[Federal Register Volume 75, Number 226 (Wednesday, November 24, 2010)]
[Notices]
[Pages 71672-71674]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29656]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XY60


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), Department of Commerce.

ACTION: Notice; issuance of a revised Letter of Authorization.

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SUMMARY: In June, 2009, pursuant to the Marine Mammal Protection Act 
(MMPA), NMFS issued regulations to govern the unintentional taking of 
marine mammals incidental to U.S. Navy (Navy) missile launch 
operations, a military readiness activity, from San Nicolas Island 
(SNI), California, for the period of June 2009 through June 2014. The 
second Letter of Authorization (LOA) for the incidental take of marine 
mammals during the described activities and specified timeframes is 
effective from June 4, 2010, through June 3, 2011. Following issuance 
of the LOA, the Navy submitted a revised monitoring plan for their 
activities at SNI. NMFS has issued a revised LOA, which incorporates 
the revised monitoring plan, to replace the one that was previously in 
effect.

DATES: Effective December 1, 2010, through November 30, 2011.

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

FOR FURTHER INFORMATION CONTACT: Michelle Magliocca, Office of 
Protected Resources, NMFS, 301-713-2289, or Monica DeAngelis, NMFS, 
562-980-3232.

SUPPLEMENTARY INFORMATION: 

Background

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs 
the Secretary

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of Commerce to allow, upon request, the incidental, but not 
intentional, taking of small numbers of marine mammals by U.S. citizens 
who engage in a specified activity (other than commercial fishing) 
within a specified geographical region if certain findings are made and 
regulations are issued. However, for military readiness activities, the 
National Defense Authorization Act (Pub. L. 108-136) removed the 
``small numbers'' and ``specified geographical region'' limitations. 
Under the MMPA, the term ``take'' means to harass, hunt, capture, or 
kill, or to attempt to harass, hunt, capture, or kill marine mammals.
    Authorization may be granted for periods up to 5 years if NMFS 
finds, after notification and opportunity for public comment, that the 
taking will have a negligible impact on the species or stock(s) of 
marine mammals and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses. In 
addition, NMFS must prescribe regulations that include permissible 
methods of taking and other means of effecting the least practicable 
adverse impact on the species and its habitat and on the availability 
of the species for subsistence uses, paying particular attention to 
rookeries, mating grounds, and areas of similar significance. The 
regulations must include requirements for monitoring and reporting of 
such taking.
    Regulations governing the taking of Northern elephant seals 
(Mirounga angustirostris), Pacific harbor seals (Phoca vitulina 
richardsi), and California sea lions (Zalophus californianus), by 
harassment, incidental to missile launch operations at SNI, were issued 
on June 2, 2009, and remain in effect until June 2, 2014 (74 FR 26580). 
The previous 2010 LOA under these regulations was issued on June 4, 
2010 (75 FR 28587). For more detailed information on this action, 
please refer to these documents. The regulations and LOA include 
mitigation, monitoring, and reporting requirements for the incidental 
take of marine mammals during missile launches at SNI. Northern 
elephant seals, Pacific harbor seals, and California sea lions are 
found on various haul-out sites and rookeries on SNI. The LOA 
authorizes take of the three pinniped species listed above that may 
result from the launching of up to 40 missiles from SNI per year. Up to 
10 launches per year may occur at night. Nighttime launches will only 
occur when required by the test objectives, e.g., when testing the 
Airborne Laser system. The noise generated by Navy activities may 
result in the incidental harassment of pinnipeds, both behaviorally and 
in terms of physiological (auditory) impacts. The noise and visual 
disturbances from missile launches may cause the animals to move 
towards or enter the water. The LOA authorizes the following numbers of 
pinnipeds to be incidentally taken by Level B harassment annually: 474 
Northern elephant seals; 467 Pacific harbor seals; and 1,606 California 
sea lions.

Summary of the Modification

    On June 7, 2010, NMFS received a proposed revised monitoring plan 
for vehicle launches at SNI, California, in association with an LOA 
issued on June 4, 2010 and in effect through June 3, 2011. The revised 
monitoring plan was updated to reflect new equipment and procedures 
proposed by the Navy, along with a proposal to discontinue targeted 
monitoring of Northern elephant seals. After reviewing the revised 
monitoring plan, the Marine Mammal Commission (Commission) further 
recommended that the Navy obtain, analyze, and review existing 
information regarding potential displacement of Northern elephant 
seals, Pacific harbor seals, and California sea lions from those 
rookeries and haul out sites affected by launch activities. NMFS marine 
mammal surveys from SNI have since been reviewed for any indications of 
decreasing trends in pinniped abundance or changes in distribution 
since the take of marine mammals incidental to launches from SNI were 
authorized beginning in August 2001. The surveys do not indicate any 
significant changes in abundance or distribution. The following are the 
only modifications to the previous 2010 LOA; all other mitigation and 
monitoring requirements remain unchanged.

Nighttime Launches

    The Navy recently acquired forward looking infrared (FLIR) HS-324 
Command thermal imaging cameras for nighttime monitoring of pinnipeds 
before, during, and after each missile launch. Previously, no cameras 
were available for nighttime monitoring of pinniped haul out sites. The 
thermal imaging cameras, made by FLIR Systems, Inc., will be located to 
overlook haul out sites up to 6 hours prior to a launch, depending on 
safety restrictions. Placement of the cameras will cause minimal 
disturbance to pinnipeds and will focus on a subgroup of pinnipeds 
within the haul out aggregation. The cameras record data internally and 
are capable of storing more than 5 hours of video; however, they do not 
record sound, so no simultaneous audio recording separate from the 
acoustic monitoring data, collected as described in the regulations (74 
FR 26580) and previous 2010 LOA (75 FR 28587), will be available. Navy 
biologists will make direct visual observations of the pinniped groups, 
prior to deployment of the thermal imaging cameras, in order to record 
weather conditions, species, locations of any pinnipeds hauled out, 
etc.

Monitoring of Northern Elephant Seals

    The Navy will eliminate targeted monitoring of Northern elephant 
seals during all future launches of Vandal- and Coyote-size, and 
smaller, vehicles on SNI. During the majority of launches monitored 
over the past 9 years, Northern elephant seals exhibited little 
reaction to vehicle launches. The Navy's most recent monitoring report 
estimated that zero Northern elephant seals were harassed by launches 
from SNI. During future launches, Northern elephant seals would only be 
monitored if they happen to be alongside other monitored pinniped 
species (i.e., Pacific harbor seals and California sea lions) and in 
the camera's field of view. Monitoring sites will be chosen based 
primarily on the presence of Pacific harbor seals and California sea 
lions; however, the same number of sites will continue to be monitored. 
By eliminating targeted monitoring of Northern elephant seals, the Navy 
will focus on these more responsive pinniped species and remaining 
questions about the frequency and extent of these responses. All other 
aspects of the Navy's monitoring requirements, as stated in the 
regulations (74 FR 26580) and previous 2010 LOA (75 FR 28587), will 
remain the same. The Navy will submit a single annual report for the 
period June 2010 through November 2011.

Summary of Activity and Monitoring Conducted During 2010

    The Navy submitted a preliminary, qualitative review of marine 
mammal monitoring activities between June 4, 2010, and September 1, 
2010, as part of their proposal for a revised monitoring plan. The 
review briefly describes two single launches from SNI on two different 
days. These launches occurred during daylight hours. A single Coyote 
missile was launched on each of two days, June 9 and July 8, 2010, from 
the Alpha Launch Complex located 190 m (623 ft) above sea level on the 
west-central part of SNI. For each launch, three remote video cameras 
and three or four audio recorders were deployed at varying distances 
from the launch site. Trained staff also collected general information 
on environmental

[[Page 71674]]

conditions and the status and behavior of focal animal groups prior to 
and following each launch. Behavioral responses were similar to those 
observed during previously monitored launches. The authorized level of 
take was not exceeded, and no evidence of injury or mortality was 
observed during or immediately succeeding the launches for the 
monitored pinniped species.

Comments and Responses

    A request for public comment on the revised monitoring plan and 
proposed authorization was published on September 24, 2010 (75 FR 
58365), at the recommendation of the Commission. During the 30-day 
public comment period, NMFS received comments from the Commission and 
one private citizen. The comment from the private citizen opposed the 
issuance of an authorization without any specific substantiation for 
why such an authorization should not be issued. For the reasons set 
forth in this notice and the associated rulemaking (74 FR 26580, June 
2, 2009), NMFS believes issuance of an authorization is appropriate. 
Following are the comments from the Commission and NMFS' responses:
    Comment 1: The Commission recommends that NMFS initiate such a 
rulemaking or provide adequate justification to support a determination 
that rulemaking is not required to amend section 216.155 of the 
regulations to authorize the Navy to discontinue monitoring the 
potential effects of launches on Northern elephant seals.
    Response: NMFS has determined that a rulemaking is not required to 
amend section 216.155 of the regulations to authorize the Navy to 
discontinue monitoring the potential effects of launches on Northern 
elephant seals. Part (b) of this section states that ``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.'' The Navy made NMFS aware 
of such changes. Furthermore, the regulatory text does not require 
monitoring of all species present at SNI. The visual land-based and 
acoustic monitoring requirements in 50 CFR 216.155 state that three 
haul-out sites will be observed using autonomous digital video cameras 
and acoustic equipment; this requirement remains in effect under the 
revised LOA. Visual land-based monitoring will actually be enhanced 
under this LOA through the use of FLIR thermal imaging cameras during 
nighttime launches.
    Comment 2: The Commission recommends that NMFS clarify the intent 
of 50 CFR 216.158(a)(1) of its regulations and explain why it does not 
believe that the Navy should be held to the commitment that there would 
be no substantial modifications to the monitoring program to be carried 
out during the 12 months covered by the previous 2010 LOA.
    Response: NMFS has determined that the Navy's modifications to 
their monitoring program for launch activities at SNI are not 
substantial. The Navy will continue to report on the same number of 
monitoring locations as have been authorized in previous LOAs. The Navy 
will no longer target Northern elephant seals; however, this species 
may still be observed if it overlaps with other pinnipeds at the 
designated monitoring locations. This implementation of adaptive 
management will allow the Navy to focus their monitoring and research 
on other more responsive pinniped species at SNI.
    Comment 3: The Commission recommends that NMFS provide the 
Commission and the public with the information necessary to evaluate 
the conclusion that there has been no displacement of pinnipeds from 
rookeries and haul-out sites in the areas potentially affected by 
launch activities.
    Response: Based on unpublished NMFS survey data from 2000 to 2005, 
there has been an overall 107 percent increase in Northern elephant 
seal pups in locations directly within or adjacent to the Navy's 
anticipated launch azimuths. The area with the highest increase of non-
pups between 2000 and 2005 also took place in locations directly within 
or adjacent to the Navy's anticipated launch azimuths. In contrast, 
other areas of SNI's perimeter show an overall decrease in both 
Northern elephant seal pups and non-pups, with the greatest observed 
change being a decrease of 1,616 Northern elephant seals near the 
southeast region of the island.
    Comment 4: The Commission recommends that NMFS develop and 
implement a monitoring strategy designed to determine whether there are 
gaps in the available information for assessing possible long-term 
effects and, if so, to what extent the cumulative effects of repeated 
launch activities might be displacing pinnipeds.
    Response: NMFS has determined that the Navy's current monitoring 
strategy is sufficient to determine if there are any long-term effects 
to pinnipeds from launch activities at SNI. NMFS biologists have been 
monitoring pinnipeds on SNI since 2000 and will continue to do so under 
this LOA.

Authorization

    The Navy complied with the requirements of the previous 2010 LOA 
and NMFS has determined that there was no evidence of pinniped injuries 
or fatalities related to the June and July 2010 vehicle launches from 
SNI. The Navy's activities fell within the scope of the activities 
analyzed in the 2009 rule, and the observed take did not exceed that 
authorized in the previous 2010 LOA. NMFS has determined that this 
action would continue to have a negligible impact on the affected 
species or stocks of marine mammals on SNI, and there are no 
subsistence uses of these three pinniped species in California waters. 
Accordingly, NMFS has issued a revised LOA to the Navy authorizing the 
take of three marine mammal species, by harassment, incidental to 
missile launch activities from SNI. The revised LOA will expire one 
year from the date of issuance and the Navy has agreed to operate under 
their annual authorized take numbers for the extended period of June 
2010 through November 2011.

    Dated: November 18, 2010.
James H. Lecky,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2010-29656 Filed 11-23-10; 8:45 am]
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