[Federal Register Volume 68, Number 90 (Friday, May 9, 2003)]
[Proposed Rules]
[Pages 24905-24913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-11613]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 030421095-3095-01; I.D. 111902C]
RIN 0648-AQ61


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to Missile Launch Operations from San Nicolas Island, CA

AGENCY:  National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY:  NMFS has received an application from the U.S. Navy 
requesting a Letter of Authorization (LOA) for the harassment of small 
numbers of pinnipeds incidental to missile launch operations from San 
Nicolas Island, CA (SNI). By this document, NMFS is proposing 
regulations to govern that take. In order to issue the LOA and issue 
final regulations governing the take, NMFS must determine that the 
taking will have a negligible impact on the affected species and stocks 
of marine mammals, will be at the lowest level practicable, and will 
not have an unmitigable adverse impact on the availability of the 
species or stock(s) for subsistence uses. NMFS invites comment on the 
application and the regulations.

DATES: Comments must be postmarked no later than June 23, 2003. 
Comments will not be accepted if submitted via e-mail or the Internet.
    Comments regarding the burden-hour estimate or any other aspect of 
the collection of information requirement contained in this rule should 
be sent to the Chief, and to the Office of Information and Regulatory 
Affairs, Office of Management and Budget (OMB), Attention: NOAA Desk 
Officer, Washington, DC 20503.

ADDRESSES:  Comments should be addressed to the Chief, Marine Mammal 
Conservation Division, Office of Protected Resources, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-
3226. A copy of the application and a list of references used in this 
document are available and may be obtained by writing to this address 
or by telephoning the contact listed here (see FOR FURTHER INFORMATION 
CONTACT).

[[Page 24906]]


FOR FURTHER INFORMATION CONTACT:  Kenneth R. Hollingshead (301) 713-
2322, ext. 128.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(A) of the Marine Mammal Protection Act (MMPA) (16 
U.S.C. 1361 et seq.) directs 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 regulations are 
issued.
    Permission may be granted for periods of 5 years or less if the 
Secretary finds that the taking will be small, have a negligible impact 
on the species or stock(s) of affected marine mammals, and will not 
have an unmitigable adverse impact on the availability of the species 
or stock(s) for subsistence uses, and if regulations are prescribed 
setting forth the permissible methods of taking and the requirements 
pertaining to the monitoring and reporting of such taking. 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.
    Under section 3(18)(A), The MMPA defines ``harassment'' as:
    any act of pursuit, torment, or annoyance which (i) has the 
potential to injure a marine mammal or marine mammal stock in the 
wild; or (ii) has the potential to disturb a marine mammal or marine 
mammal stock in the wild by causing disruption of behavioral 
patterns, including, but not limited to, migration, breathing, 
nursing, breeding, feeding, or sheltering.
    (B) The term ``Level A harassment'' means harassment described 
in subparagraph (A)(i).
    (C) The term ``Level B harassment'' means harassment described 
in subparagraph (A)(ii).

Summary of Request

    On October 23, 2002, NMFS received an application from the Naval 
Air Weapons Station, China Lake (NAWS), under section 101(a)(5)(A) of 
the MMPA, requesting an authorization, effective from August 26, 2003 
through August 25, 2008, for the harassment of small numbers of three 
species of marine mammals incidental to target missile launch 
operations conducted by the Naval Air Warfare Center Weapons Division 
(NAWCWD) on SNI, one of the Channel Islands in the Southern California 
Bight. These regulations, if implemented, would allow NMFS to issue an 
annual LOA to NAWS, which would replace the process of issuance of 
annual Incidental Harassment Authorizations (IHAs) under section 
101(a)(5)(D) of the MMPA (see 66 FR 41843, August 9, 2001; 67 FR 56271, 
September 3, 2002). This action is being undertaken in part based upon 
recommendations made on May 23, 2001 and August 6, 2002 by the Marine 
Mammal Commission, under section 202(a)(4) of the MMPA. The current IHA 
expires on August 26, 2003.
    According to the NAWS' application, these operations may occur at 
any time during the year depending on test and training requirements 
and meteorological and logistical limitations. On occasion, two or 
three launches may occur in quick succession on a single day. NAWS 
anticipates an average of 40 launches annually of Vandal (or similar 
sized) vehicles from SNI's Alpha Launch Complex (ALC) and smaller 
supersonic and subsonic missiles and targets from either ALC or the 
Building 807 Launch Site (Building 807). Launches at this level would 
be an increase as the NAWCWD conducted a total of 19 launches 
(including one dual launch) of Vandal rockets (14 launches) and 5 other 
missiles and targets from SNI between August 15, 2001 and July 18, 2002 
under an IHA.
    The purpose of these launches is to support activities associated 
with operations on the NAWCD's Point Mugu Sea Range. The Sea Range is 
used by the U.S. and Allied military services to test and evaluate sea, 
land, and air weapon systems; to provide realistic training 
opportunities; and to maintain operational readiness of these forces. 
Some of the SNI launches are used for practicing defensive drills 
against the types of weapons simulated by these vehicles. Some launches 
may be conducted for the related purpose of testing new types of 
targets, to verify that they are suitable for use as operational 
targets. While SNI is under the land management responsibility of NAWS, 
planned missile and other target launches are conducted by the NAWCWD. 
A detailed description of the operations is contained in the NAWS 
application (NAWS, 2002) which is available upon request (see 
ADDRESSES).

Measurement of Airborne Sound Levels

    The following section is provided to facilitate understanding of 
airborne and impulsive noise characteristics. In its application, NAWS 
has referenced both pressure and energy measurements for sound levels. 
For pressure, the sound pressure level (SPL) is described in terms of 
decibels (dB) re micro-Pascal (micro-Pa), and for energy, the sound 
exposure level (SEL) is described in terms of dB re micro-Pa\2\ -
second. 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 micro-Pa, which is 26 dB above the underwater 
sound pressure reference of 1 micro-Pa. 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.
    While it is unknown whether the pinniped ear responds similarly to 
the human ear, a study by C. Malme (pers. commun. to NMFS, March 5, 
1998) found that for predicting noise effects, the Navy believes that 
A-weighting is better than unweighted pressure levels because the 
pinniped's highest in-air hearing sensitivity is at higher frequencies 
than that of humans. In this document, whenever possible sound levels 
have been provided with A-weighting.

Description of the Specified Activity

    In general, launch vehicles are the Vandal and a variety of other 
supersonic and subsonic missiles and targets. Most other vehicles used 
would be similar in size and weight or slightly smaller and would have 
characteristics generally similar to the Vandal. However, NAWS also has 
requested a marine mammal take authorization for up to 3 launches 
annually for vehicles that may be larger than the Vandal, but would be 
under 50,000 lbs (23,000 kilograms (kg)) in weight.

Vandal Target Missiles

    The Vandal (designated MQM-8G) target missile is a relatively 
large, air-breathing (ramjet) vehicle with no

[[Page 24907]]

explosive warhead that is designed to provide a realistic simulation of 
the mid-course and terminal phase of a supersonic anti-ship cruise 
missile. These missiles are 7.7 m (25.2 ft) in length with a mass at 
launch of 3,674 kg (8,100 lbs) including the solid propellant booster. 
There are variants of the Vandal; they all have the same dimensions, 
but differ in their operational range. The Vandals are remotely 
controlled, non-recoverable missiles. At launch, the Vandal is 
accelerated for several seconds by a solid propellant rocket booster to 
a speed sufficient for the ram-jet engine to start. After several 
seconds of thrust, the booster is discarded, falls into the water of 
the Sea Range, and the Vandal continues along its flight path at 
supersonic speed under ramjet power.
    The Vandal and most other targets are launched from the ALC on the 
west-central part of SNI, a land-based launch site. The ALC is 192 m 
(630 ft) above sea level and is approximately 2 kilometers (km)(1.25 
miles (mi)) from the nearest pinniped haul-out site. Launch 
trajectories from ALC may vary from a near-vertical liftoff, crossing 
the west end of SNI at an altitude of approximately 3,962 m (13,000 ft) 
to a nearly horizontal liftoff, crossing the west end of SNI at an 
altitude of approximately 305 m (1,000 ft). However, to date, most 
Vandal launches during NAWS first IHA monitoring program had low angles 
(8 degrees) crossing the SNI beaches at an altitude of about 1,300 ft 
(396 m)(Lawson, 2002). Four Vandals however, had high angle (42 
degrees) profiles, crossing SNI beaches at an altitude of about 9,600 
ft (2,926 ft)(Lawson, 2002).
    Vandal launches produce strong noise levels. Sound measurements 
collected during two Vandal launches in 1997 and 1999 indicated 
received A-weighted SPLs ranged from 123 dB (re 20 micro-Pa) (SEL of 
126 dB re 20 micro-Pa2 -sec) at 945 m (3,100 ft) to 136 dB (re 20 
[mu]Pa) (SEL of 131 dB re 20 micro-Pa\2\ -sec) at 370 m (1,215 ft) 
(Burgess and Greene, 1998; Greene, 1999). The most intense sound 
exposure occurred during the first 0.4 to 4.1 seconds after launch 
(Greene, 1999; Greene and Malme, 2002). However, what is important for 
this action is not the noise level near the launch site but the noise 
level over the pinniped haulouts on the SNI beaches. This will be 
discussed later in this document.

Supersonic and Subsonic Targets and Other Missiles

    The Navy also plans to launch other subsonic and supersonic 
vehicles to simulate various types of threat missiles and aircraft. 
These are small unmanned aircraft that are launched using jet-assisted 
take-off (JATO) rocket bottles. Once launched, they continue offshore 
where they are used in training exercises to simulate various types of 
subsonic threat missiles and aircraft. The larger target, BQM-34, is 7 
m (23 ft) long and has a mass of approximately 1,134 kg (2,500 lbs) 
plus the JATO bottle. The smaller BQM-74, is 420 centimeters (cm) 
(165.5 inches (in)) long and has a mass of approximately 250 kg (550 
lbs) plus the JATO bottle. Additional types of small vehicles that may 
be launched include the Exocet and Tomahawk missiles, and the Rolling 
Airframe Missile (RAM).
    All of these smaller targets are launched from either the ALC or 
from Building 807. Building 807 is approximately 10 m (30 ft) above sea 
level and accommodates several fixed and mobile launchers that range 
from 30 m (98 ft) to 150 m (492 ft) from the nearest shoreline. For 
these smaller vehicles, launch trajectories from Building 807 may range 
from 6 to 45 degrees and cross over the nearest beach at altitudes from 
15 to 190 m (50 to 625 ft).
    Sound measurements were collected from the launch of a BQM-34S at 
the Point Mugu Naval Air Station (NAS) in 1997. Burgess and Greene 
(1998) found that for this launch, the A-weighted SPL ranged from 92 dB 
(re 20 micro-Pa) (SEL of 102.2 dB re 20 micro-Pa2 -sec) at 370 m (1,200 
ft) to 145 dB (re 20 micro-Pa) (SEL of 142.2 dB re 20 micro-Pa2 -sec) 
at 15 m (50 ft). These estimates are approximately 20 dB lower than 
that of a Vandal launch at similar distances (Greene, 1999). The 
measured Terrior Orion SPL ranged from 89 to 138 dB and the SEL from 93 
to 138 dB, although the SPL/SEL of 138 dB appears to be anomalously 
high (Lawson, 2002). The SPL/SELs for the AGS launches ranged from 95 
to 150 dB (93 to 137 dB SEL) and the RAM launch SPL was 126 dB (131 dB 
SEL). It should be noted that these measurements were all flat-
weighted, meaning that A-weighted SPL/SELs values were several decibels 
lower.

General Launch Operations

    Aircraft and helicopter flights between NAS on the mainland, the 
airfield on SNI and the target sites in the Sea Range will be a routine 
part of any planned launch operation. These operational flights do not 
pass at low level over the beaches where pinnipeds are expected to be 
hauled out. In addition, movements of personnel are restricted near the 
launch sites 2 hours prior to a launch, no personnel are allowed on the 
western end of SNI during Vandal and other vehicle launches, and 
various environmental protection restrictions exist near the island's 
beaches during other times of the year.

Comments and Responses

    On March 11, 2003 (68 FR 11527), NMFS published a notice of receipt 
of the Navy's application for a small take authorization and requested 
comments, information and suggestions concerning the request and the 
structure and content of regulations to govern the take. During the 30-
day public comment period, NMFS received comments from the Marine 
Mammal Commission (Commission) and the Stop LFAS Worldwide Network 
(Stop LFAS). The Commission supports NMFS' intent to publish proposed 
small take regulations for the Navy's activities on SNI provided that 
the mitigation and monitoring activities described in the NAWS petition 
for regulations are incorporated into the proposal.
    Comment 1: The Stop LFAS states that underwater marine impacts due 
to missile testing will not be known unless an environmental impact 
statement is prepared.
    Response: In March, 2002, the NAWCWD prepared and released to the 
public a Final Environmental Impact Statement/Overseas Environmental 
Impact Statement on the NAWCPNS Point Mugu Sea Range activities (Final 
EIS). This Final EIS analyzed in detail the potential for impacts on 
marine mammals including the Eastern North Pacific gray whale. In 
addition, on August 9, 2001 (66 FR 41834), NMFS released an 
Environmental Assessment/Finding of No Significant Impact on the 
issuance of a small take authorization for Vandal and other rocket and 
missile launches at SNI in 2001. The potential for gray whales (or 
other cetaceans) to be taken by harassment, injury or mortality is 
virtually nonexistent for several reasons, including low numbers 
offshore of SNI (< 10 percent of population), seasonality (spring/
autumn), transitory behavior (non-feeding) off SNI, infrequent and low 
number of missile launches, airborne noise levels less than levels that 
could potentially cause temporary threshold shift (TTS), and a narrow 
window (maximum of 13 degree radius from perpendicular from the launch 
vehicle) for sound penetration into the water (i.e., almost all sounds 
hitting the water surface are reflected). For information on 
calculating ``take'' levels and the potential for marine mammals to be 
taken by this activity, please refer to the Navy's Final EIS on this 
action.

[[Page 24908]]

    Comment 2: The Stop LFAS noted that in 2001, the State of 
California's Coastal Commission (CCC) did not have the benefit of 
information which has since come about as a result of recent litigation 
regarding noise issues and the potential harm which noise may have on 
marine mammals. Therefore, there is a need for greater environmental 
scrutiny than may have been suspected by the CCC over two years ago.
    Response: On February 14, 2001, the 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. Federal regulations implementing the Coastal Zone Management Act 
(CZMA; 15 CFR part 930.46(a)) instituted procedures for supplemental 
coordination if, among other reasons, there is significant new 
information relevant to the proposed activity and its effect on any 
coastal use or resource. NMFS is unaware of any significant new 
information that would warrant supplemental coordination, but NMFS has 
forwarded this document to the CCC for review.
    Comment 3: The Stop LFAS asked ``whatever monitoring would there be 
to gauge underwater responses from submerged marine life? How do we 
know that panic and death would not be assured?''
    Response: See response to comment 1. Essentially, most airborne 
noise will be reflected at the water surface, significantly limiting 
penetration into the water column. Also, since the airborne sounds are 
less than would cause TTS, and propagation of those sounds that 
penetrate the water surface would quickly reduce to insignificant 
levels, it is unlikely that any cetacean would be affected by launch 
noises. Therefore, underwater monitoring is not considered necessary. 
However, NMFS would welcome suggestions on how to establish a practical 
monitoring program given the infrequency of both launches, low density 
of offshore marine mammals and the need to ensure personnel safety 
during launches.

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 species of pinnipeds including: northern 
elephant seals (Mirounga angustirostris), harbor seals (Phoca 
vitulina), California sea lions (Zalophus californianus), northern fur 
seals (Callorhinus ursinus), 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. Descriptions of the biology 
and distribution of these three species and others in the region can be 
found in NAWS (2002), Stewart and Yochem (2000, 1994), Sydeman and 
Allen (1999), Lowry et al. (1996), Schwartz (1994), Lowry (1999) and 
several other documents (Barlow et al., 1997; NMFS, 2000; NMFS, 1992; 
Koski et al., 1998; Gallo-Reynoso, 1994; Stewart et al., 1987). General 
information on harbor seals and other marine mammal species found in 
Central California waters can be found in Caretta et al. (2001, 2002), 
which are available at the following URL: http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_Program/ sars.html. Please refer to 
those documents and the application for further information on these 
species.

Potential Effects of Target Missile Launches and Associated Activities 
on Marine Mammals

    As outlined in several 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 
pinniped (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 pinniped; these can range 
from temporary alert responses to active avoidance reactions such as 
stampedes into the sea from terrestrial haulout sites;
    (4) Upon repeated exposure, pinnipeds 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 the pinniped 
perceives as a threat;
    (5) Any anthropogenic noise that is strong enough to be heard has 
the potential to reduce (mask) the ability of pinnipeds to hear natural 
sounds at similar frequencies, including calls from conspecifics, and 
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). 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.
    Sounds generated by the launches of Vandal and similar target 
missiles and smaller subsonic targets and missiles (BQM-34 or BQM-74 
type), as they depart sites on SNI towards operational areas in the 
Point Mugu Sea Range, have the potential to result in the incidental 
harassment of seals and sea lions. Taking by harassment will 
potentially result from these launches when pinnipeds on the beaches 
near the launch sites are exposed to the sounds produced by the rocket 
boosters and the high-speed passage of the missiles as they depart the 
island on their routes to the Sea Range. However, the extremely rapid 
departure of the Vandal and other targets means that pinnipeds would be 
exposed to increased sound levels for very short time intervals (i.e., 
a few seconds). In addition, because launches are conducted relatively 
infrequently, neither physiological stress nor hearing related injuries 
are likely for pinnipeds exposed to more than a single launch event.
    Noise generated from aircraft and helicopter activities associated 
with the

[[Page 24909]]

launches may provide a potential secondary source of incidental 
harassment of seals and sea lions. The physical presence of aircraft 
could also lead to non-acoustic effects on marine mammals involving 
visual or other cues. There are no anticipated effects from human 
presence on the beaches, since movements of personnel are restricted 
near the launch sites two hours prior to launches for safety reasons.
    Reactions of pinnipeds on the western end of SNI to Vandal target 
launches have not been well-studied, but based on monitoring studies 
conducted under the IHA for this activity on SNI in 2001 and 2002, and 
on other rocket launch activities and their effects on pinnipeds in the 
Channel Islands (Stewart et al., 1993), anticipated impacts can be 
predicted. In general, studies have shown that responses of pinnipeds 
on beaches to acoustic disturbance arising from rocket and target 
missile launches are highly variable. This variability may be due to 
many factors, including species, age class, and time of year. Among 
species, northern elephant seals seem very tolerant of acoustic 
disturbances (Stewart, 1981), whereas harbor seals (particularly 
outside the breeding season) seem more easily disturbed. Research and 
monitoring at Vandenberg Air Force Base found that prolonged or 
repeated sonic booms, very strong sonic booms, or sonic booms 
accompanying a visual stimulus, such as a passing aircraft, are most 
likely to stimulate seals to leave the haul-out area and move into the 
water. During three launches of Vandal missiles from SNI, California 
sea lions near the launch track line were observed from video 
recordings to be disturbed and to flee (both up and down the beach) 
from their former resting positions. Launches of the smaller BQM-34 
targets from NAS have not normally resulted in harbor seals leaving 
their haul-out area at the mouth of Mugu Lagoon, which is approximately 
3.2 km (2 mi) from the launch site. An Exocet missile launched from the 
west end of SNI appeared to cause far less disturbance to hauled out 
California sea lions than Vandal launches.
    Given the variability in pinniped response to acoustic disturbance, 
as supported by recent IHA monitoring (Lawson et al., 2002), the Navy 
(NAWS, 2002) conservatively assumes that biologically significant 
disturbance (i.e., Level B harassment) will sometimes occur upon 
exposure to launch sounds with SEL's of 100 dBA (re 20 micro-Pa\2\ -
sec) or higher for California sea lions and northern elephant seals and 
90 dBA for Pacific harbor seals. A biologically significant disturbance 
has been defined by NMFS in several previous rulemakings (e.g., 66 FR 
43442, August 17, 2001; 67 FR 46712, July 16, 2002) as a disturbance of 
a behavior pattern that has the potential to have an effect on the 
reproduction or survival of the animal or the species.
    A conservative estimate of the SEL at which TTS (Level B 
harassment) may be elicited in harbor seals, California sea lions and 
northern elephant seals has been determined to be 145 dB (re 20 micro-
Pa\2\ -sec) and 165 dB (re 20 micro-Pa\2\ -sec), respectively (Lawson 
et al., 1998). The sound levels necessary to elicit mild TTS in captive 
California sea lions and harbor seals exposed to impulse noises, such 
as sonic booms, were tens of decibels higher (Bowles et al., 1999) than 
sound levels measured during Vandal launches (Burgess and Greene, 1998; 
Greene, 1999). This evidence, in combination with the known sound 
levels produced by vehicles launched from SNI (described later in this 
document), suggests that no pinnipeds will be exposed to TTS-inducing 
SELs during planned launches.
    Based on modeling of sound propagation in a free field situation, 
Burgess and Greene (1998) data were used by the Navy to predict that 
Vandal target launches from SNI could produce a 100-dBA acoustic 
contour that extends an estimated 4,263 m (13,986 ft) perpendicular to 
its launch track. In other words, Vandal target launch sounds are 
predicted to exceed the SEL (100 dBA) disturbance criteria out to a 
distance of 4,263 m (13,986 ft) from the ALC. Northern elephant seals, 
harbor seals, and California sea lions haul out in areas within the 
perimeter of this 100-dBA contour for Vandal launches. For BQM-34 
launches from ALC, the Navy assumes that the 100 dBA contour extends an 
estimated 1,372 m (4,500 ft), perpendicular to its launch track (C. 
Malme, Engineering and Scientific Services, Hingham, MA, unpublished 
data). Along the launch track and ahead of the BQM-34, the 100 dBA 
contour extends a shorter distance (549 m or 1,800 ft). For the smaller 
BQM-74 and Exocet missiles, the Navy predicts that the 100 dBA contours 
will be smaller still. The free field modeling scenario used to predict 
these acoustic contours does not account for transmission losses caused 
by wind, intervening topography, and variations in launch trajectory or 
azimuth. Therefore, the predicted 100 dBA contours may be smaller at 
certain beach locations and for different launch trajectories.
    In general, the extremely rapid departure of the Vandal and smaller 
targets means that pinnipeds could be exposed to increased sound levels 
for very short time intervals (a few seconds) potentially leading to 
alert and startle responses from individuals on haul out sites in the 
vicinity of launches. Some animals may flee to the water. Since 
recorded observations of the responses of pinnipeds to Vandal launches 
along with post-launch surveys at the SNI haulouts have not shown 
injury, mortality, or extended biological disturbance, the Navy 
anticipates that the effects of the planned target launches will have 
no more than a negligible impact on pinniped populations.
    Since the launches are relatively infrequent, and of brief 
duration, it is unlikely that the pinnipeds near the launch site will 
become habituated to launch sounds. Pinnipeds that haul out on beaches 
at the western end of SNI for extended periods, or that return to haul-
out sites regularly over the course of the year, may be exposed to 
sounds of more than a single launch, and may be ``harassed'' more than 
once each year. However, given the infrequency and brevity of these 
events, it is unlikely that much, if any, habituation to target missile 
launch activities has occurred.
    In addition, the infrequent and brief nature of these sounds will 
cause masking for not more than a very small fraction of the time 
(usually less than 2 seconds per launch) during any single day. 
Therefore, the Navy assumes that these occasional and brief episodes of 
masking will have no significant effects on the abilities of pinnipeds 
to hear one another or to detect natural environmental sounds that may 
be relevant to the animals.

Numbers of Marine Mammals Expected to Be Taken by Harassment

    NAWS provisionally estimates that the following numbers of 
pinnipeds may be subject to Level B harassment annually: 1,403 northern 
elephant seals, 457 harbor seals, and 1,637 California sea lions. To 
determine the number of takings by harassment annually, one would need 
to multiply those numbers by the number of launches conducted annually. 
The animals affected may be the same animals or may be different 
animals, depending upon site fidelity of the species. Based on the 
results of recent monitoring of the haulouts, the estimated number of 
potential harassment takes would be significantly less than authorized 
under the two recent IHAs.

[[Page 24910]]

Effects of Target Missile Launches and Associated Activities on 
Subsistence Needs

    There are no subsistence uses for these pinniped species in 
California waters, and, thus, there are no anticipated effects on 
subsistence needs.

Effects of Target Missile Launches and Associated Activities on Marine 
Mammal Habitat on SNI

    Harbor seals, California sea lions, and northern elephant seals use 
various beaches around SNI as places to rest, molt, and breed. These 
beaches consist of sand (e.g., Red Eye Beach), rock ledges (e.g., Phoca 
Beach) and rocky cobble (e.g., Vizcaino Beach). Pinnipeds do not feed 
when hauled out on these beaches, and the airborne launch sounds will 
mostly reflect or refract from the water surface and, except for sounds 
within a diameter of approximately 30 degrees directly below the launch 
vehicle, will not penetrate into the water column. The sounds that do 
penetrate will not persist in the water for more than a few seconds. 
Therefore, the Navy does not expect that launch activities will have 
any impact on the food or feeding success of these animals. The solid 
rocket booster from the Vandal target and the JATO bottles from the 
BMQs are jettisoned shortly after launch and fall into the sea west of 
SNI. While it is theoretically possible that one of these boosters 
might instead land on a beach, the probability of this occurring is 
very low. Fuel contained in the boosters and JATO bottles is consumed 
rapidly and completely, so there would be no risk of contamination even 
if a booster or bottle did land on the beach. Overall, the proposed 
target missile launches and associated activities are not expected to 
cause significant impacts on habitats or on food sources used by 
pinnipeds on SNI.

Mitigation

    To avoid additional harassment to the pinnipeds on beach haul out 
sites and to avoid any possible sensitizing or predisposing of 
pinnipeds to greater responsiveness towards the sights and sounds of a 
launch, NAWCWD Point Mugu will limit its activities near the beaches in 
advance of launches. Existing safety protocols for Vandal launches 
provide a built-in mitigation measure. That is, personnel are normally 
not allowed near any of the pinniped beaches close to the flight track 
on the western end of SNI within two hours prior to a launch. Where 
practicable, NAWCWD Point Mugu will adopt the following additional 
mitigation measures when doing so will not compromise operational 
safety requirements or mission goals: (1) The Navy will attempt to 
limit launch activities during pinniped pupping seasons, particularly 
harbor seal pupping season; (2) the Navy will attempt not to launch 
vehicles at low elevation on launch azimuths that pass close to beach 
haul-out site(s); (3) the Navy will attempt to avoid multiple target 
launches in quick succession over haul-out sites, especially when young 
pups are present; and, (4) the Navy will attempt to limit launch 
activities during the night.

Monitoring

    As part of its application, NAWS provided a proposed monitoring 
plan, similar to that adopted for the 2001/2002 and 2002/2003 IHAs (see 
66 FR 41834, August 9, 2001; 67 FR 56271, September 3, 2002), for 
assessing impacts to marine mammals from Vandal and smaller subsonic 
target and missile launch activities on SNI. This monitoring plan is 
described in their application (NAWS, 2002).
    The Navy proposes to conduct the following monitoring during the 
first year under an LOA and regulations.

Land-Based Monitoring

    In conjunction with a biological contractor, the Navy will continue 
its land-based monitoring program to assess effects on the three common 
pinniped species on SNI: northern elephant seals, harbor seals, and 
California sea lions. This monitoring would occur at three different 
sites of varying distance from the launch site before, during, and 
after each launch. The monitoring would be via autonomous video 
cameras.
    During the day of each missile launch, the observer would place 
three digital video cameras overlooking chosen haul out sites. Each 
camera would be set to record a focal subgroup within the haul out 
aggregation for a maximum of 4 hours or as permitted by the videotape 
capacity.
    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. Details of 
analysis methods can be found in LGL Ltd. Environmental Research 
Associates et al. (LGL, 2002).

Acoustical Measurements

    During each launch, the Navy would obtain calibrated recordings of 
the levels and characteristics of the received launch sounds. Acoustic 
data would be acquired using three Autonomous Terrestrial Acoustic 
Recorders (ATAR) at three different sites of varying distances from the 
target's flight path. ATARs can record sounds for extended periods 
(dependent on sampling rate) without intervention by a technician, 
giving them the advantage over traditional digital audio tape (DAT) 
recorders should there be prolonged launch delays of as long as 10 
hours. To the extent possible, acoustic recording locations would 
correspond with the sites where video monitoring is taking place. The 
collection of acoustic data would provide information on the magnitude, 
characteristics, and duration of sounds that pinnipeds may be exposed 
to during a launch. In addition, the acoustic data can be combined with 
the behavioral data collected via the land-based monitoring program to 
determine if there is a dose-response relationship between received 
sound levels and pinniped behavioral reactions. Once collected, sound 
files will be transferred onto compact discs (CDs) and sent to the 
acoustical contractor for sound analysis.
    For further details regarding the installation and calibration of 
the acoustic instruments and analysis methods refer to LGL (2002).

Reporting Requirements

    An interim technical report is proposed to be submitted to NMFS 60 
days prior to the expiration of each annual LOA issued under these 
regulations, along with a request for a follow-on annual LOA. This 
interim technical report will provide full documentation of methods, 
results, and interpretation pertaining to all monitoring tasks for 
launches during the period covered by the LOA. However, only 
preliminary information would be available to be included for any 
launches during the 60-day period immediately preceding submission of 
the interim report to NMFS. In the unanticipated event that any cases 
of pinniped mortality are judged to result from launch activities at 
any time during the period covered by these regulations, this event 
will be reported to NMFS immediately.
    The proposed 2003-04 launch monitoring activities will constitute 
the third year of formal, concurrent pinniped and acoustical monitoring 
during launches from SNI. Several of the questions about effects of 
such launch activities on pinnipeds ashore are expected to be answered 
before the first LOA is issued based on the 2001-2003 monitoring under 
IHAs. Additional questions will be answered during the first year of 
monitoring under

[[Page 24911]]

an LOA in 2003-2004. Following submission in 2004 of the interim report 
on the first phase of monitoring under an LOA, NAWS believes that it 
would be appropriate for the Navy and NMFS to discuss the scope for any 
additional launch monitoring work on SNI subsequent to the first LOA 
issued under these regulations. In particular, some biological or 
acoustic parameters may be documented adequately prior to or during the 
first LOA (2003-2004), and it may not be necessary to continue all 
aspects of the monitoring work after the first year.
    In addition to annual LOA reports, NMFS proposes to require NAWS 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.

National Environmental Policy Act (NEPA)

    NMFS prepared an Environmental Assessment (EA) on a similar action 
in 2001, and made a Finding of No Significant Impact (FONSI). Based on 
that EA/FONSI, the NAWCWD's March, 2002 Final Environmental Impact 
Statement to assess the effects of its ongoing and proposed operations 
in the Sea Range; and NAWS' October 2002 request for the subject 
proposed regulations, NMFS has preliminarily determined that this 
action will not have a significant effect on the human environment.

Endangered Species Act (ESA)

    Under section 7 of the ESA, NMFS has begun consultation on the 
proposed issuance of regulations under section 101(a)(5)(A) of the MMPA 
for this activity. Consultation will be concluded prior to promulgation 
of a final rule.

CZMA Consistency

    On February 14, 2001, by a unanimous vote, the California Coastal 
Commission 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 Commission 
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.

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 (CINMS). 
Also, all Navy Sea Range test and training activities are consistent 
with CINMS regulations (15 CFR 920.70).

Information Solicited

    As this document is being published in conformance with NMFS 
regulations implementing the small take program (50 CFR 216.105), NMFS 
requests interested persons to submit comments, information, and 
suggestions concerning the request and the content of the proposed 
regulations to authorize the taking. As required by 50 CFR 216.105, 
NMFS will consider this information in developing proposed regulations 
to authorize the taking. Prior to submitting comments, NMFS recommends 
reviewers of this document read the responses to comments made 
previously (see 66 FR 41843, August 9, 2001; 67 FR 56271, September 3, 
2002; 68 FR 11527, March 11, 2003) for this action, as NMFS does not 
intend to address these issues further without the submission of 
additional scientific information.

Classification

    This action has been determined to be not significant for purposes 
of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities 
since it would apply only to the U.S. Navy and would have no effect, 
directly or indirectly, on small businesses. It may affect a small 
number of contractors providing services related to reporting the 
impact of the activity on marine mammals, some of whom may be small 
businesses, but the number involved would not be substantial. Further, 
since the monitoring and reporting requirements are what would lead to 
the need for their services, the economic impact on them would be 
beneficial. Because of this certification, a regulatory flexibility 
analysis is not required and none has been prepared.
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act (PRA) unless that collection of information 
displays a currently valid OMB control number. This final rule contains 
collection-of-information requirements subject to the provisions of the 
PRA. These requirements have been approved by OMB under control number 
0648-0151, and include applications for LOAs, and reports.
    The reporting burden for the approved collections-of-information is 
estimated to be approximately 120 hours for the annual applications for 
an LOA, and a total of 120 hours for the quarterly and annual reports. 
These estimates include the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection-of-information. Send comments 
regarding these burden estimates, or any other aspect of this data 
collection, including suggestions for reducing the burden, to NMFS and 
OMB (see ADDRESSES).

List of Subjects in 50 CFR Part 216

    Exports, Fish, Imports, Indians, Labeling, Marine mammals, 
Penalties, Reporting and recordkeeping requirements, Seafood, 
Transportation.

    Dated: May 5, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For reasons set forth in the preamble, 50 CFR part 216 is proposed 
to be amended as follows:

PART 216--REGULATIONS GOVERNING THE 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., unless otherwise noted.

    2. Subpart N is added to read as follows:

Subpart N--Taking of Marine Mammals Incidental to Missile Launch 
Operations from San Nicolas Island, CA

Sec.
216.151 Specified activity, geographical region, and incidental take 
levels.
216.152 Effective dates.
216.153 Permissible methods of taking; mitigation.
216.154 Prohibitions.
216.155 Requirements for monitoring and reporting.
216.156 Letter of Authorization.
216.157 Renewal of the Letter of Authorization.

[[Page 24912]]

216.158 Modifications to the Letter of Authorization.

Subpart N--Taking of Marine Mammals Incidental to Missile Launch 
Operations from San Nicolas Island, CA


Sec.  216.151  Specified activity, geographical region, and incidental 
take levels.

    (a) Regulations in this subpart apply only to the incidental taking 
of marine mammals specified in paragraph (b) of this section by U.S. 
citizens engaged in target missile launch activities 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 Vandal (or similar sized) vehicles from 
Alpha Launch Complex and smaller missiles and targets from Building 807 
on San Nicolas Island, California.


Sec.  216.152  Effective dates.

    Regulations in this subpart are effective from August 26, 2003, 
through August 25, 2008.


Sec.  216.153  Permissible methods of taking; mitigation.

    (a) Under a Letter of Authorization issued pursuant to Sec.  
216.106, the U.S. Navy may incidentally, but not intentionally, take 
marine mammals by harassment, in the course of conducting target 
missile launch activities within the area described in Sec.  216.151(a) 
provided all terms, conditions, and requirements of these regulations 
and such Letter of Authorization are complied with.
    (b) The activity identified in paragraph (a) of this section must 
be conducted in a manner that minimizes, to the greatest extent 
possible, adverse impacts on marine mammals and their habitat. When 
conducting these activities, the following mitigation measures must be 
utilized:
    (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 to April), when 
operationally practicable.
    (3) The holder of this Authorization must limit launch activities 
during other pinniped pupping seasons, when operationally practicable.
    (4) The holder of the Letter of Authorization must not launch 
Vandal target missiles from the Alpha Complex at low elevation (less 
than 1,000 feet (304.8 m) on launch azimuths that pass close to 
pinniped haul-out sites).
    (5) The holder of the Letter of Authorization must avoid, where 
practicable, launching multiple target missiles in quick succession 
over haul-out sites, especially when young pups are present.
    (6) The holder of the Letter of Authorization must limit launch 
activities during nighttime hours when operationally practicable.
    (7) Aircraft and helicopter flight paths must maintain a minimum 
altitude of 1,000 feet (304.8 m) from pinniped haul-outs.
    (8) If injurious or lethal take is discovered during monitoring, 
the holder of the Letter of Authorization must contact the Regional 
Administrator, Southwest Region, National Marine Fisheries Service, or 
his/her designee, at (562) 980-4023 within 48 hours and, in cooperation 
with the National Marine Fisheries Service, launch procedure, 
mitigation measures, and monitoring methods must be reviewed and 
appropriate changes made prior to the next launch.
    (9) If post-test surveys determine that an injurious or lethal take 
of a marine mammal has occurred, the test procedure and the monitoring 
methods must be reviewed and appropriate changes must be made prior to 
conducting the next detonation.


Sec.  216.154  Prohibitions.

    Notwithstanding takings authorized by Sec.  216.151(b) and by a 
Letter of Authorization issued under Sec.  216.106, the following 
activities are prohibited:
    (a) The taking of a marine mammal that is other than unintentional.
    (b) The violation of, or failure to comply with, the terms, 
conditions, and requirements of this part or a Letter of Authorization 
issued under Sec.  216.106.
    (c) The incidental taking of any marine mammal of a species not 
specified in this subpart.


Sec.  216.155  Requirements for monitoring and reporting.

    (a) The holder of the Letter of Authorization is required to 
cooperate with the National Marine Fisheries Service and any other 
Federal, state or local agency monitoring the impacts of the activity 
on marine mammals.
    (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 a minimum of 
2 hours prior to the estimated launch time and for no less than 1 hour 
immediately following the launch of Vandal and similar types of target 
missiles.
    (iii) Systematic visual observations, by those individuals, 
described in paragraph (c) of this section, on pinniped presence and 
activity will be conducted and recorded in a field logbook a minimum of 
2 hours prior to launch, during launch, and for no less than 1 hour 
after the launch of the BQM-34, BQM-74, Exocet, Tomahawk, RAM target 
and similar types of missiles.
    (iv) Documentation, both via autonomous video camera and human 
observer, will consist of:
    (A) numbers and sexes of each age class in focal subgroups;
    (B) description and timing of launch activities or other disruptive 
event(s);
    (C) movements of pinnipeds, including number and proportion moving, 
direction and distance moved, and pace of movement;
    (D) description of reactions;
    (E) minimum distances between interacting and reacting pinnipeds;
    (F) study location;
    (G) local time;
    (H) substratum type;
    (I) substratum slope;
    (J) weather condition;
    (K) horizontal visibility; and

[[Page 24913]]

    (L) tide state.
    (2) Acoustic Monitoring. (i) During all target missile launches, 
calibrated recordings of the levels and characteristics of the received 
launch sounds will be obtained from 3 different locations of varying 
distances from the target missile's flight path. To the extent 
practicable, these acoustic recording locations will correspond with 
the haul-out sites where video and human observer monitoring is done.
    (ii) Acoustic recordings will be supplemented by the use of radar 
and telemetry systems to obtain the trajectory of target missiles in 
three dimensions.
    (iii) Acoustic equipment used to record launch sounds will be 
suitable for collecting a wide range of parameters, including the 
magnitude, characteristics, and duration of each target missile.
    (e) The holder of the Letter of Authorization must implement the 
following reporting requirements:
    (1) For each target missile launch, the lead contractor or lead 
observer for the holder of the Letter of Authorization must provide a 
status report to the National Marine Fisheries Service, Southwest 
Regional Office, providing reporting items found under the Letter of 
Authorization, unless other arrangements for monitoring are agreed in 
writing.
    (2) An initial report must be submitted to the Office of Protected 
Resources, and the Southwest Regional Office at least 60 days prior to 
the expiration of each annual Letter of Authorization. This report must 
contain the following information:
    (i) Timing and nature of launch operations;
    (ii) Summary of pinniped behavioral observations;
    (iii) Estimate of the amount and nature of all takes by harassment 
or by other means.
    (3) A draft comprehensive technical report will be submitted to the 
Office of Protected Resources and Southwest Regional Office, National 
Marine Fisheries Service, 180 days prior to the expiration of these 
regulations and providing full documentation of the methods, results, 
and interpretation of all monitoring tasks for launches to date plus 
preliminary information for missile launches during the first 6 months 
of the final Letter of Authorization.
    (4) A revised final technical report, including all monitoring 
results during the entire period of the Letter of Authorization will be 
due 90 days after the end of the period of effectiveness of these 
regulations.
    (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.  216.106, 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  Letter of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time specified in the Letter of Authorization but 
may not exceed the period of validity of this subpart.
    (b) A Letter of Authorization with a period of validity less than 
the period of validity of this subpart may be renewed subject to 
renewal conditions in Sec.  216.157.
    (c) A Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Authorized geographic area for taking;
    (3) Means of effecting the least practicable adverse impact on the 
species of marine mammals authorized for taking and its habitat; and
    (4) Requirements for monitoring and reporting incidental takes.
    (d) Issuance of a Letter of Authorization will be based on a 
determination that the number of marine mammals taken by the activity 
will be small, and that the number of marine mammals taken by the 
activity, specified in Sec.  216.151(b), as a whole, will have no more 
than a negligible impact on the species or stocks of affected marine 
mammal(s).
    (e) Notice of issuance or denial of a Letter of Authorization will 
be published in the Federal Register within 30 days of a determination.


Sec.  216.157  Renewal of a Letter of Authorization.

    (a) A Letter of Authorization issued under Sec.  216.106 and Sec.  
216.156 for the activity identified in Sec.  216.151(a) will be renewed 
annually upon:
    (1) Notification to the National Marine Fisheries Service that the 
activity described in the application for a Letter of Authorization 
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 season;
    (2) Timely receipt of the monitoring reports required under Sec.  
216.155, which have been reviewed by the National Marine Fisheries 
Service and determined to be acceptable;
    (3) A determination by the National Marine Fisheries Service that 
the mitigation, monitoring, and reporting measures required under 
Sec. Sec.  216.153 and 216.155 and the Letter of Authorization were 
undertaken and will be undertaken during the upcoming period of 
validity of a renewed Letter of Authorization; and
    (4) Renewal of a Letter of Authorization will be based on a 
determination that the number of marine mammals taken by the activity 
continues to be small and that the number of marine mammals taken by 
the activity, specified in Sec.  216.151(b), will have no more than a 
negligible impact on the species or stock of affected marine mammal(s).
    (b) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register within 30 days 
of a determination.


Sec.  216.158  Modifications to the Letter of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification, including withdrawal or suspension, to the 
Letter of Authorization issued pursuant to Sec.  216.106 and subject to 
the provisions of this subpart shall be made until after notice and an 
opportunity for public comment.
    (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.  216.151(b), the Letter 
of Authorization issued pursuant to Sec.  216.106 may be substantively 
modified without prior notice and an opportunity for public comment. 
Notification will be published in the Federal Register subsequent to 
the action.
[FR Doc. 03-11613 Filed 5-8-03; 8:45 am]
BILLING CODE 3510-22-S