Small Takes of Marine Mammals Incidental to Specified Activities; McDonnell Douglas Aerospace Delta II Vehicles at Vandenberg Air Force Base, CA

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 110196B]

Small Takes of Marine Mammals Incidental to Specified Activities;

McDonnell Douglas Aerospace Delta II Vehicles at Vandenberg Air Force

Base, CA

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of issuance of an incidental harassment authorization.

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SUMMARY: In accordance with provisions of the Marine Mammal Protection

Act (MMPA) as amended, notification is hereby given that an Incidental

Harassment Authorization (IHA) to take small numbers of harbor seals,

California sea lions, and northern elephant seals by harassment

incidental to launches of McDonnell Douglas Aerospace Delta II (MDA

Delta II) vehicles at Space Launch Complex 2W

[[Page 59219]]

(SLC-2W), Vandenberg Air Force Base, CA (Vandenberg) has been issued to

the U.S. Air Force.

EFFECTIVE DATE: This authorization is effective from November 13, 1996

until November 13, 1997.

ADDRESSES: The application, comments on the application, the

authorization, and a list of the references used in this document, and/

or previous Federal Register notices on this activity may be obtained

by writing to the following offices: Marine Mammal Division, Office of

Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD

20910 and the Southwest Region, NMFS, 501 West Ocean Blvd. Long Beach,

CA 90802, or by telephoning one of the contacts listed below.

FOR FURTHER INFORMATION CONTACT: Kenneth Hollingshead, Marine Mammal

Division, Office of Protected Resources at 301-713-2055, or Irma

Lagomarsino, Southwest Regional Office at 301-980-4016.

SUPPLEMENTARY INFORMATION:

Background

Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs

NMFS 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 if NMFS finds that the taking will

have a negligible impact on the species or stock(s), will not have an

unmitigable adverse impact on the availability of the species or

stock(s) for subsistence uses, and the permissible methods of taking

and requirements pertaining to the monitoring and reporting of such

taking are set forth.

Subsection 101(a)(5)(D) of the MMPA established an expedited

process by which U.S. citizens can apply for an authorization to

incidentally take small numbers of marine mammals by harassment for a

period of up to 1 year. The MMPA defines ``harassment'' as:

* * *any act of pursuit, torment, or annoyance which (a) has

the potential to injure a marine mammal or marine mammal stock in

the wild; or (b) has the potential to disturb a marine mammal or

marine mammal stock in the wild by causing disruption of behavioral

patterns, including, but not limited to, migration, breathing,

nursing, breeding, feeding, or sheltering.

Subsection 101(a)(5)(D) establishes a 45-day time limit for NMFS

review of an application followed by a 30-day public notice and comment

period on any proposed authorizations for the incidental harassment of

small numbers of marine mammals. Within 45 days of the close of the

comment period, NMFS must either issue or deny issuance of the

authorization.

Summary of Request

On July 17, 1996, NMFS received an application from the U.S. Air

Force requesting continuation of an authorization for the harassment of

small numbers of harbor seals and potentially for other pinniped

species incidental to launches of Delta II vehicles at SLC-2W,

Vandenberg. These launches would place Department of Defense, National

Aeronautics and Space Administration (NASA), and commercial medium-

weight payloads into polar or near-polar orbits. MDA/NASA intends to

launch up to 10 Delta IIs during the period of this proposed 1-year

authorization.

Because SLC-2W is located north of most other launch complexes at

Vandenberg, and because there are oil production platforms located off

the coast to the south of SLC-2W, missions flown from SLC-2W cannot fly

directly on their final southward course. The normal trajectory for a

SLC-2W launch is 259.5 deg. west for the first 90 seconds, then a 41-

second dog-leg maneuver to bring the vehicle on its southward course of

196 deg.. This trajectory takes the launch vehicle away from the coast

and nearly 30 mi west of San Miguel Island (SMI), the westernmost

Channel Island (Air Force 1995b)1.

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\1\ A list of references used in this document can be obtained

by writing to the address provided above (see ADDRESSES).

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A notice of receipt of the application and the proposed

authorization was published on August 29, 1996 (61 FR 45404) and a 30-

day public comment period was provided on the application and proposed

authorization. During the comment period, two letters were received.

The recommendation and comment contained in the letter from the Marine

Mammal Commission (MMC) is discussed below, comments from the applicant

are minor technical corrections to the proposed authorization and do

not warrant further discussion. These letters are available upon

request (see ADDRESSES). Other than information necessary to respond to

the comments, additional background information on the activity and

request can be found in the above-mentioned notice and needs not be

repeated here.

Comments and Responses

Comment 1: The MMC recommends that, before issuing the requested

authorization, NMFS review the results of monitoring done to date to

determine (1) if there may have been cumulative effects on the haul-out

patterns, abundance, or productivity of harbor seals that reside in the

Vandenberg area, and (2) whether the current monitoring program is

sufficient to detect such effects.

Response: By limiting incidental harassment authorizations to a

single year as opposed to multi-year authorizations for Letters of

Authorization (LOAs) issued under section 101(a)(5)(A) of the MMPA,

NMFS does not believe that Congress intended NMFS to make negligible

impact assessments on activities for periods greater than the period of

the authorization, nor to require holders of IHAs to monitor for

periods greater than the authorization. As a result, monitoring for

most activities holding IHAs are designed to be event specific, that

is, for a period of time prior to the event, during the event, and

after completion of the activity. Although this precludes the

applicability of monitoring under a single IHA for determining long-

term cumulative effects, in those cases where holders of IHAs request

continuing authorizations, monitoring, over time and in conjunction

with other measurements of population trends and abundances, provides

information sufficient to make the necessary negligible impact

determinations under section 101(a)(5)(D) of the MMPA. This is what was

done for the negligible impact determination for this authorization.

Recognizing that short-term monitoring leaves unanswered the effect

from cumulative impacts, the U.S. Air Force is designing research to

investigate this concern. This research will use launches of Titan IVs

to provide information vital for assessing long-term impacts on the

physiology, behavior and survival of pinnipeds from launch noise and

sonic booms. This research which will be conducted under an MMPA

section 104 research permit, is expected to begin within a year.

Therefore, while NMFS is unaware of any long-term studies currently

underway on the effects on pinnipeds from launch noises or sonic booms,

monitoring at Vandenberg for Titan IV and other launches in the past

has provided the baseline information on long-term and cumulative

impacts. This information and the fact that the haul-outs along the

Vandenberg coast remain active indicates that there are no immediately

evident long-term, cumulative impacts. Launch noises are infrequent

enough and divided between North and South Vandenberg so that these

impacts are presumed to be less

[[Page 59220]]

significant, cumulatively, than human, wildlife and pet disturbances

including motorized vessels.

Comment 2: The MMC states that it should be made clear that the

authorization is automatically rescinded if a marine mammal is killed

as a result of the authorized activity.

Response: No marine mammals are anticipated to be killed or

seriously injured as a result of launchings of Delta II rockets.

However, while section 101(a)(5)(D)(iv) of the MMPA provides NMFS

authority to modify, suspend, or revoke an authorization if it is found

that the provisions of the section are not being met, for IHA

suspensions, NMFS follows procedures established for suspension of

Letters of Authorization (LOAs) under section 101(a)(5)(A) of the MMPA.

In that regard, an IHA may be suspended without notice and comment if

emergency conditions exist that pose a significant risk to the well-

being of the marine mammal stock, or if holder of an IHA is not in

compliance with the conditions of the IHA. However, prior to revocation

of an IHA, NMFS must satisfy the statutory notice and comment

requirement. While section 101(a)(5)(B) allows NMFS to withdraw

(revoke) or ``suspend for a time certain'' an LOA, subsequent to notice

and comment, section 101(a)(5)(C) does not waive the notice and comment

requirement where NMFS seeks to withdraw the authorization. Conditions

for suspension or withdrawal of an LOA or IHA are described in 50 CFR

216.106 and 107.

Conclusion

Based upon the information provided in the proposed authorization,

NMFS has determined that the short-term impact of the launching of

Delta II rockets is expected to result at worst, in a minor, temporary

reduction in utilization of the haulout as seals or sea lions leave the

beach for the safety of the water. These launchings are not expected to

result in any reduction in the number of pinnipeds, and they are

expected to continue to occupy the same area. In addition, there will

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 northern Channel

Islands are unlikely.

Therefore, since NMFS is assured that the taking will not result in

more than the harassment (as defined by the MMPA Amendments of 1994) of

a small number of harbor seals, California sea lions, and northern

elephant seals; would have only a negligible impact on the species, and

would result in the least practicable impact on the stock, NMFS

determined that the requirements of section 101(a)(5)(D) had been met

and the incidental harassment authorization was issued.

Dated: November 13, 1996.

Ann D. Terbush,

Chief, Permits and Documentation Division, Office of Protected

Resources, National Marine Fisheries Service.

[FR Doc. 96-29738 Filed 11-20-96; 8:45 am]

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