Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Rocket Launches

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.

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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 south-central 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

[[Page 39056]]

(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).

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\1\ Reference citations can be found either in the EA or are

available upon request from NMFS (see ADDRESSES).

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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

short-duration) 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 Pa-m,

lasting from 1 to 3 seconds (U.S. Air Force, 1986).2

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\2\ Airborne noise measurements are usually expressed relative

to a reference pressure of 20 Pa, which is 26 dB above the

usual underwater sound pressure reference of 1 Pa. 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 A-

weighted and unweighted sound pressure levels; when both levels are

not provided, it is presumed to represent the unweighted level.

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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

Pa-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

[[Page 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 deg. 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 deg. 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 mid-water 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 deg. 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 air-water 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, short-term 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 two-staged, 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 haul-out 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.

[[Page 39058]]

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

heads-up 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 post-launch. 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.

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\3\ Evoked ABRs are electrical potentials that are generated by

the brainstem when the ear is stimulated by sound (Stewart 1996).

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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).

[[Page 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 stress-related 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

[[Page 39060]]

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 long-standing 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

search-and-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 launch-generated 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

[[Page 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 video-recording 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.

[[Page 39062]]

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

Sec. 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).

Sec. 216.121 Effective dates.

This subpart is effective from October 1, 1998, through September

30, 2003.

Sec. 216.122 Permissible methods of taking.

(a) Under Letters of Authorization issued pursuant to Sec. 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 Sec. 216.120

provided all terms, conditions, and requirements of these regulations

and such Letter(s) of Authorization are complied with.

(b) [Reserved]

Sec. 216.123 Prohibitions.

Notwithstanding takings authorized by Sec. 216.120 and by a Letter

of Authorization issued under Sec. 216.106, no person in connection

with the activities described in Sec. 216.120 shall:

(a) Take any marine mammal not specified in Sec. 216.120(b);

(b) Take any marine mammal specified in Sec. 216.120(b) other than

by incidental, unintentional harassment;

(c) Take a marine mammal specified in Sec. 216.120(b) if such take

results in more than a negligible impact on the species or stocks of

such marine mammal; or

(d) Violate, or fail to comply with, the terms, conditions, and

requirements of these regulations or a Letter of Authorization issued

under Sec. 216.106.

Sec. 216.124 Mitigation.

(a) The activity identified in Sec. 216.120(a) must be conducted in

a manner that minimizes, to the greatest extent possible, adverse

impacts on

[[Page 39063]]

marine mammals and their habitats. When conducting operations

identified in Sec. 216.120, the following mitigation measures must be

utilized:

(1) All aircraft and helicopter flight paths must maintain a

minimum distance of 1,000 ft (305 m) from recognized seal haulouts and

rookeries (e.g., Point Sal, Purisima Point, Rocky Point), except in

emergencies or for real-time security incidents (e.g., search-and-

rescue, fire-fighting) which may require approaching pinniped rookeries

closer than 1,000 ft (305 m).

(2) For missile and rocket launches, 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]

Sec. 216.125 Requirements for monitoring and reporting.

(a) Holders of Letters of Authorization issued pursuant to

Sec. 216.106 for activities described in Sec. 216.120(a) are 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.

Sec. 216.126 Applications for Letters of Authorization.

(a) To incidentally take harbor seals and other marine mammals

pursuant to these regulations, either the U.S. citizen (see definition

at Sec. 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 Sec. 216.106.

(b) The application must be submitted to the National Marine

Fisheries Service at least 30 days before the activity is scheduled to

begin.

(c) Applications for Letters of Authorization and for renewals of

Letters of Authorization must include the following:

(1) Name of the U.S. citizen requesting the authorization,

(2) A description of the activity, the dates of the activity, and

the specific location of the activity, and

(3) Plans to monitor the behavior and effects of the activity on

marine mammals.

(d) A copy of the Letter of Authorization must be in the possession

of the persons conducting activities that may involve incidental

takings of seals and sea lions.

Sec. 216.127 Renewal of Letters of Authorization.

A Letter of Authorization issued under Sec. 216.126 for the

activity identified in Sec. 216.120(a) will be renewed annually upon:

(a) Timely receipt of the reports required under Sec. 216.125(d),

which have been reviewed by the Assistant Administrator and determined

to be acceptable;

(b) A determination that the mitigation measures required under

Sec. 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.

Sec. 216.128 Modifications of Letters of Authorization.

(a) In addition to complying with the provisions of Sec. 216.106,

except as

[[Page 39064]]

provided in paragraph (b) of this section, no substantive modification,

including withdrawal or suspension, to the Letter of Authorization

issued pursuant to Sec. 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 well-being of the species

or stocks of marine mammals specified in Sec. 216.120(b) or that

significantly and detrimentally alters the scheduling of launches, a

Letter of Authorization issued pursuant to Sec. 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.

Sec. 216.129 [Reserved]

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

BILLING CODE 3510-22-P