[Federal Register Volume 74, Number 105 (Wednesday, June 3, 2009)]
[Rules and Regulations]
[Pages 26580-26589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12948]


=======================================================================
-----------------------------------------------------------------------

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].

[[Page 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 microPa, and for energy, the sound exposure level 
(SEL) is described in terms of dB re Pa\2\<bullet> 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 microPa. 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 C-weighted (dBC) sound levels. A-
weighting 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 full-spectrum 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

[[Page 26582]]

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 low-altitude phase occurs over water west 
of the island. The target performs pre-programmed 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[deg] and elevation angles of 14-22[deg] (Holst et al., 2005a, 
2008). Coyotes produced flat-weighted SPLs (SPL-f) of 125-134 decibels 
reference 20 microPa (dB re 20 microPa) 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 (SEL-f) ranged from 87 
to 119 dB re 20 microPa\2\<bullet> s. SELs M-weighted for pinnipeds in 
air (Mpa) ranged from 60 to 114 dB re 20 microPa\2\s, and peak 
pressures ranged from 100 to 144 dB re 20 microPa. The reference sound 
pressure (20 microPa) 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

[[Page 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

[[Page 26584]]

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 long-term 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 short-term, 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-and-rescue, 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.

[[Page 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 haul-out sites. Each 
camera will be set to record a focal subgroup within the haul-out 
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.

[[Page 26586]]

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 Sec.  216.150(c) to remove extraneous detail (i.e., the 
names of the building complexes).
    3. Modified Sec.  216.155(a) to include e-mail 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 Sec.  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

[[Page 26587]]

and reset the videotape, which could then lead to additional delays.
    5. Modified Sec.  216.155(d)(2)(ii) to clarify when acoustic 
recordings will be supplemented by the use of radar and telemetry 
systems.
    6. Added Sec.  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.

0
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

0
1. The authority citation for part 216 continues to read as follows:

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

0
2. Subpart N, consisting of Sec. Sec.  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


Sec.  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.


Sec.  216.151  Effective dates.

    This subpart is effective June 2, 2009 through June 2, 2014.


Sec.  216.152  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec.  
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 Sec.  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 Sec.  216.150(b) and is limited to Level B Harassment.


Sec.  216.153  Prohibitions.

    Notwithstanding takings contemplated in Sec.  216.150 and 
authorized by a Letter of Authorization issued under Sec. Sec.  216.106 
and 216.157, no person in connection with the activities described in 
Sec.  216.150 may:
    (a) Take any marine mammal not specified in Sec.  216.150(b);
    (b) Take any marine mammal specified in Sec.  216.150(b) other than 
by incidental, unintentional harassment, as discussed in Sec.  216.152;
    (c) Take a marine mammal specified in Sec.  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 
Sec. Sec.  216.106 and 216.157.


Sec.  216.154  Mitigation.

    (a) The activity identified in Sec.  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 Sec.  216.150(c), the mitigation measures 
contained in the Letter of Authorization issued under Sec. Sec.  
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 haul-outs and rookeries, 
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 
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]

[[Page 26588]]

Sec.  216.155  Requirements for monitoring and reporting.

    (a) Holders of Letters of Authorization issued pursuant to 
Sec. Sec.  216.106 and 216.157 for activities described in Sec.  
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 
Sec.  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 
Sec.  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 haul-out 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 Sec. Sec.  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.


Sec.  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 Sec.  
216.103) conducting the activity identified in Sec.  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 Sec.  
216.157 or a renewal under Sec.  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:

[[Page 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.


Sec.  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 Sec.  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).


Sec.  216.158  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. Sec.  216.106 and 
216.157 for the activity identified in Sec.  216.150 will be renewed 
annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  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 Sec.  
216.155(e), and the Letter of Authorization issued under Sec.  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 Sec. Sec.  216.154 and 216.155 and 
the Letter of Authorization issued under Sec. Sec.  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 Sec.  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.


Sec.  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 Sec. Sec.  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 Sec.  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 well-being of the species 
or stocks of marine mammals specified in Sec.  216.150(b), a Letter of 
Authorization issued pursuant to Sec. Sec.  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