[Federal Register Volume 63, Number 139 (Tuesday, July 21, 1998)]
[Proposed Rules]
[Pages 39055-39064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19392]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 980629162-8162-01; 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: Proposed rule; request for comment and information.
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SUMMARY: NMFS has received a request from the 30th Space Wing, U.S. Air
Force, for a small take of marine mammals incidental to missile and
rocket launches, aircraft flight test operations, and helicopter
operations at Vandenberg Air Force Base, CA (Vandenberg). By this
document, NMFS is proposing regulations to govern that take. In order
to grant the exemption and issue the regulations, NMFS must determine
that these takings will have a negligible impact on the affected
species and stocks of marine mammals. NMFS invites comment on the
application and the proposed regulations.
DATES: Comments and information must be postmarked no later than
September 4, 1998. Comments on the collection of information
requirement must be received no later than September 21, 1998.
ADDRESSES: Comments should be addressed to Michael Payne, Chief, Marine
Mammal Division, Office of Protected Resources, National Marine
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-
3226. A copy of the application, a final Environmental Assessment (EA),
a list of references used in the preparation of this document, and
other documents mentioned in this proposed rule as being available may
be obtained by writing to the above address, or telephoning one of the
persons listed (see FOR FURTHER INFORMATION CONTACT). Additional
supporting technical documentation is available for viewing, by
appointment, during normal business hours at either the above address,
or at the Southwest Regional Office, NMFS, 501 West Ocean Blvd. Suite
4200, Long Beach, CA 90802.
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 above individual and to the Office of Information and
Regulatory Affairs, Office of Management and Budget (OMB), Attention:
NOAA Desk Officer, Washington, D.C. 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 Marine Mammal Protection Act (MMPA)(16
U.S.C. 1361 et seq.) directs the Secretary of Commerce (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), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses, and
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.
Comments and Responses
On November 14, 1997 (62 FR 61077), NMFS published an advance
notice of proposed rulemaking on the application and invited interested
persons to submit comments, information, and suggestions concerning the
application, and the structure and content of regulations if the
application is accepted. During the 30-day comment period on that
notice, no comments were received.
Description of Activities
Vandenberg anticipates a total of 10 launches annually for
Minuteman and Peacekeeper missiles from North Vandenberg and a total of
20 launches annually for space launches
[[Page 39056]]
(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.
The regulations proposed by this rule would replace annual
incidental harassment authorizations issued to Vandenberg under section
101(a)(5)(D) of the MMPA. These authorizations have been issued
previously 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 regulations proposed in this document
become effective and Letters of Authorization are issued.
These proposed regulations would 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/year, with 4 to 5 passes/flight.
The maximum testing frequency could reach 3 flights/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.
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),1 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).
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\1\ Reference citations can be found either in the EA or are
available upon request from NMFS (see ADDRESSES).
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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/sq.ft (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).2
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\2\ Airborne noise measurements are usually expressed relative
to a reference pressure of 20 Pa, which is 26 dB above the
usual underwater sound pressure reference of 1 Pa. Also,
they are often expressed as broadband A-weighted sound levels (dBA).
A-weighting refers to frequency-dependent weighting factors applied
to sound in accordance with the sensitivity of the human ear to
different frequencies. While it is unknown whether the marine mammal
ear responds similar to the human ear, a recent study by C. Malme
(pers. commun. to NMFS, March 5, 1998) found that for predicting
effects, A-weighting is better than flat-weighting because pinniped
highest hearing sensitivity is at higher frequencies than that of
humans. As a result, whenever possible, NMFS provides both A-
weighted and unweighted sound pressure levels; when both levels are
not provided, it is presumed to represent the unweighted level.
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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).
One issue for discussion on impacts to marine mammals is the extent
to which noise penetrates the ocean surface and the sound pressure
levels (SPLs) at depths which marine
[[Page 39057]]
mammals may inhabit. Jet aircraft from Vandenberg remain subsonic when
within the coastal zone (U.S. Air Force, 1997). Therefore, it is not
necessary to consider sonic boom noise penetration into the water
column from aircraft covered by this proposed authorization.
The amount of subsonic aircraft noise entering the water column
will depend primarily on aircraft altitude and limited by Snell's Law
(e.g., at angles greater than 13 deg. from the vertical much of the
incident sound is reflected and does not penetrate into the water)
(Richardson et al., 1995). However, some airborne noise will penetrate
water at angles >13 deg. from the vertical when rough seas provide
water surfaces at suitable angles (Lubard and Hurdle, 1976). In
general, the peak, received level in the water, as an aircraft passes
directly overhead, will decrease with increasing altitude and received
depth (Richardson et al., 1995). Duration of audibility, while
significantly less than the duration in air, tends to increase with
increasing aircraft altitude and with decreasing receiver depths. When
an aircraft is not directly overhead, aircraft noises can be stronger
at mid-water than at shallow depths (Richardson et al., 1995).
Helicopters often radiate more sound forward than backward.
However, because the acoustic wavelengths of the low-frequency sounds
that dominate helicopter noise are much longer than the typical ocean
wave heights, penetration at angles greater than 13 deg. from vertical
are expected to be negligible (see Richardson et al., 1995).
Because a rocket's angle of trajectory at lift-off to the water
surface is greater than 13 degrees, launch noises are not normally
expected to transit the air-water interface. While rough seas may allow
some penetration due to angle between the wave face and launch noise,
surf and wind noise in the nearshore zone would be expected to limit
in-water transmission and audibility.
A sonic boom will project ahead of the vehicle as it travels down
range. This may produce a ``carpet'' boom, which, because of its angle
of trajectory, is not expected to penetrate the ocean surface. While
most of this sonic boom energy will be reflected off the water surface,
some noise may penetrate it. Analyses by Cook and Goforth (1970)
indicate that the ``N'' wave of a sonic boom is rapidly smoothed and
attenuated with depth. They found that, in moderate seas and heavy ship
traffic, sonic boom pressures can be expected to exceed the ambient
noise pressures momentarily by up to 50 dB, from the surface to depths
of a few hundred feet, between frequencies of 0.5 Hz and a few hundred
Hz.
When the vehicle changes its launch trajectory offshore, the
surface boom will meet the accelerated boom, creating a ``focused''
sonic boom. Sonic booms may become focused within a narrow band under
the flight path, resulting in sound levels of exceptional amplitude
within a very narrow footprint. This location will always be well
offshore but may intersect with the Northern Channel Islands (NCI).
Theoretical calculations have suggested that, within the narrow
footprint of a focused sonic boom, sound levels as high as 147 dB (U.S.
Air Force, 1990, 1996) to 154 dB (U.S. Air Force, 1988) could be
received.
Marine Mammal Impact Assessment
Noise disturbance from operations on 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, it may result in a temporary
threshold shift (TTS) in their 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/year; 50 aircraft flights/
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.
Titan II and Titan IV
Space Launch Complex (SLC) 4 is utilized for launching Titan II
(SLC-4W) and Titan IV (SLC-4E) rockets. The Titan II space launch
vehicle is a two-staged, modified Intercontinental Ballistic Missile
redesigned to carry small payloads of up to 5,600 lb (2.267 962 kg).
The Titan IV is a larger vehicle, carrying payloads similar to those
carried by the Space Shuttle (U.S. Air Force 1996). Although loud, the
duration of noise capable of affecting marine mammals generated by each
Titan launch is brief. Although some low frequency rumbling noise will
continue for several minutes, the noise event at the Rocky Pt. harbor
seal haul-out will be concluded (Stewart et al., 1992, 1993a, 1993b),
within approximately 2 minutes following ignition and liftoff, by which
time a Titan IV will be 28.6 miles (46 km) from SLC-4, over the open
ocean and out of hearing range of marine mammals on Vandenberg (U.S.
Air Force, 1996). While noise levels around the launch pad, during the
launch, can reach a level of about 170 dB (a level that can cause
hearing damage to humans) (U.S. Air Force, 1988), levels at the nearest
seal rookery are significantly less.
Time-lapse photographic monitoring (Jehl and Cooper, 1982) shows
that, in response to a specific stimulus, large numbers of pinnipeds
may move suddenly from the shoreline to the water. Visual stimuli, such
as humans and low-flying aircraft, are much more likely to elicit this
response than strictly auditory stimuli, such as boat noise or sonic
booms. Observations indicate that it is rare for mass movement to take
place in a panic, and no resulting pup or adult mortality has been
observed under these circumstances. Stewart (1981, 1982) exposed
breeding California sea lions and northern elephant seals on SNI to
loud implosive noises created by a carbide pest control cannon. SPLs
varied from 125.7 to 146.9 dB. While behavioral responses of each
species varied by sex, age, and season, Stewart found that habitat use,
population growth, and pup survival of both species appeared unaffected
by periodic exposure to the noise.
As part of previous small take authorizations for Titan IV launches
at SLC-4, the U.S. Air Force has monitored the effects of launch noises
on harbor seals hauled out at Rocky Pt. (4.8 mi (7.7 km) south of SLC-
4). For six monitored launches of Titan IVs, the sound exposure level
ranged from 141.2 dB to 146.8 dB (96.2-101.8 dBA) (Stewart and
Francine, 1991, 1992; Stewart et al. 1993a, 1993b, 1996; Thorson et
al., 1998). During the 1992 and 1993 Titan IV launches, all or almost
all, harbor seals that were ashore at the time fled into the water (23
of 28 in 1992, 41 of 41 in 1993) in response to the noise. After a
launch in 1993, about 75 percent of those seals returned ashore later
that day, most within 90 minutes of the disturbance (Stewart et al.,
1993b). There were no apparent mortalities following any of the six
monitored launches, and the haulout patterns were reported similar to
those prior to the launches.
[[Page 39058]]
Therefore, because of the loud noise levels of the Titan IV, all
harbor seals hauled out along the Vandenberg coastline are expected to
leave the beach as a result of Titan IV launchings. While noise from a
Titan IV launch can be heard on the NCI, monitoring on those islands
indicates that pinniped response will be limited to no more than a
heads-up alert. This alertness, however, makes the animals more
sensitive for movement to the sea should noise from a sonic boom impact
the haulout site.
Launch noise from a Titan II is expected to be significantly less
than from the larger Titan IV. Noise measurements and observations on
harbor seals at Harbor Seal Beach, Rocky Pt. were conducted during the
launch of a Titan II on April 4, 1997. A sound exposure level
measurement of 116.7 dB was made with a peak level of 83.2 dB at 17 Hz.
The A-weighted sound exposure level (SEL) was measured at 88.5 dB, with
the loudest sound occurring at 76 Hz (50 dB). The maximum number of
harbor seals hauled out ranged from 164 to 278 prior to the launch,
with most peaks occurring in the afternoon (Thorson and Francine,
1997). Thirty-three of the 37 seals ashore at the time of the launch
entered the water during the event; most returned ashore within 30
minutes post-launch. Within 8 to 10 days, seal numbers had increased to
128 (Thorson and Francine, 1997).
Because of high ambient noise along the coastline (ambient noise
level expected to range between 56 and 96 dBA (U.S. Air Force, 1995a)),
rapid attenuation of launch noise, and because almost all sounds from
the launch should be reflected off, and not penetrate, the water
surface, launch noises are not expected to impact any marine mammals in
nearshore waters of Vandenberg, although pinnipeds at the water surface
in the vicinity of the launch site may alert to the noise and other
marine mammal species at the water surface may hear the launch noises.
Sonic booms resulting from launches of the Titan II and IV will
vary with the vehicle trajectory, weather conditions, and the specific
ground location. Depending upon the intensity and location of a sonic
boom, pinnipeds on the NCI could exhibit a simple alert (head-up)
response, or startle and stampede into the water. Two primary concerns
involve the possibility of a stampede during which pups may be trampled
or separated from their mothers and the potential effects of loud
noises on the pinniped's hearing. A third concern involves a possible
physiological stress to the animals, resulting in unsuccessful breeding
and other anomalies in behavior.
Theoretical calculations suggest that marine mammal habitat within
the narrow footprint of a Titan IV focused sonic boom could experience
sound levels as high as 147 dB (U.S. Air Force, 1990, 1996) to 154 dB
(U.S. Air Force, 1988). Chappell (1980) calculated that a sonic boom
would need to have a peak over-pressure in the range of 138 to 169 dB
to cause TTS in marine mammals, with TTS lasting a few minutes at most.
Humans have been exposed to impulse noise similar in magnitude to the
sonic booms expected from Titan IVs with no permanent hearing effects
and with only temporarily reduced hearing sensitivity.
Monitoring the effects of noise generated from Titan IV launches on
SMI pinnipeds in 1991, Stewart and Francine (1992) , demonstrated that
noise levels from a focused sonic boom of 1.34 psf (133 dB, 111.7 dBA)
caused an alert (head up) response by 25 California sea lions, but no
response from other pinniped species present (including harbor seals
and elephant seals). There was no seaward movement as a result of this
nighttime launch, and all animals returned to a resting position within
30 seconds. In 1993, an explosion of a Titan IV created a sonic boom-
like pressure wave that resulted in an alert response, but no movement
toward the sea. Additional popping and rumbling noises that followed
the initial over pressure caused approximately 45 percent of the
California sea lions (approximately 23,400, including 14 to 15 thousand
1-month old pups, were hauled out on SMI during the launch) and 2
percent of the northern fur seals to enter the surf zone. Although
approximately 15 percent of the sea lion pups were temporarily
abandoned when their mothers fled into the surf, no injuries or
mortalities were observed. Most animals were returning to shore within
2 hours of the disturbance (Stewart et al., 1993b) and haul-out
patterns after launchings appeared normal.
In 1995, a Titan IV rocket produced a sonic boom that measured
146.6 dB (8.9 psf) on SMI (Stewart et al., 1996). While seals exposed
to this sonic boom were not tested for hearing effects, the authors
reasoned that those animals most likely experienced hearing threshold
shifts. Most recently, Thorson et al. (1998) measured the SEL for the
Titan IV A-18 sonic boom at 121 dB (86.8 dBA) on the western side of
SCI, where the largest boom was predicted to impact. This low amplitude
(1.1 psf) sonic boom did not result in startling seals and sea lions.
In 1996, Stewart (1996) tested the auditory brainstem response
(ABR) 3 of rehabilitated, stranded, harbor seals (6 pups),
northern elephant seals (3 pups), and California sea lions (5
juvenile), exposed them to a simulated sonic boom, then immediately
retested them to determine if a TTS injury occurred. In these trials,
Stewart demonstrated TTS in California sea lions at over pressures
between 3 and 6.9 psf. A 6.9 psf sonic boom produced a TTS that lasted
approximately 3 hours. In harbor seals, sonic booms with over pressures
between 4.2 and 7.2 psf produced TTS; a TTS produced by a 6.2-psf sonic
boom lasted approximately 24 minutes, whereas a 7.2-psf sonic boom
induced a TTS that lasted approximately 90 minutes. Northern elephant
seals suffered TTS, lasting approximately 20 minutes, when exposed to
sonic booms of 2.3 psf (135 dB) and greater. Thorson et al. 1998 found
no discernible TTS during on-site ABR testing on harbor seals exposed
to launch noise from a Titan IV on October 23, 1997.
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\3\ Evoked ABRs are electrical potentials that are generated by
the brainstem when the ear is stimulated by sound (Stewart 1996).
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Over water, almost all sonic boom sounds will be reflected off the
water's surface. Therefore, except inside an approximate 4 mile by
1,000-ft (7 km by 305 m) zone of a focused sonic boom, only those
individual marine mammals within this zone that are at the water
surface at the time of focusing will experience energy from a sonic
boom. Although Titan IV-generated sonic booms are not likely to cause
permanent hearing damage to marine mammals in or out of the water, they
may cause minor reduction in hearing sensitivity in those few species
with hearing capabilities in the low frequencies found in sonic booms.
This effect is expected to be temporary and will not affect the
survival of individuals or adversely affect the species' populations in
California waters.
Outside the zone of focused energy, cetaceans and pinnipeds in the
water should be unaffected by the sonic booms, although, depending upon
location and ambient noise levels, some pinnipeds may be able to hear
the sonic boom. Although rough seas may provide some surfaces at the
proper angle for sound to penetrate the water surface (Richardson et
al., 1991), sound entering a water surface at an angle greater than 13
degrees from the vertical has been shown to be largely deflected at the
surface, with very little sound entering the water (Chappell, 1980;
Richardson et al., 1991, 1995).
[[Page 39059]]
With only a remote likelihood that a cetacean will be almost
directly under the line of flight of a Titan II and IV at the instant
the vehicle changes its launch trajectory, NMFS believes that sonic
booms will not result in the harassment of cetacean populations in
offshore waters of the SCB.
Most long-term physiological effects, such as those on
reproduction, metabolism and general health, or on the animals'
resistance to disease, are believed to be caused by much greater
cumulative sound exposures (intense continuous noise) than those
expected from space vehicle sonic booms (infrequent, loud, and short-
duration noise), which have less potential for affecting physiology
(U.S. Air Force, 1990; NMFS, 1990).
NMFS believes therefore, that some TTS would be likely following
exceptionally loud, focused, booms created by launches flying directly
over the NCI, but this TTS should last only a short time (minutes to
hours). Also, although the startle effect of the sonic booms might
result in some minor physiological stress, the frequency of the booms
would be low compared to the frequency of naturally induced startle
events. Moreover, there should be no adverse effect on pinniped
survival since no significant increase in stress-related pathology is
anticipated, nor is any disruption of the reproductive cycle expected.
Lockheed Martin Athena Launch Vehicles
At SLC-6, Athena launches would place commercial payloads into low
earth orbit using Lockheed Martin's family of vehicles (Athena-1,
Athena-2 and Athena-3). Under typical conditions, the launch noise
associated with the Athena would be approximately 127 dB (101 dBA) at
the harbor seal haul-out areas, which are about 1.5 mi (2.4 km) to the
south and southwest of SLC-6 (U.S. Air Force, pers. comm. April 28,
1998). The seaward aspects of the cliffs throughout much of the coastal
area are expected to buffer the haul-out areas from launch noises
during the earliest stages of Athena launches (U.S. Air Force, 1995).
While this SEL is significantly less than levels for the Titan IV at
similar distances (approximately 142 dB (121 dBA) for Titan IV), it is
still sufficient to cause harbor seals to leave the beach at Point
Arguello, Rocky Pt, and Boathouse Flats.
The maximum magnitude of sonic booms from launches of the Athena-1
(5.0 psf), Athena-2 (3.0 psf), and Athena-3 (3.0 psf) will be less than
those measured or predicted for Titan IV. Depending upon the intensity
and location of a sonic boom, pinnipeds on SMI or SRI may exhibit an
alert response or stampede into the water. However, while it is highly
probable that sonic booms from Athenas would occur over the Channel
Islands, maximum overpressures of these booms are estimated to be less
than 1.0 psf over the northern part of SMI (U.S. Air Force, 1995). A
sonic boom with an overpressure of 1 psf (127 dB, 60 dBA) is not
considered significant.
The sonic booms resulting from launches of the Athena will vary
with the type of vehicle and with the specific ground location. For
example, the sonic boom from Athena-3 (the largest of the Athena
rockets) is not expected to intersect any portion of the NCI, but
instead will focus on the open water southwest of the Islands. Also,
while it is predicted that launches of the Athena-1 and Athena-2 will
produce sonic booms over portions of the Channel Islands, the maximum
overall SPL is not expected to exceed 110 dB (69 dBA) (U.S. Air Force,
1995). These sonic boom levels are likely to be indistinguishable from
background noises caused by wind and surf (U.S. Air Force, 1995).
McDonnell-Douglas Delta II
Based upon SEL measurements recorded in November 1995, the launch
noise associated with the Delta II launch at SLC-2W is estimated to be
approximately 138.8 dB (125.7 dBA) at the nearest harbor seal haulout
site at Purisima Pt (2,200 ft (670.6 m) from the launch site) (U.S. Air
Force, 1995b). Launch noises from the Delta II are expected to impact
mostly harbor seals as California sea lions and northern elephant seals
are known to haul-out at these sites only infrequently and in smaller
numbers. Therefore, it can be predicted that most, if not all,
pinnipeds onshore near SLC-2W will leave the shore as a result of Delta
II launchings. Harbor seals hauled out at Point Sal (10.5 mi (16.9 km))
and Rocky Pt 13.5 mi (21.7 km)) are expected to alert to the launch
noise, and some, if not all, are expected to flee to the water.
While it is highly probable that a sonic boom from the Delta II
would occur over SMI, maximum overpressures of these sonic booms are
estimated to be 1.0 psf (U.S. Air Force, 1995c). A sonic boom with an
overpressure of 1.0 psf or less is not considered significant. Also,
the maximum overall sound pressure level is not expected to exceed 78
dBA (112 dB) (U.S. Air Force, 1995c). A sonic boom of this magnitude is
likely to be either indistinguishable or barely distinguishable from
background noises caused by wind, surf (U.S. Air Force, 1995a) and
onshore marine mammals.
Taurus
Based upon measurements made on March 13, 1994, of a Taurus rocket
launch from SLC-576E (Stewart et al., 1994), the SEL recorded at
Purisima Pt (2.24 km (1.4 mi) from the launch pad) was 127.4 dB (108.1
dBA). Twenty of the 23 harbor seals that were hauled out at this
location before the launch fled immediately into the water within a few
seconds after launch. The unweighted SEL of noise recorded at Rocky Pt
was 103.9 dB (80.0 dBA)(130-second duration; 20.4 km (12.7 mi) from the
launch pad). That noise included launch noise and possibly a sonic boom
below 50 Hz. Twenty of 74 harbor seals that were monitored at Rocky
Point fled into the water within several seconds of the sound arriving
there. However, none of the four young pups that were ashore left the
beach nor were they separated from their mothers. A comparison of the
reactions of harbor seals to sound at the two study sites indicates
that the intensity and duration of reactions of harbor seals to the
type of noise associated with the Taurus was directly related to the
intensity of the noise to which they were exposed (Stewart et al.,
1994). Substantially more seals reacted to the launch noise at Purisima
Pt than at Rocky Pt. Furthermore, seals at Purisima Pt reacted much
more energetically and remained in the water substantially longer than
did seals at Rocky Pt.
Although monitoring was apparently not conducted at the Spur Road
haulout (approximately 0.5 mi (804 m) from SLC-576E) in 1994, based
upon measurements for Delta II (Aerospace Corporation, 1996) and
comparing these results with Taurus (Stewart et al., 1994), an SEL can
be estimated for Spur Road to be approximately 129 dB (115 dBA). If any
harbor seals are ashore at the time of a launch at this small haulout,
all are expected to immediately leave the shore for the water.
Rocket engine noise over NCI from the just-launched Taurus
traveling at supersonic speeds should not affect pinnipeds hauled out
on these islands. The Taurus flight paths will be to the west-southwest
away from the California coast. Sonic boom noise developed as a result
of these launches is not expected to reach the Channel Islands. Low
intensity rumbling noise may reach the Channel Islands with the effect
ranging from a simple alert response to a startle response, which,
while unlikely, could result in some movement into the water. The
initial
[[Page 39060]]
Taurus launch from SLC-576E did not cause a sonic boom over SMI, and
there was no response by pinniped species on SMI (Orbital Sciences
Corporation, 1996) from launch noise.
Atlas
Atlas II space vehicles, made by Lockheed-Martin, are planned to be
launched from SLC-3E. This launch pad is located 6 mi (9.6 km) from
Rocky Pt, 8.5 mi (13.7 km) from Purisima Pt, and 19 mi (30.6 km) from
Point Sal. Predicted unweighted SELs for Rocky Pt and Purisima Pt are
96.5 dB and 90.4 dB, respectively. SELs of this intensity, if accurate,
may not result in more than an alert posture by those harbor seals
ashore at the time of launch; if low, then some or all of these seals
may leave the shore for the water.
Minuteman and Peacekeeper Missiles
Minuteman missiles produced an unweighted 118 dB (99 dBA) at Point
Sal (2.7 mi (4.3 km) distant) and 104 dB (80 dBA) at Purisima Pt. (7 to
10 mi (11.3 to 16.1 km) distant). While no observations are known to
have been made to date, SELs of this level are considered sufficient to
cause a startle effect and to result in a general movement by harbor
seals into the water.
Peacekeeper missiles are initially launched using air pressure; the
engine ignites at 300 ft (91.4 m) altitude. SELs can be predicted for
Peacekeeper missile launches from North Vandenberg by comparing them
with SELs for the Athena-1 rocket. LF-02 is approximately 2 mi (3.2 km)
from Lions Head and 6.8 mi (10.9 km) from Point Sal. Using this
comparison, NMFS estimates that Peacekeeper missiles would produce an
unweighted SEL of 114 dB (85 dBA) at Point Sal (2.7 mi (4.3 km)
distant) and 105 dB (73 dBA) at Purisima Pt. (7-10 mi (11.3-16.1 km)
distant. SELs of this level are likely sufficient to cause a startle
effect and to result in movement by harbor seals into the water.
Aircraft and Helicopters
Pinnipeds hauled out on land react to aircraft and helicopter
sounds and/or sight by becoming alert and often by rushing into the
water. They tend to react most strongly if an aircraft is flying low,
passes nearly overhead, and/or causes abrupt changes in sounds.
Responsiveness can vary according to the stage of the breeding cycle.
In general, pinnipeds hauled-out for pupping or molting are the most
responsive to aircraft (Tetra Tech, 1997). While flight to the water by
a significant portion of the hauled out pinnipeds has the potential to
increase pup mortality due to crushing or to increase rates of pup
abandonment, direct mortality has not been observed (Richardson et al.,
1995). Specific examples of pinniped reaction to aircraft noise are
provided in the EA.
For range safety and security prior to a launch, helicopter flights
are flown at 500 ft (152.4 m) altitude except over recognized pinniped
haulouts and rookeries where the helicopter is required to ascend to
1,000 ft (305 m). Pre-launch security at Vandenberg requires that
helicopters scan the area in the path of the launch. These helicopter
flights occasionally pass close by harbor seal haulouts. One such
flight resulted in an average sound exposure level of 79.1 dBA (Thorson
et al., 1988). These flights may result in an unintentional, incidental
harassment of pinnipeds and, rarely, cetaceans. One hypothesis is that
these security patrols startle harbor seals and result in fewer seals
being observed ashore (and thereby counted as being ``taken by
harassment'') at the time of the launch.
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
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 passes 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.
Proposed Mitigation
One mitigation measure of long-standing is the requirement that no
vehicles launched from Vandenberg are allowed direct overflight of SRI,
SCI, 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).
For missile and rocket launches, unless constrained by other
factors including, but not limited to, human safety, national security,
or launch trajectories, efforts to ensure minimum negligible impacts of
launches on harbor seals and other pinnipeds, NMFS proposes to require
the Air Force to avoid, whenever possible, launches during the harbor
seal pupping season of February through May and Titan IV launches which
predict a sonic boom on NCI during harbor seal, elephant seal, and
California 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 for Titan IV rockets. Additional mitigation
measures would be contained in annual Letters of Authorization (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
[[Page 39061]]
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.
Proposed Monitoring Measures
During the 5-year duration of this proposed authorization, impacts
of missile and space launches on marine mammals would be monitored to
ensure that the taking is having no more than a negligible impact on
California pinniped stocks. For each launch, monitoring would occur at
the pinniped rookery on Vandenberg most likely to be impacted by the
launch. For most launches, this would be either Point Sal, Purisima Pt
or Rocky Pt. Launch monitoring, as detailed in LOAs, would include the
following: (1) At least one biologically trained on-site observer
designated to record the effects of launches on harbor seals and other
pinnipeds, (2) observations on 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 continue for a period of time not less
than 48 hours subsequent to launching, (3) monitoring of haulout sites
on NCI would be performed if it is determined that a sonic boom could
impact those areas (this determination will be made in coordination
with NMFS), (4) investigation of potential for spontaneous abortion,
disruption of effective female-neonate bonding and other reproductive
dysfunction, and (5) observations on Vandenberg and on NCI, if
indicated, would be supplemented with both video-recording of mother-
pup seal responses for daylight launches during the pupping season, and
with acoustic measurements of those launch vehicles not having previous
SPL measurements.
Proposed Reporting Requirement
A report would have to be submitted to NMFS within 90 days after
each launch. This report will have to contain the following
information:
(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 (6) any behavioral
modifications by pinnipeds that likely were the result of launch noise
or the sonic boom.
An annual report would have to be submitted that describes in a
summary form any incidental takings not reported under the preceeding
paragraph. For example, this report would be expected to describe the
aircraft test program and helicopter operations and any assessments
made on their impacts to hauled-out pinnipeds.
A final report would have to be submitted at least 180 days prior
to expiration of these regulations. This report would 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.
Preliminary Conclusions
The 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 would be expected
to result, at worst, in a temporary reduction in utilization of the
haulout as seals or sea lions leave the beach for the safety of the
water. Launchings would not be expected to result in any reduction in
the number of pinnipeds, and they are expected to continue to reoccupy
the same area shortly after each launch. 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 (FONSI), 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. As a result,
NMFS will accept comment on this EA, and, based upon the comments
received, will (1) adopt the U.S. Air Force EA as its own and sign a
new FONSI statement, (2) amend the U.S. Air Force EA to incorporate
relevant comments, suggestions and information and sign a new FONSI
statement, or (3) based upon comments received, prepare and release for
public comment a Draft Environmental Impact Statement.
Endangered Species Act (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 northern 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 northern 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 haul-out 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.
[[Page 39062]]
Classification
This action has been determined to be not significant for purposes
of E.O. 12866.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Small Business Administration
that this proposed rule, if adopted, 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 is dependent upon the award of
contracts for such services. The economic impact cannot be determined
with certainty, but will be beneficial have no effect, directly or
indirectly, on small businesses. As such, a regulatory flexibility
analysis is not required.
This proposed rule contains collection-of-information requirements
subject to the provisions of the Paperwork Reduction Act (PRA). This
collection has been approved by OMB under OMB 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.
Comments are invited on (a) whether the proposed collection of
information is necessary for the proper performance of the functions of
the agency, including whether the information shall have practical
utility; (b) the accuracy of the agency's estimate of the burden of the
proposed collection of information; (c) ways to enhance the quality,
utility, and clarity of the information to be collected; and (d) ways
to minimize the burden of the collection of information on respondents,
including the use of automated collection techniques or other forms of
information technology. Please send any comments to NMFS and OMB (see
ADDRESSES).
Information Solicited
NMFS requests interested persons to submit comments, information,
and suggestions concerning the request and the structure and content of
the regulations to allow the taking. Because this document contains
only a summary of the information provided in the documents available
to the public (see ADDRESSES), commenters are requested to review these
documents before submitting comments.
List of Subjects in 50 CFR Part 216
Exports, Fish, Imports, Indians, Labeling, Marine mammals,
Penalties, Reporting and recordkeeping requirements, Seafood,
Transportation.
Dated: July 15, 1998.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For reasons set forth in the preamble, 50 CFR part 216 is proposed
to be 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.
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.
216.129 [Reserved]
Subpart K--Taking of Marine Mammals Incidental to Space Vehicle and
Test Flight Activities
Sec. 216.120 Specified activity and specified geographical region.
(a) This subpart applies only to the incidental taking of those
marine mammals specified in paragraph (b) of this section by U.S.
citizens engaged in:
(1) Launching a total of either 10 Minuteman and Peacekeeper
missiles annually or 50 missiles over the 5-year authorization period
from Vandenberg Air Force Base,
(2) Launching a total of either 20 rockets annually or 100 rockets
over the 5-year authorization period from Vandenberg Air Force Base,
(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.
This subpart is effective from October 1, 1998, through September
30, 2003.
Sec. 216.122 Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to Sec. 216.106
of this chapter, 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
[[Page 39063]]
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 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 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 coordination 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 after each launch. This report must contain the
following information:
(1) Date(s) and time(s) of the launch, and
(2) 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 in summary
form 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 findings made in 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 of 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 of 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
[[Page 39064]]
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.
Sec. 216.129 [Reserved]
[FR Doc. 98-19392 Filed 7-20-98; 8:45 am]
BILLING CODE 3510-22-P