5720 Federal Register / Vol. 69, No. 25 / Friday, February 6, 2004 / Rules and Regulations 

report shall include a discussion of the 

advisory committee deliberations.

* * * * *

[FR Doc. 04–2531 Filed 2–5–04; 8:45 am] 

BILLING CODE 6712–01–P

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.

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

Federal Register / Vol. 69, No. 25 / Friday, February 6, 2004 / Rules and Regulations 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 mediumsized 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 Cweighted 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 (μs).

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 Aweighted SEL measurements ranged 

from 123.5 to 128.9 dB with an average 

of 126.6 dB (SLM). The harbor sealweighted 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 Cweighted SELs ranged from 109.6 to 

115.0 dB and averaged 112.5 dB. The Aweighted 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

5722 Federal Register / Vol. 69, No. 25 / Friday, February 6, 2004 / Rules and Regulations 

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 haulout 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 InterContinental 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 midcourse 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.

Federal Register / Vol. 69, No. 25 / Friday, February 6, 2004 / Rules and Regulations 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,

5724 Federal Register / Vol. 69, No. 25 / Friday, February 6, 2004 / Rules and Regulations 

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 Aweighted 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 postlaunch (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 haulout 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 shortduration) 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

Federal Register / Vol. 69, No. 25 / Friday, February 6, 2004 / Rules and Regulations 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, firefighting) 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 haulout 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

5726 Federal Register / Vol. 69, No. 25 / Friday, February 6, 2004 / Rules and Regulations 

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 humancaused 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, followup 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 §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

Federal Register / Vol. 69, No. 25 / Friday, February 6, 2004 / Rules and Regulations 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.

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

1. The authority citation for part 216 

continues to read as follows:

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

otherwise noted.

2. Subpart K is added to part 216 to 

read as follows:

Subpart K—Taking of Marine Mammals 

Incidental to Space Vehicle and Test Flight 

Activities

Sec.

216.120 Specified activity and specified 

geographical region.

216.121 Effective dates.

216.122 Permissible methods of taking.

216.123 Prohibitions.

216.124 Mitigation.

216.125 Requirements for monitoring and 

reporting.

216.126 Applications for Letters of 

Authorization.

216.127 Renewal of Letters of 

Authorization.

216.128 Modifications of Letters of 

Authorization.

Subpart K—Taking of Marine Mammals 

Incidental to Space Vehicle and Test 

Flight Activities

§ 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).

§ 216.121 Effective dates.

Regulations in this subpart are 

effective from February 6, 2004, through 

February 6, 2009.

§ 216.122 Permissible methods of taking.

(a) Under Letters of Authorization 

issued pursuant to § 216.106, the 30th 

Space Wing, U.S. Air Force, its 

contractors, and clients, may 

incidentally, but not intentionally, take 

marine mammals by harassment, within 

the area described in § 216.120, 

provided all terms, conditions, and 

requirements of these regulations and 

such Letter(s) of Authorization are 

complied with.

(b) [Reserved]

§ 216.123 Prohibitions.

No person in connection with the 

activities described in § 216.120 shall:

(a) Take any marine mammal not 

specified in § 216.120(b);

(b) Take any marine mammal 

specified in § 216.120(b) other than by 

incidental, unintentional harassment;

(c) Take a marine mammal specified 

in § 216.120(b) if such take results in 

more than a negligible impact on the 

species or stocks of such marine 

mammal; or

(d) Violate, or fail to comply with, the 

terms, conditions, and requirements of 

these regulations or a Letter of 

Authorization issued under § 216.106.

§ 216.124 Mitigation.

(a) The activity identified in 

§ 216.120(a) must be conducted in a 

manner that minimizes, to the greatest 

extent practicable, adverse impacts on 

marine mammals and their habitats. 

When conducting operations identified 

in § 216.120, the following mitigation 

measures must be utilized:

(1) All aircraft and helicopter flight 

paths must maintain a minimum 

distance of 1,000 ft (305 m) from 

recognized seal haul-outs and rookeries 

(e.g., Point Sal, Purisima Point, Rocky 

Point), except in emergencies or for realtime security incidents (e.g., search-andrescue, 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]

§ 216.125 Requirements for monitoring 

and reporting.

(a) Holders of Letters of Authorization 

issued pursuant to § 216.106 for 

activities described in § 216.120(a) are

5728 Federal Register / Vol. 69, No. 25 / Friday, February 6, 2004 / Rules and Regulations 

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.

§ 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 § 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.

§ 216.127 Renewal of Letters of 

Authorization.

A Letter of Authorization issued 

under § 216.126 for the activity 

identified in § 216.120(a) will be 

renewed annually upon:

(a) Timely receipt of the reports 

required under § 216.125(d), if 

determined by the Assistant 

Administrator to be acceptable; and

(b) A determination that the 

mitigation measures required under 

§ 216.124 and the Letter of 

Authorization have been undertaken.

§ 216.128 Modifications of Letters of 

Authorization.

(a) In addition to complying with the 

provisions of § 216.106, except as 

provided in paragraph (b) of this 

section, no substantive modification, 

including withdrawal or suspension, to 

a Letter of Authorization subject to the 

provisions of this subpart shall be made 

until after notice and an opportunity for 

public comment.

(b) If the Assistant Administrator 

determines that an emergency exists 

that poses a significant risk to the wellbeing of the species or stocks of marine 

mammals specified in § 216.120 (b), a 

Letter of Authorization may be 

substantively modified without prior 

notice and opportunity for public 

comment. A notice will be published in 

the Federal Register subsequent to the 

action.

[FR Doc. 04–2414 Filed 2–5–04; 8:45 am]

BILLING CODE 3510–22–S