[Federal Register Volume 63, Number 139 (Tuesday, July 21, 1998)]
[Proposed Rules]
[Pages 39055-39064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19392]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 980629162-8162-01; I.D. 093097E]
RIN 0648-AK42


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: Proposed rule; request for comment and information.

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SUMMARY: NMFS has received a request from the 30th Space Wing, U.S. Air 
Force, for a small take of marine mammals incidental to missile and 
rocket launches, aircraft flight test operations, and helicopter 
operations at Vandenberg Air Force Base, CA (Vandenberg). By this 
document, NMFS is proposing regulations to govern that take. In order 
to grant the exemption and issue the regulations, NMFS must determine 
that these takings will have a negligible impact on the affected 
species and stocks of marine mammals. NMFS invites comment on the 
application and the proposed regulations.

DATES: Comments and information must be postmarked no later than 
September 4, 1998. Comments on the collection of information 
requirement must be received no later than September 21, 1998.

ADDRESSES: Comments should be addressed to Michael Payne, Chief, Marine 
Mammal Division, Office of Protected Resources, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-
3226. A copy of the application, a final Environmental Assessment (EA), 
a list of references used in the preparation of this document, and 
other documents mentioned in this proposed rule as being available may 
be obtained by writing to the above address, or telephoning one of the 
persons listed (see FOR FURTHER INFORMATION CONTACT). Additional 
supporting technical documentation is available for viewing, by 
appointment, during normal business hours at either the above address, 
or at the Southwest Regional Office, NMFS, 501 West Ocean Blvd. Suite 
4200, Long Beach, CA 90802.
    Comments regarding the burden-hour estimate or any other aspect of 
the collection of information requirement contained in this rule should 
be sent to the above individual and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget (OMB), Attention: 
NOAA Desk Officer, Washington, D.C. 20503.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, Office of 
Protected Resources, NMFS, telephone (301) 713-2055, or Irma 
Lagomarsino, Southwest Regional Office, NMFS, telephone (562) 980-4016.

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 
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 up to 5 years if the 
Secretary finds that the taking will have a negligible impact on the 
species or stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses, and 
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.''

Description of Request

    On September 30, 1997, NMFS received an application for an 
incidental, small take exemption under section 101(a)(5)(A) of the MMPA 
from the 30th Space Wing, Vandenberg, to take marine mammals incidental 
to missile and rocket launches, aircraft flight test operations, and 
helicopter operations at Vandenberg.
    Vandenberg is located on the south-central coast of California. The 
base covers approximately 98,000 acres in western Santa Barbara County. 
The primary missions of the Air Force at Vandenberg are to launch and 
track satellites in space, test and evaluate the United State's 
intercontinental ballistic missile systems, and support aircraft 
operations. As a nonmilitary facet of operations, Vandenberg is also 
committed to promoting commercial space launch ventures.

Comments and Responses

    On November 14, 1997 (62 FR 61077), NMFS published an advance 
notice of proposed rulemaking on the application and invited interested 
persons to submit comments, information, and suggestions concerning the 
application, and the structure and content of regulations if the 
application is accepted. During the 30-day comment period on that 
notice, no comments were received.

Description of Activities

    Vandenberg anticipates a total of 10 launches annually for 
Minuteman and Peacekeeper missiles from North Vandenberg and a total of 
20 launches annually for space launches

[[Page 39056]]

(approximately 6 Delta II, 3 Taurus, 2 Atlas, 3 Titan IV, 2 Titan II, 
and 4 Lockheed Martin launch vehicles) primarily from South Vandenberg.
    The noise from these launches may result in the unintentional 
disturbance of pinnipeds--considered to be unintentional, incidental 
takings under the MMPA. Such takings are prohibited by the MMPA unless 
authorized by NMFS.
    The regulations proposed by this rule would replace annual 
incidental harassment authorizations issued to Vandenberg under section 
101(a)(5)(D) of the MMPA. These authorizations have been issued 
previously for marine mammal takings incidental to launches by 
Lockheed-Martin launch vehicles (62 FR 40335, July 28, 1997), McDonnell 
Douglas Aerospace Delta II rocket launches (61 FR 59218, November 21, 
1996), Taurus launches (62 FR 734, January 6, 1997) and Titan II and 
Titan IV launches (61 FR 64337, December 4, 1996). Incidental 
harassment authorizations for the latter three activities were reissued 
on December 19, 1997 (see 62 FR 67618, December 29, 1997), for an 
additional 1-year period or until regulations proposed in this document 
become effective and Letters of Authorization are issued.
    These proposed regulations would also authorize takings incidental 
to Minuteman and Peacekeeper missile launches, aircraft flight tests 
and helicopter operations, none of which have had small take 
authorizations previously.
    Aircraft test operations include the B-1 and B-2 bombers, the F-14, 
F-15, F-16, and F-22 fighters; and the KC-135 Stratotanker. The 
frequency for aircraft testing will be variable. The applicant 
anticipates an average of 10 flights/year, with 4 to 5 passes/flight. 
The maximum testing frequency could reach 3 flights/week.
    Helicopter operations provide launch support, training and base 
support. Only about 1 percent, or 13 hours, of the 1300 hours of 
helicopter operations scheduled per year would occur over the 
Vandenberg coastline.

Description of Habitat and Marine Mammals Affected by Launch 
Activities

    The Southern California Bight (SCB) including the Channel Islands, 
supports a diverse assemblage of 29 species of cetaceans (whales, 
dolphins and porpoises) and 6 species of pinnipeds (seals and sea 
lions). Harbor seals (Phoca vitulina), California sea lions (Zalophus 
californianus), northern elephant seals (Mirounga angustirostris), and 
northern fur seals (Callorhinus ursinus) breed there, with the largest 
rookeries on San Miguel Island (SMI) and San Nicolas Island (SNI). 
Guadalupe fur seals (Arctocephalus townsendi) may also occasionally 
inhabit SCB waters. Until 1977, a small rookery of Steller sea lions 
(Eumetopias jubatus) existed on SMI. However, there has been no 
breeding there since 1981 and no sightings on SMI since 1984. A group 
of 50 Stellers were observed off the Vandenberg coast in October 1993 
(Roest, 1995). Additional information on the occurrence of marine 
mammal species in areas potentially impacted by Vandenberg activities 
is provided in Barlow et al., (1995 and 1997),1 Roest, 1995, 
the final EA on this proposed action (U.S. Air Force, 1997), and in 
Federal Register notices on previous authorizations (60 FR 24840, May 
10, 1995 (Lockheed); 60 FR 43120, August 18, 1995 (Delta II); 61 FR 
50276, September 25, 1996 (Taurus); and 61 FR 64337, December 4, 1996 
(Titan)). For further information, please refer to these documents, 
which are available upon request (see ADDRESSES).
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    \1\ Reference citations can be found either in the EA or are 
available upon request from NMFS (see ADDRESSES).
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Summary of Potential Physical Impacts

    The activities under consideration for small take authorizations 
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 
Vandenberg. The operation of launch vehicle engines produces 
significant sound levels. Generally, four types of noise occur during a 
launch: (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 
upon 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 size class.
    Sonic booms are impulse noises, as opposed to continuous (but 
short-duration) noise such as that produced by aircraft and rocket 
launches. There is a significant potential for sonic booms (i.e., 
overpressures greater than 0.5 pound/sq.ft (psf)) to occur during 
launches of low earth orbit payloads. These sonic booms can vary from 
inconsequential to severe, depending on the physical aspects of the 
launch vehicle, the trajectory of the launch, and the weather 
conditions at the time of the launch. The initial shock wave 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.
    Aircraft and helicopter activities also produce noise in the 
coastal environment. Jet aircraft produce significant, subsonic noise 
with widely varying sound levels depending upon aircraft type, phase of 
flight, and other factors. Blade-rate tones account for high frequency 
squealing in jet sounds while the low-frequency roar is the jet mixing 
noise from engine exhaust (Richardson et al. (1995). The high frequency 
tones are rapidly absorbed in the atmosphere (>4 dB/kilometer (km)). To 
provide an example of noise levels for a typical aircraft, an F-16 
aircraft at intermediate power and 300 ft (96.4 m) above the ground is 
projected to have a peak noise level of 103 dBA re 20 Pa-m, 
lasting from 1 to 3 seconds (U.S. Air Force, 1986).2
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    \2\ Airborne noise measurements are usually expressed relative 
to a reference pressure of 20 Pa, which is 26 dB above the 
usual underwater sound pressure reference of 1 Pa. Also, 
they are often expressed as broadband A-weighted sound levels (dBA). 
A-weighting refers to frequency-dependent weighting factors applied 
to sound in accordance with the sensitivity of the human ear to 
different frequencies. While it is unknown whether the marine mammal 
ear responds similar to the human ear, a recent study by C. Malme 
(pers. commun. to NMFS, March 5, 1998) found that for predicting 
effects, A-weighting is better than flat-weighting because pinniped 
highest hearing sensitivity is at higher frequencies than that of 
humans. As a result, whenever possible, NMFS provides both A-
weighted and unweighted sound pressure levels; when both levels are 
not provided, it is presumed to represent the unweighted level.
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    The sounds from helicopters contain many tones related to rotor or 
propeller blade rate, with most energy at frequencies below 500 Hz. 
Measurements of a Bell 212 helicopter at an altitude of 500 ft (152 m) 
indicated a peak, received level at the surface of 109 dB re 1 
Pa-m. Duration of noise on the surface may last up to 4 
minutes, but less than 38 seconds (sec.) at 9.8 ft (3 m) depth, and 11 
sec. at 60 ft (18 m) (Greene, 1985a; Richardson et al., 1995).
    One issue for discussion on impacts to marine mammals is the extent 
to which noise penetrates the ocean surface and the sound pressure 
levels (SPLs) at depths which marine

[[Page 39057]]

mammals may inhabit. Jet aircraft from Vandenberg remain subsonic when 
within the coastal zone (U.S. Air Force, 1997). Therefore, it is not 
necessary to consider sonic boom noise penetration into the water 
column from aircraft covered by this proposed authorization.
    The amount of subsonic aircraft noise entering the water column 
will depend primarily on aircraft altitude and limited by Snell's Law 
(e.g., at angles greater than 13 deg. from the vertical much of the 
incident sound is reflected and does not penetrate into the water) 
(Richardson et al., 1995). However, some airborne noise will penetrate 
water at angles >13 deg. from the vertical when rough seas provide 
water surfaces at suitable angles (Lubard and Hurdle, 1976). In 
general, the peak, received level in the water, as an aircraft passes 
directly overhead, will decrease with increasing altitude and received 
depth (Richardson et al., 1995). Duration of audibility, while 
significantly less than the duration in air, tends to increase with 
increasing aircraft altitude and with decreasing receiver depths. When 
an aircraft is not directly overhead, aircraft noises can be stronger 
at mid-water than at shallow depths (Richardson et al., 1995).
    Helicopters often radiate more sound forward than backward. 
However, because the acoustic wavelengths of the low-frequency sounds 
that dominate helicopter noise are much longer than the typical ocean 
wave heights, penetration at angles greater than 13 deg. from vertical 
are expected to be negligible (see Richardson et al., 1995).
    Because a rocket's angle of trajectory at lift-off to the water 
surface is greater than 13 degrees, launch noises are not normally 
expected to transit the air-water interface. While rough seas may allow 
some penetration due to angle between the wave face and launch noise, 
surf and wind noise in the nearshore zone would be expected to limit 
in-water transmission and audibility.
    A sonic boom will project ahead of the vehicle as it travels down 
range. This may produce a ``carpet'' boom, which, because of its angle 
of trajectory, is not expected to penetrate the ocean surface. While 
most of this sonic boom energy will be reflected off the water surface, 
some noise may penetrate it. Analyses by Cook and Goforth (1970) 
indicate that the ``N'' wave of a sonic boom is rapidly smoothed and 
attenuated with depth. They found that, in moderate seas and heavy ship 
traffic, sonic boom pressures can be expected to exceed the ambient 
noise pressures momentarily by up to 50 dB, from the surface to depths 
of a few hundred feet, between frequencies of 0.5 Hz and a few hundred 
Hz.
    When the vehicle changes its launch trajectory offshore, the 
surface boom will meet the accelerated boom, creating a ``focused'' 
sonic boom. Sonic booms may become focused within a narrow band under 
the flight path, resulting in sound levels of exceptional amplitude 
within a very narrow footprint. This location will always be well 
offshore but may intersect with the Northern Channel Islands (NCI). 
Theoretical calculations have suggested that, within the narrow 
footprint of a focused sonic boom, sound levels as high as 147 dB (U.S. 
Air Force, 1990, 1996) to 154 dB (U.S. Air Force, 1988) could be 
received.

Marine Mammal Impact Assessment

    Noise disturbance from operations on Vandenberg may cause 
negligible, short-term impacts to pinnipeds (seals and sea lions) 
hauled out on the Vandenberg coastline, and, if loud enough due to the 
proximity of the seals to the launch pad, it may result in a temporary 
threshold shift (TTS) in their hearing. Along the Vandenberg coast, 
launch noises are expected to impact principally harbor seals as other 
pinniped species (e.g., California sea lions and northern elephant 
seals) are known to haulout at these sites only infrequently and in 
significantly smaller numbers. The principal form of impacts would be 
the infrequent (approximately 30 launches/year; 50 aircraft flights/
year) and unintentional incidental harassment resulting from noise 
generated by aircraft, helicopter, missile, and rocket launches and by 
the visual sighting of low-flying aircraft. 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 Vandenberg and on the NCI. Launch 
noise is expected to occur over the coastal habitats in the vicinity of 
the Vandenberg launch sites during every launch, while sonic booms may 
be heard on NCI, principally SMI and Santa Rosa Island (SRI), only 
during certain launches of certain rocket types.

Titan II and Titan IV

    Space Launch Complex (SLC) 4 is utilized for launching Titan II 
(SLC-4W) and Titan IV (SLC-4E) rockets. The Titan II space launch 
vehicle is a two-staged, modified Intercontinental Ballistic Missile 
redesigned to carry small payloads of up to 5,600 lb (2.267 962 kg). 
The Titan IV is a larger vehicle, carrying payloads similar to those 
carried by the Space Shuttle (U.S. Air Force 1996). Although loud, the 
duration of noise capable of affecting marine mammals generated by each 
Titan launch is brief. Although some low frequency rumbling noise will 
continue for several minutes, the noise event at the Rocky Pt. harbor 
seal haul-out will be concluded (Stewart et al., 1992, 1993a, 1993b), 
within approximately 2 minutes following ignition and liftoff, by which 
time a Titan IV will be 28.6 miles (46 km) from SLC-4, over the open 
ocean and out of hearing range of marine mammals on Vandenberg (U.S. 
Air Force, 1996). While noise levels around the launch pad, during the 
launch, can reach a level of about 170 dB (a level that can cause 
hearing damage to humans) (U.S. Air Force, 1988), levels at the nearest 
seal rookery are significantly less.
    Time-lapse photographic monitoring (Jehl and Cooper, 1982) shows 
that, in response to a specific stimulus, large numbers of pinnipeds 
may move suddenly from the shoreline to the water. Visual stimuli, such 
as humans and low-flying aircraft, are much more likely to elicit this 
response than strictly auditory stimuli, such as boat noise or sonic 
booms. Observations indicate that it is rare for mass movement to take 
place in a panic, and no resulting pup or adult mortality has been 
observed under these circumstances. Stewart (1981, 1982) exposed 
breeding California sea lions and northern elephant seals on SNI to 
loud implosive noises created by a carbide pest control cannon. SPLs 
varied from 125.7 to 146.9 dB. While behavioral responses of each 
species varied by sex, age, and season, Stewart found that habitat use, 
population growth, and pup survival of both species appeared unaffected 
by periodic exposure to the noise.
    As part of previous small take authorizations for Titan IV launches 
at SLC-4, the U.S. Air Force has monitored the effects of launch noises 
on harbor seals hauled out at Rocky Pt. (4.8 mi (7.7 km) south of SLC-
4). For six monitored launches of Titan IVs, the sound exposure level 
ranged from 141.2 dB to 146.8 dB (96.2-101.8 dBA) (Stewart and 
Francine, 1991, 1992; Stewart et al. 1993a, 1993b, 1996; Thorson et 
al., 1998). During the 1992 and 1993 Titan IV launches, all or almost 
all, harbor seals that were ashore at the time fled into the water (23 
of 28 in 1992, 41 of 41 in 1993) in response to the noise. After a 
launch in 1993, about 75 percent of those seals returned ashore later 
that day, most within 90 minutes of the disturbance (Stewart et al., 
1993b). There were no apparent mortalities following any of the six 
monitored launches, and the haulout patterns were reported similar to 
those prior to the launches.

[[Page 39058]]

    Therefore, because of the loud noise levels of the Titan IV, all 
harbor seals hauled out along the Vandenberg coastline are expected to 
leave the beach as a result of Titan IV launchings. While noise from a 
Titan IV launch can be heard on the NCI, monitoring on those islands 
indicates that pinniped response will be limited to no more than a 
heads-up alert. This alertness, however, makes the animals more 
sensitive for movement to the sea should noise from a sonic boom impact 
the haulout site.
    Launch noise from a Titan II is expected to be significantly less 
than from the larger Titan IV. Noise measurements and observations on 
harbor seals at Harbor Seal Beach, Rocky Pt. were conducted during the 
launch of a Titan II on April 4, 1997. A sound exposure level 
measurement of 116.7 dB was made with a peak level of 83.2 dB at 17 Hz. 
The A-weighted sound exposure level (SEL) was measured at 88.5 dB, with 
the loudest sound occurring at 76 Hz (50 dB). The maximum number of 
harbor seals hauled out ranged from 164 to 278 prior to the launch, 
with most peaks occurring in the afternoon (Thorson and Francine, 
1997). Thirty-three of the 37 seals ashore at the time of the launch 
entered the water during the event; most returned ashore within 30 
minutes post-launch. Within 8 to 10 days, seal numbers had increased to 
128 (Thorson and Francine, 1997).
    Because of high ambient noise along the coastline (ambient noise 
level expected to range between 56 and 96 dBA (U.S. Air Force, 1995a)), 
rapid attenuation of launch noise, and because almost all sounds from 
the launch should be reflected off, and not penetrate, the water 
surface, launch noises are not expected to impact any marine mammals in 
nearshore waters of Vandenberg, although pinnipeds at the water surface 
in the vicinity of the launch site may alert to the noise and other 
marine mammal species at the water surface may hear the launch noises.
    Sonic booms resulting from launches of the Titan II and IV will 
vary with the vehicle trajectory, weather conditions, and the specific 
ground location. Depending upon the intensity and location of a sonic 
boom, pinnipeds on the NCI could exhibit a simple alert (head-up) 
response, or startle and stampede into the water. Two primary concerns 
involve the possibility of a stampede during which pups may be trampled 
or separated from their mothers and the potential effects of loud 
noises on the pinniped's hearing. A third concern involves a possible 
physiological stress to the animals, resulting in unsuccessful breeding 
and other anomalies in behavior.
    Theoretical calculations suggest that marine mammal habitat within 
the narrow footprint of a Titan IV focused sonic boom could experience 
sound levels as high as 147 dB (U.S. Air Force, 1990, 1996) to 154 dB 
(U.S. Air Force, 1988). Chappell (1980) calculated that a sonic boom 
would need to have a peak over-pressure in the range of 138 to 169 dB 
to cause TTS in marine mammals, with TTS lasting a few minutes at most. 
Humans have been exposed to impulse noise similar in magnitude to the 
sonic booms expected from Titan IVs with no permanent hearing effects 
and with only temporarily reduced hearing sensitivity.
    Monitoring the effects of noise generated from Titan IV launches on 
SMI pinnipeds in 1991, Stewart and Francine (1992) , demonstrated that 
noise levels from a focused sonic boom of 1.34 psf (133 dB, 111.7 dBA) 
caused an alert (head up) response by 25 California sea lions, but no 
response from other pinniped species present (including harbor seals 
and elephant seals). There was no seaward movement as a result of this 
nighttime launch, and all animals returned to a resting position within 
30 seconds. In 1993, an explosion of a Titan IV created a sonic boom-
like pressure wave that resulted in an alert response, but no movement 
toward the sea. Additional popping and rumbling noises that followed 
the initial over pressure caused approximately 45 percent of the 
California sea lions (approximately 23,400, including 14 to 15 thousand 
1-month old pups, were hauled out on SMI during the launch) and 2 
percent of the northern fur seals to enter the surf zone. Although 
approximately 15 percent of the sea lion pups were temporarily 
abandoned when their mothers fled into the surf, no injuries or 
mortalities were observed. Most animals were returning to shore within 
2 hours of the disturbance (Stewart et al., 1993b) and haul-out 
patterns after launchings appeared normal.
    In 1995, a Titan IV rocket produced a sonic boom that measured 
146.6 dB (8.9 psf) on SMI (Stewart et al., 1996). While seals exposed 
to this sonic boom were not tested for hearing effects, the authors 
reasoned that those animals most likely experienced hearing threshold 
shifts. Most recently, Thorson et al. (1998) measured the SEL for the 
Titan IV A-18 sonic boom at 121 dB (86.8 dBA) on the western side of 
SCI, where the largest boom was predicted to impact. This low amplitude 
(1.1 psf) sonic boom did not result in startling seals and sea lions.
    In 1996, Stewart (1996) tested the auditory brainstem response 
(ABR) 3 of rehabilitated, stranded, harbor seals (6 pups), 
northern elephant seals (3 pups), and California sea lions (5 
juvenile), exposed them to a simulated sonic boom, then immediately 
retested them to determine if a TTS injury occurred. In these trials, 
Stewart demonstrated TTS in California sea lions at over pressures 
between 3 and 6.9 psf. A 6.9 psf sonic boom produced a TTS that lasted 
approximately 3 hours. In harbor seals, sonic booms with over pressures 
between 4.2 and 7.2 psf produced TTS; a TTS produced by a 6.2-psf sonic 
boom lasted approximately 24 minutes, whereas a 7.2-psf sonic boom 
induced a TTS that lasted approximately 90 minutes. Northern elephant 
seals suffered TTS, lasting approximately 20 minutes, when exposed to 
sonic booms of 2.3 psf (135 dB) and greater. Thorson et al. 1998 found 
no discernible TTS during on-site ABR testing on harbor seals exposed 
to launch noise from a Titan IV on October 23, 1997.
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    \3\ Evoked ABRs are electrical potentials that are generated by 
the brainstem when the ear is stimulated by sound (Stewart 1996).
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    Over water, almost all sonic boom sounds will be reflected off the 
water's surface. Therefore, except inside an approximate 4 mile by 
1,000-ft (7 km by 305 m) zone of a focused sonic boom, only those 
individual marine mammals within this zone that are at the water 
surface at the time of focusing will experience energy from a sonic 
boom. Although Titan IV-generated sonic booms are not likely to cause 
permanent hearing damage to marine mammals in or out of the water, they 
may cause minor reduction in hearing sensitivity in those few species 
with hearing capabilities in the low frequencies found in sonic booms. 
This effect is expected to be temporary and will not affect the 
survival of individuals or adversely affect the species' populations in 
California waters.
    Outside the zone of focused energy, cetaceans and pinnipeds in the 
water should be unaffected by the sonic booms, although, depending upon 
location and ambient noise levels, some pinnipeds may be able to hear 
the sonic boom. Although rough seas may provide some surfaces at the 
proper angle for sound to penetrate the water surface (Richardson et 
al., 1991), sound entering a water surface at an angle greater than 13 
degrees from the vertical has been shown to be largely deflected at the 
surface, with very little sound entering the water (Chappell, 1980; 
Richardson et al., 1991, 1995).

[[Page 39059]]

    With only a remote likelihood that a cetacean will be almost 
directly under the line of flight of a Titan II and IV at the instant 
the vehicle changes its launch trajectory, NMFS believes that sonic 
booms will not result in the harassment of cetacean populations in 
offshore waters of the SCB.
    Most long-term physiological effects, such as those on 
reproduction, metabolism and general health, or on the animals' 
resistance to disease, are believed to be caused by much greater 
cumulative sound exposures (intense continuous noise) than those 
expected from space vehicle sonic booms (infrequent, loud, and short-
duration noise), which have less potential for affecting physiology 
(U.S. Air Force, 1990; NMFS, 1990).
    NMFS believes therefore, that some TTS would be likely following 
exceptionally loud, focused, booms created by launches flying directly 
over the NCI, but this TTS should last only a short time (minutes to 
hours). Also, although the startle effect of the sonic booms might 
result in some minor physiological stress, the frequency of the booms 
would be low compared to the frequency of naturally induced startle 
events. Moreover, there should be no adverse effect on pinniped 
survival since no significant increase in stress-related pathology is 
anticipated, nor is any disruption of the reproductive cycle expected.

Lockheed Martin Athena Launch Vehicles

    At SLC-6, Athena launches would place commercial payloads into low 
earth orbit using Lockheed Martin's family of vehicles (Athena-1, 
Athena-2 and Athena-3). Under typical conditions, the launch noise 
associated with the Athena would be approximately 127 dB (101 dBA) at 
the harbor seal haul-out areas, which are about 1.5 mi (2.4 km) to the 
south and southwest of SLC-6 (U.S. Air Force, pers. comm. April 28, 
1998). The seaward aspects of the cliffs throughout much of the coastal 
area are expected to buffer the haul-out areas from launch noises 
during the earliest stages of Athena launches (U.S. Air Force, 1995). 
While this SEL is significantly less than levels for the Titan IV at 
similar distances (approximately 142 dB (121 dBA) for Titan IV), it is 
still sufficient to cause harbor seals to leave the beach at Point 
Arguello, Rocky Pt, and Boathouse Flats.
    The maximum magnitude of sonic booms from launches of the Athena-1 
(5.0 psf), Athena-2 (3.0 psf), and Athena-3 (3.0 psf) will be less than 
those measured or predicted for Titan IV. Depending upon the intensity 
and location of a sonic boom, pinnipeds on SMI or SRI may exhibit an 
alert response or stampede into the water. However, while it is highly 
probable that sonic booms from Athenas would occur over the Channel 
Islands, maximum overpressures of these booms are estimated to be less 
than 1.0 psf over the northern part of SMI (U.S. Air Force, 1995). A 
sonic boom with an overpressure of 1 psf (127 dB, 60 dBA) is not 
considered significant.
    The sonic booms resulting from launches of the Athena will vary 
with the type of vehicle and with the specific ground location. For 
example, the sonic boom from Athena-3 (the largest of the Athena 
rockets) is not expected to intersect any portion of the NCI, but 
instead will focus on the open water southwest of the Islands. Also, 
while it is predicted that launches of the Athena-1 and Athena-2 will 
produce sonic booms over portions of the Channel Islands, the maximum 
overall SPL is not expected to exceed 110 dB (69 dBA) (U.S. Air Force, 
1995). These sonic boom levels are likely to be indistinguishable from 
background noises caused by wind and surf (U.S. Air Force, 1995).

McDonnell-Douglas Delta II

    Based upon SEL measurements recorded in November 1995, the launch 
noise associated with the Delta II launch at SLC-2W is estimated to be 
approximately 138.8 dB (125.7 dBA) at the nearest harbor seal haulout 
site at Purisima Pt (2,200 ft (670.6 m) from the launch site) (U.S. Air 
Force, 1995b). Launch noises from the Delta II are expected to impact 
mostly harbor seals as California sea lions and northern elephant seals 
are known to haul-out at these sites only infrequently and in smaller 
numbers. Therefore, it can be predicted that most, if not all, 
pinnipeds onshore near SLC-2W will leave the shore as a result of Delta 
II launchings. Harbor seals hauled out at Point Sal (10.5 mi (16.9 km)) 
and Rocky Pt 13.5 mi (21.7 km)) are expected to alert to the launch 
noise, and some, if not all, are expected to flee to the water.
    While it is highly probable that a sonic boom from the Delta II 
would occur over SMI, maximum overpressures of these sonic booms are 
estimated to be 1.0 psf (U.S. Air Force, 1995c). A sonic boom with an 
overpressure of 1.0 psf or less is not considered significant. Also, 
the maximum overall sound pressure level is not expected to exceed 78 
dBA (112 dB) (U.S. Air Force, 1995c). A sonic boom of this magnitude is 
likely to be either indistinguishable or barely distinguishable from 
background noises caused by wind, surf (U.S. Air Force, 1995a) and 
onshore marine mammals.

Taurus

    Based upon measurements made on March 13, 1994, of a Taurus rocket 
launch from SLC-576E (Stewart et al., 1994), the SEL recorded at 
Purisima Pt (2.24 km (1.4 mi) from the launch pad) was 127.4 dB (108.1 
dBA). Twenty of the 23 harbor seals that were hauled out at this 
location before the launch fled immediately into the water within a few 
seconds after launch. The unweighted SEL of noise recorded at Rocky Pt 
was 103.9 dB (80.0 dBA)(130-second duration; 20.4 km (12.7 mi) from the 
launch pad). That noise included launch noise and possibly a sonic boom 
below 50 Hz. Twenty of 74 harbor seals that were monitored at Rocky 
Point fled into the water within several seconds of the sound arriving 
there. However, none of the four young pups that were ashore left the 
beach nor were they separated from their mothers. A comparison of the 
reactions of harbor seals to sound at the two study sites indicates 
that the intensity and duration of reactions of harbor seals to the 
type of noise associated with the Taurus was directly related to the 
intensity of the noise to which they were exposed (Stewart et al., 
1994). Substantially more seals reacted to the launch noise at Purisima 
Pt than at Rocky Pt. Furthermore, seals at Purisima Pt reacted much 
more energetically and remained in the water substantially longer than 
did seals at Rocky Pt.
    Although monitoring was apparently not conducted at the Spur Road 
haulout (approximately 0.5 mi (804 m) from SLC-576E) in 1994, based 
upon measurements for Delta II (Aerospace Corporation, 1996) and 
comparing these results with Taurus (Stewart et al., 1994), an SEL can 
be estimated for Spur Road to be approximately 129 dB (115 dBA). If any 
harbor seals are ashore at the time of a launch at this small haulout, 
all are expected to immediately leave the shore for the water.
    Rocket engine noise over NCI from the just-launched Taurus 
traveling at supersonic speeds should not affect pinnipeds hauled out 
on these islands. The Taurus flight paths will be to the west-southwest 
away from the California coast. Sonic boom noise developed as a result 
of these launches is not expected to reach the Channel Islands. Low 
intensity rumbling noise may reach the Channel Islands with the effect 
ranging from a simple alert response to a startle response, which, 
while unlikely, could result in some movement into the water. The 
initial

[[Page 39060]]

Taurus launch from SLC-576E did not cause a sonic boom over SMI, and 
there was no response by pinniped species on SMI (Orbital Sciences 
Corporation, 1996) from launch noise.

Atlas

    Atlas II space vehicles, made by Lockheed-Martin, are planned to be 
launched from SLC-3E. This launch pad is located 6 mi (9.6 km) from 
Rocky Pt, 8.5 mi (13.7 km) from Purisima Pt, and 19 mi (30.6 km) from 
Point Sal. Predicted unweighted SELs for Rocky Pt and Purisima Pt are 
96.5 dB and 90.4 dB, respectively. SELs of this intensity, if accurate, 
may not result in more than an alert posture by those harbor seals 
ashore at the time of launch; if low, then some or all of these seals 
may leave the shore for the water.

Minuteman and Peacekeeper Missiles

    Minuteman missiles produced an unweighted 118 dB (99 dBA) at Point 
Sal (2.7 mi (4.3 km) distant) and 104 dB (80 dBA) at Purisima Pt. (7 to 
10 mi (11.3 to 16.1 km) distant). While no observations are known to 
have been made to date, SELs of this level are considered sufficient to 
cause a startle effect and to result in a general movement by harbor 
seals into the water.
    Peacekeeper missiles are initially launched using air pressure; the 
engine ignites at 300 ft (91.4 m) altitude. SELs can be predicted for 
Peacekeeper missile launches from North Vandenberg by comparing them 
with SELs for the Athena-1 rocket. LF-02 is approximately 2 mi (3.2 km) 
from Lions Head and 6.8 mi (10.9 km) from Point Sal. Using this 
comparison, NMFS estimates that Peacekeeper missiles would produce an 
unweighted SEL of 114 dB (85 dBA) at Point Sal (2.7 mi (4.3 km) 
distant) and 105 dB (73 dBA) at Purisima Pt. (7-10 mi (11.3-16.1 km) 
distant. SELs of this level are likely sufficient to cause a startle 
effect and to result in movement by harbor seals into the water.

Aircraft and Helicopters

    Pinnipeds hauled out on land react to aircraft and helicopter 
sounds and/or sight by becoming alert and often by rushing into the 
water. They tend to react most strongly if an aircraft is flying low, 
passes nearly overhead, and/or causes abrupt changes in sounds. 
Responsiveness can vary according to the stage of the breeding cycle. 
In general, pinnipeds hauled-out for pupping or molting are the most 
responsive to aircraft (Tetra Tech, 1997). While flight to the water by 
a significant portion of the hauled out pinnipeds has the potential to 
increase pup mortality due to crushing or to increase rates of pup 
abandonment, direct mortality has not been observed (Richardson et al., 
1995). Specific examples of pinniped reaction to aircraft noise are 
provided in the EA.
    For range safety and security prior to a launch, helicopter flights 
are flown at 500 ft (152.4 m) altitude except over recognized pinniped 
haulouts and rookeries where the helicopter is required to ascend to 
1,000 ft (305 m). Pre-launch security at Vandenberg requires that 
helicopters scan the area in the path of the launch. These helicopter 
flights occasionally pass close by harbor seal haulouts. One such 
flight resulted in an average sound exposure level of 79.1 dBA (Thorson 
et al., 1988). These flights may result in an unintentional, incidental 
harassment of pinnipeds and, rarely, cetaceans. One hypothesis is that 
these security patrols startle harbor seals and result in fewer seals 
being observed ashore (and thereby counted as being ``taken by 
harassment'') at the time of the launch.

Cumulative Impacts

    Cumulative impacts that will occur to harbor seals, California sea 
lions, northern elephant seals, and northern fur seals have been 
discussed in the EA on this issue (U.S. Air Force, 1997), and need not 
be discussed further. However, the MMPA requires NMFS to determine that 
the total of such taking during the 5-year (or less) period will have a 
negligible impact on the species being taken. Using the information 
provided above, NMFS estimates that each rookery/haulout site along the 
Vandenberg coastline will be impacted by sufficient noise at each 
launch to cause harbor seals to leave the rocks fewer than 30 times 
annually due to missile and rocket launches and associated helicopter 
safety patrols and 10 times annually due to aircraft operations. On the 
NCI, pinnipeds may potentially leave the beach only as a result of a 
sonic boom from Titan IV and Athena-3 launch passes over or in the 
vicinity of a haulout on one of the Islands. Such an event is unlikely 
to occur more than 3 to 5 times annually.
    Long term effects, such as stress and emigration, due to chronic 
exposure to noise are not expected since all noise events will be 
transitory and limited in number and duration.

Proposed Mitigation

    One mitigation measure of long-standing is the requirement that no 
vehicles launched from Vandenberg are allowed direct overflight of SRI, 
SCI, or Anacapa Island. Therefore, nominal flight azimuths from SLC-4 
for example, must be west of SRI.
    All aircraft and helicopter flight paths will maintain a minimum 
distance of 1,000 ft (305 m) from recognized seal haulouts and 
rookeries (e.g., Point Sal, Purisima Pt, Rocky Pt), except in 
emergencies or for real-time security incidents. Emergencies include 
search-and-rescue and fire-fighting, both of 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, efforts to ensure minimum negligible impacts of 
launches on harbor seals and other pinnipeds, NMFS proposes to require 
the Air Force to avoid, whenever possible, launches during the harbor 
seal pupping season of February through May and Titan IV launches which 
predict a sonic boom on NCI during harbor seal, elephant seal, and 
California sea lion pupping seasons.
    Additional mitigation measures would be developed, if necessary, 
cooperatively between NMFS and the Air Force based on the degree of 
impact documented during monitoring activities following specific 
launches, especially for Titan IV rockets. Additional mitigation 
measures would be contained in annual Letters of Authorization (LOAs).

Research

    Between 1991 and 1996, under a U.S. Air Force contract, research 
was conducted on the behavioral, auditory and population responses of 
pinnipeds on the NCI to loud and focused sonic booms and to launch 
noise from Titan IV rockets launched from Vandenberg. The results of 
this research are provided in Stewart (1996).
    Under funding from the USAF and 30th Space Wing management, new 
research initiatives on the impacts of aerial noise on marine mammals 
have been undertaken. One study is to address the cumulative effects of 
rocket launch noise and sonic booms on pinnipeds at Vandenberg and on 
NCI. Studies include the following: (1) Hearing effects on seals from 
launch noise and the subsequent launch-generated sonic boom, (2) 
movements and haulout patterns of individual seals over the course of 
many rocket launches, (3) changes in seal demographic parameters over 
the 5-year study, and (4) foraging and diving behavior of seals exposed 
to launch noise. A scientific research permit has been issued for this 
research (see 62 FR 36049, July 3, 1997). A copy of the

[[Page 39061]]

research plan is available upon request (see ADDRESSES).
    There is some speculation that exposure to loud noise could cause 
other physiological effects in pinnipeds, including spontaneous 
abortion, disruption of effective female-neonate bonding, other 
reproductive dysfunction, detrimental health effects, and/or increased 
vulnerability to disease (Chappell et al., 1980; Stewart et al., 1996). 
While there has been little study of noise-induced stress in marine 
mammals (Richardson et al., 1995), research initiatives have been 
identified (U.S. Air Force, 1996) and may be carried out in future 
years of this authorization.

Proposed Monitoring Measures

    During the 5-year duration of this proposed authorization, impacts 
of missile and space launches on marine mammals would be monitored to 
ensure that the taking is having no more than a negligible impact on 
California pinniped stocks. For each launch, monitoring would occur at 
the pinniped rookery on Vandenberg most likely to be impacted by the 
launch. For most launches, this would be either Point Sal, Purisima Pt 
or Rocky Pt. Launch monitoring, as detailed in LOAs, would include the 
following: (1) At least one biologically trained on-site observer 
designated to record the effects of launches on harbor seals and other 
pinnipeds, (2) observations on harbor seal 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 and continue for a period of time not less 
than 48 hours subsequent to launching, (3) monitoring of haulout sites 
on NCI would be performed if it is determined that a sonic boom could 
impact those areas (this determination will be made in coordination 
with NMFS), (4) investigation of potential for spontaneous abortion, 
disruption of effective female-neonate bonding and other reproductive 
dysfunction, and (5) observations on Vandenberg and on NCI, if 
indicated, would be supplemented with both video-recording of mother-
pup seal responses for daylight launches during the pupping season, and 
with acoustic measurements of those launch vehicles not having previous 
SPL measurements.

Proposed Reporting Requirement

    A report would have to be submitted to NMFS within 90 days after 
each launch. This report will have to contain the following 
information:
    (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 
haulout 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 haulout or rookery, 
(d) the numbers of pinniped adults or pups that may have been injured 
or killed as a result of the launch, and (6) any behavioral 
modifications by pinnipeds that likely were the result of launch noise 
or the sonic boom.
    An annual report would have to be submitted that describes in a 
summary form any incidental takings not reported under the preceeding 
paragraph. For example, this report would be expected to describe the 
aircraft test program and helicopter operations and any assessments 
made on their impacts to hauled-out pinnipeds.
    A final report would have to be submitted at least 180 days prior 
to expiration of these regulations. This report would 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 
on other marine mammals from Vandenberg activities.

Preliminary Conclusions

    The short-term impact of aircraft testing and helicopter operations 
at Vandenberg, the launching of missiles from North Vandenberg, and the 
launching of rockets from North and South Vandenberg would be expected 
to result, at worst, in a temporary reduction in utilization of the 
haulout as seals or sea lions leave the beach for the safety of the 
water. Launchings would not be expected to result in any reduction in 
the number of pinnipeds, and they are expected to continue to reoccupy 
the same area shortly after each launch. Additionally, there would not 
be any impact on the habitat itself. Based upon studies conducted for 
previous space vehicle launches at Vandenberg, significant long-term 
impacts on pinnipeds at Vandenberg and the NCI are unlikely.

National Environmental Policy Act (NEPA)

    The U.S. Air Force prepared an EA and issued a Finding of No 
Significant Impact (FONSI), as part of its request for a small take 
authorization. This EA contains information incorporated by reference 
in the application that is necessary for determining whether the 
activities proposed for receiving small take authorizations are having 
a negligible impact on affected marine mammmal stocks. As a result, 
NMFS will accept comment on this EA, and, based upon the comments 
received, will (1) adopt the U.S. Air Force EA as its own and sign a 
new FONSI statement, (2) amend the U.S. Air Force EA to incorporate 
relevant comments, suggestions and information and sign a new FONSI 
statement, or (3) based upon comments received, prepare and release for 
public comment a Draft Environmental Impact Statement.

Endangered Species Act (ESA)

    The Department of the Air Force consulted with NMFS, as required by 
section 7 of the ESA, on whether launches of Titan II and IV at SLC-4 
would jeopardize the continued existence of species listed as 
threatened or endangered. NMFS issued a section 7 biological opinion on 
this activity to the Air Force on October 31, 1988, concluding that 
launchings of the Titan IV were not likely to jeopardize the continued 
existence of the Guadalupe fur seal. The Air Force reinitiated 
consultation with NMFS after the Steller sea lion was added to the list 
of threatened and endangered species (55 FR 49204, November 26, 1990). 
However, since northern sea lions had not been sighted on the Channel 
Islands between 1984 and the time of the consultation, it was 
determined that these launchings were not likely to affect Steller sea 
lions. Additionally, on September 18, 1991, NMFS concluded that the 
issuance of a small take authorization to the Air Force to incidentally 
take marine mammals during Titan IV launches was not likely to 
jeopardize the continued existence of northern sea lions or Guadalupe 
fur seals. Because launches of rockets and missiles other than Titan IV 
are unlikely to produce sonic booms that will impact the NCI, and 
because listed marine mammals are not expected to haul-out either on 
the Vandenberg coast or on the NCI during the 5-year period for this 
proposed authorization, the issuance of these regulations are unlikely 
to adversely affect listed marine mammals. Additionally, incidental 
take authorizations for either of these two species under either the 
MMPA or the ESA are not warranted.

[[Page 39062]]

Classification

    This action has been determined to be not significant for purposes 
of E.O. 12866.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Small Business Administration 
that this proposed rule, if adopted, would not have a significant 
economic impact on a substantial number of small entities as described 
in the Regulatory Flexibility Act. If implemented, this rule will 
affect only the U.S. Air Force, large defense companies, and an 
undetermined number of contractors providing services related to the 
launches, including the monitoring of launch impacts on marine mammals. 
Some of the affected contractors may be small businesses. The economic 
impact on these small businesses is dependent upon the award of 
contracts for such services. The economic impact cannot be determined 
with certainty, but will be beneficial have no effect, directly or 
indirectly, on small businesses. As such, a regulatory flexibility 
analysis is not required.
    This proposed rule contains collection-of-information requirements 
subject to the provisions of the Paperwork Reduction Act (PRA). This 
collection has been approved by OMB under OMB control number 0648-0151. 
Notwithstanding any other provision of law, no person is required to 
respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the PRA unless that collection of information displays a currently 
valid OMB control number.
    The reporting burden for this collection is estimated to be 
approximately 3 hours per response for requesting an authorization (as 
described in 50 CFR 216.104) and 40 hours per response for submitting 
reports, including the time for gathering and maintaining the data 
needed and completing and reviewing the collection of information. 
Comments are invited on (a) whether the proposed collection of 
information is necessary for the proper performance of the functions of 
the agency, including whether the information shall have practical 
utility; (b) the accuracy of the agency's estimate of the burden of the 
proposed collection of information; (c) ways to enhance the quality, 
utility, and clarity of the information to be collected; and (d) ways 
to minimize the burden of the collection of information on respondents, 
including the use of automated collection techniques or other forms of 
information technology. Please send any comments to NMFS and OMB (see 
ADDRESSES).

Information Solicited

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning the request and the structure and content of 
the regulations to allow the taking. Because this document contains 
only a summary of the information provided in the documents available 
to the public (see ADDRESSES), commenters are requested to review these 
documents before submitting comments.

List of Subjects in 50 CFR Part 216

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

    Dated: July 15, 1998.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

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

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

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

    Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

    2. 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.
216.129  [Reserved]

Subpart K--Taking of Marine Mammals Incidental to Space Vehicle and 
Test Flight Activities


Sec. 216.120  Specified activity and specified geographical region.

    (a) This subpart applies only to the incidental taking of those 
marine mammals specified in paragraph (b) of this section by U.S. 
citizens engaged in:
    (1) Launching a total of either 10 Minuteman and Peacekeeper 
missiles annually or 50 missiles over the 5-year authorization period 
from Vandenberg Air Force Base,
    (2) Launching a total of either 20 rockets annually or 100 rockets 
over the 5-year authorization period from Vandenberg Air Force Base,
    (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), northern fur seals (Callorhinus ursinus), Guadalupe 
fur seals (Arctocephalus townsendi), and Steller sea lions (Eumetopias 
jubatus).


Sec. 216.121  Effective dates.

    This subpart is effective from October 1, 1998, through September 
30, 2003.


Sec. 216.122  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. 216.106 
of this chapter, 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.

    Notwithstanding takings authorized by Sec. 216.120 and by a Letter 
of Authorization issued under Sec. 216.106, 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 possible, adverse 
impacts on

[[Page 39063]]

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 haulouts 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, unless constrained by other 
factors including, but not limited to, human safety, national security 
or launch trajectories, in order to ensure minimum negligible impacts 
of launches on harbor seals and other pinnipeds, holders of Letters of 
Authorization must avoid, whenever possible, launches during the harbor 
seal pupping season of February through May.
    (3) For Titan IV launches only, the holder of that Letter of 
Authorization must avoid launches, whenever possible, which predict a 
sonic boom on the Northern Channel Islands during harbor seal, elephant 
seal, and California sea lion pupping seasons.
    (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 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 
Authorization.
    (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 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 involving 
the taking of marine mammals.
    (b) Holders of Letters of Authorization must designate qualified 
on-site individuals, 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 and 
continue for a period of time not less than 48 hours subsequent to 
launching,
    (2) Monitor haulout sites on the Northern Channel Islands if it is 
determined that a sonic boom could impact those areas (this 
determination will be made in coordination with the National Marine 
Fisheries Service),
    (3) As required under a Letter of Authorization, investigate the 
potential for spontaneous abortion, disruption of effective female-
neonate bonding, and other reproductive dysfunction,
    (4) Supplement observations on Vandenberg and on the Northern 
Channel Islands, if indicated, with video-recording of mother-pup seal 
responses for daylight launches during the pupping season, and
    (5) Conduct acoustic measurements of those launch vehicles not 
having sound pressure level measurements made previously.
    (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, and
    (2) 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 noted that were likely 
the result of launch noise or the sonic boom.
    (e) An annual report must be submitted that describes in summary 
form any incidental takings not reported under paragraph (d) of this 
section.
    (f) A final report must be submitted at least 180 days prior to 
expiration of these regulations. This report will:
    (1) Summarize the findings made 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 of 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 (see definition 
at Sec. 216.103) 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), 
which have been reviewed by the Assistant Administrator and determined 
to be acceptable;
    (b) A determination that the mitigation measures required under 
Sec. 216.124 and the Letter of Authorization have been undertaken; and
    (c) A notice of issuance of a Letter of Authorization or of a 
renewal of a Letter of Authorization will be published in the Federal 
Register within 30 days of issuance.


Sec. 216.128  Modifications of Letters of Authorization.

    (a) In addition to complying with the provisions of Sec. 216.106, 
except as

[[Page 39064]]

provided in paragraph (b) of this section, no substantive modification, 
including withdrawal or suspension, to the Letter of Authorization 
issued pursuant to Sec. 216.106 and 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) or that 
significantly and detrimentally alters the scheduling of launches, a 
Letter of Authorization issued pursuant to Sec. 216.106 may be 
substantively modified without a prior notice and an opportunity for 
public comment. A notice will be published in the Federal Register 
subsequent to the action.


Sec. 216.129  [Reserved]

[FR Doc. 98-19392 Filed 7-20-98; 8:45 am]
BILLING CODE 3510-22-P