Federal Register / Vol. 74, No. 53 / Friday, March 20, 2009 / Proposed Rules 11891 

lll552.223–73 Preservation, Packaging, 

Packing, Marking and Labeling of Hazardous 

Materials (Hazmat) For Domestic Shipment 

lll552.238–70 Identification of 

Electronic Office Equipment Providing 

Accessibility for the Handicapped 

lll 552.238–72 Identification of 

Products that have Environmental Attributes 

(End of clause) 

5. Amend section 552.223–70 by 

revising the section heading, date of the 

clause, and clause to read as follows: 

552.223–70 Preservation, Packaging, 

Packing, Marking and Labeling of 

Hazardous Materials (HAZMAT) for Export 

Shipment. 

* * * * * 

PRESERVATION, PACKAGING, 

PACKING, MARKING AND LABELING 

OF HAZARDOUS MATERIALS 

(HAZMAT) FOR EXPORT SHIPMENT 

(DATE) 

(a) Preservation, packaging, packing, 

marking and labeling of hazardous materials 

for shipment overseas (includes Hawaii, 

Puerto Rico and U.S. territories) shall comply 

with all requirements of the following: 

(1) International Maritime Dangerous 

Goods (IMDG) Code as established by the 

International Maritime Organization. 

(2) Items which qualify for U.S. 

Department of Transportation Consumer 

Commodity classifications shall be packaged 

in accordance with the IMDG Code and dual 

marked with both Consumer Commodity and 

IMDG marking and labeling. 

(3) Occupational Safety and Health 

Administration (OSHA) Regulation 29 (CFR) 

part 1910.1200. 

(4) Any preservation, packaging, packing, 

marking and labeling requirements contained 

elsewhere in this solicitation. 

(b) Preservation, packaging, packing, 

marking and labeling of overseas hazardous 

materials via commercial aircraft shall 

comply with the International Air Transport 

Association, Dangerous Goods Regulation 

(IATA). 

(c) Preservation, packaging, packing, 

marking and labeling of HAZMAT military 

aircraft shipments shall comply with the 

requirement of AFIM 24–204, Air Force InterService Manual 24–204, Preparing Hazardous 

Materials For Military Air Shipments. 

(d) The test certification data showing 

compliance with performance-oriented 

packaging requirements shall be made 

available to GSA contract administration/ 

management representatives or regulatory 

inspectors upon request. 

(End of clause) 

6. Add section 552.223–73 to read as 

follows: 

552.223–73 Preservation, Packaging, 

Packing, Marking and Labeling of 

Hazardous Materials (Hazmat) For Domestic 

Shipment. 

As prescribed in 523.303(c), insert the 

following clause: 

PRESERVATION, PACKAGING, 

PACKING, MARKING AND LABELING 

OF HAZARDOUS MATERIALS 

(HAZMAT) FOR DOMESTIC 

SHIPMENT (DATE) 

(a) Preservation, packaging, packing, 

marking and labeling of hazardous materials 

within the continental United States shall 

comply with all requirements of the 

following: 

(1) U.S. Department of Transportation 

(DOT) Hazardous Material Regulation 49, 

CFR parts 171 through 180. 

(2) Occupational Safety and Health 

Administration (OSHA) Regulation 29 CFR 

part 1910.1200. 

(3) All preservation, packaging, packing, 

marking and labeling requirements contained 

elsewhere in this solicitation. 

(b) Hazardous Material Packages 

designated for overseas destinations through 

the GSA Distribution Centers shall comply 

with the International Maritime Dangerous 

Goods (IMDG) Code. 

(End of clause) 

[FR Doc. E9–5876 Filed 3–19–09; 8:45 am] 

BILLING CODE 6820–61–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 216 

[Docket No. 090218189–9251–01] 

RIN 0648–AX29 

Taking and Importing Marine 

Mammals; Taking Marine Mammals 

Incidental to Target and Missile 

Launch Activities at San Nicolas 

Island, CA 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS has received a request 

from the U.S. Navy (Navy) for 

authorization for the take of marine 

mammals, by harassment, incidental to 

vehicle launch operations from San 

Nicolas Island (SNI), California. By this 

document, NMFS is proposing 

regulations to govern that take. In order 

to issue a Letter of Authorization (LOA) 

and to issue final regulations governing 

the take, NMFS must determine that the 

taking will have a negligible impact on 

the species or stocks and will not have 

an unmitigable adverse impact on the 

availability of such species or stock for 

taking for subsistence uses. NMFS must 

also prescribe the means of effecting the 

least practicable adverse impact on such 

species or stock and their habitats. 

DATES: Comments and information must 

be received no later than April 20, 2009. 

ADDRESSES: You may submit comments, 

identified by 0648–AX29, by any one of 

the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal: http:// 

www.regulations.gov. 

• Hand delivery or mailing of paper, 

disk, or CD-ROM comments should be 

addressed 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 

20910–3225. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

PDF file formats only. 

A copy of the application containing 

a list of references used in this 

document and the Draft Environmental 

Assessment (EA) may be obtained by 

writing to the above address, by 

telephoning the contact listed under FOR

FURTHER INFORMATION CONTACT, or on the 

Internet at: http://www.nmfs.noaa.gov/ 

pr/permits/incidental.htm#applications. 

Documents cited in this proposed rule 

may also be viewed, by appointment, 

during regular business hours at the 

above address. To help NMFS process 

and review comments more efficiently, 

please use only one method to submit 

comments. 

FOR FURTHER INFORMATION CONTACT: 

Candace Nachman, Office of Protected 

Resources, NMFS, (301) 713–2289, ext. 

156, or Monica DeAngelis, Southwest 

Regional Office, (562) 980–3232. 

SUPPLEMENTARY INFORMATION: 

Background 

Sections 101(a)(5)(A) and (D) of the 

Marine Mammal Protection Act (MMPA; 

16 U.S.C. 1361 et seq.) direct the 

Secretary of Commerce (Secretary) to 

allow, upon request, the incidental, but 

not intentional taking of small numbers 

of marine mammals by U.S. citizens 

who engage in a specified activity (other 

than commercial fishing) within a 

specified geographical region if certain 

findings are made and either regulations 

11892 Federal Register / Vol. 74, No. 53 / Friday, March 20, 2009 / Proposed Rules 

are issued or, if the taking is limited to 

harassment, notice of a proposed 

authorization is provided to the public 

for review. 

Authorization for incidental takings 

may be granted if NMFS 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 

certain subsistence uses, and that the 

permissible methods of taking and 

requirements pertaining to the 

mitigation, monitoring and reporting of 

such taking are set forth. 

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. 

The National Defense Authorization 

Act of 2004 (NDAA) (Public Law 108– 

136) removed the ‘‘small numbers’’ and 

‘‘specified geographical region’’ 

limitations and amended the definition 

of ‘‘harassment’’ as it applies to a 

‘‘military readiness activity’’ to read as 

follows (Section 3(18)(B) of the MMPA): 

(i) any act that injures or has the significant 

potential to injure a marine mammal or 

marine mammal stock in the wild [Level A 

Harassment]; or (ii) any act that disturbs or 

is likely to disturb a marine mammal or 

marine mammal stock in the wild by causing 

disruption of natural behavioral patterns, 

including, but not limited to, migration, 

surfacing, nursing, breeding, feeding, or 

sheltering, to a point where such behavioral 

patterns are abandoned or significantly 

altered [Level B Harassment]. 

Summary of Request 

On September 3, 2008, NMFS 

received an application from the Navy 

requesting authorization for the take of 

three species of marine mammals 

incidental to vehicle launches 

conducted by the Naval Air Warfare 

Center Weapons Division (NAWCWD) 

from the western part of SNI, which 

would impact pinnipeds hauled out on 

the island. Aircraft and helicopter 

flights between the Point Mugu airfield 

on the mainland, the airfield on SNI, 

and the target sites in the Point Mugu 

Sea Range will be a routine part of a 

planned launch operation. NMFS 

proposes regulations to govern these 

activities, to be effective from April, 

2009, through April, 2014. These 

regulations, if implemented, would 

allow NMFS to issue annual LOAs to 

the Navy. These activities are classified 

as military readiness activities. The 

Navy states that these activities may 

have both acoustic and non-acoustic 

effects on pinnipeds. The Navy requests 

authorization to take three pinniped 

species by Level B Harassment. 

Measurement of Airborne Sound Levels 

The following section is provided to 

facilitate understanding of airborne and 

impulsive noise characteristics. In its 

application, the Navy references both 

pressure and energy measurements for 

sound levels. For pressure, the sound 

pressure level (SPL) is described in 

terms of decibels (dB) re μPa, and for 

energy, the sound exposure level (SEL) 

is described in terms of dB re μPa2•s. In 

other words, SEL is the squared 

instantaneous sound pressure over a 

specified time interval, where the sound 

pressure is averaged over 5 percent to 95 

percent of the duration of the sound (in 

this case, one second). 

Airborne noise measurements are 

usually expressed relative to a reference 

pressure of 20 Pa, which is 26 dB above 

the underwater sound pressure 

reference of 1 μPa. However, the 

conversion from air to water intensities 

is more involved than this and is 

beyond the scope of this document. 

NMFS recommends interested readers 

review NOAA’s tutorial on this issue: 

http://www.pmel.noaa.gov/vents/ 

acoustics/tutorial/tutorial.html. Also, 

airborne sounds are often expressed as 

broadband A-weighted (dBA) or Cweighted (dBC) sound levels. Aweighting refers to frequency-dependent 

weighting factors applied to sound in 

accordance with the sensitivity of the 

human ear to different frequencies. With 

A-weighting, sound energy at 

frequencies below 1 kHz and above 6 

kHz are de-emphasized and 

approximates the human ear’s response 

to sounds below 55 dB. C-weighting 

corresponds to the relative response to 

the human ear to sound levels above 85 

dB. C-weight scaling is useful for 

analyses of sounds having 

predominantly low-frequency sounds, 

such as sonic booms. 

Description of the Specified Activity 

The NAWCWD is the Navy’s fullspectrum research, development, test, 

and evaluation center of excellence for 

weapons systems associated with air 

warfare, aircraft weapons integration, 

missiles and missile subsystems, and 

assigned airborne electronic warfare 

systems. NAWCWD is a multi-site 

organization that includes the Point 

Mugu Sea Range (Sea Range) and is 

responsible for environmental 

compliance for this Sea Range and SNI. 

NAWCWD plans to continue a launch 

program for missiles and targets from 

several launch sites on SNI. The 

purpose of these launches is to support 

test and training activities associated 

with operations on the Sea Range. 

Figure 1 in the Navy’s application 

provides a regional site map of the 

Range and SNI. A more detailed 

description of the island and proposed 

launch activities are provided later in 

the Point Mugu Sea Range Final EIS/ 

OEIS (NAWCWD 2002) and in reports 

on previous vehicle launch monitoring 

periods (e.g., Holst et al., 2005a, 2008). 

The Sea Range is used by the U.S. and 

allied military services to test and 

evaluate sea, land, and air weapon 

systems; to provide realistic training 

opportunities; and to maintain 

operational readiness of these forces. 

Some of the SNI launches are used for 

practicing defensive drills against the 

types of weapons simulated by these 

vehicles. Some launches may be 

conducted for the related purpose of 

testing new types of targets, to verify 

that they are suitable for use as 

operational targets. 

The vehicles are launched from one of 

several fixed locations on the western 

end of SNI and fly generally westward 

through the Sea Range. Launches are 

expected to involve supersonic and 

subsonic vehicles. Some vehicles are 

launched from the Alpha Launch 

Complex located 190 m (623.4 ft) above 

sea level on the west-central part of SNI 

(see Figure 2 in the Navy’s application). 

The Building 807 Launch Complex, 

used for most launches of smaller 

vehicles, as well as some large ones, is 

at the western end of SNI at 

approximately 11 m (36 ft) above sea 

level. 

The Navy may launch as many as 200 

vehicles from SNI over a 5–yr 

operations program, with up to 40 

launches per year, but this number can 

vary depending on operational 

requirements. Launch timing will be 

determined by operational, 

meteorological, and logistical factors. 

Up to 10 launches per year may occur 

at night. Nighttime launches will only 

take place when required by the test 

objectives, e.g., when testing the 

Airborne Laser system (ABL). For this 

system, missiles must be launched at 

night when the laser is visible. Some 

launch events involve a single vehicle, 

while others involve the launch of 

multiple vehicles either in quick 

succession or at intervals of a few hours. 

The Coyote Supersonic Sea-skimming 

Target (SSST) is anticipated to be the 

primary launch vehicle. However, the 

Navy states that it may become 

necessary to substitute similar vehicles 

or different equipment in some cases. 

While other vehicles may be launched 

in the future, the largest contemplated 

in the Navy’s application and this 

Federal Register notice is 23,000 kg 

Federal Register / Vol. 74, No. 53 / Friday, March 20, 2009 / Proposed Rules 11893 

(50,706 lbs). These larger vehicles 

would be launched up to 3 times per 

year. Details on the types of vehicles to 

be launched are provided in the 

following subsections. 

Coyote 

The Coyote, designated GQM–163A, 

is an expendable SSST powered by a 

ducted-rocket ramjet. It has replaced the 

Vandal, which was used as the primary 

vehicle during launches from 2001– 

2005. The Coyote is similar in size and 

performance to the Vandal. 

The Coyote is capable of flying at low 

altitudes (4 m [13 ft] cruise altitude) and 

supersonic speeds (Mach 2.5) over a 

flight range of 83 km (51.6 mi). This 

vehicle is designed to provide a ground 

launched aerial target system to 

simulate a supersonic, sea-skimming 

Anti-Ship Cruise Missile threat. The 

SSST assembly consists of two primary 

subsystems: MK 70 solid propellant 

booster and the GQM–163A target 

vehicle. The solid-rocket booster is 

approximately 46 cm (18 in) in diameter 

and is of the type used to launch the 

Navy’s ‘‘Standard’’ surface-to-air 

missile. The GQM–163A target vehicle 

is 5.5 m (18 ft) long and 36 cm (14 in) 

in diameter, exclusive of its air intakes. 

It consists of a solid-fuel Ducted Rocket 

(DR) ramjet subsystem, Control and 

Fairing Subassemblies, and the Front 

End Subsystem (FES). Included in the 

FES is an explosive destruct system to 

terminate flight if required. 

The Coyote utilizes the Vandal 

launcher, currently installed at the 

Alpha Launch Complex on SNI with a 

Launcher Interface Kit. A modified 

AQM–37C Aerial Target Test Set is 

utilized for target checkout, mission 

programming, verification of the 

vehicle’s ability to perform the entire 

mission, and homing updates while the 

vehicle is in flight. 

During a typical launch, booster 

separation occurs approximately 5.5 s 

after launch and approximately 2.6 km 

(1.6 mi) downrange, at which time the 

vehicle has a speed of approximately 

Mach 2.35 (Orbital Sciences Corp; 

www.orbital.com). Following booster 

separation, the GQM–163A’s DR ramjet 

ignites, the vehicle reaches its apogee, 

and then dives to 5 m (16.4 ft) altitude 

while maintaining a speed of Mach 2.5. 

During launches from SNI, the lowaltitude phase occurs over water west of 

the island. The target performs preprogrammed maneuvers during the 

cruise and terminal phases, as dictated 

by the loaded mission profile, 

associated waypoints, and mission 

requirements. During the terminal 

phase, the Coyote settles down to an 

altitude of 4 m (13 ft) and Mach 2.3 

until DR burnout. 

During 2003–2007, Coyotes were 

launched from SNI at azimuths of 270– 

300° and elevation angles of 14–22° 

(Holst et al., 2005a, 2008). Coyotes 

produced flat-weighted SPLs (SPL-f) of 

125–134 decibels reference 20 μPa (dB 

re 20 μPa) at distances of 0.8–1.7 km 

(0.5–1.1 mi) from the three-dimensional 

(3–D) closest point of approach (CPA) of 

the vehicle, and 82–93 dB at CPAs of 

2.4–3.2 km (1.5–2 mi) (Holst et al., 

2005a, 2008). Flat-weighted SELs (SELf) ranged from 87 to 119 dB re 20 μPa2•s. 

SELs M-weighted for pinnipeds in air 

(Mpa) ranged from 60 to 114 dB re 20 

μPa2•s, and peak pressures ranged from 

100 to 144 dB re 20 μPa. The reference 

sound pressure (20 μPa) used here and 

throughout the document, is standard 

for airborne sounds. 

Advanced Gun System (AGS) 

At SNI, a howitzer has been used to 

launch test missiles, as the AGS is still 

being developed. The AGS is a gun 

designed for a new class of Destroyer; it 

will be used to launch both small 

missiles and ballistic shells. It is to be 

a fully integrated gun weapon system, 

including a 155–mm (2.2–in) gun, 

integrated control, an automated 

magazine, and a family of advanced 

guided and ballistic projectiles, 

propelling charges, and auxiliary 

equipment. The operational AGS will 

have a magazine capacity of 600 to 750 

projectiles and associated propelling 

charges. The regular charge for the gun 

will replace the booster that is usually 

associated with a surface-launched 

missile. The gun gets the missile up to 

speed, at which point the missile’s 

propulsion takes over. The missile itself 

is relatively quiet, as it does not have a 

booster and is fairly small. However, the 

gun blast is rather strong. Each missile 

launch is preceded by one (sometimes 

two) howitzer firings using a slug. The 

slug is used to verify that the gun barrel 

is properly seated and aligned. 

During 2002–2006, AGS missiles and 

test slugs were launched from SNI at 

azimuths of 235–305° and elevation 

angles of 50–65° (Holst et al., 2005a, 

2008). AGS vehicles resulted in SPL-f 

values of 97–117 dB re 20 μPa, at 

nearshore sites located 0.75–2 km (0.5– 

1.2 mi) from the CPA and 125–127 dB 

at sites located less than 462 m (1,516 

ft) from the CPA. SEL-f levels ranged 

from 90 to 113 dB re 20 μPa2•s, and 

Mpa-weighted SELs ranged from 64 to 

103 dB re 20 μPa2•s. The peak pressure 

ranged from 107 to 135 dB re 20 μPa. 

AGS slugs produced SPL-f values of 

100–133 dB re 20 μPa nearshore. SELf ranged from 88 to 120 dB re 20 μPa2•s, 

Mpa-weighted SELs ranged from 62 to 

103 dB re 20 μPa2•s, and the peak 

pressures were 104 to 139 dB re 20 μPa. 

Rolling Airframe Missile (RAM) 

The Navy/Raytheon RAM is a 

supersonic, lightweight, quick-reaction 

missile. This relatively small missile, 

designated RIM 116, uses the infrared 

seeker of the Stinger missile and the 

warhead, rocket motor, and fuse from 

the Sidewinder missile. It has a hightech radio-to-infrared frequency 

guidance system. The RAM is a solidpropellant rocket 12.7 cm (5 in) in 

diameter and 2.8 m (9.2 ft) long. Its 

launch weight is 73.5 kg (162 lbs), and 

operational versions have warheads that 

weigh 11.4 kg (25 lbs). 

At SNI, RAMs are launched from the 

Building 807 Launch Complex. During 

2001–2007, RAMs were launched at an 

azimuth of 240° and elevation angles of 

8–10° (Holst et al., 2005a, 2008). The 

RAMs resulted in SPL-f up to 126 dB 

near the launcher and 99 dB at a 

nearshore site located 1.6 km (1 mi) 

from the CPA (Holst et al., 2005a, 2008). 

SEL-f ranged from 84 to 97 dB re 20 

μPa2•s, and μpa-weighted SELs were 76 

to 96 dB re 20 μPa2•s. Peak pressure 

ranged from 104 to 117 dB re 20 μPa. 

Arrow Self-defense Missile 

The Arrow is a theater missile defense 

weapon or anti-ballistic missile. It was 

developed in Israel and is designed to 

intercept tactical ballistic missiles. It is 

approximately 6.8 m (22.3 ft) long and 

60 cm (23.6 ft) in diameter. It travels at 

hypersonic speed and has high and low 

altitude interception capabilities. The 

Arrow consists of three main 

components: a phased array radar 

(known as Green Pine), a fire control 

center (called Citron Tree), and a highaltitude interceptor missile that contains 

a powerful fragmentation warhead. It 

also has two solid propellant stages, 

including a booster and sustainer. The 

array radar is capable of detecting 

incoming missiles at a distance of 500 

km (310.7 mi). Once a missile is 

detected, the fire control center 

launches the interceptor missile. The 

interceptor travels at nine times the 

speed of sound and reaches an altitude 

of 50 km (31.7 mi) in less than 3 min. 

The first test of an Arrow in the U.S. 

took place at SNI on July 29, 2004. At 

SNI, Arrows have been launched 

vertically, near the Alpha Launch 

Complex from the Miscellaneous 

Launch Pad (see Figure 2 in the Navy’s 

application), at an azimuth of 285°, 

crossing the beach at an altitude of 

2,134 m (7,001 ft). During these 

launches, Arrows produced SPL-f of 84– 

90 dB re 20 μPa at distances of 1.8–2.7 

11894 Federal Register / Vol. 74, No. 53 / Friday, March 20, 2009 / Proposed Rules 

km (1.1–1.7 mi) from the CPA. SEL-f 

ranged from 96 to 102 dB re μ20 μPa2•s, 

and Mpa-weighted SELs ranged from 92 

to 99 dB re 20 μPa2•s. Peak pressures 

ranged from 100 to 107 dB re μ20 μPa 

(Holst et al., 2005a, 2008). 

Terrier-Black Brant 

The Terrier-Black Brant consists of 

the Terrier Mark 70 booster and the 

Black Brant rocket. The solid-rocket 

booster is approximately 46 cm (18 in) 

in diameter, 394 cm (155 in) long, and 

weighs 1,038 kg (2,288 lbs). The Black 

Brant has a diameter of 44 cm (17 in), 

is 533 cm (209.8 in) long, and weighs 

1,265 kg (2,789 lbs). This vehicle 

reaches an altitude of 203 km (126 mi) 

and has a range of 264 km (164 mi). 

Terrier burnout occurs after 6.2 s at an 

altitude of 3 km (1.9 mi), and Black 

Brant burnout occurs after 44.5 s at an 

altitude of 37.7 km (23.4 mi). On SNI, 

this target will typically be launched 

vertically from the Building 807 Launch 

Complex. The Terrier-Black Brant will 

be launched at night to test the ABL and 

may be used to support other testing 

after its initial use for ABL. 

Terrier-Lynx 

The Terrier-Lynx is a two-stage 

unguided, fin-stabilized rocket. The first 

stage consists of the Terrier Mark 70 

booster, and the second stage is the 

Lynx rocket motor. The Lynx is 36 cm 

(14 in) in diameter and 279 cm (109.8 

in) long. This vehicle reaches an 

altitude of 84 km (52.2 mi) and has a 

range of 99 km (61.5 mi). Terrier 

burnout occurs after 6.2 s at an altitude 

of 2.3 km (1.4 mi), and Lynx burnout 

occurs after 58.5 s at 43.5 km (27 mi). 

On SNI, this target will typically be 

launched vertically from the Building 

807 Launch Complex using the 50k 

(approximately 23,000 kg or 50,000 lbs) 

launcher. Terrier-Lynx targets will be 

launched at night to test the ABL. Both 

the Terrier-Lynx and Terrier-Black Brant 

will use the same Terrier Mk 70 booster 

as the Coyote, so launch sound levels 

should be similar to those from that 

vehicle. 

Other Vehicle Launches 

The Navy may also launch other 

vehicles to simulate various types of 

threat missiles and aircraft, and to test 

the ABL. For example, on August 23, 

2002, a Tactical Tomahawk was 

launched from Building 807 Launch 

Complex, and on September 20, 2001, a 

Terrier-Orion was launched from the 

Alpha Launch Complex. The Tomahawk 

produced an SPL-f of 93 dB re 20 μPa, 

an SEL-f of 107 dB re 20 Pa2•s, and an 

Mpa-weighted SEL of 105 dB re 20 

μPa2•s at a distance of 539 m (1,768.4 

ft) from the CPA; the peak pressure was 

111 dB re 20 μPa. The Terrier-Orion 

resulted in an SPL-f of 91 dB re 20 μPa, 

an SEL-f of 96 dB re 20 μPa2•s, and an 

Mpa-weighted SEL of 92 dB re 20 μPa2•s 

at a distance of 2.4 km (1.5 mi) from the 

CPA; the peak pressure was 104 dB re 

20 μPa. A Falcon was launched from the 

Alpha Launch Complex on April 6, 

2006; it produced an SPL-f of 84 dB re 

20 μPa, an SEL-f of 88 dB re 20 μPa, and 

an Mpa-weighted SEL of 82 dB re 20 

μPa at a beach located north of the 

launch azimuth. Near the launcher, the 

SPL-f was 128 dB re 20 μPa, SEL-f was 

126 dB re 20 μPa, and Mpa-weighted 

SEL was 125 dB re 20 μPa. 

Vehicles of the BQM–34 or BQM–74 

type could also be launched. These are 

small, unmanned aircraft that are 

launched using jet-assisted take-off 

(JATO) rocket bottles; they then 

continue offshore powered by small 

turbojet engines. The larger of these, the 

BQM–34, is 7 m (23 ft) long and has a 

mass of 1,134 kg (2,500 lbs) plus the 

JATO bottle. The smaller BQM–74 is up 

to 420 cm (165.4 in) long and has a mass 

of 250 kg (551 lbs) plus the solid 

propellant JATO bottles. Burgess and 

Greene (1998) reported that A weighted 

SPLs (SPL-A) ranged from 92 dBA re 20 

Pa at a CPA of 370 m to 145 dB at 15 

m (49.2 ft) for a launch that occurred on 

November 18, 1997. 

If launches of other vehicle types 

occur, they would be included within 

the total of 40 launches anticipated per 

year. It is possible that launch 

trajectories could include a wider range 

of angles than shown on Figure 2 in the 

Navy’s application. 

General Launch Operations 

Aircraft and helicopter flights 

between the Point Mugu airfield on the 

mainland, the airfield on SNI, and the 

target sites in the Sea Range will be a 

routine part of a planned launch 

operation. These flights generally do not 

pass at low level over the beaches where 

pinnipeds are expected to be hauled 

out. 

Movements of personnel are restricted 

near the launch sites at least several 

hours prior to a launch for safety 

reasons. No personnel are allowed on 

the western end of SNI during launches. 

Movements of personnel or vehicles 

near the island’s beaches are also 

restricted at other times of the year for 

purposes of environmental protection 

and preservation of cultural resource 

sites. 

Description of Habitat and Marine 

Mammals Affected by the Activity 

A detailed description of the Channel 

Islands/southern California Bight 

ecosystem and its associated marine 

mammals can be found in several 

documents (Le Boeuf and Brownell, 

1980; Bonnell et al., 1981; Lawson et al., 

1980; Stewart, 1985; Stewart and 

Yochem, 2000; Sydeman and Allen, 

1999) and is not repeated here. 

Many of the beaches in the Channel 

Islands provide resting, molting or 

breeding places for several species of 

pinnipeds including: northern elephant 

seals (Mirounga angustirostris), harbor 

seals (Phoca vitulina), California sea 

lions (Zalophus californianus), northern 

fur seals (Callorhinus ursinus), 

Guadalupe fur seals (Arctocephalus 

townsendi), and Steller sea lions 

(Eumetopias jubatus). On SNI, three of 

these species, northern elephant seals, 

harbor seals, and California sea lions, 

can be expected to occur on land in the 

area of the proposed activity either 

regularly or in large numbers during 

certain times of the year. 

Northern fur seals, Guadalupe fur 

seals, and Steller sea lions are far less 

common on SNI. The northern fur seal 

is occasionally sighted on SNI in small 

numbers (Stewart and Yochem, 2000); a 

single female with a pup was sighted on 

the island in July 2007 (NAWCWD, 

2008). It is also possible that individual 

Guadalupe fur seals may be sighted on 

the beaches. The Guadalupe fur seal is 

an occasional visitor to the Channel 

Islands, but breeds mainly on 

Guadalupe Island, Mexico, which is 

approximately 463 km (288 mi) south of 

the Sea Range. The last sighting was of 

a lone individual seen ashore in the 

summer of 2007 (NAWCWD, 2008). The 

Steller sea lion was once abundant in 

these waters, but numbers have 

declined since 1938. No adult Steller 

sea lions have been sighted on land in 

the Channel Islands since 1983 (Stewart 

et al., 1993c in NMFS 2008). Thus, it is 

very unlikely that Steller sea lions will 

be seen on or near SNI beaches. 

Additional information on the 

biology, distribution, and abundance of 

the marine mammal species likely to be 

affected by the launch activities on SNI 

can be found in the Navy’s application 

(see ADDRESSES) and the NMFS Stock 

Assessment Reports, which can be 

found at: http://www.nmfs.noaa.gov/pr/ 

pdfs/sars/po2007.pdf. Please refer to 

those documents for information on 

those species. 

Comments and Responses 

On September 16, 2008, NMFS 

published a notice of receipt of 

application for an LOA in the Federal 

Register (73 FR 53408) and requested 

comments and information from the 

public for 30 days. NMFS received 

comments from the Marine Mammal 

Federal Register / Vol. 74, No. 53 / Friday, March 20, 2009 / Proposed Rules 11895 

Commission (Commission). The 

Commission supports NMFS’ decision 

to publish proposed regulations for the 

specified activities provided that 

appropriate and effective mitigation and 

monitoring activities are incorporated 

into the regulations. NMFS has included 

mitigation and monitoring measures 

into this proposed rule and has 

preliminarily determined that these 

measures will ensure the least 

practicable adverse impact on the 

species or stocks and their habitats. 

Potential Effects of Specified Activities 

on Marine Mammals 

As outlined in previous NMFS 

documents, the effects of noise on 

marine mammals are highly variable, 

and can be categorized as follows (based 

on Richardson et al., 1995): 

(1) The noise may be too weak to be 

heard at the location of the animal (i.e., 

lower than the prevailing ambient noise 

level, the hearing threshold of the 

animal at relevant frequencies, or both); 

(2) The noise may be audible but not 

strong enough to elicit any overt 

behavioral response; 

(3) The noise may elicit reactions of 

variable conspicuousness and variable 

relevance to the well being of the 

marine mammal; these can range from 

temporary alert responses to active 

avoidance reactions, such as stampedes 

into the sea from terrestrial haul-out 

sites; 

(4) Upon repeated exposure, a marine 

mammal may exhibit diminishing 

responsiveness (habituation), or 

disturbance effects may persist; the 

latter is most likely with sounds that are 

highly variable in characteristics, 

infrequent and unpredictable in 

occurrence (as are vehicle launches), 

and associated with situations that a 

marine mammal perceives as a threat; 

(5) Any anthropogenic noise that is 

strong enough to be heard has the 

potential to reduce (mask) the ability of 

a marine mammal to hear natural 

sounds at similar frequencies, including 

calls from conspecifics, and underwater 

environmental sounds such as surf 

noise; 

(6) If mammals remain in an area 

because it is important for feeding, 

breeding, or some other biologically 

important purpose even though there is 

chronic exposure to noise, it is possible 

that there could be noise-induced 

physiological stress; this might in turn 

have negative effects on the well-being 

or reproduction of the animals involved; 

and 

(7) Very strong sounds have the 

potential to cause temporary or 

permanent reduction in hearing 

sensitivity. In terrestrial mammals, and 

presumably marine mammals, received 

sound levels must far exceed the 

animal’s hearing threshold for there to 

be any temporary threshold shift (TTS) 

in its hearing ability. For transient 

sounds, the sound level necessary to 

cause TTS is inversely related to the 

duration of the sound. Received sound 

levels must be even higher for there to 

be risk of permanent hearing 

impairment. 

Potential impacts of the planned 

vehicle launch operations at SNI on 

marine mammals involve both acoustic 

and non-acoustic effects. Acoustic 

effects relate to sound produced by the 

engines of all launch vehicles, and, in 

some cases, their booster rockets. 

Potential non-acoustic effects could 

result from the physical presence of 

personnel during placement of video 

and acoustical monitoring equipment. 

However, careful deployment of 

monitoring equipment is not expected 

to result in any disturbance to 

pinnipeds hauled out nearby. Any 

visual disturbance caused by passage of 

a vehicle overhead is likely to be minor 

and brief as the launch vehicles are 

relatively small and move at great 

speed. 

Behavioral Reactions of Pinnipeds to 

Vehicle Launches 

Noises with sudden onset or high 

amplitude relative to the ambient noise 

level may elicit a behavioral response 

from pinnipeds resting on shore. Some 

pinnipeds tolerate high sound levels 

without reacting strongly, whereas 

others may react strongly when sound 

levels are lower. Available literature 

describing behavioral responses of 

pinnipeds to the types of sound 

recorded near haul-out sites on SNI 

indicates variability in the responses 

(see Figure 25 in the Navy’s 

application). Responses can range from 

momentary startle reactions to animals 

fleeing into the water or otherwise away 

from their resting sites (i.e., stampede). 

Studies of pinnipeds during vehicle 

launch events have demonstrated that 

different pinniped species, and even 

different individuals in the same haulout group, can exhibit a range of 

response from alert to stampede. An 

acoustic stimulus with sudden onset 

(such as a sonic boom) may be 

analogous to a looming visual stimulus 

(Hayes and Saif, 1967), which can be 

especially effective in eliciting flight or 

other responses (Berrens et al., 1988). 

Vehicle launches are unlike many other 

forms of disturbance because of their 

sudden sound onsets, high peak levels 

in some cases, and short durations 

(Cummings, 1993). Strong launch 

sounds are typically detectable near the 

beaches at western SNI for no more than 

a few seconds per launch (Holst et al., 

2005a, 2008). 

Holst et al. (2005a, 2008) summarize 

the systematic monitoring results from 

SNI from mid–2001 through 2007. In 

particular, northern elephant seals seem 

very tolerant of acoustic disturbances 

(Stewart, 1981b; Holst et al., 2008). In 

contrast, harbor seals are more easily 

disturbed. Based on SNI launch 

monitoring results from 2001 to 2007, 

most pinnipeds, especially northern 

elephant seals, would be expected to 

exhibit no more than short-term alert or 

startle responses (Holst et al., 2005a, 

2008). Any localized displacement 

would be of short duration; although 

some harbor seals may leave their haulout site until the following low tide. 

However, Holst and Lawson (2002) 

noted that numbers occupying haul-out 

sites on the next day were similar to 

pre-launch numbers. 

The most common type of reaction to 

vehicle launches at SNI is expected to 

be a momentary ‘‘alert’’ response. 

Previous observations indicate that 

elephant seals, in particular, will rarely 

if ever show more than a momentary 

alert reaction (Stewart, 1981b; Stewart et 

al., 1994b; Holst et al., 2005a, b; 2008) 

even when exposed to noise levels or 

types that caused nearby harbor seals 

and California sea lions to flee the haulout sites. 

Video recordings of pinnipeds around 

the periphery of western SNI during 

launches on SNI in 2001–2007 have 

shown that some pinnipeds react to a 

nearby launch by moving into the water 

or along the shoreline (Holst et al., 

2005a, b; 2008). Pinniped behavioral 

responses to launch sounds were 

usually brief and of low magnitude, 

especially for northern elephant seals. 

California sea lions (especially pups and 

juveniles) exhibited more reaction than 

elephant seals. Harbor seals were the 

most responsive of the three species. 

Northern elephant seals exhibited 

little reaction to launch sounds (Holst et 

al., 2005a, b; 2008). Most individuals 

merely raised their heads briefly upon 

hearing the launch sounds and then 

quickly returned to their previous 

activity pattern (usually sleeping). 

During some launches, a small 

proportion of northern elephant seals 

moved a short distance on the beach, 

away from their resting site, but settled 

within minutes. 

Responses of California sea lions to 

the launches varied by individual and 

age group (Holst et al., 2005a, b; 2008). 

Some exhibited brief startle responses 

and increased vigilance for a short 

period after each launch. Others, 

particularly pups that were previously 

11896 Federal Register / Vol. 74, No. 53 / Friday, March 20, 2009 / Proposed Rules 

playing in groups along the margin of 

the haul-outs, appeared to react more 

vigorously. A greater proportion of 

hauled-out sea lions typically 

responded and/or entered the water 

when launch sounds were louder (Holst 

et al., 2005a, b; 2008). Adult sea lions 

already hauled out would mill about on 

the beach for a short period before 

settling, whereas those in the shallow 

water near the beach did not come 

ashore like the aforementioned pups. 

During the majority of launches at 

SNI, most harbor seals left their haul-out 

sites on rocky ledges to enter the water 

and did not return during the duration 

of the video-recording period (which 

sometimes extended up to several hours 

after the launch ended) (Holst et al., 

2005a, b; 2008). During monitoring the 

day following a launch, harbor seals 

were usually hauled out again at these 

sites (Holst and Lawson, 2002). 

The type of vehicle being launched is 

also important in determining the 

nature and extent of pinniped reactions 

to launch sounds. Holst et al. (2008) 

showed that significantly more 

California sea lions responded during 

Coyote launches than during other 

vehicle launches. AGS launches caused 

the fewest reactions. Elephant seals 

showed significantly less reaction 

during launches involving vehicles 

other than Vandals (Holst et al., 2008). 

The BQM–34 and especially the BQM– 

74 subsonic drone vehicles that may be 

launched from SNI are smaller and less 

noisy than Coyotes. Launches of BQM– 

34 drones from Point Mugu have not 

normally resulted in harbor seals 

leaving their haul out area at the mouth 

of Mugu Lagoon approximately 3.2 km 

(2 mi) to the side of the launch track 

(Lawson et al., 1998). 

In addition to noise, the night 

launches will also emit light. Haul-out 

beaches near Building 807 Launch 

Complex in particular may be affected 

by light during ABL launches. No 

additional responses to the light, above 

and beyond those that are elicited by the 

launch sounds are anticipated. 

Continuation of the proposed launch 

monitoring program (see the 

‘‘Monitoring’’ section later in this 

document) will enable further 

documentation of pinniped responses to 

various launch vehicles with different 

acoustic characteristics and to nighttime 

launches. 

Since the launches are relatively 

infrequent, and of such brief duration, it 

is unlikely that pinnipeds near the 

launch sites will become habituated to 

the sounds. Additionally, the infrequent 

launches (up to 40 per year, of which 

some will be of small vehicles) will 

cause masking for no more than a very 

small fraction of the time during any 

single day (i.e., usually less than 2 s and 

rarely more than 5 s during a single 

launch). NMFS believes that these 

occasional brief episodes of masking 

will have minimal effects on the 

abilities of pinnipeds to hear one 

another or to detect natural 

environmental sounds that may be 

relevant to the animals. 

It is possible that launch-induced 

stampedes could have adverse impacts 

on individual pinnipeds on the west 

end of SNI. However, during vehicle 

launches in 2001–2007, there was no 

evidence of launch-related injuries or 

deaths (Holst et al., 2005a, b; 2008). On 

several occasions, harbor seals and 

California sea lion adults moved over 

pups as the animals moved in response 

to the launches, but the pups did not 

appear to be injured (Holst et al., 2005a, 

2008). Given the large numbers of 

pinnipeds giving birth on SNI, it is 

expected that injuries and deaths will 

occur as a result of natural causes. For 

example, during the 1997–98 El Nino 

event, pup mortality reached almost 90 

percent for northern fur seals at nearby 

San Miguel Island, and some adults may 

have died as well (Melin et al., 2005). 

Pup mortality also increased during this 

period for California sea lions. 

Indirect evidence that launches have 

not caused significant, if any, mortality 

comes from the fact that populations of 

northern elephant seals and especially 

California sea lions on SNI are growing 

rapidly despite similar launches for 

many years. Harbor seal numbers have 

remained stable, but new harbor seal 

haul-out sites have been established at 

locations directly under and near the 

launch tracks of vehicles (see Figure 9 

in the Navy’s application). 

Hearing Impairment of Pinnipeds from 

Vehicle Launches 

Although it is possible that some 

pinnipeds (particularly harbor seals) 

may incur TTS (and possibly, although 

highly unlikely, even slight permanent 

threshold shift (PTS)) during launches 

from SNI, hearing impairment has not 

been shown for pinniped species 

exposed to launch sounds. Thorson et 

al. (1998, 1999) used measurements of 

auditory brainstem response to 

demonstrate that harbor seals did not 

exhibit loss in hearing sensitivity 

following launches of large vehicles at 

Vandenberg Air Force Base (VAFB), 

California. 

There are few published data on TTS 

thresholds for pinnipeds in air exposed 

to impulsive or brief non-impulsive 

sounds. J. Francine, quoted in 66 FR 

41837 (August 9, 2001), has mentioned 

evidence of mild TTS in captive 

California sea lions exposed to a 0.3–s 

transient sound with an SEL of 135 dBA 

re 20 μPa2•s (see also Bowles et al., 

1999). However, mild TTS may occur in 

harbor seals exposed to SELs lower than 

135 dB SEL (A. Bowles, pers. comm., 

2003 in NAWCWD, 2008). Data indicate 

that the TTS threshold on an SEL basis 

may actually be around 129–131 dB re 

20 μPa2•s for harbor seals, within their 

frequency range of good hearing (Kastak 

et al., 2004; Southall et al., 2007). The 

same research teams have found that the 

TTS thresholds of California sea lions 

and elephant seals exposed to strong 

sounds are higher as compared to the 

harbor seal (Kastak et al., 2005; see 

Table 5 in the Navy’s application). 

Based on these studies and other 

available data, Southall et al. (2007) 

propose that single impulsive sounds, 

such as those from a sonic boom, may 

induce mild TTS if the received peak 

pressure is approximately 143 dB re 20 

μPa (peak) or if received frequency 

weighting appropriate for pinnipeds in 

air (Mpa-weighted) SEL is 

approximately 129 dB re 20 μPa2•s. 

Those levels apply specifically to harbor 

seals; those levels are not expected to 

elicit TTS in elephant seals or California 

sea lions (Southall et al., 2007). Less is 

known about levels that may cause PTS, 

but in order to elicit PTS, a single sound 

pulse would probably need to exceed 

the TTS threshold by at least 15 dB or 

more, on an SEL basis (Southall et al., 

2007; see Table 5 in the application). 

Available evidence from launch 

monitoring at SNI in 2001–2007 

suggests that only a small minority (if 

any) of the pinnipeds at SNI are exposed 

to levels of launch sounds that could 

elicit TTS or even PTS (see Holst et al., 

2008). The assumed TTS threshold for 

the species with the most sensitive 

hearing (harbor seal) is 129–131 dB re 

20 μPa2•s (Mpa-weighted), with higher 

values applying to other species (see 

Table 5 in the application). The 

measured SEL values near pinniped 

beaches during vehicle launches at SNI 

during 2001–2007 were less than 129 dB 

re 20 μPa2•s (A- or Mpa-weighted). In 

fact, few if any pinnipeds were exposed 

to SELs greater than 122 dB re 20 μPa2•s 

on an Mpa-weighted basis and greater 

than 118 dBA, even on beaches near 

Building 807 Launch Complex (Holst et 

al., 2008). Sounds at these levels are not 

expected to cause TTS or PTS. However, 

small numbers of northern elephant 

seals and California sea lions may have 

been exposed to peak pressures as high 

as 150 dB re 20 μPa when Vandals 

flying over the beach created a sonic 

boom. That peak-pressure level would 

not be expected to elicit PTS in elephant 

Federal Register / Vol. 74, No. 53 / Friday, March 20, 2009 / Proposed Rules 11897 

seals or California sea lions, but might 

be near the minimum level that could 

elicit PTS in harbor seals if any harbor 

seals at SNI had been exposed to such 

high levels (which apparently did not 

occur; see Holst et al., 2008). Harbor 

seals were not hauled out on beaches 

where such high sound levels were 

measured, and they do not haul out near 

the Building 807 Launch Complex. 

However, it is possible that some harbor 

seals, and perhaps elephant seals and 

California sea lions, did incur TTS 

during launches at SNI, as peakpressure levels at haul-out sites 

sometimes reached greater than or equal 

to 143 dB re 20 μPa when a sonic boom 

occurred. In the event that TTS did 

occur, it would typically be mild and 

reversible. 

Non-auditory Physiological Responses 

to Vehicle Launches 

Wolski (1999) examined the 

physiological responses of pinnipeds to 

simulated sonic booms. He noted that 

harbor seals responded with 

bradycardia, reduced movement, and 

brief apneas (indicative of an orienting 

response). Northern elephant seals 

responded similarly, and the response 

of California sea lions was variable. 

Perry et al. (2002) examined the effects 

of sonic booms from Concorde aircraft 

on harbor seals and gray seals 

(Halichoerus grypus). The authors noted 

that observed effects on heart rate were 

generally minor and not statistically 

significant; gray seal heart rates showed 

no change in response to booms, 

whereas harbor seals showed slightly 

elevated heart rates. 

Humans and terrestrial mammals 

subjected to prolonged exposure to 

noise can sometimes show physiological 

stress. However, even in well-studied 

human and terrestrial mammal 

populations, noise-induced stress is not 

easily demonstrated. There have been 

no studies to determine whether noiseinduced stress occurs in pinnipeds. If 

noise-induced stress does occur in 

marine mammals, it is expected to occur 

primarily in those exposed to chronic or 

frequent noise. It is very unlikely that it 

would occur in animals exposed to only 

a few, very brief noise events over the 

course of a year, as would be the case 

with these proposed activities. 

Summary of Potential Effects on Marine 

Mammals 

Vehicle launches are characterized by 

sudden sound onsets, moderate to high 

peak sound levels (depending on the 

type of vehicle and distance), and short 

sound duration. Effects of vehicle 

launches on some pinnipeds in the 

Channel Islands have been studied. In 

most cases, where pinnipeds have been 

exposed to the sounds of large vehicle 

launches (such as the Titan IV from 

VAFB), animals did not flush into the 

sea unless the sound level to which they 

were exposed was relatively high or of 

an unusual duration or quality (e.g., the 

explosion of a Titan IV). Similarly, at 

SNI, the proportion of responding 

California sea lions and elephant seals 

to vehicle launches are significantly 

higher with increasing SELs; harbor seal 

reactions to launch sounds are more 

variable. 

Thus, responses of pinnipeds on 

beaches to acoustic disturbance arising 

from launches are highly variable. In 

addition, some species (such as harbor 

seals) are more reactive when hauled 

out than are other species (e.g., northern 

elephant seals). Responsiveness also 

varies with time of year and age class, 

with juvenile pinnipeds being more 

likely to react strongly and leave the 

haul-out site. While the reactions are 

variable and can involve occasional 

stampedes or other abrupt movements 

by some individuals, biological impacts 

of these responses appear to be limited. 

The responses are not likely to result in 

significant injury or mortality or longterm negative consequences to 

individuals or pinniped populations on 

SNI. 

Based on measurements of received 

sound levels during previous launches 

at SNI (e.g., Holst et al., 2005a,b; 2008), 

the Navy and NMFS expect that there 

may be some effects on hearing 

sensitivity (TTS) for a few of the 

pinnipeds present, but these effects are 

expected to be mild and reversible. 

Although it is possible that some launch 

sounds as measured close to the 

launchers may exceed the PTS criteria, 

it is unlikely that any pinnipeds would 

be close enough to the launchers to be 

exposed to sounds strong enough to 

cause PTS. Therefore, NMFS anticipates 

that pinnipeds hauled out during 

launches on SNI will only incur shortterm, minimal Level B harassment. 

Numbers of Marine Mammals 

Estimated to be Taken by Harassment 

The marine mammal species NMFS 

believes likely to be taken by Level B 

harassment incidental to vehicle launch 

operations from SNI are harbor seals, 

California sea lions, and northern 

elephant seals. All of these species are 

protected under the MMPA, and none 

are listed under the Endangered Species 

Act (ESA). Any takes are most likely to 

result from operational noise as launch 

vehicles pass near haul-out sites and/or 

associated visual cues. As noted earlier, 

sightings of northern fur seals, Steller 

sea lions, and Guadalupe fur seals have 

been extremely rare or low on SNI. 

Therefore, no takes by harassment are 

anticipated for these three species 

incidental to the proposed activities. 

The Navy provisionally estimates that 

the following numbers of pinnipeds 

may be taken by Level B harassment 

annually: 474 elephant seals; 467 harbor 

seals; and 1,606 California sea lions. 

The animals affected may be the same 

individual animals or may be different 

individuals, depending on site fidelity. 

Based on the results of the marine 

mammal monitoring conducted by the 

Navy during the 2001–2007 launch 

program, the estimated number of 

potential Level B harassment takes 

would actually be less than estimated or 

previously authorized. The criteria used 

by the Navy to estimate take numbers 

for the 2009–2014 program were 

developed specifically for the launches 

identified in the specified activity and 

are based on monitoring data collected 

during the 2001–2007 launch program 

at the same location and involving the 

same rocket types. Section 7.7 of the 

Navy’s application contains a full 

description of how they developed their 

take numbers (see ADDRESSES). 

With the incorporation of mitigation 

measures proposed later in this 

document, the Navy and NMFS expect 

that only Level B incidental harassment 

may occur as a result of the proposed 

activities and that these events will 

result in no detectable impact on marine 

mammal species or stocks or on their 

habitats. 

Potential Effects of Specified Activities 

on Marine Mammal Habitat 

Impacts on marine mammal habitat 

are part of the consideration in making 

a finding of negligible impact on the 

species and stocks of marine mammals. 

Habitat includes, but is not necessarily 

limited to, rookeries, mating grounds, 

feeding areas, and areas of similar 

significance. Harbor seals, California sea 

lions, and northern elephant seals use 

various beaches around SNI as places to 

rest, molt, and breed. These beaches 

consist of sand (e.g., Red Eye Beach), 

rock ledges (e.g., Phoca Reef), and rocky 

cobble (e.g., Vizcaino Beach). Pinnipeds 

continue to use beaches around the 

western end of SNI, and indeed are 

expanding their use of some beaches 

despite ongoing launch activities for 

many years. Thus, periodic launches do 

not prevent pinnipeds from using 

beaches. 

Pinnipeds do not feed when hauled 

out on these beaches, and the airborne 

launch sounds will not persist in the 

water near the island for more than a 

few seconds. Therefore, it is not 

expected that the launch activities will 

11898 Federal Register / Vol. 74, No. 53 / Friday, March 20, 2009 / Proposed Rules 

have any impact on the food or feeding 

success of these pinnipeds. 

Boosters from vehicles (e.g., JATO 

bottles for BQM drone vehicles) may be 

jettisoned shortly after launch and fall 

on the island but not on the beaches. 

Fuel contained in these boosters is 

consumed rapidly and completely, so 

there would be no risk of contamination 

even in the very unlikely event that a 

booster did land on a beach. Overall, the 

proposed vehicle launch activity is not 

expected to cause significant impacts on 

habitats used by pinnipeds on SNI or on 

the food sources that these pinnipeds 

utilize. 

Potential Effects of Specified Activities 

on Subsistence Needs 

NMFS has preliminarily determined 

that the issuance of an LOA for Navy 

target and missile launch activities on 

SNI would not have an unmitigable 

adverse impact on the availability of the 

affected species or stocks for subsistence 

uses since there are no such uses for 

these pinniped species in California. 

Mitigation 

To avoid additional harassment to the 

pinnipeds on beach haul-out sites and 

to avoid any possible sensitizing and/or 

predisposing pinnipeds to greater 

responsiveness to the sights and sounds 

of a launch, the Navy will limit 

activities near the beaches in advance of 

launches. Existing safety rules for 

vehicle launches provide a built-in 

mitigation measure of this type: 

personnel are not normally allowed near 

any of the pinniped haul-out beaches 

that are located close to the flight track 

on the western end of SNI within 

several hours prior to launch. Also, 

because of the presence of colonies of 

sensitive seabirds (as well as pinniped 

haul-out sites) on western SNI, there are 

already special restrictions on personnel 

movements near beaches on which 

pinnipeds haul out. Furthermore, most 

of these beaches are closed to personnel 

year-round. 

The following mitigation measures 

have been incorporated into the 

proposed regulations: (1) The Navy 

must avoid, whenever possible, launch 

activities during harbor seal pupping 

season (February to April), unless 

constrained by factors including, but not 

limited to, human safety, national 

security, or for vehicle launch trajectory 

necessary to meet mission objectives; (2) 

the Navy must limit, whenever possible, 

launch activities during other pinniped 

pupping seasons, unless constrained by 

factors including, but not limited to, 

human safety, national security, or for 

vehicle launch trajectory necessary to 

meet mission objectives; (3) the Navy 

must not launch vehicles from the 

Alpha Complex at low elevation (less 

than 305 m [1,000 ft]) on launch 

azimuths that pass close to pinniped 

haul-out site(s) when occupied; (4) the 

Navy must avoid, where practicable, 

multiple vehicle launches in quick 

succession over haul-out sites when 

occupied, especially when young pups 

are present; and (5) the Navy must limit 

launch activities during nighttime 

hours, except when required by the test 

objectives (e.g., up to 10 nighttime 

launches for ABL testing per year). 

Additionally, during and for some 

time following each launch, personnel 

are not allowed near any of the 

pinniped haul-out beaches that are close 

to the flight track on the western end of 

SNI. Lastly, prior to and after launch 

operations, associated fixed-wing and 

rotary aircraft will maintain an altitude 

of at least 305 m (1,000 ft) when 

traveling near beaches on which 

pinnipeds are hauled out, except in 

emergencies or for real-time security 

incidents (e.g., search-and-rescue, firefighting), which may require 

approaching pinniped haul-outs and 

rookeries closer than 305 m (1,000 ft). 

If post-launch surveys determine that 

an injurious or lethal take of a marine 

mammal has occurred or there is an 

indication that the distribution, size, or 

productivity of the potentially affected 

pinniped populations has been affected, 

the launch procedure and the 

monitoring methods must be reviewed, 

in cooperation with NMFS, and, if 

necessary, appropriate changes must be 

made through modification to an LOA, 

prior to conducting the next launch of 

the same vehicle under that LOA. 

Monitoring 

As part of its application, the Navy 

provided a proposed monitoring plan, 

similar to that adopted for previous 

Incidental Harassment Authorizations 

and regulations (see 66 FR 41834, 

August 9, 2001; 67 FR 56271, September 

3, 2002; 68 FR 52132, September 2, 

2003), for assessing impacts to marine 

mammals from target and missile 

launch activities from SNI. This 

monitoring plan is described in detail in 

the Navy’s application (see ADDRESSES). 

The Navy proposes to conduct the 

following monitoring during the first 

year under an LOA and regulations. 

Land-based Monitoring 

In conjunction with a biological 

contractor, the Navy will continue its 

land-based monitoring program to 

assess effects on the three common 

pinniped species on SNI: northern 

elephant seals, harbor seals, and 

California sea lions. This monitoring 

will occur at three different sites of 

varying distance from the launch site 

before, during, and after each launch. 

The monitoring would be via 

autonomous video cameras. Pinniped 

behavior on the beach will be 

documented prior to, during, and 

following the launch. Additionally, new 

video equipment capable of obtaining 

video during night launches will be 

acquired for the ABL program. 

During the day of each missile launch, 

the observer would place three digital 

video cameras overlooking chosen haulout sites. Each camera would be set to 

record a focal subgroup within the haulout aggregation for a maximum of 4 hr 

or as permitted by the videotape 

capacity. Following a launch, video 

records will be made for up to 1 hr. 

Observers will return to the observing 

sites as soon as it is safe to record the 

numbers and types of pinnipeds that are 

on the haul-out(s). 

Following each launch, all digital 

recordings will be transferred to DVDs 

for analysis. A DVD player/computer 

with high-resolution freeze-frame and 

jog shuttle will be used to facilitate 

distance estimation, event timing, and 

characterization of behavior. Additional 

details of the field methods and video 

and data analysis can be found in the 

Navy’s application. 

Acoustical Measurements 

During each launch, the Navy would 

obtain calibrated recordings of the levels 

and characteristics of the received 

launch sounds. Acoustic data would be 

acquired using three Autonomous 

Terrestrial Acoustic Recorders (ATAR) 

at three different sites of varying 

distances from the target’s flight path. 

ATARs can record sounds for extended 

periods (dependent on sampling rate) 

without intervention by a technician, 

giving them the advantage over 

traditional digital audio tape recorders 

should there be prolonged launch 

delays. To the extent possible, acoustic 

recording locations would correspond 

with the sites where video monitoring is 

taking place. The collection of acoustic 

data would provide information on the 

magnitude, characteristics, and duration 

of sounds that pinnipeds may be 

exposed to during a launch. In addition, 

the acoustic data can be combined with 

the behavioral data collected via the 

land-based monitoring program to 

determine if there is a dose-response 

relationship between received sound 

levels and pinniped behavioral 

reactions. Once collected, sound files 

will be sent to the acoustical contractor 

for sound analysis. Additional details 

regarding the installation and 

calibration of the acoustic instruments 

Federal Register / Vol. 74, No. 53 / Friday, March 20, 2009 / Proposed Rules 11899 

and analysis methods are provided in 

the Navy’s application. 

Reporting 

An interim technical report is 

proposed to be submitted to NMFS 60 

days prior to the expiration of each 

annual LOA issued under these 

regulations, along with a request for a 

follow-on annual LOA. This interim 

technical report will provide full 

documentation of methods, results, and 

interpretation pertaining to all 

monitoring tasks for launches during the 

period covered by the LOA. However, 

only preliminary information would be 

available to be included for any 

launches during the 60–day period 

immediately preceding submission of 

the interim report to NMFS. 

If a freshly dead or seriously injured 

pinniped is found during post-launch 

monitoring, the incident must be 

reported within 48 hours to the NMFS 

Office of Protected Resources and the 

NMFS Southwest Regional Office. 

The proposed 2009–2010 launch 

monitoring activities will constitute the 

eighth year of formal, concurrent 

pinniped and acoustical monitoring 

during launches from SNI. Following 

submission in 2010 of the interim report 

on the first phase of monitoring under 

an LOA, the Navy believes that it would 

be appropriate for the Navy and NMFS 

to discuss the scope for any additional 

launch monitoring work on SNI 

subsequent to the first LOA issued 

under these regulations. In particular, 

some biological or acoustic parameters 

may be documented adequately prior to 

or during the first LOA (2009–2010), 

and it may not be necessary to continue 

all aspects of the monitoring work after 

that period. 

In addition to annual LOA reports, 

NMFS proposes to require the Navy to 

submit a draft comprehensive final 

technical report to NMFS 180 days prior 

to the expiration of the regulations. This 

technical report will provide full 

documentation of methods, results, and 

interpretation of all monitoring tasks for 

launches during the first four LOAs, 

plus preliminary information for 

launches during the first 6 months of 

the final LOA. A revised final technical 

report, including all monitoring results 

during the entire period of the Letter of 

Authorization will be due 90 days after 

the end of the period of effectiveness of 

the regulations. 

ESA 

No species listed under the ESA are 

expected to be affected by these 

activities. Therefore, NMFS has 

determined that a section 7 consultation 

under the ESA is not required. It should 

be noted however that SNI is the 

location to which southern sea otters 

have been translocated in an attempt to 

establish a population separate from 

that in central California. This 

experimental population may be 

affected by the target and missile launch 

activities at SNI. Sea otters are under the 

jurisdiction of the U.S. Fish and 

Wildlife Service (USFWS). Under Public 

Law 99–625, this experimental 

population of sea otters is treated as a 

proposed species for purposes of 

Section 7 when the action (as here) is 

defense related. Proposed species 

require an action agency to confer with 

NMFS or the USFWS under Section 7 of 

the ESA when the action is likely to 

jeopardize the continued existence of 

the species. The information available 

for the Navy’s proposed activities 

described in this document or for 

NMFS’ proposed action of promulgating 

5–yr regulations and the subsequent 

issuance of LOAs to the Navy for those 

activities does not indicate that sea 

otters are likely to be jeopardized. 

Therefore, a consultation is not 

required. 

National Environmental Policy Act 

NMFS has prepared a Draft EA 

analyzing the potential issuance of 

regulations and annual LOAs to the 

Navy for these proposed activities. The 

Draft EA will be made available for 

public comment concurrently with 

these proposed regulations (see 

ADDRESSES). NMFS will either finalize 

the EA and prepare a Finding of No 

Significant Impact or prepare an 

Environmental Impact Statement prior 

to issuance of the final rule. 

Coastal Zone Management Act 

Consistency 

On February 14, 2001, by a 

unanimous vote, the California Coastal 

Commission (CCC) concluded that, with 

the monitoring and mitigation 

commitments the Navy has incorporated 

into their various testing and training 

activities on the Point Mugu Sea Range, 

including activities on SNI, and 

including the commitment to enable 

continuing CCC staff review of finalized 

monitoring plans and ongoing 

monitoring results, the activities are 

consistent with the marine resources, 

environmentally sensitive habitat, and 

water quality policies (Sections 30230, 

30240, and 30231) of the California 

Coastal Act (CCA). Since the activities 

described in these proposed regulations 

are analogous to those reviewed by the 

CCC in 2001, NMFS has determined that 

the activities described in this 

document are consistent to the 

maximum extent practicable with the 

enforceable policies of the CCA. 

National Marine Sanctuaries Act 

According to the Navy, except for 

aircraft and vessel traffic transiting the 

area, none of the Navy’s proposed 

activities would take place within the 

Channel Islands National Marine 

Sanctuary. On December 8, 2008, NMFS 

contacted the National Ocean Service’s 

Office of National Marine Sanctuaries 

(ONMS) regarding NMFS’ action of 

promulgating regulations and issuing 

LOAs for the Navy activities described 

in the Navy’s application and this 

document to determine whether or not 

NMFS’ action is likely to destroy, cause 

the loss of, or injure any sanctuary 

resources. On December 12, 2008, the 

ONMS determined that no further 

consultation with NMFS was required 

on its proposed action as this action is 

not likely to destroy, cause the loss of, 

or injure any national marine sanctuary 

resources. 

Preliminary Determinations 

NMFS has preliminarily determined 

that target and missile launch activities 

and aircraft and helicopter operations 

from SNI, as described in this document 

and in the application for regulations 

and subsequent LOAs, will result in no 

more than Level B harassment of Pacific 

harbor seals, California sea lions, and 

northern elephant seals. The effects of 

these military readiness activities from 

SNI will be limited to short term and 

localized changes in behavior, including 

temporarily vacating haul-outs, and 

possible TTS in the hearing of any 

pinnipeds that are in close proximity to 

a launch pad at the time of a launch. 

NMFS has also preliminarily 

determined that any takes will have no 

more than a negligible impact on the 

affected species and stocks. No take by 

injury and/or death is anticipated, and 

the potential for permanent hearing 

impairment is unlikely. Harassment 

takes will be at the lowest level 

practicable due to incorporation of the 

proposed mitigation measures 

mentioned previously in this document. 

NMFS has proposed regulations for 

these exercises that prescribe the means 

of effecting the least practicable adverse 

impact on marine mammals and their 

habitat and set forth requirements 

pertaining to the monitoring and 

reporting of that taking. Additionally, 

the vehicle launch activities and aircraft 

and helicopter operations will not have 

an unmitigable adverse impact on the 

availability of marine mammal stocks 

for subsistence use, as there are no 

subsistence uses of these three pinniped 

species in California waters. 

11900 Federal Register / Vol. 74, No. 53 / Friday, March 20, 2009 / Proposed Rules 

Information Solicited 

NMFS requests interested persons to 

submit comments, information, and 

suggestions concerning the request and 

the content of the proposed regulations 

to authorize the taking (see ADDRESSES). 

Prior to submitting comments, NMFS 

recommends readers review NMFS’ 

responses to comments made previously 

(see 66 FR 41834, August 9, 2001; 67 FR 

56271, September 3, 2002; 68 FR 24905, 

May 9, 2003; 68 FR 52132, September 2, 

2003) for this action. 

Classification 

The Office of Management and Budget 

has determined that this proposed rule 

is not significant for purposes of 

Executive Order 12866. 

Pursuant to section 605(b) of the 

Regulatory Flexibility Act, the Chief 

Counsel for Regulation of the 

Department of Commerce has 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. 

The NAWCWD, U.S. Navy, is the only 

entity that will be affected by this 

rulemaking, not a small governmental 

jurisdiction, small organization or small 

business, as defined by the Regulatory 

Flexibility Act. As a result, NMFS 

concludes the action would not result in 

a significant economic impact on a 

substantial number of small entities. 

List of Subjects in 50 CFR Part 216 

Exports, Fish, Imports, Indians, 

Labeling, Marine mammals, Penalties, 

Reporting and recordkeeping 

requirements, Seafood, Transportation. 

Dated: March 16, 2009. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, 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 TAKE OF MARINE 

MAMMALS INCIDENTAL TO 

SPECIFIED ACTIVITIES 

1. The authority citation for part 216 

continues to read as follows: 

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

2. Subpart N is added to part 216 to 

read as follows: 

Subpart N—Taking Of Marine Mammals 

Incidental To Target and Missile Launch 

Activities from San Nicolas Island, CA 

Sec. 

216.150 Specified activity and specified 

geographical region. 

216.151 Effective dates. 

216.152 Permissible methods of taking. 

216.153 Prohibitions. 

216.154 Mitigation. 

216.155 Requirements for monitoring and 

reporting. 

216.156 Applications for Letters of 

Authorization. 

216.157 Letters of Authorization. 

216.158 Renewal of Letters of 

Authorization. 

216.159 Modifications of Letters of 

Authorization. 

Subpart N—Taking Of Marine Mammals 

Incidental To Target and Missile Launch 

Activities from San Nicolas Island, CA 

§ 216.150 Specified activity and specified 

geographical region. 

(a) Regulations in this subpart apply 

only to the incidental taking of marine 

mammals specified in paragraph (b) of 

this section by the Naval Air Warfare 

Center Weapons Division, U.S. Navy, 

and those persons it authorizes to 

engage in target missile launch activities 

and associated aircraft and helicopter 

operations at the Naval Air Warfare 

Center Weapons Division facilities on 

San Nicolas Island, California. 

(b) The incidental take of marine 

mammals under the activity identified 

in paragraph (a) of this section is limited 

to the following species: northern 

elephant seals (Mirounga angustirostris), 

harbor seals (Phoca vitulina), and 

California sea lions (Zalophus 

californianus). 

(c) This Authorization is valid only 

for activities associated with the 

launching of a total of 40 Coyote (or 

similar sized) vehicles from Alpha 

Launch Complex and smaller missiles 

and targets from Building 807 on San 

Nicolas Island, California. 

§ 216.151 Effective dates. 

Regulations in this subpart become 

effective upon issuance of the final rule. 

§ 216.152 Permissible methods of taking. 

(a) Under Letters of Authorization 

issued pursuant to § § 216.106 and 

216.157, the U.S. Navy, its contractors, 

and clients, may incidentally, but not 

intentionally, take marine mammals by 

harassment, within the area described in 

§ 216.150, provided the activity is in 

compliance with all terms, conditions, 

and requirements of the regulations in 

this subpart and the appropriate Letter 

of Authorization. 

(b) The taking of marine mammals is 

authorized for the species listed in 

§ 216.150(b) and is limited to Level B 

Harassment. 

§ 216.153 Prohibitions. 

Notwithstanding takings 

contemplated in § 216.150 and 

authorized by a Letter of Authorization 

issued under §§ 216.106 and 216.157, 

no person in connection with the 

activities described in § 216.150 may: 

(a) Take any marine mammal not 

specified in § 216.150(b); 

(b) Take any marine mammal 

specified in § 216.150(b) other than by 

incidental, unintentional harassment; 

(c) Take a marine mammal specified 

in § 216.150(b) if such taking 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 

this subpart or a Letter of Authorization 

issued under §§ 216.106 and 216.157. 

§ 216.154 Mitigation. 

(a) The activity identified in § 216.150 

must be conducted in a manner that 

minimizes, to the greatest extent 

practicable, adverse impacts on marine 

mammals and their habitats. When 

conducting operations identified in 

§ 216.150(c), the mitigation measures 

contained in the Letter of Authorization 

issued under §§ 216.106 and 216.157 

must be implemented. These mitigation 

measures include (but are not limited 

to): 

(1) The holder of the Letter of 

Authorization must prohibit personnel 

from entering pinniped haul-out sites 

below the missile’s predicted flight path 

for 2 hours prior to planned missile 

launches. 

(2) The holder of the Letter of 

Authorization must avoid, whenever 

possible, launch activities during harbor 

seal pupping season (February to April), 

unless constrained by factors including, 

but not limited to, human safety, 

national security, or for vehicle launch 

trajectory necessary to meet mission 

objectives. 

(3) The holder of the Letter of 

Authorization must limit, whenever 

possible, launch activities during other 

pinniped pupping seasons, unless 

constrained by factors including, but not 

limited to, human safety, national 

security, or for vehicle launch trajectory 

necessary to meet mission objectives. 

(4) The holder of the Letter of 

Authorization must not launch vehicles 

from the Alpha Complex at low 

elevation (less than 1,000 feet (305 m)) 

on launch azimuths that pass close to 

pinniped haul-out sites when occupied. 

(5) The holder of the Letter of 

Authorization must avoid, where 

practicable, launching multiple target 

missiles in quick succession over haulVerDate Nov<24>2008 18:26 Mar 19, 2009 Jkt 217001 PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 E:\FR\FM\20MRP1.SGM 20MRP1
Federal Register / Vol. 74, No. 53 / Friday, March 20, 2009 / Proposed Rules 11901 

out sites, especially when young pups 

are present. 

(6) The holder of the Letter of 

Authorization must limit launch 

activities during nighttime hours, except 

when required by the test objectives. 

(7) Aircraft and helicopter flight paths 

must maintain a minimum altitude of 

1,000 feet (305 m) from pinniped haulouts and rookeries, except in 

emergencies or for real-time security 

incidents (e.g., search-and-rescue, firefighting), which may require 

approaching pinniped haul-outs and 

rookeries closer than 1,000 feet (305 m). 

(8) If post-launch surveys determine 

that an injurious or lethal take of a 

marine mammal has occurred or there is 

an indication that the distribution, size, 

or productivity of the potentially 

affected pinniped populations has been 

affected, the launch procedure and the 

monitoring methods must be reviewed, 

in cooperation with NMFS, and, if 

necessary, appropriate changes must be 

made through modification to a Letter of 

Authorization, prior to conducting the 

next launch of the same vehicle under 

that Letter of Authorization. 

(9) Additional mitigation measures as 

contained in a Letter of Authorization. 

(b) [Reserved] 

§ 216.155 Requirements for monitoring 

and reporting. 

(a) Holders of Letters of Authorization 

issued pursuant to §§ 216.106 and 

216.157 for activities described in 

§ 216.150 are required to cooperate with 

NMFS, and any other Federal, state or 

local agency with authority to monitor 

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, NMFS, by letter or telephone, at 

least 2 weeks prior to activities possibly 

involving the taking of marine 

mammals. If the authorized activity 

identified in § 216.150 is thought to 

have resulted in the mortality or injury 

of any marine mammals or in any take 

of marine mammals not identified in 

§ 216.150(b), then the Holder of the 

Letter of Authorization must notify the 

Director, Office of Protected Resources, 

NMFS, or designee, by telephone (301– 

713–2289), and the Administrator, 

Southwest Region, NMFS, or designee, 

by telephone (562–980–3232), within 48 

hours of the discovery of the injured or 

dead animal. 

(b) 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. 

(c) The holder of the Letter of 

Authorization must designate 

biologically trained, on-site 

individual(s), approved in advance by 

the National Marine Fisheries Service, 

to record the effects of the launch 

activities and the resulting noise on 

pinnipeds. 

(d) The holder of the Letter of 

Authorization must implement the 

following monitoring measures: 

(1) Visual Land-Based Monitoring. (i) 

Prior to each missile launch, an 

observer(s) will place 3 autonomous 

digital video cameras overlooking 

chosen haul-out sites located varying 

distances from the missile launch site. 

Each video camera will be set to record 

a focal subgroup within the larger haulout aggregation for a maximum of 4 

hours or as permitted by the videotape 

capacity. 

(ii) Systematic visual observations, by 

those individuals, described in 

paragraph (c) of this section, on 

pinniped presence and activity will be 

conducted and recorded in a field 

logbook a minimum of 2 hours prior to 

the estimated launch time and for no 

less than 1 hour immediately following 

the launch of Coyote and similar types 

of target missiles. 

(iii) Systematic visual observations, 

by those individuals, described in 

paragraph (c) of this section, on 

pinniped presence and activity will be 

conducted and recorded in a field 

logbook a minimum of 2 hours prior to 

launch, during launch, and for no less 

than 1 hour after the launch of the 

BQM–34, BQM–74, Tomahawk, RAM 

target and similar types of missiles. 

(iv) Documentation, both via 

autonomous video camera and human 

observer, will consist of: 

(A) Numbers and sexes of each age 

class in focal subgroups; 

(B) Description and timing of launch 

activities or other disruptive event(s); 

(C) Movements of pinnipeds, 

including number and proportion 

moving, direction and distance moved, 

and pace of movement; 

(D) Description of reactions; 

(E) Minimum distances between 

interacting and reacting pinnipeds; 

(F) Study location; 

(G) Local time; 

(H) Substratum type; 

(I) Substratum slope; 

(J) Weather condition; 

(K) Horizontal visibility; and 

(L) Tide state. 

(2) Acoustic Monitoring. (i) During all 

target missile launches, calibrated 

recordings of the levels and 

characteristics of the received launch 

sounds will be obtained from 3 different 

locations of varying distances from the 

target missile’s flight path. To the extent 

practicable, these acoustic recording 

locations will correspond with the haulout sites where video and human 

observer monitoring is done. 

(ii) Acoustic recordings will be 

supplemented by the use of radar and 

telemetry systems to obtain the 

trajectory of target missiles in three 

dimensions. 

(iii) Acoustic equipment used to 

record launch sounds will be suitable 

for collecting a wide range of 

parameters, including the magnitude, 

characteristics, and duration of each 

target missile. 

(e) The holder of the Letter of 

Authorization must implement the 

following reporting requirements: 

(1) For each target missile launch, the 

lead contractor or lead observer for the 

holder of the Letter of Authorization 

must provide a status report to the 

National Marine Fisheries Service, 

Southwest Regional Office, providing 

reporting items found under the Letter 

of Authorization, unless other 

arrangements for monitoring are agreed 

in writing. 

(2) An initial report must be 

submitted to the Office of Protected 

Resources, and the Southwest Regional 

Office at least 60 days prior to the 

expiration of each annual Letter of 

Authorization. This report must contain 

the following information: 

(i) Timing and nature of launch 

operations; 

(ii) Summary of pinniped behavioral 

observations; 

(iii) Estimate of the amount and 

nature of all takes by harassment or by 

other means. 

(3) A draft comprehensive technical 

report will be submitted to the Office of 

Protected Resources and Southwest 

Regional Office, National Marine 

Fisheries Service, 180 days prior to the 

expiration of the regulations in this 

subpart, providing full documentation 

of the methods, results, and 

interpretation of all monitoring tasks for 

launches to date plus preliminary 

information for missile launches during 

the first 6 months of the final Letter of 

Authorization. 

(4) A revised final technical report, 

including all monitoring results during 

the entire period of the Letter of 

Authorization will be due 90 days after 

the end of the period of effectiveness of 

the regulations in this subpart. 

(5) Both the 60–day and final reports 

will be subject to review and comment 

by the National Marine Fisheries 

Service. Any recommendations made by 

the National Marine Fisheries Service 

must be addressed in the final 

comprehensive report prior to 

11902 Federal Register / Vol. 74, No. 53 / Friday, March 20, 2009 / Proposed Rules 

acceptance by the National Marine 

Fisheries Service. 

(f) Activities related to the monitoring 

described in paragraphs (c) and (d) of 

this section, or in the Letter of 

Authorization issued under §§ 216.106 

and 216.157, including the retention of 

marine mammals, may be conducted 

without the need for a separate 

scientific research permit. 

(g) In coordination and compliance 

with appropriate Navy regulations, at its 

discretion, the National Marine 

Fisheries Service may place an observer 

on San Nicolas Island for any activity 

involved in marine mammal monitoring 

either prior to, during, or after a missile 

launch in order to monitor the impact 

on marine mammals. 

§ 216.156 Applications for Letters of 

Authorization. 

(a) To incidentally take marine 

mammals pursuant to the regulations 

contained in this subpart, the U.S. 

citizen (as defined by § 216.103) 

conducting the activity identified in 

§ 216.150 (Naval Air Warfare Center 

Weapons Division, U.S. Navy) must 

apply for and obtain either an initial 

Letter of Authorization in accordance 

with § 216.157 or a renewal under 

§ 216.158. 

(b) The application must be submitted 

to NMFS at least 30 days before the 

activity is scheduled to begin. 

(c) Applications for a Letter 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 

pinnipeds. 

§ 216.157 Letters of Authorization. 

(a) A Letter of Authorization, unless 

suspended or revoked, will be valid for 

a period of time not to exceed the period 

of validity of this subpart, but must be 

renewed annually subject to annual 

renewal conditions in § 216.158. 

(b) Each Letter of Authorization will 

set forth: 

(1) Permissible methods of incidental 

taking; 

(2) Means of effecting the least 

practicable adverse impact on the 

species, its habitat, and on the 

availability of the species for 

subsistence uses (i.e., mitigation); and 

(3) Requirements for mitigation, 

monitoring and reporting. 

(c) Issuance and renewal of the Letter 

of Authorization will be based on a 

determination that the total number of 

marine mammals taken by the activity 

as a whole will have no more than a 

negligible impact on the affected species 

or stock of marine mammal(s). 

§ 216.158 Renewal of Letters of 

Authorization. 

(a) A Letter of Authorization issued 

under § 216.106 and § 216.157 for the 

activity identified in § 216.150 will be 

renewed annually upon: 

(1) Notification to NMFS that the 

activity described in the application 

submitted under § 216.156 will be 

undertaken and that there will not be a 

substantial modification to the 

described work, mitigation or 

monitoring undertaken during the 

upcoming 12 months; 

(2) Timely receipt of the monitoring 

reports required under § 216.155 (e), 

and the Letter of Authorization issued 

under § 216.157, which has been 

reviewed and accepted by NMFS; and 

(3) A determination by NMFS that the 

mitigation, monitoring and reporting 

measures required under §§ 216.154 and 

216.155 and the Letter of Authorization 

issued under §§ 216.106 and 216.157, 

were undertaken and will be undertaken 

during the upcoming annual period of 

validity of a renewed Letter of 

Authorization. 

(b) If a request for a renewal of a 

Letter of Authorization issued under 

§§ 216.106 and 216.158 indicates that a 

substantial modification to the 

described work, mitigation or 

monitoring undertaken during the 

upcoming season will occur, NMFS will 

provide the public a period of 30 days 

for review and comment on the request. 

Review and comment on renewals of 

Letters of Authorization are restricted 

to: 

(1) New cited information and data 

indicating that the determinations made 

in this document are in need of 

reconsideration, and 

(2) Proposed changes to the mitigation 

and monitoring requirements contained 

in these regulations or in the current 

Letter of Authorization. 

(c) A notice of issuance or denial of 

a renewal of a Letter of Authorization 

will be published in the Federal 

Register. 

§ 216.159 Modifications of Letters of 

Authorization. 

(a) Except as provided in paragraph 

(b) of this section, no substantive 

modification (including withdrawal or 

suspension) to the Letter of 

Authorization by NMFS, issued 

pursuant to §§ 216.106 and 216.157 and 

subject to the provisions of this subpart 

shall be made until after notification 

and an opportunity for public comment 

has been provided. For purposes of this 

paragraph, a renewal of a Letter of 

Authorization under § 216.158, without 

modification (except for the period of 

validity), is not considered a substantive 

modification. 

(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 § 216.150(b), a 

Letter of Authorization issued pursuant 

to §§ 216.106 and 216.157 may be 

substantively modified without prior 

notification and an opportunity for 

public comment. Notification will be 

published in the Federal Register 

within 30 days subsequent to the action. 

[FR Doc. E9–6141 Filed 3–19–09; 8:45 am] 

BILLING CODE 3510–22–S