[Federal Register Volume 69, Number 25 (Friday, February 6, 2004)]
[Rules and Regulations]
[Pages 5720-5728]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2414]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 031112277-4018-02; 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: Final rule.

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SUMMARY: NMFS, upon application from the U.S. Air Force (USAF), is 
issuing regulations to govern the unintentional takings of small 
numbers of marine mammals incidental to space vehicle and test flight 
activities from Vandenberg Air Force Base, CA (VAFB) over a 5-year 
period. Issuance of regulations is required by the Marine Mammal 
Protection Act (MMPA) when the Secretary of Commerce (Secretary), after 
notice and opportunity for comment, finds, as here, that such takes 
will have a negligible impact on the species or stocks of marine 
mammals and will not have an unmitigable adverse impact on their 
availability for subsistence uses. These regulations prescribe methods 
of taking and other means of effecting the least practicable adverse 
impact on marine mammal species and their habitat, and on the 
availability of the species for subsistence uses.

DATES: Effective from February 6, 2004, through February 6, 2009.

ADDRESSES: A copy of the USAF application, which contains a list of the 
references used in this document, may be obtained by writing to P. 
Michael Payne, 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). NMFS' Administrative 
Record for this action will be maintained at the above address. Copies 
of letters and documents are available from this address.

FOR FURTHER INFORMATION CONTACT: Kimberly Skrupky (301) 713-2322, ext. 
163.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(A) of the Marine Mammal Protection Act (MMPA) (16 
U.S.C. 1361 et seq.) directs the Secretary of Commerce (Secretary) to 
allow, upon request, the incidental, but not intentional taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and regulations are 
issued.
    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) of affected marine mammals, and will not have 
an unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses, and if regulations are prescribed 
setting forth the permissible methods of taking and the requirements 
pertaining to the monitoring and reporting of such taking. NMFS has 
defined ``negligible impact'' in 50 CFR 216.103 as:
    an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.
    Under section 18(A), 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. These 
regulations will allow NMFS to issue annual Letters of Authorization 
(LOAs) to the USAF. The current regulations and LOA expired 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 
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

[[Page 5721]]

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. 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

[[Page 5722]]

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 vehicle 
configurations 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 (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.

[[Page 5723]]

    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.

Comments and Responses

    On September 19, 2003 (68 FR 54894), NMFS published a notice of 
receipt of application and on December 3, 2003 (68 FR 67629) NMFS 
published a notice of proposed rulemaking on the USAF's application for 
an incidental take authorization and requested comments, information 
and suggestions concerning the request. During the public comment 
period, NMFS received comments from the Marine Mammal Commission 
(Commission). The Commission supports NMFS' intent to implement 
incidental take regulations for the USAF's activities at VAFB provided 
that regulations are incorporated into the proposal.
    Comment: The Commission supports NMFS' small take regulations for 
these activities, provided that the research, mitigation, and 
monitoring activities described in the application are incorporated 
into the regulations. The Commission notes that the applicant's 
research, reporting, and monitoring efforts under the previous 
regulations indicate that the haul-out behavior of harbor seals is 
apparently unaffected by launch operations, and that the animals do not 
seem to have incurred any permanent hearing damage as a result of space 
vehicle launches at the VAFB. NMFS amended those regulations on 22 
January 2002 to require that biological monitoring be conducted only 
during Pacific harbor seal pupping season (67 FR 2820). The current 
application states that a research program to study the effects of 
space launch vehicle and missile launch noise and sonic booms on the 
behavior, hearing ability, and population dynamics of pinnipeds at VAFB 
and the northern Channel Islands was begun in 1997, and, if the 
requested authorization is issued, would continue through 2008.
    Response: NMFS is requiring all research, mitigation, and 
monitoring activites described in the USAF's application. NMFS is also 
requiring the USAF to continue their research program on VAFB to study 
the behavior of pinnipeds during launches.

Specified Geographic Region and 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,

[[Page 5724]]

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).
    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).

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

[[Page 5725]]

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 estimates of marine mammals.

Effects of Target 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.

Effects of Target Missile Launches and Associated Activities on 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. 
These activities 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, which NMFS has incorporated 
into its regulations.
    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 LOAs must 
schedule launches to avoid, whenever possible, launches during the 
harbor seal pupping season of March through June. NMFS is also 
expanding the requirement so that VAFB must avoid, whenever possible, 
launches that 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 will be made prior to 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 prior 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.
    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) 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

[[Page 5726]]

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 
measured 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 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 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 VAFB's application, the Environmental Assessment, and 
this document, and taking into consideration the comments submitted on 
the application and proposed regulations, NMFS has determined that it 
will authorize the taking, by Level B harassment, of small numbers of 
marine mammals incidental to to rocket and missile launch operations 
and aircraft overflights at VAFB. The total taking of marine mammals by 
Level B harassment 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 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 hearing impairment 
is unlikely. NMFS has determined that the requirements of section 
101(a)(5)(A) of the MMPA have been met and the LOAs can be issued.

Changes From the Proposed Rule

    At the proposed rule stage, NMFS did not publish the full text for 
Subpart K in Chapter II of title 50 of the Code of Federal Regulations 
and only published those paragraphs that were being modified from the 
original rule (64 FR 9925, March 1, 1999). Since this rule expired on 
December 31, 2003, and was removed and reserved by the Office of the 
Federal Register, NMFS is publishing the entire text in this document.

National Environmental Policy Act (NEPA)

    NMFS has prepared an EA and made a Finding of No Significant Impact 
(FONSI). Therefore, preparation of an environmental impact statement on 
this action is not required. A copy of the EA and FONSI are available 
upon request (see ADDRESSES).

ESA

    Under section 7 of the ESA, NOAA Fisheries has concluded that these 
activities are not likely to adversely affect species listed under the 
ESA.

CZMA 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.

National Marine Sanctuaries Act

    This action is not likely to destroy, cause the loss of, or injure 
any national marine sanctuary resources. Therefore, consultation was 
not required.

Classification

    This action has been determined to be not significant for purposes 
of Executive Order 12866.
    Under 5 U.S.C. 553(d), an agency may waive the required 30-day 
delay in effectiveness date if it finds that there is good cause for 
doing so. VAFB has a Taurus (SLC 576-E) launch scheduled for Feb 26, 
2004, which falls within 30 days of the publication date of this final 
rule. Many, if not most, space missions require a particular orbit for 
the payload, and getting into that orbit can be closely tied to the 
time of year or even time of day. Therefore, delaying this launch could 
mean that it will miss its launch opportunity for an entire year. In 
addition, a delay could cost up to hundreds of thousands of dollars per 
day, depending on various factors, including the cost of maintaining 
the vehicle and payload in ready condition and the number of personnel 
in the launch crew. A launch delay also could lead to increased risks 
for personnel if there is increased handling time for hazardous 
materials or ordnance that has to be deactivated or offloaded, 
depending on the stage of launch preparations at the time of delay. 
NMFS does not believe that it is necessary to require delay or 
cancellation of the scheduled launch under the circumstances. The 
mitigation and monitoring required by this final rule are for the 
benefit and protection of marine mammals, and these measures are 
substantially similar to the measures contained in the 5-year final 
rule that expired on December 31, 2003. VAFB is

[[Page 5727]]

the only entity regulated by this rule. VAFB expressly requested that 
NMFS issue the rule and regulations and is both willing and able to 
comply with the requirements of NMFS' final regulations and LOA, as 
they were during the course of the previous rule and regulations, 
within the 30-day window. Therefore, NMFS has determined that there is 
good cause to waive the delay in effectiveness date for this final 
rule.
    At the proposed rule stage, the Chief Counsel for Regulation of the 
Department of Commerce 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.

List of Subjects in 50 CFR Part 216

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

    Dated: January 30, 2004.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
For reasons set forth in the preamble, 50 CFR part 216 is added to read 
as follows:

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

0
1. The authority citation for part 216 continues to read as follows:

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

0
2. Subpart K is added to part 216 to read as follows:
Subpart K--Taking of Marine Mammals Incidental to Space Vehicle and 
Test Flight Activities
Sec.
216.120 Specified activity and specified geographical region.
216.121 Effective dates.
216.122 Permissible methods of taking.
216.123 Prohibitions.
216.124 Mitigation.
216.125 Requirements for monitoring and reporting.
216.126 Applications for Letters of Authorization.
216.127 Renewal of Letters of Authorization.
216.128 Modifications of Letters of Authorization.

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 
U.S. citizens engaged in:
    (1) Launching up to 30 space and missiles vehicles each year from 
Vandenberg Air Force Base, for a total of up to 150 missiles and 
rockets over the 5-year period of these regulations,
    (2) Launching up to 20 rockets each year from Vandenberg Air Force 
Base, for a total of up to 100 rocket launches over the 5-year period 
of these regulations,
    (3) Aircraft flight test operations, and
    (4) Helicopter operations from Vandenberg Air Force Base.
    (b) The incidental take of marine mammals on Vandenberg Air Force 
Base and in waters off southern California, under the activity 
identified in paragraph (a) of this section, is limited to the 
following species: Harbor seals (Phoca vitulina), California sea lions 
(Zalophus californianus), northern elephant seals (Mirounga 
angustirostris), and northern fur seals (Callorhinus ursinus).


Sec.  216.121  Effective dates.

    Regulations in this subpart are effective from February 6, 2004, 
through February 6, 2009.


Sec.  216.122  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec.  
216.106, the 30th Space Wing, U.S. Air Force, its contractors, and 
clients, may incidentally, but not intentionally, take marine mammals 
by harassment, within the area described in Sec.  216.120, provided all 
terms, conditions, and requirements of these regulations and such 
Letter(s) of Authorization are complied with.
    (b) [Reserved]


Sec.  216.123  Prohibitions.

    No person in connection with the activities described in Sec.  
216.120 shall:
    (a) Take any marine mammal not specified in Sec.  216.120(b);
    (b) Take any marine mammal specified in Sec.  216.120(b) other than 
by incidental, unintentional harassment;
    (c) Take a marine mammal specified in Sec.  216.120(b) if such take 
results in more than a negligible impact on the species or stocks of 
such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or a Letter of Authorization issued 
under Sec.  216.106.


Sec.  216.124  Mitigation.

    (a) The activity identified in Sec.  216.120(a) must be conducted 
in a manner that minimizes, to the greatest extent practicable, adverse 
impacts on marine mammals and their habitats. When conducting 
operations identified in Sec.  216.120, the following mitigation 
measures must be utilized:
    (1) All aircraft and helicopter flight paths must maintain a 
minimum distance of 1,000 ft (305 m) from recognized seal haul-outs and 
rookeries (e.g., Point Sal, Purisima Point, Rocky Point), except in 
emergencies or for real-time security incidents (e.g., search-and-
rescue, fire-fighting) which may require approaching pinniped rookeries 
closer than 1,000 ft (305 m).
    (2) For missile and rocket launches, holders of Letters of 
Authorization must avoid, whenever possible, launches during the harbor 
seal pupping season of March through June, unless constrained by 
factors including, but not limited to, human safety, national security, 
or for space vehicle launch trajectory necessary to meet mission 
objectives.
    (3) VAFB must avoid, whenever possible, launches which are 
predicted to produce a sonic boom on the Northern Channel Islands 
during harbor seal, elephant seal, and California sea lion pupping 
seasons, March through June.
    (4) If post-launch surveys determine that an injurious or lethal 
take of a marine mammal has occurred, the launch procedure and the 
monitoring methods must be reviewed, in cooperation with NMFS, and 
appropriate changes must be made through modification to a Letter of 
Authorization, prior to conducting the next launch under that Letter of 
Authorization.
    (5) Additional mitigation measures as contained in a Letter of 
uthorization.
    (b) [Reserved]


Sec.  216.125  Requirements for monitoring and reporting.

    (a) Holders of Letters of Authorization issued pursuant to Sec.  
216.106 for activities described in Sec.  216.120(a) are

[[Page 5728]]

required to cooperate with the National Marine Fisheries Service, and 
any other Federal, state or local agency monitoring the impacts of the 
activity on marine mammals. Unless specified otherwise in the Letter of 
Authorization, the Holder of the Letter of Authorization must notify 
the Administrator, Southwest Region, National Marine Fisheries Service, 
by letter or telephone, at least 2 weeks prior to activities possibly 
involving the taking of marine mammals.
    (b) Holders of Letters of Authorization must designate qualified 
on-site individuals, approved in advance by the National Marine 
Fisheries Service, as specified in the Letter of Authorization, to:
    (1) Conduct observations on harbor seal, elephant seal, and sea 
lion activity in the vicinity of the rookery nearest the launch 
platform or, in the absence of pinnipeds at that location, at another 
nearby haulout, for at least 72 hours prior to any planned launch 
occurring during the harbor seal pupping season (1 March through 30 
June) and continue for a period of time not less than 48 hours 
subsequent to launching,
    (2) For launches during the harbor seal pupping season (March 
through June), conduct follow-up surveys within 2 weeks of the launch 
to ensure that there were no adverse effects on any marine mammals,
    (3) Monitor haul-out sites on the Northern Channel Islands, if it 
is determined by modeling that a sonic boom of greater than 1 psf could 
occur in those areas (this determination will be made in consultation 
with the National Marine Fisheries Service),
    (4) Investigate the potential for spontaneous abortion, disruption 
of effective female-neonate bonding, and other reproductive 
dysfunction,
    (5) Supplement observations on Vandenberg and on the Northern 
Channel Islands with video-recording of mother-pup seal responses for 
daylight launches during the pupping season,
    (6) Conduct acoustic measurements of those launch vehicles that 
have not had sound pressure level measurements made previously, and
    (7) Include multiple surveys each day that record the species, 
number of animals, general behavior, presence of pups, age class, 
gender and reaction to launch noise, sonic booms or other natural or 
human caused disturbances, in addition to recording environmental 
conditions such as tide, wind speed, air temperature, and swell.
    (c) Holders of Letters of Authorization must conduct additional 
monitoring as required under an annual Letter of Authorization.
    (d) The Holder of the Letter of Authorization must submit a report 
to the Southwest Administrator, National Marine Fisheries Service 
within 90 days after each launch. This report must contain the 
following information:
    (1) Date(s) and time(s) of the launch,
    (2) Design of the monitoring program, and
    (3) Results of the monitoring programs, including, but not 
necessarily limited to:
    (i) Numbers of pinnipeds present on the haulout prior to 
commencement of the launch,
    (ii) Numbers of pinnipeds that may have been harassed as noted by 
the number of pinnipeds estimated to have entered the water as a result 
of launch noise,
    (iii) The length of time(s) pinnipeds remained off the haulout or 
rookery,
    (iv) The numbers of pinniped adults or pups that may have been 
injured or killed as a result of the launch, and
    (v) Behavioral modifications by pinnipeds that were likely the 
result of launch noise or the sonic boom.
    (e) An annual report must be submitted at the time of renewal of 
the LOA.
    (f) A final report must be submitted at least 180 days prior to 
expiration of these regulations. This report will:
    (1) Summarize the activities undertaken and the results reported in 
all previous reports,
    (2) Assess the impacts at each of the major rookeries,
    (3) Assess the cumulative impact on pinnipeds and other marine 
mammals from Vandenberg activities, and
    (4) State the date(s), location(s), and findings of any research 
activities related to monitoring the effects on launch noise and sonic 
booms on marine mammal populations.


Sec.  216.126  Applications for Letters of Authorization.

    (a) To incidentally take harbor seals and other marine mammals 
pursuant to these regulations, either the U.S. citizen conducting the 
activity or the 30th Space Wing on behalf of the U.S. citizen 
conducting the activity, must apply for and obtain a Letter of 
Authorization in accordance with Sec.  216.106.
    (b) The application must be submitted to the National Marine 
Fisheries Service at least 30 days before the activity is scheduled to 
begin.
    (c) Applications for Letters of Authorization and for renewals of 
Letters of Authorization must include the following:
    (1) Name of the U.S. citizen requesting the authorization,
    (2) A description of the activity, the dates of the activity, and 
the specific location of the activity, and
    (3) Plans to monitor the behavior and effects of the activity on 
marine mammals.
    (d) A copy of the Letter of Authorization must be in the possession 
of the persons conducting activities that may involve incidental 
takings of seals and sea lions.


Sec.  216.127  Renewal of Letters of Authorization.

    A Letter of Authorization issued under Sec.  216.126 for the 
activity identified in Sec.  216.120(a) will be renewed annually upon:
    (a) Timely receipt of the reports required under Sec.  216.125(d), 
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.


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. 04-2414 Filed 2-5-04; 8:45 am]
BILLING CODE 3510-22-S