Federal Register / Vol. 71, No. 17 / Thursday, January 26, 2006 / Rules and Regulations

Federal Register / Vol. 71, No.
17 / Thursday, January 26, 2006 / Rules and Regulations 4297
Unfunded Mandates Reform not result in the physical occupancy of has no effects on Federally recognized
We have determined and certify property, the physical invasion of Indian tribes.
pursuant to the Unfunded Mandates property, or the regulatory taking of any
List of Subjects in 50 CFR Part 20
Reform Act, 2 U.S.C. 1502 et seq., that property. A takings assessment is not
required. Exports, Hunting, Imports, Reporting
this rulemaking will not significantly or
and recordkeeping requirements,
uniquely affect small governments or Federalism Effects Transportation, Wildlife.
produce a Federal mandate of $100
million or more in any given year. This rule does not have a substantial ■ For the reasons discussed in the
Therefore, this rule does not constitute direct effect on fiscal capacity, change preamble, we amend part 20, subchapter
a significant regulatory action under the the roles or responsibilities of Federal or B, chapter I of Title 50 of the Code of
Unfunded Mandates Reform Act. State governments, or intrude on State Federal Regulations as follows:
policy or administration. In accordance
Civil Justice Reform—Executive Order with Executive Order 13132, this PART 20—[AMENDED]
12988 regulation does not have significant
■ 1. The authority citation for part 20
In promulgating this rule, we have federalism effects, nor does it have
continues to read as follows:
determined that these regulations meet sufficient federalism implications to
warrant the preparation of a Federalism Authority: 16 U.S.C. 703–712; 16 U.S.C.
the applicable standards provided in
Assessment. 742a–j; Pub. L. 106–108.
Sections 3(a) and 3(b)(2) of Executive
Order 12988. Government-to-Government ■ 2. Section 20.21 is amended by
Takings Relationship With Tribes revising paragraph (j) to read as follows:
In accordance with Executive Order In accordance with the President’s § 20.21 What hunting methods are illegal?
12630, this rule, authorized by the memorandum of April 29, 1994, * * * * *
Migratory Bird Treaty Act, does not ‘‘Government-to-Government Relations (j) While possessing loose shot for
have significant takings implications with Native American Tribal muzzle loading or shotshells containing
and does not affect any constitutionally Governments’’ (59 FR 22951) and 512 other than the following approved shot
protected property rights. This rule will DM 2, we have determined that this rule types.
Approved shot type * Percent composition by weight Field testing device **
bismuth-tin .......................................................... 97 bismuth, 3 tin .............................................. HOT*SHOT. ***

iron (steel) .......................................................... iron and carbon ................................................ Magnet or HOT*SHOT.
iron-tungsten ....................................................... any proportion of tungsten, ≥1 iron ................. Magnet or HOT*SHOT.
iron-tungsten-nickel ............................................ ≥1 iron, any proportion of tungsten, up to 40 Magnet or HOT*SHOT. **
nickel.
tungsten-bronze .................................................. 51.1 tungsten, 44.4 copper, 3.9 tin, 0.6 iron Rare Earth Magnet.
and 60 tungsten, 35.1 copper, 3.9 tin, 1 iron.
tungsten-iron-copper-nickel ................................ 40–76 tungsten, 10–37 iron, 9–16 copper, 5– HOT*SHOT or Rare Earth Magnet.
7 nickel.
tungsten-matrix ................................................... 95.9 tungsten, 4.1 polymer .............................. HOT*SHOT.
tungsten-polymer ................................................ 95.5 tungsten, 4.5 Nylon 6 or 11 ..................... HOT*SHOT.
tungsten-tin-iron .................................................. any proportions of tungsten and tin, ≥1 iron ... Magnet or HOT*SHOT.
tungsten-tin-bismuth ........................................... any proportions of tungsten, tin, and bismuth. Rare Earth Magnet.
tungsten-tin-iron-nickel ....................................... 65 tungsten, 21.8 tin, 10.4 iron, 2.8 nickel ...... Magnet.
* Coatings of copper, nickel, tin, zinc, zinc chloride, and zinc chrome on approved nontoxic shot types also are approved.
** The information in the ‘‘Field Testing Device’’ column is strictly informational, not regulatory.
*** The ‘‘HOT*SHOT’’ field testing device is from Stream Systems of Concord, CA.
* * * * * DEPARTMENT OF COMMERCE SUMMARY: NMFS, upon application from

Dated: January 13, 2006. the Alaska Aerospace Development
National Oceanic and Atmospheric Corporation (AADC), is issuing
Paul Hoffman, Administration regulations to govern the unintentional
Assistant Secretary for Fish and Wildlife and takings of small numbers of marine
Parks. 50 CFR Part 216 mammals incidental to rocket launches
[FR Doc. 06–745 Filed 1–25–06; 8:45 am] from the Kodiak Launch Complex (KLC)
[Docket No. 011011247–6006–03; I.D.
BILLING CODE 4310–55–P
082701E] on Kodiak Island, AK. Issuance of
regulations is required by the Marine
RIN 0648–AP62 Mammal Protection Act (MMPA) when
the Secretary of Commerce (Secretary),
Taking and Importing Marine after notice and opportunity for
Mammals; Taking Marine Mammals comment, finds, as here, that such takes
Incidental to Rocket Launches from will have a negligible impact on the
Kodiak Island, AK species and stocks of marine mammals
AGENCY: National Marine Fisheries and will not have an unmitigable
erjones on PROD1PC68 with RULES
Service (NMFS), National Oceanic and adverse impact on their availability for
Atmospheric Administration (NOAA), subsistence uses. These regulations do
Commerce. not authorize AADC’s rocket launch
activities, as such authorization is not
ACTION: Final rule.
within the jurisdiction of the Secretary.
VerDate Aug<31>2005 14:52 Jan 25, 2006 Jkt 208001 PO 00000 Frm 00067 Fmt 4700 Sfmt 4700 E:\FR\FM\26JAR1.SGM 26JAR1
4298 Federal Register / Vol. 71, No. 17 / Thursday, January 26, 2006 / Rules and Regulations
Rather, these regulations govern the NMFS has defined ‘‘negligible Federal Aviation Administration (FAA),
issuance of ‘‘Letters of Authorization’’ impact’’ in 50 CFR 216.103 as ‘‘an Office of Associate Administrator for
(LOAs) for the unintentional incidental impact resulting from the specified Commercial Space Transportation
take of marine mammals in connection activity that cannot be reasonably (AST), in accordance with the facility’s
with this activity and prescribe methods expected to, and is not reasonably likely Environmental Assessment (EA) and
of taking and other means of effecting to, adversely affect the species or stock stipulations in the EA’s Finding of No
the least practicable adverse impact on through effects on annual rates of Significant Impact (FONSI) (see 61 FR
marine mammal species and their recruitment or survival.’’ 32884, June 25, 1996). These
habitat, and on the availability of the Except with respect to categories of stipulations included a requirement to
species for subsistence uses. In addition, activities not pertinent here, the MMPA develop a Natural Resource
NMFS incorporates reporting and defines ‘‘harassment’’ as: Management Plan (NRMP) to address
monitoring requirements. any act of pursuit, torment, or annoyance monitoring and mitigation activities for
which (i) has the potential to injure a marine protected species in the area. This plan
DATES: Effective from February 27, 2006 mammal or marine mammal stock in the wild
through February 28, 2011. was developed in coordination with
[Level A harassment]; or (ii) has the potential
A copy of the AADC application to disturb a marine mammal or marine NMFS utilizing comparison of
which contains a list of the references mammal stock in the wild by causing anticipated sound pressure levels from
used in this document may be obtained disruption of behavioral patterns, including, rocket motors to be launched from the
by writing to Steve Leathery, Division of but not limited to, migration, breathing, KLC with documented marine mammal
Permits, Conservation, and Education, nursing, breeding, feeding, or sheltering disturbance responses to such noise.
[Level B harassment].
Office of Protected Resources, National Measurement of Airborne Sound Levels
Marine Fisheries Service, 1315 East- Summary of Request
West Highway, Silver Spring, MD The following section is provided to
On July 26, 2001, NMFS received an facilitate an understanding of airborne
20910–3226 or by telephoning the application from the AADC under and impulsive noise characteristics.
contact listed here (see FOR FURTHER section 101(a)(5)(A) of the MMPA for Amplitude is a measure of the pressure
INFORMATION CONTACT). The NMFS authorization to take, by harassment, of a sound wave that is usually
Administrative Record will be Steller sea lions (Eumetopias jubatus) expressed on a logarithmic scale with
maintained at the above address. incidental to rocket launches from KLC
Comments regarding the burden-hour units of sound level or intensity called
on Kodiak Island, Alaska. A proposed the decibel (dB). Sound pressure level
estimate or any other aspect of the rule was published on October 29, 2004
collection of information requirement (SPL) is described in units of dB re
(69 FR 63114). Comments on the micro-Pascal (micro-Pa); for energy, the
contained in this proposed rule should proposed rule received from the Marine sound energy level (SEL), a measure of
be sent to NMFS via the means stated Mammal Commission (MMC) the cumulative energy in a noise event,
above, and to the Office of Information recommended NMFS consider also is described in terms of dB re micro-
and Regulatory Affairs, Office of authorizing take of Pacific harbor seals Pa2–second (dB re micro-Pa2–s); and
Management and Budget (OMB), (Phoca vitulina richardsi), as they are frequency, often referred to as pitch, is
Attention: NOAA Desk Officer, also found in the vicinity of KLC. After described in units of cycles per second
Washington, DC 20503, consulting with AADC and reanalyzing or Hertz (Hz). In other words, SEL is the
DavidlRustker@eap.omb.gov. the distribution and habits of harbor squared instantaneous sound pressure
FOR FURTHER INFORMATION CONTACT: Jolie seals in the area, NMFS has included over a specified time interval, where the
Harrison, (301) 713–2289 ext 166, or take of harbor seals in the final rule. sound pressure is averaged over 5
Brad Smith, (907) 271–3023. These regulations will allow NMFS to percent to 95 percent of the duration of
SUPPLEMENTARY INFORMATION: issue annual Letters Of Authorization the sound.
(LOAs) to the AADC. A full description For airborne noise measurements the
Background of the operations is contained in the convention is to use 20 micro-Pa as the
Section 101(a)(5)(A) of the MMPA(16 AADC application (AADC, 2001) which reference pressure, which is the
U.S.C. 1361 et seq.) directs the Secretary is available upon request (see approximate threshold for onset of
to allow, upon request, the incidental, ADDRESSES) or at: http:// human hearing and is 26 dB above the
but not intentional taking of marine www.nmfs.noaa.gov/protlres/PR2/ underwater sound pressure reference of
mammals by U.S. citizens who engage SmalllTake/ 1 micro-Pa and is. However, the
in a specified activity (other than smalltakelinfo.htm#applications. conversion from air to water intensities
commercial fishing) within a specified The KLC is a commercial rocket is more involved than this and is
geographical region if certain findings launch complex owned and operated by beyond the scope of this document.
are made and regulations are issued. the State of Alaska through the AADC. NMFS recommends interested readers
Authorization may be granted for Located wholly on state-owned lands, review NOAA’s tutorial on this issue:
periods of 5 years or less if the Secretary KLC occupies 43 acres (0.2 km2) within http://www.pmel.noaa.gov/vents/
finds that the total taking will have a a 3,100 acre (12.6 km2) parcel on the acoustics/tutorial/tutorial.html.
negligible impact on the species or eastern side of Kodiak Island on the Airborne sounds are also often
stock(s), will not have an unmitigable Narrow Cape peninsula. The KLC was expressed as broadband A-weighted
adverse impact on the availability of the designed to accommodate a variety of (dBA) or C-weighted (dBC) sound levels.
species or stock(s) for subsistence uses, small, solid rockets including such When frequency levels are made to
and regulations are prescribed setting vehicles as the Minuteman II, Taurus, correspond to human hearing, they are
forth the permissible methods of taking, Conestoga, and Athena (Lockheed referred to as being A-weighted or A-
other means of effecting the least Martin Launch Vehicle). The largest filtered. With A-weighting, sound
practicable adverse impact on the vehicle that can be launched from KLC energy at frequencies below 1 kHz and
affected species or stocks and their is the Athena–2 (Lockheed Martin above 6 kHz are de-emphasized and
habitats, and the requirements Vehicle–2). approximates the human ear’s response
pertaining to the monitoring and Launch operations at the KLC are to sounds below 55 dB. C-weighting is
reporting of such taking. authorized under license from the often used in the analysis of high-
Federal Register / Vol. 71, No. 17 / Thursday, January 26, 2006 / Rules and Regulations 4299
amplitude noises like explosions, and westernmost azimuth, the vehicle being associated with the largest launch
corresponds to the relative response to would pass along the southeastern edge vehicle flown. Variations in the KLC
the human ear to sound levels above 85 of the Kodiak Archipelago. sound pressure record are likely due to
dB. C-weighting de-emphasizes ear Approximately 70 seconds after launch, such variables as engine size, engine
frequency components of less than a typical launch vehicle would be more bell shape, and local atmospheric
about 50 Hz. C-weight scaling is also than 8 miles (12.5 km) high. Spent first- conditions. Summaries of the findings
useful for analyses of sounds having stage rocket motors and fuel casings for each of the measured rocket
predominantly low-frequency sounds, would impact the ocean’s surface from launches to date are described below. A
such as sonic booms. For continuous 11 to 314 n-mi (20 to 582 km) complete description of the proposed
noise like rocket launches, the downrange, depending on the launch rocket launches from KLC may be found
important variables relevant to assessing vehicle (AADC and AST, 1996). Rocket in AADC’s application, which may be
auditory impacts or behavioral motor sonic booms are predicted to viewed at: http://www.nmfs.noaa.gov/
responses are intensity, frequency reach the ocean surface over 20 miles protlres/PR2/SmalllTake/
spectrum, and duration. In this (32 km) downrange beyond the outer smalltakelinfo.htm#applications. This
document, sound levels have been continental shelf over deep ocean. information is incorporated into this
provided with A-weighting. Launch operations are a major source document by reference.
Description of the Activity of noise on Kodiak Island, as the ait–1
To date there have been eight rocket operation of launch vehicle engines
produces significant sound levels. The first launch from KLC occurred in
launches from the KLC; however, the November 1998, and was the first of the
KLC facility is licensed to launch up to Generally, four types of noise occur
during a launch. They are: (1) USAF ait program. Sound
nine rockets per year. The first two
Combustion noise from launch vehicle measurements from the ait–1 launch
launches used composite vehicles built
chambers; (2) jet noise generated by the were collected using two sound level
from several stages taken from a
interaction of the exhaust jet and the monitors (SLMs) that were deployed 26
decommissioned USAF Minuteman II
atmosphere; (3) combustion noise from hours before launch on Ugak Island at
launch vehicle, and were part of the
the post-burning of combustion the base of the spit used as a haulout by
U.S. Air Force (USAF) atmospheric
products; and (4) sonic booms. The Steller sea lions. The SLMs were set to
interceptor technology (ait) program.
principal objective of the KLC rocket highlight sounds exceeding 65 dB,
The third and the sixth launches (March
motor noise monitoring task within the which was done after checking real-time
2001 and April 2002) were part of the
NRMP was to measure A-weighted sound levels in the field at each site
USAF Quick Reaction Launch Vehicle
(QRLV) program, and comprised of Sound Energy Levels (ASELs) at the prior to setting them to record data. If
single stage M–56 motors taken from a Ugak Island Steller sea lion haulout. A the exceedance levels were set too low,
decommissioned USAF Minuteman II secondary objective was to monitor the SLMs would be deluged with data,
launch vehicle. The fourth launch sound levels on Narrow Cape close to and if they were set too high the SLMs
(September 2001) was a commercial bald eagle and/or Steller’s eider nests would miss the event of interest. A
Lockheed/Martin Athena rocket, which when present. ASELs were successfully digital audio tape (DAT) recorder was
is the largest vehicle to be launched recorded for the first four and the used to provide redundancy in
from KLC, and it placed four satellites seventh launches from KLC at the Ugak recording noise frequencies and was
into polar orbit. The fifth, seventh, and Island Steller sea lion haulout and on placed about 0.75 mi (1.2 km) from the
eighth launches (November 2001, Narrow Cape by the University of KLC launch pad.
December 2004, and February 2005) Alaska Anchorage’s Environment and Recorded sound pressure levels
were Department of Defense (DoD) Natural Resources Institute (ENRI). The (SPLs) of rocket motor noise for the ait–
Strategic Target System (STARS) Ugak Island haulout is located 1 at the Ugak Island haulout site were
vehicles and consisted of the first two approximately 2 miles (3.2 km) from 78.2 dB re 20 microPa with a peak level
stages of a decommissioned A–3 missile Narrow Cape and about 3.5 miles (5.6 of 97 dB (Table 1). The associated ASEL
and an Orbis third stage. km) from the KLC launch pad on a at the Ugak Island haulout was 88.4 dB
Launches from the KLC are expected narrow sand spit on the north side of re 20 microPa2 s. In addition, the ASEL
to be at high inclination with launch the Island. The data gathered were at the nearest location measured by the
azimuths ranging from 125 to 225 weighted toward frequencies that DAT recorder was 110 dB for a duration
degrees in direction (AADC and AST, humans are more sensitive to (1–6 kHz, of 59 seconds. The bulk of the sound
1996). At the easternmost azimuth, A-weighted) and showed a wide energy was at low frequencies and
launch vehicle paths would pass over variation in sound pressures among generally less than 4000 Hz. Most of the
the eastern edge of Ugak Island; at the rocket motors, with the highest levels energy was from 100 to 500 Hz.
Of the eight noise events recorded rocket noise; none coincides with a There were 17 noise events above 70
above 65 dB at Ugak Island, ENRI stampede of Steller sea lions off the dB at Ugak Island. With the exception
determined that two are attributable to Ugak Island haulout 3.5 hours previous of the rocket launch, all can be related
helicopter noise and one to the firing of to the rocket launch. Sounds at the Ugak to helicopter noise. Sounds at the Ugak
the ait–1 rocket motor. Sounds at the Island site were above 70 dB for a total Island site were above 70 dB for a total
Ugak Island site were above 65 dB for of 30 seconds at the time the rocket of 10.9 seconds at the time the rocket
a total of 33 seconds at the time the motor was firing. Natural background motor was firing. Natural background
rocket motor was firing. Due to the noise levels above 70 dB were almost noise levels above 70 dB were almost
isolation of this site, the remainder of nonexistent during this launch. nonexistent during this launch. Rocket
the events are most likely attributable to noise measurements for the QRLV–2
surf or wind action. QRLV–1 rocket launch on April 24, 2002, the
sixth rocket launched from KLC, were
ait–2 On March 22, 2001, the USAF
not recorded, though most likely they
USAF launched a second rocket from conducted the third launch from KLC.
would be similar to those measured
KLC on September 15, 1999. Based on SLMs set to highlight sounds exceeding
during the first QRLV launch.
experience from the first launch, ENRI 70 dB at the base of the Ugak Island sea
set the SLMs to highlight sounds lion haulout were again used by ENRI Athena
exceeding 70 dB and deployed them to record sound frequency and intensity, The fourth launch from KLC occurred
about 19 hours before the launch. Sound and were deployed 22 hours before the on September 29, 2001, and involved a
pressures at Ugak Island were slightly launch. The recorded sound levels at commercial Lockheed/Martin Athena,
higher for the second launch than for Ugak Island were significantly lower for which is the largest vehicle to be
the first launch. Recorded maximum the QRLV–1 launch than for either of launched from KLC. SLMs were again
SPLs of rocket motor noise for the ait– the ait launches. This is likely due to set to highlight sounds exceeding 70 dB
2 at the Ugak Island haulout site were the vehicle being smaller, and possibly and were deployed by ENRI at the Ugak
81.5 dB, with a peak level of 101.5 dB, to a different trajectory and local Island haulout four hours before the
and a corresponding SEL of 92.2 dB. atmospheric condition. Recorded launch. The recorded sound levels at
The bulk of the sound energy was at low maximum SPLs resulting from QRLV Ugak Island were significantly higher
frequencies and generally less than 2500 rocket motor noise at the Ugak Island for the Athena launch than for previous
Hz. Most of the energy was from 25 to haulout site were 73.3 dB, with a peak launches, which is likely due to the size
1000 Hz. level of 87.2 dB, and a corresponding of the vehicle. Recorded maximum SPLs
There were 15 noise events above 70 SEL of 80.3 dB. The bulk of the sound resulting from Athena rocket motor
dB within the 19 hours of recording at energy was at low frequencies and noise at the Ugak Island haulout site
Ugak Island, all of which can be generally less than 2500 Hz. Most of the were 90.8 dB, with a peak level of 115.9
attributed to helicopter, airplane, or energy was from 16 to 2000 Hz. dB, and a corresponding SEL of 101.4
ER26JA06.000</GPH>
dB. The bulk of the sound energy was Comments and Responses damaging to the ecosystem and a waste
at low frequencies and generally less On October 29, 2004 (69 FR 63114), of money.
than 2000 Hz. Response: These regulations do not
NMFS published a notice of proposed
There were three exceedance events authorize AADC’s rocket launch
rulemaking on AADC’s request to take
above 70 dB at Ugak Island and Narrow activities, because such authorization is
marine mammals incidental to rocket
Cape within the four hours of recording, not within the jurisdiction of the
launches at KLC and requested
two of which can be attributed to Secretary. Rather, these regulations
comments, information and suggestions
helicopter noise and the other to the authorize the unintentional incidental
concerning the request. During the 45–
rocket launch. Sounds at the Ugak take of marine mammals in connection
day public comment period, NMFS
Island site were above 70 dB for 49.6 with this activity and prescribe methods
received comments from three members
seconds at the time the rocket motor of taking and other means of effecting
of the public and the MMC. The MMC the least practicable adverse impact on
was firing. Natural background noise supports NMFS’ intent to implement
levels above 70 dB were nonexistent marine mammal species and their
incidental take regulations for the habitat, and on the availability of the
during this launch. AADC’s activities at KLC provided that species for subsistence uses. Thus, the
STARS the mitigation and monitoring activities comment is outside of the scope of this
described in the AADC application for rulemaking.
On November 9, 2001, the Department regulations are incorporated into the
of Defense launched a STARS vehicle Comment 5: Another commenter also
proposal. objected forcefully to the project (see
from KLC; however, the rocket was Comment 1: The MMC noted that
deliberately destroyed over open ocean response to Comment 4, above) and
harbor seals and other marine mammals further asserted that there is no reason
almost immediately because it lost occur in the vicinity of KLC and
communication with KLC. The STARS to allow this killing of marine mammals.
recommended that NMFS consider This commenter also expressed doubt in
program provides ballistic missile providing additional coverage to the
targets to test various sensors and the accuracy of the measured noise
applicant by authorizing take of harbor levels at the site.
ground-based interceptors. STARS seals and other marine mammals to Response: Section 101(a)(5)(A) of the
vehicles will include first- and second- reduce the possibility that the applicant Marine Mammal Protection Act
stage Polaris A3 boosters and a third- may engage in an impermissible taking. (MMPA) (16 U.S.C. 1361 et seq.) states
stage Orbus–1 booster. The range of this Response: After reviewing available that the Secretary shall allow the
system is 620 to 3,418 miles (998 to information regarding the abundance, incidental, but not intentional taking of
5500 km). distribution, and behavior of marine small numbers of marine mammals by
The seventh launch from KLC, of the mammals around KLC and consulting U.S. citizens who engage in a specified
STARS IFT 13C, occurred on December with AADC, NMFS has included activity (other than commercial fishing)
14, 2004. SLMs were set to highlight authorization for the take of harbor seals within a specified geographical region if
sounds exceeding 70 dB and were in this final rule. NMFS determined, certain findings are made and
deployed by ENRI only at Narrow Cape however, that no other marine mammals regulations are issued. NMFS has
(because sea lions were not present at were likely to be taken by the rocket determined that this activity will take
Ugak Island) eight hours before the launches, and, therefore, AADC has not only small numbers of marine
launch. Narrow Cape is significantly been authorized for the take of any other mammals, that the taking will have a
closer to the launch site than Ugak marine mammal species. negligible impact on the affected species
Island. The recorded sound levels at Comment 2: The MMC recommended or stocks, and that the activity will not
Narrow Cape were higher for this that AADC contact the U.S. Fish and have an unmitigable adverse effect on
launch than for previous launches, Wildlife Service (USFWS) to determine the availablility of the species or stock
which is likely due to a different if authorization for the incidental taking for subsistence uses. NMFS has also set
trajectory and local atmospheric of small numbers of sea otters is needed. forth permissible methods of taking,
conditions. Recorded maximum SPLs Response: AADC is consulting with means of effecting the least practicable
resulting from rocket motor noise at the USFWS regarding potential take of adverse effect on the species or stock,
Narrow Cape were 105.2 dB, with a sea otters. and requirements pertaining to the
peak level of 128.8 dB, and a Comment 3: The MMC further monitoring and reporting of such taking.
corresponding SEL of 114.3 dB. The recommended that the proposed Therefore, NMFS has promulgated these
bulk of the sound energy was at low monitoring program be expanded to regulations and will issue the
frequencies and generally less than 2000 determine the effects on harbor seals, authorization.
Hz. There were over three hundred sea otters, and other marine mammal The sound measurements reported
exceedance events above 70 dB at species to determine if authorizations from Ugak Island are similar in level to
Narrow Cape within the eighteen hours for these species are needed or, if those reported at other launch sites. If
of recording, two of which can be authorization to take these species is information were provided to NMFS
attributed to helicopter noise and the provided, to verify that the impacts on that suggested AADC’s sound
other to the rocket launch. With the the affected stocks are negligible. measurements were incorrect, NMFS
exception of helicopter noise and the Response: As take of harbor seals is would investigate. The rule includes the
rocket launch, all exceedances at or just authorized under this rule, following requirement: ‘‘In coordination
above 70 dB can be connected to comprehensive requirements for the and compliance with the Alaska
weather-related noise (wind and rain). monitoring of harbor seals are now Aerospace Development Corporation,
Rocket noise measurements for the included. Additionally, AADC is the National Marine Fisheries Service
STARS IFT 14 rocket launch on required to report sightings of any may place an observer on Kodiak or
February 13, 2005, the eighth rocket marine mammals seen during aerial Ugak Islands for any marine mammal
launched from KLC, were not recorded, surveys or on videotapes. monitoring activity prior to, during, or
though most likely they would be Comment 4: One commenter after a missile launch to monitor
similar to those measured during the expressed strong objections to the rocket impacts on marine mammals, provided
STAR IFT 13C launch. launch facility and asserted that it was observers are not within the calculated
danger zone of the rocket’s flight path documents and the application for around KLC are considered part of the
during a launch.’’ further information on these species. Gulf of Alaska stock, which occurs from
Cape Suckling to Unimak Pass,
Description of Habitat and Marine Steller Sea Lions
including animals throughout the
Mammals Affected by the Activity The Steller sea lion is described by Aleutian Islands. The most recent
The KLC is located on the southeast two stocks - those west of 144° W. long. comprehensive aerial survey of harbor
facing tip of a small peninsula on the listed as endangered under the ESA, and seals in Alaska were conducted in 1994
eastern side of Kodiak Island. The the eastern stock listed as threatened and 1996. When a correction factor is
rocket launch site is approximately one under the ESA. Sea lions hauled out on used to account for animals that were in
mile (1.6 km) from the southeast shore Ugak Island, the northern spit of which the water during the counts, a minimum
(Narrow Cape). The primary KLC is designated as critical habitat for this population estimate of this stock of
environmental monitoring study area, species, are of the western stock. The harbor seals is 28,917 (Angliss and
and area of anticipated effects, was set most recent comprehensive estimate Lodge, 2004). The Kodiak Island
in September 1996 at a meeting between (pups and non-pups) of Steller sea lion population is estimated to have
AADC and representatives of the abundance in Alaska is based on aerial increased 7.2 percent annually from
USFWS, NMFS, the FAA, and ENRI. surveys of non-pups in June 2002 and 1992–1996 (Angliss and Lodge, 2004)
The area was chosen based on modeled ground based pup counts in June and and survey data from 1992–2004 shows
ASELs and includes the lands and early July of 2001 and 2002. Data from an even steeper increase at Ugak Island
waters within a 6–mile (9.7–km) radius these surveys represents actual counts at (Wynne, per. Comm., 2005), though
extending out from the KLC launchpad. all major rookeries and haulouts. The numbers throughout the Gulf of Alaska
The only marine mammal haulouts best available minimum population are still lower than they were in the
within this area are on Ugak Island. estimate for the western stock of Steller 1970s and 1980s.
sea lions is the sum of the total number Harbor seals are present on Ugak
Ugak Island is a triangular-shaped
of non-pups counted in 2002 (26,602) Island year round. They are found
island located about 3.5 miles (5.6 km)
and the number of pups counted in primarily on the east/south side of the
southeast of the launch site. The north
2001 and 2002 (9,211), which is 34,779 island, backed by high, steep cliffs, but
side of Ugak island culminates in a
(Angliss and Lodge, 2004). This is they also sometimes haul out on the
sandy spit on the west end where most
considered a minimum estimate because north side of the island and on the rock
of the sea lions haul out, though some it has not been corrected to account for croppings on the north and east sides of
also haul out at the southern tip of the animals which were at sea during the the island. Harbor seal pupping occurs
island. The southeastern facing side of surveys. Though non-pup numbers on both Ugak between the middle of
the island, where most of the harbor increased 5.5–13.7 percent from 2000– May and June. Yearly harbor seal counts
seals haul out, is very rocky, backed by 2002, the 2002 count was still 5.4 at Ugak Island taken in August since
300–ft (91–km) cliffs (or higher), and is percent below the 1998 count and 36.7 1992 show a steady increase from
subject to very strong wave action. The percent below the 1990 count and the approximately 200 animals in 1992 to
west side of the island is steeper than long-term, average decline for 1990–02 over 900 in 2004 (Wynne, pers. Comm.,
the north side, but not as steep as the is 4.3 percent per year (Angliss and 2005). Surveys conducted in 1993 and
east, but does not appear to be used Lodge, 2004). 1994 found 88 and 96 harbor seal pups,
much by either pinniped. On Ugak Island sea lions haul out respectively (AADC 1996).
Narrow Cape, Ugak Island, and the primarily on the northern-most sand
adjacent waters within the primary KLC spit of the island, but also less Northern Fur Seals
study area provide habitat for sea otters, frequently on the east/south side of the The northern fur seal (Callorhinus
harbor seals, Steller sea lions (listed as island. These haulouts are occupied ursinus) occurs offshore of the KLC site
endangered), gray whales, humpback primarily from late June to early near the continental shelf break from
whales (listed as endangered), northern October. Opportunistic counts of Steller January through April. Because of the
fur seals, northern right whales, and sea lions conducted at Ugak Island distance from the launch site and the
minke whales. Harbor seals and sea every year since 1993 indicate a fact that they will be swimming through
otters are common year-round, as are maximum of over 350 animals in the fall and not stopping (see Cetaceans, below),
killer whales, Dall’s porpoise, and of 1997 and a steady decrease in NMFS believes it unlikely that fur seals
harbor porpoise. Other species of numbers to less than 40 since 2001 will be affected by the launch noise and
cetaceans that may occur in the area, (Kate Wynne, pers. comm, 2005). Two they will not be addressed further.
such as Pacific white-sided dolphins, of the 8 launches have occurred during
Risso’s dolphins, northern right whale Cetaceans
times when sea lions are typically
dolphins, pilot whales, Cuvier’s beaked present, during September of 1999, 60– As noted, several species of cetaceans
whales, Baird’s beaked whale, 70 sea lions were seen, and during occupy the waters around KLC.
Stegneger’s beaked whale, sperm September of 2001, no sea lions were However, airborne noise is generally
whales, fin whales, sei whales and blue present on the days before and after the reflected at the sea surface outside of a
whales are rare as they are primarily launch. 26° cone extending down from an
pelagic (ENRI, 1995–98). General airborne source (Richardson et al.,
information on harbor seals and other Pacific Harbor Seals 1995). Submerged animals would have
marine mammal species can be found in Harbor seals live in the Pacific Ocean to be directly under the noise sources
Angliss and Lodge (2004), which are from Baja California in Mexico before they could hear it, and,
available at the following URL: http:// northward to the Aleutian Islands of approximately 70 seconds after launch,
www.nmfs.noaa.gov/protlres/PR2/ Alaska. The population is not listed as a typical launch vehicle would be more
StocklAssessmentlProgram/ ‘‘endangered’’ or ‘‘threatened’’ under the than 8 miles (12.9 km) high. Underwater
sars.html. Sea otters (Enhydra lutris) are ESA; nor is this species listed as acoustic transmissions are complex, and
managed by the USFWS. Information on ‘‘depleted’’ or as a ‘‘strategic stock’’ affected by the level and frequency of
this species may be found at under the MMPA. Harbor seals are noise, sea state and other surface
www.fws.gov. Please refer to those primarily non-migratory and the seals conditions, and water depth. Given the
specific area, within a specific short For transient sounds, the sound level video footage at the seasonally occupied
time that a cetacean would need to be necessary to cause TTS is inversely northern spit haulout site in
traveling through surface/or close to related to the duration of the sound. conjunction with the three KLC
surface water to be exposed to rocket Received sound levels must be even launches when Steller sea lions might
noise and the measured rocket sound higher for there to be risk of permanent have been present at the haulout: ait–1
levels and the attenuation that would hearing impairment. In addition, intense on November 5, 1998; ait–2 on
occur before the noise reached deeper acoustic or explosive events may cause September 15, 1999; and Athena on
waters, NMFS believes it unlikely that trauma to tissues associated with organs September 29, 2001. The only time
any cetaceans will be impacted by the vital for hearing, sound production, Steller sea lions were observed
rocket noise. respiration, and other functions. This occupying the haulout was during the
trauma may include minor to severe ait–2 launch monitoring period. Sixty to
Potential Effects of Rocket Launches on hemorrhage.
Marine Mammals seventy animals were on the haulout
Solid rocket boosters from KLC about 5 hours pre-launch. Due to below
As outlined in several previous NMFS launches will fall into the ocean away
freezing temperatures, the video system
documents, the effects of noise on from any known or potential haul-out
shut off about 4 hours prior to the ait–
marine mammals are highly variable, sites and do not pose any measurable
2 launch. The video data show Steller
and can be categorized as follows (based threat to marine mammals. Launch
on Richardson et al., 1995): noise is expected to occur over the sea lions fighting or sleeping on the
(1) The noise may be too weak to be coastal habitats of Narrow Cape and haulout, and then suddenly stampeding
heard at the location of the pinniped Ugak Island during every launch, while into the water and milling about
(i.e., lower than the prevailing ambient sonic booms will occur approximately immediately offshore. The cause of the
noise level, the hearing threshold of the 40 nm (74 km) downrange over open stampede is not apparent in the video
animal at relevant frequencies, or both); ocean, beyond the outer continental and no stimulus could be linked to the
(2) The noise may be audible but not shelf, and are unlikely to affect marine response (from the noise recordings or
strong enough to elicit any overt mammals. Airborne launch sounds will otherwise). When, or if, any of the
behavioral response; mostly reflect or refract from the water Steller sea lions returned to the haulout
(3) The noise may elicit reactions of surface and, except for sounds within a before the ait–2 launch is unknown.
variable conspicuousness and variable diameter of approximately 26 degrees Although sea lions may have returned to
relevance to the well being of the directly below the launch vehicle, will the rocks and fled the haulout again as
pinniped; these can range from not penetrate into the water column. a result of rocket noise, a clear-cut
temporary alert responses to active The sounds that do penetrate will not stimulus response of sea lion behavior
avoidance reactions such as stampedes persist in the water for more than a few to rocket noise cannot be postulated
into the sea from terrestrial haulout seconds. without video data from the time of the
sites; The primary sea lion haulout on Ugak launch. Approximately 1 hour after the
(4) Upon repeated exposure, Island is a spit facing KLC, and animals rocket was launched, no sea lions were
pinnipeds may exhibit diminishing at this location would likely hear a seen hauled out and 50 to 60 sea lions
responsiveness (habituation), or rocket launch. Steller sea lions generally were observed in the water immediately
disturbance effects may persist; the occupy this haulout from late summer offshore. The day after the launch, 60 to
latter is most likely with sounds that are to the early fall post-breeding period 70 animals were seen hauled out at the
highly variable in characteristics, (late June to early October), historically same spot. Some of these animals could
infrequent and unpredictable in by up to several hundred sea lions. be the same ones that were flushed from
occurrence (as are vehicle launches), Small numbers of harbor seals may haul the haulout the day before though they
and associated with situations that the out on the eastern end of the shoreline could also be different animals. Though
pinniped perceives as a threat; that extends from the spit. Harbor seals sea lions have been shown to acclimate
(5) Any anthropogenic noise that is and, less frequently sea lions, also haul to disturbance from rocket launches at
strong enough to be heard has the out on the southeast side of Ugak Island,
other spaceports (Thorson and Francine,
potential to reduce (mask) the ability of but this area is sheltered from direct
1999), it is unlikely that this is the case
pinnipeds to hear natural sounds at sight of and sound from KLC by a 300–
similar frequencies, including calls from at KLC considering the infrequency of
ft (91.4–m) island cliff and, because it
conspecifics, and environmental sounds launches. Alternatively, approximately
receives heavy surf, it already has high
such as surf noise; ambient noise levels. Because 280 harbor seals were seen at two
(6) If mammals remain in an area background ambient noise often locations on the east side of the island
because it is important for feeding, interferes with or masks the ability of an (next to the 300–ft (91–m) cliffs) during
breeding or some other biologically animal to detect a sound even when that the aerial survey flown 5 hours pre-
important purpose even though there is sound is above its absolute hearing launch. During the one hour post-
chronic exposure to noise, it is possible threshold (Richardson et al., 1995), it launch aerial overflight, the same
that there could be noise-induced seems unlikely that animals hauled out number of harbor seals were hauled out
physiological stress; this might (in turn) at this location would hear noise at the same locations, which would
have negative effects on the well-being associated with rocket launches from suggest that they did not flush into the
or reproduction of the animals involved; KLC. water, which would further suggest that
and the sound was blocked or masked by the
(7) Very strong sounds have the Past Monitoring Results at KLC high cliffs and high ambient noise on
potential to cause temporary or ENRI was tasked under contract to the that side of the island. Though it is
permanent reduction in hearing AADC to conduct environmental possible that the harbor seals were
sensitivity. In terrestrial mammals, and monitoring studies for rocket launches flushed into the water and then quickly
presumably marine mammals, received from KLC. In addition to collecting hauled out again before the post-flight
sound levels must far exceed the rocket noise data on the northern spit of aerial survey, it seems unlikely
animal’s hearing threshold for there to Ugak Island, ENRI conducted aerial considering that harbor seals are
be any temporary threshold shift (TTS). surveys over and collected real-time typically significantly more sensitive to
noise than sea lions and the sea lions to non-acoustic effects on marine haul-out increases with noise level up to
were still in the water. mammals involving visual or other cues. approximately 100 dB ASEL, after
Unlike at the ait–2 launch discussed However, other disturbance-related data which almost all seals leave, although
above, no Steller sea lions were present collected during the ait–2 study (ENRI, recent data has shown that an increasing
at the Ugak Island haulout during the 2000) does not fit well with stimulus percentage of seals have remained on
ait–1 and Athena launches and it was response data from other sources. Sea shore, and those that remain are adults
not possible to relate any behavioral lions are widely thought to be intolerant (Thorson et al., 1999). Given the high
responses to the recorded noise levels. of helicopter noise (Porter, 1997), yet degree of site fidelity among harbor
Harbor seals were present at the other the animals in question did not appear seals, it is likely that those seals that
two launches, but monitoring was not to respond to multiple exposures of remained on the haul-out site during
required and the surveys were not more intense helicopter noise at Ugak rocket launches had previously been
conducted immediately before and after Island than that from the rocket (ENRI, exposed to launches; that is, it is
the launch and could not establish a 2000). They are also thought to be possible that adult seals have become
stimulus response to the rocket launch. intolerant of humans on foot, yet a video acclimated to the launch noise and react
For all launches, however, launch from the ait–2 study shows hauled-out differently than the younger
noises recorded at the haulout site were sea lions on Ugak Island undisturbed by inexperienced seals. The louder the
within the audible ranges of pinnipeds biologists actively engaged in work launch noise, the longer it took for seals
(Richardson et al., 1995) and both within 328 ft (100 m) of them. The Ugak to begin returning to the haulout site
Steller sea lions and harbor seals would Island haulout is also regularly exposed and for the numbers to return to pre-
have heard them had they been present. to disturbances from aircraft and fishing launch levels. In two past Athena
Further, recorded sound pressures were vessels transiting Narrow Strait. IKONOS launches with ASELs of 107.3
at, and sometimes above, levels known Recent studies (Lawson et al., 2002, and 107.8 dB at the closest haulout site,
to occasionally induce startle responses and NAWS, 2002) suggest that Level B seals began to haulout again
in pinnipeds (Richardson et al., 1995). harassment, as evidenced by beach approximately 16–55 minutes post-
Rocket launches will present Steller sea flushing, will sometimes occur upon launch (Thorson et al., 1999). In
lions and harbor seals with novel visual exposure to launch sounds with ASEL’s contrast, noise levels from an Atlas
and possibly tactile stimuli as well as of 100 dBA (re 20 micro-Pa2 -sec) or launch and several Titan II launches
unusually loud sounds and bright lights higher. It is expected that most received had ASELs ranging from 86.7 to 95.7 dB
from the burning rocket and white noise levels at Ugak Island would be at at the closest haulout, and seals began
exhaust flume. levels which are likely to cause a to return to the haulout within 2–8
temporary disturbance. The infrequent minutes post-launch. Seals returned to
Steller Sea Lions
(up to nine times per year) and brief (no the haulouts within 2 to 55 minutes of
The behavioral data record for Steller more than one minute as heard from the launch disturbance, and the haulout
sea lions is small throughout the North Ugak Island) nature of these sounds that usually returned to pre-launch levels
Pacific range and typically is focused on would result from a rocket launch within 45 to 120 minutes.
reproductive behaviors. In general, would cause masking for not more than In addition to behavioral disturbance,
studies have shown that responses of a very small fraction of the time during loud sounds may also cause TTS, which
pinnipeds on beaches to acoustic any single launch day and it is unlikely is a slight, recoverable loss of hearing.
disturbance arising from rocket and that pinnipeds will become habituated In order to further determine if harbor
target missile launches are highly to launch sounds. In addition, the seals experience any change in their
variable. This variability may be due to extremely rapid departure of the rockets hearing sensitivity as a result of launch
many factors, including species, age means that pinnipeds would be exposed noise, researchers conducted Auditory
class, and time of year. Porter (1997) to increased sound levels for very short Brainstem Response (ABR) testing on 10
observed Steller sea lions fleeing into time intervals, and because launches are harbor seals prior to, and after, the
the water for a wide variety of reasons conducted relatively infrequently, launches of 3 Titan IV rockets (one of
such as helicopter overflights, bird neither physiological stress nor hearing the loudest launch vehicles at the south
flybys, and the presence of nearby related injuries are likely. Therefore, VAFB haul-out site). Detailed analysis
humans. He also noted sea lions NMFS anticipates that the effects of of the changes in waveform latency and
stampedes into the water that could not rocket launches from KLC would have waveform replication of the ABR
be correlated with any observed no significant effects on the abilities of measurements showed that there were
stimulus. There is also evidence that sea lions to hear one another or to detect no detectable changes in the seals’
both time of day and temperature alter natural environmental sounds, and hearing sensitivity as a result of the
the probability of entry into the water would have no more than a negligible launch noise (SRS Technologies, 2001).
(animals are more likely to enter the impact on Steller sea lion populations. The launches at VAFB do not appear
water when already overheated) to have had long-term effects on the
(Bowles, 2000). Steller sea lions have Harbor Seals harbor seal population in this area. The
been seen to mill about just offshore An ongoing scientific research total population of harbor seals at VAFB
with their heads up in a heightened program has been conducted since 1997 is estimated to be 1,040 animals and has
state of watchfulness (Porter, 1997) and to determine the long-term cumulative been increasing at an annual rate of 12.6
remain close to the haulout until they impacts of space vehicle launches on percent. Since 1997, there have been 5
sense it is safe to go back ashore the haul-out behavior, population to 7 space vehicle launches per year and
(Lockheed Martin Environmental dynamics and hearing acuity of harbor there appears to be only short-term
Services, 1999). seals at Vandenberg Air Force Base disturbance effects to harbor seals as a
Noise generated from aircraft and (VAFB) in California. The response of result of launch noise (SRS
helicopter activities associated with the harbor seals to rocket launch noise Technologies, 2001). Harbor seals will
launches may provide a potential depended on the intensity of the noise temporarily leave their haul-out when
secondary source of incidental (dependent on the size of the vehicle exposed to launch noise; however they
harassment, and the physical presence and its proximity) and the age of the generally return to the haul-out within
of aircraft or biologists could also lead seal. The percentage of seals leaving the one hour.
Harbor seals use Ugak Island as a sometimes use the north side of the harassed during one launch is 300. This
pupping site. Though no launches have island both for hauling out and for translates to the potential harassment of
as yet taken place during the pupping pupping. For several reasons, NMFS 1,200 Steller sea lions in one year
period at Ugak Island (late May through believes that the seals using the east (assuming different individual sea lions
mid-June), they may at some point in side of the island are not likely to be are harassed each launch). However a
the future. There has been little harassed by rocket launch noise: the mitigation measure is required that will
systematic study of the reactions of eastern shoreline faces away from the limit the number of launches within the
pinnipeds to rocket launches or aircraft point the rocket noise is emanating from time that sea lions are present to three,
overflights during pupping periods. and is backed up by a 300–500–ft (91.4– which lowers the number of potential
Pinnipeds hauled out for pupping or 152.4 km) cliff; the rough seas hitting harassments to 900 animals annually.
molting are generally the most rocks make the ambient noise very loud This is a small number relative to the
responsive to aircraft overflights on the eastern shoreline; and data affected stock.
(Richardson et al., 1995). Harbor seals collected during the ait–2 launch Harbor seal numbers have steadily
often leave beaches when aircraft fly showed that one hour after the launch, increased at Ugak Island since 1992, and
over and then sometimes haulout at a when sea lions were swimming just over 900 were counted during the
different site afterwards, which results immediately off the rocks on the north molt in 2004 (Wynne, pers. comm.,
in permanent separation if pups are shore, the harbor seals were still hauled 2005). The last pupping season counts
unable to follow their mothers into the out in the same numbers and at the showed 290 adults and 88 pups in 1993,
water. Additionally, very young pups same locations that they were 5 hours and 292 adults and 96 pups in 1994.
that are pushed into the water as the before the launch. NMFS believes that According to local researchers, the
adults flush may subsequently drown. harbor seals hauled out on the north primary haulout for harbor seals is on
One study showed more than 10 percent beach may be temporarily behaviorally the east side of the island (where NMFS
of approximately 2000 pups born on one disturbed and possibly temporarily does not believe there are likely to be
Alaskan island died as a result of displaced from their haulouts any effects from the rocket launch noise)
disturbance from low-flying aircraft immediately following rocket launches. and the majority of the seals may be
(Richardson et al., 1995). The same If launches occur during the harbor seal found there. In three days of her 1994
study found that aircraft were more pupping period and harbor seals have
survey, Wynne (2005) found that an
disturbing on calm days, when at low also chosen to pup on the north beach,
average of approximately 25 percent of
altitudes, and after recent disturbances. it is possible that harbor seal pups could
both adults and pups were hauled out
Since harbor seals have been shown to die as a result of the adults flushing in
on the north side of the beach.
flush into the water in response to response to the rocket noise. NMFS
Therefore, NMFS estimates that of a
rocket launch noise of a level similar to believes that the proposed action may
maximum of 900 harbor seals present
that occurring at Ugak Island, one can result in the temporary behavioral
during any launch, 275 of them may be
infer that separation of pups from their disturbance and, less likely, mortality
located on the north side of the island
mothers could occur if the launch (pups only) of small numbers, in
and exposed to the rocket launch noise.
occurred during a pupping period and relation to the population numbers (see
the harbor seals were using the north next section), of harbor seals. NMFS Harbor seals are present at Ugak all year,
side of the island to pup on. anticipates that these impacts will have which means that if there were nine
Rocket launches at KLC have no more than a negligible effect on the launches in one year, a maximum of
associated security overflights that species stock. 2,475 harbor seals could be exposed to
occur an approximate total of 5 to 10 the noise and potentially harassed in
times per day in the days preceding and Numbers of Marine Mammals Expected one year (assuming different individuals
following the launch. Several studies of to be Taken by Harassment were present each launch, else the
both harbor seals and Steller sea lions The highest number of Steller sea number is smaller, but some may be
cited in Richardson et al., 2005, suggest lions seen at one time on Ugak Island harassed more than one time). The
that these animals respond significantly since 1993 is approximately 375 (1997). harbor seal pupping season runs from
less to overflights of both planes and However, based on both dedicated and mid-May through June. Since it takes a
helicopters that occur above 305 m (0.2 opportunistic surveys by one researcher, minimum of 4 weeks to prepare for a
mi). One mitigation requirement approximately 160 were seen in 1999 new launch, it would be logistically
included in the rule is that security and numbers have decreased since then possible to have two launches during
overflights immediately associated with (Wynne, pers. comm., 2005). that time. The highest number of pups
the launch will not approach occupied Approximately 50 were seen in 2001 seen at Ugak was 96 in 1994. Though
pinniped haulouts on Ugak Island by and numbers have further decreased numbers of pups have probably
closer than 0.25 mile (0.4 km), and will since then. Steller sea lions seasonally increased with the numbers of adults
maintain a vertical distance of 1000 ft use the Ugak island sites (the northern since 1994 (by a factor of three), only a
(305 m) from the haulouts when within spit, and occasionally the southwest tip) minority of pups (estimated one fourth)
0.5 miles (0.8 km), unless indications of as haulout sites from late June to early will likely be present on the north side
human presence or activity warrant October. While not logistically optimal of the island and exposed to the noise
closer inspection of the area to assure for the applicant, the fastest that KLC and potential flushing of adults. One
that national security interests are can prepare the facilities for a new scientist reported that more than 10
protected in accord with law. launch right after a launch is 4 weeks, percent of 2000 harbor seal pups died
Monitoring flights will not approach which means that at most it would be on an Alaskan Island following
closer than 0.25 (0.4 km) mile from the logistically possible to have four disturbance from exposures to low
island. It is unlikely that either of these launches a year within the time that the flying aircrafts (Richardson et al., 1995).
overflights will add noticeably to any sea lions are using Ugak Island as a NMFS estimates that if 72 pups (highest
harassment of pinnipeds surrounding haulout. Based on the maximum number seen (in 1996) multiplied by
the rocket launches. number seen and the sea lion trend over three for population increase and
Harbor seals primarily use the east the last several years, NMFS anticipates divided by four to account for number
side of Ugak Island, though they that the most sea lions likely to be exposed on north side of island) were
twice exposed to rocket noise sufficient during nine rocket launches annually. monitored. All haulout areas on Ugak
to flush the adults, up to 20 harbor seal The quickest that the launch pad can be Island would be monitored before,
pups (15 percent) might die. However, turned around for another launch is four during, and after launch operations to
one required mitigation measure limits weeks. This means that it would be document and characterize any
AADC to one launch during the logistically possible to launch 4 rockets observed responses. Monitoring would
pupping season, which lowers the during the season that the Steller sea be designed to determine the type of
potential mortality of harbor seal pups lions are using Ugak Island, and reactions (or injury or mortality) and
to 11 annually (55 over the life of the logistically possible to launch two their relationship to noises associated
regulations). NMFS believes that a small rockets during the harbor seal pupping with rocket launches. Fixed-wing aerial
number (no more than 2,488) of harbor season. As a mitigation measure, NMFS surveys would be flown for any
seals may be affected relative to the has incorporated into the rule and LOAs launches taking place from June 15
population estimates. a requirement that not more than an through September 30 using a minimum
average of three launches per year could flight altitude of 156 m (500 ft) above
Effects of Rocket Launches on
occur within the sea lion season, and sea level (ASL) to be flown at low tide
Subsistence Needs
not more than an average of one launch or, with consultation, toward evening.
There are no subsistence uses of per year could occur during the harbor The aircraft would come no closer than
pinniped species in Alaska waters seal pupping season. Therefore, no more 0.25 miles (0.4 km) to the haulout.
within the KLC primary study area, and, than 15 launches would occur within Depending on aircraft availability, one
therefore, NMFS anticipates no effects the sea lion season (June 15 - September or two NMFS-approved biologist
on subsistence needs. 30) over the course of the 5–year rule, observers would accompany the pilot.
Effects of Rocket Launches on Marine and no more than 5 launches would Data will be gathered both visually and
Mammal Habitat occur during the harbor seal pupping with a camera having a zoom lens. A
season (May 15 - June 30) over the total of five surveys would be flown, if
Solid rocket boosters would fall into weather conditions permit. The first
course of the 5–year rule.
the ocean away from any known or Even though the video monitoring of would occur the day prior to a
potential haulouts and the chances of a Steller sea lions at Ugak Island indicates scheduled launch and the second as
cetacean being in the wrong place at the they did not flush in response to soon after the launch as possible.
wrong time are discountable. All sonic helicopter or noise recorded during the Replicate surveys will be flown the
booms that reach the earth’s surface same time period, the scientific following three successive days to
would be expected to be over open literature shows that pinnipeds will determine post-launch haulout-use
ocean beyond the outer continental often have an adverse response to low- patterns.
shelf. Airborne launch sounds would flying aircraft. AADC typically flies For any launches that occur from June
mostly reflect or refract from the water several security overflights in 15 through September 30, a real-time
surface and, except for sounds within a conjunction with a rocket launch. As a video record will be made of sea lion
diameter of approximately 26 degrees result, NMFS has incorporated a reactions to launch-related noises. This
directly below the launch vehicle, mitigation measure wherein the security will be accomplished by the installation
would not penetrate into the water flights immediately associated with of a remote custom-designed, closed-
column. The sounds that do penetrate rocket launches would not approach circuit, weatherproof, time-lapse video
would not persist in the water for more closer than 0.25 mile (0.4 km) to camera system at the base of the Ugak
than a few seconds. Overall, rocket occupied pinniped haulout sites or fly Island sea lion haulout before a launch,
launch activities from KLC would not be lower than 1000 ft (305 m) when the which will be retrieved post-launch.
expected to cause any impacts to plane is closer than 0.5 miles (0.8 km) Results of the aerial and video surveys
habitats used by marine mammals, from occupied pinniped sites on Ugak will be compared, providing
including pinniped haulouts, or to their Island unless indications of human information on startle effects and
food sources. presence or activity warrant closer durations. In addition, video data will
inspection of the area to assure that be time-correlated with rocket motor
Mitigation
noise measurements to provide
Under Section 101(a)(5) of the MMPA, national security interests are protected
objective information on any startle
adverse impacts are to be reduced to the in accord with law.
responses or indications of disturbance
lowest level practicable. Due to the Monitoring reactions that may occur resulting from
nature of the rocket launches and the rocket launches. Comparisons will also
pinnipeds responses, the most obvious Marine Mammal Monitoring
be made with baseline data assembled
way to mitigate for the effects of the The objective of monitoring Steller by AADC to help gauge any natural
rocket launch noise is to minimize the sea lions and Pacific harbor seals is to trends that may be occurring.
number of launches that the Steller sea detect any indications of pinniped The majority of harbor seals haul out
lions and harbor seals are exposed to. disturbance, injury, or mortality that on the eastern side of Ugak Island,
This sort of mitigation is logistically results from KLC rocket launches at the which is completely inaccessible to
difficult and impracticable for AADC, as Ugak Island haulout site. Monitoring pedestrian or boat traffic due to the high
their launch operations are driven by would be conducted on Ugak Island for cliffs and violent surf, so it is not
the needs of the agencies and companies launches that take place between June possible to set up video recorders there.
that utilize their facilities. However, 15 and September 30, an observation However, approximately 25 percent of
NMFS and the applicant have worked period that includes the seasonal the harbor seals haul out on the eastern
out a way to reduce the potential Level occupation of the Steller sea lions as end of the north-facing shore of Ugak
B Harassment of sea lions by 25 percent well as the molting period of the harbor Island. Though it has not yet been
and to reduce the potential Level A seals (when their numbers are higher attempted, it may be possible to set up
Harassment or mortality of harbor seal and their responses to disturbance a camera with a zoom lens on the
pups by 50 percent. potentially greater). Launches occurring accessible western end of the north-
In their application, AADC asked for during the harbor seal pupping season facing shore to record harbor seal
authorization to take marine mammals (May 15 – June 30) would also be behavior on the middle or eastern end
of the shore, or on the rocks off shore. affected animals and the nature of their Launch Complex, Alaska, and the
At some time prior to the first launch reactions. The report will include a Issuance of Subsequent Letters of
that occurs between May 15 and June summary of the acoustic measurements. Authorization. NMFS found that the
30, when harbor seals are present The report will include a copy of all promulgation of a 5–yr Rule and
(perhaps immediately before or after the videotapes containing sea lion and issuance of LOAs will not significantly
camera has already been set up to record harbor seal footage, and selected impact the quality of the human
sea lions), AADC will test the efficacy illustrative 35mm pictures, cross- environment and issued a Finding of No
of using the camera on the harbor seal referenced to the appropriate launches Significant Impact (FONSI).
haulout and report their findings to and acoustic measurements. AADC Accordingly, preparation of an
NMFS. If successful, the same real-time would also include this information in Environmental Impact Statement or
video and acoustic measurements (see its Annual Environmental Monitoring Supplemental Environmental Impact
below) will be conducted when and Natural Resources Management Statement for this action was not
launches occur during the harbor seal Report. necessary.
pupping season as occur when the sea An interim technical report is
proposed to be submitted to NMFS 60 Endangered Species Act (ESA)
lions are present.
NMFS believes it unlikely that the days prior to the expiration of each The endangered Steller sea lion is the
security overflights immediately annual LOA issued under these only federally listed marine mammal
preceding and following the rocket regulations, along with any request for under NMFS’ jurisdiction that is likely
launches would result in the harassment a subsequent annual LOA. This interim to be adversely affected by the proposed
of marine mammals. However, when technical report would provide full action. Ugak Island also contains
pinnipeds are present at haulouts documentation of methods, results, and designated critical habitat for the Steller
during security overflights associated interpretation pertaining to all sea lion. The FAA and NMFS have
with rocket launches, a member of the monitoring tasks for launches during the consulted with the Endangered Species
flight crew will note and record whether period covered by the LOA. NMFS Division of the NMFS Alaska Region. A
pinnipeds appeared to flush as a result recognizes that only preliminary Biological Opinion (BO) issued in
of the overflight and estimate a number. information would be available for any November, 2003 found that the
launches during the 60–day period proposed action is not likely to
Acoustic Measurements
immediately preceding the expiration of jeopardize the continued existence of
Rocket motor noise monitoring would the LOA. listed species nor result in the
be done concurrently with video In addition to annual interim destruction or adverse modification of
monitoring at the Ugak Island haulouts. technical reports, NMFS is requiring critical habitat.
These data will be synchronized to the AADC to submit a draft comprehensive The northern sea otter, federally listed
video data to document correlations technical report to NMFS 180 days prior as threatened under the ESA, may be
between noise signatures and pinniped to the expiration of the regulations. This found in the KLC area throughout the
responses. Sound intensity and draft technical report would provide full year. The northern sea otter is within
frequency metrics will be recorded documentation of methods, results, and the jurisdiction of the USFWS, which is
before, during, and after a launch by an interpretation of all monitoring tasks for responsible for issuing authorizations
SLM mounted on a permanent launches during the first four LOA’s, and incidental take statements for takes
stanchion upon the Ugak Island haulout plus preliminary information for of this species. AADC is currently in
one day or more before a launch and launches during the first 6 months of consultation with USFWS regarding the
retrieved within one day post-launch. the final LOA. AADC will incorporate sea otter.
The SLM will be set to highlight sounds NMFS recommendations on the draft Steller’s eider, federally listed
greater than 70 dBA. report and submit a final comprehensive threatened and under the jurisdiction of
technical report within 60 days of the the USFWS, is found in the vicinity of
Reporting
expiration of the regulations. the KLC. Following several years of
In the event that any cases of recommended monitoring of both
pinniped injury or mortality are judged National Environmental Policy Act
(NEPA) Steller’s eiders and bald eagles (not
to result from launch activities at any federally listed in Alaska), the USFWS
time during the period covered by these The FAA prepared an Environmental concurred with AADC’s conclusion that
regulations, this event will be reported Assessment (EA) and subsequently the rocket launches at AADC have no
to NMFS immediately. issued a Finding of No Significant effect on either of these species.
Data from monitoring activities would Impact (FONSI) for AADC’s proposal to
be analyzed, summarized, and reported construct and operate a launch site at Classification
to NMFS within 90 calendar days Narrow Cape on Kodiak Island, Alaska. This action has been determined to be
following cessation of field activities for Since 1998, AADC has provided not significant for purposes of Executive
each launch. The report would include monitoring reports related to noise and Order 12866.
the timing and nature (vehicle type, marine mammal impacts associated The Chief Counsel for Regulation of
azimuth, measured sound data) of with ongoing rocket launches from KLC. the Department of Commerce certified
launch operations as well as the times After reviewing the new information to the Chief Counsel for Advocacy of the
of the monitoring flights. The report contained in the monitoring reports and Small Business Administration at the
would include sea lion and harbor seal considering the MMC’s comments that proposed rule stage that this rule would
counts (separated into adult and pup), impacts to harbor seals should be more not have a significant economic impact
as well as observations of any other comprehensively addressed, NMFS on a substantial number of small
marine mammals seen during decided that a more current entities. The rule would apply only to
monitoring or security overflights. The environmental analysis was necessary. AADC, and would have no effect,
report will summarize behavioral In 2005, NMFS prepared an EA on the directly or indirectly, on small
observations in relation to recorded, or Promulgation of Regulations businesses. The rule may affect a small
other known, stimuli (launches or Authorizing Take of Marine Mammals number of contractors providing
aircraft), and estimate the number of the Incidental to Rocket Launches at Kodiak services related to reporting the impact
of the activity on marine mammals, Subpart U—Taking of Marine Mammals June 15 and September 30 within the 5–
some of whom may be small businesses, Incidental to Rocket Launches from year period.
but the number involved would not be the Kodiak Launch Complex, Kodiak (b) The holder of the Letter of
substantial. Because of this certification, Island, AK Authorization must implement the
a regulatory flexibility analysis is not following measures for all launches
§ 216.230 Specified activity and specified occurring from June through October:
required, and none was prepared. No geographical region.
comments concerning this certification (1) Conduct five replicate fixed-wing
(a) Regulations in this subpart apply aerial surveys of all hauled out Steller
were prepared. only to the incidental taking of marine sea lions and harbor seals at Ugak
Notwithstanding any other provision mammals specified in paragraph (b) of Island, each flown at low tide (weather
of law, no person is required to respond this section by U.S. citizens engaged in permitting), using a minimum flight
to nor shall a person be subject to a rocket launch activities (up to nine altitude of 500 feet (152 meters) above
penalty for failure to comply with a launches per year) at the Kodiak Launch sea level, with an approach no closer
collection of information subject to the Complex on Kodiak Island, Alaska. than 0.25 mi (0.40 km) to the haulout,
requirements of the Paperwork (b) The incidental take of marine and conducted a day prior to, directly
Reduction Act (PRA) unless that mammals under the activity identified following, and for three consecutive
collection of information displays a in paragraph (a) of this section is limited days after a launch.
currently valid Office of Management to Steller sea lions (Eumetopius jubatus) (2) At least one biologist observer will
and Budget (OMB) control number. This and Pacific harbor seals (Phoca vitulina accompany the pilot during all aerial
proposed rule contains collection-of- richardsi). surveys.
information requirements subject to the § 216.231 Effective dates. (3) Data gathered during aerial
provisions of the PRA. This collection Regulations in this subpart are surveys will be gathered visually and
has been approved previously by OMB effective from February 27, 2006 through the use of a camera with a zoom
under section 3504(b) of the PRA issued through February 28, 2011. lens.
under OMB control number 0648–0151, (4) A real-time video record of Steller
and includes applications for LOAs and § 216.232 Permissible methods of taking. sea lion reactions to launch noise will
reports. (a) Under a Letter of Authorization be made using a video camera system
issued pursuant to § 216.106, the Alaska placed upon the Ugak Island haulout
List of Subjects in 50 CFR Part 216 Aerospace Development Corporation before a scheduled launch and then
and its contractors, may incidentally, retrieved after the launch.
Exports, Fish, Imports, Indians,
but not intentionally, take Steller sea (5) Sound intensities and frequencies
Labeling, Marine mammals, Penalties,
lions by Level B harassment, take adult of rocket motor noise will be recorded
Reporting and record keeping
Pacific harbor seals by Level B before, during, and after a launch by a
requirements, Seafood, Transportation. harassment, and take harbor seal pups sound level monitor mounted upon the
■ For reasons set forth in the preamble, by Level B or Level A harassment or Ugak Island haulout and set to highlight
50 CFR part 216 is amended as follows: mortality, in the course of conducting sounds greater than 70 dBA. Monitors
missile launch activities within the area will be installed one day or more before
PART 216—REGULATIONS described in § 216.230(a), provided all a launch and retrieved within one day
GOVERNING THE TAKING AND terms, conditions, and requirements of post-launch.
IMPORTING OF MARINE MAMMALS these regulations and such Letter of (c) A trial effort to obtain real-time
Authorization are complied with. video records of harbor seals hauled out
■ 1. The authority citation for part 216 (b) The activities identified in at the eastern end of the northern side
continues to read as follows: § 216.230(a) must be conducted in a of the island and their reactions to
manner that minimizes, to the greatest launch noise will be made as soon as
Authority: 16 U.S.C. 1361 et seq.
extent practicable, adverse impacts on practicable. A brief report summarizing
■ 2. Subparts R, S, and T are added and marine mammals and their habitat. the efficacy of this monitoring effort
reserved. should be included in the standard
§ 216.233 Prohibitions.
monitoring reports for that launch and
■ 3. Subpart U is added to read as The following activities are year. If valuable data may be gathered
follows: prohibited: using this method, real-time video
Subpart U—Taking of Marine Mammals records of harbor seals reactions to
(a) The taking of a marine mammal
Incidental to Rocket Launches from launch noise will be made before
that is other than unintentional.
(b) The violation of, or failure to launches scheduled between May 15
the Kodiak Launch Complex, Kodiak
comply with, the terms, conditions, and and June 30, and between June 30 and
Island, AK
requirements of this subpart or a Letter September 30 if the equipment is not
Sec. of Authorization issued under being used to record Steller sea lions,
216.230 Specified activity and specified § 216.106. and then retrieved after the launches.
geographical region. (c) The incidental taking of any (d) Security flights immediately
216.231 Effective dates. marine mammal of a species not associated with rocket launches may not
216.232 Permissible methods of taking. specified, or in a manner not approach closer than 0.25 mile (0.4 km)
216.233 Prohibitions. authorized, in this subpart. to occupied pinniped haulout sites on
216.234 Mitigation, monitoring and Ugak Island or fly lower than 1000 ft
reporting. § 216.234 Mitigation, monitoring and (305 m) when the plane is closer than
216.235 Letter of Authorization. reporting. 0.5 miles (0.8 km) from occupied
216.236 Renewal of a Letter of (a) No more than five launches may pinniped sites on Ugak Island unless
Authorization. occur between May 15 and June 30 indications of human presence or
216.237 Modifications to a Letter of within the 5–year period, and no more activity warrant closer inspection of the
Authorization. than 15 launches may occur between area to assure that national security
interests are protected in accordance Fisheries Service within 90 days Authorization may not be valid beyond
with the law. following cessation of field activities for the effective period of the regulations.
(e) When pinnipeds are present at each launch. After the trial effort to (b) A Letter of Authorization will set
haulouts during security overflights videotape harbor seals at the eastern end forth:
associated with rocket launches, and of the north side of Ugak island, a (1) Species of marine mammals
when practicable, a member of the flight summary of the effectiveness of the authorized to be taken;
crew will note and record whether videotaping will be included in the (2) Permissible methods of incidental
pinnipeds appeared to flush as a result associated launch report. taking;
of the overflight and estimate a number. (3) An interim technical report must (3) Specified geographical region;
(f) The holder of the Letter of be submitted to the NMFS Alaska (4) Means of effecting the least
Authorization is required to cooperate Assistant Regional Administrator for practicable adverse impact on the
with the National Marine Fisheries Protected Resources and to the NMFS species of marine mammals authorized
Service and any other Federal, state or Division of Permits, Conservation, and for taking and its habitat; and
local agency monitoring the impacts of Education, Office of Protected Resources (5) Requirements for monitoring and
the activity on marine mammals. The at least 60 days prior to the expiration reporting incidental takes.
holder must notify the NMFS Alaska of each annual Letter of Authorization. (c) Issuance of a Letter of
Assistant Regional Administrator for This report must contain the following Authorization will be based on a
Protected Resources and to the NMFS information: determination that the number of
Division of Permits, Conservation, and (i) Timing and nature of launch marine mammals taken by the activity
Education, Office of Protected Resources operations and monitoring flights; will be small, and that the total taking
at least 2 weeks prior to commencing (ii) A summary of marine mammal by the activity as a whole will have no
monitoring activities. behavioral observations in relation to more than a negligible impact on the
(g) Activities related to the monitoring recorded acoustic stimuli and other affected species or stocks of marine
described in paragraph (a) of this known visual or audio stimuli; mammal(s).
section or in the Letter of Authorization (iii) An estimate of the amount and (d) Notice of issuance or denial of a
may be conducted without a separate nature of all takes. Letter of Authorization will be
scientific research permit. (iv) A copy of all videotapes published in the Federal Register
(h) In coordination and compliance containing sea lion and harbor seal within 30 days of a determination.
with the Alaska Aerospace Development footage, and selected illustrative 35 mm
Corporation, the National Marine or digital pictures, cross-referenced to § 216.236 Renewal of a Letter of
Authorization.
Fisheries Service may place an observer the appropriate launches and acoustic
on Kodiak or Ugak Islands for any measurements. (a) A Letter of Authorization for the
marine mammal monitoring activity (4) A draft comprehensive technical activity identified in § 216.230(a) will be
prior to, during, or after a missile launch report will be submitted to the NMFS renewed upon:
to monitor impacts on marine mammals, Alaska Assistant Regional Administrator (1) Notification to the National Marine
provided observers are not within the for Protected Resources and to the Fisheries Service that the activity
calculated danger zone of the rocket’s NMFS Division of Permits, described in the application for a Letter
flight path during a launch. Conservation, and Education, Office of of Authorization submitted under
(i) The holder of the Letter of Protected Resources, 180 days prior to § 216.235 will be undertaken and that
Authorization must comply with any the expiration of these regulations with there will not be a substantial
other applicable state or federal permits, full documentation of the methods, modification to the described activity,
regulations, and environmental results, and interpretation of all mitigation or monitoring undertaken
monitoring agreements set up with other monitoring tasks for launches during all during the upcoming season;
agencies. expired Letters of Authorization, plus (2) Timely receipt of and acceptance
(j) The National Marine Fisheries preliminary information for launches by the National Marine Fisheries
Service must be informed immediately during the first 6 months of the final Service of the monitoring reports
of any proposed changes or deletions to Letter of Authorization. required under § 216.234;
any portions of the monitoring (5) A revised final comprehensive (3) A determination by the National
requirements. technical report, including all Marine Fisheries Service that the
monitoring results during the entire mitigation, monitoring and reporting
(k) The holder of the Letter of period of the Letter of Authorization, measures required under §§ 216.232 and
Authorization must implement the will be due 90 days after the end of the 216.234 and the Letter of Authorization
following reporting requirements: period of effectiveness of these were undertaken and will be undertaken
(1) If indications of injurious or lethal regulations. during the upcoming period of validity
take are recorded, the NMFS Alaska (6) The interim and draft of a renewed Letter of Authorization;
Assistant Regional Administrator for comprehensive technical reports will be and
Protected Resources and the NMFS subject to review and comment by the (4) A determination that the number
Division of Permits, Conservation, and National Marine Fisheries Service. Any of marine mammals taken by the
Education, Office of Protected recommendations made by the National activity will be small and that the total
Resources, or their designees, will be Marine Fisheries Service must be taking by the activity will have no more
contacted within 48 hours. In addressed in the final comprehensive than a negligible impact on the affected
consultation with the National Marine technical report prior to acceptance by species or stocks of marine mammal(s),
Fisheries Service, launch procedure, the National Marine Fisheries Service. and that the level of taking will be
mitigation measures, and monitoring consistent with the findings made for
methods must be reviewed and § 216.235 Letter of Authorization. the total taking allowable under these
appropriate changes made prior to the (a) A Letter of Authorization, unless regulations.
next launch. suspended or revoked, will be valid for (b) A notice of issuance or denial of
(2) Data from monitoring activities a period of time specified in the Letter a renewal of a Letter of Authorization
will be reported to the National Marine of Authorization, but a Letter of will be published in the Federal
Register within 30 days of a DEPARTMENT OF COMMERCE FOR FURTHER INFORMATION CONTACT: Brad
determination. McHale, 978–281–9260.
National Oceanic and Atmospheric
§ 216.237 Modifications to a Letter of Administration SUPPLEMENTARY INFORMATION:
Authorization. Regulations implemented under the
(a) Except as provided in paragraph 50 CFR Part 635 authority of the Atlantic Tunas
(b) of this section, no substantive Convention Act (16 U.S.C. 971 et seq.)
modification (including withdrawal or and the Magnuson-Stevens Fishery
[I.D. 011906B]
suspension) to a Letter of Authorization Conservation and Management Act
issued pursuant to the provisions of this Atlantic Highly Migratory Species; (Magnuson-Stevens Act; 16 U.S.C. 1801
subpart shall be made by the National Atlantic Bluefin Tuna Fisheries et seq.) governing the harvest of BFT by
Marine Fisheries Service until after persons and vessels subject to U.S.
notification and an opportunity for AGENCY: National Marine Fisheries jurisdiction are found at 50 CFR part
public comment has been provided. A Service (NMFS), National Oceanic and 635. The 2005 General category BFT
renewal of a Letter of Authorization Atmospheric Administration (NOAA), fishing season began on June 1, 2005,
under § 216.236 without modification is Commerce.
not considered a substantive and ends January 31, 2006. The final
ACTION: Temporary rule; inseason initial 2005 BFT specifications and
modification. retention limit adjustment.
(b) If the Assistant Administrator General category effort controls (June 7,
determines that an emergency exists SUMMARY: NMFS has determined that
2005; 70 FR 33033) established the
that poses a significant risk to the well- the Atlantic bluefin tuna (BFT) General following RFD schedule for the 2005
being of the species or stocks of marine category daily retention limit for the fishing year: All Fridays, Saturdays, and
mammals specified in § 216.230(b), a final three restricted fishing days (RFD) Sundays from November 18, 2005,
Letter of Authorization may be should be adjusted. These General through January 31, 2006, and
substantively modified without prior category RFDs are being waived to Thursday, November 24, 2005,
notification and an opportunity for provide reasonable opportunity for inclusive, provided quota remained
public comment. Notification will be utilization of the coastwide General available and the fishery was open.
published in the Federal Register category BFT quota. Therefore, NMFS RFDs are intended to extend the General
within 30 days of the action. waives the final three RFDs scheduled category BFT fishery late into the
Dated: January 19, 2006. for January 2006, and increases the daily southern Atlantic season. NMFS has
John Oliver, retention limit from zero to two large determined that the BFT General
Deputy Assistant Administrator for medium or giant BFT on these category daily retention limit for the
Operations, National Marine Fisheries previously designated RFDs. final three RFDs should be adjusted as
Service. DATES: Effective dates for BFT daily described in Table 1 to provide
[FR Doc. 06–765 Filed 1–25–06; 8:45 am] retention limits are provided in Table 1 reasonable opportunity to utilize the
BILLING CODE 3510–22–S under SUPPLEMENTARY INFORMATION. coastwide General category BFT quota.
TABLE 1.—EFFECTIVE DATES FOR RETENTION LIMIT ADJUSTMENTS

Permit Category Effective Dates Area BFT Size Class Limit
Atlantic tunas General and HMS Charter/ January 27, 28, and 29, 2006. All Two BFT per vessel per day/trip, meas-
Headboat (while fishing commercially). uring 73 inches (185 cm) CFL or larger.
Adjustment of General Category Daily fishery remained open. On November 9, category quota of 708.3 mt. This action
Retention Limits 2005 (70 FR 67929), NMFS waived the was taken to account for any potential
previously designated RFDs for the overharvests that may occur in the
Under 50 CFR 635.23(a)(4), NMFS month of November; on December 16, Angling category during the 2005
may increase or decrease the General 2005 (70 FR 74712), NMFS waived fishing year (June 1, 2005 through May
category daily retention limit of large designated RFDs for December 16–18, 31, 2006) and to ensure that U.S. BFT
medium and giant BFT over a range inclusive; on January 4, 2006 (71 FR harvest is consistent with international
from zero (on RFDs) to a maximum of 273), NMFS waived designated RFDs for and domestic mandates.
three per vessel to allow for maximum December 31, 2005, and January 1, 2006, Catch rates in the BFT General
utilization of the quota for BFT. NMFS inclusive; on January 9, 2006 (71 FR category fishery have generally been
has taken multiple actions during the 1395), NMFS waived RFDs for January low, the average catch rate for December
2005 fishing year in an attempt to allow 7, 8, 13, 14, and 15, 2006; and on 2005 and January 2006 is approximately
for maximum utilization of the General January 20, 2006 (71 FR 3245), NMFS 3.0 mt/day. Based on a review of dealer
category BFT quota. On September 28, waived the designated RFDs for January reports, daily landing trends, available
2005 (70 FR 56595), NMFS adjusted the 20, 21, and 22, 2006. The daily retention quota, weather conditions, and the
commercial daily BFT retention limit limit for all the above dates was availability of BFT on the fishing
(on non-RFDs), in all areas, for those adjusted to two large medium or giant grounds, NMFS has determined that
vessels fishing under the General BFT to provide reasonable opportunity waiving the final three RFDs established
category quota, to two large medium or to harvest the coastwide quota. for January 27, 28, and 29, 2006, and
giant BFT, measuring 73 inches (185 On December 7, 2005 (70 FR 72724), increasing the General category daily
cm) or greater curved fork length (CFL), NMFS adjusted the General category BFT retention limit on those RFDs is
per vessel per day/trip, effective through quota by conducting a 200 mt inseason warranted to assist the fishery in
January 31, 2006, inclusive, provided quota transfer to the Reserve category, accessing the available quota. Therefore,
quota remained available and the resulting in an adjusted General NMFS adjusts the General category

Federal Register / Vol. 71, No. 17 / Thursday, January 26, 2006 / Rules and Regulations

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Federal Register / Vol. 71, No.

17 / Thursday, January 26, 2006 / Rules and Regulations 4297

Approved shot type * Percent composition by weight Field testing device **

bismuth-tin .......................................................... 97 bismuth, 3 tin .............................................. HOT*SHOT. ***

* * * * * DEPARTMENT OF COMMERCE SUMMARY: NMFS, upon application from

TABLE 1.—EFFECTIVE DATES FOR RETENTION LIMIT ADJUSTMENTS

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