Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Space Vehicle and Missile Launch Operations, 14996-15005 [2017-05663]
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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
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Table of Allotments.
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(b) * * *
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Channel No.
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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:
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Texas
Purpose and Need for Regulatory
Action
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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
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authorizing the take of marine mammals
incidental to space vehicle and missile
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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:
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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
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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
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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
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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
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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.
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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
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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
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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.
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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
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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
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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
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‘‘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
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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
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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
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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
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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:
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(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
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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
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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.
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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
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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.
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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:
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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;
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(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
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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;
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(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
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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
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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
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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:
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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
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]]>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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
