Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Rocket Launches

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice of proposed modification and annual renewal of a letter of authorization; request for comments.

SUMMARY:

On February 5, 2001, the 30^th Space Wing, U.S. Air Force, requested a modification to their Letter of Authorization (LOA) issued on May 31, 2000. The letter requests modifications to the launch schedule and revisions to the LOA's current monitoring requirements. Under the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to amend the LOA issued to the 30^th Space Wing in order to make modifications to the launch schedule and to authorize changes to current monitoring requirements at Vandenberg Air Force Base (VAFB) and on the Northern Channel Islands. In addition, the 30^th Space Wing requests renewal of their annual LOA for the year 2001-2002. The U.S. Air Force has not requested, and NMFS does not propose, to increase the number of annual launches from Vandenberg that are authorized to take marine mammals under the new LOA.

DATES:

Comments and information must be received no later than April 18, 2001.

ADDRESSES:

Comments on the application should be addressed to Donna Wieting, Chief, Marine Mammal Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910-3225. A copy of the request for modification, the LOA and the supporting documentation, including a list of references cited in this notice, are available for review during regular business hours in the following offices: Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910, and the Southwest Region, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802.

FOR FURTHER INFORMATION CONTACT:

FURTHER INFORMATION CONTACT: Simona P. Roberts, Office of Protected Resources, NMFS, (301) 713-2322, ext. 106 or Christina Fahy, NMFS, (562) 980-4023.

SUPPLEMENTARY INFORMATION:

Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs NMFS to allow, on 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. Under the MMPA, the term “taking” means to harass, hunt, capture, or kill or to attempt to harass, hunt, capture, or kill marine mammals.

Permission may be granted for periods up to 5 years if NMFS finds, after notification and opportunity for public comment, that the taking will have a negligible impact on the species or stock(s) of marine mammals and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses. In addition, NMFS must prescribe regulations that include permissible methods of taking and other means effecting the least practicable adverse impact on the species and its habitat and on the availability of the species for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance. The regulations must include requirements pertaining to the monitoring and reporting of such taking. Regulations governing the taking of seals and sea lions incidental to missile and rocket launches, aircraft flight test operations, and helicopter operations at Vandenberg were published on March 1, 1999 (64 FR 9930), and remain in effect until December 31, 2003.

In accordance with the MMPA, as amended, and implementing regulations, a 1-year LOA to take small numbers of seals and sea lions was issued on May 31, 2000, to the 30^th Space Wing (65 FR 37361). On February 5, 2001, the 30th Space Wing requested that NMFS revise the rocket launch schedule, rocket launch location, and monitoring requirements in the current LOA to reflect the results of on-going scientific research and monitoring requirements designed to assess the potential cumulative effects on the haul-out behavior, population dynamics, and hearing abilities of pinnipeds from space vehicle launches at Vandenberg Air Force Base (VAFB). This research has found that there have been no long-term adverse effects on the behavior or hearing of harbor seals at VAFB from space vehicle launches. In addition to these revisions, the 30th Space Wing has requested a 1-year renewal of the current LOA that expires on May 31, 2001.

Requested Modifications to Specified Activities

The number of rocket launches of each type of launch vehicle (Titan II, Titan IV, Lockheed-Martin, Delta II, Taurus, Atlas, and Minotaur) varies from year to year and space launches originate from both North and South Vandenberg. The 30th Space Wing requests a change in the current authorization to reflect the variable nature of the launch vehicle type by eliminating the number of launches per individual rocket program. The authorization will remain for no more than 20 rocket launches per year. They also request eliminating “South” to clarify that space launches occur from both North and South Vandenberg. Three years of monitoring have shown that this variable rocket launch schedule and launch location have not affected harbor seal distribution or behavior at VAFB.

Because the elimination of the number of launches per individual rocket program will not result in an increase in the number of launches authorized to take pinnipeds under the LOA, NMFS does not expect additional cumulative impacts to occur and, therefore, NMFS has preliminarily determined that the takes will remain small and not have more than a negligible impact on seals and sea lions at Vandenberg.

Requested Modifications to Monitoring Requirements

During the last 3 years, the 30^th Space Wing, U.S. Air Force has undertaken a scientific research project (NMFS, Scientific Research Permit No. 859-1373) to assess potential cumulative effects on the haul out behavior, population dynamics, and hearing abilities of pinnipeds from space vehicle launches at VAFB. The most common species of pinniped utilizing the Vandenberg coastline is the harbor seal, Phoca vitulina; therefore, the focus of much of this research has been on this one species. Findings of this scientific research and the monitoring required under the LOA have shown that there have been no long-term adverse effects on the behavior of harbor seals at VAFB, including no changes in haul out patterns and no permanent or temporary threshold shifts (Thorson et al, 2000). Given these findings, the 30^th Space Wing has requested four modifications to the current LOA monitoring requirements, three of which can be accommodated in this LOA modification.

The fourth requested change is inconsistent with the 5-year programmatic permit and its implementing regulations (64 FR 9930). Due to this discrepancy, NMFS has determined that the fourth request will require modification to the current regulations governing space vehicle and test flight activities (50 CFR 216.120-128) before modification of the LOA can be considered.

First, the 30^th Space Wing requests an increase in the observation period prior to launches from 48 hours before any planned launch time to 72 hours before any planned launch time. This change would make the current LOA consistent with monitoring requirements contained in the 5-year programmatic permit (64 FR 9930).

Second, the 30^th Space Wing requests an expansion of the current post-monitoring requirement for any Titan II and Titan IV launches during pinniped pupping seasons, to include all government and commercial space launch vehicles. This requirement states that there must be a minimum of 4 censuses over a 2-week period following launches.

Third, the 30^th Space Wing requests to change the criteria for monitoring pinnipeds on the Northern Channel Islands from when sonic booms are predicted to be “focused” or greater than 2 pounds per square foot (psf) to criteria for monitoring pinnipeds on the Northern Channel Islands when predicted sonic booms are greater than 1 psf. This change will eliminate the “focused” sonic boom criteria. The 30^th Space Wing notes that there is very little biological difference between the “focused” and the carpet or normal sonic booms. Although the focused sonic booms have the potential to be five to eight times greater than normal sonic booms, the biological significance of the sound is not determined by the type of sonic boom but the amplitude of the sonic boom. Based on data collected in 1999, the sonic boom from an Athena 2 rocket launch reached a sound monitoring site on San Miguel Island 4 minutes after lift-off and had an A-weighted sound exposure level (ASEL) of 68.3 dB (re 20 μPa-seconds) and a maximum amplitude of 0.96 psf (Thorson et al, 1999). At these levels, behavioral reactions from pinnipeds on San Miguel Island ranged from the slow and calm movement of California sea lions into the water to a heads-up response in 10 percent of the observed northern elephant seals (Thorson et al, 1999). Based on this information, the 30^th Space Wing requests that monitoring and assessment of impacts at haul out sites in the Northern Channel Islands be conducted when sonic booms are predicted to be greater than 1 psf, regardless of whether or not they are “focused” or normal booms.

Fourth, the 30^th Space Wing requests a modification to conduct observations on harbor seal and other pinniped activity at the nearest occupied haul out(s) in the vicinity of the appropriate launch platform only during the harbor seal pupping season (March-June). The LOA currently requires that observations be conducted at the nearest occupied haul out(s) during any launch. This revision is proposed based on data collected from 1997-2000 showing that the harbor seal population at VAFB has been increasing annually (adults at 9.4 percent per year and pups at 13.1 percent per year). Radio-telemetry has also shown that long-term haul out behavior at VAFB is identical to seal haul out patterns in areas not exposed to launch noise. In addition, hearing acuity measurements made prior to and following Titan IV launches have shown no detectable changes. Only short-term responses to launches by the harbor seals, demonstrated by their entrance into the water for 2-30 minutes, have been observed (Thorson et al, 2000).

On February 21, 2001, NMFS notified the 30^th Space Wing that the fourth LOA modification request cannot be accommodated at this time because it is inconsistent with the 5-year programmatic permit and its implementing regulations (64 FR 9930). These regulations, effective from March 1, 1999, through December 31, 2003, contain specific monitoring and reporting requirements for all space vehicle and test flight activities on VAFB and the waters off southern California. One of the monitoring requirements in this regulation is that observations must be initiated before and after any planned launch at locations nearest the launch platform where pinnipeds are present (50 CFR 216.125(a)(1)). Therefore, limiting observations to only the harbor seal pupping season at VAFB, as the February 5, 2001, letter requests, would be less restrictive than these general regulations. Due to this discrepancy, a request for a change in the regulations needs to be made before this requested modification to the LOA can be considered.

Renewal of Annual LOA

As of May 31, 2001 the 30^th Space Wing's annual LOA will expire. In recognition of the timely receipt and acceptance of the reports required under 50 CFR 216.125(d) and a determination that the mitigation measures required pursuant to 50 CFR 216.124 and the LOA have been undertaken, NMFS proposes renewal of the LOA for 1 year.

Information Solicited

NMFS requests interested persons to submit comments and information concerning this request (see ADDRESSES). Issuance of a modified LOA will be based on a finding that the total takings will have no more than a negligible impact on the seal and sea lion populations off the Vandenberg coast and on the Northern Channel Islands.