[Federal Register Volume 74, Number 24 (Friday, February 6, 2009)]
[Rules and Regulations]
[Pages 6236-6244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-2582]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 0808041027-9041-02]
RIN 0648-AX08


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to Space Vehicle and Test Flight Activities from Vandenberg 
Air Force Base (VAFB), California

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 U.S. Air Force (USAF), is 
issuing regulations to govern the unintentional taking of marine 
mammals, by harassment, incidental to launching space launch vehicles, 
intercontinental ballistic and small missiles, and aircraft and 
helicopter operations at VAFB for the period February 2009 through 
February 2014. The USAF's activities are considered military readiness 
activities pursuant to the Marine Mammal Protection Act (MMPA), as 
amended by the National Defense Authorization Act of 2004 (NDAA). These 
regulations, which allow for the issuance of ``Letters of 
Authorization'' (LOAs) for the incidental take of marine mammals during 
the described activities and specified time frames, prescribe the 
permissible methods of taking and other means of effecting the least 
practicable adverse impact on marine mammal species and their habitat, 
as well as requirements pertaining to the monitoring and reporting of 
such taking.

DATES: Effective February 7, 2009, through February 7, 2014.

ADDRESSES:  A copy of the USAF's application, which contains a list of 
references used in this document, and NMFS' Final Environmental 
Assessment (EA) and Finding of No Significant Impact (FONSI) may be 
obtained by writing to P. Michael Payne, Chief, Permits, Conservation 
and Education Division, Office of Protected Resource, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-
3225, by telephoning the contact listed under FOR FURTHER INFORMATION 
CONTACT, or on the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Documents cited in this final rule may 
also be viewed, by appointment, during regular business hours at the 
above address.

FOR FURTHER INFORMATION CONTACT: Candace Nachman, Office of Protected 
Resources, NMFS, (301) 713-2289, ext. 156, or Monica DeAngelis, 
Southwest Regional Office, NMFS, (562) 980-3232.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce (Secretary) 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 either regulations are issued or, if the taking 
is limited to harassment, notice of a proposed authorization is 
provided to the public for review.
    Authorization for incidental takings may be granted if NMFS finds 
that the taking will have a negligible impact on

[[Page 6237]]

the species or stock(s), will not have an unmitigable adverse impact on 
the availability of the species or stock(s) for certain subsistence 
uses, and that the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such taking 
are set forth.
    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.
    The NDAA (Public Law 108-136) removed the ``small numbers'' and 
``specified geographical region'' limitations and amended the 
definition of ``harassment'' as it applies to a ``military readiness 
activity'' to read as follows (Section 3(18)(B) of the MMPA):
    (i) any act that injures or has the significant potential to 
injure a marine mammal or marine mammal stock in the wild [Level A 
Harassment]; or (ii) any act that disturbs or is likely to disturb a 
marine mammal or marine mammal stock in the wild by causing 
disruption of natural behavioral patterns, including, but not 
limited to, migration, surfacing, nursing, breeding, feeding, or 
sheltering, to a point where such behavioral patterns are abandoned 
or significantly altered [Level B Harassment].

Summary of Request

    On March 21, 2008, NMFS received an application from the USAF 
requesting authorization for the take of four species of marine mammals 
incidental to space vehicle and test flight activities from VAFB, which 
would impact pinnipeds on VAFB and the Northern Channel Islands (NCI). 
These training activities are classified as military readiness 
activities. Marine mammals may be exposed to continuous noise due 
mostly to combustion effects of aircraft and launch vehicles and 
impulsive noise due to sonic boom effects. The USAF requested 
authorization to take four pinniped species by Level B Harassment.

Description of the Specified Activity

    VAFB (see Figure 1 in the USAF application) is headquarters to the 
30th Space Wing (SW), the Air Force Space Command unit that operates 
VAFB and the Western Range. VAFB operates as a missile test base and 
aerospace center, supporting west coast space launch activities for the 
USAF, Department of Defense, National Aeronautics and Space 
Administration, and commercial contractors. VAFB is the main west coast 
launch facility for placing commercial, government, and military 
satellites into polar orbit on expendable (unmanned) launch vehicles, 
and for testing and evaluation of intercontinental ballistic missiles 
(ICBM) and sub-orbital target and interceptor missiles. In addition to 
space vehicle and missile launch activities at VAFB, there are 
helicopter and aircraft operations for purposes such as search-and-
rescue, delivery of space vehicle components, launch mission support, 
and security reconnaissance. The USAF expects to launch a maximum of 30 
rockets and missiles per year from VAFB.
    There are currently six active space launch vehicle (SLV) 
facilities at VAFB (VAFB, 2007), used to launch satellites into polar 
orbit. These facilities support the launch programs for space vehicles 
including the Atlas V, Delta II, Delta IV, Falcon, Minotaur, and 
Taurus. The Falcon has yet to launch from VAFB and is scheduled for its 
first launch in August, 2009 (30 SW, 2008a). A detailed description of 
the activities to be conducted by the USAF, including vehicle types and 
the sound exposure levels produced by each missile or rocket and 
aircraft operations, was included in the proposed rule (73 FR 77577, 
December 19, 2008) and may also be found in the USAF's application (see 
ADDRESSES).

Description of Marine Mammals Potentially Affected by the Activity and 
Habitat

    The four species of marine mammals most likely to be present in the 
action area are: Pacific harbor seals (Phoca vitulina richardii); 
California sea lions (Zalophus californianus); northern elephant seals 
(Mirounga angustirostris); and northern fur seals (Callorhinus 
ursinus). Guadalupe fur seals (Arctocephalus townsendi) and Steller sea 
lions (Eumetopias jubatus) have bred in the past on San Miguel Island, 
but sightings have been rare since the mid-1980's.
    The USAF has compiled information on the abundance, status, and 
distribution of the species on VAFB and the NCI from surveys that they 
have conducted over the last decade and from NMFS Stock Assessment 
Reports (SARs). This information may be viewed in the USAF's 
application (see ADDRESSES). Additional information is available in the 
NMFS SARs, which are available at: http://www.nmfs.noaa.gov/pr/pdfs/sars/po2007.pdf.
    The proposed rule (73 FR 77577, December 19, 2008) contained a 
detailed description of the distribution of these species on VAFB and 
the NCI, as well as a description of their habitat.

Comments and Responses

    On July 25, 2008, NMFS published a notice of receipt of application 
for an LOA in the Federal Register (73 FR 43410) and requested comments 
and information from the public for 30 days. During that comment 
period, NMFS received comments from the Marine Mammal Commission 
(Commission) and one private citizen. Responses to those comments are 
addressed in the proposed rule Federal Register notice (73 FR 77577, 
December 19, 2008). On December 19, 2008, NMFS published a notice of 
proposed rulemaking (73 FR 77577) on the USAF's request to take marine 
mammals incidental to space vehicle and test flight activities from 
VAFB and requested comments, information, and suggestions concerning 
the request. During the 15-day public comment period, NMFS received 
comments from the Commission and one private citizen. The comment from 
the private citizen opposed the issuance of an authorization without 
any specific substantiation for why such an authorization should not be 
issued. For the reasons set forth in this preamble, NMFS believes 
issuance of the authorization is appropriate. Following are the 
comments from the Commission and NMFS' responses.
    Comment 1: The Commission recommends that NMFS extend the public 
comment period on the proposed rule for at least an additional 15 days, 
or, alternatively, provide a post-promulgation comment period before 
the effective date of the rule.
    Response: NMFS has been issuing MMPA authorizations to the USAF to 
conduct these activities from VAFB for more than 20 years, which has 
allowed NMFS to develop relatively standard mitigation and monitoring 
requirements for these activities, so rarely more than one or two 
public comments are received. The public was afforded a 30-day comment 
period to submit information and suggestions on the preparation of 
proposed regulations beginning on July 25, 2008 with the publication of 
the notice of receipt of application (73 FR 43410). NMFS received only 
two comment letters at that time. Similarly, the same two organizations 
or members of the public commented on the proposed rule. NMFS did not 
receive any other requests to extend the comment period.
    The last time NMFS developed regulations for the USAF to conduct 
these same activities, NMFS published a notice of receipt of 
application (68 FR 54894, September 19, 2003), which allowed for a 30-
day comment period and a notice of proposed rulemaking (68 FR 67629, 
December 3, 2003), which allowed for a 15-day comment period. With only 
slight changes to some of the launch vehicles or missiles to be used,

[[Page 6238]]

the activities to be authorized for the period of February 2009 to 
February 2014 and therefore the mitigation, monitoring, and reporting 
requirements are nearly identical to those required in the February 
2004 to February 2009 regulations. In 2003, only the Commission 
submitted comments on the proposed rulemaking. There has not been a 
great deal of public interest in the MMPA authorization process for 
these activities currently or in the past. Therefore, NMFS does not 
believe it is necessary to extend the comment period for this action.
    NMFS will not be able to provide a post-promulgation comment 
period. The current regulations are set to expire on February 6, 2009. 
The USAF currently has a launch planned for February 23, 2009. Since 
these launches are planned around certain meteorological, as well as 
other, conditions, it is not practical to have a post-promulgation 
comment period. These launches are important to national security.
    Comment 2: The Commission recommends that NMFS issue the final rule 
as proposed, provided that the mitigation and monitoring activities 
described in the USAF application and the proposed rule Federal 
Register notice (73 FR 77577, December 19, 2008) are incorporated into 
the final rule.
    Response: NMFS agrees with the Commission's recommendation. All 
measures contained in the proposed rulemaking Federal Register notice 
are included in the final rule.
    Comment 3: The Commission also recommends that NMFS specify in the 
final rule that the authorized activities shall be suspended, pending 
review, if there is any indication that the activities covered by the 
rule are causing marine mammal mortalities or injuries or are affecting 
the distribution, size, or productivity of the potentially affected 
populations.
    Response: The activities to be authorized are considered military 
readiness activities and are important to national security. The USAF 
launches several different types of vehicles and missiles from many 
different space launch complexes on VAFB, sometimes only a few days 
apart. Therefore, it would be impractical to suspend all activities. 
The proposed rule (73 FR 77577, December 19, 2008) contained a 
condition in the ``Mitigation'' section that, for the most part, 
addressed the Commission's recommendation. Language has been added to 
that condition to expand its coverage to include possible affects to 
distribution, size, and productivity of the potentially affected 
pinniped populations. Based on the Commission's recommendation, NMFS 
has included the following condition in the final rule:
    If post-launch surveys determine that an injurious or lethal 
take of a marine mammal has occurred or there is an indication that 
the distribution, size, or productivity of the potentially affected 
pinniped populations has been affected, the launch procedure and the 
monitoring methods must be reviewed, in cooperation with NMFS, and, 
if necessary, appropriate changes must be made through modification 
to an LOA, prior to conducting the next launch of the same vehicle 
under that LOA.
    Comment 4: The Commission recommends that NMFS require additional 
acoustic and biological monitoring when new space vehicles or missiles 
are launched to verify that the actual sound levels and responses of 
animals are as predicted.
    Response: Both the monitoring plan contained in the USAF's 
application and the ``Monitoring'' section in the proposed rule Federal 
Register notice (73 FR 77577, December 19, 2008) contained a 
requirement that acoustic and biological monitoring be conducted on new 
space and missile launch vehicles during at least the first launch, 
whether it occurs within the pupping season or not. This condition is 
included in the final rule.
    Comment 5: Lastly, the Commission recommends that NMFS require 
additional public notice and opportunity for comment before authorizing 
the taking of marine mammals by any new space vehicles or missiles that 
produce sound levels or frequencies significantly different from those 
described in this authorization.
    Response: As described in the USAF's application, the proposed 
rule, and NMFS' EA, the specific launch vehicles may change over the 
course of the five-year regulations (2009-2014) as NEPA analyses are 
completed. This Federal Register document and NMFS' EA evaluate the 
proposed level of activity and type of launches based on current and 
projected information. To the extent that specific launch vehicles may 
change, the USAF would be required to report such new vehicles to NMFS, 
and NMFS would evaluate a particular vehicle (e.g., missiles) to ensure 
that the vehicle fit within the parameters of the regulations. Thus, 
the transition of individual craft is not expected to change the impact 
assessment as set forth in NMFS' EA, and all activities would be 
required to fall within the general description of specified activities 
and estimates of marine mammal take described in this document and 
NMFS' EA. If it is determined that the new space vehicles or missiles 
will produce sound levels or frequencies significantly different from 
those described in this authorization, then NMFS will make the 
information available to the public for comment.

Potential Effects of Specified Activities on Marine Mammals

    The activities 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 VAFB. The operation of launch vehicle engines produces 
significant sound levels. Generally, noise is generated from four 
sources during launches: (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 on 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 class size of launch vehicles.
    The noise generated by VAFB activities will result in the 
incidental harassment of pinnipeds, both behaviorally and in terms of 
physiological (auditory) impacts. The noise and visual disturbances 
from SLV and missile launches and aircraft and helicopter operations 
may cause the animals to lift their heads, move towards the water, or 
enter the water. Information on marine mammal responses to launch noise 
that has been gathered under previous LOAs for these activities, as 
well as a scientific research permit issued to VAFB by NMFS for a 
research program (Permit No. 859-1680-01) to determine the short and 
long-term effects of SLV noise and sonic booms on affected marine 
mammals is contained in the USAF's application and the proposed 
rulemaking Federal Register notice (73 FR 77577, December 19, 2008). 
The potential effects described in the proposed rule are the same as 
those that would occur under the final rule.
    NMFS does not anticipate a significant impact on any of the species 
or stocks of marine mammals from launches from VAFB. For even the 
largest launch vehicles, such as Delta IV, the 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 VAFB and on the NCI. The noise may 
cause temporary

[[Page 6239]]

threshold shift (TTS) in hearing depending on exposure levels, but no 
permanent threshold shift is anticipated. NMFS does not expect these 
activities to result in the mortality of any marine mammals.

Numbers of Marine Mammals Estimated to be Taken by Harassment

    The marine mammal species NMFS believes likely to be taken by Level 
B harassment incidental to launch and aircraft and helicopter 
operations at VAFB are harbor seals, California sea lions, northern 
elephant seals, and northern fur seals. All of these species are 
protected under the MMPA, and none are listed under the Endangered 
Species Act (ESA). Numbers of animals that may be taken by Level B 
harassment are expected to vary due to factors such as type of SLV, 
location of the sonic boom, weather conditions (which can influence the 
size of the sonic boom), the time of day, and the time of year. For 
this reason, ranges are given for the harassment estimates of marine 
mammals. Aircraft operations will occur frequently but will avoid 
pinniped haul-out areas and are unlikely to disturb pinnipeds.
    As noted earlier and in the proposed rule (73 FR 77577, December 
19, 2008), sightings of Steller sea lions and Guadalupe fur seals have 
been extremely rare the last few decades or low at VAFB and on the NCI. 
Therefore, no takes by harassment are anticipated for either of these 
species incidental to the USAF's activities.

Estimated Takes at VAFB

    Harbor seals: As many as 600 harbor seals per launch may be taken. 
Depending on the type of rocket being launched, the time of day, time 
of the year, weather conditions, tide and swell conditions, the number 
of seals that may be taken will range between 0 and 600. Launches and 
aircraft operations may occur at any time of the year so any age 
classes and gender may be taken.
    California sea lions: As many as 200 sea lions per launch may be 
taken. Sea lions at VAFB are usually juveniles of both sexes and sub-
adult males that haul out in the fall during the post breeding 
dispersal. Births generally do not occur at VAFB, but five pups were 
observed at VAFB in 2003, an El Nino year, although all were abandoned 
by their mothers and died within several days of birth. Sick or 
emaciated weaned pups may also haul out briefly. The number of sea 
lions that may be taken will range between 0 and 200.
    Northern elephant seals: As many as 200 elephant seals per launch 
may be taken. Weaned elephant seal pups, juveniles, or young adults of 
both sexes, may occasionally haul out at VAFB for several days to rest 
or as long as 30 days to molt. Injured or sick seals may also haul out 
briefly. The number of northern elephant seals that may be taken will 
range between 0 and 200.
    Northern fur seals: There are no reports of northern fur seals at 
VAFB. Therefore, it is unlikely that any fur seals will be taken.

Estimated Takes on the NCI

    Sonic booms created by SLVs may impact marine mammals on the NCI, 
particularly SMI. Missile launches utilize westward trajectories so do 
not cause sonic boom impacts to the NCI. The PCBoom sonic boom modeling 
program will continue to be used to predict the area of sonic boom 
impact and magnitude of the sonic boom on the NCI based on the launch 
vehicle, speed, trajectory, and meteorological conditions. Prior to 
each SLV launch, a predictive sonic boom map of the impact area and 
magnitude of the sonic boom will be generated. Based on previous 
monitoring of sonic booms created by SLVs on SMI (Thorson et al., 
1999a: 1999b), it is estimated that as much as approximately 25 percent 
of the marine mammals may be disturbed on SMI (Thorson et al., 1999a; 
1999b). Most sonic booms that reach SMI are small (<1 pound per square 
foot [psf]), although larger sonic booms are possible, but rarely 
occur. A conservative take estimate of as much as 25 percent of the 
animals present is used for each species per launch.
    Harbor seals: As many as 200 harbor seals of all age classes and 
sexes may be taken per launch on the NCI. The number of harbor seals 
that may be taken will range between 0 and 200.
    California sea lions: As many as 5,800 sea lion pups and 2,500 
juvenile and adult sea lions of either sex may be taken on the NCI per 
launch. The number of sea lions that may be taken will range between 0 
and 8,300.
    Northern elephant seals: As many as 3,000 northern elephant seal 
pups and 10,000 northern elephant seals of all age classes and sexes 
may be taken per launch on the NCI. The number of elephant seals that 
may be taken will range between 0 and 13,000.
    Northern fur seals: As many as 300 northern fur seal pups and 1,100 
juvenile and adult northern fur seals of both sexes may be taken per 
launch at SMI. The number of fur seals that may be taken will range 
between 0 and 1,400.
    With the incorporation of mitigation measures proposed later in 
this document, the USAF and NMFS expect that only Level B incidental 
harassment may occur as a result of the proposed activities and that 
these events will result in no detectable impact on marine mammal 
species or stocks or on their habitats.

Potential Effects of Specified Activities on Marine Mammal Habitat

    Impacts on marine mammal habitat are part of the consideration in 
making a finding of negligible impact on the species and stocks of 
marine mammals. Habitat includes, but is not necessarily limited to, 
rookeries, mating grounds, feeding areas, and areas of similar 
significance. Only short-term disturbance of marine mammals is expected 
as a result of the proposed activities. No impacts to marine mammal 
habitats are anticipated on VAFB or the NCI.

Potential Effects of Specified Activities on Subsistence Needs

    NMFS has determined that the issuance of an LOA for USAF space 
vehicle and missile launches and aircraft and helicopter operations at 
VAFB would not have an unmitigable adverse impact on the availability 
of the affected species or stocks for subsistence use since there are 
no such uses for these pinniped species in California.

Mitigation

    To minimize impacts on pinnipeds on beach haul-out sites and to 
avoid any possible sensitizing or predisposing of pinnipeds to greater 
responsiveness towards the sights and sounds of a launch, the USAF has 
prepared the following mitigation measures, which NMFS has incorporated 
into its regulations.
    All aircraft and helicopter flight paths must maintain a minimum 
distance of 1,000 ft (305 m) from recognized seal haul-outs 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 haul-outs 
and 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 concerns or launch 
trajectories, holders of LOAs must schedule launches to avoid, whenever 
possible, launches during the harbor seal pupping season of March 
through June. NMFS has expanded this requirement so that the USAF must 
avoid, whenever possible, launches which are predicted to produce a 
sonic boom on the NCI during harbor seal,

[[Page 6240]]

elephant seal, California sea lion, and northern fur seal pupping 
seasons.
    If post-launch surveys determine that an injurious or lethal take 
of a marine mammal has occurred or there is an indication that the 
distribution, size, or productivity of the potentially affected 
pinniped populations has been affected, the launch procedure and the 
monitoring methods must be reviewed, in cooperation with NMFS, and, if 
necessary, appropriate changes must be made through modification to an 
LOA, prior to conducting the next launch of the same vehicle under that 
LOA.

 Monitoring

    As part of its application, the USAF provided a monitoring plan, 
similar to that in the regulations (50 CFR 216.125) set to expire on 
February 6, 2009, for assessing impacts to marine mammals from rocket 
and missile launches at VAFB. This monitoring plan is described, in 
detail, in their application (30 SW, 2008c). The USAF will conduct the 
following monitoring under the regulations.
    The monitoring will be conducted by a NMFS-approved marine mammal 
biologist experienced in surveying large numbers of marine mammals. 
Monitoring at the haul-out site closest to the launch facility will 
commence at least 72 hours prior to the launch and continue until at 
least 48 hours after the launch.

Monitoring for VAFB

    Biological monitoring at VAFB will be conducted for all launches 
during the harbor seal pupping season, 1 March to 30 June. Acoustic and 
biological monitoring will be conducted on new space and missile launch 
vehicles during at least the first launch, whether it occurs within the 
pupping season or not. Also, the third Delta IV launch will be 
monitored, and Auditory Brainstem Response (ABR) testing of seals in 
close proximity to the launch is planned. The testing will be 
authorized under a scientific research permit issued under Section 104 
of the MMPA. Such work was most recently conducted under Permit No. 
859-1680-01, which expired on January 1, 2009. The USAF has submitted 
an application to NMFS for issuance of a new scientific research permit 
to continue the ABR tests on harbor seals, as well as other research 
projects. NMFS is currently reviewing this application. If appropriate, 
NMFS will issue a new scientific research permit to the USAF in early 
spring 2009. NMFS estimates that the tests would be conducted during 
years 2-5 of the regulations.
    Monitoring will include multiple surveys each day that record, when 
possible, the species, number of animals, general behavior, presence of 
pups, age class, gender, and reaction to launch noise, sonic booms, or 
other natural or human-caused disturbances. Environmental conditions 
such as tide, wind speed, air temperature, and swell will also be 
recorded. Time-lapse photography or video will be used during daylight 
launches to document the behavior of mother-pup pairs during launch 
activities. For launches during the harbor seal pupping season (March 
through June), follow-up surveys will be made within 2 weeks of the 
launch to ensure that there were no adverse effects on any marine 
mammals. A report detailing the species, number of animals observed, 
behavior, reaction to the launch noise, time to return to the haul-out 
site, any adverse behavior and environmental conditions will be 
submitted to NMFS within 90 days of the launch.

Monitoring for the NCI

    Monitoring will be conducted on the NCI (San Miguel, Santa Cruz, 
and Santa Rosa Islands) whenever a sonic boom over 1 psf is predicted 
(using the most current sonic boom modeling programs) to impact one of 
the Islands. Monitoring will be conducted at the haul-out site closest 
to the predicted sonic boom impact area. Monitoring will be conducted 
by a NMFS-approved marine mammal biologist experienced in surveying 
large numbers of marine mammals. Monitoring will commence at least 72 
hours prior to the launch and continue until at least 48 hours after 
the launch.
    Monitoring will include multiple surveys each day that record the 
species, number of animals, general behavior, presence of pups, age 
class, gender, and reaction to launch noise, sonic booms, or other 
natural or human-caused disturbances. Environmental conditions such as 
tide, wind speed, air temperature, and swell will also be recorded. Due 
to the large numbers of pinnipeds found on some beaches of SMI, smaller 
focal groups should be monitored in detail rather than the entire beach 
population. A general estimate of the entire beach population should be 
made once a day and their reaction to the launch noise noted. 
Photography or video will be used during daylight launches to document 
the behavior of mother-pup pairs or dependent pups during launch 
activities. During the pupping season of any species affected by a 
launch, follow-up surveys will be made within 2 weeks of the launch to 
ensure that there were no adverse effects on any marine mammals. A 
report detailing the species, number of animals observed, behavior, 
reaction to the launch noise, time to return to the haul-out site, any 
adverse behavior and environmental conditions will be submitted to NMFS 
within 90 days of the launch.

Reporting

    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 haul-out 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 haul-out 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.
    If a freshly dead or seriously injured pinniped is found during 
post-launch monitoring, the incident must be reported within 48 hours 
to the NMFS Office of Protected Resources and the NMFS Southwest 
Regional Office.
    An annual report must be submitted to NMFS at the time of renewal 
of the LOA described in Sec.  216.127, that describes any incidental 
takings under an LOA not reported in the 90-day launch reports, 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 any other marine mammals from Vandenberg activities.

ESA

    In December, 2003, NMFS determined that the USAF's activities and 
the promulgation of regulations and issuance of LOAs are not likely to 
adversely affect any species or their habitats that are listed as 
threatened or endangered under the ESA. The activities to be authorized 
under these

[[Page 6241]]

regulations are not substantially different from those described in the 
2003 consultation. Therefore, there has not been a reinitiation of 
consultation under section 7 of the ESA since none of the reinitiation 
triggers have been met.

NEPA

    The USAF prepared a Final EA and issued a FONSI in 1997 as part of 
its application for an incidental take authorization. On March 1, 1999 
(64 FR 9925), NMFS adopted this EA as provided for by the Council on 
Environmental Quality regulations. In 2003, NMFS prepared its own EA 
and issued a FONSI for the final rule issued in February, 2004. NMFS 
prepared a Draft EA for issuance of regulations and annual LOAs to the 
USAF for the period 2009-2014 and made it available for public comment 
concurrently with the proposed rule. NMFS has finalized the EA and 
issued a FONSI for this action. Therefore, preparation of an 
Environmental Impact Statement is not necessary for this action. NMFS' 
EA and FONSI are available upon request (see ADDRESSES).

Coastal Zone Management Act Consistency

    The USAF conducts separate consultations with the California 
Coastal Commission (CCC) for each launch activity, as each one is 
considered a separate Federal action. Past consultations between the 
USAF and the CCC have indicated that activities from VAFB similar to 
those described in this document are consistent to the maximum extent 
practicable with the enforceable policies of the California Coastal Act 
(CCA). The USAF is in consultation with the CCC for those launch 
activities that have not yet been found to be consistent with the CCA. 
Therefore, NMFS has determined that the activities described in this 
document are consistent to the maximum extent practicable with the 
enforceable policies of the CCA.

National Marine Sanctuaries Act

    On December 8, 2008, NMFS contacted the National Ocean Service's 
Office of National Marine Sanctuaries (ONMS) regarding NMFS' action of 
promulgating regulations and issuing LOAs for the USAF activities 
described in the USAF's application and the proposed rule (73 FR 77577, 
December 19, 2008) to determine whether or not NMFS' action is likely 
to destroy, cause the loss of, or injure any national marine sanctuary 
resources. On December 12, 2008, the ONMS determined that no further 
consultation with NMFS was required on its proposed action as this 
action is not likely to destroy, cause the loss of, or injure any 
national marine sanctuary resources.

Determinations

    Based on the information provided in the USAF application, NMFS' 
EA, this document, the public comments submitted on the application and 
proposed rule, and the USAF's comprehensive reports of the activities 
through 2008, NMFS has determined that the launching of SLVs, ICBMs, 
and small missiles and aircraft and helicopter operations at VAFB, will 
result in no more than Level B harassment of harbor seals, California 
sea lions, northern elephant seals, and northern fur seals. The effects 
of these military readiness activities from VAFB will be limited to 
short term and localized changes in behavior, including temporarily 
vacating haul-outs, and possible TTS in the hearing of any pinnipeds 
that are in close proximity to a launch pad at the time of a launch. 
NMFS has also determined that any takes will have no more than a 
negligible impact on the affected species and stocks. No take by 
serious injury and/or death is anticipated, and the potential for 
permanent hearing impairment is unlikely. Harassment takes will be at 
the lowest level practicable due to incorporation of the mitigation 
measures mentioned previously in this document. NMFS' regulations for 
these exercises prescribe the means of affecting the least practicable 
adverse impact on marine mammals and their habitat and set forth 
requirements pertaining to the monitoring and reporting of that taking. 
Additionally, the launch activities and aircraft and helicopter 
operations will not have an unmitigable adverse impact on the 
availability of marine mammal stocks for subsistence use, as there are 
no subsistence uses of these four pinniped species in California 
waters.

Classification

    The Office of Management and Budget has determined that this 
proposed rule is not significant for purposes of Executive Order 12866.
    Good cause exists to waive the 30-day delay in effectiveness for 
this rule pursuant to 5 U.S.C. 553(d). The USAF has a Taurus (SLC 576-
E) launch scheduled for February 23, 2009, which falls within 30 days 
of the publication of this final rule. A delay would cost up to 
hundreds of thousands of dollars per day, depending on various factors, 
including the cost of maintaining the vehicle and payload in ready 
condition and the number of personnel in the launch crew. A launch 
delay would also lead to increased risk for personnel if there is 
increased handling time for hazardous materials or ordnance that has to 
be deactivated or offloaded, depending on the stage of launch 
preparations at the time of delay. In addition to the significant costs 
that would be borne by the government in the event of a delay to this 
mission, the mission requires a particular orbit for the payload, and 
getting into that orbit can be closely tied to the time of year and, in 
some instances, the time of day. Therefore, delaying this launch would 
mean that the USAF would certainly be impacted in its available launch 
opportunities. The costs of delaying this launch are greatly outweighed 
by the benefits of allowing it to go forward immediately. The 
mitigation and monitoring required by this final rule are for the 
benefit and protection of marine mammals, many of which will be more 
vulnerable after the 30 day period. Delaying this launch by a few weeks 
would cause it to occur during the harbor seal pupping season on VAFB. 
One of the mitigation requirements is to avoid, whenever possible, the 
launching of vehicles or missiles during the harbor seal pupping 
season. Additionally, the measures contained in this final rule are 
substantially similar to the measures contained in the 5-year rule that 
expires on February 6, 2009. The 30th SW, USAF is the only entity 
regulated by this rule. The USAF expressly requested that NMFS issue 
the rule and regulations and is both willing and able to comply with 
the requirements of NMFS' final regulations and LOA, as they were 
during the course of the previous rules and regulations issued to the 
USAF by NMFS to conduct these activities, within the 30-day window.
    At the proposed rule stage, the Chief Counsel for Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that this rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities since it would apply only to the 30th SW, USAF, and would have 
no effect, directly or indirectly, on small businesses. Because of this 
certification, a regulatory flexibility analysis is not required, and 
none has been prepared.

List of Subjects in 50 CFR Part 216

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


[[Page 6242]]


    Dated: February 2, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For reasons set forth in the preamble, 50 CFR part 216 is amended as 
follows:

PART 216--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS 
INCIDENTAL TO SPECIFIED ACTIVITIES

0
1. The authority citation for part 216 continues to read as follows:

    Authority: 16 U.S.C. 1361 et seq.

0
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 Letters of Authorization.
216.128 Renewal of Letters of Authorization.
216.129 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 
the 30th Space Wing, United States Air Force, and those persons it 
authorizes to engage in:
    (1) Launching up to 30 space and missiles vehicles each year from 
Vandenberg Air Force Base, for a total of up to 150 missiles and 
rockets over the 5-year period of the regulations in this subpart,
    (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 period 
of the regulations in this subpart,
    (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); and northern fur seals (Callorhinus ursinus).


Sec.  216.121  Effective dates.

    Regulations in this subpart are effective from February 7, 2009, 
through February 6, 2014.


Sec.  216.122  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec.  216.106 
and 216.127, 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 the 
activity is in compliance with all terms, conditions, and requirements 
of the regulations in this subpart and the appropriate Letter of 
Authorization.
    (b) The taking of marine mammals is authorized for the species 
listed in Sec.  216.120(b) and is limited to Level B Harassment.


Sec.  216.123  Prohibitions.

    Notwithstanding takings specified in Sec.  216.120 and authorized 
by a Letter of Authorization issued under Sec. Sec.  216.106 and 
216.127, no person in connection with the activities described in Sec.  
216.120 may:
    (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 
taking 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 this subpart or a Letter of Authorization issued under 
Sec. Sec.  216.106 and 216.127.


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 practicable, adverse 
impacts on marine mammals and their habitats. When conducting 
operations identified in Sec.  216.120(a), the mitigation measures 
contained in the Letter of Authorization issued under Sec. Sec.  
216.106 and 216.127 must be implemented. These mitigation measures 
include (but are not limited to):
    (1) All aircraft and helicopter flight paths must maintain a 
minimum distance of 1,000 ft (305 m) from recognized seal haul-outs 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 haul-
outs and rookeries closer than 1,000 ft (305 m).
    (2) For missile and rocket launches, holders of Letters of 
Authorization must avoid, whenever possible, launches during the harbor 
seal pupping season of March through June, unless constrained by 
factors including, but not limited to, human safety, national security, 
or for space vehicle launch trajectory necessary to meet mission 
objectives.
    (3) Vandenberg Air Force Base must avoid, whenever possible, 
launches which are predicted to produce a sonic boom on the Northern 
Channel Islands during harbor seal, elephant seal, California sea lion, 
and northern fur seal pupping seasons of March through June.
    (4) If post-launch surveys determine that an injurious or lethal 
take of a marine mammal has occurred or there is an indication that the 
distribution, size, or productivity of the potentially affected 
pinniped populations has been affected, the launch procedure and the 
monitoring methods must be reviewed, in cooperation with NMFS, and, if 
necessary, appropriate changes must be made through modification to a 
Letter of Authorization, prior to conducting the next launch of the 
same vehicle 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. Sec.  216.106 and 216.127 for activities described in Sec.  
216.120(a) are required to cooperate with NMFS, and any other Federal, 
state or local agency with authority to monitor 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, NMFS, by letter or telephone, at 
least 2 weeks prior to activities possibly involving the taking of 
marine mammals. If the authorized activity identified in Sec.  
216.120(a) is thought to have resulted in the mortality or injury of 
any marine mammals or in any take of marine mammals not identified in 
Sec.  216.120(b), then the Holder of the Letter of Authorization must 
notify the Director, Office of Protected Resources, NMFS, or designee, 
by telephone (301-713-2289), within 48 hours of the discovery of the 
injured or dead animal.

[[Page 6243]]

    (b) Holders of Letters of Authorization must designate qualified, 
on-site individuals approved in advance by NMFS, 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 haul-out, 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.
    (2) For launches during the harbor seal pupping season (March 
through June), conduct follow-up surveys within 2 weeks of the launch 
to ensure that there were no adverse effects on any marine mammals,
    (3) Monitor haul-out sites on the Northern Channel Islands, if it 
is determined by modeling that a sonic boom of greater than 1 psf could 
occur in those areas (this determination will be made in consultation 
with NMFS),
    (4) Investigate the potential for spontaneous abortion, disruption 
of effective female-neonate bonding, and other reproductive 
dysfunction,
    (5) Supplement observations on Vandenberg and on the Northern 
Channel Islands with video-recording of mother-pup seal responses for 
daylight launches during the pupping season,
    (6) Conduct acoustic measurements of those launch vehicles that 
have not had sound pressure level measurements made previously, and
    (7) Include multiple surveys each day that surveys are required 
that record the species, number of animals, general behavior, presence 
of pups, age class, gender and reaction to launch noise, sonic booms or 
other natural or human caused disturbances, in addition to recording 
environmental conditions such as tide, wind speed, air temperature, and 
swell.
    (c) Holders of Letters of Authorization must conduct additional 
monitoring as required under an annual Letter of Authorization.
    (d) Holders of Letters of Authorization must submit a report to the 
Southwest Administrator, NMFS, within 90 days 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 program, including, but not 
necessarily limited to:
    (i) Numbers of pinnipeds present on the haul-out 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 pinnipeds remained off the haul-out or 
rookery,
    (iv) Numbers of pinniped adults, juveniles or pups that may have 
been injured or killed as a result of the launch, and
    (v) Behavioral modifications by pinnipeds that were likely the 
result of launch noise or the sonic boom.
    (e) An annual report must be submitted at the time of renewal of 
the Letter of Authorization.
    (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 in 
all previous reports,
    (2) Assess the impacts at each of the major rookeries,
    (3) Assess the cumulative impacts 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 marine mammals pursuant to the regulations 
in this subpart, the U.S. citizen (as defined by Sec.  216.103) 
conducting the activity identified in Sec.  216.120(a) (30th Space 
Wing, U.S. Air Force) must apply for and obtain either an initial 
Letter of Authorization in accordance with Sec.  216.127 or a renewal 
under Sec.  216.128.
    (b) The application must be submitted to NMFS at least 30 days 
before the activity is scheduled to begin.
    (c) Applications for a Letter 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 pinnipeds.


Sec.  216.127  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but must be renewed annually subject to annual renewal 
conditions in Sec.  216.128.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact on the 
species, its habitat, and on the availability of the species for 
subsistence uses (i.e., mitigation); and
    (3) Requirements for mitigation, monitoring and reporting.
    (c) Issuance and renewal of the Letter of Authorization will be 
based on a determination that the total number of marine mammals taken 
by the activity as a whole will have no more than a negligible impact 
on the affected species or stock of marine mammal(s).


Sec.  216.128  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec.  216.106 and Sec.  
216.127 for the activity identified in Sec.  216.120(a) will be renewed 
annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  216.126 will be undertaken and that 
there will not be a substantial modification to the described work, 
mitigation or monitoring undertaken during the upcoming 12 months;
    (2) Timely receipt of the monitoring reports required under Sec.  
216.125(d) and (e), and the Letter of Authorization issued under Sec.  
216.127, which has been reviewed and accepted by NMFS; and
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec. Sec.  216.124 and 216.125 and 
the Letter of Authorization issued under Sec. Sec.  216.106 and 
216.127, were undertaken and will be undertaken during the upcoming 
annual period of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec. Sec.  216.106 and 216.128 indicates that a substantial 
modification to the described work, mitigation or monitoring undertaken 
during the upcoming season will occur, NMFS will provide the public a 
period of 30 days for review and comment on the request. Review and 
comment on renewals of Letters of Authorization are restricted to:
    (1) New cited information and data indicating that the 
determinations made in this document are in need of reconsideration, 
and
    (2) Proposed changes to the mitigation and monitoring requirements 
contained

[[Page 6244]]

in these regulations or in the current Letter of Authorization.
    (c) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register.


Sec.  216.129  Modifications of Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS, issued pursuant to Sec. Sec.  216.106 
and 216.127 and subject to the provisions of this subpart shall be made 
until after notification and an opportunity for public comment has been 
provided. For purposes of this paragraph, a renewal of a Letter of 
Authorization under Sec.  216.128, without modification (except for the 
period of validity), is not considered a substantive modification.
    (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), a Letter of 
Authorization issued pursuant to Sec. Sec.  216.106 and 216.127 may be 
substantively modified without prior notification and an opportunity 
for public comment. Notification will be published in the Federal 
Register within 30 days subsequent to the action.

[FR Doc. E9-2582 Filed 2-5-09; 8:45 am]
BILLING CODE 3510-22-S