Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Rocket Launches

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