6456 Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Proposed Rules

American public, and we have assessed ACTION: Proposed rule; request for Availability the effects of this ANPRM to ensure that comments. A copy of AAC’s application and any it does not cause unnecessary obstacles supporting documents, as well as a list to foreign trade. Accordingly, this SUMMARY: NMFS has received an of the references cited in this document, rulemaking is consistent with Executive application, pursuant to the Marine may be obtained online at: Order 13609 and PHMSA’s obligations Mammal Protection Act (MMPA), from www.nmfs.noaa.gov/pr/permits/ under the Trade Agreement Act, as the Alaska Aerospace Corporation incidental/research.htm. In case of amended. (AAC) for authorization to take small problems accessing these documents, numbers of marine mammals incidental I. Statutory/Legal Authority for This please call the contact listed above (see to launching space launch vehicles and FOR FURTHER INFORMATION CONTACT). Rulemaking other smaller missile systems at the Federal hazardous materials Pacific Spaceport Complex Alaska Purpose and Need for Regulatory transportation law, 49 U.S.C. 5101 et (PSCA) for the period of March 15, Action seq., authorizes the Secretary of 2017, through March 14, 2022. NMFS is This proposed rule, to be issued Transportation to prescribe regulations proposing regulations to govern that under the authority of the MMPA, for the safe transportation, including take, and requests comments on the would establish a framework for security, of hazardous materials in proposed regulations. authorizing the take of marine mammals intrastate, interstate, and foreign DATES: Comments and information must incidental to launching space vehicles, commerce. The Secretary has delegated be received no later than February 21, target missiles, and other smaller this authorization to the Administrator 2017. missile systems at the PSCA. We for PHMSA. See 49 CFR 1.97. PHMSA received an application from AAC is issuing this ANPRM to gather ADDRESSES: You may submit comments requesting 5-year regulations and necessary information in development on this document by any of the authorization to take one species of of the regulatory impact analysis in following methods: marine mammals. Take would occur by support of this rulemaking. • Electronic submission: Submit all Level B harassment only, incidental to electronic public comments via the the space vehicle launches (also referred J. Regulation Identifier Number (RIN) Federal e-Rulemaking Portal. Go to to as rocket launches). The regulations A regulation identifier number (RIN) www.regulations.gov, enter 2017–0002 would be valid from March 15, 2017, to is assigned to each regulatory action in the ‘‘Search’’ box, click the March 14, 2022. Please see Background listed in the Unified Agenda of Federal ‘‘Comment Now!’’ icon, complete the below for definitions of harassment. Regulations. The Regulatory Information required fields, and enter or attach your Legal Authority for the Proposed Action Service Center publishes the Unified comments. Agenda in April and October of each • Mail: Comments should be Section 101(a)(5)(A) of the MMPA year. The RIN contained in the heading addressed to Jolie Harrison, Chief, directs the Secretary of Commerce to of this document can be used to cross- Permits and Conservation Division, allow, upon request, the incidental, but reference this action with the Unified Office of Protected Resources, National not intentional taking of small numbers Agenda. Marine Fisheries Service, 1315 East of marine mammals by U.S. citizens who engage in a specified activity (other Issued in Washington, DC, on January 13, West Highway, Silver Spring, MD 2017, under authority delegated in 49 CFR 20910. than commercial fishing) within a specified geographical region for up to part 1.97. Instructions: NMFS may not consider William Schoonover, five years if, after notice and public comments if they are sent by any other comment, the agency makes certain Associate Administrator for Hazardous method, to any other address or Materials Safety, Pipeline and Hazardous findings and issues regulations that set individual, or received after the end of forth permissible methods of taking Materials Safety Administration. the comment period. Attachments to [FR Doc. 2017–01240 Filed 1–18–17; 8:45 am] pursuant to that activity, as well as electronic comments will be accepted in monitoring and reporting requirements. BILLING CODE 4910–60–P Microsoft Word or Excel or Adobe PDF Section 101(a)(5)(A) of the MMPA and file formats only. To help NMFS process the implementing regulations at 50 CFR and review comments more efficiently, part 216, subpart I provide the legal DEPARTMENT OF COMMERCE please use only one method to submit basis for issuing this proposed rule comments. All comments received are a containing 5-year regulations, and for National Oceanic and Atmospheric part of the public record and will Administration any subsequent Letters of Authorization generally be posted on (LOA). As directed by this legal www.regulations.gov without change. 50 CFR Part 217 authority, this proposed rule contains All personal identifying information mitigation, monitoring, and reporting [Docket No. 160809705–6705–01] (e.g., name, address) voluntarily requirements. submitted by the commenter may be RIN 0648–BG25 publicly accessible. Do not submit Summary of Major Provisions Within the Proposed Rule Takes of Marine Mammals Incidental to confidential business information or Specified Activities; Taking Marine otherwise sensitive or protected The following provides a summary of Mammals Incidental to Space Vehicle information. NMFS will accept some of the major provisions within the and Missile Launch Operations at anonymous comments (enter N/A in the proposed rulemaking for AAC’s rocket Pacific Spaceport Complex Alaska, required fields if you wish to remain launch activities. We have preliminarily Kodiak Island, Alaska anonymous). determined that AAC’s adherence to the proposed mitigation, monitoring, and FOR FURTHER INFORMATION CONTACT: AGENCY: National Marine Fisheries reporting measures listed below would Service (NMFS), National Oceanic and Stephanie Egger, Office of Protected achieve the least adverse impact Atmospheric Administration (NOAA), Resources, NMFS, (301) 427–8401. practicable on the affected marine Commerce. SUPPLEMENTARY INFORMATION: mammals. They include:

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• Required monitoring of Ugak Island considered in the development of this impacts of the proposed action where to detect the presence and abundance of proposed rule. the FAA would modify the AAC launch marine mammals before and after AAC proposes taking of small site operator license for the PSCA. The deployment of rocket launch operations. numbers of marine mammals incidental EA evaluates the potential • Required monitoring of Ugak Island to rocket launch operations specifically environmental impacts of modifying the to survey the presence and abundance noise from space vehicles and missile launch site operator license to include of marine mammals once per year launches that may result in the Level B medium-lift launch capability at PSCA (outside of rocket launch operations). harassment of harbor seals (Phoca with the addition of new infrastructure • Required mitigation of using time- vitulina richardii). NMFS has previously necessary to support these types of lapsed photography to determine the issued regulations and subsequent LOAs launches, including the construction of immediate response impacts to marine to AAC authorizing the taking of marine a launch pad and associated facilities. mammals during rocket launches, mammals incidental to launches at There are several marine mammals particularly during the pupping season PSCA (76 FR 16311, March 23, 2011; present in the waters offshore, however, (should rocket launches occur during and 71 FR 4297, January 26, 2006). The the only marine mammals anticipated to that time). current regulations recently expired on be affected by the specified activities are Background March 22, 2016; hence, AAC has pinnipeds hauled out on Ugak Island. applied for new regulations. The Dates and Duration An authorization for incidental proposed regulations, if issued, would takings shall be granted if NMFS finds be effective from March 15, 2017, The specified activity may occur at that the taking will have a negligible through March 14, 2022. any time during the 5-year period of impact on the species or stock(s), will validity of the proposed regulations. not have an unmitigable adverse impact Description of the Specified Activity Dates and duration of individual rocket on the availability of the species or Overview launches are inherently uncertain. stock(s) for subsistence uses (where Launch timing is not determined by relevant), and if the permissible PCSA is located on the Narrow Cape AAC, but is driven by customer needs methods of taking and requirements Peninsula, on Kodiak Island in the Gulf that include variables ranging from: (1) pertaining to the mitigation, monitoring of Alaska. Kodiak Island is Availability of down range assets and reporting of such takings are set approximately 99 miles (mi) long and 10 necessary to support launch, (2) orbital forth. NMFS has defined ‘‘negligible to 60 mi wide. PSCA is approximately parameters, and (3) exigencies requiring impact’’ in 50 CFR 216.103 as ‘‘an 22 air mi from the City of Kodiak, which rapid response to requests for impact resulting from the specified is the largest settlement on the Kodiak replacement of lost assets, or to augment activity that cannot be reasonably Island. The land area occupied by PSCA existing ones to support vital defense, expected to, and is not reasonably likely is owned by the State of Alaska and is humanitarian, or commercial needs. to, adversely affect the species or stock administered by AAC under terms of an Launches can, and do, occur year round. through effects on annual rates of Interagency Land Management Typical launches will be spread out in recruitment or survival.’’ Assignment (ILMA) issued by AAC’s time; however, some of these launches Except with respect to certain sister agency, the Alaska Department of may occur in clusters to meet a activities not pertinent here, the MMPA Natural Resources. AAC conducts space customer’s need. defines ‘‘harassment’’ as: Any act of vehicle and missile launches from the Launch planning is a dynamic pursuit, torment, or annoyance, which PSCA. Launch operations are authorized process, and launch delays, which can (i) has the potential to injure a marine under license from the Federal Aviation last from hours to more than a year, can mammal or marine mammal stock in the Administration (FAA), Office of the and do occur. Launch delays occur due wild (Level A harassment); or (ii) has Associate Administrator for Space to variables ranging from technical the potential to disturb a marine Transportation, in accordance with the issues to adverse weather. These factors mammal or marine mammal stock in the facility’s Environmental Assessment have controlling influence over the wild by causing disruption of behavioral (EA) and stipulations in the EA’s numbers of vehicles by class that are patterns, including, but not limited to, Finding of No Significant Impact actually launched in any given year migration, breathing, nursing, breeding, (FONSI) (FAA 1996) and subsequent from PSCA. Launches take place year feeding, or sheltering (Level B licenses (FAA 1998, 2003, 2005, and round when all variables affecting harassment). 2013). The area considered to be launch decisions are in correct affected by PSCA launch operations was alignment. Summary of Request defined in a September 1996 meeting AAC estimates the total number of On April 25, 2016, NMFS received a involving AAC and its environmental vehicles that might be launched from request for regulations from AAC for the consultant (University of Alaska PSCA over the course of the 5-year taking of small numbers of marine Anchorage’s Environment and Natural period covered by the requested mammals incidental to launching space Resources Institute), and government rulemaking is 45, with an average of launch vehicles long-range and other agencies represented by the FAA, nine launches per year. However, in smaller missile systems at the PSCA. We NMFS, the U.S. Fish and Wildlife previous years, AAC did not launch the received revised drafts on June 20, 2016, Service (FWS), and the Alaska authorized number, but fewer or none in and September 19, 2016. On September Department of Environmental some years. Few launches are on 27, 2016, we published a notice of Conservation (ADEC). Attendees at that contract at this time, so a specific receipt of AAC’s application in the meeting reviewed information on the distribution cannot be given. The first Federal Register (81 FR 66264), known effects of rocket operations on anticipated launch is estimated to occur requesting comments and information the environment, and defined the in May 2017. Generally, the frequency for thirty days related to AAC’s request. expected impact area to be within a 6- will be separated by months or years; On November 10, 2016, we received an mi radius of the launch pad area, however, there may be limited instances adequate and complete application. We inclusive of Ugak Island. A more recent of a rapid succession of launches in the received comments from the Marine EA was completed in April 2016 that course of hours, or days. Launches can, Mammal Commission (MMC) which we addresses the potential environmental and do, occur year-round. The duration

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of the possible disturbance will be at several pinniped haulouts are found. pressure to a maximal pressure value levels that may cause disturbances for Modeling done of Castor 120 space followed by a rapid decay period that only a few seconds tapering off to launches indicates the vehicle is passing may include a period of diminishing, inaudible in a few minutes. through 45,000 ft altitude by the time it oscillating maximal and minimal reaches the island about 70 seconds post pressures, and generally have an Specified Geographical Region launch (FAA 1996). increased capacity to induce physical The PSCA facility occupies 3,717 A typical launch vehicle is deployed injury as compared with sounds that acres of state-owned lands on the by igniting the vehicle through a lack these features. eastern side of Kodiak Island. Ugak controlled means to send it on a very Non-pulsed sounds can be tonal, Island lies approximately three to four specific flight path. The ignition starts a narrowband, or broadband, brief or mi to the south/southeast of the launch burn on the ground that usually lasts prolonged, and may be either pads on Kodiak Island (see Figure 2 in less than several seconds after which continuous or non-continuous (ANSI AAC’s application). Ugak Island is about the vehicle accelerates upward rapidly. 1995; NIOSH 1998). Some of these non- two mi long by about one mi wide. The During launch, burning fuel from the pulsed sounds can be transient signals land slopes steeply upward from a spit launch vehicle creates noise and light in of short duration but without the on the island’s northern most point, the surrounding area. The components essential properties of pulses (e.g., rapid which has previously been (although of a launch that may result in take are rise time). Examples of non-pulsed not in consistently in recent years) used a source of noise and light on Kodiak sounds include those produced by as a Steller sea lion (Eumetopias Island created by the first stage vehicle rocket launches and landings, vessels, jubatus) haulout (see Figures 3 in AAC’s motor, as the operation of launch aircraft, machinery operations such as application), to the southwest, vehicle engines produce sound drilling or dredging, and vibratory pile culminating in cliffs that are pressures that may be high enough to driving. The duration of such sounds, as approximately 1,000 feet (ft) in cause a disturbance. Combustion noise received at a distance, can be greatly elevation. These cliffs run the entire and jet noise are the two main sources extended in a highly reverberant length of the island’s long axis. of sound pressures and are projected in environment. Eastward, the narrow Outer Continental all directions. The sound produced Sound travels in waves, the basic Shelf (OCS) ends about 20 mi offshore, subsides to inaudible within a few components of which are frequency, where it plunges precipitously to the minutes. wavelength, velocity, and amplitude. North Pacific abyss. Near shore water Another component of the AAC’s Frequency is the number of pressure depths to the immediate south and west launches includes security overflights. waves that pass by a reference point per of the island range to several hundred In the days preceding the launch, these unit of time and is measured in hertz feet. Harbor seal haulouts are present occur approximately three times per day (Hz) or cycles per second. Wavelength is mainly on Ugak Island’s eastern shores, based on the long-term average. Flights the distance between two peaks of a but also in smaller numbers at the associated with the launch will not sound wave; lower frequency sounds northern end of the island (see Figure 3 approach occupied pinniped haulouts have longer wavelengths than higher in AAC’s application). on Ugak Island by closer than 0.25 mi frequency sounds and attenuate (0.4 kilometer (km)), and will maintain (decrease) more rapidly in shallower Detailed Description of Activities a vertical distance of 1,000 ft (305 meter water. Amplitude is the height of the Orbital and suborbital launch vehicles (m)) from the haulouts when within 0.5 sound pressure wave or the ‘loudness’ (i.e., rockets, missiles) are launched mi (0.8 km), unless indications of of a sound and is typically measured from PSCA as part of the aerospace human presence or activity warrant using the decibel (dB) scale. A dB is the industry. A rocket launch operation closer inspection of the area to assure ratio between a measured pressure (with takes years to plan and execute, as well that national security interests are sound) and a reference pressure (sound as a large preparation effort weeks protected in accordance with law. Over at a constant pressure, established by before the launch. In preparation for the the operational history of these flights, scientific standards). It is a logarithmic launch, launch vehicles are checked, aircraft have been operated within the unit that accounts for large variations in integrated, and erected. At this time, 0.25 mi limit on two occasions; both amplitude; therefore, relatively small PSCA has two launch pads, designated involved direct overflight of the Steller changes in dB ratings correspond to as Launch Pad 1 (LP1) and Launch Pad sea lion northwestern haulout spit, large changes in sound pressure. When 2 (LP2). LP1 is capable of launching which was unoccupied each time the referring to sound pressure levels (SPLs; small lift class vehicles and is 3.5 mi incursions occurred. the sound force per unit area), sound is from the nearest point on Ugak Island. referenced in the context of underwater Small lift vehicles are generically Description of the Sound Sources sound pressure to 1 microPascal (mPa). categorized as being capable of carrying This section contains a brief technical One pascal is the pressure resulting payloads of up to 4,400 pounds (lb). LP1 background on sound, the from a force of one newton exerted over has a flame trench that directs exhaust characteristics of certain sound types an area of one square meter. The source (and much of the sound) horizontally and the proposed sound sources level (SL) represents the sound level at eastward during liftoff, while LP2 is a relevant to AAC’s specified activity. a distance of 1 m from the source flat pad. LP1 is larger and better suited Pulsed sound sources (e.g., sonic (referenced to 1 mPa). The received level for the larger vehicles within AAC’s booms, explosions, gunshots, impact is the sound level at the listener’s capabilities. The vehicles that produce pile driving) produce signals that are position. Note that all underwater sound the most sound are likely to be launched brief (typically considered to be less levels in this document are referenced from LP1. than one second), broadband, atonal to a pressure of 1 mPa and all airborne PSCA launch azimuths range from transients (ANSI 1986; Harris 1998; sound levels in this document are 110 degrees to 220 degrees. The eastern NIOSH 1998; ISO 2003; ANSI 2005) and referenced to a pressure of 20 mPa. most launch azimuth of 110 degrees is occur either as isolated events or Root mean square (rms) is the within a few degrees of most orbital repeated in some succession. Pulsed quadratic mean sound pressure over the launches, and crosses the extreme sounds are all characterized by a duration of an impulse, and is eastern edge of Ugak Island where relatively rapid rise from ambient calculated by squaring all of the sound

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amplitudes, averaging the squares, and decision to issue a launch license to would be less than those of the Castor then taking the square root of the AAC. The Castor 120 uses solid fuel and 120. average (Urick 1983). Rms accounts for produces about 371,000 lbs of thrust. Polaris Derivatives—A–3 STARS both positive and negative values; The motor mass is about 116,000 lbs squaring the pressures makes all values and the motor is 347 inches (in) long The Strategic Target System (STARS) positive so that they may be accounted and 93 in wide. Modeling shows the utilizes the first stage of the Polaris A– for in the summation of pressure levels rocket is about eight mi above the 3, which is solid fueled and measures (Hastings and Popper 2005). This earth’s surface when it overflies Ugak 4.5 ft in diameter. Several STARS measurement is often used in the Island, and that the sonic boom reaches systems have been flown from PSCA. context of discussing behavioral effects, earth between 21 to 35 mi down range, Recorded sound pressure levels at Ugak in part because behavioral effects, which is past the OCS and over the Island have ranged from 90.2 to 91.4 which often result from auditory cues, North Pacific abyss (US FAA 1996). dBA (SEL). may be better expressed through Sound pressure from the Castor 120 at Smaller Vehicles and Tactical Rocket averaged units than by peak pressures. the spit on Ugak Island’s northern most Systems Sound exposure level (SEL; point was measured to be 101.4 dBA represented as dB re 1 mPa2-s) represents (dBA can be defined as dB with A- A number of smaller missile systems, the total energy contained within a weighting designed to match the average such as tactical or target vehicles, have pulse, and considers both intensity and frequency response of human hearing the possibility of being flown from duration of exposure. For a single pulse, and enables comparison of the intensity PSCA. Representative smaller systems the numerical value of the SEL of noise with different frequency range from about a foot in diameter up measurement is usually 5–15 dB lower characteristics) SEL. None of the to about four foot in diameter. Sound than the rms sound pressure in dB re 1 vehicles expected to be flown from pressures from these smaller systems are mPa, with the comparative difference PSCA over the five-year period covered not available, but will be substantially between measurements of rms and SEL by this proposed rule is known to be less than those from the space launch measurements often tending to decrease louder than the Castor 120. and ballistic vehicles described and with increasing range (Greene 1997; pose little potential for disturbance to Minuteman Derivative—Minotaur I McCauley et al., 1998). Peak sound marine mammals. pressure is the maximum instantaneous The Minotaur I is a small lift solid Even smaller systems ranging down in sound pressure measurable in the water propellant space launch vehicle, the size to several inches in diameter will at a specified distance from the source, first stage of which is a modified conceivably be flown as well. Small and is represented in the same units as Minuteman II. The first stage motor has sounding and research rockets (defined the rms sound pressure. Another a diameter of 4.5 ft. This launch vehicle as less than 5,000 lbs in weight) will be common metric is peak-to-peak sound has not yet been flown from PSCA. excluded from this request, including its pressure (p-p), which is the algebraic Sound pressure monitoring of two mitigations and reporting, as the difference between the peak positive Minotaur I launches was accomplished rockets’ small shape and energy are too and peak negative sound pressures. at Vandenberg Air Force Base, small to transmit an appreciable sound Peak-to-peak pressure is typically California (VAFB). The data were pressure on Ugak Island, and are approximately 6 dB higher than peak collected 1.4 mi away from the launch expected to be well below the threshold pressure (Southall et al., 2007). point and show sound pressure levels of for an active response. Proposed Sound Sources for AAC 104.9 to 107.0 dBA (SEL) at that Summary of Launch Vehicles We now describe specific airborne distance. Sound energy at sea level acoustic sources for AAC. Sounds levels decreases with the square of the Table 1 provides motor diameters and are different for each type of vehicle and distance, and given that the spit on representative sound pressures for further discussed below. Orbital and Ugak Island’s northern most point is various launch vehicles, some of which suborbital vehicles may be launched two mi further (i.e., spit is 3.5 mi from have been launched previously from from several locations on site; however, the launch point), the anticipated sound PSCA. The listed vehicles include no launch pads are closer to the pressure levels from a Minotaur I at the various ballistic launch vehicles and the haulouts on Ugak Island than LP1, from spit on Ugak Island’s northern most small lift Castor 120 space launch which the largest and, therefore, loudest point would be less than that of the vehicle, as well as smaller target/ vehicles will be launched. A description Castor 120. interceptor systems and tactical rocket systems. All PSCA sound measurements of each class of space launch and Trident Derivatives—C–4 Trident I smaller launch vehicles are provided in reported in Table 1 were taken at a the application and summarized here. The C–4 is a solid fueled vehicle and distance of 3.5 mi from the launch pad its first stage has a diameter of 6.1 ft, at the nearest point of Ugak Island. It is Peacekeeper Derivatives—Castor 120, which is about 1.5 ft less than the Castor important to note that the Castor 120 Athena, Minotaur IV and V, and Taurus 120. Because it is significantly smaller (previously launched from PSCA) is the I in diameter than the Castor 120 and loudest launch vehicle motor expected The Castor 120 was the base vehicle uses a similar fuel, it is anticipated that to be launched from PSCA over the 5- analyzed in the EA conducted by the sound pressure levels at the spit on year period covered by the proposed FAA (US FAA 1996) in support of the Ugak Island’s northern most point regulations.

TABLE 1—PAST AND ANTICIPATED LAUNCH VEHICLES

Previously Launched & Recorded at PSCA (also Potentially Launched in Future)

Launch designator Launch vehicle Date Distance to Motor diame- SEL Lmax LPeak haulout ter (ft) 1 (dBA) (dBA) (dBA)

QRLV ...... 11/5/98 3.5 mi 2 ...... 4.3 88.4 78.2 97.0

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TABLE 1—PAST AND ANTICIPATED LAUNCH VEHICLES—Continued

Previously Launched & Recorded at PSCA (also Potentially Launched in Future) SEL Lmax LPeak Launch designator Launch vehicle Date Distance to Motor diame- haulout ter (ft) 1 (dBA) (dBA) (dBA)

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

Spent first stage rocket motors impact detailed information on the abundance, PSCA include the harbor seal, Steller the ocean from 11 to more than 300 mi status, and distribution of the species on sea lion, gray whale (Eschrichtius down range, depending on launch Ugak Island from surveys that they have robustus), humpback whale (Megaptera vehicle. Sonic booms reach the earth’s conducted over the last decade. This novaeangliae) (Table 2). All are surface beyond the OCS (US FAA 1996). information is summarized below and protected under the MMPA and the Both falling first stage rocket motors and may be viewed in detail at http:// Steller sea lion and humpback whale are sonic booms are too far from land to www.nmfs.noaa.gov/pr/permits/ listed as threatened or endangered take pinnipeds and are not expected to incidental/research.htm. Additional under the Endangered Species Act affect whales. information is available in the NMFS (ESA). Sea otters (Enhydra lutris) also Description of Marine Mammals in the SARs for Alaska at http:// occur in the area, but are managed by Area of the Specified Activity www.nmfs.noaa.gov/pr/sars/region.htm. FWS; therefore, sea otters are not Sections 4 and 5 of AAC’s application Marine mammals under NMFS’ discussed further in this application. and the monitoring reports contain jurisdiction that occur in the vicinity of

TABLE 2—SUMMARY OF MMPA SPECIES

Common name Scientific name Status Occurrence Seasonality Daily counts

Harbor seal ...... Phoca vitulina ...... MMPA ...... Common ...... Year-round, Trends ..... 32–1,500 toward Summer Steller sea lion ...... Eumetopias jubatus .... Endangered ...... Rare ...... Trends toward Summer 0–19 Gray whale ...... Eschrichtius robustus .. MMPA ...... Seasonal ...... Spring and fall ...... 0–32 Humpback whale ...... Megaptera Endangered ...... Seasonal ...... Summer and fall ...... 0–4 novaeangliae.

Airborne noise is generally reflected short time a cetacean is at the surface, Marine Mammal Laboratory (NMML) at the sea surface outside of a 26 degrees direct impact from spent motors can be survey (NOAA’s Alaska Fisheries cone extending downward from the discounted as can any noise related Science Center) of a location within the ascending rocket (Richardson et al., impacts. Based on these reasons, NMFS action area (July 2015) and of Ugak 1995); therefore, little sound energy does not anticipate take of cetaceans Island, no sea lions were observed (Fritz passes into the sea across the air-water incidental to the specified activity; et al., 2015). Personal communication boundary. Submerged animals would hence, they will not be discussed between AKR and L. Fritz (Research have to be directly underneath the further. Fishery Biologist, NMML’s Alaska rocket to hear it, and given the Ecosystem Program) (September 28, Steller Sea Lions hypersonic velocity of launch vehicles 2016) indicate that sea lions have rarely in the atmosphere, the duration of After discussions with AAC and been seen on Ugak Island in recent sounds reaching any cetacean would be NOAA’s Alaska Regional Office (AKR), times. Under those surveys, sea lions discountable. In addition, all spent it was determined there would be no were last seen at Ugak Island during the rocket motors will fall into the open take of Steller sea lions for the proposed summer of 1994, when one sea lion was ocean over deep water. Given the very activities. In the most recent National observed, and in December 1994, when

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20 sea lions were documented (L. Fritz historic and recent survey data numbers have increased or remained pers. comm. 2016). Sea lions were last available. Sea lions are likely absent stable over similar time periods. seen in large numbers during the 1985– from the area (except a rare visitor) and Seals on Ugak Island are considered 1986 surveys when more than 300 sea the likelihood of an animal being part of the South Kodiak stock (Table lions were observed. It was concluded present during the nine times a year a 3)—ranging from Middle Cape on the that the habitat on Ugak Island is not launch may be planned is highly west coast of Kodiak Island southwest to highly suitable for sea lions (L. Fritz unlikely. Therefore, Steller sea lions are Chirikof Island and east along the south pers. comm. 2016). not discussed further in these proposed coast of Kodiak Island to Spruce Island, In addition, AAC has been conducting regulations. including the Trinity Islands, Tugidak regular aerial marine mammal surveys The only marine mammals Island, Sitkinak Island, Sundstrom since 2006 as a requirement of their anticipated to be affected by the Island, Aiaktalik Island, Geese Islands, previous regulations and LOAs and has specified activities and proposed as take also documented Steller sea lion for Level B harassment are harbor seals Two Headed Island, Sitkalidak Island, presence as rare. During their previous hauled out on Ugak Island and therefore Ugak Island, and Long Island (Muto et regulations (2011–2016), 17 aerial they are the only marine mammal al., 2015). A significant portion of the surveys were flown. During those discussed further in these proposed harbor seal population within the South surveys, Steller sea lions were only seen regulations. Kodiak stock is located at and around in one year with 19 observed in Tugidak Island off the southwest coast September 2011 at East Ugak Rock away Harbor Seals of Kodiak Island. Sharp declines in the from the Ugak spit haulout. This was Harbor seals range from Baja number of seals present on Tugidak the last sighting of Steller sea lions by California north along the west coasts of were observed between 1976 and 1998. AAC. Prior to 2011, sea lions were seen Washington, Oregon, California, British The highest rate of decline was 21 in small numbers on occasion during Columbia, and Southeast Alaska; west percent per year between 1976 and 1979 the 2006–2008 surveys. In 2006, 6 out through the Gulf of Alaska, Prince (Pitcher 1990 as cited by Muto et al., of 14 surveys found sea lions, ranging William Sound, and the Aleutian 2015). While the number of seals on from one to eight animals. In 2007, 1 out Islands; and north in the Bering Sea to Tugidak has stabilized and shown some of 8 surveys revealed two sea lions. In Cape Newenham and the Pribilof evidence of increase since the decline, 2008, 8 out of 8 surveys found one to Islands. The current statewide the population in 2000 remained five sea lions. AAC also noted that the abundance estimate for Alaskan harbor reduced by 80 perent compared to the Ugak spit haulout looks smaller than it seals is 205,090 (Boveng et al. in press levels in the 1970s (Jemison et al., 2006 has in the past (AAC 2016). The spit is as cited in Muto et al., 2015), based on as cited by Muto et al., 2015). The under the influence of longshore aerial survey data collected during current (2007–2011) estimate of the currents and its geomorphology shifts 1998–2011. In 2010, harbor seals in South Kodiak population trend is ¥461 over time (AAC 2016). This may now Alaska were partitioned into 12 separate seals per year, with a probability that make it unsuitable as a haulout and it stocks based largely on genetic structure the stock is decreasing of 0.72 (Muto et may have thus been abandoned by sea (Allen and Angliss 2010). Harbor seals al., 2015). Only the South Kodiak stock lions. have declined dramatically in some is considered in this application It was determined that take will not parts of their range over the past few because other stocks occur outside the occur for Steller sea lions based on the decades, while in other parts their geographic area under consideration.

TABLE 3—HARBOR SEAL STATUS INFORMATION

ES)/MMPA Stock abundance (Nmin, Relative occurrence/ Species Stock status; Stra- most recent abundance PBR 3 Annual M/SI 4 season of occur- tegic (Y/N) 1 survey) 2 rence

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

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

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exceed 100 dBA (SEL) during inclement shore are not as protected from launch six rocket launches from 2006–2008, no weather. Ugak’s eastern shore is noise, and therefore may be harassed seals were observed on North Ugak windward to prevailing winds and surf (Level B) incidentally to AAC’s rocket Island on 19 occasions. During surveys noise is routinely high. The remaining launch activities. However, harbor seal when seals were present, the average three percent of the harbor seals abundance on the northern shore is abundance was 25 seals with a single identified during surveys are found at limited due to the lack of suitable day count of 125 individuals (Figure 1 the northern shore of Ugak Island. habitat (i.e., few beaches). During 30 below). Harbor seals located on the northern aerial surveys conducted by AAC during

Because access to Ugak Island harbor Lowry et al., 2001; Swain et al., 1996). dependent on a variety of factors seal haulouts is difficult, little is known Pupping in Alaska generally takes place including, but not limited to, the of how seals use these habitats. Harbor in May and June; while molting behavioral state (e.g., resting, seals generally breed and molt where generally occurs from June to October. socializing, etc.) of the animal at the they haulout, so it is assumed that both Potential Effects of the Specified time it receives the stimulus, frequency of these activities take place on Ugak Activity on Marine Mammals of the sound, distance from the source, Island. This assumption is supported by and the level of the sound relative to Marine mammals produce sounds in the fact that young seals have routinely ambient conditions (Southall et al., various contexts and use sound for been seen there during aerial surveys. 2007). In general, marine mammal These haulouts are the only haulouts various biological functions including, but not limited to (1) social interactions; impacts from loud noise can be used by harbor seals within the 6-mi (2) foraging; (3) orientation; and (4) characterized as auditory and non- radius area designated as being affected predator detection. Interference with auditory. The generic thresholds by launch operations. producing or receiving these sounds described below (Table 4) are used to Harbor seals haul out on rocks, reefs, may result in adverse impacts. Audible estimate when harassment may occur beaches, and drifting glacial ice (Allen distance, or received levels (RLs) will (i.e., when an animal is exposed to and Angliss 2014). They are non- depend on the nature of the sound levels equal to or exceeding the relevant migratory; their local movements are source, ambient noise conditions, and criterion) in specific contexts. However, associated with tides, weather, season, the sensitivity of the receptor to the useful contextual information that may food availability, and reproduction, as sound (Richardson et al., 1995). Type inform our assessment of effects is well as sex and age class (Allen and and significance of marine mammal typically lacking and we consider these Angliss 2014; Boveng et al., 2012; reactions to noise are likely to be thresholds as step functions.

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TABLE 4—CURRENT ACOUSTIC EXPOSURE CRITERIA FOR PINNIPEDS

Criterion Definition Threshold

Level B harassment (underwater) ... Behavioral disruption ...... 120 dB (non-impulse, continuous source, i.e., combustion effects of launch vehicles) (rms). Level B harassment (airborne) ...... Behavioral disruption ...... 90 dB (harbor seals).

While low-frequency cetaceans and discountable and it is therefore not minutes after birth. As such, it is pinnipeds have been observed to considered further. unlikely that infrequent disturbance respond behaviorally to low- and mid- Disturbance of pinnipeds caused by resulting from AAC’s rocket launches frequency sounds (e.g., Frankel, 2005), AAC’s rocket launches would be would interrupt the brief mother-pup there is little evidence of behavioral expected to last for only short periods bonding period within which responses in these species to high- of time, separated by significant disturbance could result in separation. frequency sound exposure (e.g., Jacobs amounts of time in which no NMFS recognizes the critical bonding and Terhune 2002; Kastelein et al., disturbance occurs. Because such time needed between a harbor seal 2006). If a marine mammal does disturbance is sporadic, rather than mother and her pup to ensure pup perceive a signal from an AAC acoustic chronic, and of low intensity, individual survival and maximize pup health. source, it is likely that the response marine mammals are unlikely to incur Harbor seals pups are weaned from their would be, at most, behavioral in nature. any detrimental impacts to vital rates or mother within approximately four As discussed above, launch ability to forage and, thus, loss of weeks; however, the most critical operations are a major source of acoustic fitness. Correspondingly, even local bonding time is immediately (minutes) stimuli on Kodiak Island and can reach populations, are extremely unlikely to after birth. Lawson and Renouf (1987) pinniped haulouts on Ugak Island. The accrue any significantly detrimental conducted an in-depth study to activities proposed for taking of marine impacts, much less the overall stocks of investigate harbor seal mother/pup mammals under these regulations have animals To comply with their previous bonds in response to natural and the potential to cause harassment regulations, AAC attempted to collect anthropogenic disturbance. In summary, through acoustic stimuli. The PSCA video footage of pinnipeds during they found that a mutual bond is launch activities create two types of launches; however, weather, technical, developed within five minutes of birth, noise: continuous (but short-duration) and accessibility issues prevented video and both the mother and pup play a role noise, due mostly to combustion effects from being obtained. Therefore, no in maintaining contact with each other. of launch vehicles; and impulsive noise, immediate responses of pinnipeds to The study showed a bilateral bond, both due to sonic boom effects. Generally, AAC launch noise have been on land and in the water, and that noise is generated from four sources documented. AAC will attempt another mothers would often wait for or return during launches: (1) Combustion noise method of documenting pinniped to a pup if it did not follow her. Pups from launch vehicle chambers; (2) jet response to launch noise by using time- would follow or not move away from noise generated by the interaction of the lapsed photography methods. Time their mother as she approached. Most exhaust jet and the atmosphere; (3) lapse photography has already been notably, mothers demonstrated overt combustion noise from the post-burning implemented by NOAA for other attention to their pups while in the of combustion products; and (4) sonic pinnipeds (Steller sea lions) in harsh water and during times of disturbance booms. Launch noise levels are highly conditions of the western Aleutians of on the nursery. Increased involvement dependent on the type of first-stage the U.S. with great success. by the mothers in keeping the pairs booster and the fuel used to propel the The infrequent (approximately nine together during disturbances became vehicle. Therefore, there is a great times per year) and brief (approximately obvious as they would wait for, or similarity in launch noise production one minute as heard from Ugak Island) return to, their young if the pups fell within each class size of launch nature of these sounds that would result behind. vehicles. For the proposed activity, from a rocket launch is not expected to Given that pups are precocious at sonic booms will reach the earth’s alter the population dynamics of harbor birth, bonds between mothers and pups surface beyond the OCS (US FAA 1996) seals which utilize Ugak Island as a are known to form within minutes of and are not anticipated to impact haulout site. Current harbor seal birth, and other characteristics of marine mammals and are therefore not numbers on Ugak Island total around mother/pup bonding described above, discussed further. 1,500 (R&M 2009), which is an increase NMFS has preliminarily determined Noise from rocket launches may cause of about 1,100 since the 1990s (ENRI that Level A harassment or mortality is the pinnipeds to lift their heads, move 1995–1998); therefore, population unlikely to occur and can therefore be towards the water, or enter the water. It dynamics of harbor seals have also not discounted. is unlikely there would be significant been negatively impacted from past Finally, PSCA has conducted up to visual disturbance as space vehicles launches originating from PSCA. three security overflights per day in the would be too far away to cause Harbor seal pups could be present at days preceding a launch. Several studies significant stimuli. Modeling done of times during AAC’s rocket launches, but of both harbor seals and Steller sea lions Castor 120 space launches indicates the harbor seal pups are extremely cited in Richardson et al. (2005), suggest vehicle is passing through 45,000 ft precocious, swimming and diving that these animals respond significantly altitude by the time it reaches Ugak immediately after birth and throughout less to overflights of both planes and Island about 70 seconds following the lactation period, unlike most other helicopters that occur above 305 m (0.2 launch (US FAA 1996). Therefore, we phocids which normally enter the sea mi). NMFS does not anticipate have determined that the possibility of only after weaning (Lawson and Renouf harassment from overflights to occur as marine mammal harassment from visual 1985; Cottrell et al., 2002; Burns et al., they generally would remain at least stimuli associated with the proposed 2005). In summary, they found that the 0.25 mi from a haulout; however, if pilot activities is so low as to be considered most critical bonding time is within or crew notice overt responses from

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pinnipeds (e.g., flushing) to aircraft, this VAFB launches create sonic booms over after the launches) for ABR testing would be noted and reported to NMFS pinniped haulouts, therefore, noise from allows for the possibility that the seals in the flight report. Observations made these launches are much louder than may have recovered from a temporary of any animals displaced by a security what would be audible at haulouts on threshold shift (TTS) before testing overflight are reported to the Ugak Island (sonic booms are not began. However, it can be said with environmental monitoring team for audible from Ugak Island). To determine confidence that the post-launch tested inclusion in their report of monitoring if harbor seals experience changes in animals did not have permanent hearing results. their hearing sensitivity as a result of changes due to exposure to the launch The following information provides launch noise at VAFB, ABR testing was noise from the Titan IV, Taurus, or Delta background on marine mammal conducted on harbor seals for four Titan IV SLVs. These results are consistent responses to launch noise that has been IV launches, one Taurus launch, and with previous NMFS conclusions for gathered under previous LOAs and two Delta IV launches by the USAF in such activities in its prior rulemakings Incidental Harassment Authorizations accordance with issued scientific (63 FR 39055, July 21, 1998; 69 FR 5720, for similar rocket launch activities, research permits. Following standard February 6, 2004; 74 FR 6236, February including at VAFB in California, and ABR testing protocol, the ABR was 6, 2009). Given the distance from the been used to inform our analysis for measured from one ear of each seal pad area to Ugak Island and the AAC’s proposed rocket launch using sterile, sub-dermal, stainless steel measured sound levels from the Castor activities. electrodes. A conventional electrode 120 (101.4 dB), for the loudest space Marine Mammal Response to Launch array was used, and low-level white vehicle used at the PSCA, pinniped Noise at VAFB noise was presented to the non-tested auditory injury is not anticipated. ear to reduce any electrical potentials Therefore, PTS is not a concern for Seals may leave a haulout site and generated by the non-tested ear. A pinnipeds exposed to launch noise from enter the water due to the noise created computer was used to produce the click the PSCA as noise levels at this location by launch vehicles during launch and an 8 kilohertz (kHz) tone burst are below those experienced during the operations. The percentage of seals stimuli, through standard audiometric VAFB launches, and sonic booms are leaving a haulout increases with noise headphones. Over 1,000 ABR not audible on Ugak Island. level up to approximately 100 dB ASEL waveforms were collected and averaged Summary of Marine Mammal Impacts (A-weighted SEL), after which almost all per trial. Initially the stimuli were from Launches seals leave, although data have shown presented at SPLs loud enough to obtain that some percentage of seals have a clean reliable waveform, and then NMFS does not anticipate a remained on shore during launches. decreased in 10 dB steps until the significant impact on any of the species Time-lapse video photography during response was no longer reliably or stocks of marine mammals from four launch events at VAFB revealed observed. Once response was no longer launches from PSCA. The effects of the that the seals that reacted to the launch reliably observed, the stimuli were then activities are expected to be limited to noise, but did not leave the haulout increased in 10 dB steps to the original short-term startle responses and were all adults. Because adult seals SPL. By obtaining two ABR waveforms localized behavioral changes. In general, reacted less strongly than younger seals, at each SPL, it was possible to quantify if the received level of the noise this suggests that adults had possibly the variability in the measurements. stimulus exceeds both the background experienced other launch disturbances Good replicable responses were (ambient) noise level and the auditory and had habituated to them. measured from most of the seals, with threshold of the animals, and especially The louder the launch noise, the waveforms following the expected if the stimulus is novel to them, there longer it took for seals to begin returning pattern of an increase in latency and may be a behavioral response. The to the haulout site and for the numbers decrease in amplitude of the peaks, as probability and degree of response will to return to pre-launch levels. Seals may the stimulus level was lowered. One also depend on the season, the group begin to return to the haulout site seal had substantial decreased acuity to composition of the pinnipeds, and the within 2–55 min of the launch the 8 kHz tone-burst stimuli prior to the type of activity in which they are disturbance, and the haulout site launch. The cause of this hearing loss engaged. Minor and brief responses, usually returned to pre-launch levels was unknown, but was most likely such as short-duration startle or alert within 45–120 min. In two past Athena congenital or from infection. Another reactions, are not likely to constitute IKONOS launches with ASELs of 107.3 seal had a great deal of variability in disruption of behavioral patterns, such and 107.8 dB at the closest haulout site, waveform latencies in response to as migration, nursing, breeding, feeding, seals began to haulout again identical stimuli. This animal moved or sheltering and would not cause injury approximately 16–55 min post-launch repeatedly during testing, which may or mortality to marine mammals. On the (Thorson et al., 1999a; 1999b). In have reduced the sensitivity of the ABR other hand, startle and alert reactions contrast, noise levels from an Atlas testing on this animal for both the click accompanied by large-scale movements, launch and several Titan II launches and 8 kHz tone burst stimuli. Two of the such as stampedes into the water of had ASELs ranging from 86.7 to 95.7 dB seals were released after pre-launch hundreds of animals, may rise to the at the closest haulout, and seals began testing but prior to the launch of the degree of Level A harassment because to return to the haulout site within 2– Titan IV B–34, as the launch was they could result in injury of 8 min post-launch (Thorson and delayed for many days, and five days is individuals. In addition, such large- Francine 1997; Thorson et al., 2000). the maximum duration permitted to scale movements by dense aggregations hold the seals for testing. of marine mammals or at pupping sites Auditory Brainstem Response Tests at Detailed analysis of the changes in could potentially lead to takes by injury VAFB waveform latency and waveform or death. However, there is no potential To justify that the potential for replication of the ABR measurements for large-scale movements leading to permanent threshold shift (PTS) is for the 14 seals showed no detectable serious injury or mortality near for the unlikely, Auditory Brainstem Response changes in the seals’ hearing sensitivity harbor seals at the northern end of Ugak (ABR) testing on 21 seals during rocket as a result of exposure to the launch Island because, historically, the number launches at VAFB was conducted. noise. The delayed start (1.75 to 3.5 hrs of harbor seals hauled out near the site

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is less than 30 individuals, and these following mitigation measures: (1) and the degree to which the successful animals do not stampede, but flush into Security overflights immediately implementation of the measure is the water. Based on similar associated with the launch would not expected to minimize adverse impacts observational data (at VAFB) and for the approach occupied pinniped haulouts to marine mammals; (2) the proven or largest launch vehicle, the Castor 120 on Ugak Island by closer than 0.25 mi likely efficacy of the specific measure to (approximately 101.4 dBA), NMFS (0.4 km), and would maintain a vertical minimize adverse impacts as planned; anticipates that if seals are disturbed distance of 1,000 ft (305 m) from the and (3) the practicability of the measure there may be a startle response and haulouts when within 0.5 mi (0.8 km), for applicant implementation, including flush into the water. Harbor seals would unless indications of human presence or consideration of personnel safety, and likely return to haulout sites on Ugak activity warrant closer inspection of the practicality of implementation. The Island within 2 to 55 minutes of the area to assure that national security proposed mitigation measures take launch disturbance. No PTS is interests are protected in accordance scientific studies (Richardson et al., anticipated, and the likelihood of TTS is with law; (2) if launch monitoring or 2005) of overflight effects on pinnipeds low. In addition, because aircraft will quarterly aerial surveys indicate that the into consideration. Lastly, the adaptive fly at altitudes greater than 305 m (1,000 distribution, size, or productivity of the nature of the proposed mitigation ft) around pinniped haulouts and potentially affected pinniped measures allow for adjustments to be rookeries, animals are not anticipated to populations has been affected due to the made if launch monitoring or quarterly react to security overflights. specified activity, the launch aerial surveys indicate that impacts to The potential effects to marine procedures and the monitoring methods the distribution, size, or productivity of mammals described in this section of would be reviewed, in cooperation with pinniped populations are occurring. the document do not take into NMFS, and, if necessary, appropriate Based on our evaluation of the consideration the proposed monitoring changes may be made through applicant’s proposed measures, as well and mitigation measures described later modifications to a given LOA, prior to as other measures considered by NMFS in this document (see the ‘‘Proposed conducting the next launch of the same or recommended by the public in the Mitigation’’ and ‘‘Proposed Monitoring vehicle under that LOA; (3) AAC will prior rulemaking, NMFS has and Reporting’’ sections) which, as purchase and install time-lapsed preliminarily determined that the noted, should affect the least adverse photography systems in order to survey proposed mitigation measures provide impact practicable on affected marine each of the three pinniped haulout the means of affecting the least adverse mammal species and stocks. locations around Ugak Island to confirm impacts practicable on marine mammals species or stocks and their habitat, Anticipated Effects on Marine Mammal the abundance of pinnipeds at the paying particular attention to rookeries, Habitat haulouts and allow for the more complete surveying efforts. The number mating grounds, and areas of similar Solid fuel rocket boosters would fall of camera systems, equipment significance. into the ocean away from any known or capabilities, placement of the systems to potential haulouts. All sonic booms that Proposed Monitoring and Reporting be used, and the daily photo frequency reach the earth’s surface would be In order to issue an ITA for an will be determined through a expected to occur over open ocean activity, Section 101(a)(5)(A) of the cooperative effort between AAC, NMFS, beyond the OCS. Airborne launch MMPA states that NMFS must set forth and field experts; (4) AAC will conduct sounds would mostly reflect or refract ‘‘requirements pertaining to the a correlation study in coordination with from the water surface and, except for monitoring and reporting of such NMFS. The purpose of the study is to sounds within a cone of approximately taking.’’ The MMPA implementing evaluate the effectiveness of the time- 26 degrees directly below the launch regulations at 50 CFR 216.104(a)(13) lapsed photography systems vehicle, would not penetrate into the indicate that requests for ITAs must (specifically, the accuracy of the water column. The sounds that would include the suggested means of photography systems compared with penetrate would not persist in the water accomplishing the necessary monitoring aerial count surveys). The results of this for more than a few seconds. Overall, and reporting that will result in study will determine the need to rocket launch activities from PSCA increased knowledge of the species and continue aerial surveys. The study will would not be expected to cause any of the level of taking or impacts on be conducted through a minimum of impacts to habitats used by marine populations of marine mammals that are five launches; and (5) All Castor 120 mammals, including pinniped haulouts, expected to be present. AAC proposes equivalent launches will be conducted or to their food sources. the following for monitoring and at LP1 which is equipped with a reporting: (1) Deploy time-lapsed Proposed Mitigation concrete and water-filled flame trench. photography systems designed to In order to issue an incidental take The purpose of the flame trench is to monitor pinniped abundance and detect authorization (ITA) under section direct smoke away from the launch pad pinniped responses to rocket launches 101(a)(5)(A) of the MMPA, NMFS must and to absorb light and noise at their conducted under these regulations. AAC set forth the permissible methods of respective peaks (i.e. lift-off) to reduce will monitor the effectiveness of these taking pursuant to such activity, and the noise created during each launch. systems, comparing the results to aerial other means of affecting the least NMFS has carefully evaluated AAC’s surveys from at least five launches; (2) adverse impact practicable on such proposed mitigation measures and Ensure the time-lapsed photography species or stock and its habitat, paying considered a range of other measures in systems will be in place and operating particular attention to rookeries, mating the context of ensuring that NMFS in locations that allow for visual grounds, and areas of similar prescribes the means of affecting the monitoring of all three pinniped significance, and on the availability of least adverse impact practicable on the haulouts during launches; (3) Relocate such species or stock for taking for affected marine mammal species and the time-lapsed photography systems in certain subsistence uses. stocks and their habitat. Our evaluation cooperation with NMFS after five To minimize impacts on pinnipeds at of potential measures included launches if the system is not accurately haulout sites, the AAC has proposed, as consideration of the following factors in capturing all three pinniped haulouts part of their specified activities, the relation to one another: (1) The manner and total pinniped abundance during

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the launches; (4) Review and log population at the northern haulout of 35 Positioning System (GPS) for navigation. pinniped presence, abundance, seals (the mean plus one standard All surveys were intended to be flown behavior, and re-occupation time from deviation) is used for the following take within two hours of the daytime low the data obtained from the time-lapsed estimate. tide and during mid-day, when haulout photography systems and report results Assuming that all 35 harbor seals at attendance peaks for harbor seals. to NMFS within 90 days of the first five the northern haulout are expected to be The aerial survey schedule during the launches under this system; (5) Conduct present and taken by Level B formal monitoring period consisted of one pre-launch aerial survey and one Harassment during a launch, and that daily surveys one day prior to the post-launch aerial survey for each all 9 launches are of the Castor 120 launch, immediately following the launch similar to previous years. AAC (loudest space vehicle), a maximum of launch (on the launch day), and each will conduct a minimum of one aerial 315 harbor seals annually could be day of the three days following the survey annually (in the event no launch taken by Level B harassment with 1,575 launch date, weather conditions occurs during a calendar year); and (6) harbor seals taken over the 5-year permitting (NMFS 2008). Two Conduct quarterly aerial surveys, ideally effective period of the regulations. additional surveys were often during mid-day coinciding with low Depending on the type of rocket being conducted prior to the formal tide, to obtain data on pinniped launched, the time of day, time of the monitoring period at AAC’s discretion. presence, abundance, and behavior year, weather conditions, tide and swell The two additional surveys were within the action area to determine conditions, the number of seals that may conducted to balance the pre-launch long-term trends in pinniped haulout be taken will range between 0 and 35 sample size with the three post-launch use. Results of these quarterly surveys per launch. Launches may occur at any surveys to allow calculation of the will be reported once as part of the year- time of the year, so any age classes and variance in pre-launch counts for end summary report. Data collected gender may be taken. subsequent statistical analysis. The would include number of seals per SELs from the loudest launch may aerial surveys were flown 1,000 ft above haulout, by age class when possible, and reach approximately 101.4 dBA at the sea level at 80–90 nautical mph and the if any disturbance behavior is noted traditional Steller sea lion haulout flight line was kept ≥0.25 mi from from aircraft presence. (approximately 3.5 mi from the launch known haulouts. Digital photographs of site) which is similar distance to the groups of pinnipeds (generally greater Estimated Take by Incidental northern beaches where harbor seal than 10 pinnipeds) were taken with a Harassment haulout (approximately 4 mi from the Nikon D70 camera (equipped with a 70 The following text describes the launch site). Based on this recorded to 300 millimeter zoom lens) or a Canon potential range of takes possible of level and the fact that audible launch Powershot S5 camera with image harbor seals on PSCA during launches. noise would be very short in duration, stabilized zoom. Images were reviewed AAC estimates that up to 45 launches harbor seals are not expected to incur on a personal computer and counts of may occur from PSCA over the course PTS, and the chance of TTS is low to pinnipeds were summarized from sets of the 5-year period covered by the unlikely. No injury or mortality of of overlapping images. All counts proposed rulemaking. Annually, AAC harbor seals is anticipated, nor would greater than 15 pinnipeds were made requests nine launches to be authorized. any be authorized. Therefore, NMFS from digital images taken from the AAC estimates that no more than one proposes to authorize harbor seal take, aircraft, unless the images were blurred launch would occur over a 4-week by Level B harassment only, incidental or underexposed, in which cases the period, and it is likely the frequency of to launches from PSCA. visual estimates were used. launches would be less than this As discussed above, security Foul weather, daylight considerations, estimate. overflights associated with a launch launch timing, and timing of tidal flux Harbor seals of all age classes hauled would not closely approach or circle have all contributed to the difficulty in out on the northern shores of Ugak any pinniped. Therefore, incidental take collecting the data. Foul weather Island may become alert or flush into from this activity is not anticipated. precludes aerial surveys primarily due the water in response to rocket to Should the pilot or crew on the plane to visibility, excessive turbulence, and launches from PSCA. The total number observe pinnipeds reacting to their other dangerous conditions. In addition, of harbor seals present on Ugak Island presence, the plane would increase rockets can often be launched during ranges up to a maximum of altitude and note the number of animals periods of weather that are not approximately 1,500 seals in the last ten reacting to the plane. These data would conducive to operation of small aircraft. years, and 1,150 seals in the last five be included in AAC’s marine mammal Total counts on Ugak Island (both the years. However, approximately 97 reports. northern and eastern haulouts percent of harbor seals are found at the combined) have increased steadily and eastern shore haulout where they are Previous Monitoring remained stable since the 1990s from sheltered from launch effects by the The primary monitoring method has several hundred (ENRI 1995–1998) up 1,000 ft cliffs that stand between this involved conducting aerial surveys to a peak of about 1,500 in the last 10 haulout and PSCA. Only about three along set transect lines to observe and years (R&M 2008). The number of percent of harbor seals use the northern count harbor seals and Steller sea lions. harbor seals tallied at Ugak Island haulout across from PSCA because of Marine mammals other than harbor during the July 2008 FTX–03 surveys the lack of suitable beaches. When seals and Steller sea lions, although reached a record for monitoring surveys present, the majority of counts at the observed and recorded, were not at 1,534 seals (R&M 2008). Table 5 northern haulout were of less than 25 specifically targeted by the launch- presents daily counts, by species, of the individuals (Figure 1). An exceptional related aerial surveys. Marine mammal marine mammals that have been one-time high count of about 125 seals abundance and distribution were observed during launch-related occurred within the last 10 years. The recorded during aerial surveys flown in environmental monitoring activities mean number of harbor seals present at a single-engine fixed-wing airplane with from 2006–2008. Seal numbers in Table the northern haulout is 10 seals with a floats. The aerial survey route was 5 are highest during August and standard deviation of 25 seals. designed for harbor seals and Steller sea September because they were conducted Therefore, a representative harbor seal lions and was flown using a Global during the annual molt, when maximal

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

TABLE 5—MARINE MAMMAL OBSERVATIONS (2006–2008) DURING LAUNCH-RELATED ENVIRONMENTAL MONITORING WITHIN SIX-MI RADIUS STUDY AREA AND ON HAULOUTS ON UGAK ISLAND

Pre-launch survey Post-Launch survey Steller sea 2 Humpback Date 1 Harbor seal Gray whale (number days (number days lion whale pre-launch) post-launch)

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

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

TABLE 6—MARINE MAMMAL OBSERVATIONS (2011–2016) DURING LAUNCH-RELATED ENVIRONMENTAL MONITORING WITHIN SIX-MI RADIUS STUDY AREA AND ON HAULOUTS ON UGAK ISLAND

Time Number sea Number Year Quarter Date (local) lions harbor seals Notes

2011 ...... 2nd (Apr–Jun) ...... N/A ...... Source selection for flights. 2011 ...... 3rd (Jul–Sep) ...... 21–Sep–11 ...... 1330–1430 19 462 Only sea lion sighting. 2011 ...... 4th (Oct–Dec) ...... 5–Dec–11 ...... Postponed twice due to multiple storms. 2012 ...... 1st (Jan–Mar) ...... Mar–12 ...... 0930–1030 0 32 Results Typical. 2012 ...... 2nd (Apr–Jun) ...... N/A ...... Postponed due to storms. 2012 ...... 3rd (Jul–Sep) ...... 8–Jul–12 ...... 1600–1626 0 747 Results Typical. 2012 ...... 4th (Oct–Dec) ...... 20–Oct–12 ...... 1200–1330 0 975 Results Typical. 2013 ...... 1st (Jan–Mar) ...... 16–Mar–13 ...... 1209–1334 0 823 Results Typical. 2013 ...... 2nd (Apr–Jun) ...... 16–Jun–13 ...... 1342–1408 0 332 Results Typical. 2013 ...... 3rd (Jul–Sep) ...... 1–Oct–13 ...... 1210–1316 0 955 Results Typical. 2013 ...... 4th (Oct–Dec) ...... 14–Nov–13 ...... N/A–N/A 0 847 Results Typical. 2014 ...... 1st (Jan–Mar) ...... 21–Jan–14 ...... 1115–1230 0 144 Results Typical. 2014 ...... 2nd (Apr–Jun) ...... 5–Apr–14 ...... 1218–1338 0 1133 Results Typical. 2014 ...... 3rd (Jul–Sep) ...... 3–Jul–14 ...... 1110–1239 0 513 Results Typical. 2014 ...... 4th (Oct–Dec) ...... 30–Oct–14 ...... 1100–1207 0 810 Results Typical.

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TABLE 6—MARINE MAMMAL OBSERVATIONS (2011–2016) DURING LAUNCH-RELATED ENVIRONMENTAL MONITORING WITHIN SIX-MI RADIUS STUDY AREA AND ON HAULOUTS ON UGAK ISLAND—Continued

Time Number sea Number Year Quarter Date (local) lions harbor seals Notes

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

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

TABLE 7—HARBOR SEAL COUNTS PRE- AND POST-LAUNCH [2006–2008]

Numbers Numbers Launch name/date pre launch post launch

FT–04–1 (02/23/06) 1 ...... 6 350 6 211 FTG–02 (09/01/06) 2 ...... 7 901 7 961 FTG–03 (05/27/07) 3 ...... 78136 78402 FTG–03a (09/28/07) 4 ...... 7 461 9 0 FTX–03 (07/18/08) 5 ...... 7 853 7 840 1. R&M et al. 2006. Environmental Monitoring Report FT–04–1 Launch. Report for Alaska Aerospace Development Corporation. Anchorage, Alaska. 28pp + Appendices. 2. R&M et al. 2006. Environmental Report FTG–02 Launch. Report for Alaska Aerospace Development Corporation. Anchorage, Alaska. 32pp + Appendices. 3. R&M et al. 2007. Environmental Monitoring Report FTG–03 Launch. Report for Alaska Aerospace Development Corporation. Anchorage, Alaska. 24pp + Appendices. 4. R&M et al. 2007. Environmental Monitoring Report FTG–03a Launch. Report for the Alaska Aerospace Development Corporation. Anchor- age, Alaska. 28pp + Appendices. 5. R&M et al. 2008. Environmental Monitoring Report FTX–03 Launch. Report for Alaska Aerospace Development Corporation. Anchorage, Alaska. 29pp + Appendices. 6. Visual count; launch coincided with execution of LOA that requires photographic documentation of seal numbers. 7. Counts from photographs. 8. Data are not representative of launch period. Sole pre-launch survey was done two days prior to launch (weather precluded surveys on launch day), and first post launch survey was done two days after launch due to adverse weather conditions. 9. Survey occurred at high tide when haulouts were flooded.

Analyses and Preliminary harassment takes, the number of not likely to cause long-term behavioral Determinations estimated mortalities, and effects on disturbance, abandonment of the habitat. In making a negligible impact haulout area, serious injury, or mortality Negligible Impact Analysis determination, NMFS considers (and because: NMFS has defined ‘‘negligible should explicitly address whenever (1) The possibility of injury, serious impact’’ in 50 CFR 216.103 as ‘‘. . . an possible) the following: injury, or mortality may reasonably be (1) The number of anticipated impact resulting from the specified considered discountable; activity that cannot be reasonably injuries, serious injuries, or mortalities; (2) The number, nature, and intensity, (2) The effects of the activities are expected to, and is not reasonably likely and duration of Level B harassment (all expected to be limited to short-term to, adversely affect the species or stock relatively limited); startle responses and localized through effects on annual rates of (3) The context in which the takes behavioral changes; recruitment or survival.’’ A negligible occur (i.e., impacts to areas of impact finding is based on the lack of (3) The considerable evidence, based significance, impacts to local on over 10 years of monitoring data, likely adverse effects on annual rates of populations, and cumulative impacts suggesting no long-term changes in the recruitment or survival (i.e., population- when taking into account successive/ use by harbor seal haulouts in the level effects). An estimate of the number contemporaneous actions when added project area as a result of launch of Level B harassment takes alone is not to baseline data); enough information on which to base an (4) The status of stock or species of operations. Launches will not occur impact determination. In addition to marine mammals (i.e., depleted, not more than a maximum of nine times per considering estimates of the number of depleted, decreasing, increasing, stable, year over the next five years. In past marine mammals that might be ‘‘taken’’ impact relative to the size of the years, AAC has conducted zero to two through behavioral harassment, we population); launches on an annual basis. NMFS has consider other factors, such as the likely (5) Impacts on habitat affecting rates analyzed the specified activity to nature of any responses (e.g., intensity, of recruitment/survival; and include disturbance events of up to nine duration), the context of any responses (6) The effectiveness of monitoring launches per year as AAC anticipate the (e.g., critical reproductive time or and mitigation measures. capability to carry out more efficient location, migration), as well as the For reasons stated previously in this mission turn-around time over the number and nature of estimated Level A document, the specified activities are duration of the proposed regulations;

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(4) Based on aerial survey data, the NMFS preliminarily finds that space Impact on Availability of Affected harbor seal population on Ugak Island vehicle and missile launches at the Species for Taking for Subsistence Uses has increased and is stable. As PSCA will have a negligible impact on Several communities on Kodiak discussed previously, the population of the affected marine mammal species or Island use harbor seals (and Steller sea harbor seals on Ugak Island has stock. lions) for subsistence uses. The increased steadily from several hundred communities closest to Ugak Island are in the 1990s (ENRI 1995–1998) to a peak Small Numbers Analysis Old Harbor and Kodiak City; each is of about 1,500 in 2008 (R&M 2007a, The numbers of proposed authorized over 35 miles from Ugak Island. The 2007b, 2008, 2009). Therefore, NMFS takes would be considered small Alaska Native Harbor Seal Commission does not believe there would be any relative to the relevant stocks or quantified the Kodiak area subsistence long-term impact on the health of the populations, eight percent for harbor take of harbor seals (and Steller sea population. Given harbor seals are seals. But, it is important to note that lions) in a report issued in 2011. Within considered a species that is easily the number of expected takes does not the last ten years, 2011, 2008, 2007, and disturbed, their resilience to launch necessarily represent of the number of 2006 were surveyed. On average, during effects suggest impacts from launches individual animals expected to be taken. the years surveyed in the last 10 years, are short-term and negligible; Our small numbers analysis accounts Kodiak city took 35.3 harbor seals and (5) Solid fuel rocket boosters would for this fact. Multiple exposures to Level fall into the ocean away from any Old Harbor took 35.2 harbor seals B harassment can accrue to the same annually. Specific locations of take are known or potential haulouts. All sonic individuals over the course of an booms that reach the earth’s surface not mentioned in this document. activity that occurs multiple times in Based on the distance from each would be expected to occur over open the same area (such as AAC’s proposed ocean beyond the OCS. Airborne launch community and the opportunities closer activity). This is especially likely in the to each community, either a small sounds would mostly reflect or refract case of species that have limited ranges from the water surface and, except for fraction of the averages provided, or no and that have site fidelity to a location take can be estimated from each sounds within a cone of approximately within the project area, as is the case 26 degrees directly below the launch community. It is possible that some with harbor seals. fraction of the average number of harbor vehicle, would not penetrate into the As described above, harbor seals are water column. The sounds that would seals taken listed above were taken from non-migratory, rarely traveling more Ugak Island specifically, but there is no penetrate would not persist in the water than 50 km from their haulout sites. for more than a few seconds. Overall, documentation to support that Thus, while the estimated abundance of rocket launch activities from PSCA conclusion. the South Kodiak stock of harbor seals would not be expected to cause any There is no expectation that harbor is 19,199 (Muto et al., 2015), a impacts to habitats used by marine seals will abandon sealing grounds, substantially smaller number of mammals, including pinniped haulouts, based on AAC’s launches or the individual harbor seals is expected to or to their food sources or would impact launches at other launch sites occur within the project area. We expect their survival, and; (e.g.,VAFB). In addition, no permanent (6) Mitigation measures to reduce that, because of harbor seals’ site fidelity barriers will be placed between the noise from launches once in the air are to locations at Ugak Island, and because subsistence hunter and pinnipeds on virtually impossible; however, the noise of their limited ranges, the same Ugak Island. There are temporary generated on the launch pad during individuals are likely to be taken closures of Ugak Island for a portion of ignition moves through a deep trench repeatedly over the course of the a 24-hour day during each launch. (called a flame trench or flame bucket) proposed activities. Therefore, the AAC will consult (as they have for that diverts the noise/exhaust toward number of exposures to Level B previous regulations) with the Alaska the northwest (away from Ugak Island). harassment over the course of proposed Native Harbor Seal Commission as well In addition, improved monitoring authorization (the total number of takes as the Kodiak communities before the would better enable AAC and NMFS to described in the Estimated Take by issuance of any final regulations to determine if impacts from rocket Incidental Harassment section) is ensure project activities do not impact launches are having short-term and expected to accrue to a much smaller relevant subsistence uses of marine long-term impacts on the present day number of individuals. The maximum mammals implicated by this action. pinniped populations on Ugak Island. number of harbor seals expected to be The time-lapse photography system taken by Level B harassment over the 5- Endangered Species Act would be able to detect impacts (takes) year regulations is 1,575. As we believe There is one marine mammal species from launch exposure, including the the same individuals are likely to be under NMFS’ jurisdiction that is listed number of pinnipeds flushing at the taken repeatedly over the course of the as endangered under the ESA with haulout sites, while quarterly aerial proposed activities, we use the estimate confirmed or possible occurrence in the surveys would aid in determining long- of 1,575 individual animals taken for action area, the Steller sea lion. NMFS term trends of pinniped abundance. The the purposes of estimating the and AAC consulted internally with AKR proposed monitoring measures percentage of the stock abundance likely under the ESA on its proposed issuance contained within this notice are to be taken. of AAC’s 2017 MMPA regulations and specifically designed to, among other Based on the analysis contained subsequent LOAs. It was determined things, determine if Level B Harassment herein of the likely effects of the that no effect would occur from the is occurring due to rocket launches from specified activity on marine mammals proposed activities; therefore, ESA AAC. and their habitat, and taking into consultation, formal or informal is not Based on the analysis contained consideration the implementation of the required. herein of the likely effects of the mitigation and monitoring measures, we specified activity on marine mammals preliminarily find that small numbers of National Environmental Policy Act and their habitat, and taking into marine mammals will be taken relative In 1996, the FAA prepared an EA, and consideration the implementation of the to the populations of the affected subsequently issued FONSI, for AAC’s mitigation and monitoring measures, species or stocks. proposal to construct and operate a

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launch site at Narrow Cape on Kodiak proposed rule, and are not repeated Dated: January 9, 2017. Island, Alaska. Since 1998, AAC has here. The provisions of the rule will Samuel D. Rauch, III, provided monitoring reports related to apply directly only to AAC. AAC is a Deputy Assistant Administrator for noise and marine mammal impacts public corporation of the State of Alaska Regulatory Programs, National Marine associated with ongoing rocket launches involved in space vehicles and guided Fisheries Service. from PSCA. After reviewing the new missiles, and it employs approximately For reasons set forth in the preamble, information contained in the monitoring 45 people. SBA’s regulations reports, and considering the MMC’s 50 CFR part 217 is proposed to be implementing the RFA have no ‘‘small’’ amended as follows: comments that impacts to harbor seals size standards for public administration should be more comprehensively entities that administer and oversee addressed, NMFS decided that a more PART 217—REGULATIONS government programs and activities that current environmental analysis was GOVERNING THE TAKE OF MARINE necessary. In 2005, NMFS prepared an are not performed by private MAMMALS INCIDENTAL TO EA and associated FONSI on the establishments. Accordingly, no small SPECIFIED ACTIVITIES Promulgation of Regulations entity will be affected by this proposed Authorizing Take of Marine Mammals rule. ■ 1. The authority citation for part 217 Incidental to Rocket Launches at Pacific The AAC may use a small number of continues to read as follows: Spaceport Complex Alaska, Kodiak contractors to provide services related to Authority: 16 U.S.C. 1361 et seq., unless Island, Alaska, and the Issuance of the proposed reporting requirements. otherwise noted. Subsequent Letters of Authorization. However, none of the authorizations or NMFS found that the promulgation of a ■ 2. Add subpart H to part 217 to read requirements imposed by this action as follows: 5-year rulemaking in 2006 and issuance will result in any of AAC’s contractors of subsequent LOAs would not expending any resources in order to be Subpart H—Taking of Marine Mammals significantly impact the quality of the in compliance with these proposed Incidental to Space Vehicle and Missile Launches at Pacific Spaceport Complex human environment and therefore regulations. Thus, the rule would have issued a FONSI. Accordingly, Alaska (PSCA), Alaska by Alaska no effect, directly or indirectly, on these preparation of an Environmental Impact Aerospace Corporation (AAC). small entities. Statement or Supplemental Sec. Environmental Impact Statement for Because AAC is the only entity that 217.70 Specified activity and specified this action was not necessary. A more would be directly affected by this geographical region. recent EA and FONSI was completed in proposed regulation and because the 217.71 [Reserved] April 2016 that addresses the potential effects of this regulation would impose 217.72 Permissible methods of taking. environmental impacts of the proposed no costs on any of the contractors— 217.73 Prohibitions. action where the FAA would modify the whether they are large or small 217.74 Mitigation. 217.75 Requirements for monitoring and AAC launch site operator license for the entities—there will be no significant PSCA. The EA evaluates the potential reporting. economic impact on a substantial 217.76 Letter of Authorization. environmental impacts of modifying the number of small entities. Accordingly, launch site operator license to include 217.77 Renewal of a Letter of no regulatory flexibility analysis is Authorization. medium-lift launch capability at PSCA necessary, and none has been prepared. 217.78 Modifications to a Letter of with the addition of new infrastructure Authorization. necessary to support these types of Notwithstanding any other provision launches, including the construction of of law, no person is required to respond Subpart H—Taking of Marine Mammals a launch pad and associated facilities. to nor shall a person be subject to a Incidental to Space Vehicle and Missile NMFS has determined that the proposed penalty for failure to comply with a Launches at Pacific Spaceport action was fully analyzed in the collection of information subject to the Complex Alaska (PSCA), Kodiak previous NEPA documents, particularly requirements of the Paperwork Island, Alaska by Alaska Aerospace the 2016 EA, and NMFS will adopt the Reduction Act (PRA) unless that Corporation (AAC). 2016 EA as necessary for the final collection of information displays a issuance of the regulations and currently valid OMB control number. § 217.70 Specified activity and specified subsequent LOA(s). This proposed rule contains a geographical region. Classification collection-of-information requirement (a) Regulations in this subpart apply subject to the provisions of the PRA. Pursuant to the procedures only to the AAC at the PSCA on Kodiak This collection has been approved established to implement section 6 of Island, Alaska, and those persons it Executive Order 12866, the Office of previously by OMB under section authorizes to conduct activities on its Management and Budget has 3504(b) of the PRA issued under OMB behalf for the taking of marine mammals determined that this proposed rule is control number 0648–0151, which that occurs in the area outlined in not significant. includes applications for LOAs and paragraph (b) of this section and Pursuant to section 605(b) of the reports. incidental to conducting up to nine space vehicle launches each year from Regulatory Flexibility Act (RFA), the List of Subjects in 50 CFR Part 217 Chief Counsel for Regulation of the PSCA, for a total of 45 launches over the Department of Commerce has certified Exports, Fish, Imports, Indians, 5-year period of these regulations. to the Chief Counsel for Advocacy of the Labeling, Marine mammals, Penalties, (b) The incidental take of marine Small Business Administration that this Reporting and record-keeping mammals under the activity identified proposed rule, if adopted, would not requirements, Seafood, Transportation. in paragraph (a) of this section is limited have a significant economic impact on to 315 harbor seals (Phoca vitulina a substantial number of small entities. A richardii) of all ages annually (total of description of this rule and its purpose 1,575 seals over the 5-year period of are found in the preamble to this these regulations).

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§ 217.71 [Reserved] surveys indicate that the distribution, Director, Office of Protected Resources, size, or productivity of the potentially NMFS, or designee, by telephone (301– § 217.72 Permissible methods of taking. affected pinniped populations has been 427–8401), within 48 hours of the injury Under a Letter of Authorization (LOA) affected due to the specified activity, the or death. issued pursuant to § 216.106 of this launch procedures and the monitoring (b) Holders of LOAs must designate chapter and § 217.70, the holder of the methods will be reviewed, in qualified, on-site individuals approved LOA (herein after AAC) and its cooperation with NMFS, and, if in advance by NMFS, as specified in the contractors may incidentally, but not necessary, appropriate changes may be LOA, to: intentionally, take harbor seals by Level made through modifications to a given (1) Deploy for AAC, time-lapsed B harassment in the course of LOA, prior to conducting the next photography systems designed to conducting space vehicle and missile launch of the same vehicle under that monitor pinniped abundance and detect launch activities within the area LOA; pinniped responses to rocket launches described in § 217.70(a), provided all (3) AAC will purchase and install conducted under these regulations. AAC terms, conditions, and requirements of time-lapsed photography systems in will monitor the effectiveness of these these regulations and such Letter of order to survey each of the three systems, comparing the results to aerial Authorization are complied with. pinniped haulout locations around Ugak surveys from at least five launches; § 217.73 Prohibitions. Island to confirm the abundance of (2) Ensure the time-lapsed pinnipeds at the haulouts and allow for Notwithstanding takings photography systems will be in place the more complete surveying efforts. and operating in locations that allow for contemplated in § 217.70(b) and The number of camera systems, authorized by an LOA issued under visual monitoring of all three pinniped equipment capabilities, placement of haulouts during launches. § 216.106 of this chapter and § 217.76, the systems to be used, and the daily no person in connection with the (3) Relocate the time-lapsed photo frequency will be determined photography systems in cooperation activities described in § 217.70 may: through a cooperative effort between (a) Take any marine mammal not with NMFS after five launches if the AAC, NMFS, and field experts; system is not accurately capturing all specified in § 217.70(b); (4) AAC will conduct a correlation (b) Take any marine mammal three pinniped haulouts and total study in coordination with NMFS. The pinniped abundance during the specified in § 217.70(b) other than by purpose of the study is to evaluate the incidental, unintentional Level B launches; effectiveness of the time-lapsed (4) Review and log pinniped presence, harassment; photography systems (specifically, the (c) Take a marine mammal specified abundance, behavior, and re-occupation accuracy of the photography systems time from the data obtained from the in § 217.70(b) if NMFS determines such compared with aerial count surveys). taking results in more than a negligible time-lapsed photography systems and The results of this study will determine report results to NMFS within 90 days impact on the species or stocks of such the need to continue aerial surveys. The marine mammal; or of the first five launches under this study will be conducted through a system; (d) Violate, or fail to comply with, the minimum of five launches; terms, conditions, and requirements of (5) Conduct one pre-launch aerial (5) All Castor 120 equivalent launches survey and one post-launch aerial this subpart or an LOA issued under will be conducted at LP1 which is § 216.106 of this chapter and § 217.76. survey for each launch. AAC will equipped with a concrete and water- conduct a minimum of one aerial survey § 217.74 Mitigation. filled flame trench. The purpose of the annually (in the event no launch occurs flame trench is to direct smoke away (a) When conducting operations during a calendar year); and from the launch pad and to absorb light identified in § 217.70(a), the mitigation (6) Conduct quarterly aerial surveys, and noise at their, respective peaks (i.e. measures contained in the LOA issued ideally during mid-day coinciding with lift-off) to reduce the noise created under § 216.106 of this chapter and low tide, to obtain data on pinniped during each launch; and § 217.76 must be implemented. The presence, abundance, and behavior (6) Additional mitigation measures as activity identified in § 217.70(a) must be within the action area to determine contained in an LOA. long-term trends in pinniped haulout conducted in a manner that minimizes, (b) [Reserved] to the greatest extent practicable, use. Results of these quarterly surveys adverse impacts on marine mammals § 217.75 Requirements for monitoring and will be reported once as part of the and their habitats. These mitigation reporting. annual report required under paragraph measures include (but are not limited (a) Holders of LOAs issued pursuant (e) of this section. to): to § 216.106 of this chapter and § 217.76 (c) Holders of LOAs must conduct (1) Security overflights associated for activities described in § 217.70(a) are additional monitoring as required under with a launch will not approach required to cooperate with NMFS, and an LOA. occupied pinniped haulouts on Ugak any other Federal, State, or local agency (d) Holders of an LOA must submit a Island by closer than 0.25 miles (mi) with authority to monitor the impacts of report to the Alaska Region (0.4 kilometer (km)), and will maintain the activity on marine mammals. Unless Administrator, NMFS, within 90 days a vertical distance of 1,000 feet (ft) (305 specified otherwise in the LOA, the after each launch. This report must meter (m)) from the haulouts when holder of the LOA must notify the contain the following information: within 0.5 mi (0.8 km), unless Administrator, Alaska Region, NMFS, (1) Date(s) and time(s) of the launch; indications of human presence or by letter, email or telephone, at least (2) Location of the time-lapsed activity warrant closer inspection of the two weeks prior to each launch. If the photography systems; area to assure that national security authorized activity identified in (3) Design of the monitoring program interests are protected in accordance § 217.70(a) is thought to have resulted in for the time-lapsed photography systems with law; the mortality or injury of any marine and a description of how data is stored (2) If launch monitoring detects mammals or take of marine mammals and analyzed; and pinniped injury or death, or if long-term not identified in § 217.70(b), then the (4) Results of the monitoring program trend counts from quarterly aerial holder of the LOA must notify the for the time-lapsed photography

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systems, including, but not necessarily (e) The LOA will set forth: with AAC regarding the practicability of limited to: (1) The number of marine mammals, the modifications) if doing so creates a (i) Numbers of pinnipeds, by species by species and age class, authorized to reasonable likelihood of more and age class (if possible), present on be taken; effectively accomplishing the goals of the haulout prior to commencement of (2) Permissible methods of incidental the mitigation and monitoring set forth the launch; taking; in the preamble for these regulations: (ii) Numbers of pinnipeds, by species (3) Means of effecting the least (i) Possible sources of data that could and age class (if possible), that may have practicable adverse impact (i.e., contribute to the decision to modify the been harassed, including the number mitigation) on the species of marine mitigation, monitoring, or reporting that entered the water as a result of mammals authorized for taking, its measures in an LOA: launch noise; habitat, and on the availability of the (A) Results from AAC’s monitoring (iii) The length of time pinnipeds species for subsistence uses; and from the previous year(s); remained off the haulout during post- (4) Requirements for monitoring and (B) Results from other marine launch monitoring; reporting. mammal and/or sound research or (iv) Number of harbor seal pups that (f) Issuance of an LOA shall be based studies; and may have been injured or killed as a on a determination that the level of (C) Any information that reveals result of the launch; and taking will be consistent with the marine mammals may have been taken (v) Other behavioral modifications by findings made for the total taking in a manner, extent or number not pinnipeds that were likely the result of allowable under these regulations. authorized by these regulations or launch noise. (g) Notice of issuance or denial of an subsequent LOAs. (e) An annual report must be LOA will be published in the Federal (ii) If, through adaptive management, submitted on March 1 of each year that Register within 30 days of a the modifications to the mitigation, will include results of the aerial determination. monitoring, or reporting measures are quarterly trend counts of pinnipeds and substantial, NMFS will publish a notice comparison of the results using the § 217.77 Renewal of a Letter of Authorization. of proposed LOA in the Federal time-lapsed photography systems on Register and solicit public comment. Ugak Island. Future aerial surveys may (a) An LOA issued under § 216.106 of this chapter and § 217.76 for the activity (2) Emergencies—If NMFS determines be reduced if the time-lapsed that an emergency exists that poses a photography systems capture similar or identified in § 217.70(a) will be renewed or modified upon request by the significant risk to the well-being of the better data than aerial surveys. species or stocks of marine mammals (f) A final report must be submitted at applicant, provided that: (1) The proposed specified activity specified in §§ 217.70(b) and 217.72(a), least 90 days prior to expiration of these an LOA may be modified without prior regulations if new regulations are sought and mitigation, monitoring, and reporting measures, as well as the notice or opportunity for public or 180 days after expiration of comment. Notice would be published in regulations. This report will: anticipated impacts, are the same as those described and analyzed for these the Federal Register within 30 days of (1) Summarize the activities the action. undertaken and the results reported in regulations (excluding changes made all previous reports; pursuant to the adaptive management [FR Doc. 2017–00621 Filed 1–18–17; 8:45 am] (2) Assess the impacts of launch provision in § 217.77(c)(1)), and BILLING CODE 3510–22–P activities on pinnipeds within the (2) NMFS determines that the mitigation, monitoring, and reporting action area, including potential for pup DEPARTMENT OF COMMERCE injury and mortality; measures required by the previous LOA (3) Assess the cumulative impacts on under these regulations were implemented. National Oceanic and Atmospheric pinnipeds and other marine mammals Administration from multiple rocket launches; and (b) For an LOA modification or renewal requests by the applicant that (4) State the date(s), location(s), and 50 CFR Part 648 findings of any research activities include changes to the activity or the related to monitoring using time-lapsed mitigation, monitoring, or reporting [Docket No.: 161118999–7008–01] (excluding changes made pursuant to photography systems on marine RIN 0648–BG46 mammal populations. the adaptive management provision in § 217.77(c)(1)) that do not change the Fisheries of the Northeastern United § 217.76 Letter of Authorization. findings made for the regulations or States; Atlantic Sea Scallop Fishery; (a) To incidentally take marine result in no more than a minor change Framework Adjustment 28 mammals pursuant to these regulations, in the total estimated number of takes AAC must apply for and obtain an LOA. (or distribution by species or years), AGENCY: National Marine Fisheries (b) An LOA, unless suspended or NMFS may publish a notice of proposed Service (NMFS), National Oceanic and revoked, may be effective for a period of LOA in the Federal Register, including Atmospheric Administration (NOAA), time not to exceed the expiration date the associated analysis illustrating the Commerce. of these regulations. change, and solicit public comment ACTION: Proposed rule; request for (c) If an LOA expires prior to the before issuing the LOA. comments. expiration date of these regulations, (c) An LOA issued under § 216.106 of AAC must apply for and obtain a this chapter and § 217.76 for the activity SUMMARY: NMFS proposes to approve renewal of the LOA. identified in § 217.70(a) may be and implement measures included in (d) In the event of projected changes modified by NMFS under the following Framework Adjustment 28 to the to the activity or to mitigation and circumstances: Atlantic Sea Scallop Fishery monitoring measures required by an (1) Adaptive Management—NMFS Management Plan, which the New LOA, AAC must apply for and obtain a may modify (including augment) the England Fishery Management Council modification of the LOA as described in existing mitigation, monitoring, or adopted and submitted to NMFS for § 217.77. reporting measures (after consulting approval. The purpose of Framework 28

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