# Small Takes of Marine Mammals Incidental to Specified Activities; Taurus Space Launch Vehicles at Vandenberg Air Force Base, CA

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URL: https://www.frixlaw.com/law-library/documents/fr%3A97-180

## Record

- **Collection:** Federal Register
- **Document type:** Notice
- **Published:** January 6, 1997
- **Citation:** 62 FR 734

## Text

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[I.D. 091396A]

Small Takes of Marine Mammals Incidental to Specified Activities;
Taurus Space Launch 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 seals and sea
lions by harassment incidental to launches of Taurus space launch
vehicles (Taurus SLV) at Launch Support Complex 576E (LSC- 576E),
Vandenberg Air Force Base, CA (Vandenberg) has been issued to the U.S.
Air Force for a period of 1 year.

EFFECTIVE DATE: This authorization is effective from January 1, 1997,
through December 31, 1997.

ADDRESSES: The application and authorization are available for review
in 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.

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.

Summary of Request

On August 14, 1996, NMFS received a revised application from the
U.S. Air Force, Vandenberg, requesting an authorization for the
harassment of small numbers of harbor seals and possibly California sea
lions and northern elephant seals, incidental to launches of Taurus
SLVs at LSC-576E, Vandenberg. These launches would place commercial
payloads into earth orbit. Because LSC-576E 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 LSC-576E,
missions flown from LSC-576E do not fly directly on their final
southward course. The normal trajectory for a LSC-576E launch is in a
general west-south-west direction away from the coastline. The flight
paths for each 1997 launch will proceed on an initial azimuth of
205 deg. until approximately 24 kilometers (km )(15 miles (mi)) west of
the shoreline. The Taurus SLV will then perform a dogleg maneuver left
to a final mission-specific azimuth of between 180 deg. and 197 deg..
No Taurus SLV launch from LSC-576E will proceed southeast, overflying
San Miguel or Santa Rosa islands. Orbital Sciences Corporation (OSC
1996) anticipates launching two Taurus SLVs during the 1-year period of
validity for this proposed authorization.
As a result of the noise associated with the launch itself and the
resultant sonic boom, there is the potential to cause a startle
response to those harbor seals that haul out on the coastline south and
southwest of Vandenberg and may be detectable to marine mammals in
waters off Vandenberg and to the west of the Channel Islands. Launch
noise would be expected to occur over the coastal habitats in the
vicinity of LSC-576E while a low-level sonic boom may be heard west of
the Channel Islands.
A notice of receipt of the Taurus SLV application and the proposed
authorization was published on September 25, 1996 (61 FR 50276) and a
30-day public comment period was provided on the application and
proposed authorization.

Comments and Responses

During the 30-day comment period, one letter was received. The
comments contained in this letter are addressed below. Other than
information necessary to respond to the comments, additional background
information on the activity and request can be found in the proposed
authorization notice and needs not be repeated here.
Comment 1: The Marine Mammal Commission (MMC) requested
confirmation that the Air Force would be applying for a programmatic 5-
year authorization under section 101(a)(5)(A) of the MMPA. The MMC
believes that, because of the possible cumulative effects of launches
at Vandenberg, a 5-year authorization is appropriate.
Response: NMFS anticipates that this 1-year authorization for
Taurus SLV launches, along with others issued previously for Lockheed
launch vehicles (61 FR 38437, July 24, 1996), McDonnell Douglas Delta
II launch vehicles (61 FR 59218, November 21, 1996), and Titan II and
IV (61 FR 64337, December 4, 1996) will be replaced by a new set of
regulations, under section 101(a)(5)(A) of the MMPA, governing
incidental takes of marine mammals by launches of all rocket types from
Vandenberg. An application for a small take authorization under section
101(a)(5)(A) of the MMPA is under development by the Air Force.
Comment 2: 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

[[Page 735]]

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
(the rocket presumed to be having the greatest impact since it is the
largest rocket launched from Vandenberg) 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 no long-term studies are currently underway on the
effects on pinnipeds from launch noises or sonic booms, monitoring at
Vandenberg for Titan IV and other rocket 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 indicate 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 significant, cumulatively, than human, wildlife and
pet disturbances including motorized vessels.
Comment 3: 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 Taurus SLV 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 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. Therefore, section
101(a)(5)(B) allows NMFS to withdraw (revoke) or ``suspend for a time
certain'' an LOA, subsequent to notice and comment, while section
101(a)(5)(C) allows a waiver of the notice and comment requirement for
emergency suspensions, but not for revocations. Conditions for
suspension or withdrawal of an LOA or IHA are described in 50 CFR
216.106 and 216.107.

Conclusion

Based upon the information provided in the proposed authorization,
NMFS has determined that the short-term impact of the launching of
Taurus SLV 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: December 27, 1996.
Ann D. Terbush,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 97-180 Filed 1-3-97; 8:45 am]
BILLING CODE 3510-22-F

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A97-180. Public record. Not legal advice.