[Federal Register Volume 73, Number 245 (Friday, December 19, 2008)]
[Proposed Rules]
[Pages 77577-77589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30237]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 0808041027-81574-01]
RIN 0648-AX08


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to Space Vehicle and Test Flight Activities from Vandenberg 
Air Force Base (VAFB), California

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

ACTION:  Proposed rule; request for comments.

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SUMMARY:  NMFS has received a request from the U.S. Air Force (USAF) 
for authorization for the take of marine mammals, by harassment, 
incidental to launching space launch vehicles, intercontinental 
ballistic and small missiles, and aircraft and helicopter operations at 
VAFB. By this document, NMFS is proposing regulations to govern that 
take. In order to issue a Letter of Authorization (LOA) and issue final 
regulations governing the take, NMFS must determine that the taking 
will have a negligible impact on the species or stocks and will not 
have an unmitigable adverse impact on the availability of such species 
or stock for taking for subsistence uses. NMFS must also prescribe the 
means of effecting the least practicable adverse impact on such species 
or stock and their habitats.

DATES:  Comments and information must be received no later than January 
5, 2009.

ADDRESSES: You may submit comments, identified by 0648-AX08, by any one 
of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal: http://www.regulations.gov.
     Hand delivery or mailing of paper, disk, or CD-ROM 
comments should be addressed to P. Michael Payne, Chief, Permits, 
Conservation and Education Division, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East-West Highway, Silver 
Spring, MD 20910-3225.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.
    A copy of the application containing a list of references used in 
this document and the Draft Environmental Assessment (EA) may be 
obtained by writing to the above address, by telephoning the contact 
listed under FOR FURTHER INFORMATION CONTACT, or on the Internet at: 
http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. 
Documents cited in this proposed rule may also be viewed, by 
appointment, during regular business hours at the above address. To 
help NMFS process and review comments more efficiently, please use only 
one method to submit comments.

FOR FURTHER INFORMATION CONTACT: Candace Nachman, Office of Protected 
Resources, NMFS, (301) 713-2289, ext. 156.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the Marine Mammal Protection Act 
(MMPA; 16 U.S.C. 1361 et seq.) direct the Secretary of Commerce 
(Secretary) to allow, upon request, the incidental, but not intentional 
taking of small numbers of marine mammals by U.S. citizens who engage 
in a specified activity (other than commercial fishing) within a 
specified geographical region if certain findings are made and either 
regulations are issued or, if the taking is limited to harassment, 
notice of a proposed authorization is provided to the public for 
review.
    Authorization for incidental takings may be granted if NMFS 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 certain subsistence uses, 
and that the permissible methods of taking and requirements pertaining 
to the mitigation, monitoring and reporting of such taking are set 
forth.
    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 National Defense Authorization Act of 2004 (NDAA) (Public Law 
108-136) removed the ``small numbers'' and ``specified geographical 
region'' limitations and amended the definition of ``harassment'' as it 
applies to a ``military readiness activity'' to read as follows 
(Section 3(18)(B) of the MMPA):
    (i) any act that injures or has the significant potential to 
injure a marine mammal or marine mammal stock in the wild [Level A 
Harassment]; or (ii) any act that disturbs or is likely to disturb a 
marine mammal or marine mammal stock in the wild by causing 
disruption of natural behavioral patterns, including, but not 
limited to, migration, surfacing, nursing, breeding, feeding, or 
sheltering, to a point where such behavioral patterns are abandoned 
or significantly altered [Level B Harassment].

Summary of Request

    On March 21, 2008, NMFS received an application from the USAF 
requesting authorization for the take of four species of marine mammals 
incidental to space vehicle and test flight activities from VAFB, which 
would impact pinnipeds on VAFB and the Northern Channel Islands (NCI). 
NMFS proposes regulations to govern these activities, to be effective 
from February 7, 2009, through February 6, 2014. These regulations, if 
implemented, would allow NMFS to issue annual LOAs to the USAF. The 
current regulations and LOA expire on February 6, 2009. These training 
activities are classified as military readiness activities. Marine 
mammals may be exposed to continuous noise due mostly to combustion 
effects of aircraft and launch vehicles and impulsive noise due to 
sonic boom effects. The USAF requests authorization to take four 
pinniped species by Level B Harassment.

Description of the Specified Activity

    VAFB (see Figure 1 in the USAF application) is headquarters to the 
30th Space Wing (SW), the Air Force Space Command unit that operates 
VAFB and the Western Range. VAFB operates as a missile test base and 
aerospace center, supporting west coast space launch activities for the 
USAF, Department of Defense, National Aeronautics and Space 
Administration, and commercial contractors. VAFB is the main west coast 
launch facility for placing commercial, government, and military

[[Page 77578]]

satellites into polar orbit on expendable (unmanned) 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 launch activities at VAFB, there are 
helicopter and aircraft operations for purposes such as search-and-
rescue, delivery of space vehicle components, launch mission support, 
and security reconnaissance. The USAF expects to launch a maximum of 30 
rockets and missiles per year from VAFB.
    There are currently six active space launch vehicle (SLV) 
facilities at VAFB (VAFB, 2007), used to launch satellites into polar 
orbit. These facilities support the launch programs for space vehicles 
including the Atlas V, Delta II, Delta IV, Falcon, Minotaur, and 
Taurus. The Falcon has yet to launch from VAFB and is scheduled for its 
first launch in August, 2009 (30 SW, 2008a). Details on the vehicle 
types and the sound exposure levels (SELs) produced by each missile or 
rocket are described in the following sections.

Atlas V

    The Atlas V vehicle is launched from Space Launch Complex (SLC)-3E 
on south VAFB, the site of the previous Atlas IIAS program. This SLC is 
approximately 9.9 km (6.2 mi) from the main haul-out area on VAFB, 
known as Rocky Point (see Figure 2 in the USAF application), which 
encompasses several smaller haul-outs. SLC-3E is approximately 11.1 km 
(6.9 mi) from the closest north VAFB haul-out, known as the Spur Road 
haul-out site (Figure 3 in the application) and 13.5 km (8.4 mi) from 
the next closest haul-out, the nearby Purisima Point haul-out site 
(Figure 3 in the application).
    The Atlas V is a medium lift vehicle that can be flown in two 
series of configurations - the Atlas V400 series and the Atlas V500 
series. Both series use the Standard Booster as the single body 
booster. The V400 series accommodates a 4.2 m (13.8 ft) payload fairing 
and as many as three solid rocket boosters. The V500 series 
accommodates a 5.4 m (17.7 ft) fairing and as many as five solid rocket 
boosters. The Atlas V400 series will lift as much as 7,800 kg (17,196 
lbs) into geosynchronous transfer orbit or as much as 13,620 kg (30,027 
lbs) into low earth orbit. The Atlas V500 series will lift as much as 
8,700 kg (19,180 lbs) into geosynchronous transfer orbit or as much as 
21,050 kg (46,407 lbs) into low earth orbit. The Atlas V consists of a 
common booster core (CBC; 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. 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 first Atlas V launch occurred on March 13, 2008. Acoustic 
monitoring was conducted for this launch at VAFB. However, an equipment 
malfunction during the launch prevented the proper functioning of the 
digital audio tape (DAT) recorder during the launch. Since acoustic 
data was only gathered with the sound level meter (SLM), not all 
metrics were obtained for that launch. The Atlas V launch had an A-
weighted SEL (ASEL) of 96.5 dB (MSRS, 2008c). The Atlas V was predicted 
to create a sonic boom of as much as 7.2 pounds per square foot (psf), 
impacting the NCI including San Miguel Island (SMI; see Figure 4 in the 
USAF application). The size of the actual sonic boom would depend on 
meteorological conditions, which can vary by day and season and with 
the trajectory of the vehicle. A sonic boom greater than 1 psf was 
predicted for the initial Atlas V launch, thus acoustic monitoring was 
performed on SMI. Measurements conducted at Cardwell Point indicated a 
sonic boom of 1.24 psf with a rise time of 2.4 milliseconds (ms).

Delta II

    The Delta II is launched from SLC-2 on north VAFB (see Figure 3 in 
the USAF application) approximately 2 km (1.2 mi) from the Spur Road 
harbor seal haul-out site and 2.3 km (1.4 mi) from the Purisima Point 
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 three, four, or 
nine GEMs can be attached for added boost during liftoff. When nine 
GEMs are used, six are ignited at liftoff and three are lit once the 
rocket is airborne. When three or four GEMs are used they are all 
ignited at liftoff. The number of GEMs attached to each vehicle will 
determine the amount of sound power produced by the vehicle.
    Eight Delta II launches have been acoustically quantified near the 
Spur Road harbor seal haul-out site. The Delta II is the second loudest 
of the SLVs at the Spur Road haul-out site, the Taurus vehicle being 
the loudest (see Table 2 in the application). The Delta II has an 
unweighted SEL measurements (based on the six initial acoustically-
measured launches) ranging from 126.5 to 128.8 dB and averaging 127.4 
dB, as measured by the DAT recorder. The C-weighted SEL (CSEL) ranged 
from 124.3 to 126.7 dB with an average of 125.4 dB (DAT). The ASEL 
measurements from both a SLM and the DAT were similar and ranged from 
111.8 to 118.2 dB and had an average of 114.5 dB (DAT). The maximum 
fast A-weighted sound level (Lmax) values ranged from 104.2 to 112.5 dB 
and averaged 109.5 dB.
    Sonic booms have been measured on SMI from three Delta II launches: 
the EO-1, Iridium MS-12, and AURA (November 2000, February 2002, and 
July 2004, respectively). Both the Iridium MS-12 and AURA had two small 
sonic booms impact the Point Bennett area of SMI. Iridium MS-12 had 
peak overpressures of 0.47 and 0.64 psf and rise times of 18 and 91 ms, 
while AURA had peak overpressures of 0.79 and 1.34 psf and rise times 
of 9.5 and 10.5 ms. The Delta II EO 1 had a single sonic boom with a 
peak overpressure of 0.4 psf and rise time of .041 ms.

Delta IV

    The Delta IV is 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 (see Figure 
2 in the USAF application). The Delta IV family of launch vehicles 
consists of five launch vehicle configurations utilizing a CBC first 
stage (liquid fueled) and zero, two, or four strap on solid rocket 
GEMs. The Delta IV comes in four medium lift configurations and one 
heavy lift configuration consisting of multiple CBCs (Table 4 in the 
application). The Delta IV can carry payloads from 4,210 to 13,130 kg 
(9,281 to 28,947 lbs) into geosynchronous transfer orbit.
    Previously the Athena launch vehicle was launched from SLC-6. The 
Athena was a much smaller vehicle than the Delta IV but was one of the 
top three loudest vehicles (Table 1 in the application) at the haul-
out, given its close proximity. Because the Delta IV was predicted to 
be the loudest vehicle at the south VAFB harbor seal haul-out site, it 
was required that acoustic and biological monitoring be conducted for 
its first three launches. In addition, harbor seal hearing tests were 
required before and after each of the first three launches.
    The first two Delta IV launches occurred in 2006. Although the 
Delta IV is larger than the Athena, it was found after its initial 
launch (NROL-22, June 2006) that the Delta IV had similar noise levels 
to the Athena vehicle. As measured by the DAT, the unweighted SEL was 
127.7 dB, while the CSEL was

[[Page 77579]]

122.9 dB, and the ASEL was 106.2 dB (Fillmore et al., 2006). The Lmax 
was found to be 103.1 dB (Fillmore et al., 2006).
    During its second launch (DMSP-17, November 2006), the DAT recorder 
was located at the VAFB Boathouse (near where the harbor seal hearing 
tests were performed), rather than at the more usual sound monitoring 
location of Oil Well Canyon, where an SLM was placed. The DAT measured 
the unweighted SEL at 131.3 dB, the CSEL at 127.5 dB, and the ASEL at 
111.3 dB. The Lmax was measured at 102.6 dB (Thorson et al., 2007).
    The Delta IV was predicted to create maximum sonic booms of as much 
as 7.2 psf for the largest of the medium configurations and 8 to 9 psf 
for the heavy configuration (Table 4 in the application). The size of 
the actual sonic boom would depend on meteorological conditions, which 
can vary by day and season, and with the trajectory of the vehicle. A 
sonic boom greater than one psf was predicted for the initial Delta IV 
launch, thus acoustic monitoring was performed on SMI. An equipment 
malfunction resulted in uncertainty regarding the amplitude of the 
sonic boom that was recorded for the launch, and the peak overpressure 
from the boom could have ranged from 0.77 psf to as much as 3.36 psf. 
The rise time was able to be determined and was measured at 8.7 ms. 
Because a sonic boom was not predicted for the second Delta IV launch, 
monitoring was not performed on SMI.
    Capture attempts of harbor seals for the initial Delta IV launch 
were unsuccessful; therefore, no hearing tests were performed on seals 
for that launch. Capture attempts for the second Delta IV launch were 
successful, and hearing tests were performed. There was no evidence 
that the launch noise from the Delta IV DMSP 17 caused a loss in harbor 
seal hearing acuity. However, given a 2 hr delay in starting the 
hearing test due to safety constraints, it is possible that a mild 
temporary threshold shift (TTS) could have been fully recovered by the 
time the testing was started. Even so, no long-term hearing loss from 
the Delta IV launch noise was found (Thorson et al., 2007).
    The third Delta IV launch is currently scheduled for December, 
2010. Appropriate biological and acoustic monitoring, as well as 
hearing testing, are planned for this launch.

Falcon

    The Falcon is the launch vehicle for Space Exploration Technologies 
(Space X). Space X is a commercial program planning to launch small 
payloads into low earth orbit from VAFB. While it has not been 
officially decided (30 SW, 2008a), it is anticipated that Space X will 
utilize SLC-4E, instead of SLC-3W as originally planned (30 SW, 2008c). 
The Space X launch vehicle includes the Falcon I SLV, classified as a 
light-lift vehicle. It is a two-stage liquid oxygen and rocket grade 
kerosene powered launch vehicle and is 21.3 m (69.9 ft) in length and 
1.7 m (5.6 ft) in diameter (Space X, 2007). Beginning in 2009, the 
Falcon 1e vehicle will also be available. It is also 1.7 m (5.6 ft) in 
diameter, but will have an extended first stage and will be 26.8 m 
(87.9 ft) in length (Space X, 2007). The Falcon I has a thrust of 
105,500 lbs (in vacuum) and the Falcon 1e has 115,000 lbs (in vacuum) 
and are capable of delivering approximately 554 kg (1,221 lbs) into sun 
synchronous low earth orbit (Space X, 2007). The first Falcon launch 
from VAFB is currently scheduled for August, 2009 (30 SW, 2008a).

Minotaur

    The Orbital Suborbital Program launch vehicle, known as Minotaur I, 
is launched from SLC-8 on south VAFB (see Figure 2 in the USAF 
application), approximately 2.3 km (1.4 mi) from the south VAFB haul-
out sites. The Minotaur I is a four stage, all solid propellant ground 
launch vehicle (Orbital Sciences Corporation, 2006a). The launch 
vehicle consists of modified Minuteman II Stage I and Stage II 
segments, mated with Pegasus upper stages (Orbital Sciences 
Corporation, 2006a). The Minotaur is a small vehicle, approximately 
19.2 m (63 ft) tall (Orbital Sciences Corporation 2006b), with 
approximately 215,000 lbs of thrust.
    Two Minotaur launches were acoustically monitored at VAFB (January 
2000 and July 2000). 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 CSELs varied less and were measured at 116.6 and 117.9 dB. From the 
DAT and SLM measurements, the ASEL ranged from 104.9 to 107.0 dB. The 
launch noise reached an Lmax level of 101.7 and 103.4 dB. No sonic 
booms of greater than one psf were predicted to impact the NCI for 
these two launches, nor for a third launch for which only biological 
monitoring was performed at VAFB given that acoustics had been 
previously quantified.

Taurus

    The Taurus SLV is launched from 576E on north VAFB, approximately 
0.5 km (0.3 mi) from the Spur Road harbor seal haul-out site and 2.3 km 
(1.4 mi) from the Purisima Point haul-out site (see Figure 3 in the 
USAF application). The standard Taurus is a small launch vehicle, at 
approximately 24.7 m (81 ft) tall and is launched in two different 
configurations (Defense Advanced Research Projects Agency (DARPA) and 
standard) with different first stages providing 500,000 or 400,000 lbs 
of thrust, respectively. The different vehicle configurations have 
different thrust characteristics, with the standard configuration 
providing less thrust than DARPA.
    The launch noise from five Taurus launches has been measured near 
the Spur Road haul-out site. The Taurus is the loudest of the launch 
vehicles at the Spur Road haul-out site, due to the close proximity of 
its launch pad to the haul-out site. The unweighted SEL measurements 
from the four initially measured Taurus vehicles ranged from 135.8 to 
136.8 and averaged 136.4 dB. The CSEL measurements were slightly lower 
as expected, ranging from 133.8 to 134.8 dB and averaged 134.5 dB. The 
ASEL measurements ranged from 123.5 to 128.9 dB with an average of 
126.6 dB (SLM). The Lmax values were measured to range from 118.3 to 
122.9 dB and averaged 120.9 dB (SLM). No sonic booms greater than one 
psf were predicted to impact the NCI for any of the six Taurus launches 
monitored since 1998.

ICBM and Missile Defense Agency Interceptor and Target Vehicles

    There are a variety of small missiles launched from north VAFB, 
including the Minuteman III and several types of interceptor and target 
vehicles for the Missile Defense Agency (MDA) program. The Peacekeeper 
missile program was recently deactivated. Active missile launch 
facilities (LFs) are spread throughout northern VAFB (see Figure 3 in 
the application), and are within approximately 1 to 3.9 km (0.6 to 2.4 
mi) of the 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 Purisima Point haul-out 
sites. In addition to the LFs, Test Pad (TP)-01 is present on north 
VAFB. Although not currently active or associated with a missile 
program, MDA may eventually utilize this pad. The trajectories of ICBM 
and MDA launches are generally westward and therefore do not cause 
sonic boom impacts on the NCI.
    ICBM: The Minuteman III missile is an ICBM developed as part of the 
U.S. strategic deterrence force. The Minuteman III is launched from an 
underground silo. It is composed of three rocket motors, and is 18 m 
(59 ft) in length by 1.7 m (5.6 ft) in diameter with a first stage 
thrust of 202,600 lbs.

[[Page 77580]]

    The launch noise from the June 7, 2002, launch from LF-26 (see 
Figure 3 in the USAF application) was measured at the Lion's Head haul-
out site. This LF is approximately 3 km (1.9 mi) away from the haul-out 
site. The ASEL measurement of the launch noise was 100.6 dB and the 
Lmax value of 98.2 dB.
    The launch noise from the May 24, 2000, launch from LF-09 (Figure 3 
in the application) was measured at the Spur Road haul-out site. At a 
distance of over 15 km from LF-09, the unweighted SEL measurement was 
114.7 dB and the CSEL measurement was 111.6 dB. The ASEL measurement 
was 26 dB down from the unweighted value and was measured at 88.7 dB. 
The Lmax was measured to be 83.3 dB.
    MDA Interceptor and Target Vehicles: The MDA continues development 
of various systems and elements, including the Ballistic Missile 
Defense System (BMDS), the Ground-based Midcourse Defense (GMD) element 
of BMDS, the Kinetic Energy Interceptor (KEI) element, and the Air-
Borne Laser (ABL) element.
    The BMDS mission is to defend against threat missiles in each phase 
or segment of the missile's flight. MDA has been conducting and will 
continue to conduct BMDS testing at VAFB through 2014 and beyond.
    The GMD element is designed to protect the U.S. 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 coasts in a ballistic trajectory. The missiles 
are comprised of a commercially available, solid propellant booster 
consisting of two or three stages, and an exo-atmospheric kill vehicle 
or emulator. A two-stage booster is being added to the current three-
stage booster. The Ground Based Interceptor (GBI) was previously 
approved for launching from VAFB (68 FR 25347, May 12, 2003). GBI 
flight tests are planned from LF-23. As a scheduled risk mitigation, 
some limited testing may occur from LF-24 (currently being refurbished 
for use).
    The second element of BMDS, the KEI element, includes development 
of the KEI booster and its flight tests. MDA anticipates a minimum of 
three KEI launches per year from 2009 to at least 2012. Candidate 
launch sites include 576E, TP-01, and LF-06.
    The third element of BMDS, the ABL element, is being developed to 
provide an effective defense to limited ballistic missile threats 
during the boost segment of an attacking missile's flight. Under the 
ABL program, there could be as many as 10 launches per year. Launches 
could occur from LF-06a, which would be a new LF, yet to be 
constructed, near the current LF-06. Possible launch vehicles could 
include Black Brant IX, Hera, Terrier/Orion, two-stage Terrier, Liquid 
Fueled Target System (LFTS), Terrier Lynx, Storm, ARIES, Castor I, 
Lance, Patriot PAC-2, STRYPI-II, and Hermes.
    As a part of BMDS testing, MDA envisions launching a wide variety 
of target missiles from VAFB northern LFs on westerly trajectories. 
Table 5 in the USAF application identifies missiles being considered by 
MDA for use at VAFB. Many of the small missiles under 13 m (42.7 ft), 
including the Hera, Lance, Patriot As A Target (PAAT), Black Brant, 
Terrier, SRTYPI II, Castor I, Storm, ARIES and Hermes, in addition to 
missiles already approved for VAFB (such as Minuteman missiles and the 
three-stage GBIs), and the new generation of missiles from the MDA, 
such as the KEI and the GBI two-stage, are to be covered under this 
application for the five-year programmatic permit because of their 
launch site's proximity to the Lion's Head harbor seal pupping site 
that was established in 2002.
    The LFTS target missile is a single-stage, short range, ballistic 
missile with a non-separating payload. The missile is fueled by 
kerosene, initiator fuel, and an oxidizer (Inhibited Red Fuming Nitric 
Acid). The Flexible Target Family target missiles include the LV 2 and 
the LV 3 missiles, which are solid-fueled.
    As shown in Table 5 in the application, all of the target and 
interceptor missiles are smaller than the Minuteman III or Peacekeeper 
missiles previously or currently launched from VAFB. The MDA notes that 
the actual heights of the missiles shown in Table 5 will vary depending 
on the payload and associated electronic packages (e.g., flight 
termination system) or special modifications. Many of the missile types 
have interchangeable first or second stage motors; therefore, most may 
have similar noise characteristics, depending on their configuration. 
Missiles for which acoustic measurements have previously been made, as 
well as vehicle size, are included in Table 6 of the application.
    The main missile programs and missile types are described herein, 
but others may be implemented before this permit expires. The USAF 
would notify NMFS of any new missile programs that would be implemented 
at VAFB. Completely new types of missiles would be monitored 
acoustically and biologically, during their first launch, even if the 
launch occurs outside of the pupping season, using the standard launch 
monitoring protocol for VAFB. However, configuration changes in 
existing missiles would only be monitored during the pupping season, as 
is done for all other missile launches.
    The MDA's BMDS test plans, including those involving tests from 
VAFB, are subject to constant change as the BMDS is being developed 
through spiral evolution. Therefore, it is difficult for the MDA to 
predict with accuracy its future launch schedule or number of launches 
over the next five years. However, due to test resource limitations, 
the MDA does not envision conducting more than three missile tests per 
quarter (on average) over the next five years from VAFB, and none of 
the missiles would be larger than the Minuteman III. This limitation 
(i.e., one missile per quarter and none being larger than the Minuteman 
III) can be used to establish the potential impacts posed by the MDA 
testing at VAFB over the next five years.
    In order to compare launch noise from past and current SLVs, as it 
was received near the north and south VAFB marine mammal haul-out 
sites, Tables 1 through 3 in the USAF application provide information 
on the SELs that were measured during previous launch events. Table 1 
in the application provides a comparison of SELs as measured at the 
sound monitoring site by the south VAFB marine mammal haul-out site. 
Table 2 in the application provides the SELs as measured at the sound 
monitoring site by the north VAFB Spur Road marine mammal haul-out 
site. Finally, Table 3 in the application provides the SELs as measured 
at the sound monitoring site by the north VAFB Lion's Head marine 
mammal haul-out site.

Aircraft Operations

    The VAFB runway, located on north VAFB (see Figure 3 in the 
application), supports various aircraft operations further described 
below. Aircraft operations include tower operations, such as take offs 
and landings (training operations) from the airfield, and range 
operations, such as overflights and flight tests. Using data from 
fiscal years (FY) 2003, 2006, and 2007 (FY 2004 and 2005 data are not 
available), the number of tower operations averaged 12,325 operations 
per FY, while range operations averaged 502 operations per FY.
    Flight Test Operations: VAFB is a limited site for flight testing 
and evaluation of fixed-wing aircraft. Three approved routes are used 
that avoid the established pinniped haul-out sites. Aircraft flown 
through VAFB airspace and supported by 30 SW include, but

[[Page 77581]]

are not limited to, B1 and B2 bombers, F-15, F-16, and F-22 fighters, 
V/X-22, Unmanned Aerial Vehicles, and KC-135 tankers.
    Fixed-wing Aircraft Operations: 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 space 
vehicles at high altitude (e.g., the Pegasus), and emergency landings. 
All aircraft are required to remain outside of the 305-m (1,000-ft) 
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. There have been no 
observed impacts to pinnipeds from fixed-wing aircraft operations 
during launch monitoring or pinniped surveys.
    Helicopter Operations: The number of helicopter operations at VAFB 
decreased in 2008 with the deactivation of the VAFB helicopter 
squadron. However other squadrons and units continue to use VAFB for 
purposes which include, but are not limited to, transit through, 
exercises, and launch mission support. All helicopters are required to 
remain outside of the 305-m (1,000-ft) bubble around pinniped rookeries 
or haul-out sites. Exceptions may occur when performing a life-or-death 
rescue mission, when responding to a security incident, or during an 
aircraft emergency. There have been no observed impacts to pinnipeds 
from helicopter operations during launch monitoring or pinniped 
surveys.

Description of Habitat and Marine Mammals Affected by the Activity

VAFB

    VAFB is composed of approximately 99,000 acres of land and 
approximately 64.4 km (40 mi) of coastline on the coast of central 
California, within Santa Barbara County (see Figure 1 in the USAF 
application). The most common marine mammal inhabiting the VAFB 
coastline is the Pacific harbor seal (Phoca vitulina richardii). Harbor 
seals are local to the area, rarely traveling more than 50 km (31 mi) 
from the haul-out site. They haul out on small offshore rocks or reefs 
and sandy or cobblestone cove beaches. There are four main harbor seal 
haul-out sites on VAFB; three are on north VAFB and one is on south 
VAFB.
    On north VAFB, harbor seals primarily use the offshore rocky area 
near Spur Road; the Purisima Point reef; and the offshore rocky area of 
Lion's Head (Figure 3 in the application). The Spur Road and Purisima 
Point haul-out sites are in the vicinity of the Delta II launch site, 
SLC-2, and the Taurus launch site, referred to as 576E. The Lion's Head 
haul-out site is located in the vicinity of the LFs. As many as 110 
seals may haul out at Spur Road and as many as 45 seals may haul out at 
Purisima Point (SRS Technologies, 2003b). Based on monthly counts 
conducted in 2005 through 2007, only one to two pups were observed at 
the Spur Road and Purisima Point haul-out sites. As many as 17 seals 
may haul out at Lion's Head, with as many as three pups (Thorson et 
al., 2004). These three sites are mostly to completely under water at 
higher tides (above 1.2 m (3.9 ft)), preventing seals from hauling out 
at those times.
    The main haul-out area on south VAFB, from the VAFB Harbor north to 
South Rocky Point beach, is comprised of many sand and cobblestone 
coves and rocky ledges, with most seals found between Harbor Seal Beach 
and South Rocky Point (approximately 1.5 km (0.9 mi) of coastline; 
Figure 2 in the application). The raised rocky ledge of Flat Iron Rock 
provides an area to haul out during most tides (except for very high 
tides combined with high swells and wind); therefore, this area is used 
more often and by more seals than any other VAFB haul-out site. Weaned 
pups, juveniles and some adult females use Weaner Cove, just to the 
north of Flat Iron Rock, throughout most of the year. During periods of 
high winds, seals may move from Flat Iron Rock into the more protected 
Weaner Cove. Peak numbers, as many as 515 seals hauled out at one time 
(SRS Technologies, 2003b), usually occur at the south VAFB haul-out 
site in the afternoon (1100 to 1600 Pacific Time), but the number of 
seals present is also influenced by a combination of high tides and 
large swells, high temperature, or strong winds (SRS Technologies, 
2003b). During the pupping season (March through June), as many as 49 
mother-pup pairs can be found hauled out in the area just north of 
Harbor Seal Beach and at Weaner Cove, making these areas the main 
pupping sites on VAFB (SRS Technologies, 2003b). During molting (May 
through July) adult and some juvenile harbor seals primarily use the 
Flat Iron Rock area, while weaned pups, juveniles and a few adult 
females use the coves just north and south of Flat Iron Rock (SRS 
Technologies, 2002).

NCI

    The Northern Channel Islands (NCI) are located approximately 50 km 
(31 mi) south of the southern point on VAFB (see Figure 4, inset in the 
USAF application). Three islands, San Miguel, Santa Cruz, and Santa 
Rosa, make up the main NCI, with San Miguel Island being the primary 
site for pinniped rookeries. The NCI are part of the Channel Islands 
National Park and the Channel Islands National Marine Sanctuary.

San Miguel Island

    On SMI, commonly found species of pinnipeds include California sea 
lions (Zalophus californianus), northern elephant seals (Mirounga 
angustirostris), northern fur seals (Callorhinus ursinus) and Pacific 
harbor seals. Guadalupe fur seals (Arctocephalus townsendi) and Steller 
sea lions (Eumetopias jubatus) have bred in the past on SMI, but 
sightings have been rare since the mid-1980's. The main rookeries of 
sea lions, elephant seals and fur seals are found at Point Bennett on 
the west end of SMI (see Figure 4 in the USAF application). California 
sea lions occur at Point Bennett, along the south side of the island, 
to Cardwell Point, on the east. Northern elephant seals occur at Point 
Bennett and from Crook Point to Cardwell Point, with small numbers 
along the north coast. Northern fur seals occur in the Point Bennett 
area. Harbor seals occur along the north coast and from Crook Point to 
Cardwell Point.
    There are approximately 23,000 California sea lion pups (30 SW, 
2008c), over 10,000 elephant seal pups (Lowry, 2002) and over 4,000 fur 
seal pups born on SMI each year (Carretta et al., 2007). Pacific harbor 
seals pup on the north and east end of SMI; 2,500 northern elephant 
seals and several hundred sea lions also pup on the east end of SMI at 
Cardwell Point (Lowry, 2002). Most sea lions and elephant seals on the 
south and east end of SMI are non-breeding (juvenile or molting) 
animals. This area is composed of high cliffs with small sandy coves 
where several hundred seals haul out. From approximately December 
through July, pupping and breeding activities overlap between the four 
main species (see Table 7 in the application and Table 1 here).
    Currently, the main impacts to species on SMI are: environmental 
conditions, food limitations (i.e., El Nino or fisheries interactions), 
and competition with other pinniped species for breeding space. For all 
species, adverse impacts to populations occur periodically because of a 
decrease in the availability of food items due to El Nino events. 
Commercial fisheries have impacted Steller sea lion and northern fur 
seal populations (Sydeman and Allen, 1999). Competition among pinniped 
species is occurring as the growing populations of sea lions and

[[Page 77582]]

elephant seals displace less aggressive harbor seals for haul-out 
space.

  Table 1. Summary of the pupping (birthing and nursing period), breeding, and molting seasons of the four main
                                            pinniped species on SMI.
----------------------------------------------------------------------------------------------------------------
                     Species                          Pupping Season      Breeding Season       Molting Season
----------------------------------------------------------------------------------------------------------------
California sea lion                                          May-July           May-August      August-December
----------------------------------------------------------------------------------------------------------------
Northern fur seal                                            May-July             May-July       August-October
----------------------------------------------------------------------------------------------------------------
Northern elephant seal                                 December-March       December-March         April-August
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal                                         March-May           March-June             May-July
----------------------------------------------------------------------------------------------------------------

Santa Cruz Island

    On Santa Cruz Island the main species of marine mammal inhabiting 
the island is the harbor seal. California sea lions and northern 
elephant seals rarely haul out on Santa Cruz Island, except when sick 
or injured. There are approximately 1,050 harbor seals found on Santa 
Cruz Island during the spring aerial surveys (Lowry and Carretta, 
2003). Based on sonic boom prediction models for previous launches, the 
majority of sonic booms produced by launches from VAFB do not impact 
Santa Cruz Island.

Santa Rosa Island

    On Santa Rosa Island, the main species of marine mammals inhabiting 
the island are the harbor seal and the northern elephant seal. In 2001, 
1,567 elephant seal pups were born on Santa Rosa (Lowry, 2002). There 
are approximately 900 harbor seals found on Santa Rosa Island during 
the spring aerial surveys (Lowry and Carretta, 2003). Some California 
sea lions pup on Santa Rosa, but it has not been established as a 
rookery to date. Pinnipeds generally use the west end of the island, 
adjacent to SMI. Based on sonic boom prediction models for previous 
launches, the majority of sonic booms produced by launches from VAFB do 
not impact Santa Rosa Island.

Comments and Responses

    On July 25, 2008, NMFS published a notice of receipt of application 
for an LOA in the Federal Register (73 FR 43410) and requested comments 
and information from the public for 30 days. NMFS received comments 
from the Marine Mammal Commission (Commission) and one private citizen. 
The Commission supports NMFS' decision to publish proposed regulations 
for the specified activities provided that the research, mitigation, 
and monitoring activities described in the application and the current 
regulations are incorporated into the rule. NMFS has incorporated the 
research, mitigation, and monitoring into the proposed rule. The other 
comment opposed the issuance of an authorization without any specific 
substantiation for why such an authorization should not be issued. For 
the reasons set forth in this preamble, NMFS believes issuance of the 
authorization is appropriate.

Marine Mammals Potentially Affected by the Activity

    At both VAFB and the NCI, Pacific harbor seals, California sea 
lions, and northern elephant seals haul out on beaches throughout the 
year. Northern fur seals, Steller sea lions, and Guadalupe fur seals 
have not been reported on VAFB. However, northern fur seals and 
Guadalupe fur seals can be found on SMI. Northern fur seals are only 
found on the west end of SMI at Point Bennett and Castle Rock, just 
offshore of SMI. Each year at SMI, zero to two Guadalupe fur seals are 
seen generally in the summer (Melin and DeLong, 1999). Steller sea 
lions have not been sighted on SMI since 1998. This was a single 
observation of a sub-adult male in the spring prior to the breeding 
season (Thorson et al., 1999a). Previously, the last observation of a 
Steller sea lion was made in the mid-1980's.
    The USAF has compiled information on the abundance, status, and 
distribution of the species on VAFB and the NCI from surveys that they 
have conducted over the last decade and from NMFS Stock Assessment 
Reports (SARs). This information may be viewed in the USAF's LOA 
application (see ADDRESSES). Additional information is available in the 
NMFS SARs, which are available at: http://www.nmfs.noaa.gov/pr/pdfs/sars/po2007.pdf.

Potential Effects of Specified 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 SLV and missile launches and aircraft and helicopter operations 
may cause the animals to lift their heads, move towards the water, or 
enter the water. The following information provides background on 
marine mammal responses to launch noise that has been gathered under 
previous LOAs for these activities, as well as a scientific research 
permit issued to VAFB by NMFS for a research program (Permit No. 859-
1680-01) to determine the short and long-term effects of SLV noise and 
sonic booms on affected marine mammals.

Marine Mammal Response to Launch Noise

    Seals may leave the haul-out site and enter the water due to the 
noise created by launch vehicles during launch operations. The 
percentage of seals leaving the haul-out increases with noise level up 
to approximately 100 dB ASEL, after which almost all seals leave, 
although data have shown that some

[[Page 77583]]

percentage of seals have remained on shore during launches. Time-lapse 
video photography during four launch events revealed that the seals 
that reacted to the launch noise but did not leave the haul-out were 
all adults. Because adult seals reacted less strongly than other 
younger seals, this suggests that adults had possibly experienced other 
launch disturbances and had habituated to them.
    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. Seals may begin to return to the haul-out site within 2-
55 min of the launch disturbance and the haul-out site usually returned 
to pre-launch levels within 45-120 min. In two past Athena IKONOS 
launches with ASELs of 107.3 and 107.8 dB at the closest haul-out site, 
seals began to haul-out again approximately 16-55 min post-launch 
(Thorson et al., 1999a; 1999b). In contrast, noise levels from an Atlas 
launch and several Titan II launches had ASELs ranging from 86.7 to 
95.7 dB at the closest haul-out and seals began to return to the haul-
out site within 2-8 min post-launch (Thorson and Francine, 1997; 
Thorson et al., 2000).
    The main concern on the NCI from VAFB launch activities is 
potential impacts from sonic booms created during launches of SLVs from 
VAFB. During the period of 1997 through 2005, and in 2007 there were no 
sonic booms above 2 psf recorded on the NCI. Small sonic booms between 
1 and 2 psf usually elicit a heads up response or slow movement toward 
and entering the water, particularly for pups. In 2006, due to an 
equipment malfunction, there was uncertainty about the peak 
overpressure from the Delta IV NROL-22 launch, which could have ranged 
between 0.77 and 3.36 psf. During the 1996 Titan IV K-22 launch, sonic 
booms of 1 to 9.2 psf reached SMI and caused many sea lions and some 
elephant seals to enter the water near the loudest sonic boom (Stewart 
et al., 1996). There were no injuries or mortalities as a result of 
that sonic boom or the reactions by pinnipeds on SMI.

Haul-out Behavior and Population Dynamics

    During the scientific research program, haul-out behavior was 
determined by capturing and attaching radio frequency transmitters to 
the hind flippers of 41 harbor seals. Twenty-four seals were tagged in 
the Rocky Point area of south VAFB, and 17 were tagged at Point 
Conception (control site; see Figure 1 in the USAF application). The 
tagged seals ranged in age from pups (4 months) through adults. A radio 
receiver-scanner and electronic data logger were stationed on the 
cliffs above each haul-out site and recorded the presence of any radio 
tagged seal every 15 min while the seals are hauled out of the water. 
The time of arrival, time of departure, and time on shore, could be 
calculated from the data collected by the telemetry system.
    The main influence on the daily haul-out patterns of harbor seals 
on south VAFB was the time of day (r\2\ = 0.72; n = 423) rather than 
tide height (r\2\ = 0.23; n = 423), as the peak number of seals hauled 
out occurred daily between 1100 and 1700 hours. Haul-out behavior was 
also influenced by combinations of high tide and large swell or high 
temperature and no wind. Either of these combinations may cause seals 
not to haul out at all or to leave the haul-out site early. Seals 
remained on shore for 8.1 hr plus or minus 1.6 hr (range 1.2 - 14.7 
hr). There was no significant difference in the time of day or duration 
of hauling out between south VAFB and Point Conception (t-test, P>.05).
    Site fidelity, which is defined herein as an individual's continued 
use of the same haul-out area for at least 6 months, was high at both 
south VAFB and Point Conception. The mean site fidelity at VAFB was 77 
percent (adults 84 percent, juveniles 72 percent, and pups 63 percent), 
and at Point Conception was 71 percent (adults 81 percent, juveniles 74 
percent, and pups 53 percent). The trend of increasing site fidelity 
with age is common in all harbor seal populations, as young seals 
cannot compete for haul-out space with adults, and move to other less 
preferred haul-out sites (Kovacs et al., 1990; Suryan and Harvey, 
1998). There have been four juveniles tagged at Point Conception that 
have moved to VAFB, but no juveniles have moved from VAFB to Point 
Conception.
    The total population of harbor seals at VAFB in 2002 was estimated 
to be 1,115 (850 on south VAFB and 265 on north VAFB; SRS Technologies, 
2003a), using telemetry data to correct for seals that were at sea 
during the census. A correction factor of 1.7 times the ground count 
was used. From 2000 through 2007 there were three to seven SLV launches 
per year (average of 4.4 SLV launches annually), and there appeared to 
be only short-term disturbance effects to harbor seals as a result of 
launch noise. The harbor seal population increased from 1997 to 2002 at 
an annual rate of 12.7 percent; however, the number of total harbor 
seals on south VAFB was lower in 2007 (356 seals) than 2006 (511 
seals). The only decrease in the population during the 1997 to 2002 
period occurred during the 1998 El Nino season, when there was a 13.6 
percent decrease from the previous year. The number of harbor seal pups 
observed increased at a rate of 26.7 percent annually through 2003, 
except during the El Nino events. The number of pups on south VAFB 
continued to increase from 2004 through 2006 (high of 53 pups) but fell 
again in 2007 (38 pups). Pup production grew at a rate of 7.9 percent 
at Point Conception through 2006, except during El Nino events. Point 
Conception has limited area where females and pups can haul out without 
being harassed by other seals or exposed to high tides and swells. 
There are more haul-out areas for females with pups at VAFB; therefore 
only an El Nino type disturbance, which includes weather and food 
availability effects, should affect pup production at VAFB.

Auditory Brainstem Response (ABR) Tests

    To determine if harbor seals experience changes in their hearing 
sensitivity as a result of launch noise, ABR testing was conducted on 
18 harbor seals for four Titan IV launches, one Taurus launch, and one 
Delta IV launch.
    Following standard ABR testing protocol, the ABR was measured from 
one ear of each seal using sterile, sub-dermal, stainless steel 
electrodes. A conventional electrode array was used, and low-level 
white noise was presented to the non-tested ear to reduce any 
electrical potentials generated by the non-tested ear. A Bio-logic 
Systems Corporation evoked potential computer was used to produce the 
click and an 8 kilohertz (kHz) tone burst stimuli, through standard 
audiometric headphones. Over 1,000 ABR waveforms were collected and 
averaged per trial. Initially the stimuli were presented at sound 
pressure levels (SPL) loud enough to obtain a clean reliable waveform, 
and then decreased in 10 dB steps until the response was no longer 
reliably observed. Once response was no longer reliably observed, the 
stimuli were then increased in 10 dB steps to the original SPL. By 
obtaining two ABR waveforms at each SPL, it was possible to quantify 
the variability in the measurements.
    Good replicable responses were measured from most of the seals, 
with waveforms following the expected pattern of an increase in latency 
and decrease in amplitude of the peaks, as the stimulus level was 
lowered. One seal had substantial decreased acuity to the 8 kHz tone-
burst stimuli prior to the launch. The cause of this hearing loss was 
unknown but was most likely

[[Page 77584]]

congenital or from infection. Another seal had a great deal of 
variability in waveform latencies in response to identical stimuli. 
This animal moved repeatedly during testing, which may have reduced the 
sensitivity of the ABR testing on this animal for both the click and 8 
kHz tone burst stimuli. Two of the seals were released after pre-launch 
testing but prior to the launch of the Titan IV B-34, as the launch was 
delayed for many days, and five days is the maximum duration permitted 
to hold the seals for testing.
    Detailed analysis of the changes in waveform latency and waveform 
replication of the ABR measurements for the 14 seals, showed no 
detectable changes in the seals' hearing sensitivity as a result of 
exposure to the launch noise. The delayed start (1.75 to 3.5 hr after 
the launches) for ABR testing allows for the possibility that the seals 
may have recovered from a TTS before testing began. However, it can be 
said with confidence that the post-launch tested animals did not have 
permanent hearing changes due to exposure to the launch noise from the 
Titan IV, Taurus, or Delta IV SLVs. These results are consistent with 
previous NMFS conclusions for such activities in its prior rulemakings 
(63 FR 39055, July 21, 1998; 69 FR 5720, February 6, 2004).
    NMFS also notes 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 as a result of the 
activities from VAFB, because of the infrequent nature and short 
duration of the noise, including the occasional sonic boom. Research 
indicates 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 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 NCI. The noise 
may cause TTS in hearing depending on exposure levels, but no PTS is 
anticipated.

Numbers of Marine Mammals Estimated to be Taken by Harassment

    The marine mammal species NMFS believes likely to be taken by Level 
B harassment incidental to launch and aircraft and helicopter 
operations at VAFB are harbor seals, California sea lions, northern 
elephant seals, and northern fur seals. All of these species are 
protected under the MMPA, and none are listed under the Endangered 
Species Act (ESA). Numbers of animals that may be taken by Level B 
harassment are expected to vary due to factors such as type of SLV, 
location of the sonic boom, weather conditions (which can influence the 
size of the sonic boom), the time of day, and the time of year. For 
this reason, ranges are given for the harassment estimates of marine 
mammals. Aircraft operations will occur frequently but will avoid 
pinniped haul-out areas and are unlikely to disturb pinnipeds.
    As noted earlier, sightings of Steller sea lions and Guadalupe fur 
seals have been extremely rare the last few decades or low at VAFB and 
on the NCI. Therefore, no takes by harassment are anticipated for 
either of these species incidental to the proposed activities.

Estimated Takes at VAFB

    Harbor seals: As many as 600 harbor seals per launch may be taken. 
Depending on the type of rocket being launched, the time of day, time 
of the year, weather conditions, tide and swell conditions, the number 
of seals that may be taken will range between 0 and 600. Launches and 
aircraft operations may occur at any time of the year so any age 
classes and gender may be taken.
    California sea lions: As many as 200 sea lions per launch may be 
taken. Sea lions at VAFB are usually juveniles of both sexes and sub-
adult males that haul out in the fall during the post breeding 
dispersal. Births generally do not occur at VAFB, but five pups were 
observed at VAFB in 2003, an El Nino year, although all were abandoned 
by their mothers and died within several days of birth. Sick or 
emaciated weaned pups may also haul out briefly. The number of sea 
lions that may be taken will range between 0 and 200.
    Northern elephant seals: As many as 200 elephant seals per launch 
may be taken. Weaned elephant seal pups, juveniles, or young adults of 
both sexes, may occasionally haul out at VAFB for several days to rest 
or as long as 30 days to molt. Injured or sick seals may also haul out 
briefly. The number of northern elephant seals that may be taken will 
range between 0 and 200.
    Northern fur seals: There are no reports of northern fur seals at 
VAFB. Therefore, it is unlikely that any fur seals will be taken.

Estimated Takes on the NCI

    Sonic booms created by SLVs may impact marine mammals on the NCI, 
particularly SMI. Missile launches utilize westward trajectories so do 
not cause sonic boom impacts to the NCI. The PCBoom sonic boom modeling 
program will continue to be used to predict the area of sonic boom 
impact and magnitude of the sonic boom on the NCI based on the launch 
vehicle, speed, trajectory, and meteorological conditions. Prior to 
each SLV launch, a predictive sonic boom map of the impact area and 
magnitude of the sonic boom will be generated. Based on previous 
monitoring of sonic booms created by SLVs on SMI (Thorson et al., 
1999a: 1999b), it is estimated that as much as approximately 25 percent 
of the marine mammals may be disturbed on SMI (Thorson et al., 1999a; 
1999b). Most sonic booms that reach SMI are small (<1 psf), although 
larger sonic booms are possible, but rarely occur. A conservative take 
estimate of as much as 25 percent of the animals present is used for 
each species per launch.
    Harbor seals: As many as 200 harbor seals of all age classes and 
sexes may be taken per launch on the NCI. The number of harbor seals 
that may be taken will range between 0 and 200.
    California sea lions: As many as 5,800 sea lion pups and 2,500 
juvenile and adult sea lions of either sex may be taken on the NCI per 
launch. The number of sea lions that may be taken will range between 0 
and 8,300.
    Northern elephant seals: As many as 3,000 northern elephant seal 
pups and 10,000 northern elephant seals of all age classes and sexes 
may be taken per launch on the NCI. The number of elephant seals that 
may be taken will range between 0 and 13,000.
    Northern fur seals: As many as 300 northern fur seal pups and 1,100 
juvenile and adult northern fur seals of both sexes may be taken per 
launch at SMI. The number of fur seals that may be taken will range 
between 0 and 1,400.
    With the incorporation of mitigation measures proposed later in 
this document, the USAF and NMFS expect that only Level B incidental 
harassment may occur as a result of the proposed activities and that 
these events will result in no detectable impact on marine mammal 
species or stocks or on their habitats.

Potential Effects of Specified Activities on Marine Mammal Habitat

    Impacts on marine mammal habitat are part of the consideration in 
making a finding of negligible impact on the species and stocks of 
marine mammals. Habitat includes, but is not necessarily limited to, 
rookeries, mating grounds, feeding areas, and areas of similar

[[Page 77585]]

significance. Only short-term disturbance of marine mammals is expected 
as a result of the proposed activities. No impacts to marine mammal 
habitats are anticipated on VAFB or the NCI.

Potential Effects of Specified Activities on Subsistence Needs

    NMFS has preliminarily determined that the issuance of an LOA for 
USAF space vehicle and missile launches and aircraft and helicopter 
operations at VAFB would not have an unmitigable adverse impact on the 
availability of the affected species or stocks for subsistence use 
since there are no such uses for these pinniped species in California.

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 haul-outs 
and 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 concerns or launch 
trajectories, holders of LOAs must schedule launches to avoid, whenever 
possible, launches during the harbor seal pupping season of March 
through June. NMFS also proposes to expand the requirement so that the 
USAF must avoid, whenever possible, launches which are predicted to 
produce a sonic boom on the NCI during harbor seal, elephant seal, 
California sea lion, and northern fur seal 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, the USAF 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 (30 SW, 2008c). The USAF 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 VAFB

    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. Also, the third Delta IV launch will be 
monitored, and ABR testing of seals in close proximity to the launch is 
planned. The testing will be authorized under a scientific research 
permit issued under Section 104 of the MMPA. Such work is currently 
conducted under Permit No. 859-1680-01, which expires on January 1, 
2009. The USAF has submitted an application to NMFS for issuance of a 
new scientific research permit to continue the ABR tests, as well as 
other research projects. The ABR tests would be required once NMFS 
issues the Section 104 research permit. NMFS estimates that the tests 
would be required for years 2-5 of these proposed regulations.
    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 2 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 90 days of the launch.

Monitoring for the NCI

    Monitoring will be conducted on the NCI (San Miguel, Santa Cruz, 
and Santa Rosa Islands) whenever a sonic boom over 1 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 2 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 90 days of the launch.

Reporting

    A report containing the following information must be submitted to 
NMFS within 90 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

[[Page 77586]]

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.
    If a freshly dead or seriously injured pinniped is found during 
post-launch monitoring, the incident must be reported within 48 hours 
to the NMFS Office of Protected Resources and the NMFS Southwest 
Regional Office.
    An annual report must be submitted to NMFS at the time of renewal 
of the LOA described in Sec.  216.127, that describes any incidental 
takings under an LOA not reported in the 90-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.

ESA

    In December, 2003, NMFS determined that these activities are not 
likely to adversely affect any species or their habitats that are 
listed as threatened or endangered under the ESA. Therefore, 
consultation under section 7 of the ESA is not required.

NEPA

    The USAF prepared a Final EA and issued a Finding of No Significant 
Impact (FONSI) in 1997 as part of its application for an incidental 
take authorization. On March 1, 1999 (64 FR 9925), NMFS adopted this EA 
as provided for by the Council on Environmental Quality regulations. In 
2003, NMFS prepared its own EA and issued a FONSI for the final rule 
issued in February, 2004. NMFS has prepared a new Draft EA for issuance 
of regulations and annual LOAs to the USAF for these proposed 
activities. The Draft EA will be made available for public comment 
concurrently with these proposed regulations (see ADDRESSES). NMFS will 
either finalize the EA and prepare a FONSI or prepare an Environmental 
Impact Statement prior to issuance of the final rule.

Coastal Zone Management Act Consistency

    The USAF conducts separate consultations with the California 
Coastal Commission (CCC) for each launch activity, as each one is 
considered a separate Federal action. Past consultations between the 
USAF and the CCC have indicated that activities from VAFB similar to 
those described in this document are consistent to the maximum extent 
practicable with the enforceable policies of the California Coastal Act 
(CCA). The USAF is in consultation with the CCC for those launch 
activities that have not yet been found to be consistent with the CCA. 
Therefore, NMFS has preliminarily determined that the activities 
described in this document are consistent to the maximum extent 
practicable with the enforceable policies of the CCA.

National Marine Sanctuaries Act

    NMFS has preliminarily determined that this action is not likely to 
destroy, cause the loss of, or injure any national marine sanctuary 
resources. NMFS will conclude any necessary consultation with the 
National Ocean Service's Office of National Marine Sanctuaries prior to 
issuance of the final rule.

Preliminary Determinations

    NMFS has preliminarily determined that the launching of SLVs, 
ICBMs, and small missiles and aircraft and helicopter operations at 
VAFB, as described in this document and in the application for 
regulations and subsequent LOAs, will result in no more than Level B 
harassment of harbor seals, California sea lions, northern elephant 
seals, and northern fur seals. The effects of these military readiness 
activities from VAFB will be limited to short term and localized 
changes in behavior, including temporarily vacating haul-outs, and 
possible TTS in the hearing of any pinnipeds that are in close 
proximity to a launch pad at the time of a launch. NMFS has also 
preliminarily determined that any takes will have no more than a 
negligible impact on the affected species and stocks. No take by injury 
and/or death is anticipated, and the potential for permanent hearing 
impairment is unlikely. Harassment takes will be at the lowest level 
practicable due to incorporation of the mitigation measures mentioned 
previously in this document. NMFS has proposed regulations for these 
exercises that prescribe the means of affecting the least practicable 
adverse impact on marine mammals and their habitat and set forth 
requirements pertaining to the monitoring and reporting of that taking. 
Additionally, the launch activities and aircraft and helicopter 
operations will not have an unmitigable adverse impact on the 
availability of marine mammal stocks for subsistence use, as there are 
no subsistence uses of these four pinniped species in California 
waters.

Classification

    Pursuant to the procedures established to implement section 6 of 
Executive Order 12866, the Office of Management and Budget has 
determined that this proposed rule is not significant.
    Pursuant to section 605(b) of the Regulatory Flexibility Act, 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. 
The 30th SW, USAF, is the entity that will be affected by this 
rulemaking, not a small governmental jurisdiction, small organization 
or small business, as defined by the Regulatory Flexibility Act. As a 
result, NMFS concludes the action would not result in a significant 
economic impact on a substantial number of small entities.

List of Subjects in 50 CFR Part 216

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

    Dated: December 15, 2008.
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 TAKE OF MARINE MAMMALS 
INCIDENTAL TO SPECIFIED ACTIVITIES

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

    Authority: 16 U.S.C. 1361 et seq.
    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.

[[Page 77587]]

216.124 Mitigation.
216.125 Requirements for monitoring and reporting.
216.126 Applications for Letters of Authorization.
216.127 Letters of Authorization.
216.128 Renewal of Letters of Authorization.
216.129 Modifications of Letters of Authorization.

Subpart K--Taking Of Marine Mammals Incidental To Space Vehicle And 
Test Flight Activities


Sec.  216.120  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the incidental taking 
of those marine mammals specified in paragraph (b) of this section by 
the 30th Space Wing, United States Air Force, and those persons it 
authorizes to engage in:
    (1) Launching up to 30 space and missiles vehicles each year from 
Vandenberg Air Force Base, for a total of up to 150 missiles and 
rockets over the 5-year period of these regulations,
    (2) Launching up to 20 rockets each year from Vandenberg Air Force 
Base, for a total of up to 100 rocket launches over the 5-year period 
of these regulations,
    (3) Aircraft flight test operations, and
    (4) Helicopter operations from Vandenberg Air Force Base.
    (b) The incidental take of marine mammals on Vandenberg Air Force 
Base and in waters off southern California, under the activity 
identified in paragraph (a) of this section, is limited to the 
following species: Harbor seals (Phoca vitulina); California sea lions 
(Zalophus californianus); northern elephant seals (Mirounga 
angustirostris); and northern fur seals (Callorhinus ursinus).


Sec.  216.121  Effective dates.

    Regulations in this subpart are effective from February 7, 2009, 
through February 6, 2014.


Sec.  216.122  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec.  216.106 
and 216.127, 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 the 
activity is in compliance with all terms, conditions, and requirements 
of these regulations and the appropriate Letter of Authorization.
    (b) The taking of marine mammals is authorized for the species 
listed in Sec.  216.120(b) and is limited to Level B Harassment.


Sec.  216.123  Prohibitions.

    Notwithstanding takings contemplated in Sec.  216.120 and 
authorized by a Letter of Authorization issued under Sec. Sec.  216.106 
and 216.127, no person in connection with the activities described in 
Sec.  216.120 may:
    (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 
taking 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 this subpart or a Letter of Authorization issued under 
Sec. Sec.  216.106 and 216.127.


Sec.  216.124  Mitigation.

    (a) The activity identified in Sec.  216.120(a) must be conducted 
in a manner that minimizes, to the greatest extent practicable, adverse 
impacts on marine mammals and their habitats. When conducting 
operations identified in Sec.  216.120(a), the mitigation measures 
contained in the Letter of Authorization issued under Sec. Sec.  
216.106 and 216.127 must be implemented. These mitigation measures 
include (but are not limited to):
    (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 haul-
outs and 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) Vandenberg Air Force Base must avoid, whenever possible, 
launches which are predicted to produce a sonic boom on the Northern 
Channel Islands during harbor seal, elephant seal, California sea lion, 
and northern fur seal pupping seasons of March through June.
    (4) If post-launch surveys determine that an injurious or lethal 
take of a marine mammal has occurred, the launch procedure and the 
monitoring methods must be reviewed, in cooperation with the National 
Marine Fisheries Service (NMFS), and appropriate changes must be made 
through modification to a Letter of Authorization, prior to conducting 
the next launch under that Letter of Authorization.
    (5) Additional mitigation measures as contained in a Letter of 
Authorization.
    (b) [Reserved]


Sec.  216.125  Requirements for monitoring and reporting.

    (a) Holders of Letters of Authorization issued pursuant to 
Sec. Sec.  216.106 and 216.127 for activities described in Sec.  
216.120(a) are required to cooperate with NMFS, and any other Federal, 
state or local agency with authority to monitor 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, NMFS, by letter or telephone, at 
least 2 weeks prior to activities possibly involving the taking of 
marine mammals. If the authorized activity identified in Sec.  
216.120(a) is thought to have resulted in the mortality or injury of 
any marine mammals or in any take of marine mammals not identified in 
Sec.  216.120(b), then the Holder of the Letter of Authorization must 
notify the Director, Office of Protected Resources, NMFS, or designee, 
by telephone (301-713-2289), within 48 hours of the discovery of the 
injured or dead animal.
    (b) Holders of Letters of Authorization must designate qualified, 
on-site individuals approved in advance by NMFS, 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 haul-out, for at least 72 hours prior to any planned launch 
occurring during the harbor seal pupping season (1 March through 30 
June) and continue for a period of time not less than 48 hours 
subsequent to launching.
    (2) For launches during the harbor seal pupping season (March 
through June), conduct follow-up surveys within 2 weeks of the launch 
to ensure that there were no adverse effects on any marine mammals,
    (3) Monitor haul-out sites on the Northern Channel Islands, if it 
is determined by modeling that a sonic boom of greater than 1 psf could 
occur in those areas (this determination will be made in consultation 
with NMFS),
    (4) Investigate the potential for spontaneous abortion, disruption 
of effective female-neonate bonding, and other reproductive 
dysfunction,

[[Page 77588]]

    (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 surveys are required 
that record the species, number of animals, general behavior, presence 
of pups, age class, gender and reaction to launch noise, sonic booms or 
other natural or human caused disturbances, in addition to recording 
environmental conditions such as tide, wind speed, air temperature, and 
swell.
    (c) Holders of Letters of Authorization must conduct additional 
monitoring as required under an annual Letter of Authorization.
    (d) Holders of Letters of Authorization must submit a report to the 
Southwest Administrator, NMFS, within 90 days after each launch. This 
report must contain the following information:
    (1) Date(s) and time(s) of the launch,
    (2) Design of the monitoring program, and
    (3) Results of the monitoring program, including, but not 
necessarily limited to:
    (i) Numbers of pinnipeds present on the haul-out 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 pinnipeds remained off the haul-out or 
rookery,
    (iv) Numbers of pinniped adults, juveniles or pups that may have 
been injured or killed as a result of the launch, and
    (v) Behavioral modifications by pinnipeds that were likely the 
result of launch noise or the sonic boom.
    (e) An annual report must be submitted at the time of renewal of 
the Letter of Authorization.
    (f) A final report must be submitted at least 180 days prior to 
expiration of these regulations. This report will:
    (1) Summarize the activities undertaken and the results reported in 
all previous reports,
    (2) Assess the impacts at each of the major rookeries,
    (3) Assess the cumulative impacts on pinnipeds and other marine 
mammals from Vandenberg activities, and
    (4) State the date(s), location(s), and findings of any research 
activities related to monitoring the effects on launch noise and sonic 
booms on marine mammal populations.


Sec.  216.126  Applications for Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the U.S. citizen (as defined by Sec.  216.103) conducting 
the activity identified in Sec.  216.120(a) (30th Space Wing, U.S. Air 
Force) must apply for and obtain either an initial Letter of 
Authorization in accordance with Sec.  216.127 or a renewal under Sec.  
216.128.
    (b) The application must be submitted to NMFS at least 30 days 
before the activity is scheduled to begin.
    (c) Applications for a Letter 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 pinnipeds.


Sec.  216.127  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but must be renewed annually subject to annual renewal 
conditions in Sec.  216.128.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact on the 
species, its habitat, and on the availability of the species for 
subsistence uses (i.e., mitigation); and
    (3) Requirements for mitigation, monitoring and reporting.
    (c) Issuance and renewal of the Letter of Authorization will be 
based on a determination that the total number of marine mammals taken 
by the activity as a whole will have no more than a negligible impact 
on the affected species or stock of marine mammal(s).


Sec.  216.128  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec.  216.106 and Sec.  
216.127 for the activity identified in Sec.  216.120(a) will be renewed 
annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  216.126 will be undertaken and that 
there will not be a substantial modification to the described work, 
mitigation or monitoring undertaken during the upcoming 12 months;
    (2) Timely receipt of the monitoring reports required under Sec.  
216.125(d) and (e), and the Letter of Authorization issued under Sec.  
216.127, which has been reviewed and accepted by NMFS; and
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec. Sec.  216.124 and 216.125 and 
the Letter of Authorization issued under Sec. Sec.  216.106 and 
216.127, were undertaken and will be undertaken during the upcoming 
annual period of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec. Sec.  216.106 and 216.128 indicates that a substantial 
modification to the described work, mitigation or monitoring undertaken 
during the upcoming season will occur, NMFS will provide the public a 
period of 30 days for review and comment on the request. Review and 
comment on renewals of Letters of Authorization are restricted to:
    (1) New cited information and data indicating that the 
determinations made in this document are in need of reconsideration, 
and
    (2) Proposed changes to the mitigation and monitoring requirements 
contained in these regulations or in the current Letter of 
Authorization.
    (c) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register.


Sec.  216.129  Modifications of Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS, issued pursuant to Sec. Sec.  216.106 
and 216.127 and subject to the provisions of this subpart shall be made 
until after notification and an opportunity for public comment has been 
provided. For purposes of this paragraph, a renewal of a Letter of 
Authorization under Sec.  216.128, without modification (except for the 
period of validity), is not considered a substantive modification.
    (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 inSec.  216.120(b), a Letter of 
Authorization issued pursuant to Sec. Sec.  216.106 and 216.127 may be 
substantively modified without prior notification and an opportunity 
for public comment. Notification will be

[[Page 77589]]

published in the Federal Register within 30 days subsequent to the 
action.
[FR Doc. E8-30237 Filed 12-18-08; 8:45 am]
BILLING CODE 3510-22-S