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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - RIN 0648-XY60

# AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.

# ACTION:

Notice; issuance of a revised Letter of Authorization.

# SUMMARY:

In June, 2009, pursuant to the Marine Mammal Protection Act (MMPA), NMFS issued regulations to govern the unintentional taking of marine mammals incidental to U.S. Navy (Navy) missile launch operations, a military readiness activity, from San Nicolas Island (SNI), California, for the period of June 2009 through June 2014. The second Letter of Authorization (LOA) for the incidental take of marine mammals during the described activities and specified timeframes is effective from June 4, 2010, through June 3, 2011. Following issuance of the LOA, the Navy submitted a revised monitoring plan for their activities at SNI. NMFS has issued a revised LOA, which incorporates the revised monitoring plan, to replace the one that was previously in effect.

# DATES:

Effective December 1, 2010, through November 30, 2011.

# ADDRESSES:

                        The LOA and supporting documentation are available for review by writing to P. Michael Payne, Chief, Permits, Conservation, and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910 or by telephoning one of the contacts listed below (                        **FOR FURTHER INFORMATION CONTACT**                        ). Documents cited in this notice may be viewed, by appointment, during regular business hours, at the aforementioned address and at the Southwest Regional Office, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802.                    

# FOR FURTHER INFORMATION CONTACT:

Michelle Magliocca, Office of Protected Resources, NMFS, 301-713-2289, or Monica DeAngelis, NMFS, 562-980-3232.

# SUPPLEMENTARY INFORMATION:

## Background

                    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361*et seq.*) directs the Secretary                           ( print page 71673)                        of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and regulations are issued. However, for military readiness activities, the National Defense Authorization Act (Pub. L. 108-136) removed the “small numbers” and “specified geographical region” limitations. Under the MMPA, the term “take” means to harass, hunt, capture, or kill, or to attempt to harass, hunt, capture, or kill marine mammals.                

Authorization may be granted for periods up to 5 years if NMFS finds, after notification and opportunity for public comment, that the taking will have a negligible impact on the species or stock(s) of marine mammals and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses. In addition, NMFS must prescribe regulations that include permissible methods of taking and other means of effecting the least practicable adverse impact on the species and its habitat and on the availability of the species for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance. The regulations must include requirements for monitoring and reporting of such taking.

                    Regulations governing the taking of Northern elephant seals (                    *Mirounga angustirostris*), Pacific harbor seals (                    *Phoca vitulina**richardsi*), and California sea lions (                    *Zalophus californianus*), by harassment, incidental to missile launch operations at SNI, were issued on June 2, 2009, and remain in effect until June 2, 2014 (74 FR 26580). The previous 2010 LOA under these regulations was issued on June 4, 2010 (75 FR 28587). For more detailed information on this action, please refer to these documents. The regulations and LOA include mitigation, monitoring, and reporting requirements for the incidental take of marine mammals during missile launches at SNI. Northern elephant seals, Pacific harbor seals, and California sea lions are found on various haul-out sites and rookeries on SNI. The LOA authorizes take of the three pinniped species listed above that may result from the launching of up to 40 missiles from SNI per year. Up to 10 launches per year may occur at night. Nighttime launches will only occur when required by the test objectives,                     *e.g.,*                     when testing the Airborne Laser system. The noise generated by Navy activities may result in the incidental harassment of pinnipeds, both behaviorally and in terms of physiological (auditory) impacts. The noise and visual disturbances from missile launches may cause the animals to move towards or enter the water. The LOA authorizes the following numbers of pinnipeds to be incidentally taken by Level B harassment annually: 474 Northern elephant seals; 467 Pacific harbor seals; and 1,606 California sea lions.                

## Summary of the Modification

On June 7, 2010, NMFS received a proposed revised monitoring plan for vehicle launches at SNI, California, in association with an LOA issued on June 4, 2010 and in effect through June 3, 2011. The revised monitoring plan was updated to reflect new equipment and procedures proposed by the Navy, along with a proposal to discontinue targeted monitoring of Northern elephant seals. After reviewing the revised monitoring plan, the Marine Mammal Commission (Commission) further recommended that the Navy obtain, analyze, and review existing information regarding potential displacement of Northern elephant seals, Pacific harbor seals, and California sea lions from those rookeries and haul out sites affected by launch activities. NMFS marine mammal surveys from SNI have since been reviewed for any indications of decreasing trends in pinniped abundance or changes in distribution since the take of marine mammals incidental to launches from SNI were authorized beginning in August 2001. The surveys do not indicate any significant changes in abundance or distribution. The following are the only modifications to the previous 2010 LOA; all other mitigation and monitoring requirements remain unchanged.

### Nighttime Launches

The Navy recently acquired forward looking infrared (FLIR) HS-324 Command thermal imaging cameras for nighttime monitoring of pinnipeds before, during, and after each missile launch. Previously, no cameras were available for nighttime monitoring of pinniped haul out sites. The thermal imaging cameras, made by FLIR Systems, Inc., will be located to overlook haul out sites up to 6 hours prior to a launch, depending on safety restrictions. Placement of the cameras will cause minimal disturbance to pinnipeds and will focus on a subgroup of pinnipeds within the haul out aggregation. The cameras record data internally and are capable of storing more than 5 hours of video; however, they do not record sound, so no simultaneous audio recording separate from the acoustic monitoring data, collected as described in the regulations (74 FR 26580) and previous 2010 LOA (75 FR 28587), will be available. Navy biologists will make direct visual observations of the pinniped groups, prior to deployment of the thermal imaging cameras, in order to record weather conditions, species, locations of any pinnipeds hauled out, etc.

### Monitoring of Northern Elephant Seals

                    The Navy will eliminate targeted monitoring of Northern elephant seals during all future launches of Vandal- and Coyote-size, and smaller, vehicles on SNI. During the majority of launches monitored over the past 9 years, Northern elephant seals exhibited little reaction to vehicle launches. The Navy's most recent monitoring report estimated that zero Northern elephant seals were harassed by launches from SNI. During future launches, Northern elephant seals would only be monitored if they happen to be alongside other monitored pinniped species (                    *i.e.,*                     Pacific harbor seals and California sea lions) and in the camera's field of view. Monitoring sites will be chosen based primarily on the presence of Pacific harbor seals and California sea lions; however, the same number of sites will continue to be monitored. By eliminating targeted monitoring of Northern elephant seals, the Navy will focus on these more responsive pinniped species and remaining questions about the frequency and extent of these responses. All other aspects of the Navy's monitoring requirements, as stated in the regulations (74 FR 26580) and previous 2010 LOA (75 FR 28587), will remain the same. The Navy will submit a single annual report for the period June 2010 through November 2011.                

## Summary of Activity and Monitoring Conducted During 2010

                    The Navy submitted a preliminary, qualitative review of marine mammal monitoring activities between June 4, 2010, and September 1, 2010, as part of their proposal for a revised monitoring plan. The review briefly describes two single launches from SNI on two different days. These launches occurred during daylight hours. A single Coyote missile was launched on each of two days, June 9 and July 8, 2010, from the Alpha Launch Complex located 190 m (623 ft) above sea level on the west-central part of SNI. For each launch, three remote video cameras and three or four audio recorders were deployed at varying distances from the launch site. Trained staff also collected general information on environmental                           ( print page 71674)                        conditions and the status and behavior of focal animal groups prior to and following each launch. Behavioral responses were similar to those observed during previously monitored launches. The authorized level of take was not exceeded, and no evidence of injury or mortality was observed during or immediately succeeding the launches for the monitored pinniped species.                

## Comments and Responses

A request for public comment on the revised monitoring plan and proposed authorization was published on September 24, 2010 (75 FR 58365), at the recommendation of the Commission. During the 30-day public comment period, NMFS received comments from the Commission and one private citizen. The comment from the private citizen opposed the issuance of an authorization without any specific substantiation for why such an authorization should not be issued. For the reasons set forth in this notice and the associated rulemaking (74 FR 26580, June 2, 2009), NMFS believes issuance of an authorization is appropriate. Following are the comments from the Commission and NMFS' responses:

*Comment 1:*                     The Commission recommends that NMFS initiate such a rulemaking or provide adequate justification to support a determination that rulemaking is not required to amend section 216.155 of the regulations to authorize the Navy to discontinue monitoring the potential effects of launches on Northern elephant seals.                

*Response:*                     NMFS has determined that a rulemaking is not required to amend section 216.155 of the regulations to authorize the Navy to discontinue monitoring the potential effects of launches on Northern elephant seals. Part (b) of this section states that “The National Marine Fisheries Service must be informed immediately of any changes or deletions to any portions of the proposed monitoring plan submitted, in accordance with the Letter of Authorization.” The Navy made NMFS aware of such changes. Furthermore, the regulatory text does not require monitoring of all species present at SNI. The visual land-based and acoustic monitoring requirements in 50 CFR 216.155 state that three haul-out sites will be observed using autonomous digital video cameras and acoustic equipment; this requirement remains in effect under the revised LOA. Visual land-based monitoring will actually be enhanced under this LOA through the use of FLIR thermal imaging cameras during nighttime launches.                

*Comment 2:*                     The Commission recommends that NMFS clarify the intent of 50 CFR 216.158(a)(1) of its regulations and explain why it does not believe that the Navy should be held to the commitment that there would be no substantial modifications to the monitoring program to be carried out during the 12 months covered by the previous 2010 LOA.                

*Response:*                     NMFS has determined that the Navy's modifications to their monitoring program for launch activities at SNI are not substantial. The Navy will continue to report on the same number of monitoring locations as have been authorized in previous LOAs. The Navy will no longer target Northern elephant seals; however, this species may still be observed if it overlaps with other pinnipeds at the designated monitoring locations. This implementation of adaptive management will allow the Navy to focus their monitoring and research on other more responsive pinniped species at SNI.                

*Comment 3:*                     The Commission recommends that NMFS provide the Commission and the public with the information necessary to evaluate the conclusion that there has been no displacement of pinnipeds from rookeries and haul-out sites in the areas potentially affected by launch activities.                

*Response:*                     Based on unpublished NMFS survey data from 2000 to 2005, there has been an overall 107 percent increase in Northern elephant seal pups in locations directly within or adjacent to the Navy's anticipated launch azimuths. The area with the highest increase of non-pups between 2000 and 2005 also took place in locations directly within or adjacent to the Navy's anticipated launch azimuths. In contrast, other areas of SNI's perimeter show an overall decrease in both Northern elephant seal pups and non-pups, with the greatest observed change being a decrease of 1,616 Northern elephant seals near the southeast region of the island.                

*Comment 4:*                     The Commission recommends that NMFS develop and implement a monitoring strategy designed to determine whether there are gaps in the available information for assessing possible long-term effects and, if so, to what extent the cumulative effects of repeated launch activities might be displacing pinnipeds.                

*Response:*                     NMFS has determined that the Navy's current monitoring strategy is sufficient to determine if there are any long-term effects to pinnipeds from launch activities at SNI. NMFS biologists have been monitoring pinnipeds on SNI since 2000 and will continue to do so under this LOA.                

## Authorization

The Navy complied with the requirements of the previous 2010 LOA and NMFS has determined that there was no evidence of pinniped injuries or fatalities related to the June and July 2010 vehicle launches from SNI. The Navy's activities fell within the scope of the activities analyzed in the 2009 rule, and the observed take did not exceed that authorized in the previous 2010 LOA. NMFS has determined that this action would continue to have a negligible impact on the affected species or stocks of marine mammals on SNI, and there are no subsistence uses of these three pinniped species in California waters. Accordingly, NMFS has issued a revised LOA to the Navy authorizing the take of three marine mammal species, by harassment, incidental to missile launch activities from SNI. The revised LOA will expire one year from the date of issuance and the Navy has agreed to operate under their annual authorized take numbers for the extended period of June 2010 through November 2011.

Dated: November 18, 2010.

James H. Lecky,

Deputy Director, Office of Protected Resources, National Marine Fisheries Service.

[FR Doc. 2010-29656 Filed 11-23-10; 8:45 am]

BILLING CODE 3510-22-P