[Federal Register Volume 68, Number 169 (Tuesday, September 2, 2003)]
[Rules and Regulations]
[Pages 52132-52140]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-22185]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 030421095-3202-02; 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:  Final rule.

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SUMMARY:  NMFS, upon application from the U.S. Navy, is issuing 
regulations to govern the unintentional takings of small numbers of 
marine mammals incidental to missile launch operations from San Nicolas 
Island, CA (SNI). Issuance of regulations, and Letters of Authorization 
under these regulations, governing the unintentional incidental takes 
of marine mammals in connection with particular activities is required 
by the Marine Mammal Protection Act (MMPA) when the Secretary of 
Commerce (Secretary), after notice and opportunity for comment, finds, 
as here, that such takes will have a negligible impact on the species 
and stocks of marine mammals and will not have an unmitigable adverse 
impact on the availability of them for subsistence uses. These 
regulations do not authorize the Navy's missile launch activities as 
such authorization is not within the jurisdiction of the Secretary. 
Rather, these regulations authorize the unintentional incidental take 
of marine mammals in connection with this activity and prescribe 
methods of taking and other means of effecting the least practicable 
adverse impact on marine mammal species and their habitat, and on the 
availability of the species for subsistence uses.

DATES:  Effective from October 2, 2003 through October 2, 2008.

ADDRESSES:  A copy of the Navy application which contains a list of the 
references used in this document may be obtained by writing to Kaja A. 
Brix, Acting Chief, Marine Mammal Conservation Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910-3226 or by telephoning the contact 
listed here (see FOR FURTHER INFORMATION CONTACT). The NMFS' 
Administrative Record for this action is available for viewing, by 
appointment during regular business hours, at the above address. Copies 
of letters, and documents are available, at copy cost, from this 
address.
    Comments regarding the burden-hour estimate or any other aspect of 
the collection of information requirement contained in this final rule 
should be sent to the Acting Chief, and to the Office of Information 
and Regulatory Affairs, Office of Management and Budget (OMB), 
Attention: NOAA Desk Officer, Washington, DC 20503.

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 total taking will 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 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 [Level A harassment]; 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 
[Level B harassment].

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 
annual LOAs 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 by the Marine Mammal Commission, under section 
202(a)(4) of the MMPA. The current IHA expires on August 20, 2003.
    According to the NAWS' application, these missile launch 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)

[[Page 52133]]

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 annual level would be 
approximately double the recent activities at SNI. The NAWCWD conducted 
a total of 19 launches (including one dual launch) between August 15, 
2001 and July 18, 2002 (14 Vandal launches and 5 other missiles and 
targets) 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-Pa2 -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. 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 is 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 similar to the Vandal. NAWS has also requested that its 
incidental take authorization include coverage for up to three launches 
annually by vehicles that are larger than the Vandal (but under 50,000 
lbs (23,000 kilograms (kg)) in weight). Potential impacts to pinnipeds 
by launch vehicles of that size are unanalyzed and must be assessed 
before NMFS can issue an authorization to take pinnipeds incidentally 
to that activity. Any proposed modification of these regulations to 
include these larger launch vehicle activities would be published in 
the Federal Register with opportunity for public comment.

Vandal Target Missiles

    The Vandal (designated MQM-8G) target missile is a relatively 
large, air-breathing (ramjet) vehicle with no 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 micro20 
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 sounds 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 issue 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

[[Page 52134]]

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-34 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-Pa\2\ -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). 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 May 9, 2003 (68 FR 24905), NMFS published a notice of proposed 
rulemaking on the Navy's application for an incidental take 
authorization and requested comments, information and suggestions 
concerning the request. During the 45-day public comment period, NMFS 
received comments from several members of the public and the Marine 
Mammal Commission (Commission). The letters from individuals did not 
raise significant issues on the proposed rule, and only expressed 
concern over missile launches based on an article in the media, so a 
response is not necessary. The Commission supports NMFS' intent to 
implement incidental 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 Commission requests clarification in the final rule 
document regarding the statement that mitigation measures would be 
followed when ``operationally practicable.''
    Response: The NAWS request noted that mitigation measures would be 
followed whenever operationally practicable, provided that doing so 
would not compromise operational safety requirements or mission goals. 
For example, the Navy will avoid night launches whenever the parameters 
of the test or training do not require a night launch. However, if a 
night launch is required by the parameters of the test, the Navy will 
need to launch at night. Last year, for example, the Navy raised the 
elevation on one launch from what was originally proposed and the 
objectives were still met. The problem is that the mitigation 
requirements cannot be unconditional; some tests may require night 
launching or launching in quick succession and some launches may 
require low azimuths, etc.
     Comment 2: The Commission asks how the proposed mitigation 
measures satisfy the requirement of section 101(a)(5)(ii)(I) of the 
MMPA that the activity will result in the least practicable adverse 
impact on the subject species or stocks and their habitat.
    Response: In order for NMFS to implement effective mitigation, it 
must determine that such measures would be practical. The practical 
mitigation measures identified by the NAWCD are provided later in this 
document (see Mitigation) and in more detail in the Final Environmental 
Assessment on the Navy Request for a Letter of Authorization (Final 
EA). These measures have been in place under previous and current IHAs 
for this activity. No comments were received during the public comment 
periods for this and previous authorizations that suggested additional 
practical mitigation measures, and NMFS is unaware of additional 
measures that could be imposed.
    Comment 3: The Commission notes that NMFS is attempting to modify 
the statutory definition of Level B harassment to be only activities 
which pose ``biologically significant disturbance'' (i.e., ``a 
disturbance of a behavior pattern that has the potential to have an 
effect on the reproduction or survival of the animal or species''). As 
the Commission has pointed out in several previous letters, the 
Commission believes that the proposed NMFS modification is contrary to 
the existing statutory definition of harassment.
    Response: NMFS addressed the Commission's concern most recently in 
the notice of issuance of an IHA for Vandal launches from SNI (67 FR 
56271, September 3, 2002). In addition, the scientific basis for 
determining the appropriate isopleths (lines of equal pressure) for the 
onset of marine mammal harassment can be found in the preamble to the 
proposed rule (68 FR 24905, May 9, 2003) and this document. For this 
action, NMFS agrees with the applicant that California sea lions and 
northern elephant seals will sometimes be harassed by launch sounds 
with SEL's of 100 dBA (re 20 micro-Pa2 -sec) or higher and Pacific 
harbor seals will sometimes be similarly harassed at an SEL of 90 dBA 
or higher. Pinnipeds inside those isopleths at the time of the missile 
launch are presumed to be harassed, whether or not an actual 
disturbance is noted. However, NMFS does not consider reactions such as 
a pinniped assuming an alert posture by raising its head or exhibiting 
other minor body movements to be level B harassment, because these 
kinds of behaviors are not disruptions of a biologically important 
behavior pattern. In contrast, sounds that cause some or all of the 
animals to move along the beach or leave a haul-out beach for the water 
would be harassment because there is a disruption of haulout 
activities. This is consistent with the MMPA definition of Level B 
harassment. NMFS is interested in receiving any scientific information 
indicating that pinnipeds are harassed at lower noise levels.

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

[[Page 52135]]

seals, harbor seals, and California sea lions, can be expected to occur 
on land in the area of the proposed activity regularly 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

    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 (i.e., approximately 40 launch events over the course of a 
year), 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 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 IHAs 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 of pinniped responses to acoustic 
disturbance, as supported by recent IHA monitoring (Lawson et al., 
2002), the Navy (NAWS, 2002) assumes that Level B harassment, as 
evidenced by beach flushing, 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 conservative estimate of the SEL at which TTS may be elicited in 
harbor seals, California sea lions and northern elephant seals has been 
determined to be 145 dB (re 20 micro-Pa2 -sec) and 165 dB (re 20 micro-
Pa2 -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, suggests that no pinnipeds will be exposed 
to TTS-inducing SELs during planned launches.

[[Page 52136]]

    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 for pinipeds 
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 and NMFS concurs 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 will occur.
    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. 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 the level of 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 estimated under the two recent IHAs.

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 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 2 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 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 will conduct the following monitoring during the first 
year under an LOA and regulations.

[[Page 52137]]

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.
    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 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 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 (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 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 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 must 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. 
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. The impacts of launch activities on pinnipeds 
ashore were monitored under the 2001-2003 IHAs. Additional monitoring 
will take place under an LOA in 2003-2004. Following submission in 2004 
of the interim report on the monitoring under that LOA, the Navy and 
NMFS will discuss the scope of future launch monitoring work on SNI. 
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. Any modifications to the monitoring program will be 
documented through publication in the Federal Register.
    In addition to annual LOA reports, NMFS is requiring NAWS to submit 
a draft comprehensive final technical report to NMFS 180 days prior to 
the expiration of these 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.

Determinations

    Based on the evidence provided in the application, the EA, and this 
document, and taking into consideration the comments submitted on the 
application and proposed regulations, NMFS has determined that it will 
authorize the taking, by Level B harassment, of small numbers of marine 
mammals incidental to missile launch operations on SNI. The total 
taking of marine mammals by Level B harassment from vehicle launch 
operations on SNI over the period of these regulations will have no 
more than a negligible impact on affected marine mammal stocks. NMFS is 
assured that the short-term impact of conducting missile launch 
operations from SNI in the Channel Islands off southern California will 
result, at worst, in temporary modifications in behavior by three 
species of pinnipeds. No take by injury and/or death is anticipated, 
and the potential for temporary or permanent hearing impairment is 
unlikely. NMFS has determined that the requirements of section 
101(a)(5)(A) of the MMPA have been met and the LOAs can be issued.

National Environmental Policy Act (NEPA)

    NMFS has prepared an EA and made a Finding of No Significant Impact 
(FONSI). Therefore, preparation of an environmental impact statement on 
this action is not required by section 102(2) of the NEPA or its 
implementing regulations. A copy of the EA and FONSI are available upon 
request (see ADDRESSES).

ESA

    No species listed under the ESA is 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 an experimental population of sea otters may be affected by this 
action. 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 U.S. Fish and Wildlife Service 
under section 7 when the action is likely to jeopardize the continued 
existence of the species. The information available does not indicate 
that sea otters are likely to be jeopardized by this action. Therefore, 
a conference is not required.

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

[[Page 52138]]

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).

Classification

    This action has been determined to be not significant for purposes 
of Executive Order 12866.
    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 final 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: August 25, 2003.
Rebecca Lent.
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

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

    Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

0
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.
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 October 2, 2003 
through October 2, 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 
those marine mammal species specified in Sec.  216.151(b) by Level B 
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 specified in Sec.  216.151 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

[[Page 52139]]

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 
conducted under Sec.  216.155, 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 missile launch.


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, or in a manner not authorized, 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 notified 
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 observer(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 observers 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 at least 1 hour immediately 
following the launch of all launch vehicles.
    (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 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 on the information required under Sec.  
216.155(d)(1)(iii) to the National Marine Fisheries Service, Southwest 
Regional Office, 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 draft comprehensive technical 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 paragraph (d) 
of this section, or in the Letter of Authorization issued under Sec.  
216.106, 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.

[[Page 52140]]

    (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) Specified 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 level of taking will be consistent with the 
findings made for the total taking allowable under these regulations.
    (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 specified in Sec.  216.151 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, and acceptance by the National Marine Fisheries Service;
    (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) A determination that the number of marine mammals taken by the 
activity continues to be small and that the level of taking will be 
consistent with the findings made for the total taking allowable under 
these regulations.
    (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. 03-22185 Filed 8-29-03; 8:45 am]
BILLING CODE 3510-22-S