[Federal Register Volume 61, Number 226 (Thursday, November 21, 1996)]
[Notices]
[Pages 59218-59220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-29738]


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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]
BILLING CODE 3510-22-F