Federal Register / Vol. 63, No. 139 /Tuesday, July 21, 1998 / Proposed Rules 39055

450 5th Street, NW, Washington, DC

20549–6009. Comments can be

submitted electronically at the following

E-mail address: rule-comments@sec.gov.

All comment letters should refer to File

No. S7–16–98; include this file number

on the subject line if E-mail is used. All

comments received will be available for

public inspection and copying in the

Commission’s Public Reference Room,

450 5th Street, NW, Washington, DC

20549–6009. Electronically-submitted

comment letters will be posted on the

Commission’s Internet Web site (http://

www.sec.gov).

FOR FURTHER INFORMATION CONTACT:

Michael J. Kigin, Associate Chief

Accountant, Office of the Chief

Accountant, at (202) 942–4400; or David

R. Fredrickson, Assistant General

Counsel, Office of the General Counsel,

at (202) 942–0890.

SUPPLEMENTARY INFORMATION: On June

18, 1998, the Securities and Exchange

Commission proposed for comment an

amendment to Rule 102(e), 17 CFR

201.102(e). The Commission requested

that comments be received by July 20,

1998.

In light of the importance of

comments on this subject, the

Commission believes that extending the

comment period is appropriate. The

extension will permit interested persons

to have additional time to comment on

the matters the release addresses. The

Commission does not anticipate

extending the comment period beyond

August 20, 1998. Therefore, the

comment period for Release No. 33–

7546 is extended to August 20, 1998.

Dated: July 15, 1998.

By the Commission.

Margaret H. McFarland,

Deputy Secretary.

[FR Doc. 98–19372 Filed 7–20–98; 8:45 am]

BILLING CODE 8010–01–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 216

[Docket No. 980629162–8162–01; I.D.

093097E]

RIN 0648–AK42

Taking and Importing Marine

Mammals; Taking Marine Mammals

Incidental to Rocket Launches

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Proposed rule; request for

comment and information.

SUMMARY: NMFS has received a request

from the 30th Space Wing, U.S. Air

Force, for a small take of marine

mammals incidental to missile and

rocket launches, aircraft flight test

operations, and helicopter operations at

Vandenberg Air Force Base, CA

(Vandenberg). By this document, NMFS

is proposing regulations to govern that

take. In order to grant the exemption

and issue the regulations, NMFS must

determine that these takings will have a

negligible impact on the affected species

and stocks of marine mammals. NMFS

invites comment on the application and

the proposed regulations.

DATES: Comments and information must

be postmarked no later than September

4, 1998. Comments on the collection of

information requirement must be

received no later than September 21,

1998.

ADDRESSES: Comments should be

addressed to Michael Payne, Chief,

Marine Mammal Division, Office of

Protected Resources, National Marine

Fisheries Service, 1315 East-West

Highway, Silver Spring, MD 20910–

3226. A copy of the application, a final

Environmental Assessment (EA), a list

of references used in the preparation of

this document, and other documents

mentioned in this proposed rule as

being available may be obtained by

writing to the above address, or

telephoning one of the persons listed

(see FOR FURTHER INFORMATION CONTACT).

Additional supporting technical

documentation is available for viewing,

by appointment, during normal business

hours at either the above address, or at

the Southwest Regional Office, NMFS,

501 West Ocean Blvd. Suite 4200, Long

Beach, CA 90802.

Comments regarding the burden-hour

estimate or any other aspect of the

collection of information requirement

contained in this rule should be sent to

the above individual and to the Office

of Information and Regulatory Affairs,

Office of Management and Budget

(OMB), Attention: NOAA Desk Officer,

Washington, D.C. 20503.

FOR FURTHER INFORMATION CONTACT:

Kenneth R. Hollingshead, Office of

Protected Resources, NMFS, telephone

(301) 713–2055, or Irma Lagomarsino,

Southwest Regional Office, NMFS,

telephone (562) 980–4016.

SUPPLEMENTARY INFORMATION:

Background

Section 101(a)(5)(A) of the Marine

Mammal Protection Act (MMPA)(16

U.S.C. 1361 et seq.) directs the Secretary

of Commerce (Secretary) to allow, upon

request, the incidental, but not

intentional taking of marine mammals

by U.S. citizens who engage in a

specified activity (other than

commercial fishing) within a specified

geographical region if certain findings

are made and regulations are issued.

Permission may be granted for periods

of up to 5 years if the Secretary finds

that the taking will have a negligible

impact on the species or stock(s), will

not have an unmitigable adverse impact

on the availability of the species or

stock(s) for subsistence uses, and

regulations are prescribed setting forth

the permissible methods of taking and

the requirements pertaining to the

monitoring and reporting of such taking.

NMFS has defined ‘‘negligible impact’’

in 50 CFR 216.103 as ‘‘an impact

resulting from the specified activity that

cannot be reasonably expected to, and is

not reasonably likely to, adversely affect

the species or stock through effects on

annual rates of recruitment or survival.’’

Description of Request

On September 30, 1997, NMFS

received an application for an

incidental, small take exemption under

section 101(a)(5)(A) of the MMPA from

the 30th Space Wing, Vandenberg, to

take marine mammals incidental to

missile and rocket launches, aircraft

flight test operations, and helicopter

operations at Vandenberg.

Vandenberg is located on the southcentral coast of California. The base

covers approximately 98,000 acres in

western Santa Barbara County. The

primary missions of the Air Force at

Vandenberg are to launch and track

satellites in space, test and evaluate the

United State’s intercontinental ballistic

missile systems, and support aircraft

operations. As a nonmilitary facet of

operations, Vandenberg is also

committed to promoting commercial

space launch ventures.

Comments and Responses

On November 14, 1997 (62 FR 61077),

NMFS published an advance notice of

proposed rulemaking on the application

and invited interested persons to submit

comments, information, and suggestions

concerning the application, and the

structure and content of regulations if

the application is accepted. During the

30-day comment period on that notice,

no comments were received.

Description of Activities

Vandenberg anticipates a total of 10

launches annually for Minuteman and

Peacekeeper missiles from North

Vandenberg and a total of 20 launches

annually for space launches
39056 Federal Register / Vol. 63, No. 139 /Tuesday, July 21, 1998 / Proposed Rules

1Reference citations can be found either in the

EA or are available upon request from NMFS (see

ADDRESSES).

2Airborne noise measurements are usually

expressed relative to a reference pressure of 20 μPa,

which is 26 dB above the usual underwater sound

pressure reference of 1 μPa. Also, they are often

expressed as broadband A-weighted sound levels

(dBA). A-weighting refers to frequency-dependent

weighting factors applied to sound in accordance

with the sensitivity of the human ear to different

frequencies. While it is unknown whether the

marine mammal ear responds similar to the human

ear, a recent study by C. Malme (pers. commun. to

NMFS, March 5, 1998) found that for predicting

effects, A-weighting is better than flat-weighting

because pinniped highest hearing sensitivity is at

higher frequencies than that of humans. As a result,

whenever possible, NMFS provides both Aweighted and unweighted sound pressure levels;

when both levels are not provided, it is presumed

to represent the unweighted level.

(approximately 6 Delta II, 3 Taurus, 2

Atlas, 3 Titan IV, 2 Titan II, and 4

Lockheed Martin launch vehicles)

primarily from South Vandenberg.

The noise from these launches may

result in the unintentional disturbance

of pinnipeds—considered to be

unintentional, incidental takings under

the MMPA. Such takings are prohibited

by the MMPA unless authorized by

NMFS.

The regulations proposed by this rule

would replace annual incidental

harassment authorizations issued to

Vandenberg under section 101(a)(5)(D)

of the MMPA. These authorizations

have been issued previously for marine

mammal takings incidental to launches

by Lockheed-Martin launch vehicles (62

FR 40335, July 28, 1997), McDonnell

Douglas Aerospace Delta II rocket

launches (61 FR 59218, November 21,

1996), Taurus launches (62 FR 734,

January 6, 1997) and Titan II and Titan

IV launches (61 FR 64337, December 4,

1996). Incidental harassment

authorizations for the latter three

activities were reissued on December

19, 1997 (see 62 FR 67618, December

29, 1997), for an additional 1-year

period or until regulations proposed in

this document become effective and

Letters of Authorization are issued.

These proposed regulations would

also authorize takings incidental to

Minuteman and Peacekeeper missile

launches, aircraft flight tests and

helicopter operations, none of which

have had small take authorizations

previously.

Aircraft test operations include the B–

1 and B–2 bombers, the F–14, F–15, F–

16, and F–22 fighters; and the KC–135

Stratotanker. The frequency for aircraft

testing will be variable. The applicant

anticipates an average of 10 flights/year,

with 4 to 5 passes/flight. The maximum

testing frequency could reach 3 flights/

week.

Helicopter operations provide launch

support, training and base support. Only

about 1 percent, or 13 hours, of the 1300

hours of helicopter operations

scheduled per year would occur over

the Vandenberg coastline.

Description of Habitat and Marine

Mammals Affected by Launch Activities

The Southern California Bight (SCB)

including the Channel Islands, supports

a diverse assemblage of 29 species of

cetaceans (whales, dolphins and

porpoises) and 6 species of pinnipeds

(seals and sea lions). Harbor seals

(Phoca vitulina), California sea lions

(Zalophus californianus), northern

elephant seals (Mirounga angustirostris),

and northern fur seals (Callorhinus

ursinus) breed there, with the largest

rookeries on San Miguel Island (SMI)

and San Nicolas Island (SNI).

Guadalupe fur seals (Arctocephalus

townsendi) may also occasionally

inhabit SCB waters. Until 1977, a small

rookery of Steller sea lions (Eumetopias

jubatus) existed on SMI. However, there

has been no breeding there since 1981

and no sightings on SMI since 1984. A

group of 50 Stellers were observed off

the Vandenberg coast in October 1993

(Roest, 1995). Additional information on

the occurrence of marine mammal

species in areas potentially impacted by

Vandenberg activities is provided in

Barlow et al., (1995 and 1997),1 Roest,

1995, the final EA on this proposed

action (U.S. Air Force, 1997), and in

Federal Register notices on previous

authorizations (60 FR 24840, May 10,

1995 (Lockheed); 60 FR 43120, August

18, 1995 (Delta II); 61 FR 50276,

September 25, 1996 (Taurus); and 61 FR

64337, December 4, 1996 (Titan)). For

further information, please refer to these

documents, which are available upon

request (see ADDRESSES).

Summary of Potential Physical Impacts

The activities under consideration for

small take authorizations under these

regulations create two types of noise:

continuous (but short-duration) noise,

due mostly to combustion effects of

aircraft and launch vehicles, and

impulsive noise, due to sonic boom

effects. Launch operations are the major

source of noise on the marine

environment from Vandenberg. The

operation of launch vehicle engines

produces significant sound levels.

Generally, four types of noise occur

during a launch: (1) Combustion noise

from launch vehicle chambers, (2) jet

noise generated by the interaction of the

exhaust jet and the atmosphere, (3)

combustion noise from the post-burning

of combustion products, and (4) sonic

booms. Launch noise levels are highly

dependent upon the type of first-stage

booster and the fuel used to propel the

vehicle. Therefore, there is a great

similarity in launch noise production

within each size class.

Sonic booms are impulse noises, as

opposed to continuous (but shortduration) noise such as that produced

by aircraft and rocket launches. There is

a significant potential for sonic booms

(i.e., overpressures greater than 0.5

pound/sq.ft (psf)) to occur during

launches of low earth orbit payloads.

These sonic booms can vary from

inconsequential to severe, depending on

the physical aspects of the launch

vehicle, the trajectory of the launch, and

the weather conditions at the time of the

launch. The initial shock wave

propagates along a path that grazes the

earth’s surface due to the angle of the

vehicle and the refraction of the lower

atmosphere. As the launch vehicle

pitches over, the direction of

propagation of the shock wave becomes

more perpendicular to the earth’s

surface. These direct and grazing shock

waves can intersect to create a narrowly

focused sonic boom, about 1 mile of

intense focus, followed by a larger

region of multiple sonic booms.

Aircraft and helicopter activities also

produce noise in the coastal

environment. Jet aircraft produce

significant, subsonic noise with widely

varying sound levels depending upon

aircraft type, phase of flight, and other

factors. Blade-rate tones account for

high frequency squealing in jet sounds

while the low-frequency roar is the jet

mixing noise from engine exhaust

(Richardson et al. (1995). The high

frequency tones are rapidly absorbed in

the atmosphere (>4 dB/kilometer (km)).

To provide an example of noise levels

for a typical aircraft, an F–16 aircraft at

intermediate power and 300 ft (96.4 m)

above the ground is projected to have a

peak noise level of 103 dBA re 20 μPam, lasting from 1 to 3 seconds (U.S. Air

Force, 1986).2

The sounds from helicopters contain

many tones related to rotor or propeller

blade rate, with most energy at

frequencies below 500 Hz.

Measurements of a Bell 212 helicopter

at an altitude of 500 ft (152 m) indicated

a peak, received level at the surface of

109 dB re 1 μPa-m. Duration of noise on

the surface may last up to 4 minutes, but

less than 38 seconds (sec.) at 9.8 ft (3 m)

depth, and 11 sec. at 60 ft (18 m)

(Greene, 1985a; Richardson et al., 1995).

One issue for discussion on impacts

to marine mammals is the extent to

which noise penetrates the ocean

surface and the sound pressure levels

(SPLs) at depths which marine
Federal Register / Vol. 63, No. 139 /Tuesday, July 21, 1998 / Proposed Rules 39057

mammals may inhabit. Jet aircraft from

Vandenberg remain subsonic when

within the coastal zone (U.S. Air Force,

1997). Therefore, it is not necessary to

consider sonic boom noise penetration

into the water column from aircraft

covered by this proposed authorization.

The amount of subsonic aircraft noise

entering the water column will depend

primarily on aircraft altitude and

limited by Snell’s Law (e.g., at angles

greater than 13° from the vertical much

of the incident sound is reflected and

does not penetrate into the water)

(Richardson et al., 1995). However,

some airborne noise will penetrate

water at angles >13° from the vertical

when rough seas provide water surfaces

at suitable angles (Lubard and Hurdle,

1976). In general, the peak, received

level in the water, as an aircraft passes

directly overhead, will decrease with

increasing altitude and received depth

(Richardson et al., 1995). Duration of

audibility, while significantly less than

the duration in air, tends to increase

with increasing aircraft altitude and

with decreasing receiver depths. When

an aircraft is not directly overhead,

aircraft noises can be stronger at midwater than at shallow depths

(Richardson et al., 1995).

Helicopters often radiate more sound

forward than backward. However,

because the acoustic wavelengths of the

low-frequency sounds that dominate

helicopter noise are much longer than

the typical ocean wave heights,

penetration at angles greater than 13°

from vertical are expected to be

negligible (see Richardson et al., 1995).

Because a rocket’s angle of trajectory

at lift-off to the water surface is greater

than 13 degrees, launch noises are not

normally expected to transit the airwater interface. While rough seas may

allow some penetration due to angle

between the wave face and launch

noise, surf and wind noise in the

nearshore zone would be expected to

limit in-water transmission and

audibility.

A sonic boom will project ahead of

the vehicle as it travels down range.

This may produce a ‘‘carpet’’ boom,

which, because of its angle of trajectory,

is not expected to penetrate the ocean

surface. While most of this sonic boom

energy will be reflected off the water

surface, some noise may penetrate it.

Analyses by Cook and Goforth (1970)

indicate that the ‘‘N’’ wave of a sonic

boom is rapidly smoothed and

attenuated with depth. They found that,

in moderate seas and heavy ship traffic,

sonic boom pressures can be expected to

exceed the ambient noise pressures

momentarily by up to 50 dB, from the

surface to depths of a few hundred feet,

between frequencies of 0.5 Hz and a few

hundred Hz.

When the vehicle changes its launch

trajectory offshore, the surface boom

will meet the accelerated boom, creating

a ‘‘focused’’ sonic boom. Sonic booms

may become focused within a narrow

band under the flight path, resulting in

sound levels of exceptional amplitude

within a very narrow footprint. This

location will always be well offshore but

may intersect with the Northern

Channel Islands (NCI). Theoretical

calculations have suggested that, within

the narrow footprint of a focused sonic

boom, sound levels as high as 147 dB

(U.S. Air Force, 1990, 1996) to 154 dB

(U.S. Air Force, 1988) could be received.

Marine Mammal Impact Assessment

Noise disturbance from operations on

Vandenberg may cause negligible, shortterm impacts to pinnipeds (seals and sea

lions) hauled out on the Vandenberg

coastline, and, if loud enough due to the

proximity of the seals to the launch pad,

it may result in a temporary threshold

shift (TTS) in their hearing. Along the

Vandenberg coast, launch noises are

expected to impact principally harbor

seals as other pinniped species (e.g.,

California sea lions and northern

elephant seals) are known to haulout at

these sites only infrequently and in

significantly smaller numbers. The

principal form of impacts would be the

infrequent (approximately 30 launches/

year; 50 aircraft flights/year) and

unintentional incidental harassment

resulting from noise generated by

aircraft, helicopter, missile, and rocket

launches and by the visual sighting of

low-flying aircraft. Launch noises and

sonic booms can be expected to cause a

startle response and flight to water for

those harbor seals, California sea lions

and other pinnipeds that are hauled out

on the coastline of Vandenberg and on

the NCI. Launch noise is expected to

occur over the coastal habitats in the

vicinity of the Vandenberg launch sites

during every launch, while sonic booms

may be heard on NCI, principally SMI

and Santa Rosa Island (SRI), only during

certain launches of certain rocket types.

Titan II and Titan IV

Space Launch Complex (SLC) 4 is

utilized for launching Titan II (SLC–4W)

and Titan IV (SLC–4E) rockets. The

Titan II space launch vehicle is a twostaged, modified Intercontinental

Ballistic Missile redesigned to carry

small payloads of up to 5,600 lb (2.267

962 kg). The Titan IV is a larger vehicle,

carrying payloads similar to those

carried by the Space Shuttle (U.S. Air

Force 1996). Although loud, the

duration of noise capable of affecting

marine mammals generated by each

Titan launch is brief. Although some

low frequency rumbling noise will

continue for several minutes, the noise

event at the Rocky Pt. harbor seal haulout will be concluded (Stewart et al.,

1992, 1993a, 1993b), within

approximately 2 minutes following

ignition and liftoff, by which time a

Titan IV will be 28.6 miles (46 km) from

SLC–4, over the open ocean and out of

hearing range of marine mammals on

Vandenberg (U.S. Air Force, 1996).

While noise levels around the launch

pad, during the launch, can reach a

level of about 170 dB (a level that can

cause hearing damage to humans) (U.S.

Air Force, 1988), levels at the nearest

seal rookery are significantly less.

Time-lapse photographic monitoring

(Jehl and Cooper, 1982) shows that, in

response to a specific stimulus, large

numbers of pinnipeds may move

suddenly from the shoreline to the

water. Visual stimuli, such as humans

and low-flying aircraft, are much more

likely to elicit this response than strictly

auditory stimuli, such as boat noise or

sonic booms. Observations indicate that

it is rare for mass movement to take

place in a panic, and no resulting pup

or adult mortality has been observed

under these circumstances. Stewart

(1981, 1982) exposed breeding

California sea lions and northern

elephant seals on SNI to loud implosive

noises created by a carbide pest control

cannon. SPLs varied from 125.7 to 146.9

dB. While behavioral responses of each

species varied by sex, age, and season,

Stewart found that habitat use,

population growth, and pup survival of

both species appeared unaffected by

periodic exposure to the noise.

As part of previous small take

authorizations for Titan IV launches at

SLC–4, the U.S. Air Force has

monitored the effects of launch noises

on harbor seals hauled out at Rocky Pt.

(4.8 mi (7.7 km) south of SLC–4). For six

monitored launches of Titan IVs, the

sound exposure level ranged from 141.2

dB to 146.8 dB (96.2–101.8 dBA)

(Stewart and Francine, 1991, 1992;

Stewart et al. 1993a, 1993b, 1996;

Thorson et al., 1998). During the 1992

and 1993 Titan IV launches, all or

almost all, harbor seals that were ashore

at the time fled into the water (23 of 28

in 1992, 41 of 41 in 1993) in response

to the noise. After a launch in 1993,

about 75 percent of those seals returned

ashore later that day, most within 90

minutes of the disturbance (Stewart et

al., 1993b). There were no apparent

mortalities following any of the six

monitored launches, and the haulout

patterns were reported similar to those

prior to the launches.
39058 Federal Register / Vol. 63, No. 139 /Tuesday, July 21, 1998 / Proposed Rules

3Evoked ABRs are electrical potentials that are

generated by the brainstem when the ear is

stimulated by sound (Stewart 1996).

Therefore, because of the loud noise

levels of the Titan IV, all harbor seals

hauled out along the Vandenberg

coastline are expected to leave the beach

as a result of Titan IV launchings. While

noise from a Titan IV launch can be

heard on the NCI, monitoring on those

islands indicates that pinniped response

will be limited to no more than a headsup alert. This alertness, however, makes

the animals more sensitive for

movement to the sea should noise from

a sonic boom impact the haulout site.

Launch noise from a Titan II is

expected to be significantly less than

from the larger Titan IV. Noise

measurements and observations on

harbor seals at Harbor Seal Beach,

Rocky Pt. were conducted during the

launch of a Titan II on April 4, 1997. A

sound exposure level measurement of

116.7 dB was made with a peak level of

83.2 dB at 17 Hz. The A-weighted sound

exposure level (SEL) was measured at

88.5 dB, with the loudest sound

occurring at 76 Hz (50 dB). The

maximum number of harbor seals

hauled out ranged from 164 to 278 prior

to the launch, with most peaks

occurring in the afternoon (Thorson and

Francine, 1997). Thirty-three of the 37

seals ashore at the time of the launch

entered the water during the event; most

returned ashore within 30 minutes postlaunch. Within 8 to 10 days, seal

numbers had increased to 128 (Thorson

and Francine, 1997).

Because of high ambient noise along

the coastline (ambient noise level

expected to range between 56 and 96

dBA (U.S. Air Force, 1995a)), rapid

attenuation of launch noise, and

because almost all sounds from the

launch should be reflected off, and not

penetrate, the water surface, launch

noises are not expected to impact any

marine mammals in nearshore waters of

Vandenberg, although pinnipeds at the

water surface in the vicinity of the

launch site may alert to the noise and

other marine mammal species at the

water surface may hear the launch

noises.

Sonic booms resulting from launches

of the Titan II and IV will vary with the

vehicle trajectory, weather conditions,

and the specific ground location.

Depending upon the intensity and

location of a sonic boom, pinnipeds on

the NCI could exhibit a simple alert

(head-up) response, or startle and

stampede into the water. Two primary

concerns involve the possibility of a

stampede during which pups may be

trampled or separated from their

mothers and the potential effects of loud

noises on the pinniped’s hearing. A

third concern involves a possible

physiological stress to the animals,

resulting in unsuccessful breeding and

other anomalies in behavior.

Theoretical calculations suggest that

marine mammal habitat within the

narrow footprint of a Titan IV focused

sonic boom could experience sound

levels as high as 147 dB (U.S. Air Force,

1990, 1996) to 154 dB (U.S. Air Force,

1988). Chappell (1980) calculated that a

sonic boom would need to have a peak

over-pressure in the range of 138 to 169

dB to cause TTS in marine mammals,

with TTS lasting a few minutes at most.

Humans have been exposed to impulse

noise similar in magnitude to the sonic

booms expected from Titan IVs with no

permanent hearing effects and with only

temporarily reduced hearing sensitivity.

Monitoring the effects of noise

generated from Titan IV launches on

SMI pinnipeds in 1991, Stewart and

Francine (1992) , demonstrated that

noise levels from a focused sonic boom

of 1.34 psf (133 dB, 111.7 dBA) caused

an alert (head up) response by 25

California sea lions, but no response

from other pinniped species present

(including harbor seals and elephant

seals). There was no seaward movement

as a result of this nighttime launch, and

all animals returned to a resting position

within 30 seconds. In 1993, an

explosion of a Titan IV created a sonic

boom-like pressure wave that resulted

in an alert response, but no movement

toward the sea. Additional popping and

rumbling noises that followed the initial

over pressure caused approximately 45

percent of the California sea lions

(approximately 23,400, including 14 to

15 thousand 1-month old pups, were

hauled out on SMI during the launch)

and 2 percent of the northern fur seals

to enter the surf zone. Although

approximately 15 percent of the sea lion

pups were temporarily abandoned when

their mothers fled into the surf, no

injuries or mortalities were observed.

Most animals were returning to shore

within 2 hours of the disturbance

(Stewart et al., 1993b) and haul-out

patterns after launchings appeared

normal.

In 1995, a Titan IV rocket produced a

sonic boom that measured 146.6 dB (8.9

psf) on SMI (Stewart et al., 1996). While

seals exposed to this sonic boom were

not tested for hearing effects, the

authors reasoned that those animals

most likely experienced hearing

threshold shifts. Most recently, Thorson

et al. (1998) measured the SEL for the

Titan IV A–18 sonic boom at 121 dB

(86.8 dBA) on the western side of SCI,

where the largest boom was predicted to

impact. This low amplitude (1.1 psf)

sonic boom did not result in startling

seals and sea lions.

In 1996, Stewart (1996) tested the

auditory brainstem response (ABR) 3 of

rehabilitated, stranded, harbor seals (6

pups), northern elephant seals (3 pups),

and California sea lions (5 juvenile),

exposed them to a simulated sonic

boom, then immediately retested them

to determine if a TTS injury occurred.

In these trials, Stewart demonstrated

TTS in California sea lions at over

pressures between 3 and 6.9 psf. A 6.9

psf sonic boom produced a TTS that

lasted approximately 3 hours. In harbor

seals, sonic booms with over pressures

between 4.2 and 7.2 psf produced TTS;

a TTS produced by a 6.2-psf sonic boom

lasted approximately 24 minutes,

whereas a 7.2-psf sonic boom induced a

TTS that lasted approximately 90

minutes. Northern elephant seals

suffered TTS, lasting approximately 20

minutes, when exposed to sonic booms

of 2.3 psf (135 dB) and greater. Thorson

et al. 1998 found no discernible TTS

during on-site ABR testing on harbor

seals exposed to launch noise from a

Titan IV on October 23, 1997.

Over water, almost all sonic boom

sounds will be reflected off the water’s

surface. Therefore, except inside an

approximate 4 mile by 1,000-ft (7 km by

305 m) zone of a focused sonic boom,

only those individual marine mammals

within this zone that are at the water

surface at the time of focusing will

experience energy from a sonic boom.

Although Titan IV-generated sonic

booms are not likely to cause permanent

hearing damage to marine mammals in

or out of the water, they may cause

minor reduction in hearing sensitivity

in those few species with hearing

capabilities in the low frequencies

found in sonic booms. This effect is

expected to be temporary and will not

affect the survival of individuals or

adversely affect the species’ populations

in California waters.

Outside the zone of focused energy,

cetaceans and pinnipeds in the water

should be unaffected by the sonic

booms, although, depending upon

location and ambient noise levels, some

pinnipeds may be able to hear the sonic

boom. Although rough seas may provide

some surfaces at the proper angle for

sound to penetrate the water surface

(Richardson et al., 1991), sound entering

a water surface at an angle greater than

13 degrees from the vertical has been

shown to be largely deflected at the

surface, with very little sound entering

the water (Chappell, 1980; Richardson

et al., 1991, 1995).
Federal Register / Vol. 63, No. 139 /Tuesday, July 21, 1998 / Proposed Rules 39059

With only a remote likelihood that a

cetacean will be almost directly under

the line of flight of a Titan II and IV at

the instant the vehicle changes its

launch trajectory, NMFS believes that

sonic booms will not result in the

harassment of cetacean populations in

offshore waters of the SCB.

Most long-term physiological effects,

such as those on reproduction,

metabolism and general health, or on

the animals’ resistance to disease, are

believed to be caused by much greater

cumulative sound exposures (intense

continuous noise) than those expected

from space vehicle sonic booms

(infrequent, loud, and short-duration

noise), which have less potential for

affecting physiology (U.S. Air Force,

1990; NMFS, 1990).

NMFS believes therefore, that some

TTS would be likely following

exceptionally loud, focused, booms

created by launches flying directly over

the NCI, but this TTS should last only

a short time (minutes to hours). Also,

although the startle effect of the sonic

booms might result in some minor

physiological stress, the frequency of

the booms would be low compared to

the frequency of naturally induced

startle events. Moreover, there should be

no adverse effect on pinniped survival

since no significant increase in stressrelated pathology is anticipated, nor is

any disruption of the reproductive cycle

expected.

Lockheed Martin Athena Launch

Vehicles

At SLC–6, Athena launches would

place commercial payloads into low

earth orbit using Lockheed Martin’s

family of vehicles (Athena–1, Athena–2

and Athena–3). Under typical

conditions, the launch noise associated

with the Athena would be

approximately 127 dB (101 dBA) at the

harbor seal haul-out areas, which are

about 1.5 mi (2.4 km) to the south and

southwest of SLC–6 (U.S. Air Force,

pers. comm. April 28, 1998). The

seaward aspects of the cliffs throughout

much of the coastal area are expected to

buffer the haul-out areas from launch

noises during the earliest stages of

Athena launches (U.S. Air Force, 1995).

While this SEL is significantly less than

levels for the Titan IV at similar

distances (approximately 142 dB (121

dBA) for Titan IV), it is still sufficient

to cause harbor seals to leave the beach

at Point Arguello, Rocky Pt, and

Boathouse Flats.

The maximum magnitude of sonic

booms from launches of the Athena–1

(5.0 psf), Athena–2 (3.0 psf), and

Athena–3 (3.0 psf) will be less than

those measured or predicted for Titan

IV. Depending upon the intensity and

location of a sonic boom, pinnipeds on

SMI or SRI may exhibit an alert

response or stampede into the water.

However, while it is highly probable

that sonic booms from Athenas would

occur over the Channel Islands,

maximum overpressures of these booms

are estimated to be less than 1.0 psf over

the northern part of SMI (U.S. Air Force,

1995). A sonic boom with an

overpressure of 1 psf (127 dB, 60 dBA)

is not considered significant.

The sonic booms resulting from

launches of the Athena will vary with

the type of vehicle and with the specific

ground location. For example, the sonic

boom from Athena–3 (the largest of the

Athena rockets) is not expected to

intersect any portion of the NCI, but

instead will focus on the open water

southwest of the Islands. Also, while it

is predicted that launches of the

Athena–1 and Athena–2 will produce

sonic booms over portions of the

Channel Islands, the maximum overall

SPL is not expected to exceed 110 dB

(69 dBA) (U.S. Air Force, 1995). These

sonic boom levels are likely to be

indistinguishable from background

noises caused by wind and surf (U.S.

Air Force, 1995).

McDonnell-Douglas Delta II

Based upon SEL measurements

recorded in November 1995, the launch

noise associated with the Delta II launch

at SLC–2W is estimated to be

approximately 138.8 dB (125.7 dBA) at

the nearest harbor seal haulout site at

Purisima Pt (2,200 ft (670.6 m) from the

launch site) (U.S. Air Force, 1995b).

Launch noises from the Delta II are

expected to impact mostly harbor seals

as California sea lions and northern

elephant seals are known to haul-out at

these sites only infrequently and in

smaller numbers. Therefore, it can be

predicted that most, if not all, pinnipeds

onshore near SLC–2W will leave the

shore as a result of Delta II launchings.

Harbor seals hauled out at Point Sal

(10.5 mi (16.9 km)) and Rocky Pt 13.5

mi (21.7 km)) are expected to alert to the

launch noise, and some, if not all, are

expected to flee to the water.

While it is highly probable that a

sonic boom from the Delta II would

occur over SMI, maximum

overpressures of these sonic booms are

estimated to be 1.0 psf (U.S. Air Force,

1995c). A sonic boom with an

overpressure of 1.0 psf or less is not

considered significant. Also, the

maximum overall sound pressure level

is not expected to exceed 78 dBA (112

dB) (U.S. Air Force, 1995c). A sonic

boom of this magnitude is likely to be

either indistinguishable or barely

distinguishable from background noises

caused by wind, surf (U.S. Air Force,

1995a) and onshore marine mammals.

Taurus

Based upon measurements made on

March 13, 1994, of a Taurus rocket

launch from SLC–576E (Stewart et al.,

1994), the SEL recorded at Purisima Pt

(2.24 km (1.4 mi) from the launch pad)

was 127.4 dB (108.1 dBA). Twenty of

the 23 harbor seals that were hauled out

at this location before the launch fled

immediately into the water within a few

seconds after launch. The unweighted

SEL of noise recorded at Rocky Pt was

103.9 dB (80.0 dBA)(130-second

duration; 20.4 km (12.7 mi) from the

launch pad). That noise included

launch noise and possibly a sonic boom

below 50 Hz. Twenty of 74 harbor seals

that were monitored at Rocky Point fled

into the water within several seconds of

the sound arriving there. However, none

of the four young pups that were ashore

left the beach nor were they separated

from their mothers. A comparison of the

reactions of harbor seals to sound at the

two study sites indicates that the

intensity and duration of reactions of

harbor seals to the type of noise

associated with the Taurus was directly

related to the intensity of the noise to

which they were exposed (Stewart et al.,

1994). Substantially more seals reacted

to the launch noise at Purisima Pt than

at Rocky Pt. Furthermore, seals at

Purisima Pt reacted much more

energetically and remained in the water

substantially longer than did seals at

Rocky Pt.

Although monitoring was apparently

not conducted at the Spur Road haulout

(approximately 0.5 mi (804 m) from

SLC–576E) in 1994, based upon

measurements for Delta II (Aerospace

Corporation, 1996) and comparing these

results with Taurus (Stewart et al.,

1994), an SEL can be estimated for Spur

Road to be approximately 129 dB (115

dBA). If any harbor seals are ashore at

the time of a launch at this small

haulout, all are expected to immediately

leave the shore for the water.

Rocket engine noise over NCI from the

just-launched Taurus traveling at

supersonic speeds should not affect

pinnipeds hauled out on these islands.

The Taurus flight paths will be to the

west-southwest away from the

California coast. Sonic boom noise

developed as a result of these launches

is not expected to reach the Channel

Islands. Low intensity rumbling noise

may reach the Channel Islands with the

effect ranging from a simple alert

response to a startle response, which,

while unlikely, could result in some

movement into the water. The initial
39060 Federal Register / Vol. 63, No. 139 /Tuesday, July 21, 1998 / Proposed Rules

Taurus launch from SLC–576E did not

cause a sonic boom over SMI, and there

was no response by pinniped species on

SMI (Orbital Sciences Corporation,

1996) from launch noise.

Atlas

Atlas II space vehicles, made by

Lockheed-Martin, are planned to be

launched from SLC–3E. This launch pad

is located 6 mi (9.6 km) from Rocky Pt,

8.5 mi (13.7 km) from Purisima Pt, and

19 mi (30.6 km) from Point Sal.

Predicted unweighted SELs for Rocky Pt

and Purisima Pt are 96.5 dB and 90.4

dB, respectively. SELs of this intensity,

if accurate, may not result in more than

an alert posture by those harbor seals

ashore at the time of launch; if low, then

some or all of these seals may leave the

shore for the water.

Minuteman and Peacekeeper Missiles

Minuteman missiles produced an

unweighted 118 dB (99 dBA) at Point

Sal (2.7 mi (4.3 km) distant) and 104 dB

(80 dBA) at Purisima Pt. (7 to 10 mi

(11.3 to 16.1 km) distant). While no

observations are known to have been

made to date, SELs of this level are

considered sufficient to cause a startle

effect and to result in a general

movement by harbor seals into the

water.

Peacekeeper missiles are initially

launched using air pressure; the engine

ignites at 300 ft (91.4 m) altitude. SELs

can be predicted for Peacekeeper missile

launches from North Vandenberg by

comparing them with SELs for the

Athena-1 rocket. LF–02 is

approximately 2 mi (3.2 km) from Lions

Head and 6.8 mi (10.9 km) from Point

Sal. Using this comparison, NMFS

estimates that Peacekeeper missiles

would produce an unweighted SEL of

114 dB (85 dBA) at Point Sal (2.7 mi (4.3

km) distant) and 105 dB (73 dBA) at

Purisima Pt. (7–10 mi (11.3–16.1 km)

distant. SELs of this level are likely

sufficient to cause a startle effect and to

result in movement by harbor seals into

the water.

Aircraft and Helicopters

Pinnipeds hauled out on land react to

aircraft and helicopter sounds and/or

sight by becoming alert and often by

rushing into the water. They tend to

react most strongly if an aircraft is flying

low, passes nearly overhead, and/or

causes abrupt changes in sounds.

Responsiveness can vary according to

the stage of the breeding cycle. In

general, pinnipeds hauled-out for

pupping or molting are the most

responsive to aircraft (Tetra Tech, 1997).

While flight to the water by a significant

portion of the hauled out pinnipeds has

the potential to increase pup mortality

due to crushing or to increase rates of

pup abandonment, direct mortality has

not been observed (Richardson et al.,

1995). Specific examples of pinniped

reaction to aircraft noise are provided in

the EA.

For range safety and security prior to

a launch, helicopter flights are flown at

500 ft (152.4 m) altitude except over

recognized pinniped haulouts and

rookeries where the helicopter is

required to ascend to 1,000 ft (305 m).

Pre-launch security at Vandenberg

requires that helicopters scan the area in

the path of the launch. These helicopter

flights occasionally pass close by harbor

seal haulouts. One such flight resulted

in an average sound exposure level of

79.1 dBA (Thorson et al., 1988). These

flights may result in an unintentional,

incidental harassment of pinnipeds and,

rarely, cetaceans. One hypothesis is that

these security patrols startle harbor seals

and result in fewer seals being observed

ashore (and thereby counted as being

‘‘taken by harassment’’) at the time of

the launch.

Cumulative Impacts

Cumulative impacts that will occur to

harbor seals, California sea lions,

northern elephant seals, and northern

fur seals have been discussed in the EA

on this issue (U.S. Air Force, 1997), and

need not be discussed further. However,

the MMPA requires NMFS to determine

that the total of such taking during the

5-year (or less) period will have a

negligible impact on the species being

taken. Using the information provided

above, NMFS estimates that each

rookery/haulout site along the

Vandenberg coastline will be impacted

by sufficient noise at each launch to

cause harbor seals to leave the rocks

fewer than 30 times annually due to

missile and rocket launches and

associated helicopter safety patrols and

10 times annually due to aircraft

operations. On the NCI, pinnipeds may

potentially leave the beach only as a

result of a sonic boom from Titan IV and

Athena-3 launch passes over or in the

vicinity of a haulout on one of the

Islands. Such an event is unlikely to

occur more than 3 to 5 times annually.

Long term effects, such as stress and

emigration, due to chronic exposure to

noise are not expected since all noise

events will be transitory and limited in

number and duration.

Proposed Mitigation

One mitigation measure of longstanding is the requirement that no

vehicles launched from Vandenberg are

allowed direct overflight of SRI, SCI, or

Anacapa Island. Therefore, nominal

flight azimuths from SLC–4 for example,

must be west of SRI.

All aircraft and helicopter flight paths

will maintain a minimum distance of

1,000 ft (305 m) from recognized seal

haulouts and rookeries (e.g., Point Sal,

Purisima Pt, Rocky Pt), except in

emergencies or for real-time security

incidents. Emergencies include searchand-rescue and fire-fighting, both of

which may require approaching

pinniped rookeries closer than 1,000 ft

(305 m).

For missile and rocket launches,

unless constrained by other factors

including, but not limited to, human

safety, national security, or launch

trajectories, efforts to ensure minimum

negligible impacts of launches on harbor

seals and other pinnipeds, NMFS

proposes to require the Air Force to

avoid, whenever possible, launches

during the harbor seal pupping season

of February through May and Titan IV

launches which predict a sonic boom on

NCI during harbor seal, elephant seal,

and California sea lion pupping seasons.

Additional mitigation measures

would be developed, if necessary,

cooperatively between NMFS and the

Air Force based on the degree of impact

documented during monitoring

activities following specific launches,

especially for Titan IV rockets.

Additional mitigation measures would

be contained in annual Letters of

Authorization (LOAs).

Research

Between 1991 and 1996, under a U.S.

Air Force contract, research was

conducted on the behavioral, auditory

and population responses of pinnipeds

on the NCI to loud and focused sonic

booms and to launch noise from Titan

IV rockets launched from Vandenberg.

The results of this research are provided

in Stewart (1996).

Under funding from the USAF and

30th Space Wing management, new

research initiatives on the impacts of

aerial noise on marine mammals have

been undertaken. One study is to

address the cumulative effects of rocket

launch noise and sonic booms on

pinnipeds at Vandenberg and on NCI.

Studies include the following: (1)

Hearing effects on seals from launch

noise and the subsequent launchgenerated sonic boom, (2) movements

and haulout patterns of individual seals

over the course of many rocket

launches, (3) changes in seal

demographic parameters over the 5-year

study, and (4) foraging and diving

behavior of seals exposed to launch

noise. A scientific research permit has

been issued for this research (see 62 FR

36049, July 3, 1997). A copy of the
Federal Register / Vol. 63, No. 139 /Tuesday, July 21, 1998 / Proposed Rules 39061

research plan is available upon request

(see ADDRESSES).

There is some speculation that

exposure to loud noise could cause

other physiological effects in pinnipeds,

including spontaneous abortion,

disruption of effective female-neonate

bonding, other reproductive

dysfunction, detrimental health effects,

and/or increased vulnerability to

disease (Chappell et al., 1980; Stewart et

al., 1996). While there has been little

study of noise-induced stress in marine

mammals (Richardson et al., 1995),

research initiatives have been identified

(U.S. Air Force, 1996) and may be

carried out in future years of this

authorization.

Proposed Monitoring Measures

During the 5-year duration of this

proposed authorization, impacts of

missile and space launches on marine

mammals would be monitored to ensure

that the taking is having no more than

a negligible impact on California

pinniped stocks. For each launch,

monitoring would occur at the pinniped

rookery on Vandenberg most likely to be

impacted by the launch. For most

launches, this would be either Point Sal,

Purisima Pt or Rocky Pt. Launch

monitoring, as detailed in LOAs, would

include the following: (1) At least one

biologically trained on-site observer

designated to record the effects of

launches on harbor seals and other

pinnipeds, (2) observations on harbor

seal activity in the vicinity of the

rookery nearest the launch platform or,

in the absence of pinnipeds at that

location, at another nearby haulout, for

at least 72 hours prior to any planned

launch and continue for a period of time

not less than 48 hours subsequent to

launching, (3) monitoring of haulout

sites on NCI would be performed if it is

determined that a sonic boom could

impact those areas (this determination

will be made in coordination with

NMFS), (4) investigation of potential for

spontaneous abortion, disruption of

effective female-neonate bonding and

other reproductive dysfunction, and (5)

observations on Vandenberg and on

NCI, if indicated, would be

supplemented with both videorecording of mother-pup seal responses

for daylight launches during the

pupping season, and with acoustic

measurements of those launch vehicles

not having previous SPL measurements.

Proposed Reporting Requirement

A report would have to be submitted

to NMFS within 90 days after each

launch. This report will have to contain

the following information:

(1) Date(s) and time(s) of each launch,

(2) date(s), location(s), and preliminary

findings of any research activities

related to monitoring the effects on

launch noise and sonic booms on

marine mammal populations, and (3)

results of the monitoring programs,

including, but not necessarily limited to

(a) numbers of pinnipeds present on the

haulout prior to commencement of the

launch, (b) numbers of pinnipeds that

may have been harassed as noted by the

number of pinnipeds estimated to have

entered the water as a result of launch

noise, (c) the length of time(s) pinnipeds

remained off the haulout or rookery, (d)

the numbers of pinniped adults or pups

that may have been injured or killed as

a result of the launch, and (6) any

behavioral modifications by pinnipeds

that likely were the result of launch

noise or the sonic boom.

An annual report would have to be

submitted that describes in a summary

form any incidental takings not reported

under the preceeding paragraph. For

example, this report would be expected

to describe the aircraft test program and

helicopter operations and any

assessments made on their impacts to

hauled-out pinnipeds.

A final report would have to be

submitted at least 180 days prior to

expiration of these regulations. This

report would summarize the findings

made in all previous reports and assess

both the impacts at each of the major

rookeries and the cumulative impact on

pinnipeds and on other marine

mammals from Vandenberg activities.

Preliminary Conclusions

The short-term impact of aircraft

testing and helicopter operations at

Vandenberg, the launching of missiles

from North Vandenberg, and the

launching of rockets from North and

South Vandenberg would be expected to

result, at worst, in a temporary

reduction in utilization of the haulout as

seals or sea lions leave the beach for the

safety of the water. Launchings would

not be expected to result in any

reduction in the number of pinnipeds,

and they are expected to continue to

reoccupy the same area shortly after

each launch. Additionally, there would

not be any impact on the habitat itself.

Based upon studies conducted for

previous space vehicle launches at

Vandenberg, significant long-term

impacts on pinnipeds at Vandenberg

and the NCI are unlikely.

National Environmental Policy Act

(NEPA)

The U.S. Air Force prepared an EA

and issued a Finding of No Significant

Impact (FONSI), as part of its request for

a small take authorization. This EA

contains information incorporated by

reference in the application that is

necessary for determining whether the

activities proposed for receiving small

take authorizations are having a

negligible impact on affected marine

mammmal stocks. As a result, NMFS

will accept comment on this EA, and,

based upon the comments received, will

(1) adopt the U.S. Air Force EA as its

own and sign a new FONSI statement,

(2) amend the U.S. Air Force EA to

incorporate relevant comments,

suggestions and information and sign a

new FONSI statement, or (3) based upon

comments received, prepare and release

for public comment a Draft

Environmental Impact Statement.

Endangered Species Act (ESA)

The Department of the Air Force

consulted with NMFS, as required by

section 7 of the ESA, on whether

launches of Titan II and IV at SLC–4

would jeopardize the continued

existence of species listed as threatened

or endangered. NMFS issued a section

7 biological opinion on this activity to

the Air Force on October 31, 1988,

concluding that launchings of the Titan

IV were not likely to jeopardize the

continued existence of the Guadalupe

fur seal. The Air Force reinitiated

consultation with NMFS after the Steller

sea lion was added to the list of

threatened and endangered species (55

FR 49204, November 26, 1990).

However, since northern sea lions had

not been sighted on the Channel Islands

between 1984 and the time of the

consultation, it was determined that

these launchings were not likely to

affect Steller sea lions. Additionally, on

September 18, 1991, NMFS concluded

that the issuance of a small take

authorization to the Air Force to

incidentally take marine mammals

during Titan IV launches was not likely

to jeopardize the continued existence of

northern sea lions or Guadalupe fur

seals. Because launches of rockets and

missiles other than Titan IV are unlikely

to produce sonic booms that will impact

the NCI, and because listed marine

mammals are not expected to haul-out

either on the Vandenberg coast or on the

NCI during the 5-year period for this

proposed authorization, the issuance of

these regulations are unlikely to

adversely affect listed marine mammals.

Additionally, incidental take

authorizations for either of these two

species under either the MMPA or the

ESA are not warranted.
39062 Federal Register / Vol. 63, No. 139 /Tuesday, July 21, 1998 / Proposed Rules

Classification

This action has been determined to be

not significant for purposes of E.O.

12866.

The Assistant General Counsel for

Legislation and Regulation of the

Department of Commerce certified to

the Small Business Administration that

this proposed rule, if adopted, would

not have a significant economic impact

on a substantial number of small entities

as described in the Regulatory

Flexibility Act. If implemented, this rule

will affect only the U.S. Air Force, large

defense companies, and an

undetermined number of contractors

providing services related to the

launches, including the monitoring of

launch impacts on marine mammals.

Some of the affected contractors may be

small businesses. The economic impact

on these small businesses is dependent

upon the award of contracts for such

services. The economic impact cannot

be determined with certainty, but will

be beneficial have no effect, directly or

indirectly, on small businesses. As such,

a regulatory flexibility analysis is not

required.

This proposed rule contains

collection-of-information requirements

subject to the provisions of the

Paperwork Reduction Act (PRA). This

collection has been approved by OMB

under OMB control number 0648–0151.

Notwithstanding any other provision of

law, no person is required to respond to

nor shall a person be subject to a

penalty for failure to comply with a

collection of information subject to the

requirements of the PRA unless that

collection of information displays a

currently valid OMB control number.

The reporting burden for this

collection is estimated to be

approximately 3 hours per response for

requesting an authorization (as

described in 50 CFR 216.104) and 40

hours per response for submitting

reports, including the time for gathering

and maintaining the data needed and

completing and reviewing the collection

of information. Comments are invited

on (a) whether the proposed collection

of information is necessary for the

proper performance of the functions of

the agency, including whether the

information shall have practical utility;

(b) the accuracy of the agency’s estimate

of the burden of the proposed collection

of information; (c) ways to enhance the

quality, utility, and clarity of the

information to be collected; and (d)

ways to minimize the burden of the

collection of information on

respondents, including the use of

automated collection techniques or

other forms of information technology.

Please send any comments to NMFS and

OMB (see ADDRESSES).

Information Solicited

NMFS requests interested persons to

submit comments, information, and

suggestions concerning the request and

the structure and content of the

regulations to allow the taking. Because

this document contains only a summary

of the information provided in the

documents available to the public (see

ADDRESSES), commenters are requested

to review these documents before

submitting comments.

List of Subjects in 50 CFR Part 216

Exports, Fish, Imports, Indians,

Labeling, Marine mammals, Penalties,

Reporting and recordkeeping

requirements, Seafood, Transportation.

Dated: July 15, 1998.

David L. Evans,

Deputy Assistant Administrator for Fisheries,

National Marine Fisheries Service.

For reasons set forth in the preamble,

50 CFR part 216 is proposed to be

amended as follows:

PART 216—REGULATIONS

GOVERNING THE TAKING AND

IMPORTING OF MARINE MAMMALS

1. The authority citation for part 216

continues to read as follows:

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

otherwise noted.

2. Subpart K is added to part 216 to

read as follows:

Subpart K—Taking of Marine Mammals

Incidental to Space Vehicle and Test Flight

Activities

Sec.

216.120 Specified activity and specified

geographical region.

216.121 Effective dates.

216.122 Permissible methods of taking.

216.123 Prohibitions.

216.124 Mitigation.

216.125 Requirements for monitoring and

reporting.

216.126 Applications for Letters of

Authorization.

216.127 Renewal of Letters of

Authorization.

216.128 Modifications of Letters of

Authorization.

216.129 [Reserved]

Subpart K—Taking of Marine Mammals

Incidental to Space Vehicle and Test

Flight Activities

§ 216.120 Specified activity and specified

geographical region.

(a) This subpart applies only to the

incidental taking of those marine

mammals specified in paragraph (b) of

this section by U.S. citizens engaged in:

(1) Launching a total of either 10

Minuteman and Peacekeeper missiles

annually or 50 missiles over the 5-year

authorization period from Vandenberg

Air Force Base,

(2) Launching a total of either 20

rockets annually or 100 rockets over the

5-year authorization period from

Vandenberg Air Force Base,

(3) Aircraft flight test operations, and

(4) Helicopter operations from

Vandenberg Air Force Base.

(b) The incidental take of marine

mammals on Vandenberg Air Force Base

and in waters off southern California,

under the activity identified in

paragraph (a) of this section, is limited

to the following species: Harbor seals

(Phoca vitulina), California sea lions

(Zalophus californianus), northern

elephant seals (Mirounga angustirostris),

northern fur seals (Callorhinus ursinus),

Guadalupe fur seals (Arctocephalus

townsendi), and Steller sea lions

(Eumetopias jubatus).

§ 216.121 Effective dates.

This subpart is effective from October

1, 1998, through September 30, 2003.

§ 216.122 Permissible methods of taking.

(a) Under Letters of Authorization

issued pursuant to § 216.106 of this

chapter, the 30th Space Wing, U.S. Air

Force, its contractors, and clients, may

incidentally, but not intentionally, take

marine mammals by harassment, within

the area described in § 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.

Notwithstanding takings authorized

by § 216.120 and by a Letter of

Authorization issued under § 216.106,

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 possible, adverse impacts on
Federal Register / Vol. 63, No. 139 /Tuesday, July 21, 1998 / Proposed Rules 39063

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 haulouts 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,

unless constrained by other factors

including, but not limited to, human

safety, national security or launch

trajectories, in order to ensure minimum

negligible impacts of launches on harbor

seals and other pinnipeds, holders of

Letters of Authorization must avoid,

whenever possible, launches during the

harbor seal pupping season of February

through May.

(3) For Titan IV launches only, the

holder of that Letter of Authorization

must avoid launches, whenever

possible, which predict a sonic boom on

the Northern Channel Islands during

harbor seal, elephant seal, and

California sea lion pupping seasons.

(4) If post-launch surveys determine

that an injurious or lethal take of a

marine mammal has occurred, the

launch procedure and the monitoring

methods must be reviewed, in

cooperation with NMFS and appropriate

changes made through modification to a

Letter of Authorization, prior to

conducting the next launch under that

Letter of Authorization.

(5) Additional mitigation measures as

contained in a Letter of Authorization.

(b) [Reserved]

§ 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

required to cooperate with the National

Marine Fisheries Service, and any other

Federal, state or local agency monitoring

the impacts of the activity on marine

mammals. Unless specified otherwise in

the Letter of Authorization, the Holder

of the Letter of Authorization must

notify the Administrator, Southwest

Region, National Marine Fisheries

Service, by letter or telephone, at least

2 weeks prior to activities involving the

taking of marine mammals.

(b) Holders of Letters of Authorization

must designate qualified on-site

individuals, as specified in the Letter of

Authorization, to:

(1) Conduct observations on harbor

seal, elephant seal, and sea lion activity

in the vicinity of the rookery nearest the

launch platform or, in the absence of

pinnipeds at that location, at another

nearby haulout, for at least 72 hours

prior to any planned launch and

continue for a period of time not less

than 48 hours subsequent to launching,

(2) Monitor haulout sites on the

Northern Channel Islands if it is

determined that a sonic boom could

impact those areas (this determination

will be made in coordination with the

National Marine Fisheries Service),

(3) As required under a Letter of

Authorization, investigate the potential

for spontaneous abortion, disruption of

effective female-neonate bonding, and

other reproductive dysfunction,

(4) Supplement observations on

Vandenberg and on the Northern

Channel Islands, if indicated, with

video-recording of mother-pup seal

responses for daylight launches during

the pupping season, and

(5) Conduct acoustic measurements of

those launch vehicles not having sound

pressure level measurements made

previously.

(c) Holders of Letters of Authorization

must conduct additional monitoring as

required under an annual Letter of

Authorization.

(d) The Holder of the Letter of

Authorization must submit a report to

the Southwest Administrator, National

Marine Fisheries Service within 90 days

after each launch. This report must

contain the following information:

(1) Date(s) and time(s) of the launch,

and

(2) Results of the monitoring

programs, including, but not necessarily

limited to:

(i) Numbers of pinnipeds present on

the haulout prior to commencement of

the launch,

(ii) Numbers of pinnipeds that may

have been harassed as noted by the

number of pinnipeds estimated to have

entered the water as a result of launch

noise,

(iii) The length of time(s) pinnipeds

remained off the haulout or rookery,

(iv) The numbers of pinniped adults

or pups that may have been injured or

killed as a result of the launch, and

(v) Behavioral modifications by

pinnipeds noted that were likely the

result of launch noise or the sonic

boom.

(e) An annual report must be

submitted that describes in summary

form any incidental takings not reported

under paragraph (d) of this section.

(f) A final report must be submitted at

least 180 days prior to expiration of

these regulations. This report will:

(1) Summarize the findings made in

all previous reports,

(2) Assess the impacts at each of the

major rookeries,

(3) Assess the cumulative impact on

pinnipeds and other marine mammals

from Vandenberg activities, and

(4) State the date(s) location(s) and

findings of any research activities

related to monitoring the effects of

launch noise and sonic booms on

marine mammal populations.

§ 216.126 Applications for Letters of

Authorization.

(a) To incidentally take harbor seals

and other marine mammals pursuant to

these regulations, either the U.S. citizen

(see definition at § 216.103) conducting

the activity or the 30th Space Wing on

behalf of the U.S. citizen conducting the

activity, must apply for and obtain a

Letter of Authorization in accordance

with § 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), which have

been reviewed by the Assistant

Administrator and determined to be

acceptable;

(b) A determination that the

mitigation measures required under

§ 216.124 and the Letter of

Authorization have been undertaken;

and

(c) A notice of issuance of a Letter of

Authorization or of a renewal of a Letter

of Authorization will be published in

the Federal Register within 30 days of

issuance.

§ 216.128 Modifications of Letters of

Authorization.

(a) In addition to complying with the

provisions of § 216.106, except as
39064 Federal Register / Vol. 63, No. 139 /Tuesday, July 21, 1998 / Proposed Rules

provided in paragraph (b) of this

section, no substantive modification,

including withdrawal or suspension, to

the Letter of Authorization issued

pursuant to § 216.106 and subject to the

provisions of this subpart shall be made

until after notice and an opportunity for

public comment.

(b) If the Assistant Administrator

determines that an emergency exists

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

mammals specified in § 216.120(b) or

that significantly and detrimentally

alters the scheduling of launches, a

Letter of Authorization issued pursuant

to § 216.106 may be substantively

modified without a prior notice and an

opportunity for public comment. A

notice will be published in the Federal

Register subsequent to the action.

§ 216.129 [Reserved]

[FR Doc. 98–19392 Filed 7–20–98; 8:45 am]

BILLING CODE 3510–22–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 660

[Docket No. 980714174–8174–01; I.D.

061898B]

RIN 0648–AK60

Fisheries Off West Coast States and in

the Western Pacific; Western Pacific

Precious Corals Fisheries; Amendment

3

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Proposed rule; request for

comments.

SUMMARY: NMFS proposes regulations to

implement Amendment 3 to the Fishery

Management Plan for the Precious

Corals Fisheries of the Western Pacific

Region (FMP). Amendment 3 would

establish framework procedures

enabling management measures to be

established and/or changed via

rulemaking rather than through FMP

amendment. The intent of this action is

to enable the Western Pacific Fishery

Management Council (Council) to

respond quickly to rapid changes in the

Western Pacific precious corals

fisheries.

DATES: Comments on this proposed rule

must be received on or before

September 4, 1998.

ADDRESSES: Comments on this proposed

rule or Amendment 3 should be sent to,

and copies of these documents are

available from, Kitty Simonds,

Executive Director, Western Pacific

Fishery Management Council, 1164

Bishop St., Suite 1400, Honolulu, HI

96813.

FOR FURTHER INFORMATION CONTACT:

Alvin Katekaru, Fishery Management

Specialist, Pacific Islands Area Office,

NMFS at (808) 973–2985 or Kitty

Simonds at (808) 522–8220.

SUPPLEMENTARY INFORMATION: NMFS is

proposing this rule based on a

recommendation of the Council under

the authority of the Magnuson-Stevens

Fishery Conservation and Management

Act (Magnuson-Stevens Act). It would

establish framework procedures under

FMP Amendment 3 to enable the

Council and NMFS to change elements

of the management regime governing the

Western Pacific precious corals fisheries

through rulemaking rather than through

FMP amendment. The procedures

would specify how certain new

measures may be established in

response to changes that may occur

rapidly in the fishery, as well as how

established measures (e.g., seasons,

permit requirements, quotas, closures,

area limitations, gear and coral size

restrictions) may be revised without the

Council having to develop and NMFS

implement an FMP amendment. With

the concurrence of the Council, the

Southwest Regional Administrator,

NMFS, would be able to initiate

rulemaking, Each action taken under the

framework process would entail

documentation of the analysis of

impacts of that action. Advance public

notice, public discussion, and

consideration of public comment on

each framework action are required.

Amendment 3 itself describes the

framework procedure in more detail

than the regulatory text of this rule.

On January 14, 1998, a notice of

availability of draft FMP Amendment 3

was published in the Federal Register

(63 FR 2195). The draft included two

actions: Establishment of framework

procedures and inclusion in the

management unit of precious corals in

the exclusive economic zone waters

around the Commonwealth of the

Northern Mariana Islands (CNMI)

(which would have been managed as an

exploratory permit area). The notice also

indicated that the Council staff would

submit the amendment for Secretarial

review only if no substantive or critical

comments were received during a 45-

day public review period. The Council

received substantive comments on the

proposal to manage precious corals in

the waters off CNMI as an exploratory

permit area. However, no comments

were received regarding the proposal to

establish the framework procedures.

Subsequently, Council staff revised

the draft amendment by removing the

CNMI provision, and a new draft was

prepared for Secretarial review. At its

95th meeting held in April 1998, the

Council concurred with the revised

draft amendment.

Framework procedures appear needed

because of present interest in the

harvest of precious corals at the

established coral bed at Makapuu Point,

Oahu, Hawaii, and around the main

Hawaiian Islands. Pre-harvest surveys

conducted in 1997 at the Makapuu bed

indicate this bed to be at least 15

percent larger than it was 12 years ago.

Recruitment of pink coral at the

Makapuu bed is undiminished

compared to 1991; however, recruitment

of gold coral has been very low.

Framework procedures under proposed

FMP Amendment 3 would, for example,

enable the Council to modify the

harvestable size of the Makapuu

precious coral bed or to adjust the quota

on gold coral, if needed, in a timely

manner.

Classification

At this time, NMFS has not

determined that Amendment 3, which

this rule would implement, is consistent

with the national standards of the

Magnuson-Stevens Act and other

applicable laws. NMFS, in making that

determination, will take into account

the data, views, and comments received

during the comment period.

This proposed rule has been

determined to be not significant for the

purposes of E.O. 12866.

The Assistant General Counsel for

Legislation and 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 as

follows:

The National Marine Fisheries Service

considers an impact to be significant if

it results in a reduction in annual gross

revenues by more than 5 percent, an

increase in annual compliance costs of

greater than 5 percent, compliance costs

at least 10 percent higher for small

entities than for large entities,

compliance costs that require significant

capital expenditures, or the likelihood

that 2 percent of the small entities

would be forced out of business. NMFS

considers a ‘‘substantial number’’ of

small entities to be more than 20

percent of those small entities affected

by the regulation engaged in the fishery.

Since the proposed action is