[Federal Register Volume 67, Number 14 (Tuesday, January 22, 2002)]
[Rules and Regulations]
[Pages 2820-2824]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-1533]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 010823214-2009-02; ID. 080801A]
RIN 0648-AP47


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to Rocket Launches at Vandenberg Air Force Base, CA

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, has issued a modification to regulations and the annual Letter 
of Authorization (LOA) that authorizes the take of small numbers of 
marine mammals incidental to missile and rocket launches, aircraft 
flight test operations, and helicopter operations at Vandenberg Air 
Force Base, CA (VAFB). The 30th Space Wing requested that the current 
monitoring requirements be modified so that biological monitoring is 
required only during the Pacific harbor seal pupping season (March 1 to 
June 30). By this document, NMFS is amending the regulations governing 
the take of marine mammals incidental to rocket launches at VAFB. NMFS, 
in issuing the regulation to which a modification is sought previously 
determined that rocket launches at VAFB would have a negligible impact 
on the affected species and stocks of marine mammals. In order to make 
the requested amendment to the regulation, NMFS has determined that the 
monitoring program at VAFB and the resultant data from pre- and post-
launch marine mammal observations have effectively shown that rocket 
launch activities have a negligible impact on marine mammal populations 
and stocks.

DATES: The amendment to 50 CFR 216.125 is effective on January 25, 
2002. The modified annual LOA is effective from January 25, 2002, until 
May 23, 2002.

ADDRESSES: All inquiries on this final rule and LOA should be addressed 
to Donna Wieting, Chief, Marine Mammal Conservation Division, Office of 
Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 
20910-3225.

[[Page 2821]]


FOR FURTHER INFORMATION CONTACT: Simona P. Roberts, (301) 713-2322, ext 
106 or Christina Fahy, (562) 980-4023.

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 to allow, 
upon request, the incidental, but not intentional taking of small 
numbers 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 
governing the taking are issued. Effective January 26, 1996, by 
Department Delegation Order 10-15, the Secretary of Commerce 
(Secretary) delegated authority to perform the functions vested in the 
Secretary as prescribed by the MMPA to the Administrator of the 
National Oceanic and Atmospheric Administration. On December 17, 1990, 
under NOAA Administrative Order 205-11, 7.01, the Under Secretary for 
Oceans and Atmosphere delegated authority to sign material for 
publication in the Federal Register to the Assistant Administrator for 
Fisheries, NOAA.
    Permission may be granted for periods up to 5 years if NMFS finds 
that the taking will have no more than 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 the permissible methods of taking and requirements pertaining to 
the monitoring and reporting of such taking are set forth in 
regulation. To make such findings, 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.'' As new information is 
developed, through monitoring, reporting, or research, NMFS may modify 
the regulations governing the take, in whole or in part, after notice 
and opportunity for public review.
    Regulations governing the taking of seals and sea lions incidental 
to missile and rocket launches, aircraft flight test operations, and 
helicopter operations at VAFB were published on March 1, 1999 (64 FR 
9925), and remain in effect until December 31, 2003.

Summary of Request

    On May 17, 2001, NMFS received a request from the 30th Space Wing 
for modification to the monitoring requirements of the 5-year 
programmatic regulations governing the incidental take of marine 
mammals during rocket launch operations at VAFB (50 CFR 216.120-128). 
The requested modification would reduce the current requirement to 
perform biological monitoring during all space vehicle launches at VAFB 
to only those space vehicle launches at VAFB during the Pacific harbor 
seal (Phoca vitulina richardsi) pupping season (March 1 to June 30). 
The 30th Space Wing's request is based on a scientific research program 
and the bioacoustic monitoring of space vehicle launches conducted from 
1997 through 2001 at VAFB (SRS Technologies, 2001). During the pupping 
season, biological monitoring remains important in verifying that 
female harbor seals spend the necessary time on the haul-out 
establishing the female-neonate bond, including nursing of their pups. 
Although harbor seal numbers are highest during molting (May through 
July), NMFS did not propose additional biological monitoring during the 
molting season because research and monitoring results over the last 4 
years show that molting Pacific harbor seals entering the water because 
of a disturbance are not adversely affected in their ability to molt 
and do not become subject to thermoregulatory stress.

Current Monitoring Requirements and Requested Change

    According to 50 CFR 216.125, LOAs that authorize the take of marine 
mammals incidental to space vehicle and test flight activities must 
designate qualified on-site individuals to conduct the following 
monitoring activities:
    (1) Observation of 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 haul-
out, 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) Monitoring haul-out sites on the Northern Channel Islands if it 
is determined during consultation with NMFS that a sonic boom could 
impact those areas;
    (3) Investigation of the potential for spontaneous abortion, 
disruption of effective female-neonate bonding, and other reproductive 
dysfunction;
    (4) Supplemental observation on VAFB 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) Conducting acoustic measurements of those launch vehicles not 
having sound pressure level measurements made previously.
    The 30\th\ Space Wing requested to modify the first monitoring 
activity, observation of harbor seal, elephant seal, and sea lion 
activity in the vicinity of the rookery nearest the launch platform on 
VAFB, to only require observations during the March 1 through June 30 
harbor seal pupping season at VAFB.

Comments and Responses

    On September 14, 2001 (66 FR 47905), NMFS published a proposed 
modification to current regulation and opened a 30-day public comment 
period on the application and proposed rule. No comments were received 
during this period.

Potential Effect of Modification to Monitoring Requirements on 
Pacific Harbor Seals at VAFB

    Since modification of regulations, in whole or in part, must 
account for new information that has been collected through monitoring, 
reporting, or research (see 50 CFR 216.105 (c)), this preamble outlines 
the 30\th\ Space Wing's research and monitoring results to date. To 
verify the negligible impact determination made by NMFS as a 
prerequisite to issuance of the final rule, the monitoring and research 
programs for VAFB were designed to detect changes in population 
parameters that indicate the overall condition of the potentially 
affected populations. Based on the scientific research program and 
bioacoustic monitoring of space vehicle launches conducted from 1997 
through 2001 at VAFB, the 30th Space Wing asserted in its application 
that modification to the monitoring requirements would not alter the 
negligible impact determination made by NMFS during the rule making (64 
FR 9925, March 1, 1999). Rather, results of the 30th Space Wing's 
monitoring and research programs have verified that the impacts of 
rocket launches have had a negligible impact on the harbor seals at 
VAFB.
    Results from the monitoring and research program included an 
analysis of indicators of population health at the regional and site-
specific level. Indicators analyzed included: trends in abundance, pup 
production and mortality, daily and seasonal haul-out behaviors, 
measured sound exposure levels from space launch vehicles, behavioral 
response of Pacific harbor seals to launch noise, and Pacific harbor 
seal auditory brainstem response (ABR) measurements. For a more 
detailed

[[Page 2822]]

account of the 30\th\ Space Wing's research and monitoring programs and 
analysis of results, see SRS Technologies (2001).

Pacific Harbor Seal Scientific Research Program at VAFB

    Data from the scientific research program conducted from 1997 
through 2001 shows that the harbor seal population (including pups) at 
VAFB is increasing and doing as well or better than other harbor seal 
populations in California.

Trends in Abundance

    The most recent estimate of the Pacific harbor seal population in 
California is 30,293 seals (Forney et al., 2000). From 1979 to 1995, 
the California population increased at an estimated annual rate of 5.6 
percent. The total population of harbor seals at VAFB is estimated to 
be 1,040 (775 on south VAFB and 265 on north VAFB), where the telemetry 
data for seals was used to correct for seals that were at sea during 
the census (SRS Technologies 2001). The harbor seal population has been 
increasing since 1997 at an annual rate of 12.6 percent. During this 
period, 5 to 7 space vehicle launches were conducted per year. Recent 
information by several researchers suggests that harbor seals are only 
decreasing in areas (e.g., San Miguel Island, California) where they 
are in competition for haul-out space with California sea lions 
(Zalophus californianus) and northern elephant seals (Mirounga 
angustirostris). California sea lions and northern elephant seals 
rarely haul-out at VAFB; therefore, competition for haul-out space 
should not be a factor in growth of the harbor seal population at VAFB.

Pup Production and Mortality

    Annual harbor seal pup production at VAFB has increased by 5.3 
percent annually. The only decrease in pup production occurred during 
the 1998 El Nino season when there was a 13.6 percent decrease from the 
previous year. In contrast to VAFB haul-out sites, pup production at 
Point Conception, CA (control site for the VAFB research program 
located 25 km south of the south VAFB haul-out site) showed an annual 
increase of 2.9 percent. This smaller percentage in annual pup 
production may be due to the fact that Point Conception has a limited 
area where females and pups can haul-out without being harassed by 
other seals or exposed to high tides and swells. There are more haul-
out areas for females with pups at VAFB; therefore, only El Nino type 
disturbance should affect pup production at VAFB.
    There are no documented occurrences of premature pupping at VAFB. 
In addition, the rate of pup mortality is low (0.6 pups per year), with 
none of the mortalities associated with any of the launch activities. 
Because the rough terrain along the VAFB coastline makes seal captures 
difficult, only 15 seal pups have been tagged; it has been difficult to 
estimate the long-term survival and recruitment rate of these pups. 
Based on telemetry data from the 15 tagged individuals and the behavior 
of pups at other sites, the 30\th\ Space Wing estimates that 
approximately 54 percent of pups continue to haul-out at VAFB after 
weaning. There have been no tag returns of dead pups from VAFB, but 
some pups have been sighted up to 25 km away from the natal haul-out 
site. This suggests that mortality is low for weaned pups and that up 
to 35 percent of pups born at VAFB may migrate to other haul-out sites.

Daily and Seasonal Haul-out Behavior

    At south VAFB, the daily haul-out behavior of harbor seals is 
dependent on time of day rather than tide height. The highest number of 
seals haul-out at south VAFB between 1100 through 1700 hours. At north 
VAFB haul-out sites, tide has a greater influence on the daily haul-out 
behavior of seals. Part of the reason for the tidal influence at north 
VAFB is the coastline's topography, which consists of low lying rocky 
areas that are substantially covered during high tides. In addition, 
haul-out behavior at all sites may be influenced by environmental 
factors such as high swell, tide height, and wind. The combination of 
all three may prevent seals from hauling out at most sites. The number 
of seals hauled out at any site can vary greatly from day to day based 
on environmental conditions.
    Several factors affect the seasonal haul-out behavior of harbor 
seals including environmental conditions, reproduction, and molting. 
Harbor seal numbers at VAFB begin to increase in March during the 
pupping season (March to June) as females spend more time on shore 
nursing pups. The population is at its highest during the molt which 
occurs from May through July. During the molting season, tagged harbor 
seals at VAFB increased their time spent on shore by 22.4 percent; 
however, all seals continued to make daily trips to sea to forage. 
Molting harbor seals entering the water because of a disturbance by a 
space vehicle launch or another source would not be adversely affected 
in their ability to molt and would not endure thermoregulatory stress. 
During pupping and molting season, harbor seals at the south VAFB sites 
expand into haul-out areas that are not used the rest of the year. The 
number of seals hauled out begins to decrease in August after the molt 
is complete and reaches the lowest number in late fall and early 
winter.

Pacific Harbor Seal Bioacoustic Monitoring at VAFB

    Data from the bioacoustic monitoring of space vehicle launches 
conducted from 1997 through 2001 shows that haul-out behavior appears 
to be unaffected by launch operations, and there has been no temporary 
or permanent threshold shifts evidenced as a result of launch noise.
    The types of sounds discussed in this document are airborne and 
impulsive. For this reason, the document references both pressure and 
energy measurements for sound levels. For pressure, the sound pressure 
level (SPL) is described in terms of decibels (dB) re micro-Pascal 
(micro-Pa), and for energy, the sound exposure level (SEL) is described 
in terms of dB re micro-Pa2 -second. In other words, SEL is the squared 
instantaneous sound pressure over a specified time interval, where the 
sound pressure is averaged over 5 percent to 95 percent of the duration 
of the sound (in this case, one second). Airborne noise measurements 
are usually expressed relative to a reference pressure of 20 micro-Pa, 
which is 26 dB above the underwater sound pressure reference of 1 
micro-Pa. However, the conversion from air to water intensities is more 
involved (Buck, 1995) and is beyond the scope of this document.
    In order to obtain details on the launch noise reaching harbor 
seals on VAFB, acoustic measurements were collected via two independent 
systems. The first system was designed to measure the low frequency 
sound associated with rocket launches. The second system was designed 
to measure background noise levels, ambient noise levels, and sound 
events that exceed a pre-set minimum sound level.

Measured Sound Exposure Levels from Space Launch Vehicles

    To study the effect of noise on wildlife, the sound under study is 
typically measured using an A-weighted filter. A-weighting is a 
standard filter used in acoustics that approximates human hearing. 
However, because most animals do not have hearing similar to humans, A-
weighting does not accurately represent sounds as heard by non-human 
mammals (SRS Technologies, 2001). Several researchers (Mohl, 1968; 
Terhune, 1991; Terhune and Turnbull, 1995; Kastak and Schusterman, 
1998) have measured the

[[Page 2823]]

in-air hearing in harbor seals. At 2000 hertz (Hz), harbor seals were 
found to have hearing sensitivities averaging around 30 dB. In 
contrast, the quietest sound a human can hear at 2000 Hz registers at -
1 dB (Sivian and White, 1933). At 2000 Hz, A-weighting adds 1.2 dB to 
the sound being analyzed; therefore, A-weighting does not accurately 
represent sounds as heard by harbor seals. To gain a better 
understanding of how launch noise is perceived by harbor seals, SRS 
Technologies created a frequency-weighting filter, similar to what A-
weighting is for humans, based on the in-air hearing ability of harbor 
seals (SRS Technologies, 2001).
    Acoustical measurements have been collected and analyzed for 21 
space vehicle launches of 7 different types of vehicles using both A-
weighted and harbor-seal weighted filters. The average measurements are 
shown in Table 1:

                                                     Table 1
----------------------------------------------------------------------------------------------------------------
                                                                   Average A-weighted      Harbor seal-weighted
                    Type                       Distance from      Sound Exposure Level     Sound Exposure Level
                                              Haul-out (km/mi)            (dB)                     (dB)
----------------------------------------------------------------------------------------------------------------
Athena                                                 2.8/1.7                    107.5                     68.3
Minotaur                                               2.3/1.4                    106.2                     67.3
Titan IV                                               8.5/5.3                    100.2                     58.9
Taurus                                               0.55/0.34                    125.2                     89.8
Delta II                                               2.0/1.2                    114.9                     78.6
Minuteman III                                         15.6/9.7                     88.7                     42.3
Atlas                                                 11.0/6.8                     86.1                     47.3
----------------------------------------------------------------------------------------------------------------

Behavioral Response of Pacific Harbor Seals to Launch Noise

    During the biological monitoring at VAFB, the response of harbor 
seals to rocket launch noise varied depending on the intensity of noise 
and the age of the seal. When launch noise was below an A-weighted 
sound exposure level of 100 decibels (dBA)(re 20 micro-Pa2-second), 
observations showed that not all seals fled the haul-out site and those 
that remained were exclusively adults. Given the high degree of site 
fidelity among adult harbor seals, it is likely that those seals that 
remained on the haul-out site during rocket launches had previously 
been exposed to launches. It is possible that adult seals have become 
acclimated to the launch noise and react differently than younger 
inexperienced seals. Of the 20 seals (adult and younger) tagged at 
VAFB, 8 (40 percent) were exposed to at least one launch disturbance 
and continued to return to the same haul-out site. Three of these 
tagged seals were exposed to 2 or more launch disturbances. Six (75 
percent) of the tagged seals exposed to launch noise appeared to remain 
in the water adjacent to the haul-out site and then returned to shore 
within 2 to 22 minutes after the launch. The 2 tagged seals that left 
the haul-out site area after the launch had been on shore for at least 
6 hours subsequent to the launch and returned to the haul-out site in 
24 hours.

ABR Measurements

    In order to further determine if harbor seals experience any change 
in their hearing sensitivity as a result of launch noise, the acoustic 
contractor conducted ABR testing on 10 harbor seals prior to and after 
the launches of 3 Titan IV rockets, a vehicle type with one of the 
loudest harbor seal-weighted SELs (see table above). Detailed analysis 
of the ABR measurements showed that there were no detectable changes in 
the seals' hearing sensitivity as a result of the launch noise. 
However, the 2 to 3.5 hour delay in ABR testing post-launch could mean 
that the seals had recovered from a temporary threshold shift (TTS) 
before the testing could begin. However, as there were no detectable 
changes in the hearing sensitivity of these animals when they were 
tested after the delay, the 30th Space Wing concludes, with confidence, 
that the animals did not have permanent hearing changes due to exposure 
to the launch noise from the Titan IV rockets.

Conclusions

    As outlined in this preamble, results of on-going, long-term 
monitoring efforts designed to track trends in haul-out patterns and 
seal distribution at VAFB show that the harbor seal population at VAFB 
is increasing and doing as well or better than other harbor seal 
populations in California. Acoustic measurements in conjunction with 
biological monitoring of haul-out sites and tagged seals over these 
same 4 years, suggest that the haul-out behavior of harbor seals is 
unaffected by launch operations. This data also provides conclusive 
evidence that no permanent hearing damage has resulted from space 
vehicle launches at VAFB. This new information obtained through 
monitoring, reporting, and research verifies NMFS' previous negligible 
impact determination by showing that the level, manner, and effects of 
the marine mammal takes are so small in number that they are 
inconsequential to the abundance, distribution, and productivity of 
marine mammal populations in California (Swartz and Hofman, 1991). 
Therefore, NMFS has concluded that the impact of amending the current 
regulations to require monitoring observations only during the harbor 
seal pupping season at VAFB is consistent with NMFS' March 1, 1999 
negligible impact determination (64 FR 9925).

Classification

    This action is not significant for purposes of Executive Order 
12866.

Classification

    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Small Business Administration, 
when the original rule was proposed in 1998 (63 FR 39055, July 21, 
1998), that, if adopted, the rule would not have a significant economic 
impact on a substantial number of small entities within the meaning of 
the Regulatory Flexibility Act. The rule only affects 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. Because of this classification, a regulatory flexibility 
analysis was neither required nor prepared. This action does not alter 
those conclusions.

[[Page 2824]]

National Environmental Policy Act (NEPA)

    The U.S. Air Force prepared an Environmental Assessment (EA) and 
issued a Finding of No Significant Impact, as part of its request for a 
small take authorization in 1997. 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 mammal 
stocks. NMFS adopted the U.S. Air Force EA as its own as provided by 40 
CFR 1506.3. In the final rule for this activity (64 FR 9925, March 1, 
1999), NMFS found that the issuance of regulations and LOAs to the Air 
Force would not result in a significant environmental impact on the 
human environment and that it would be unnecessary to either prepare 
its own NEPA documentation, or to recirculate the Air Force EA for 
additional comments. This action is within the scope of the EA and does 
not alter its conclusions.

Endangered Species Act (ESA) Consultation History

    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 haul out either on 
the Vandenberg coast or on the NCI during the 5-year period for this 
proposed authorization, the issuance of regulations is unlikely to 
adversely affect listed marine mammals (64 FR 9925, March 1, 1999). 
Additionally, incidental take authorizations for either of these two 
species under either the MMPA or the ESA are not warranted.

List of Subjects in 50 CFR Part 216

    Exports, Fish, Imports, Indians, Labeling, Marine mammals, 
Penalties, Reporting and record keeping requirements, Seafood, 
Transportation.

    Dated: January 14, 2002.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons discussed 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. In Sec. 216.125, paragraph (b) (1) is revised to read as 
follows:


Sec.  216.125  Requirements for monitoring and reporting.

* * * * *
    (b) * * *
    (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 
occurring during the harbor seal pupping season (1 March through 30 
June) and continue for a period of time not less than 48 hours 
subsequent to launching.
* * * * *
[FR Doc. 02-1533 Filed 1-18-02; 8:45 am]
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