[Federal Register Volume 68, Number 232 (Wednesday, December 3, 2003)]
[Proposed Rules]
[Pages 67629-67636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-29828]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 031112277-3277-01;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: Proposed rule; request for comment.

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SUMMARY: NMFS has received a request from the 30th Space Wing, U.S. Air 
Force (USAF) for the authorization for the harassment of small numbers 
of pinnipeds incidental to space vehicle and test flight activities 
from Vandenberg Air Force Base, CA (VAFB) between January 1, 2004, and 
December 31, 2008. By this document, NMFS is proposing regulations that 
govern that take. In order to issue a take authorization, NMFS must 
determine that the total taking will have a negligible impact on the 
affected species and stocks of marine mammals and will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses. NMFS must also prescribe the means of 
effecting the least practicable adverse impact on such species or stock 
and their habitats. NMFS invites comment on the application and 
proposed regulations.

DATES: Comments must be postmarked no later than December 18, 2003. 
Comments will not be accepted if submitted via e-mail or the Internet.

ADDRESSES: Comments may be sent to and copy of the application may be 
obtained by writing to the 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). The NMFS' 
Administrative Record for this action will be maintained at this 
address. Copies of documents are available at this address.

FOR FURTHER INFORMATION CONTACT: Kimberly Skrupky, National Marine 
Fisheries Service, 301-713-2322, ext 163.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(A) of the Marine Mammal Protection Act (16 U.S.C. 
1361 et seq.) (MMPA) 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 5 years or less if the 
Secretary finds that the total 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, other means of effecting the least practicable adverse impact 
on the affected species or stocks and their habitats, 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.'' 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. NMFS 
proposes regulations to govern these authorizations, to be effective 
from January 1, 2004, through December 31, 2008. These regulations, if 
implemented, would allow NMFS to issue annual Letters of Authorization 
(LOAs) to the USAF. The current regulations and LOA expire 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

[[Page 67630]]

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 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.

[[Page 67631]]

 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 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 
vehicleconfigurations 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

[[Page 67632]]

(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.
    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.

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, 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).

[[Page 67633]]

    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).
    There have been no reports of Steller sea lions (Eumetopias 
jubatus) on VAFB. A single observation of a sub adult male Steller sea 
lion on SMI was made in the spring of 1998 prior to the breeding season 
(Thorson et al. 1999). Previously, the last observation of a Steller 
sea lion was made in the mid-1980's.
    There have been no reports of Guadalupe fur seals (Arctocephalus 
townsendi) on VAFB. A few Guadalupe fur seals are seen each year at 
SMI, generally in the summer or fall.

Potential Effects of Rocket and 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'

[[Page 67634]]

previous conclusions in its prior rulemaking.
    NMFS also notes here that stress from long-term cumulative sound 
exposures can result in physiological effects on 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 of marine mammals.

Effects of Rocket and 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.

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 
and this 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.
    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 Letters of 
Authorization must schedule launches to avoid, whenever possible, 
launches during the harbor seal pupping season of March through June. 
NMFS also proposes to expand the requirement so that 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.
    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 an LOA, prior 
to conducting 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 current 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, which continues the hearing tests 
covered under a previous scientific research permit that expired in 
2002.
    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)

[[Page 67635]]

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 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 
noted by the number of pinnipeds estimated to have entered the water as 
a result of launch noise, (c) the length of time(s) pinnipeds remained 
off the haul-out or rookery, (d) the numbers of pinniped adults or pups 
that may have been injured or killed as a result of the launch, and (4) 
any behavioral modifications by pinnipeds that likely were the result 
of launch noise or the sonic boom.
    An annual report must be submitted no 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 evidence provided in the application and this 
document, NMFS has preliminarily determined the requirements for 
authorizing the taking, by Level B harassment, of small numbers of 
marine mammals incidental to rocket and missile launch operations and 
aircraft overflights at VAFB have been satisfied. The total taking of 
marine mammals by Level B harassment from 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 the 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 permanent hearing impairment is 
unlikely. NMFS has preliminarily determined that the requirements of 
section 101(a)(5)(A) of the MMPA have been met and the LOAs can be 
issued.

National Environmental Policy Act (NEPA)

    The U.S. Air Force prepared an EA and issued a Finding of No 
Significant Impact in 1997, as part of its application for an 
incidental take authorization. NMFS is reviewing this EA and will 
prepare its own NEPA document before making a determination on the 
issuance of these regulations. A copy of the USAF 1997 EA for this 
activity is available upon request (see ADDRESSES).

Endangered Species Act (ESA)

    Under section 7 of the ESA, NMFS has begun consultation on the 
proposed issuance of regulations under section 101(a)(5)(A) of the MMPA 
for this activity. Consultation will be concluded prior to promulgation 
of a final rule.

Coastal Zone Management Act 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.

Classification

    This action has been determined to be not significant for purposes 
of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce has 
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.

Information Solicited

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning the request and the structure and content of 
the regulations governing 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.


[[Page 67636]]


    Dated: November 21, 2003.
John Oliver,
Deputy Assistant Administrator for Operations, 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. In Sec.  216.120, paragraph (a)(1) is revised to read as 
follows:


Sec.  216.120  Specified activity and specified geographical region.

    (a) * * *
    (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 authorization period.
* * * * *
    3. Section 216.121 is revised to read as follows:


Sec.  216.121  Effective dates.

    Regulations in this subpart are effective from January 1, 2004, 
through December 31, 2008.
    4. In 216.123, paragraph (c) and (d) are revised as follows:


Sec.  216.123  Prohibitions.

* * * * *
    (c) No person in connection with the activities described in Sec.  
216.120 shall:
    (1) Take any marine mammal not specified in Sec.  216.120(b);
    (2) Take any marine mammal specified in Sec.  216.120(b) other than 
by incidental, unintentional harassment;
    (3) 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.
    5. In Sec.  216.124, paragraphs (a)(1)-(3) are revised to read as 
follows:


Sec.  216.124  Mitigation.

    (a) * * *
    (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.
* * * * *
    6. In Sec.  216.125, paragraphs (b) introductory text, (b)(2)-
(b)(5) and (e) are revised and paragraphs (b)(6) and (b)(7) are added 
to read as follows:


Sec.  216.125  Requirements for monitoring and reporting.

* * * * *
    (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:
* * * * *
    (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.
* * * * *
    (e) An annual report must be submitted at the time of renewal of 
the LOA, described in Sec.  216.127
* * * * *
    7. Section 216.127 is revised to read as follows:


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.
    8. Section 216.128 is revised to read as follows:


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. 03-29828 Filed 12-2-03; 8:45 am]
BILLING CODE 3510-22-S