26580 Federal Register / Vol. 74, No. 105 / Wednesday, June 3, 2009 / Rules and Regulations 

State and county Location and case 

No. 

Date and name of newspaper 

where notice was published Chief executive officer of community Effective date of modification 

Community 

No. 

Tarrant .............. City of Southlake 

(09–06–0528P).

March 3, 2009, March 10, 

2009, Fort Worth Star Telegram.

The Honorable Andy Wambsganss, 

Mayor, City of Southlake, 1400 Main 

Street, Suite 270, Southlake, TX 76092.

February 20, 2009 .......... 480612 

Williamson ........ City of Round Rock 

(09–06–1098P).

April 2, 2009, April 9, 2009, 

Round Rock Leader.

The Honorable Alan McGraw, Mayor, City 

of Round Rock, 221 East Main Street, 

Round Rock, TX 78664.

August 7, 2009 ............... 481048 

Williamson ........ Unincorporated 

areas of 

Williamson County 

(09–06–1098P).

April 2, 2009, April 9, 2009, 

Round Rock Leader.

The Honorable Dan A. Gattis, Williamson 

County Judge, 710 Main Street, Suite 

101, Georgetown, TX 78626.

August 7, 2009 ............... 481079 

Virginia: 

Albemarle ......... Unincorporated 

areas of Albemarle 

County (08–03– 

1578P).

April 8, 2009, April 15, 2009, 

The Daily Progress.

The Honorable David Slutzky, Chairman, 

Albemarle County Board of Supervisors, 401 McIntire Road, Charlottesville, VA 22902.

August 13, 2009 ............. 510006 

Fauquier ........... Unincorporated 

areas of Fauquier 

County (09–03– 

0367P).

April 9, 2009, April 16, 2009, 

Fauquier Times Democrat.

The Honorable R. Holder Trumbo, Jr., 

Chairman, Fauquier County, 10 Hotel 

Street, Suite 208, Warrenton, VA 20186.

August 14, 2009 ............. 510055 

Washington: Pierce Town of Steilacoom 

(08–10–0544P).

April 13, 2009, April 20, 2009, 

The News Tribune.

The Honorable Ron Lucas, Mayor, Town 

of Steilacoom, 1030 Roe Street, 

Steilacoom, WA 98388.

March 31, 2009 .............. 530146 

(Catalog of Federal Domestic Assistance No. 

97.022, ‘‘Flood Insurance.’’) 

Dated: May 21, 2009. 

Deborah S. Ingram, 

Acting Deputy Assistant Administrator for 

Mitigation, Mitigation Directorate, 

Department of Homeland Security, Federal 

Emergency Management Agency. 

[FR Doc. E9–12845 Filed 6–2–09; 8:45 am] 

BILLING CODE 9110–12–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 216 

[Docket No. 090218189–9910–02] 

RIN 0648–AX29 

Taking and Importing Marine 

Mammals; Taking Marine Mammals 

Incidental to Missile Launch Activities 

at San Nicolas Island, CA 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS, upon application from 

the U.S. Navy (Navy), is issuing 

regulations to govern the unintentional 

taking of marine mammals, by 

harassment, incidental to missile launch 

operations from San Nicolas Island 

(SNI), California, for a 5–yr period. The 

Navy’s activities are considered military 

readiness activities pursuant to the 

Marine Mammal Protection Act 

(MMPA), as amended by the National 

Defense Authorization Act of 2004 

(NDAA). These regulations, which allow 

for the issuance of ‘‘Letters of 

Authorization’’ (LOAs) for the 

incidental take of marine mammals 

during the described activities and 

specified time frames, prescribe the 

permissible methods of taking and other 

means of effecting the least practicable 

adverse impact on marine mammal 

species and their habitat, as well as 

requirements pertaining to the 

monitoring and reporting of such taking. 

DATES: Effective June 2, 2009 through 

June 2, 2014. 

ADDRESSES: A copy of the Navy’s 

application, which contains a list of 

references used in this document, and 

NMFS’ Final Environmental Assessment 

(EA) and Finding of No Significant 

Impact (FONSI) may be obtained 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 

20910–3225, 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 final rule may 

also be viewed, by appointment, during 

regular business hours at the above 

address. 

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 

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 if 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 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]. 


dwashington3 on PROD1PC60 with RULES
Federal Register / Vol. 74, No. 105 / Wednesday, June 3, 2009 / Rules and Regulations 26581 

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 missile 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. 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 requested 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 Pa2• 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 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 in the Point Mugu Sea 

Range Final Environmental Impact 

Statement/Overseas Environmental 

Impact Statement (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 missiles, to verify 

that they are suitable for operational 

use. 

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 

(50,706 lb). These larger vehicles would 

be launched up to 3 times per year. A 

detailed description of the activities to 

be conducted by the Navy, including 

details on the types of vehicles to be 

launched, was included in the proposed 

rule (74 FR 11891, March 20, 2009) and 

may also be found in the Navy’s 

application (see ADDRESSES). The 

description of the Coyote SSST has been 

left in this Federal Register document 

with some added information regarding 

the Vandal missile (which was formerly 

the primary launch vehicle) on SNI for 

comparison of the two missiles. 

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 Vandal 

was 7.7 m (25.2 ft) in length, not 

including the booster rocket. It had a 

diameter of 71 cm (28 in), excluding 

fins, with a total span of 2.9 m (9.5 ft). 

The Vandal could reach a maximum 

speed of Mach 2.125 in sea-skimming 

mode. 

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 


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26582 Federal Register / Vol. 74, No. 105 / Wednesday, June 3, 2009 / Rules and Regulations 

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 μPa2s, 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. 

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). Recently, 

there have been sightings of two to three 

Steller sea lions in Southern California 

along the mainland, but there have still 

been no recent sightings out on any of 

the Channel Islands (M. DeAngelis, 

NMFS, Southwest Regional Office, 

2009, pers. comm.). 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/po2008.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 

Commission (Commission). NMFS’ 

response to the Commission’s comments 

are addressed in the proposed rule 

Federal Register notice (74 FR 11891, 

March 20, 2009). On March 20, 2009, 

NMFS published a notice of proposed 

rulemaking (74 FR 11891) on the Navy’s 

request to take marine mammals 

incidental to missile launch activities 

on SNI and requested comments, 

information, and suggestions concerning 

the request. 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 preamble, 

NMFS believes issuance of the 

authorization is appropriate. The 

following are the comments from the 

Commission and NMFS’ responses. 

Comment 1: The Commission 

recommends that NMFS adopt a general 

policy of providing a 60–day comment 

period for all proposed regulations 

issued under section 101(a)(5)(A), and 

in no case less than a 45–day comment 

period, absent a showing of good cause 

that such a comment period is 

impractical, unnecessary, or contrary to 

the public interest, as provided for 

under section 553(b)(3)(B) of the 

Administrative Procedure Act (APA). 

Response: When practical, NMFS may 

provide 45 days for public comment on 

proposed rulemakings. However, in this 

particular case, a 30–day comment 

period was reasonable. The Missile 

Defense Agency (MDA), a customer of 

the Navy range at SNI, has proposed to 

launch a series of four small missile 

targets beginning as soon as possible 

after publication of this final rule. These 

launches are critical steps in a larger 

development and testing program for 

the ABL, a new weapon system being 

developed by MDA as part of its 

national security mission to improve 

military readiness and protect homeland 

security. A delay in implementing the 

regulations would result in a delay of 

testing and development of this critical 

program. (Further explanation is 

provided in the ‘‘Classification’’ section 

of this Federal Register document.) In 

all circumstances, NMFS attempts to 

balance the prevailing conditions with 

the complexity of the rule when setting 

a comment period. Additionally, section 

553(b)(3)(B) of the APA does not specify 

a time requirement for comment periods 

on proposed rulemaking but rather that 


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Federal Register / Vol. 74, No. 105 / Wednesday, June 3, 2009 / Rules and Regulations 26583 

notice must be given if good cause exists 

that a comment period itself is 

impractical, unnecessary, or contrary to 

the public interest. 

NMFS has been issuing MMPA 

authorizations to the Navy to conduct 

these activities on SNI since 2001, 

which has allowed NMFS to develop 

relatively standard mitigation and 

monitoring requirements for these 

activities, so rarely more than one or 

two public comments are received. The 

public was afforded a 30–day comment 

period to submit information and 

suggestions on the preparation of 

proposed regulations beginning on 

September 16, 2008 with the 

publication of the notice of receipt of 

application (73 FR 53408). NMFS 

received only one comment letter at that 

time. Only two organizations or 

members of the public commented on 

the proposed rule. NMFS did not 

receive any other requests to extend the 

comment period. In this particular case, 

NMFS believes that the 30–day 

comment period afforded the public on 

the proposed rulemaking was 

reasonable. 

Comment 2: The Commission 

recommends that NMFS make the 

Navy’s interim report on 2009–2010 

monitoring activities (to be submitted in 

2010), which is called for under the 

proposed rule, available to the 

Commission and others for review and 

comment before authorizing any 

changes to the monitoring program. 

Response: NMFS concurs. NMFS will 

provide a copy of the Navy’s interim 

report submitted in 2010 to the 

Commission and others for review and 

comment before authorizing any 

changes to the monitoring program. 

Comment 3: The Commission 

recommends that NMFS require the 

Navy to investigate any injury or death 

of a marine mammal if the animal’s 

death could be associated with the 

Navy’s activities to determine the cause, 

assess the full impact of the activity, 

determine how the activity should be 

modified to avoid future injuries or 

deaths, and ascertain if additional 

taking authority is needed. 

Response: The Navy is not authorized 

to investigate or handle marine mammal 

carcasses. This must be done by a 

member of the Marine Mammal 

Stranding Network. However, the Navy 

must notify the NMFS Office of 

Protected Resources and NMFS 

Southwest Regional Office within 48 

hours of the discovery of an injured or 

dead marine mammal. Additionally, the 

Stranding Network must be notified 

immediately. The regulations also 

contain a requirement that if an 

injurious or lethal take of a marine 

mammal has occurred, the launch 

procedure and monitoring methods 

must be reviewed, in cooperation with 

NMFS, and, if necessary, appropriate 

changes will be made to an LOA prior 

to conducting the next launch of the 

same vehicle under the LOA. No serious 

injury or mortality is anticipated as a 

result of the Navy’s activities. 

Comment 4: The Commission 

recommends that NMFS require the 

Navy to halt an activity if a marine 

mammal species other than those 

covered by the authorization is observed 

within the operating area. 

Response: This requirement is already 

part of the general conditions contained 

in LOAs issued by NMFS. Conditions 

contained in current and previous LOAs 

for this and other actions generally state 

the type of taking that is permitted and 

also identify the species that are 

authorized for taking. The condition 

then goes on to state that the taking by 

harassment, injury, or death of any other 

species of marine mammal is prohibited 

and may result in the modification, 

suspension or revocation of the LOA. 

Additionally, the taking of any marine 

mammal in a manner prohibited under 

the LOA must be reported to NMFS 

within 48 hours of the taking. Therefore, 

if the Navy sighted a marine mammal 

not covered by the LOA in the area of 

a launch where taking might occur and 

still went forward with the launch, then 

the Navy would be operating in 

violation of the LOA and the MMPA. 

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 

missile 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. Information regarding behavioral 

reactions of pinnipeds to launches, 

hearing impairment of pinnipeds from 

launches, and non-auditory 

physiological responses to launches is 

contained in the Navy’s application and 

the proposed rulemaking (74 FR 11891, 

March 20, 2009). The potential effects 

described in the proposed rule are the 

same as those that would occur under 

the final rule. 

NMFS does not anticipate a 

significant impact on any of the species 

or stocks of marine mammals from 


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26584 Federal Register / Vol. 74, No. 105 / Wednesday, June 3, 2009 / Rules and Regulations 

missile launches on SNI. While the 

reactions of the different species 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 permanent 

threshold shift (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 

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 

and in the proposed rule (74 FR 11891, 

March 20, 2009), sightings of northern 

fur seals, Steller sea lions, and 

Guadalupe fur seals have been 

extremely rare or low on SNI. Therefore, 

no takes 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 described 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. The proposed rule (74 FR 

11891, March 20, 2009) contained a full 

description of the potential effects of the 

missile launch activities on marine 

mammal habitat. Only short-term 

disturbance of marine mammals is 

expected as a result of the proposed 

activities. The Navy’s 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 determined that the 

issuance of an LOA for Navy 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 

regulations: (1) The Navy must avoid 

launch activities during harbor seal 

pupping season (February through 

April), unless constrained by factors 

including, but not limited to, human 

safety, national security, or for launch 

trajectory necessary to meet mission 

objectives; (2) the Navy must limit 

launch activities during other pinniped 

pupping seasons, unless constrained by 

factors including, but not limited to, 

human safety, national security, or for 

launch trajectory necessary to meet 

mission objectives; (3) the Navy must 

not launch missiles 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 

multiple vehicle launches in quick 

succession over haul-out sites when 

occupied, especially when young pups 

are present, except when required by 

mission objectives; and (5) the Navy 

must limit launch activities during 

nighttime hours, except when required 

by mission objectives (e.g., up to 10 

nighttime launches for ABL testing per 

year). 

Additionally, for 2 hr prior to, during, 

and approximately 30 mins 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, 

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-andrescue, fire-fighting, adverse weather 

conditions), 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. 


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Federal Register / Vol. 74, No. 105 / Wednesday, June 3, 2009 / Rules and Regulations 26585 

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 missile launch activities 

from SNI. This monitoring plan is 

described in detail in the Navy’s 

application (see ADDRESSES). The Navy 

will conduct the following monitoring 

during the first year under an LOA and 

the 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 will 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 will place three digital 

video cameras overlooking chosen haulout sites. Each camera will 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 will 

obtain calibrated recordings of the levels 

and characteristics of the received 

launch sounds. Acoustic data will be 

acquired using three Autonomous 

Terrestrial Acoustic Recorders (ATARs) 

at three different sites of varying 

distances from the missile’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 will correspond 

with the sites where video monitoring is 

taking place. The collection of acoustic 

data will 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 

and analysis methods are provided in 

the Navy’s application. 

Reporting 

An interim technical report will 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 

will 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 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 

and NMFS will discuss the scope for 

any additional launch monitoring work 

on SNI subsequent to the first LOA 

issued under these regulations. 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. Prior to making any changes to 

the monitoring plan for years two 

through five of the regulations, NMFS 

would provide a copy of the Navy’s 

interim report submitted in 2010 to the 

Commission and others for review and 

comment. Any modifications to the 

monitoring program will be documented 

through publication in the Federal 

Register. 

In addition to annual LOA reports, 

NMFS is requiring 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 comprehensive 

final technical report, including all 

monitoring results during the entire 

period of the LOA 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 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 activities described in 

this document or for NMFS’ 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 prepared a Draft EA analyzing 

the potential issuance of regulations and 

annual LOAs to the Navy for the period 

2009–2014 and made it available for 

public comment concurrently with the 

proposed rule. NMFS has finalized the 

EA and issued a FONSI for this action. 


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Therefore, preparation of an 

Environmental Impact Statement is not 

necessary for this action. NMFS’ EA and 

FONSI are available upon request (see 

ADDRESSES). 

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. The activities described in 

these regulations are analogous to those 

reviewed by the CCC in 2001. 

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 

consulted with 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. 

Determinations 

Based on the information provided in 

the Navy’s application, NMFS’ EA, this 

document, the public comments 

submitted on the application and 

proposed rule, and the Navy’s 

comprehensive report of the activities 

through 2008, NMFS has determined 

that missile launch activities and 

aircraft and helicopter operations from 

SNI 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 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 mitigation 

measures mentioned previously in this 

document. NMFS’ regulations for these 

exercises 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. 

Classification 

The Office of Management and Budget 

has determined that this rule is not 

significant for purposes of Executive 

Order 12866. 

Good cause exists to waive the 30–day 

delay in effectiveness for this rule 

pursuant to 5 U.S.C. 553(d). The 

mitigation measures contained in this 

final rule are substantially similar to the 

measures contained in the 5–yr rule that 

expired on October 2, 2008. The MDA, 

a customer of the Navy range at SNI, has 

proposed to launch a series of four small 

missile targets beginning as soon as 

possible after publication of this final 

rule. These launches are critical steps in 

a larger development and testing 

program for the ABL, a new weapon 

system being developed by MDA as part 

of its national security mission to 

improve military readiness and protect 

homeland security. A delay in 

implementing the regulations would 

result in a delay of testing and 

development of this critical program. 

Delay in implementing the regulations 

would result in unnecessary additional 

cost to the government related to 

maintaining the launch facilities, 

missiles, and personnel in a ready 

condition. Due to delays in getting 

critical application materials from the 

Navy, NMFS could not process the 

MMPA authorization request any 

sooner. By waiving the 30–day delay in 

effectiveness for the final rule, the Navy 

would be able to minimize conflicts 

with other testing programs scheduled 

for SNI, allowing MDA to proceed with 

an already tight schedule for testing and 

development. The NAWCWD is the only 

entity regulated by this rule. The 

NAWCWD expressly requested that 

NMFS issue the rule and regulations 

and is both willing and able to comply 

with the requirements of NMFS’ final 

regulations and LOA, as it was during 

the course of the previous rules and 

regulations issued to the NAWCWD by 

NMFS to conduct these activities, 

within the 30–day window. 

At the proposed rule stage, the Chief 

Counsel for Regulation of the 

Department of Commerce certified to 

the Chief Counsel for Advocacy of the 

Small Business Administration that this 

rule, if adopted, would not have a 

significant economic impact on a 

substantial number of small entities 

since it would apply only to the 

NAWCWD, Navy, and would have no 

effect, directly or indirectly, on small 

businesses. Because of this certification, 

a regulatory flexibility analysis is not 

required, and none has been prepared. 

Changes from the Proposed Rule 

In addition to minor edits to the rule 

for clarification, NMFS has made the 

following changes to the rule: 

1. The title of the subpart now reads: 

‘‘Subpart N--Taking Of Marine 

Mammals Incidental To Missile Launch 

Activities from San Nicolas Island, CA.’’ 

The word ‘‘target’’ was removed from 

the title and other places in the 

preamble and regulations in order to 

eliminate confusion, since a target is a 

type of missile. 

2. Modified § 216.150(c) to remove 

extraneous detail (i.e., the names of the 

building complexes). 

3. Modified § 216.155(a) to include email as a notification method for 

upcoming activities and that 

notification should occur at least 1 week 

prior to activities possibly involving the 

taking of marine mammals instead of 2 

weeks prior. The procedures used by the 

Navy for finalizing launch schedules 

usually only allow for notice 1 week 

prior to the activity instead of 2 weeks 

prior. 

4. Combined § 216.155(d)(1)(ii) and 

(iii) from the proposed rule since it 

seemed redundant to include both as 

separate conditions. Additionally, the 

time required for video recordings prior 

to the launch was changed from 2 hrs 

to 1 hr since it is not practical to have 

monitoring occur for at least 2 hrs prior 

to a launch. This is due to the fact that 

if several delays occur, the tape could 

run out before the launch happens, and 

then there would be no recordings taken 

during and after the launch, or someone 

would need to get to the recording site 


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and reset the videotape, which could 

then lead to additional delays. 

5. Modified § 216.155(d)(2)(ii) to 

clarify when acoustic recordings will be 

supplemented by the use of radar and 

telemetry systems. 

6. Added § 216.155(e)(2)(iv). 

List of Subjects in 50 CFR Part 216 

Exports, Fish, Imports, Indians, 

Labeling, Marine mammals, Penalties, 

Reporting and recordkeeping 

requirements, Seafood, Transportation. 

Dated: May 28, 2009. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

■ For reasons set forth in the preamble, 

50 CFR part 216 is amended as follows: 

PART 216—REGULATIONS 

GOVERNING THE TAKING AND 

IMPORTING OF MARINE MAMMALS 

■ 1. The authority citation for part 216 

continues to read as follows: 

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

■ 2. Subpart N, consisting of §§ 216.150 

through 216.159, is added to part 216 to 

read as follows: 

Subpart N—Taking Of Marine 

Mammals Incidental To 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 Missile Launch 

Activities from San Nicolas Island, CA 

§ 216.150 Specified activity and specified 

geographical region. 

(a) This subpart applies 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 

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 and smaller) missiles per 

year from San Nicolas Island, California. 

§ 216.151 Effective dates. 

This subpart is effective June 2, 2009 

through June 2, 2014. 

§ 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, as 

discussed in § 216.152; 

(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 launch 

activities during harbor seal pupping 

season (February through April), unless 

constrained by factors including, but not 

limited to, human safety, national 

security, or for launch trajectory 

necessary to meet mission objectives. 

(3) The holder of the Letter of 

Authorization must limit launch 

activities during other pinniped 

pupping seasons, unless constrained by 

factors including, but not limited to, 

human safety, national security, or for 

launch trajectory necessary to meet 

mission objectives. 

(4) The holder of the Letter of 

Authorization must not launch missiles 

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 launching 

multiple missiles in quick succession 

over haul-out sites, especially when 

young pups are present, except when 

required by mission objectives. 

(6) The holder of the Letter of 

Authorization must limit launch 

activities during nighttime hours, except 

when required by mission 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, adverse weather conditions), 

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] 


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§ 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, e-mail, or 

telephone, at least 1 week 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 or recorded on digital video for 

subsequent analysis for no less than 1 

hour prior to the estimated launch time 

and for up to 1 hour immediately 

following each missile launch. 

(iii) 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 

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 missile’s flight path. 

To the extent practicable, these acoustic 

recording locations will correspond 

with the haul-out sites where video 

monitoring is done. 

(ii) Acoustic recordings will be 

supplemented by the use of radar and 

telemetry systems to obtain the 

trajectory of missiles in three 

dimensions, whenever data coverage 

allows. 

(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 

missile. 

(e) The holder of the Letter of 

Authorization must implement the 

following reporting requirements: 

(1) For each 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; and 

(iv) Evidence of compliance with 

mitigation measures. 

(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 comprehensive 

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 

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: 


dwashington3 on PROD1PC60 with RULES
Federal Register / Vol. 74, No. 105 / Wednesday, June 3, 2009 / Rules and Regulations 26589 

(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 this section 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. E9–12948 Filed 6–2–09; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No.070817467–8554–02] 

RIN 0648–XP59 

Magnuson-Stevens Fishery 

Conservation and Management Act 

Provisions; Fisheries of the 

Northeastern United States; Atlantic 

Sea Scallop Fishery; Closure of the 

Elephant Trunk Scallop Access Area to 

General Category Scallop Vessels 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Department of Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS announces that the 

Elephant Trunk Scallop Access Area 

(ETAA) is closed effective 0001, June 1, 

2009, to general category scallop vessels 

for the remainder of the 2009 fishing 

year. This action is based on the 

determination that allowing the ETAA 

to remain open when the Quarter II 

LAGC IFQ fishery opens on June 1, 

2009, will result in an overrun of trip 

and catch quotas for that access area. 

This action is being taken to prevent the 

allocation of general category trips in 

the ETAA from being exceeded during 

the 2009 fishing year, in accordance 

with the regulations implementing 

Framework 19 to the Atlantic Sea 

Scallop Fishery Management Plan 

(FMP) and the Magnuson-Stevens 

Fishery Conservation and Management 

Act. 

DATES: The closure of the ETAA to all 

general category scallop vessels is 

effective 0001, June 1, 2009, through 

February 28, 2010. 

FOR FURTHER INFORMATION CONTACT: Don 

Frei, Fishery Management Specialist, 

(978) 281–9221, fax (978) 281–9135. 

SUPPLEMENTARY INFORMATION: 

Regulations governing fishing activity in 

the Sea Scallop Access Areas are found 

at §§ 648.59 and 648.60. Regulations 

specifically governing general category 

scallop vessel operations in the ETAA 

are specified at § 648.59(e)(4)(ii). These 

regulations authorize vessels issued a 

valid general category scallop permit to 

fish in the ETAA under specific 

conditions, including a total of 1,964 

trips that may be taken by general 

category vessels during the 2009 fishing 

year. The regulations at § 648.59(e)(4)(ii) 

require the ETAA to be closed to general 

category scallop vessels once the 


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