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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - RIN 0648-XP67

# AGENCY:

National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce. 

# ACTION:

Notice of issuance of a Letter of Authorization. 

# SUMMARY:

In accordance with the Marine Mammal Protection Act (MMPA), as amended, and implementing regulations, notification is hereby given that a letter of authorization (LOA) has been issued to the Naval Air Warfare Center Weapons Division, U.S. Navy (Navy), to take three species of seals and sea lions incidental to missile launch activities from San Nicolas Island (SNI), California, a military readiness activity. 

# DATES:

Effective June 4, 2009, through June 3, 2010.

# ADDRESSES:

The LOA and supporting documentation are available for review by writing to P. Michael Payne, Chief, Permits, Conservation, and Education Division, Office of Protected Resources, National Marine Fisheries Service (NMFS), 1315 East-West Highway, Silver Spring, MD 20910-3225 or by telephoning one of the contacts listed below (FOR FURTHER INFORMATION CONTACT). Documents cited in this notice may be viewed, by appointment, during regular business hours, at the aforementioned address and at the Southwest Regional Office, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802.

# FOR FURTHER INFORMATION CONTACT:

Candace Nachman, Office of Protected Resources, NMFS, (301) 713-2289 ext. 156, or Monica DeAngelis, NMFS, (562) 980-3232.

# SUPPLEMENTARY INFORMATION:

## Background

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

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

                    Regulations governing the taking of Pacific harbor seals (                    *Phoca vitulina richardsi*), northern elephant seals (                    *Mirounga angustirostris*), and California sea lions (                    *Zalophus californianus*), by harassment, incidental to missile launch activities at SNI, were issued on June 2, 2009, and remain in effect until June 2, 2014 (74 FR 26580, June 3, 2009). For detailed information on this action, please refer to that document. These regulations include mitigation, monitoring, and reporting requirements for the incidental take of marine mammals during missile launches at SNI.                

                    This LOA is effective from June 4, 2009, through June 3, 2010, and authorizes the incidental take of the three marine mammal species listed above that may result from the                           ( print page 27290)                        launching of up to 40 missiles at SNI per year. Up to 10 launches per year may occur at night. Nighttime launches will only occur when required by the test objectives, e.g., when testing the Airborne Laser system (ABL). Harbor seals, California sea lions, and elephant seals are found on various haul-out sites and rookeries on SNI.                

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. The noise generated by Navy activities may result in the incidental harassment of pinnipeds, both behaviorally and in terms of physiological (auditory) impacts. The noise and visual disturbances from missile launches may cause the animals to move towards or enter the water.

Take of pinnipeds will be minimized through implementation of the following mitigation measures: (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. 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, fire-fighting, adverse weather conditions), which may require approaching pinniped haul-outs and rookeries closer than 305 m (1,000 ft). Additionally, monitoring methods will be reviewed by NMFS if post-launch surveys determine that an injurious or lethal take of a marine mammal occurred. The Navy will also use monitoring surveys and time-lapse video to monitor the animals before, during, and after missile launches. Reports will be submitted to NMFS after each LOA expires, and a final comprehensive report, which will summarize all previous reports and assess cumulative impacts, will be submitted before the rule expires. This LOA will be renewed annually based on review of the annual monitoring report.

Dated: June 3, 2009.

Helen M. Golde,

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

[FR Doc. E9-13501 Filed 6-8-09; 8:45 am]

BILLING CODE 3510-22-S