50 C.F.R. Subpart K—Taking of Marine Mammals Incidental to Space Vehicle and Test Flight Activities
Title 50 - Wildlife and Fisheries
Source: 69 FR 5727, Feb. 6, 2004, unless otherwise noted.
Effective Date Note: At 69 FR 5727, Feb. 6, 2004, subpart K, consisting of §§216.120 through 216.128 were added, effective Feb. 6, 2004, through Feb. 6, 2009.
(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). Regulations in this subpart are effective from February 6, 2004, through February 6, 2009. (a) Under Letters of Authorization issued pursuant to §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 §216.120, provided all terms, conditions, and requirements of these regulations and such Letter(s) of Authorization are complied with. (b) [Reserved] No person in connection with the activities described in §216.120 shall: (a) Take any marine mammal not specified in §216.120(b); (b) Take any marine mammal specified in §216.120(b) other than by incidental, unintentional harassment; (c) Take a marine mammal specified in §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 §216.106. (a) The activity identified in §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 §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] (a) Holders of Letters of Authorization issued pursuant to §216.106 for activities described in §216.120(a) are required to cooperate with the National Marine Fisheries Service, and any other Federal, state or local agency monitoring the impacts of the activity on marine mammals. Unless specified otherwise in the Letter of Authorization, the Holder of the Letter of Authorization must notify the Administrator, Southwest Region, National Marine Fisheries Service, by letter or telephone, at least 2 weeks prior to activities possibly involving the taking of marine mammals. (b) Holders of Letters of Authorization must designate qualified on-site individuals, 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. (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 §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. A Letter of Authorization issued under §216.126 for the activity identified in §216.120(a) will be renewed annually upon: (a) Timely receipt of the reports required under §216.125(d), if determined by the Assistant Administrator to be acceptable; and (b) A determination that the mitigation measures required under §216.124 and the Letter of Authorization have been undertaken. (a) In addition to complying with the provisions of §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 §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
Title 50: Wildlife and Fisheries
PART 216—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS
Subpart K—Taking of Marine Mammals Incidental to Space Vehicle and Test Flight Activities
§ 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.
