[Federal Register Volume 69, Number 25 (Friday, February 6, 2004)]
[Rules and Regulations]
[Pages 5720-5728]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2414]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 031112277-4018-02; I.D.080603B]
RIN 0648-AR70
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to Space Vehicle and Test Flight Activities From Vandenberg
Air Force Base (VAFB), 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 U.S. Air Force (USAF), is
issuing regulations to govern the unintentional takings of small
numbers of marine mammals incidental to space vehicle and test flight
activities from Vandenberg Air Force Base, CA (VAFB) over a 5-year
period. Issuance of regulations 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 or stocks of marine
mammals and will not have an unmitigable adverse impact on their
availability for subsistence uses. These regulations prescribe methods
of taking and other means of effecting the least practicable adverse
impact on marine mammal species and their habitat, and on the
availability of the species for subsistence uses.
DATES: Effective from February 6, 2004, through February 6, 2009.
ADDRESSES: A copy of the USAF application, which contains a list of the
references used in this document, may be obtained by writing to P.
Michael Payne, Chief, Marine Mammal Conservation Division, Office of
Protected Resources, National Marine Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910-3226 or by telephoning the contact
listed here (see FOR FURTHER INFORMATION CONTACT). NMFS' Administrative
Record for this action will be maintained at the above address. Copies
of letters and documents are available from this address.
FOR FURTHER INFORMATION CONTACT: Kimberly Skrupky (301) 713-2322, ext.
163.
SUPPLEMENTARY INFORMATION:
Background
Section 101(a)(5)(A) of the Marine Mammal Protection Act (MMPA) (16
U.S.C. 1361 et seq.) directs the Secretary of Commerce (Secretary) to
allow, upon request, the incidental, but not intentional taking of
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 are
issued.
Permission may be granted for periods of 5 years or less if the
Secretary finds that the total taking will have a negligible impact on
the species or stock(s) of affected marine mammals, and will not have
an unmitigable adverse impact on the availability of the species or
stock(s) for subsistence uses, and if 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.
Under section 18(A), the MMPA defines ``harassment'' as:
any act of pursuit, torment, or annoyance which (i) has the
potential to injure a marine mammal or marine mammal stock in the
wild [Level A harassment]; or (ii) has the potential to disturb a
marine mammal or marine mammal stock in the wild by causing
disruption of behavioral patterns, including, but not limited to,
migration, breathing, nursing, breeding, feeding, or sheltering
[Level B harassment].
Summary of Request
On September 2, 2003, NMFS received an application from the USAF
requesting authorization under section 101(a)(5)(A) of the MMPA to
harass small numbers of marine mammals incidental to space vehicle and
test flight activities conducted by the USAF on Vandenberg. These
regulations will allow NMFS to issue annual Letters of Authorization
(LOAs) to the USAF. The current regulations and LOA expired on December
31, 2003. A detailed description of the operations is contained in the
USAF application (USAF, 2003) which is available upon request (see
ADDRESSES).
Description of the Specified Activity
VAFB is the main west coast launch facility for placing commercial,
government, and military satellites into polar orbit on expendable
(i.e. not reusable) 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
launches, there are security and search and rescue helicopter
operations, as well as test and evaluation flights of fixed-wing air
craft. The USAF expects to launch a total of 30 rockets and missiles
from VAFB.
Currently five space launch vehicle programs use VAFB to launch
satellites into polar orbit: Atlas IIAS, Delta II, Minotaur, Taurus,
and Titan (II and IV). Two new programs, the Evolved Expendable Launch
Vehicle (EELV) and Space X, are scheduled to make their inaugural
launches at VAFB in 2004. The EELV will use a Boeing Delta IV vehicle
and a Lockheed-Martin Atlas V. Eventually, these vehicles will replace
many of the other programs such as Atlas II and Titan, but initially
there will be an overlap in the launches of each program. The Space X
is a commercial program which will launch small payloads into low earth
orbit. There is also a variety of small missiles, several types of
interceptor and target vehicles, and fixed-wing aircrafts that are
launched from VAFB.
Atlas IIAS
The Atlas IIAS is launched from Space Launch Complex (SLC) 3E on
south VAFB, approximately 9.9 km (6.2 mi) from the Rocky Point harbor
seal haul-out area and 11.1 km (6.9 mi) from the Spur Road haul-out
site. The Atlas IIAS is a medium-sized (up to 48m, 157.5 ft, tall)
launch vehicle with approximately 724,800 lbs of thrust. Two Atlas IIAS
launch vehicles have been launched from SLC 3E (the Atlas IIAS AC-141
Terra launched on 18 December 1999 and the Atlas IIAS MLV-10 launched
on 8 September 2001).
The received sound level at south VAFB from the Atlas IIAS launches
was relatively quiet, due to the great amount of attenuation from the
9.9 km (6.2 mi) distance between the measurement site and SLC-3E.
Measurements at the south VAFB haul-out site were similar to those
measured at the north base Spur Road monitoring site, but slightly
higher. The A-weighted sound exposure levels (ASEL), measured at the
south haul-out site for the two launches, were 87.3 and 88.5 dB, the
unweighted SELs were measured at 124.2 and 118.0 dB
[[Page 5721]]
and the C-weighted SEL were measured to be 113.6 and 112.1 dB. The
launch noise reached a maximum fast sound level (Lmax) of 76.4 and 80.8
dB.
The launch noise measured at the north VAFB Spur Road acoustic
monitoring site was slightly quieter than at the south VAFB monitoring
locations, due to the greater distance between the site and the launch
pad. The launch noise at this site was unsubstantial. The A-weighted
SELs for both launches were measured to be 86.1 dB, and the Terra
launch had an unweighted SEL of 117.2 dB, and a C-weighted SEL of 110.0
dB. The launch noise reached Lmax levels of 75.2 and 79.7 dB. A sonic
boom was measured for the launch of the Atlas IIAS MLV-10 on SMI. The
peak overpressure was 0.75 psf (125.1 dB) and the rise time was
relatively slow at 2.6 milliseconds. This relatively slow rise time
reduces the higher frequency content of the boom and tends to produce a
sound more resembling distant thunder than the more familiar sharp
crack of a distinct sonic boom.
Delta II
The Delta II is launched from SLC-2 on north VAFB, approximately
2.0 km (1.2 mi) from the Spur Road harbor seal haul-out site. The Delta
II is a medium-sized launch vehicle approximately 38 m (124.7 ft) tall.
The Delta II uses a Rocketdyne RS-27A main liquid propellant engine and
additional solid rocket strap-on graphite epoxy motors (GEMs) during
liftoff. A total of 3, 4 or 9 GEMs can be attached for added boost
during liftoff. When 9 GEMs are used, 6 are ignited at liftoff and 3
are ignited once the rocket is airborne. When 3 or 4 GEMs are used,
they are all ignited at liftoff. The number of GEMs attached to each
vehicle will determine the amount of launch noise produced by the
vehicle.
Six Delta II launches have been acoustically quantified near the
Spur Road harbor seal haul-out site. The noise at the Spur Road site
from the Delta II launches is relatively loud, primarily due to the
close proximity of the launch pad. The Delta II is the second loudest
of the launch vehicles at the Spur Road haul-out site with unweighted
SEL measurements ranging from 126.5 to 128.8 dB and averaging of 127.4
dB (as measured by the digital audio tape [DAT] recorder). The C-
weighted SEL ranged from 124.3 to 126.7 dB with an average of 125.4 dB
(DAT). The A-weighted SEL measurements from both a sound level meter
(SLM) and the DAT were similar and ranged from 111.8 to 118.2 dB and
had an average of114.5 dB (DAT). The seal-weighted SELs were
considerably reduced to range from 74.2 to 79.7 dB and averaged 76.9
dB. The Lmax values ranged from 104.2 to 112.5 and averaged 109.5 dB.
Sonic booms have been measured on SMI from two Delta II launches, the
Iridium MS-12 and EO-1. The Iridium MS-12 had two small sonic booms
impact the Point Bennett area of SMI with peak overpressures of 0.47
and 0.64 psf and rise times of 18 and 91 ms. The Delta II EO-1 sonic
boom had a peak overpressure of 0.4 psf and rise time of 41
microseconds (micros).
Minotaur
The Minotaur launch vehicle is launched from the California
Spaceport on south VAFB, near SLC-6 and is approximately 2.3 km (1.4
mi) from the south VAFB pinniped haul-out sites. The Minotaur launch
vehicle is made up of modified Minuteman II Stage I and Stage II
segments mated with Pegasus upper stages. The Minotaur is a small
vehicle, approximately 19.2 m (63.0 ft) tall with approximately 215,000
lbs of thrust. Although the Minotaur produces less thrust than other
larger launch vehicles, due to its close proximity to the south VAFB
haul-out sites, it is one of the loudest vehicles at this site. Two
Minotaur launch vehicles have been launched from VAFB (26 January 2000
and 19 July 2000).
The launch noise measured near the south VAFB haul-out sites was
moderately loud, primarily due to the close proximity to the launch
pad. The unweighted SEL measurements varied by 3.5 dB between the two
launches and were measured to be 119.4 and 122.9 dB. The C-weighted
SELs varied less and were measured at 116.6 and 117.9 dB. From the DAT
and SLM measurements, the A-weighted SEL ranged from 104.9 to 107.0 dB.
The launch noise reached an Lmax level of 101.7 and 103.4 dB.
Taurus
The Taurus space launch vehicle is launched from 576-E on north
VAFB, approximately 0.5 km (0.3 mi) from the Spur Road harbor seal
haul-out site. There have been 6 Taurus rockets launched from 576-E.
The standard Taurus is a small launch vehicle, at approximately 24.7 m
(81.0 ft) tall and is launched in two different configurations: Defense
Advanced Research Projects Agency (DARPA) and standard, with different
first stages providing 500 or 400 kilopounds of thrust, respectively.
The launch noise from 4 Taurus launches has been measured near the
Spur Road haul-out site. The noise arriving at the Spur Road monitoring
site, near the harbor seal haul-out, was substantial due to the close
proximity of the launch pad. At 0.5 km to SLC-576, the Taurus is the
loudest of the launch vehicles at the Spur Road haul-out site. The
unweighted SEL measurements from all the measured Taurus vehicles
ranged from 135.8 to 136.8 and averaged 136.4 dB. The C-weighted SEL
measurements were slightly lower as expected, ranging from 133.8 to
134.8 dB and averaged 134.5 dB. The A-weighted SEL measurements ranged
from 123.5 to 128.9 dB with an average of 126.6 dB (SLM). The harbor
seal-weighted SELs ranged from 88.0 to 91.3 dB and averaged 90.2 dB.
The Lmax values were measured to range from 118.3 to 122.9 dB and
averaged 120.9 dB (SLM).
Titan II
The Titan II space launch vehicle is launched from SLC-4W, which is
approximately 8.5 km (5.3 mi) north of the south VAFB pinniped haul-out
sites. The USAF has launched 6 Titan II space launch vehicles from SLC-
4W during the study period. The Titan II space launch vehicle is a
medium-sized liquid fueled rocket at 36.0 m (118.1 ft) tall. It has a
small-to-medium weight lift capability; additional strap-on GEM solid
rocket motors can be added to the first stage to increase the lift
capability. All of the Titan II launch configurations were the same,
launched without additional solid rocket motors attached and had a
thrust of approximately 474,000 lbs.
The Titan II launch noise as measured near the south VAFB haul-out
site, which is the closest haul-out to SLC-4W, is unsubstantial and
ranks among the quieter vehicles. This is primarily due to its moderate
thrust and the relatively long distance to the launch pad. The
unweighted SEL measurements ranged from 116.3 to 120.3 dB and averaged
118.3 dB. The C-weighted SELs ranged from 109.6 to 115.0 dB and
averaged 112.5 dB. The A-weighted SELs ranged from 83.5 to 95.7 dB and
averaged 89.9 dB (DAT). The harbor seal-weighted SELs ranged from 38.2
to 54.5 dB and averaged 47.4 dB. The Lmax values were measured to range
from 74.9 to 85.9 dB and averaged 80.1 dB.Titan IV
The Titan IV space launch vehicle is launched from SLC-4E, which is
approximately 8.5 km (5.3 mi) from the south VAFB pinniped haul-out
site. The Titan IV series was developed as a complementary heavy-lift
vehicle to the Space Shuttle and is by far the largest vehicle
currently launched from VAFB. The Titan IV is approximately 44 m (144.5
ft) tall and has a liquid fuel core engine and two upgraded solid
rocket
[[Page 5722]]
motors (SRMU) that provide approximately 3,400,000 lbs of thrust. The
Titan IV is moderately loud and is one of the louder vehicles at the
south VAFB haul-out site, primarily due to its large amount of thrust.
The launch noise measurements for the 4 Titan IV launches measured were
all fairly consistent. The unweighted SELs ranged from 125.9 to 130.2
dB and averaged 127.8 dB. Similarly, the C-weighted measurements varied
very little, with the C-weighted SELs ranging from 119.0 to 124.2 dB
and averaging 121.5 dB. There was a greater difference with the A-
weighted and harbor seal-weighted measurements with the A-weighted SELs
ranging from 96.6 to 104.5 dB with an average of 101.5 dB (DAT). The
harbor seal-weighted SELs ranged from 54.4 to 63.5 dB with an average
of 60.3 dB. The Lmax values were determined to range from 88.2 to 100.6
dB and averaged 95.6 dB. Several sonic booms have been measured for the
launches of the Titan IV. The peak overpressures from sonic booms
produced by this vehicle range from 1.34 to 8.97 psf. These booms have
been measured for 4 launches of the Titan IV and have impacted each
coast of SMI.
Evolved Expendable Launch Vehicle (EELV)
The EELV is the Air Force's newest launch vehicle program and will
use the Atlas V vehicle from Lockheed-Martin and the Delta IV space
launch vehicle from the Boeing Company for launches from VAFB. The EELV
program will become the main space launch program over the next several
years, replacing many of the other launch vehicles at VAFB. The maximum
number of forecasted EELV launches per year is 5, with a total of 68
launches projected through 2020 (U.S. Air Force 2000).
The Atlas V consists of both a medium (V400) and heavy (V500) lift
vehicle with up to 5 solid rocket boosters. During the next 5 years,
only the medium lift V400 series vehicle will be launched from VAFB.
The V400 series will lift up to 7,640 kg (16,843 lbs) into
geosynchronous transfer orbit or up to 12,500 kg (27,557.3 lbs) into
low earth orbit. The Atlas V consists of a common booster core (3.8 m,
12.5 ft, in diameter and 32.5 m, 106.6 ft, high) powered by an RD180
engine that burns a liquid propellant fuel consisting of liquid oxygen
and RP1 fuel (kerosene). The RD180 engine provides 840,000 lbs of
thrust on liftoff, and up to three solid rocket boosters can be
attached to the common booster core to provide extra lift. There is a
Centaur upper stage (3.1 m, 10.2 ft, in diameter and 12.7 m, 41.7 ft,
high) powered by a liquid oxygen and liquid hydrogen fuel. The payload
fairing is up to 4.2 m (13.7 ft) making the complete Atlas V up to 58.3
m (191.3 ft) high.
The Atlas V will be launched from SLC-3 East, the site of the
current Atlas II launch facility. SLC-3 East is approximately 9.9 km
(6.2 mi) north of the main harbor seal haul-out site in the area of
Rocky Point. Launches of the smaller Atlas IIAS (47.4 m, 51.8 ft, in
length and 700,000 lbs of thrust) produced A-weighted sound exposure
levels ranging from 87.3 to 88.5 dB at the south VAFB haul-out site.
The predicted noise level at the closest haul-out site (10 km, 6.2 mi,
from the launch pad of an Atlas V) would be slightly louder than the
noise levels from the Atlas IIAS. The maximum sonic boom impacting the
Channel Islands would be 7.2 pounds per square foot (psf). The size of
the actual sonic boom will depend on meteorological conditions, which
can vary by day and season and with the trajectory of the vehicle.
The Delta IV family of launch vehicles consists of 5 launch vehicle
configurations utilizing a common booster core (CBC) first stage and 2
and 4 strap on GEMs. The Delta IV comes in four medium lift
configurations and one heavy lift configuration consisting of multiple
common booster cores. The Delta IV can carry payloads from 4,210 to
13,130 kg (9.281.3 to 28,946.2 lbs) into geosynchronous transfer orbit.
The Delta IV will be launched from SLC-6, which is 2.8 km (1.7 mi)
north of the main harbor seal haul-out site at South Rocky Point. The
Delta IV will be the loudest vehicle at the south VAFB harbor seal
haul-out site. The Delta IV is predicted to have a sonic boom offshore
of up to 7.2 psf for the largest of the medium configurations and 8 to
9 psf for the heavy configuration. The size and location of the actual
sonic boom will depend on meteorological conditions, which can vary by
day and season and with the trajectory of the vehicle.
Space X
The Space X program will launch the Falcon space launch vehicle
from SLC 3-West on south VAFB. The Falcon is a light space launch
vehicle and will send small payloads of up to 500 kg (1102.3 lbs) into
low earth orbit. The Falcon vehicle is 1.7 m (5.6 ft) in diameter and
20.7 m (67.9 ft) in height, making it approximately the size of a
Peacekeeper missile. The Falcon is a two-stage liquid fuel vehicle. The
first stage is reusable and uses a liquid oxygen and kerosene base
fuel. The second stage is expendable and also uses a liquid oxygen and
kerosene fuel.
Other Launch Activities
There are a variety of small missiles launched from VAFB, including
Peacekeeper, Minuteman III, and several types of interceptor and target
vehicles for the National Missile Defense Program. The missile launch
facilities are spread throughout northern VAFB and are within 0.65 to
3.9 km (0.4 to 2.4 mi) of the recently occupied Lion's Head haul-out
site and approximately 11 to 16.5 km (6.8 to 10.3 mi) north of the Spur
Road and Purisma Point harbor seal haul-out sites.
The Peacekeeper missile is an Inter-Continental Ballistic Missile
(ICBM) that was developed as part of the United States strategic
deterrence force. The Peacekeeper is launched from various underground
silos as part of a test and evaluation program. The Peacekeeper is
composed of four rocket motors, 21.8 m (71.5 ft) in length by 2.3 m
(7.5 ft) in diameter, with the first stage thrust of 500,000 lbs. The
Peacekeeper, unlike other silo launch missiles, is ``cold launched,''
initially propelled out of the silo with pressurized gas. The first
stage rocket motor is ignited once the vehicle is approximately 20 m
(65.6 ft) above the ground. The Peacekeeper missile is being phased out
and only a few launches remain.
The Minuteman III missile is an ICBM that was also developed as
part of the United States strategic deterrence force. Similar to the
Peacekeeper, the Minuteman III is launched from underground silos but
is not cold launched. The Minuteman III is composed of three rocket
motors and is 18.0 m (59.1 ft) in length by 1.7 m (5.6 ft) in diameter,
with a first stage thrust of 202,600 lbs.
The Missile Defense Agency (MDA) is developing the Ground-based
Midcourse Defense (GMD) element of the conceptual Ballistic Missile
Defense System (BMDS). The BMDS concept is to defend against threat
missiles in each phase or segment of the missile's flight. There are
three segments of this conceptual system in various stages of
technology development: Boost Phase Defense, Midcourse Defense, and
Terminal Defense. Each segment of the BMDS is being developed to
destroy an attacking missile in the corresponding boost, mid-course, or
terminal phase of its flight. The GMD element is designed to protect
the United States in the event of a limited ballistic missile attack by
destroying the threat missile in the mid-course phase of its flight.
During the mid-course phase, which occurs outside the earth's
atmosphere for medium and long-range missiles, the missile is coasting
in a ballistic trajectory.
[[Page 5723]]
A variety of small missiles under 13 m (42.7 ft) including the
Hera, Lance, Patriot As A Target, ERINT, Black Brant, Terrier, SRTYPI
II, Castor I, Storm, ARIES, and Hermes are also included in the
application because of the new harbor seal pupping site that was
established in 2002 at Lion's Head. Those missiles, in addition to
missiles already included in previous NMFS authorizations for VAFB
(Minuteman and Peacekeeper missiles and missiles from the Ground Based
Interceptor programs), and the new generation of missiles from the MDA,
will be covered by these regulations and annual LOAs. Several types of
missiles will be used for target and interceptor test and evaluation;
some of these missiles are being used currently (Booster Verification
Test) and the remainder will not be used until 2004 or later. All of
the target and interceptor missiles are smaller than the Minuteman III
or Peacekeeper missiles that are currently launched from VAFB. Many of
the different missile types have interchangeable first or second stage
motors; therefore, most of the missiles may have similar noise
characteristics, depending on their configuration.
The Ground Based Interceptors (GBI) are approved for launchings at
VAFB (12 May 2003, 68 FR 25347). The GBI Booster Verification and the
uncanisterized Orbital Booster Vehicle will be flight tested from LF-21
and LF-23. The missiles would be comprised of a commercially available,
solid propellant booster consisting of three stages and an exo-
atmospheric kill vehicle emulator.
Aircraft Activities
VAFB is also a site for limited flight testing and evaluation of
fixed-wing aircraft. Three approved routes are used that avoid the
established pinniped haul-out sites. A variety of aircraft, including
the B1 and B2 bombers, F-14, F-15, F-16, and F-22 fighters, and KC-135
tankers may use the test and evaluation routes.
Various fixed-wing aircraft (jet and propeller aircraft) use VAFB
for a variety of purposes including delivery of space or missile
vehicle components, launching of launch vehicles at high altitude, such
as the Pegasus, and emergency landings. VAFB has approximately 120-
fixed-wing flights per year and 10,000 take offs and landings (training
operations), which occur mostly on north VAFB (U.S. Air Force 2003).
All aircraft are required to remain outside of an established 1,000-ft
(304.8 m) bubble around pinniped rookeries and haul-out sites, except
when performing a life-or-death rescue mission, when responding to a
security incident, or during an aircraft emergency.
The VAFB helicopter squadron uses a UH-IN helicopter and provides
support for launch operations, security reconnaissance, aerial
photography, training, transport, and search and rescue. VAFB has
approximately 75 helicopter sorties per month (U.S. Air Force 2003).
All helicopters are required to remain outside of the 1,000-ft (304.8
m) bubble around pinniped rookeries or haul-out sites, except when
performing a life-or-death rescue mission, when responding to a
security incident, or during an aircraft emergency.
Comments and Responses
On September 19, 2003 (68 FR 54894), NMFS published a notice of
receipt of application and on December 3, 2003 (68 FR 67629) NMFS
published a notice of proposed rulemaking on the USAF's application for
an incidental take authorization and requested comments, information
and suggestions concerning the request. During the public comment
period, NMFS received comments from the Marine Mammal Commission
(Commission). The Commission supports NMFS' intent to implement
incidental take regulations for the USAF's activities at VAFB provided
that regulations are incorporated into the proposal.
Comment: The Commission supports NMFS' small take regulations for
these activities, provided that the research, mitigation, and
monitoring activities described in the application are incorporated
into the regulations. The Commission notes that the applicant's
research, reporting, and monitoring efforts under the previous
regulations indicate that the haul-out behavior of harbor seals is
apparently unaffected by launch operations, and that the animals do not
seem to have incurred any permanent hearing damage as a result of space
vehicle launches at the VAFB. NMFS amended those regulations on 22
January 2002 to require that biological monitoring be conducted only
during Pacific harbor seal pupping season (67 FR 2820). The current
application states that a research program to study the effects of
space launch vehicle and missile launch noise and sonic booms on the
behavior, hearing ability, and population dynamics of pinnipeds at VAFB
and the northern Channel Islands was begun in 1997, and, if the
requested authorization is issued, would continue through 2008.
Response: NMFS is requiring all research, mitigation, and
monitoring activites described in the USAF's application. NMFS is also
requiring the USAF to continue their research program on VAFB to study
the behavior of pinnipeds during launches.
Specified Geographic Region and Description of Habitat and Marine
Mammals Affected by the Activity
VAFB is composed of 99,000 acres of land and approximately 65 km
(39 mi) of coastline on the coast of Central California within Santa
Barbara County. The northern Channel Islands are located 72 km (44.7
mi) south of VAFB and consist of San Miguel Island (SMI), Santa Cruz
Island (SCI), and Santa Rosa Island (SRI). The northern Channel Islands
are part of the Channel Islands National Park and the Channel Islands
National Marine Sanctuary.
The most common marine mammal inhabiting VAFB is the Pacific harbor
seal (Phoca vitulina richardsi). Harbor seals are local to the area,
rarely traveling more than 50 km (31.1 mi) from their haul-out sites.
They haul-out on small offshore rocks or reefs and sandy or cobblestone
cove beaches. Although harbor seals can be found along much of the VAFB
coastline, they congregate in the areas of Oil Well Canyon to South
Rocky Point and near the boat harbor on south VAFB. The haul-out site
on south VAFB has the largest population of harbor seals on VAFB, with
up to 515 seals surveyed, and has been growing at an average annual
rate of 12.7 percent since 1997 while the California population has
remained stable. At least 700 harbor seals used SMI, 1,000 used SCI and
900 used SRI during the 2002 aerial counts (Lowry and Caretta 2003).
Less than 200 California sea lions (Zalophus californianus) are
found seasonally on VAFB. Sea lions may sporadically haul-out to rest
when in the area to forage or when transiting the area, but generally
spend little time there. Sea lions may haul-out in the area of Rocky
Point, Point Arguello, Point Pedernales, and Point Sal, just north of
VAFB. In 2003, at least 142 sea lions and 5 pups were hauled out at
Rocky Point. This was the first reported occurrence of sea lions being
born at VAFB but may be a result of the El Nino conditions that existed
at that time. SMI is one of the major California sea lion rookeries,
along with San Nicolas Island, with about 23,000 pups born each year.
Launches from VAFB will only affect SMI.
Approximately 150 northern elephant (Mirounga angustirostris) seals
may be found seasonally on VAFB. Weaned elephant seal pups making their
first foraging trips occasionally haul-out for 1 to 2 days at VAFB
before continuing on their migration. In April 2003,
[[Page 5724]]
approximately 88 juveniles and young adult females began to haul-out at
South Rocky Point to molt. The nearest elephant seal haul-out point is
at Point Conception, 25 km (15.5 mi) south of VAFB. Elephant seals
primarily use SMI and SRI for breeding and hauling out to rest or molt.
Up to 12,000 elephant seal pups are found on SMI and up to 1,500 on SRI
(Lowry 2002).
There have been no reports of northern fur seals (Callorhinus
ursinus) on VAFB. They are only found on the west end of SMI at Point
Bennet and Castle Rock, just offshore of SMI. The SMI stock is
approximately 4,000 fur seals (Forney et al. 2000d).
Potential Effects of Target Missile Launches and Associated 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 space launch vehicle and missile launches and aircraft and
helicopter operations may cause the animals to move towards the water
or enter the water. The percentage of seals leaving the haul-out
increases with noise level up to approximately 100 decibels (dB) A-
weighted Sound Exposure Level, after which almost all seals leave,
although recent data has shown that an increasing percentage of seals
have remained on shore. Using time-lapse video photography, it was
discovered that during four launch events, the seals that reacted to
the launch noise but did not leave the haul-out were all adults. This
suggests that they had experienced other launch disturbances and had
habituated to it in that they reacted less strongly than other younger
seals.
The louder the launch noise, the longer it took for seals to begin
returning to the haul-out site and for the numbers to return to pre-
launch levels. In two past Athena IKONOS launches with A-weighted sound
exposure levels of 107.3 and 107.8 dB at the closest haul-out site,
seals began to haul-out again approximately 16 to 55 minutes post-
launch (Thorson et al. 1999a; 1999b). In contrast, noise levels from an
Atlas launch and several Titan II launches had A-weighted sound
exposure levels ranging from 86.7 to 95.7 dB at the closest haul-out
and seals began to return to the haul-out site within 2 to 8 minutes
post-launch (Thorson and Francine 1997; Thorson et al. 2000). Seals may
begin to return to the haul-out site within 2 to 55 minutes of the
launch disturbance and the haul-out site has usually returned to pre-
launch levels within 45 minutes to 120 minutes.
The main concern on the northern Channel Islands is potential
impacts from sonic booms created during launches of space vehicles from
VAFB. Sonic booms are impulse noises, as opposed to continuous (but
short-duration) noise such as that produced by aircraft and rocket
launches. The initial shock wave during a sonic boom 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. During the period of 1997 to 2002, there were no sonic
booms above 2.0 psf recorded on the northern Channel Islands. Small
sonic booms between 1 to 2 psf usually elicit a ``heads up'' response
or slow movement toward and entering the water, particularly for pups.
From the research and monitoring conducted over the last 5 years,
it has become clear that there is little difference between distinctive
classes of rockets (ballistic launches and satellite launches).
Therefore, to better represent the possible impacts to marine mammals,
launch activities at VAFB have been divided into three geographic zones
that comprise the main pinniped haul-out on VAFB. This is because the
level of disturbance caused by launches is more closely associated with
the geographical proximity of launch sites to haul-out sites.
Zone 1 is northern VAFB. The main haul-out site in this area is at
Lion's Head and is regularly used by small numbers of harbor seals for
resting and pupping. Although this is not a major haul-out site, it is
an important site to consider during launches that occur during the
harbor seal pupping season.
Zone 2 is in the central VAFB, running from Spur Road north to San
Antonio Creek. This area has the two main harbor seal haul-out sites on
north VAFB, Spur Road, and Purisima Point. Spur Road has up to 145
harbor seals but is not a pupping site. Purisima Point has up to 50
seals and up to 5 pups.
Zone 3 is in southern VAFB and covers from approximately the Boat
Harbor to northern boundary of south VAFB. The main harbor seal haul-
out site on VAFB is found in the area of the Boat Harbor to Rocky
Point. Up to 500 harbor seals are found there during the molting season
and up to 52 pups during the pupping season, March through June.
California sea lions will haul-out on occasion on the Boat Dock jetty
and seasonally at Rocky Point. Weaned northern elephant seal pups (only
1 to 2 seals) will haul-out occasionally for several days to rest in
the area of Rocky Point during their first foraging trip to sea.
Sonic booms created by the larger space launch vehicles may impact
marine mammals on the northern Channel Islands, particularly SMI. Based
on previous monitoring of sonic booms created by space launch vehicles
on SMI (Thorson et al. 1999a: 1999b), it is estimated that up to
approximately 25 percent of the marine mammals may be disturbed on SMI.
If conditions allow, under a scientific research permit issued under
Section 104 of the MMPA, the hearing of harbor seals will be tested
before and after each launch.
With respect to impacts on pinniped hearing, NMFS' proposed rule
for the previous rulemaking indicated that VAFB launch and missile
activities, including sonic booms, would have an impact on the hearing
of pinnipeds (63 FR 39055; July 21, 1998). These impacts were limited
to Temporary Threshold Shifts (TTS) lasting between minutes and hours,
depending on exposure levels. Subsequent information on Auditory
Brainstem Response (ABR) testing on harbor seals following Titan IV and
Taurus launches indicates that no Permanent Threshold Shift (PTS)
resulted from these launches. These results are consistent with NMFS'
previous conclusions in its prior rulemaking.
NMFS also notes here that stress from long-term cumulative sound
exposures can result in physiological effects on
[[Page 5725]]
reproduction, metabolism, and general health, or on the animals'
resistance to disease. However, this is not likely to occur here,
because of the infrequent nature and short duration of the noise,
including the occasional sonic boom. Research shows that population
levels at these haul-out sites have remained constant in recent years,
giving support to this conclusion.
The USAF 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 Titan IV and 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
northern Channel Islands. The noise may cause TTS in hearing depending
on exposure levels but no PTS is anticipated.
Numbers of Marine Mammals Expected To Be Taken by Harassment
It is estimated that up to approximately 25 percent of the marine
mammals may be disturbed on SMI due to the rare occurrence of a sonic
boom. Up to approximately 200 harbor seals of all age classes and sexes
may be taken by level B harassment per launch on the northern Channel
Islands, with an expected range of between zero and 200 harbor seals.
Up to approximately 5,800 California sea lion pups and 2,500 juvenile
and adult sea lions of either sex may be harassed at SMI per launch,
with an expected range of between zero and 8,300 sea lions. Up to
approximately 3,000 northern elephant seal pups and 10,000 northern
elephant seals of all age classes and sexes may be taken, by level B
harassment, per launch on the northern Channel Islands, with an
expected range of between zero and 13,000 elephant seals. Up to
approximately 300 northern fur seal pups and 1,100 juvenile and adult
northern fur seals of both sexes may be taken, by level B harassment,
per launch at SMI, with an expected range of between zero and 1,100 fur
seals. One Steller sea lion of any age class or sex may be harassed
during the period of the regulations. Up to two Guadalupe fur seals of
any age class or sex may be harassed over the period of the proposed
regulations. The numbers taken will depend on the type of rocket,
location of the sonic boom, weather conditions that influence the size
of the sonic boom, the time of day and time of year. For this reason,
ranges are given for the harassment estimates of marine mammals.
Effects of Target Missile Launches and Associated Activities on
Subsistence Needs
There are no subsistence uses for these pinniped species in
California waters, and, thus, there are no anticipated effects on
subsistence needs.
Effects of Target Missile Launches and Associated Activities on Marine
Mammal Habitat at VAFB
Harbor seals, California sea lions, northern elephant seals,
northern fur seals, Guadalupe fur seals, and Steller sea lions are
known to inhabit VAFB and the surrounding islands. There will only be
short-term disturbance effects to the behavior of the marine mammals.
These activities will not affect their habitat.
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 rookeries
closer than 1,000 ft (305 m). For missile and rocket launches, unless
constrained by other factors including, but not limited to, human
safety, national security or launch trajectories, holders of LOAs must
schedule launches to avoid, whenever possible, launches during the
harbor seal pupping season of March through June. NMFS is also
expanding the requirement so that VAFB must avoid, whenever possible,
launches that are predicted to produce a sonic boom on the Northern
Channel Islands during harbor seal, elephant seal, and California sea
lion pupping seasons.
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 will be made prior to the next launch of the same
vehicle under that LOA.
Monitoring
As part of its application, VAFB provided a monitoring plan,
similar to that in the prior regulations (50 CFR 216.125), for
assessing impacts to marine mammals from rocket and missile launches at
VAFB. This monitoring plan is described, in detail, in their
application (VAFB, 2003). The Air Force 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 Vandenberg Air Force Base
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. The first three launches of the Delta IV will
also be monitored. In addition, the hearing of harbor seals will be
tested before and after each launch under a scientific research permit
issued under Section 104 of the MMPA.
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 two 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 120 days of the launch.
Monitoring for the Northern Channel Islands
Monitoring will be conducted on the northern Channel Islands (San
Miguel, Santa Cruz, and Santa Rosa Islands) whenever a sonic boom over
1.0 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
[[Page 5726]]
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 two 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 120 days of the launch.
Reporting Requirements
A report containing the following information must be submitted to
NMFS within 120 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
measured 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.
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 120-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.
Determinations
Based on the VAFB's application, the Environmental Assessment, and
this document, and taking into consideration the comments submitted on
the application and proposed regulations, NMFS has determined that it
will authorize the taking, by Level B harassment, of small numbers of
marine mammals incidental to to rocket and missile launch operations
and aircraft overflights at VAFB. The total taking of marine mammals by
Level B harassment launch operations at VAFB over the period of these
regulations will have no more than a negligible impact on affected
marine mammal stocks. NMFS is assured that space and missile test
launch operations and aircraft overflights from VAFB off California
will result, at worst, in temporary modifications in behavior by the
affected pinnipeds and possible TTS in hearing of any pinnipeds that
are in close proximity to a launch pad during launch. No take by injury
and/or death is anticipated, and the potential for hearing impairment
is unlikely. NMFS has determined that the requirements of section
101(a)(5)(A) of the MMPA have been met and the LOAs can be issued.
Changes From the Proposed Rule
At the proposed rule stage, NMFS did not publish the full text for
Subpart K in Chapter II of title 50 of the Code of Federal Regulations
and only published those paragraphs that were being modified from the
original rule (64 FR 9925, March 1, 1999). Since this rule expired on
December 31, 2003, and was removed and reserved by the Office of the
Federal Register, NMFS is publishing the entire text in this document.
National Environmental Policy Act (NEPA)
NMFS has prepared an EA and made a Finding of No Significant Impact
(FONSI). Therefore, preparation of an environmental impact statement on
this action is not required. A copy of the EA and FONSI are available
upon request (see ADDRESSES).
ESA
Under section 7 of the ESA, NOAA Fisheries has concluded that these
activities are not likely to adversely affect species listed under the
ESA.
CZMA Consistency
According to the USAF, it has received concurrence from the
California Coastal Commission that the VAFB activities described in
this document are consistent to the maximum extent practicable with the
enforceable policies of the California Coastal Act.
National Marine Sanctuaries Act
This action is not likely to destroy, cause the loss of, or injure
any national marine sanctuary resources. Therefore, consultation was
not required.
Classification
This action has been determined to be not significant for purposes
of Executive Order 12866.
Under 5 U.S.C. 553(d), an agency may waive the required 30-day
delay in effectiveness date if it finds that there is good cause for
doing so. VAFB has a Taurus (SLC 576-E) launch scheduled for Feb 26,
2004, which falls within 30 days of the publication date of this final
rule. Many, if not most, space missions require a particular orbit for
the payload, and getting into that orbit can be closely tied to the
time of year or even time of day. Therefore, delaying this launch could
mean that it will miss its launch opportunity for an entire year. In
addition, a delay could 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 also could lead to increased risks
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.
NMFS does not believe that it is necessary to require delay or
cancellation of the scheduled launch under the circumstances. The
mitigation and monitoring required by this final rule are for the
benefit and protection of marine mammals, and these measures are
substantially similar to the measures contained in the 5-year final
rule that expired on December 31, 2003. VAFB is
[[Page 5727]]
the only entity regulated by this rule. VAFB 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 rule and regulations,
within the 30-day window. Therefore, NMFS has determined that there is
good cause to waive the delay in effectiveness date for this final
rule.
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 proposed 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 Space Wing, U.S.
Air Force and would have no effect, directly or indirectly, on small
businesses. It may affect a small number of contractors providing
services on the base, some of which may be small businesses, but the
number involved would not be substantial. Further, since the monitoring
and reporting requirements are what would lead to the need for their
services, the economic impact on them would be beneficial. 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.
Dated: January 30, 2004.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
0
For reasons set forth in the preamble, 50 CFR part 216 is added to read
as follows:
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
0
1. The authority citation for part 216 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
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 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 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 these regulations,
(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 these regulations,
(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 6, 2004,
through February 6, 2009.
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.
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 practicable, 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 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 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) VAFB must avoid, whenever possible, launches which are
predicted to produce a sonic boom on the Northern Channel Islands
during harbor seal, elephant seal, and California sea lion pupping
seasons, March through June.
(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
uthorization.
(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
[[Page 5728]]
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, approved in advance by the National Marine
Fisheries Service, 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
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 the National Marine Fisheries Service),
(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 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) The Holder of the Letter of Authorization must submit a report
to the Southwest Administrator, National Marine Fisheries Service
within 90 days after each launch. This report must contain the
following information:
(1) Date(s) and time(s) of the launch,
(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 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 LOA.
(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 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 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),
if determined by the Assistant Administrator to be acceptable; and
(b) A determination that the mitigation measures required under
Sec. 216.124 and the Letter of Authorization have been undertaken.
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 a Letter of
Authorization 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), a Letter of
Authorization may be substantively modified without prior notice and
opportunity for public comment. A notice will be published in the
Federal Register subsequent to the action.
[FR Doc. 04-2414 Filed 2-5-04; 8:45 am]
BILLING CODE 3510-22-S