[Federal Register Volume 64, Number 39 (Monday, March 1, 1999)]
[Rules and Regulations]
[Pages 9925-9932]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5009]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 980629162-9033-02; I.D. 093097E]
RIN 0648-AK42
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to Rocket Launches
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS, upon application from the 30th Space Wing, U.S. Air
Force, issues regulations to govern the unintentional take of a small
number of marine mammals incidental to missile and rocket launches,
aircraft flight test operations, and helicopter operations at
Vandenberg Air Force Base, CA (Vandenberg). Issuance of regulations
governing unintentional incidental takes in connection with particular
activities is required by the Marine Mammal Protection Act (MMPA) when
the Secretary of Commerce (Secretary), after notice and opportunity for
comment, finds, as here, that such takes will have a negligible impact
on the species and stocks of marine mammals and will not have an
unmitigable adverse impact on the availability of them for subsistence
uses. These regulations do not authorize the Air Force's activity as
such authorization is not within the jurisdiction of the Secretary.
Rather, these regulations authorize the unintentional incidental take
of marine mammals in connection with such activities and prescribe
methods of taking and other means of effecting the least practicable
adverse impact on the species and its habitat, and on the availability
of the species for subsistence uses.
DATES: Effective March 1, 1999, until December 31, 2003.
ADDRESSES: A copy of the application and Environmental Assessment (EA)
may be obtained by writing to Chief, Marine Mammal Division, Office of
Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD
20910-3226, or by telephoning one of the persons listed under FOR
FURTHER INFORMATION CONTACT section.
Comments regarding the burden-hour estimate or any other aspect of
the collection of information requirement contained in this rule should
be sent to the Chief, and to the Office of Information and Regulatory
Affairs, Office of Management and Budget (OMB), Attention: NOAA Desk
Officer, Washington, DC 20503.
FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, Office of
Protected Resources, NMFS, telephone (301) 713-2055, or Irma
Lagomarsino, Southwest Regional Office, NMFS, telephone (562) 980-4016.
SUPPLEMENTARY INFORMATION:
Background
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs
the Secretary to allow, upon request, the incidental, but not
intentional taking of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and regulations are
issued.
Permission may be granted for periods of up to 5 years if the
Secretary finds that the taking will have a negligible impact on the
species or stock(s) and will not have an unmitigable adverse impact on
the availability of the species or stock(s) for subsistence uses and
that regulations are prescribed setting forth the permissible methods
of taking and the requirements pertaining to the monitoring and
reporting of such taking. NMFS has defined ``negligible impact'' in 50
CFR 216.103 as ``an impact resulting from the specified activity that
cannot be reasonably expected to, and is not reasonably likely to,
adversely affect the species or stock through effects on annual rates
of recruitment or survival.''
Description of Request
On September 30, 1997, NMFS received an application for an
incidental, small take exemption under section 101(a)(5)(A) of the MMPA
from the 30th Space Wing, Vandenberg, to take marine mammals incidental
to missile and rocket launches, aircraft flight test operations, and
helicopter operations at Vandenberg.
Vandenberg is located on the south-central coast of California. The
base covers approximately 98,000 acres in western Santa Barbara County.
The primary missions of the Air Force at Vandenberg are to launch and
track satellites in space, test and evaluate the United State's
intercontinental ballistic missile systems, and support aircraft
operations. As a nonmilitary facet of operations, Vandenberg is also
committed to promoting commercial space launch ventures.
Description of Activities
Vandenberg anticipates a total of 10 launches annually for
Minuteman and
[[Page 9926]]
Peacekeeper missiles from North Vandenberg and a total of 20 launches
annually for space launches (approximately 6 Delta II, 3 Taurus, 2
Atlas, 3 Titan IV, 2 Titan II, and 4 Lockheed Martin launch vehicles)
primarily from South Vandenberg.
The noise from these launches may result in the unintentional
disturbance of pinnipeds-considered to be unintentional, incidental
takings under the MMPA. Such takings are prohibited by the MMPA unless
authorized by NMFS.
These regulations replace annual incidental harassment
authorizations issued to Vandenberg under section 101(a)(5)(D) of the
MMPA. These authorizations have been issued for marine mammal takings
incidental to launches by Lockheed-Martin launch vehicles (62 FR 40335,
July 28, 1997), McDonnell Douglas Aerospace Delta II rocket launches
(61 FR 59218, November 21, 1996), Taurus launches (62 FR 734, January
6, 1997) and Titan II and Titan IV launches (61 FR 64337, December 4,
1996). Incidental harassment authorizations for the latter three
activities were reissued on December 19, 1997 (see 62 FR 67618,
December 29, 1997), for an additional 1-year period or until these
regulations become effective and Letters of Authorization (LOAs) are
issued.
These regulations also authorize takings incidental to Minuteman
and Peacekeeper missile launches, aircraft flight tests, and helicopter
operations, none of which have had small take authorizations
previously.
Aircraft test operations include the B-1 and B-2 bombers, the F-14,
F-15, F-16, and F-22 fighters; and the KC-135 Stratotanker. The
frequency for aircraft testing will be variable. The applicant
anticipates an average of 10 flights per year, with 4 to 5 passes per
flight. The maximum testing frequency could reach 3 flights per week.
Helicopter operations provide launch support, training, and base
support. Only about 1 percent, or 13 hours, of the 1300 hours of
helicopter operations scheduled per year would occur over the
Vandenberg coastline.
Comments and Responses
On July 21, 1998 (63 FR 39055), NMFS published a notice of proposed
rulemaking on the Air Force application and invited interested persons
to submit comments, information, and suggestions concerning the
application and proposed rule. During the 45-day comment period on that
notice, one letter was received.
Comment 1: In addition to recommended changes to the rule text
(see Changes to the Proposed Rule), the Marine Mammal Commission (MMC)
recommends that the rule be issued provided that (1) continuation of
the research program being carried out under an MMPA section 104
scientific research permit (SRP) be made a condition of the rule and
(2) the authorized activities be suspended, pending review, should
there be any indications that the activities covered by the rule are
causing mortality or injuries or are affecting the distribution, size,
or productivity of the potentially affected populations.
Response: The 30th Space Wing, U.S. Air Force, was
issued a 5-year SRP on June 26, 1997 (see 62 FR 36049, July 3, 1997).
Unless renewed, that permit will terminate on June 30, 2002. However,
the scope of work under that SRP may be completed as early as June 2000
(Air Force, 1997). LOAs will require the scientific results of the
monitoring and research to be submitted to NMFS no later than 120 days
after completion of research. While monitoring will continue after that
date, continuation of research after 2000 will depend upon peer review
findings on research results, identified research deficiencies, and
whether additional research is practical or needed to support or refute
a negligible impact determination. Because much of this research is
considered part of the monitoring requirements under section 101(a)(5)
of the MMPA, monitoring and research is either a requirement of these
regulations (Sec. 216.125(b)) or of LOAs (Sec. 216.125(c)).
NMFS does not agree that the authorized activities should be
suspended, pending review, if there are any indications that the
activities covered by the rule are causing mortality or injuries or are
affecting the distribution, size, or productivity of the potentially
affected populations. First, these regulations do not authorize the
activity (rocket and missile launches, and military jet and helicopter
activities); such authorization is under the jurisdiction of the
Department of the Air Force and is not within the jurisdiction of the
Secretary. Rather, these regulations authorize the unintentional
incidental take of marine mammals in connection with such activities
and prescribe methods of taking and other means of effecting the least
practicable adverse impact on the species and its habitat. Therefore,
it is the suspension of an incidental take authorization (i.e., LOA)
that would fall within NMFS purview rather than suspension of the
activity itself. However, because taking a marine mammal by serious
injury or mortality incidental to activities at Vandenberg is not
authorized by these regulations (see Sec. 216.123 Prohibitions), the
authorization to take marine mammals may be subject to suspension if a
taking by serious injury or mortality were to occur.
Prior to suspension of an LOA, however, NMFS must satisfy the
statutory notice and comment requirement of section 101(a)(5)(B) of the
MMPA, unless the takings pose a significant risk to the well-being of
the marine mammal stock. In those cases, under section 101(a)(5)(C) of
the MMPA, the notice and comment requirements do not apply prior to
suspending an LOA due to the emergency conditions. The level of risk
would depend upon the level of taking, the status of the affected
stock(s), and the likelihood of additional serious injury and mortality
takings. Conditions for suspension or withdrawal of an LOA are
described in Sec. 216.106.
Comment 2: The MMC also recommended that the rule be issued
provided NMFS is satisfied that the research being conducted under the
SRP and the site-specific monitoring that will be required under LOAs
issued in accordance with this rule are capable of detecting possible
cumulative effects on the hearing of individual seals and on the
distribution, size, and productivity of the potentially affected
populations. In that regard, the MMC recommends NMFS consult with
scientists familiar with the demography and dynamics of harbor seals in
and around Vandenberg to ensure that the final rule includes provisions
for research and monitoring capable of detecting possible cumulative
impacts.
Response: In 1996 (see Stewart, 1996; U.S. Air Force, 1997), the
U.S. Air Force designed a research program to address cumulative impact
from rocket launches on marine mammals. This research has been
initiated under SRP No. 859-1373, June 26, 1997 (see 62 FR 24422 (May
5, 1997) for a brief description of research). Prior to the issuance of
this SRP, the research was reviewed by the MMC and its Committee of
Scientific Advisors and NMFS scientists. As a result, NMFS believes
that testing the hearing effects over a series of launches, along with
foraging behavior and survival of animals exposed to the noise, will
provide a solid framework for understanding what effects, including
cumulative effects, rocket launches have on pinnipeds that reside near
Vandenberg and on the Northern Channel Islands (NCI). Through reporting
requirements under both the SRP and this authorization, NMFS scientists
will review progress made on this research and will recommend
[[Page 9927]]
modif-ications to the research, if necessary (see Comment 1 response).
Comment 3: Conversely, the MMC questions whether it is necessary
to continue to require the type of site-specific monitoring that has
documented that rocket launches and aircraft overflights can cause
seals to flee into the water in certain circumstances and that most, if
not all, of the affected animals resume normal behavior within several
hours following the disturbance.
Response: The site-specific monitoring of previous year
authorizations is part of the long-term monitoring effort designed to
track trends in haulout patterns and seal distribution. As a result,
NMFS believes this monitoring retains a useful function. Whether
monitoring continues to be necessary in the future will be determined
during the next rulemaking on this activity's incidental take
authorization.
Comment 4: The MMC expresses concern, first, that neither the
proposed rule nor the EA indicate whether studies were done to
determine if repeated exposure from launches could cause permanent
threshold shift (PTS) injuries to seals and sea lions, and, second, why
NMFS believes that repeated exposures are unlikely to cause PTS. The
rule or EA should provide either a clearer indication as to why NMFS
believes this to be true or the research and monitoring that will be
required to verify that any effects on hearing are in fact temporary.
Response: Excluding noise from sonic booms, which, if focused, has
the potential to cause PTS injury, the best scientific information
available to NMFS indicates that neither the intensity and duration,
nor the event frequency of launch noise is sufficient to cause more
than a slight temporary threshold shift (TTS) injury. In order to
assess if auditory damage occurs due to launch noise at Vandenberg, the
Air Force will test the hearing of up to five rehabilitated (beached/
stranded) harbor seals using auditory brainstem response (ABR)
techniques. ABRs are electrical potentials generated by the brainstem
when the ear is stimulated by sound (Hall, 1992). ABR testing allows
scientists to quickly and accurately assess changes in hearing acuity
following exposure to noise.
If seals rehabilitated from strandings are not available, the Air
Force will capture up to five harbor seals in the vicinity of the Rocky
Point haulout area before launching and test their hearing using ABR
methods. After the launch, the hearing will be retested. If a threshold
shift occurs, the seals will be held until its hearing returns to
normal or to a stable level. After completion of the experiment, the
animal will be monitored until its reactions and behaviors return to
normal. After post-launch ABR tests, the seals will be tagged and
transported back to the point of capture and released when determined
to be ready by the attending veterinarian. The next scheduled ABR test
will be in 1999 in association with the launch of a Titan IV (Air
Force, 1997).
In order to assess auditory damage by a sonic boom on NCI, the Air
Force plans to capture up to five California sea lions, harbor seals,
or elephant seals at selected sites (based upon predicted sonic boom
footprint). These animals will also be tested by the ABR method.
Because of its sensitivity to sound, harbor seals are the preferred
species. Because tested animals will not be released until hearing
returns to pre-exposure levels, NMFS believes that ABR testing will
give a clearer indication of whether launch activities have the
potential to result in PTS. If so, future research can be designed
accordingly.
Comment 5: The MMC noted that neither the Federal Register nor the
EA provided information on what would be done, or what would be
required to investigate the potential for spontaneous abortion,
disruption of effective female-neonate bonding and other reproductive
dysfunction mentioned in the preamble to the proposed rule. The MMC
believes the final rule should provide a clearer indication of what LOA
holders would be required to do to verify that their activities do not
cause these effects.
Response: As stated in the preamble to the proposed rule, NMFS
noted that there is some speculation that exposure to loud noise could
cause certain physiological effects in pinnipeds, including those
mentioned by the MMC. At this time there is no scientific evidence that
these effects occur; there is only speculation. As a result, the Air
Force has proposed to review, summarize, and evaluate the scientific,
veterinary, and human medical literature to determine the
physiological, pathological, and hormonal mechanisms involved in
spontaneous abortion in mammals, to examine evidence for cause and
effect, and to summarize the potential for spontaneous abortion in
free-ranging pinnipeds exposed to loud or focused sonic booms.
The U.S. Air Force has also proposed to summarize and evaluate the
scientific literature on the effects of separation of females and their
newborn at various stages of maternal care on newborn survival in seals
and sea lions. They will also evaluate the potential for disruption of
the integrity of parent-offspring bonds in seals and sea lions exposed
to loud sonic booms and provide recommendations on the need and
protocol for evaluating the consequences of separation in the NCI (Air
Force, 1996). Because of the extent of research already underway (see
response to Comment 2), NMFS does not intend to require the Air Force
to initiate additional research at this time. Reports on these two
issues will be required to be submitted in the final report due 180
days prior to the expiration of the 5-year authorization. Depending
upon the findings of the reports, research may be required under a
future authorization.
Comment 6: The MMC notes that the pupping season on the NCI for
the three pinniped species is December-January and March-July. Because
of this extended period, the MMC questions whether the Air Force could
avoid launching Titan IVs during this period. The MMC recommends that,
if one or more launches could occur during the pupping seasons, the
monitoring requirements should be revised, as necessary, to verify that
the effects on pupping, mother-pup bonds, nursing and breeding are in
fact negligible.
Response: To mitigate impacts to the lowest level practicable,
NMFS recommends the Air Force not launch Titan IVs, whenever possible,
which predict a sonic boom on NCI during harbor seal, elephant seal,
and California sea lion pupping seasons. This is a guideline, not a
prohibition. Because modeling allows advance predictions of focused
sonic boom locations, which vary due to climatological conditions, the
Air Force is able to use this guidance in planning Titan IV flight
scheduling. NMFS recognizes however, that launch windows can vary due
to project and weather delays. Because Titan IV launches can occur
during the pupping season, the Air Force is researching the effects of
sonic booms on pinnipeds. As mentioned, additional monitoring and
research may be identified and initiated at a later date.
In addition, NMFS has imposed a video monitoring requirement for
all launches during pupping seasons in order to document short-term
effects on young seals.
Comment 7: The MMC questioned both the rationale for an annual
report being submitted since all information presumably would be
contained in the 90-day report and why this information was provided
only in summary.
[[Page 9928]]
Response: NMFS is requiring the submission of annual reports in
addition to 90-day reports in order to obtain information on takings
that are not done in association with rocket and missile launchings,
such as aircraft and helicopter exercises. Upon review, NMFS has
removed the requirement that this information be provided only in
summary form.
Comment 8: The MMC recommends that NMFS advise the Air Force that,
if it has not already done so, that it should consult with the U.S.
Fish and Wildlife Service (USFWS) to ensure that missile and rocket
launches and other activities at Vandenberg will not affect sea otters
or critical components of their habitat in the area.
Response: Endangered Species Act (ESA), Section 7 consultations
between the USFWS and the Air Force have been conducted for each launch
vehicle and activity.
Description of Habitat and Marine Mammals Affected by Launch
Activities
The Southern California Bight (SCB), including the Channel Islands,
supports a diverse assemblage of 29 species of cetaceans (whales,
dolphins, and porpoises) and 6 species of pinnipeds (seals and sea
lions). Harbor seals (Phoca vitulina), California sea lions (Zalophus
californianus), northern elephant seals (Mirounga angustirostris), and
northern fur seals (Callorhinus ursinus) breed there, with the largest
rookeries on San Miguel Island (SMI) and San Nicolas Island (SNI).
Guadalupe fur seals (Arctocephalus townsendi) may also occasionally
inhabit SCB waters. Until 1977, a small rookery of Steller sea lions
(Eumetopias jubatus) existed on SMI. However, there has been no
breeding there since 1981 and no sightings on SMI since 1984. A group
of 50 Stellers were observed off the Vandenberg coast in October 1993
(Roest, 1995). Additional information on the occurrence of marine
mammal species in areas potentially impacted by Vandenberg activities
is provided in Barlow et al., 1995 and 1997, Roest, 1995, the final EA
on this proposed action (U.S. Air Force, 1997), and in Federal Register
notices on previous authorizations (60 FR 24840, May 10, 1995
(Lockheed); 60 FR 43120, August 18, 1995 (Delta II); 61 FR 50276,
September 25, 1996 (Taurus); and 61 FR 64337, December 4, 1996
(Titan)). For further information, please refer to these documents,
which are available upon request (see ADDRESSES).
Summary of Potential Physical Impacts
The activities under consideration for small take authorizations
under these regulations create two types of noise: Continuous (but
short-duration) noise, due mostly to combustion effects of aircraft and
launch vehicles, and impulsive noise, due to sonic boom effects. Launch
operations are the major source of noise on the marine environment from
Vandenberg. The operation of launch vehicle engines produces
significant sound levels. Generally, four types of noise occur during a
launch: (1) Combustion noise from launch vehicle chambers, (2) jet
noise generated by the interaction of the exhaust jet and the
atmosphere, (3) combustion noise from the post-burning of combustion
products, and (4) sonic booms. Launch noise levels are highly dependent
upon the type of first-stage booster and the fuel used to propel the
vehicle. Therefore, there is a great similarity in launch noise
production within each size class.
Sonic booms are impulse noises, as opposed to continuous (but
short-duration) noise such as that produced by aircraft and rocket
launches. There is a significant potential for sonic booms (i.e.,
overpressures greater than 0.5 pound/ft2 (psf)) to occur
during launches of low earth orbit payloads. These sonic booms can vary
from inconsequential to severe, depending on the physical aspects of
the launch vehicle, the trajectory of the launch, and the weather
conditions at the time of the launch. The initial shock wave propagates
along a path that grazes the earth's surface due to the angle of the
vehicle and the refraction of the lower atmosphere. As the launch
vehicle pitches over, the direction of propagation of the shock wave
becomes more perpendicular to the earth's surface. These direct and
grazing shock waves can intersect to create a narrowly focused sonic
boom, about 1 mile of intense focus, followed by a larger region of
multiple sonic booms.
Aircraft and helicopter activities also produce noise in the
coastal environment. Jet aircraft produce significant subsonic noise
with widely varying sound levels depending upon aircraft type, phase of
flight, and other factors. Blade-rate tones account for high frequency
squealing in jet sounds while the low-frequency roar is the jet mixing
noise from engine exhaust (Richardson et al. (1995). The high frequency
tones are rapidly absorbed in the atmosphere (>4 dB/kilometer (km)). To
provide an example of noise levels for a typical aircraft, an F-16
aircraft at intermediate power and 300 ft (96.4 m) above the ground is
projected to have a peak noise level of 103 dBA re 20 Pa-m,
lasting from 1 to 3 seconds (U.S. Air Force, 1986).
The sounds from helicopters contain many tones related to rotor or
propeller blade rate, with most energy at frequencies below 500 Hz.
Measurements of a Bell 212 helicopter at an altitude of 500 ft (152 m)
indicated a peak, received level at the surface of 109 dB re 1
Pa-m. Duration of noise on the surface may last up to 4
minutes, but less than 38 seconds (sec.) at 9.8 ft (3 m) depth, and 11
sec. at 60 ft (18 m)(Greene, 1985a; Richardson et al., 1995).
Marine Mammal Impact Assessment
Noise disturbance from operations at Vandenberg may cause
negligible, short-term impacts to pinnipeds (seals and sea lions)
hauled out on the Vandenberg coastline, and, if loud enough due to the
proximity of the seals to the launch pad, may result in a TTS in
hearing. Along the Vandenberg coast, launch noises are expected to
impact principally harbor seals as other pinniped species (e.g.,
California sea lions and northern elephant seals) are known to haulout
at these sites only infrequently and in significantly smaller numbers.
The principal form of impacts would be the infrequent (approximately 30
launches per year; 50 aircraft flights per year) and unintentional
incidental harassment resulting from noise generated by aircraft,
helicopter, missile, and rocket launches and by the visual sighting of
low-flying aircraft. Launch noises and sonic booms can be expected to
cause a startle response and flight to water for those harbor seals,
California sea lions and other pinnipeds that are hauled out on the
coastline of Vandenberg and on the NCI. Launch noise is expected to
occur over the coastal habitats in the vicinity of the Vandenberg
launch sites during every launch, while sonic booms may be heard on
NCI, principally SMI and Santa Rosa Island (SRI), only during certain
launches of certain rocket types. A description of impacts from
individual missile and rocket types on marine mammals can be found in
the proposed rule (63 FR 39055, July 21, 1998) and are not repeated
here.
Cumulative Impacts
Cumulative impacts that will occur to harbor seals, California sea
lions, northern elephant seals, and northern fur seals have been
discussed in the EA on this issue (U.S. Air Force, 1997), and need not
be discussed further. However, the MMPA requires NMFS to determine that
the total of such taking during the 5-year (or less) period will have a
negligible impact on the species being taken. Using the information
provided above, NMFS estimates that each rookery/haulout site along the
[[Page 9929]]
Vandenberg coastline will be impacted by sufficient noise at each
launch to cause harbor seals to leave the rocks fewer than 30 times
annually due to missile and rocket launches and associated helicopter
safety patrols and 10 times annually due to aircraft operations. On the
NCI, pinnipeds may potentially leave the beach only as a result of a
sonic boom from Titan IV and Athena-3 launch passing over or in the
vicinity of a haulout on one of the Islands. Such an event is unlikely
to occur more than 3 to 5 times annually.
Long term effects, such as stress and emigration due to chronic
exposure to noise, are not expected since all noise events will be
transitory and limited in number and duration.
Mitigation
One mitigation measure of longstanding is the requirement that no
vehicles launched from Vandenberg are allowed direct overflight of SRI,
Santa Cruz Island, or Anacapa Island. Therefore, nominal flight
azimuths from SLC-4, for example, must be west of SRI.
All aircraft and helicopter flight paths will maintain a minimum
distance of 1,000 ft (305 m) from recognized seal haulouts and
rookeries (e.g., Point Sal, Purisima Pt, Rocky Pt), except in
emergencies or for real-time security incidents. Emergencies include
search-and-rescue and fire-fighting, both of which may require
approaching pinniped rookeries closer than 1,000 ft (305 m).
Unless constrained by other factors including, but not limited to,
human safety, national security, or launch trajectories, NMFS will
request the Air Force to avoid, whenever possible, all missile and
rocket launches during the harbor seal pupping season of February
through May, and those Titan IV launches that predict a sonic boom on
NCI during seal and sea lion pupping seasons.
Additional mitigation measures would be developed, if necessary,
cooperatively between NMFS and the Air Force based on the degree of
impact documented during monitoring activities following specific
launches, especially Titan IV rockets. Additional mitigation measures
would be contained in annual LOAs.
Research
Between 1991 and 1996, under a U.S. Air Force contract, research
was conducted on the behavioral, auditory, and population responses of
pinnipeds on the NCI to loud and focused sonic booms and to launch
noise from Titan IV rockets launched from Vandenberg. The results of
this research are provided in Stewart, 1996.
Under funding from the USAF and 30th Space Wing management, new
research initiatives on the impacts of aerial noise on marine mammals
have been undertaken. One study is to address the cumulative effects of
rocket launch noise and sonic booms on pinnipeds at Vandenberg and on
NCI. Studies include the following: (1) Hearing effects on seals from
launch noise and the subsequent launch-generated sonic boom, (2)
movements and haulout patterns of individual seals over the course of
many rocket launches, (3) changes in seal demographic parameters over
the 5-year study, and (4) foraging and diving behavior of seals exposed
to launch noise. A scientific research permit has been issued for this
research (see 62 FR 36049, July 3, 1997). A copy of the research plan
is available upon request (see ADDRESSES).
There is some speculation that exposure to loud noise could cause
other physiological effects in pinnipeds, including spontaneous
abortion, disruption of effective female-neonate bonding, other
reproductive dysfunction, detrimental health effects, and/or increased
vulnerability to disease (Chappell et al., 1980; Stewart et al., 1996).
While there has been little study of noise-induced stress in marine
mammals (Richardson et al., 1995), research initiatives have been
identified (U.S. Air Force, 1996) and may be carried out in future
years of this authorization.
Monitoring Measures
During the 5-year duration of this authorization, impacts of
missile and space launches on marine mammals will be monitored to
ensure that the taking is having no more than a negligible impact on
California pinniped stocks. For each launch at Vandenberg, the pinniped
rookery that could most likely be impacted by the launch monitoring
will be monitored. For most launches, this would be Point Sal, Purisima
Pt or Rocky Pt. Launch monitoring, as detailed in LOAs, will include:
(1) designation of at least one biologically trained on-site observer
(approved in advance by NMFS) to record the effects of launches on
harbor seals and other pinnipeds; (2) observation of harbor seal
activity in the vicinity of the rookery nearest the launch platform or,
in the absence of pinnipeds at that location, at another nearby
haulout, for at least 72 hours prior to any planned launch and
continuing for at least 48 hours subsequent to launching; (3)
observation of haulout sites on NCI if it is determined that a sonic
boom could impact those areas (this determination will be made in
coordination with NMFS); (4) video-recording of mother-pup seal
responses for daylight launches during the pupping season; and (5)
sound pressure level measurements of those launch vehicles not having
acoustic measurements previous.
Reporting Requirements
A report containing the following information must be submitted to
NMFS within 90 days after each launch: (1) Date(s) and time(s) of each
launch, (2) date(s), location(s), and preliminary findings of any
research activities related to monitoring the effects on launch noise
and sonic booms on marine mammal populations, and (3) results of the
monitoring programs, including, but not necessarily limited to, (a)
numbers of pinnipeds present on the haulout prior to commencement of
the launch, (b) numbers of pinnipeds that may have been harassed as
noted by the number of pinnipeds estimated to have entered the water as
a result of launch noise, (c) the length of time(s) pinnipeds remained
off the haulout or rookery, (d) the numbers of pinniped adults or pups
that may have been injured or killed as a result of the launch, and (4)
any behavioral modifications by pinnipeds that likely were the result
of launch noise or the sonic boom.
An annual report must be submitted to NMFS that describes any
incidental takings not reported in the 90-day launch report, such as
the aircraft test program and helicopter operations and any assessments
made of their impacts on hauled-out pinnipeds.
A final report must be submitted to NMFS no later than 180 days
prior to expiration of these regulations. This report must summarize
the findings made in all previous reports and assess both the impacts
at each of the major rookeries and the cumulative impact on pinnipeds
and on other marine mammals from Vandenberg activities.
Conclusions
The expected short-term impact of aircraft testing and helicopter
operations at Vandenberg, the launching of missiles from North
Vandenberg, and the launching of rockets from North and South
Vandenberg, at worst, will be a temporary reduction in utilization of
the haulout as seals or sea lions leave the beach for the safety of the
water. At this time, there is no scientific evidence to indicate that
either launch noises or sonic booms have more than a negligible impact
on the species or stocks of
[[Page 9930]]
marine mammals in southern California waters. While the numbers of
pinnipeds leaving the beach due to harassment by some launch noises or
sonic booms may not be small in actual numbers, because these takings
will have no more than a negligible impact on the species or stock of
marine mammal, these takings can be considered by definition (see
definition of ``small numbers'' in Sec. 216.103) to be small.
Launchings are not expected to result in any reduction in the
number of pinnipeds occupying a haulout. Shortly after a launch, the
number of pinnipeds occupying the haulout before the launch should be
the same. Additionally, there would not be any impact on the habitat
itself. Based upon studies conducted for previous space vehicle
launches at Vandenberg, significant long-term impacts on pinnipeds at
Vandenberg and the NCI are unlikely.
National Environmental Policy Act (NEPA)
The U.S. Air Force prepared an EA and issued a Finding of No
Significant Impact, as part of its request for a small take
authorization. This EA contains information incorporated by reference
in the application that is necessary for determining whether the
activities proposed for receiving small take authorizations are having
a negligible impact on affected marine mammmal stocks. Based in part
upon the comments received on this EA, NMFS hereby adopts the U.S. Air
Force EA as its own as provided by 40 CFR 1506.3. NMFS finds that the
issuance of regulations and LOAs to the Air Force will not result in a
significant environmental impact on the human environment and that it
is unnecessary to either prepare its own NEPA documentation, or to
recirculate the Air Force EA for additional comments.
ESA
The Department of the Air Force consulted with NMFS, as required by
section 7 of the ESA, on whether launches of Titan II and IV at SLC-4
would jeopardize the continued existence of species listed as
threatened or endangered. NMFS issued a section 7 biological opinion on
this activity to the Air Force on October 31, 1988, concluding that
launchings of the Titan IV were not likely to jeopardize the continued
existence of the Guadalupe fur seal. The Air Force reinitiated
consultation with NMFS after the Steller sea lion was added to the list
of threatened and endangered species (55 FR 49204, November 26, 1990).
However, since Steller sea lions had not been sighted on the Channel
Islands between 1984 and the time of the consultation, it was
determined that these launchings were not likely to affect Steller sea
lions. Additionally, on September 18, 1991, NMFS concluded that the
issuance of a small take authorization to the Air Force to incidentally
take marine mammals during Titan IV launches was not likely to
jeopardize the continued existence of Steller sea lions or Guadalupe
fur seals. Because launches of rockets and missiles other than Titan IV
are unlikely to produce sonic booms that will impact the NCI and
because listed marine mammals are not expected to haulout either on the
Vandenberg coast or on the NCI during the 5-year period for this
proposed authorization, the issuance of these regulations are unlikely
to adversely affect listed marine mammals. Additionally, incidental
take authorizations for either of these two species under either the
MMPA or the ESA are not warranted.
Changes From the Proposed Rule
NMFS has modified the final rule as follows:
(1) Based on an MMC recommendation, NMFS has rewritten Sec. 216.120
to clarify the activity level being authorized.
(2) For clarification, Sec. 216.125(f)(1) has been revised based on
an MMC recommendation.
Classification
This action has been determined to be not significant for purposes
of E.O. 12866.
Until these regulations are effective, the 30th Space
Wing, U.S. Air Force cannot be issued an LOA authorizing takings
incidental to rocket, missile, aircraft, and helicopter operations.
This places the 30th Space Wing in a position of potentially
violating the MMPA should its activities result in the take of a marine
mammal. Therefore, since these regulations relieve a restriction on the
30th Space Wing, under 5 U.S.C. 553(d)(1), they are not
subject to a 30-day delay in effective date.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Small Business Administration,
when this rule was proposed, that, if adopted, this rule would not have
a significant economic impact on a substantial number of small entities
as described in the Regulatory Flexibility Act. If implemented, this
rule will affect only the U.S. Air Force, large defense companies, and
an undetermined number of contractors providing services related to the
launches, including the monitoring of launch impacts on marine mammals.
Some of the affected contractors may be small businesses. The economic
impact on these small businesses depends on the award of contracts for
such services. The economic impact cannot be determined with certainty,
but will either be beneficial or have no effect, directly or
indirectly, on small businesses. As such, a regulatory flexibility
analysis is not required.
This rule contains collection-of-information requirements subject
to the provisions of the Paperwork Reduction Act (PRA). This collection
has been approved by OMB under control number 0648-0151.
Notwithstanding any other provision of law, no person is required to
respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the PRA unless that collection of information displays a currently
valid OMB control number.
The reporting burden for this collection is estimated to be
approximately 3 hours per response for requesting an authorization (as
described in 50 CFR 216.104) and 40 hours per response for submitting
reports, including the time for gathering and maintaining the data
needed and completing and reviewing the collection of information. Send
comments regarding the burden estimates or any other aspects of the
collection of information requirements to NMFS and OMB (see ADDRESSES).
List of Subjects in 50 CFR Part 216
Exports, Fish, Imports, Indians, Labeling, Marine mammals,
Penalties, Reporting and recordkeeping requirements, Seafood,
Transportation.
Dated: February 22, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For reasons set forth in the preamble, 50 CFR part 216 is amended
as follows:
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
1. The authority citation for part 216 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
2. Subpart K is added to part 216 to read as follows:
Subpart K--Taking of Marine Mammals Incidental to Space Vehicle and
Test Flight Activities
Sec.
[[Page 9931]]
216.120 Specified activity and specified geographical region.
216.121 Effective dates.
216.122 Permissible methods of taking.
216.123 Prohibitions.
216.124 Mitigation.
216.125 Requirements for monitoring and reporting.
216.126 Applications for Letters of Authorization.
216.127 Renewal of Letters of Authorization.
216.128 Modifications of Letters of Authorization.
Subpart K--Taking of Marine Mammals Incidental to Space Vehicle and
Test Flight Activities
Sec. 216.120 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the incidental taking
of those marine mammals specified in paragraph (b) of this section by
U.S. citizens engaged in:
(1) Launching up to 10 Minuteman and Peacekeeper missiles each year
from Vandenberg Air Force Base, for a total of up to 50 missiles over
the 5-year authorization period,
(2) Launching up to 20 rockets each year from Vandenberg Air Force
Base, for a total of up to 100 rocket launches over the 5-year
authorization period,
(3) Aircraft flight test operations, and
(4) Helicopter operations from Vandenberg Air Force Base.
(b) The incidental take of marine mammals on Vandenberg Air Force
Base and in waters off southern California, under the activity
identified in paragraph (a) of this section, is limited to the
following species: Harbor seals (Phoca vitulina), California sea lions
(Zalophus californianus), northern elephant seals (Mirounga
angustirostris), northern fur seals (Callorhinus ursinus), Guadalupe
fur seals (Arctocephalus townsendi), and Steller sea lions (Eumetopias
jubatus).
Sec. 216.121 Effective dates.
Regulations in this subpart are effective from March 1, 1999,
through December 31, 2003.
Sec. 216.122 Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to Sec. 216.106,
the 30th Space Wing, U.S. Air Force, its contractors, and clients, may
incidentally, but not intentionally, take marine mammals by harassment,
within the area described in Sec. 216.120, provided all terms,
conditions, and requirements of these regulations and such Letter(s) of
Authorization are complied with.
(b) [Reserved]
Sec. 216.123 Prohibitions.
Notwithstanding takings authorized by Sec. 216.120 and by a Letter
of Authorization issued under Sec. 216.106, no person in connection
with the activities described in Sec. 216.120 shall:
(a) Take any marine mammal not specified in Sec. 216.120(b);
(b) Take any marine mammal specified in Sec. 216.120(b) other than
by incidental, unintentional harassment;
(c) Take a marine mammal specified in Sec. 216.120(b) if such take
results in more than a negligible impact on the species or stocks of
such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and
requirements of these regulations or a Letter of Authorization issued
under Sec. 216.106.
Sec. 216.124 Mitigation.
(a) The activity identified in Sec. 216.120(a) must be conducted in
a manner that minimizes, to the greatest extent possible, adverse
impacts on marine mammals and their habitats. When conducting
operations identified in Sec. 216.120, the following mitigation
measures must be utilized:
(1) All aircraft and helicopter flight paths must maintain a
minimum distance of 1,000 ft (305 m) from recognized seal haulouts and
rookeries (e.g., Point Sal, Purisima Point, Rocky Point), except in
emergencies or for real-time security incidents (e.g., search-and-
rescue, fire-fighting) which may require approaching pinniped rookeries
closer than 1,000 ft (305 m).
(2) For missile and rocket launches, unless constrained by other
factors including, but not limited to, human safety, national security
or launch trajectories, in order to ensure minimum negligible impacts
of launches on harbor seals and other pinnipeds, holders of Letters of
Authorization must avoid, whenever possible, launches during the harbor
seal pupping season of February through May.
(3) For Titan IV launches only, the holder of that Letter of
Authorization must avoid launches, whenever possible, which predict a
sonic boom on the Northern Channel Islands during harbor seal, elephant
seal, and California sea lion pupping seasons.
(4) If post-launch surveys determine that an injurious or lethal
take of a marine mammal has occurred, the launch procedure and the
monitoring methods must be reviewed, in cooperation with NMFS, and
appropriate changes must be made through modification to a Letter of
Authorization, prior to conducting the next launch under that Letter of
Authorization.
(5) Additional mitigation measures as contained in a Letter of
Authorization.
(b) [Reserved]
Sec. 216.125 Requirements for monitoring and reporting.
(a) Holders of Letters of Authorization issued pursuant to
Sec. 216.106 for activities described in Sec. 216.120(a) are required
to cooperate with the National Marine Fisheries Service, and any other
Federal, state or local agency monitoring the impacts of the activity
on marine mammals. Unless specified otherwise in the Letter of
Authorization, the Holder of the Letter of Authorization must notify
the Administrator, Southwest Region, National Marine Fisheries Service,
by letter or telephone, at least 2 weeks prior to activities possibly
involving the taking of marine mammals.
(b) Holders of Letters of Authorization must designate qualified
on-site individuals, as specified in the Letter of Authorization, to:
(1) Conduct observations on harbor seal, elephant seal, and sea
lion activity in the vicinity of the rookery nearest the launch
platform or, in the absence of pinnipeds at that location, at another
nearby haulout, for at least 72 hours prior to any planned launch and
continue for a period of time not less than 48 hours subsequent to
launching,
(2) Monitor haulout sites on the Northern Channel Islands if it is
determined that a sonic boom could impact those areas (this
determination will be made in consultation with the National Marine
Fisheries Service),
(3) As required under a Letter of Authorization, investigate the
potential for spontaneous abortion, disruption of effective female-
neonate bonding, and other reproductive dysfunction,
(4) Supplement observations on Vandenberg and on the Northern
Channel Islands, if indicated, with video-recording of mother-pup seal
responses for daylight launches during the pupping season, and
(5) Conduct acoustic measurements of those launch vehicles not
having sound pressure level measurements made previously.
(c) Holders of Letters of Authorization must conduct additional
monitoring as required under an annual Letter of Authorization.
(d) The Holder of the Letter of Authorization must submit a report
to the Southwest Administrator, National Marine Fisheries Service
within 90 days
[[Page 9932]]
after each launch. This report must contain the following information:
(1) Date(s) and time(s) of the launch,
(2) Design of the monitoring program, and
(3) Results of the monitoring programs, including, but not
necessarily limited to:
(i) Numbers of pinnipeds present on the haulout prior to
commencement of the launch,
(ii) Numbers of pinnipeds that may have been harassed as noted by
the number of pinnipeds estimated to have entered the water as a result
of launch noise,
(iii) The length of time(s) pinnipeds remained off the haulout or
rookery,
(iv) The numbers of pinniped adults or pups that may have been
injured or killed as a result of the launch, and
(v) Behavioral modifications by pinnipeds noted that were likely
the result of launch noise or the sonic boom.
(e) An annual report must be submitted that describes any
incidental takings not reported under paragraph (d) of this section.
(f) A final report must be submitted at least 180 days prior to
expiration of these regulations. This report will:
(1) Summarize the activities undertaken and the results reported
all previous reports,
(2) Assess the impacts at each of the major rookeries,
(3) Assess the cumulative impact on pinnipeds and other marine
mammals from Vandenberg activities, and
(4) State the date(s) location(s) and findings of any research
activities related to monitoring the effects on launch noise and sonic
booms on marine mammal populations.
Sec. 216.126 Applications for Letters of Authorization.
(a) To incidentally take harbor seals and other marine mammals
pursuant to these regulations, either the U.S. citizen (see definition
at Sec. 216.103) conducting the activity or the 30th Space Wing on
behalf of the U.S. citizen conducting the activity, must apply for and
obtain a Letter of Authorization in accordance with Sec. 216.106.
(b) The application must be submitted to the National Marine
Fisheries Service at least 30 days before the activity is scheduled to
begin.
(c) Applications for Letters of Authorization and for renewals of
Letters of Authorization must include the following:
(1) Name of the U.S. citizen requesting the authorization,
(2) A description of the activity, the dates of the activity, and
the specific location of the activity, and
(3) Plans to monitor the behavior and effects of the activity on
marine mammals.
(d) A copy of the Letter of Authorization must be in the possession
of the persons conducting activities that may involve incidental
takings of seals and sea lions.
Sec. 216.127 Renewal of Letters of Authorization.
A Letter of Authorization issued under Sec. 216.126 for the
activity identified in Sec. 216.120(a) will be renewed annually upon:
(a) Timely receipt of the reports required under Sec. 216.125(d),
which have been reviewed by the Assistant Administrator and determined
to be acceptable;
(b) A determination that the mitigation measures required under
Sec. 216.124 and the Letter of Authorization have been undertaken; and
(c) A notice of issuance of a Letter of Authorization or a renewal
of a Letter of Authorization will be published in the Federal Register
within 30 days of issuance.
Sec. 216.128 Modifications of Letters of Authorization.
(a) In addition to complying with the provisions of Sec. 216.106,
except as provided in paragraph (b) of this section, no substantive
modification, including withdrawal or suspension, to the Letter of
Authorization issued pursuant to Sec. 216.106 and subject to the
provisions of this subpart shall be made until after notice and an
opportunity for public comment.
(b) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species
or stocks of marine mammals specified in Sec. 216.120(b) or that
significantly and detrimentally alters the scheduling of launches, a
Letter of Authorization issued pursuant to Sec. 216.106 may be
substantively modified without a prior notice and an opportunity for
public comment. A notice will be published in the Federal Register
subsequent to the action.
[FR Doc. 99-5009 Filed 2-26-99; 8:45 am]
BILLING CODE 3510-22-F
