC shall conduct one pre-launch aerial survey and one post-
launch aerial survey for each launch to obtain data on pinniped 
presence, abundance, and behavior at all pinniped haulouts. Results of 
these pre- and post-launch surveys shall be reported to NMFS Office of 
Protected Resources once as part of the year-end summary report 
required under paragraph (e) of this section.
    (d) AAC shall 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 capturing all pinniped haulouts. Results 
of these quarterly surveys shall be reported to NMFS Office of 
Protected Resources once as part of the year-end summary report 
required under paragraph (e) of this section.
    (e) A year-end summary report must be submitted on March 1 of each 
year to NMFS Office of Protected Resources that shall include results 
of the pre- and post-launch aerial surveys, quarterly aerial survey 
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. This report must contain the 
following information:
    (1) Date(s) and time(s) of the launches;
    (2) Locations 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 pre- and post-launch 
aerial surveys, quarterly aerial surveys, and the time-lapsed 
photography 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.
    (f) A final 5-year report must be submitted to NMFS Office of 
Protected Resources at least 90 days prior to expiration of these 
regulations if new regulations are sought or 180 days after expiration 
of regulations. This report shall:
    (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
    (g) AAC shall conduct quarterly aerial surveys in the event no 
launch occurs during a calendar year. These quarterly surveys shall be 
reported in the year-end summary report as described in paragraph (e) 
of this section; and
    (h) If NMFS believes that 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 
shall 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.


Sec.  217.76   Letters 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 shall set forth:
    (1) The number of marine mammals, by species, 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 shall be consistent with the findings made for the 
total taking allowable under these regulations.
    (g) Notice of issuance or denial of an LOA shall be published in 
the Federal Register within 30 days of a determination.


Sec.  217.77   Renewals and modifications of Letters 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) shall be renewed 
or modified upon request by the applicant, provided that:
    (1) The 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 paragraph (c)(1) 
of this section), 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 request by the applicant 
that includes changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to

[[Page 15005]]

the adaptive management provision in paragraph (c)(1) of this section) 
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 
of 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 
any LOA issued under Sec. Sec.  216.106 and 217.76 of this chapter.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
shall 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. 
A notice shall be published in the Federal Register within 30 days of 
the action.


Sec.  217.78   [Reserved]


Sec.  217.79  [Reserved]

[FR Doc. 2017-05663 Filed 3-23-17; 8:45 am]
 BILLING CODE 3510-22-P