[Federal Register Volume 64, Number 39 (Monday, March 1, 1999)]
[Rules and Regulations]
[Pages 9925-9932]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5009]


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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