[Federal Register Volume 79, Number 45 (Friday, March 7, 2014)]
[Proposed Rules]
[Pages 13022-13034]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-04996]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 131120978-4146-01]
RIN 0648-BD80


Takes of Marine Mammals Incidental to Specified Activities; U.S. 
Navy Missile Launches From San Nicolas Island, California

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

ACTION: Proposed rule, request for comments and information.

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SUMMARY: NMFS has received a request from the U.S. Navy (Navy), Naval 
Air Warfare Center Weapons Division (NAWCWD) for authorization to take 
marine mammals incidental to missile launches from San Nicolas Island 
(SNI) from June 2014 through June 2019. Pursuant to the Marine Mammal 
Protection Act (MMPA), NMFS is requesting comments on its proposal to 
issue regulations and subsequent Letters of Authorization (LOAs) to the 
Navy to incidentally harass marine mammals.

DATES: Comments and information must be received no later than April 
21, 2014.

ADDRESSES: You may submit comments, identified by 0648-BD80, by either 
of the following methods:
     Electronic submissions: submit all electronic public 
comments via the Federal eRulemaking Portal (http://www.regulations.gov)
     Hand delivery or mailing of paper, disk, or CD-ROM 
comments should be addressed to Jolie Harrison, Incidental Take Program 
Supervisor, Permits and Conservation Division, Office of Protected 
Resources, National Marine Fisheries Service, 1315 East-West Highway, 
Silver Spring, MD 20910.
    Instructions: All comments received are part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (e.g., name, address, 
etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.
    An electronic copy of the Navy's application may be obtained by 
writing to the address specified above, telephoning the contact listed 
below (see FOR FURTHER INFORMATION CONTACT), or visiting the Internet 
at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. 
Documents cited in this notice may also be viewed, by appointment, 
during regular business hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT: Michelle Magliocca, Office of 
Protected Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of

[[Page 13023]]

marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographical region 
if certain findings are made and either regulations are issued or, if 
the taking is limited to harassment, a notice of a proposed 
authorization is provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring, and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as ``an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    The National Defense Authorization Act of 2004 (NDAA) (Pub. L. 108-
136) removed the ``small numbers'' and ``specified geographical 
region'' limitations indicated above and amended the definition of 
``harassment'' as it applies to a ``military readiness activity'' to 
read as follows (Section 3(18)(B) of the MMPA): (i) Any act that 
injures or has the significant potential to injure a marine mammal or 
marine mammal stock in the wild [Level A Harassment]; or (ii) Any act 
that disturbs or is likely to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of natural behavioral patterns, 
to a point where such behavioral patterns are abandoned or 
significantly altered [Level B Harassment].

Summary of Request

    On July 24, 2013, NMFS received an application from the Navy for 
the taking of marine mammals incidental to missile launches from San 
Nicolas Island (SNI). NMFS determined that the application was adequate 
and complete on November 18, 2013.
    The Navy proposes to continue a launch program for missiles and 
targets from several launch sites on SNI. The proposed activity would 
occur between June 2014 and June 2019 and may involve up to 40 launches 
per year. Take, by Level B Harassment only, of individuals of northern 
elephant seal (Mirounga angustirostris), Pacific harbor seal (Phoca 
vitulina), and California sea lion (Zalophus californianus) is 
anticipated to result from the specified activity.
    The Navy is currently operating under an authorization to take 
marine mammals incidental to missile launches from SNI, which expires 
June 2, 2014 (74 FR 26587).

Description of the Specified Activity

Overview

    The Navy plans to continue a launch program for missiles and 
targets from several launch sites on SNI. Missiles vary from tactical 
and developmental weapons to target missiles used to test defensive 
strategies and other weapons systems. Some launch events involve a 
single missile, while others involve the launch of multiple missiles 
either in quick succession or at intervals of a few hours. Up to 200 
missiles may be launched over the 5-year period, but the number and 
type of launch varies depending on operational needs.
    The purpose of these launches is to support testing and training 
activities associated with operations on the NAWCWD 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 launches are used for practicing defensive 
drills against the types of weapons simulated by these missiles and 
some launches are conducted for the related purpose of testing new 
types of targets.

Dates and Duration

    Launches of this type have been occurring at SNI for many years and 
are expected to continue indefinitely into the future. The Navy has 
requested a 5-year Letter of Authorization for missile launches taking 
place between June 2014 and June 2019. The timing of these launches is 
variable and subject to testing and training requirements and 
meteorological and logistical limitations. To meet the Navy's 
operational testing and training requirements, launches may be required 
at any time of year and any time of day. Up to 200 missiles (40 
missiles per year) may be launched over the 5-year period and the Navy 
is proposing that up to 10 launches per year may occur at night. Given 
the launch acceleration and flight speed of the missiles, most launch 
events are of extremely short duration. Strong launch sounds are 
typically detectable near the surrounding beaches for no more than a 
few seconds per launch (Holst et al., 2005a, 2008, 2011).

Specified Geographic Region

    SNI is one of the eight Channel Islands in the Southern California 
Bight, located about 105 kilometers (km) southwest of Point Mugu. 
Missile launches would occur from the western part of SNI (see Figure 2 
in the Navy's LOA application). The missiles fly generally westward 
through the Point Mugu Sea Range. The primary launch locations are the 
Alpha Launch Complex, which is located on the west-central part of SNI, 
and Building 807 Launch Complex, which is located at the western end of 
SNI. Other launch pads are located nearby.

Detailed Description of Activities

    Missiles included in the Navy's request range from relatively small 
and quieter missiles like the Rolling Airframe Missile to larger and 
louder missiles like the Terrier Black-Brant. While other missiles may 
be launched in the future, the largest missile analyzed here is 23,000 
kilograms (kg). The following is a description of the types of missiles 
that may be launched at SNI during the 5-year period.
    Rolling Airframe Missile (RAM)--The Navy/Raytheon RAM is a 
supersonic, lightweight, quick-reaction missile. This relatively small 
missile uses the infrared seeker of the Stinger missile and the 
warhead, rocket motor, and fuse from the Sidewinder missile. It has a 
high-tech radio-to-infrared frequency guiding system. The RAM is a 
solid-propellant rocket 12.7 centimeters (cm) in diameter and 2.8 m 
long. Its launch weight is 73.5 kg, and operational versions have 
warheads that weigh 11.4 kg.
    At SNI, RAMs are launched from the Building 807 Launch Complex, 
near the shoreline. Previous RAM launches have resulted in flat-
weighted sound pressure levels up to 126 decibels (dB) near the 
launcher and 99 dB at a nearshore site located 1.6 km from the three-
dimensional closest point of approach. Flat-weighted sound exposure 
level ranged from 84 to 97 dB reference 20 micropascals (20 [mu]Pa), 
and M-weighted sound exposure levels for pinnipeds in air ranged from 
76 to 96 dB reference 20 micropascals squared per second (20 
[mu]Pa\2\s). Peak pressure ranged from 104 to 117 dB re 20 [mu]Pa. The 
reference sound pressure (20 [mu]Pa) used here and throughout the 
document is standard for airborne sounds.
    GQM-163A ``Coyote''--The Coyote, designated GQM-163A, is an 
expendable SSST powered by a ducted-rocket ramjet. It has replaced the 
Vandal, which was used as the primary missile during launches from 2001 
to 2005, and is similar in size and performance. The Coyote is capable 
of flying at low altitudes (4 m cruise altitude) and supersonic speeds 
(Mach 2.5) over a flight range of 83 km. This

[[Page 13024]]

missile is designed to provide a ground launched aerial target system 
to simulate a supersonic, sea-skimming Anti-Ship Cruise missile threat. 
The SSST assembly consists of two primary subsystems: Mk 70 solid 
propellant booster and the GQM-163A target missile. The solid-rocket 
booster is about 46 centimeters (cm) in diameter and is of the type 
used to launch the Navy's ``Standard'' surface-to-air missile. The GQM-
163A target missile is 5.5 m long and 36 cm in diameter, exclusive of 
its air intakes. It consists of a solid fuel Ducted Rocket (DR) ramjet 
subsystem, Control and Fairing Subassemblies, and the Front End 
Subsystem, which includes an explosive destruct system to terminate 
flight if required.
    The Coyote uses the Vandal launcher, currently installed at the 
Alpha Launch Complex on SNI. Previous Coyote launches produced flat-
weighted sound pressure levels ranging from 126 to 134 dB re [mu]Pa\2\s 
at distances of 0.8 to 1.7 km from the closest point of approach of the 
vehicle, and 82 to 93 dB at distances of 2.4 to 3.2 km. Flat-weighted 
sound exposure levels ranged from 87 to 119 dB re 20 [mu]Pa\2\s. M-
weighted sound exposure levels ranged from 60 to 114 dB re20 
[mu]Pa\2\s, and peak pressures ranged from 100 to 144 dB 20 [mu]Pa.
    Multi-stage Sea Skimming Target (MSST)--The MSST is a subsonic 
cruise missile with a supersonic terminal stage that approaches its 
target at low-level at Mach 2.8. The MSST is expected to replace the 
Coyote as the primary target missile launched from SNI in the future. 
It consists of a subsonic winged ``cruise bus,'' which releases a 
supersonic ``sprint vehicle'' for terminal approach. The sprint vehicle 
is based on the Coyote target missile.
    The MSST is launched from the Alpha Launch Complex on SNI. Previous 
MSST launches had flat-weighted sound pressure levels of 78.7 to 96.6 
dB re 20 [mu]Pa and M-weighted sound exposure levels of 62.3 to 83.3 re 
20 [mu]Pa\2\s at sites 1.3 to 2.7 km from the closest point of 
approach.
    Terrier (Black Brant, Lynx, Orion)--The Terrier class missiles 
consist of the Terrier Mark 70 booster with a variety of second stage 
rockets (e.g., Terrier-Black Brant). The solid-rocket booster is about 
46 cm in diameter, 394 cm long, and weighs 1,038 kg. The three most 
likely Terrier class missiles that would be launched include the 
Terrier-Black Brant, Terrier-Lynx, and Terrier-Orion. The Black Brant 
has a diameter of 44 cm, is 533 cm long, and weighs 1,265 kg. This 
missile reaches an altitude of 203 km and has a range of 264 km. 
Terrier burnout occurs after 6.2 seconds at an altitude of 3 km, and 
Black Brant burnout occurs after 44.5 seconds at an altitude of 37.7 
km. The Lynx is 36 cm in diameter and 279 cm long. This missile reaches 
an altitude of 84 km and has a range of 99 km. Lynx burnout occurs 
after 58.5 seconds at 43.5 km. The Improved Orion motor is 36 cm in 
diameter and 280 cm long. On SNI, this class of missile target is 
typically launched vertically or near-vertically from the Building 807 
Launch Complex. Since these missiles use the same Terrier MK 70 booster 
as the Coyote, launch sound levels are generally similar to those from 
the Coyote. Given the near-vertical launch elevation, sounds in the 
immediate vicinity may be prolonged, though the missile reaches high 
altitude very quickly after launch.
    A Terrier-Orion produced a flat-weighted sound pressure level of 91 
dB re 20 [micro]Pa, a flat-weighted sound exposure level of 96 dB 20 
[mu]Pa\2\s, and an M-weighted sound exposure level of 92 dB re 20 
[mu]Pa\2\s at a distance of 2.4 km from the closest point of approach. 
The peak pressure was 104 dB 20 [mu]Pa. During previous Terrier-Black 
Brant launches, the flat-weighted sound pressure level ranged from 
102.7 to 115 dB, and M-weighted sound exposure level ranged from 106.5 
to 118.4 dB at pinniped haul-out sites located at 0.6 to 1.3 km from 
the closest point of approach. Sounds near the launcher reached 134 dB 
flat-weighted sound pressure level and 132.3 dB 20 [mu]Pa\2\s M-
weighted sound exposure level. During previous Terrier-Lynx launches, 
flat-weighted sound pressure level measured 85.9 to 114.4 dB re 20 
[mu]Pa at sites located 0.6 to 5.1 km from the closest point of 
approach of the launched vehicle and M-weighted sound exposure levels 
ranged from 90.5 to 118 dB re 20 [mu]Pa.
    RIM-161 Standard Missile 3 (SM-3)--The SM-3 is a ship-based missile 
system used to intercept short- to intermediate-range ballistic 
missiles as a part of Aegis Ballistic Missile Defense System. Although 
primarily designed as an anti-ballistic missile defensive weapon, the 
SM-3 has also been employed in an anti-satellite capacity against a 
satellite at the lower end of low Earth orbit. The SM-3 evolved from 
the proven SM-2 Block IV design. The SM-3 uses the same booster and 
dual thrust rocket motor as the Block IV missile for the first and 
second stages and the same steering control section and midcourse 
missile guidance for maneuvering in the atmosphere. To support the 
extended range of an exo-atmospheric intercept, additional missile 
thrust is provided in a new third stage for the SM-3 missile, 
containing a dual pulse rocket motor for the early exo-atmospheric 
phase of flight. Testing of SM-3 missiles may begin during this 
proposed authorization period and launch sounds are expected to be 
within the range of existing missiles.
    Other Missile Launches--The Navy may also launch other missiles to 
simulate various types of threat missiles and aircraft, and to test 
other systems. For example, in 2002, a Tactical Tomahawk was launched 
from Building 807 Launch Complex. The Tomahawk produced a flat-weighted 
sound pressure level of 93 dB re 20 [mu]Pa, a flat-weighted sound 
exposure level of 107 dB re 20 [mu]Pa\2\s, and an M-weighted sound 
exposure level of 105 dB re 20 [mu]Pa\2\s at a distance of 539 m from 
the closest point of approach. The peak pressure was 111 dB 20 [mu]Pa. 
A Falcon was launched from the Alpha Launch Complex in 2006, producing 
a flat-weighted sound pressure level of 84 dB re 20 [mu]Pa, a flat-
weighted sound exposure level of 88 dB 20 [mu]Pa\2\s, and an M-weighted 
sound exposure level of 82 dB re 20 [mu]Pa\2\s at a beach located north 
of the launch azimuth. Near the launcher, the flat-weighted sound 
pressure level was 128 dB re 20 [mu]Pa, the flat-weighted sound 
exposure level was 126 dB 20 [mu]Pa\2\s, and the M-weighted sound 
exposure level was 125 dB re 20 [mu]Pa\2\s.
    Missiles of the BQM-34 or BQM-74 type could also be launched. These 
are small, unmanned aircraft that are launched using jet-assisted take-
off rocket bottles and then continue offshore powered by small turbojet 
engines. The larger of these, the BQM-34, is 7 m long and has a mass of 
1,134 kg plus the jet-assisted take-off rocket bottle. The smaller BQM-
74 is up to 420 cm long and has a mass of 250 kg plus the solid 
propellant jet-assisted take-off rocket bottles. Burgess and Greene 
(1998) reported that A-weighted sound pressure levels ranged from 92 
dBA re 20 [mu]Pa at a closest point of approach distance of 370 m, to 
145 dB at 15 m for a launch in 1997. If launches of other missile types 
occur, they would be included within the total of 40 launches 
anticipated per year.
    General Launch Operations--Aircraft and helicopter flights between 
the Point Mugu airfield on the mainland, the airfield on SNI, and the 
target sites in the Sea Range are a routine part of a planned launch 
operation. These flights generally do not pass at low level over the 
beaches where pinnipeds are expected to be hauled out. Therefore, these 
flights are not further considered in this document.

[[Page 13025]]

    Movements of personnel are restricted near the launch sites at 
least several hours prior to a launch for safety reasons. No personnel 
are allowed on the western end of SNI during launches. Movements of 
personnel or missiles near the island's beaches are also restricted at 
other times of the year for purposes of environmental protection and 
preservation of cultural resource sites. Launch monitoring equipment 
would be deployed and activated prior to the launches.

Description of Marine Mammals in the Area of the Specified Activity

    There are seven species of marine mammals with possible or 
confirmed occurrence in the area of the specified activity: Northern 
elephant seals, harbor seals, California sea lion, northern fur seals 
(Callorhinus ursinus), Guadalupe fur seal (Arctocephalus townsendi), 
Steller sea lion (Eumetopias jubatus), and southern sea otter (Enhydra 
lutris nereis). The northern fur seal is considered depleted under the 
MMPA; the Guadalupe fur seal is listed as threatened under the 
Endangered Species Act (ESA) and depleted under the MMPA; and the 
eastern distinct population segment of Steller sea lion was delisted 
from the ESA in 2013. The northern fur seal, Guadalupe fur seal, and 
Steller sea lion are considered rare at SNI and takes of these species 
have not been observed under the Navy's current MMPA authorization. 
Therefore, these three species will not be considered further. The 
southern sea otter is managed by the U.S. Fish and Wildlife Service and 
is also not considered further in this proposed rule notice. Table 1 
includes species-specific information on the three species likely to 
occur in the area of the specified activity.

                        Table 1--Species Information on the Marine Mammals Likely To Occur in the Area of the Specified Activity
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           Common name              Scientific name           Status              Occurrence            Seasonality             Range         Abundance
--------------------------------------------------------------------------------------------------------------------------------------------------------
Northern elephant sea...........  Mirounga             ....................  Common..............  Year-round..........  Mexico to Alaska..      124,000
                                   angustirostris.
Harbor seal.....................  Phoca vitulina.....  ....................  Common..............  Year-round..........  Baja California to       30,196
                                                                                                                          Aleutian Islands.
California sea lion.............  Zalophus             ....................  Common..............  Year-round..........  Mexico to Canada..      296,750
                                   californianus.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Further information on the biology and local distribution of these 
species can be found in the Navy's application (see ADDRESSES), and the 
NMFS Marine Mammal Stock Assessment Reports, which are available online 
at: http://www.nmfs.noaa.gov/pr/species/.

Potential Effects of the Specified Activity on Marine Mammals

    This section includes a summary and discussion of the ways that the 
types of stressors associated with the specified activity (e.g., 
missile launch noise) have been observed to impact marine mammals. This 
discussion may also include reactions that we consider to rise to the 
level of a take and those that we do not consider to rise to the level 
of a take (for example, with acoustics, we may include a discussion of 
studies that showed animals not reacting at all to sound or exhibiting 
barely measurable avoidance). This section is intended as a background 
of potential effects and does not consider either the specific manner 
in which this activity will be carried out or the mitigation that will 
be implemented, and how either of those will shape the anticipated 
impacts from this specific activity. The ``Estimated Take by Incidental 
Harassment'' section later in this document will include a quantitative 
analysis of the number of individuals that are expected to be taken by 
this activity. The ``Negligible Impact Analysis'' section will include 
the analysis of how this specific activity will impact marine mammals 
and will consider the content of this section, the ``Estimated Take by 
Incidental Harassment'' section, the ``Proposed Mitigation'' section, 
and the ``Anticipated Effects on Marine Mammal Habitat'' section to 
draw conclusions regarding the likely impacts of this activity on the 
reproductive success or survivorship of individuals and from that on 
the affected marine mammal populations or stocks.
    Potential effects of the specified activity on marine mammals 
involve both acoustic and non-acoustic effects. Acoustic effects are 
related to sound produced by the engines of all launch vehicles, and, 
in some cases, their booster rockets. Potential non-acoustic effects 
could result from the physical presence of personnel during placement 
of video and acoustical monitoring equipment. However, careful 
deployment of monitoring equipment is not expected to result in any 
disturbance to pinnipeds hauled out nearby. Any visual disturbance 
caused by passage of a vehicle overhead is likely to be minor and brief 
as the launch vehicles are relatively small and move at great speed.

Acoustic Impacts

    The effects of noise on marine mammals are highly variable, and can 
be categorized as follows (based on Richardson et al., 1995):
    (1) The noise may be too weak to be heard at the location of the 
animal (i.e., lower than the prevailing ambient noise level, the 
hearing threshold of the animal at relevant frequencies, or both);
    (2) The noise may be audible but not strong enough to elicit any 
overt behavioral response;
    (3) The noise may elicit reactions of variable conspicuousness and 
variable relevance to the well-being of the marine mammal; these can 
range from temporary alert responses to active avoidance reactions, 
such as stampedes into the sea from terrestrial haul-out sites;
    (4) Upon repeated exposure, a marine mammal may exhibit diminishing 
responsiveness (habituation), or disturbance effects may persist; the 
latter is most likely with sounds that are highly variable in 
characteristics, infrequent and unpredictable in occurrence (as are 
vehicle launches), and associated with situations that a marine mammal 
perceives as a threat;
    (5) Any anthropogenic noise that is strong enough to be heard has 
the potential to reduce (mask) the ability of a marine mammal to hear 
natural sounds at similar frequencies, including calls from 
conspecifics, and underwater environmental sounds such as surf noise;
    (6) If marine 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

[[Page 13026]]

permanent reduction in hearing sensitivity. In terrestrial mammals, and 
presumably marine mammals, received sound levels must far exceed the 
animal's hearing threshold for there to be any temporary threshold 
shift (TTS) in its hearing ability. For transient sounds, the sound 
level necessary to cause TTS is inversely related to the duration of 
the sound. Received sound levels must be even higher for there to be 
risk of permanent hearing impairment.
    When considering the influence of various kinds of sound on the 
marine environment, it is necessary to understand that different kinds 
of marine life are sensitive to different frequencies of sound. Based 
on available behavioral data, audiograms have been derived using 
auditory evoked potentials, anatomical modeling, and other data, 
Southall et al. (2007) designate ``functional hearing groups'' for 
marine mammals and estimate the lower and upper frequencies of 
functional hearing of the groups. The functional groups and the 
associated frequencies are indicated below (though animals are less 
sensitive to sounds at the outer edge of their functional range and 
most sensitive to sounds of frequencies within a smaller range 
somewhere in the middle of their functional hearing range):
     Low-frequency cetaceans (13 species of mysticetes): 
functional hearing is estimated to occur between approximately 7 Hz and 
22 kHz (however, a study by Au et al. (2006) of humpback whale songs 
indicate that the range may extend to at least 24 kHz);
     Mid-frequency cetaceans (32 species of dolphins, six 
species of larger toothed whales, and 19 species of beaked and 
bottlenose whales): functional hearing is estimated to occur between 
approximately 150 Hz and 160 kHz;
     High-frequency cetaceans (eight species of true porpoises, 
six species of river dolphins, Kogia, the franciscana, and four species 
of cephalorhynchids): functional hearing is estimated to occur between 
approximately 200 Hz and 180 kHz; and
     Pinnipeds in water: functional hearing is estimated to 
occur between approximately 75 Hz and 75 kHz, with the greatest 
sensitivity between approximately 700 Hz and 20 kHz.
    As mentioned previously in this document, three marine mammal 
species (pinnipeds only) are likely to occur in the proposed action 
area. A species functional hearing group is a consideration when we 
analyze the effects of exposure to sound on marine mammals.

Behavioral Reactions of Pinnipeds to Missile Launches

    Acoustic impacts of the specified activity could result from sound 
produced by the engines of all launch vehicles, and, in some cases, 
their booster rockets. Noises with sudden onset or high amplitude 
relative to the ambient noise level may elicit a behavioral response 
from pinnipeds resting on shore. Some pinnipeds tolerate high sound 
levels without reacting strongly, whereas others may react strongly 
when sound levels are lower. Published papers and available technical 
reports describing behavioral responses of pinnipeds to the types of 
sound recorded near haul-out sites on SNI indicate that there is much 
variability in the responses. Responses can range from momentary 
startle reactions to animals fleeing into the water or otherwise away 
from their resting sites in what has been termed a stampede. Studies of 
pinnipeds during missile launch events have demonstrated that different 
pinniped species, and even different individuals in the same haul-out 
group, can exhibit a range of responses from alert to stampede. It is 
this variation that makes setting reaction criteria difficult. An 
acoustic stimulus with sudden onset (such as a sonic boom) may be 
analogous to a looming visual stimulus (Hayes and Saif, 1967), which 
can be especially effective in eliciting flight or other responses 
(Berrens et al., 1988). Missile launches are unlike many other forms of 
disturbance because of their sudden sound onsets, high peak levels in 
some cases, and short durations (Cummings, 1993).
    Previous to the start of monitoring work at SNI under an Incidental 
Harassment Authorization issued in 2001, most existing data on 
reactions of hauled-out pinnipeds to sonic booms or launch noise 
involved far larger launch missiles than the Coyotes and other missiles 
that would be launched from SNI. In most cases, where the species of 
pinnipeds occurring in the Sea Range have been exposed to the sounds of 
large missile launches (such as the Titan IV from Vandenberg Air Force 
Base), animals did not flush into the sea unless the sound level to 
which they were exposed was relatively high. The reactions of harbor 
seals to even these large missile launches have been limited to short-
term (5-30 minute) abandonment of haul-out sites.
    Holst et al. (2005, 2008, 2010, and 2011) summarize the systematic 
monitoring results from SNI from mid-2001 through February 2011. 
Ugoretz and Green (2012) summarize results from 2011 through 2012. In 
particular, northern elephant seals seem very tolerant of acoustic 
disturbances (Stewart 1981; Holst et al., 2008) and were removed from 
the list of target species for monitoring on SNI in 2010. In contrast, 
harbor seals are more easily disturbed. Based on SNI launch monitoring 
results from 2001 to 2007, most pinnipeds--especially northern elephant 
seals--would be expected to exhibit no more than short-term alter or 
startle responses (Holst et al., 2005, 2008, 2011). Any localized 
displacement would be of short duration, although some harbor seals may 
leave their haul-out site until the following low tide. However, Holst 
and Lawson (2002) noted that numbers occupying haul-out sites on the 
next day were similar to pre-launch numbers.
    The most common type of reaction to missile launches at SNI is 
expected to be a momentary ``alert'' response. When the animals hear or 
otherwise detect the launch, they are likely to become alert, and (at 
least momentarily) to interrupt prior activities in order to pay 
attention to the launch. Animals that are well to the side of the 
launch trajectory are likely to not show any additional reaction. 
Animals that are closer to the trajectory may show a momentary alert 
response, or they may react more strongly. Previous observations 
indicate that elephant seals, in particular, will rarely if ever show 
more than a momentary alert reaction (Stewart, 1981; Stewart et al., 
1994; Holst et al., 2005, 2008)--even when exposed to noise levels or 
types that caused nearby harbor seals and California sea lions to flee.
    Video recordings of pinnipeds around the periphery of western SNI 
during launches on SNI in 2001-2012 have shown that some pinnipeds 
react to a nearby launch by moving into the water or along the 
shoreline (Holst et al., 2005, 2008, 2010, 2011; Ugoretz and Greene, 
2012). Pinniped behavioral responses to launch sounds were usually 
brief and of low magnitude, especially for northern elephant seals. 
California sea lions (especially the young animals) exhibited more 
reaction than elephant seals, and harbor seals were the most responsive 
of the three species.
    Northern elephant seals exhibited little reaction to launch sounds 
(Holst et al., 2005, 2008, 2010, 2011). Most individuals merely raised 
their heads briefly upon hearing the launch sounds and then quickly 
returned to their previous activity pattern (usually sleeping). During 
some launches, a small proportion of northern elephant seals moved a 
short distance on the beach, away from their resting site, but

[[Page 13027]]

settled within minutes. Because of this, elephant seals are no longer 
targeted for monitoring during launches, but are often in the field of 
view when monitoring other species.
    As expected, responses of California sea lions to the launches 
varied by individual and age group (Holst et al., 2005, 2008, 2010, 
2011). Some sea lions exhibited brief startle responses and increased 
vigilance for a short period after each launch. Other sea lions, 
particularly pups that were previously playing in groups along the 
margin of the haul-out beaches, appeared to react more vigorously. A 
greater proportion of hauled-out sea lions typically responded and/or 
entered the water when launch sounds were louder (Holst et al., 2005, 
2008, 2010, 2011; Ugoretz and Greene, 2012). Adult sea lions already 
hauled out would mill about on the beach for a short period before 
settling, whereas those in the shallow water near the beach did not 
come ashore.
    During the majority of launches at SNI, most harbor seals within 
the audible range of the launch left their haul-out sites on rocky 
ledges to enter the water and did not return during the duration of the 
video-recording period (which sometimes extended up to several hours 
after the launch) (Holst et al., 2005, 2008, 2010, 2011; Ugoretz and 
Greene, 2012). During monitoring the day after a launch, harbor seals 
were usually hauled out again at these sites (Holst and Lawson, 2002).
    The type of missile being launched is also important in determining 
the nature and extent of pinniped reactions to launch sounds. Holst et 
al. (2008) showed that significantly more California sea lions 
responded during Coyote launches than during other missile launches; 
AGS launches caused the fewest reactions. Elephant seals showed 
significantly less reaction during launches involving missiles other 
than Vandals. The BQM-34 and especially the BQM-74 subsonic drone 
missiles that may be launched from SNI are smaller and less noisy than 
Coyotes. Launches of BQM-34 drones from NAS Point Mugu have not 
normally resulted in harbor seals leaving their haul-out area at the 
mouth of Mugu Lagoon about 3.2 kilometers (km) to the side of the 
launch track (Lawson et al., 1998).

Stampede-Related Injury or Mortality From Missile Launches

    Bowles and Stewart (1980) reported that harbor seals on San Miguel 
Island reacted to low-altitude jet overflights with alert postures and 
often with rapid movement across the haul-out sites, especially when 
aircraft were visible. These harbor seals flushed into the water in 
response to some sonic booms and to a few of the overflights by light 
aircraft, jets above 244 meters (m) and helicopters below 305 m. 
Sometimes the harbor seals did not return to land until the next day, 
although they more commonly returned the same day. These authors 
postulated that such disturbance-induced stampedes or other mother-pup 
separations could be a source of increased mortality. However, 
observations during actual sonic booms and tests with a carbide cannon 
simulating sonic booms at San Miguel and SNI provide no evidence of 
such pinniped injury or mortality (Stewart, 1982) and no mortality has 
been observed during missile launches (Holst et al., 2005, 2008, 2010, 
2011; Ugoretz and Greene, 2012).
    It is possible, although unlikely, that launch-induced stampedes 
could have adverse impacts on individual pinnipeds on the west end of 
SNI. However, during missile launches in 2001-2012, there was no 
evidence of launch-related injuries or deaths (Holst et al., 2005, 
2008, 2010, 2012; Ugoretz and Greene, 2012). On several occasions, 
harbor seals and California sea lion adults moved over pups as the 
animals moved in response to the launches, but the pups did not appear 
to be injured. Given the large numbers of pinnipeds giving birth on 
SNI, it is expected that injuries and deaths will occur as a result of 
natural causes. For example, during the 1997-1998 El Ni[ntilde]o event, 
pup mortality reached almost 90 percent for northern fur seals at 
nearby San Miguel Island, and some adults may have died as well (Melin 
et al., 2005). Pup mortality also increased during this period for 
California sea lions. Indirect evidence that launches have not caused 
mortality comes from the fact that populations of northern elephant 
seals and especially California sea lions on SNI are growing rapidly 
despite similar launches for many years. Harbor seal numbers have also 
increased and new harbor seal haul-out sites have been established at 
locations directly under and near the launch tracks of missiles.

Anticipated Effects on Marine Mammal Habitat

    During the period of the proposed activity, three species of 
pinnipeds will use various beaches around SNI as places to rest, molt, 
and breed. These beaches consist of sand, rock ledges, and rocky 
cobble. Pinnipeds continue to use beaches around the western end of 
SNI, and are expanding their use of some beaches, despite ongoing 
launch activities for many years. Similarly, it appears that sounds 
from prior launches have not affected use of coastal areas at 
Vandenberg Air Force Base where similar missile launches occur.
    Pinnipeds do not feed when hauled out on these beaches and the 
airborne launch sounds will not persist in the water near the island 
for more than a few seconds. Therefore, it is not expected that the 
launch activities will have any impact on the food or feeding success 
of these pinnipeds.
    Boosters from missiles may be jettisoned shortly after launch and 
fall on the island, but are not expected to impact beaches. Fuel 
contained in these boosters is consumed rapidly and completely, so 
there would be no risk of contamination even in the very unlikely event 
that a booster did land on a beach. Thus, the proposed activity is not 
expected to have any effects on marine mammal habitat.

Proposed Mitigation

    In order to issue an incidental take authorization (ITA) under 
section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible 
methods of taking pursuant to such activity, and other means of 
effecting the least practicable impact on such species or stock and its 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance, and on the availability of such species 
or stock for taking for certain subsistence uses (where relevant).
    The NDAA of 2004 amended the MMPA as it relates to military-
readiness activities and the ITA process such that ``least practicable 
adverse impact'' shall include consideration of personnel safety, 
practicality of implementation, and impact of the effectiveness of the 
``military readiness activity.'' The activities described in the Navy's 
application are considered military readiness activities.
    As during launches conducted under previous regulations, where 
practicable, the Navy proposes the following mitigation measures, 
provided that doing so will not compromise operational safety, human 
safety, national security, or other requirements or mission goals:
    (1) Limit activities near the beaches in advance of launches;
    (2) Avoid launch activities during harbor seal pupping season 
(February through April);
    (3) Limit launch activities during other pinniped pupping seasons;
    (4) Not launch missiles from the Alpha Complex at low elevation 
(less than 305 m) on launch azimuths that pass close to pinniped haul-
out sites when occupied;

[[Page 13028]]

    (5) Avoid launching multiple missiles in quick succession over 
haul-out sites, especially when young pups are present; and
    (6) Aircraft and helicopter flight paths during missile launch 
operations would maintain a minimum altitude of 305 m from pinniped 
haul-outs and rookeries, except in emergencies or for real-time 
security incidents (e.g., search-and-rescue, fire-fighting, adverse 
weather conditions), which may require approaching pinniped haul-outs 
and rookeries closer than 305 m.

Mitigation Conclusions

    NMFS has carefully evaluated the applicant's proposed mitigation 
measures and considered a range of other measures in the context of 
ensuring that NMFS prescribes the means of effecting the least 
practicable impact on the affected marine mammal species and stocks and 
their habitat. Our evaluation of potential measures included 
consideration of the following factors in relation to one another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals;
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
     The practicability of the measure for applicant 
implementation, including consideration of personnel safety, 
practicality of implementation, and impact on the effectiveness of the 
military readiness activity.
    Any mitigation measure(s) prescribed by NMFS should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    1. Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal).
    2. A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to received 
levels of noise, or other activities expected to result in the take of 
marine mammals (this goal may contribute to 1, above, or to reducing 
harassment takes only).
    3. A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to received levels of noise, or other activities expected to result in 
the take of marine mammals (this goal may contribute to 1, above, or to 
reducing harassment takes only).
    4. A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to received 
levels of noise, or other activities expected to result in the take of 
marine mammals (this goal may contribute to a, above, or to reducing 
the severity of harassment takes only).
    5. Avoidance or minimization of adverse effects to marine mammal 
habitat, paying special attention to the food base, activities that 
block or limit passage to or from biologically important areas, 
permanent destruction of habitat, or temporary destruction/disturbance 
of habitat during a biologically important time.
    6. For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has preliminarily 
determined that the proposed mitigation measures provide the means of 
effecting the least practicable impact on marine mammal species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance, while also 
considering personnel safety, practicality of implementation, and 
impact on the effectiveness of the military readiness activity.

Proposed Monitoring and Reporting

    In order to issue an ITA for an activity, section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth, ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for ITAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and of the level of taking or impacts on populations of marine 
mammals that are expected to be present in the proposed action area. 
The Navy submitted a marine mammal monitoring plan as part of their 
application. It can be found in section 13 of their application. The 
plan may be modified or supplemented based on comments or new 
information received from the public during the public comment period.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
    1. An increase in the probability of detecting marine mammals, both 
within the mitigation zone (thus allowing for more effective 
implementation of the mitigation) and in general to generate more data 
to contribute to the analyses mentioned below.
    2. An increase in our understanding of how many marine mammals are 
likely to be exposed to levels of noise that we associate with specific 
adverse effects, such as behavioral harassment, TTS, or PTS.
    3. An increase in our understanding of how marine mammals respond 
to stimuli expected to result in take and how anticipated adverse 
effects on individuals (in different ways and to varying degrees) may 
impact the population, species, or stock (specifically through effects 
on annual rates of recruitment or survival) through any of the 
following methods:
    a. Behavioral observations in the presence of stimuli compared to 
observations in the absence of stimuli (need to be able to accurately 
predict received level, distance from source, and other pertinent 
information).
    b. Physiological measurements in the presence of stimuli compared 
to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information).
    c. Distribution and/or abundance comparisons in times or areas with 
concentrated stimuli versus times or areas without stimuli.
    4. An increased knowledge of the affected species.
    5. An increase in our understanding of the effectiveness of certain 
mitigation and monitoring measures.

Proposed Monitoring Measures

    The Navy proposes to conduct the following monitoring measures, 
which are further detailed in section 13 of their application:
     The Navy would continue a standard, ongoing, land-based 
monitoring program to assess effects on harbor seals, northern elephant 
seals, and California sea lions on SNI. This monitoring would occur at 
up to three sites at different distances from the launch site before, 
during, and after each launch, depending upon presence of pinnipeds 
during each launch. The monitoring would be via autonomous video or 
Forward Looking Infrared (FLIR) cameras. Pinniped behavior on the beach 
would be documented prior to the planned launch operations, during the 
launch, and following the launch. Northern elephant seals would not be 
specifically targeted for monitoring, though may be present in the 
field of view when monitoring other species.

[[Page 13029]]

     During each launch, the Navy would obtain calibrated 
recordings of the sounds of the launches as received at different 
distances from the missile's flightline. The Navy anticipates that 
acoustic data would be acquired at each video monitoring location, to 
estimate sounds received by pinnipeds, and at the launch site to 
estimate maximum potential sound received. These recordings would 
provide for a thorough description of launch sounds as received at 
different locations on western SNI, and of the factors that affect 
received sound levels. By analysis of the paired data on behavioral 
observations and received sound levels, the Navy would further 
characterize the relationship between the two. If there is a clear 
correlation, the Navy would determine the ``dose-response'' 
relationship.
    Visual Monitoring--The Navy proposes to conduct marine mammal and 
acoustic monitoring during launches from SNI, using simultaneous video 
recording of pinniped behavior and audio recording of launch sounds. 
The land-based monitoring would provide data required to characterize 
the extent and nature of the takes. In particular, the monitoring would 
provide the information needed to document the occurrence, nature, 
frequency, and duration of any changes in pinniped behavior that might 
result from missile launches. Components of this documentation would 
include the following:
     Identify and document any change in behavior or movements 
that may occur at the time of the launch;
     Compare received levels of launch sound with pinniped 
responses, based on acoustic and behavioral data from up to three 
monitoring sites at different distances from the launch site and 
missile path during each launch and attempt to establish the dose-
response relationship for launch sounds under different launch 
conditions;
     Ascertain periods or launch conditions when pinnipeds are 
most and least responsive to launch activities; and
     Document take by harassment and, although unlikely, any 
mortality or injury.
    The launch monitoring program would include remote video recordings 
before, during, and after launches when pinnipeds are present in the 
area of potential impact, and visual assessment by trained observers 
before and after the launch. Remote cameras are essential during 
launches because safety rules prevent personnel from being present in 
most of the areas of interest. In addition, video techniques would 
allow simultaneous observations at up to three different locations, and 
would provide a permanent record that could be reviewed in detail. No 
specific effort would be made to monitor elephant seals, though they 
may be present in mixed groups when monitoring other species.
    Acoustical Monitoring--The Navy would take acoustical recordings 
during each monitored launch. These recordings would be suitable for 
quantitative analysis of the levels and characteristics of the received 
launch sounds. The Navy would use up to four autonomous audio recorders 
to make acoustical measurements. During each launch, these would be 
located as close as practical to monitored pinniped haul-out sites and 
near the launch pad itself. The monitored haul-out sites would 
typically include one site as close as possible to the missile's 
planned flight path and one or two locations farther from the flight 
path within the area of potential impact with pinnipeds present.

Reporting Measures

    The Navy would submit annual interim technical reports to NMFS no 
later than December 31 for the duration of the regulations. These 
reports would provide full documentation of methods, results, and 
interpretation pertaining to all monitoring tasks for launches during 
each calendar year. However, only preliminary information would be 
included for any launches during the 60-day period immediately 
preceding submission.
    The Navy would submit a draft comprehensive technical report to 
NMFS 180 days prior to the expiration of the regulations, providing 
full documentation of the methods, results, and interpretation of all 
monitoring tasks for launches to date. A revised final comprehensive 
technical report, including all monitoring results during the entire 
period of the regulations would be due 90 days after the regulations 
expire.
    The Navy would ensure that NMFS is notified immediately if an 
injured or dead marine mammal is judged to result from launch 
activities at any time.

Monitoring Results From Previously Authorized Activities

    Between 2001 and 2012, a maximum of 1,990 California sea lions, 395 
harbor seals, and 130 northern elephant seals were estimated to have 
been potentially harassed in any single monitoring year incidental to 
missile launches at SNI (Holst et al., 2008, 2010, 2011; Ugoretz and 
Greene, 2012). These numbers may represent multiple exposures of single 
animals, as beaches were monitored repeatedly over the course of the 
year during numerous launches. However, some animals that displayed 
behavioral reactions may have been missed, as not all areas can be 
monitored during the launches. Pinnipeds that were potentially affected 
left the haul-out site in response to the launch, left the water at a 
vigorous pace, or exhibited prolonged movement or behavioral changes 
relative to their behavior immediately prior to the launch.

Estimated Take by Incidental Harassment

    The NDAA of 2004 (Pub. L. 103-136) removed the ``small numbers'' 
and specified ``geographical region'' limitations indicated above and 
amended the definition of ``harassment'' as it applies to a ``military 
readiness activity'' to read as follows (section 3(18)(B) of the MMPA): 
(i) Any act that injures or has the significant potential to injure a 
marine mammal or marine mammal stock in the wild [Level A Harassment]; 
or (ii) Any act that disturbs or is likely to disturb a marine mammal 
or marine mammal stock in the wild by causing disruption of natural 
behavioral patterns, including, but not limited to, migration, 
surfacing, nursing, breeding, feeding, or sheltering, to a point where 
such behavioral patterns are abandoned or significantly altered [Level 
B Harassment].
    Any takes of marine mammals are most likely to result from 
operational noise as launch missiles pass near haul-out sites, and/or 
associated visual cues. This section estimates maximum potential take 
and the likely annual take of marine mammal species during the proposed 
missile launch program at SNI.
    The launch sounds could be received for several seconds and, to be 
conservative, are considered to be prolonged rather than transient 
sounds. Given the variety of responses documented previously for the 
sounds of man-made activities lasting several seconds, a sound exposure 
level of 100 dB re 20 microPascals \2\ per second is considered 
appropriate as a disturbance criterion for pinnipeds hauled out at the 
west end of SNI, particularly for California sea lions and northern 
elephant seals. Some pinnipeds that haul-out on the western end of SNI 
are expected to be within the area where sound exposure levels exceed 
100 dB. Far fewer pinnipeds are expected to occur within this area and 
none of the recorded sound exposure levels appear to be high enough to 
induce TTS.
    Based on the reaction criterion, the distance to which it is 
assumed to

[[Page 13030]]

extend, and the estimated numbers of pinnipeds exposed to sound 
exposure levels at or above 100 dB, the Navy estimated the number of 
pinnipeds on the west end of SNI that might be taken. The Navy made an 
additional adjustment for harbor seals, as they are known to sometimes 
react strongly to sound exposure levels below 100 dB. The Navy 
considered the percentage of animals that actually responded to launch 
noise in previous monitoring years in order to estimate the number of 
animals potentially harassed. Recorded sound exposure levels in 
different areas of SNI were compared to ground-based census data of 
pinnipeds. These censuses were typically conducted seasonally when 
maximum numbers of pinnipeds were known to occur on land.

Northern Elephant Seal

    To estimate the potential maximum numbers of northern elephant 
seals that might be exposed to sound levels at or above 100 dB in 2014, 
the highest pup counts within map areas K, L, and M (see Figure 16 of 
the Navy's application) in any year between 2000 and 2010 were used 
(yielding a total of 1,854), and a continuing growth rate of 7.3 
percent since 2010 was applied. This results in a maximum potential pup 
count of 2,458 for those map areas in 2014. Based on data collected 
from 1988 to 2010, the total count of all age classes expected to be 
hauled out is approximately twice the number of pups hauled out. 
Therefore, the maximum number hauled out in areas of potential impact 
for 2014 was approximated by doubling the maximum potential calculated 
pup count. Thus, the maximum expected number of elephant seals that may 
be exposed to sound levels at or above 100 dB during 2014 is estimated 
to be 4,916.
    In the absence of any contrary data, it is assumed that elephant 
seals exhibit high site fidelity when they return to shore, and that 
the 4,916 elephant seals calculated above represent the maximum total 
number that might be exposed to ``strong'' (at or above 100 dB) sounds 
during the year, assuming missiles are launched when all animals are 
hauled out and all beaches within the area receive strong sounds. If 
some seals haul out on different beaches at various times during the 
year, sometimes within and sometimes outside the area exposed to levels 
at or above 100 dB, then the number of times an individual elephant 
seal might be exposed to strong launch sounds would be reduced. 
However, the total number of individuals that would be exposed at least 
once over the course of the year would probably be increased. Movements 
from one beach to another may be more likely for juveniles than for 
older seals, given that this has been observed in other pinniped 
species (such as for harbor seal pups; Thompson et al. 1994).
    Published studies and results from the 2001-2012 monitoring at SNI 
indicate that elephant seals are more tolerant of transient noise and 
other forms of disturbance than are California sea lions or harbor 
seals. If so, the actual impact zone is smaller than assumed here, and 
the number of elephant seals that might be taken by harassment would be 
substantially lower than the number of seals present within the area 
where sound levels are at or above 100 dB. For example, during the 
2001-2012 launch program, the majority of northern elephant seals did 
not exhibit more than brief startle reactions in response to launches 
(Holst et al. 2005, 2008, 2010, 2011; Ugoretz and Greene, 2012). Most 
individuals merely raised their heads briefly upon hearing the launch 
sounds and then quickly returned to their previous activity pattern 
(usually sleeping). During some launches, a small proportion (typically 
much less than 10 percent) of northern elephant seals moved a short 
distance (<10 m) away from their resting site, but settled within 
minutes. Elephant seals rarely moved or reacted more than this.
    Therefore, the Navy estimates that up to 10 percent of 4,916 
elephant seals (or 492 seals) might be taken by Level B harassment 
during each year of planned launch operations.

Harbor Seals

    To determine the potential numbers of harbor seals that might be 
taken by harassment, the Navy used the maximum total harbor seal count 
for SNI (858) and assumed that the population has remained relatively 
stable. Previous monitoring from 2001-2012 showed that most monitored 
harbor seals entered the water in response to launches. Previous 
monitoring also indicates that about 70 percent of harbor seals that 
haul out on SNI use the beaches within areas K, L, and M. The Navy 
conservatively estimates that 80 percent of harbor seals on SNI may be 
impacted by missile launches. Therefore, the Navy estimates that a 
maximum of 686 harbor seals might be taken by Level B harassment during 
a 1-year period.

California Sea Lion

    To estimate the maximum potential number of sea lions that might be 
hauled out within areas exposed to sound levels at or above 100 dB, the 
Navy calculated the maximum number of sea lions occurring within map 
areas K, L, and M (Figure 16 of the Navy's application) in any year 
from 2001-2011. The Navy adjusted this maximum, 14,963 sea lions, for a 
population growth rate of 5.6 percent per year, which results in a 
maximum of 20,749 sea lions of all ages and sexes that might be hauled 
out within the areas exposed to sound levels at or above 100 dB in a 
single year. For most of the year, only females and pups are expected 
to be ashore, so the number of animals exposed to these sound levels 
from any one launch is likely less than the estimated total number.
    Based on past monitoring, approximately 10 percent of the 
California sea lions exposed to launch sounds during each year of 
launch activity might exhibit behavioral disturbance. Therefore, the 
Navy estimates that a maximum of 2,740 California sea lions on SNI 
might be taken by Level B harassment during a 1-year period.

Summary

    NMFS proposes to authorize take according to the Navy's estimates. 
The estimated take numbers are provided in Table 2 below for each 
marine mammal species. These take estimates do not take mitigation 
measures into consideration.

                    Table 2--Estimated and Proposed Take of Marine Mammals on an Annual Basis
----------------------------------------------------------------------------------------------------------------
                                                                        Percentage of
                                       Estimated take                       stock
         Common species name             by level B     Abundance of     potentially        Population trend
                                         harassment         stock         affected
                                                                          (percent)
----------------------------------------------------------------------------------------------------------------
Northern elephant seal...............             492         124,000              <1  unknown.
Harbor seal..........................             686          30,196             2.3  stable.

[[Page 13031]]

 
California sea lion..................           2,740         296,750              <1  increasing.
----------------------------------------------------------------------------------------------------------------

Analysis and Preliminary Determinations

Negligible Impact

    Negligible impact is ``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 (50 CFR 216.103). A negligible 
impact finding is based on the lack of likely adverse effects on annual 
rates of recruitment or survival (i.e., population-level effects). An 
estimate of the number of Level B harassment takes, alone, is not 
enough information on which to base an impact determination. In 
addition to considering estimates of the number of marine mammals that 
might be ``taken'' through behavioral harassment, NMFS must consider 
other factors, such as the likely nature of any responses (their 
intensity, duration, etc.), the context of any responses (critical 
reproductive time or location, migration, etc.), as well as the number 
and nature of estimated Level A harassment takes, the number of 
estimated mortalities, and effects on habitat.
    NMFS has preliminarily determined that target and missile launch 
activities and aircraft and helicopter operations from SNI, as 
described in this document and in the Navy's application, will result 
in no more than Level B harassment of northern elephant seals, harbor 
seals, and California sea lions. The effects of these military 
readiness activities will be limited to short-term, localized changes 
in behavior, including temporarily vacating haul-outs, and possible 
temporary threshold shift in the hearing of any pinnipeds that are in 
close proximity to a launch pad at the time of a launch. These effects 
are not likely to have a significant or long-term impact on feeding, 
breeding, or other important biological functions. No take by injury or 
mortality is anticipated, and the potential for permanent hearing 
impairment is unlikely. Harassment takes will be at the lowest level 
practicable due to incorporation of the proposed mitigation measures 
mentioned previously in this document. NMFS has proposed regulations 
for the specified activity that prescribe the means of effecting the 
least practicable adverse impact on marine mammals and their habitat 
and set forth requirements pertaining to the monitoring and reporting 
of that taking.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the Navy's missile launches will have a negligible 
impact on the affected marine mammal species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action. Therefore, NMFS has determined that the total taking of 
affected species or stocks would not have any unmitigable adverse 
impact on the availability of such species or stocks for taking for 
subsistence purposes.

Endangered Species Act (ESA)

    No species listed under the ESA are expected to be affected by 
these activities. Therefore, NMFS has determined that a section 7 
consultation under the ESA is not required.

National Environmental Policy Act (NEPA)

    In May 2009, NMFS prepared an Environmental Assessment on the 
Navy's missile launches at SNI. NMFS is currently updating this 
analysis, pursuant to NEPA, to determine whether or not this proposed 
activity may have a significant effect on the human environment. This 
analysis will be completed prior to the issuance or denial of an 
authorization.

Request for Public Comments

    NMFS requests comment on our analysis, the draft authorization, and 
any other aspect of the Notice of Proposed Rulemaking for the Navy's 
missile launch activities at SNI. Please include with your comments any 
supporting data or literature citations to help inform our final 
decision on the Navy's request for an MMPA authorization.

Classification

    The Office of Management and Budget has determined that this 
proposed rule is not significant for purposes of Executive Order 12866.
    Pursuant to the Regulatory Flexibility Act (RFA), 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. The RFA requires federal 
agencies to prepare an analysis of a rule's impact on small entities 
whenever the agency is required to publish a notice of proposed 
rulemaking. However, a federal agency may certify, pursuant to 5 U.S.C. 
605(b), that the action will not have a significant economic impact on 
a substantial number of small entities. The Navy is the sole entity 
that would be affected by this rulemaking, and the Navy is not a small 
governmental jurisdiction, small organization, or small business, as 
defined by the RFA. Any requirements imposed by an LOA issued pursuant 
to these regulations, and any monitoring or reporting requirements 
imposed by these regulations, would be applicable only to the Navy. 
NMFS does not expect the issuance of these regulations or the 
associated LOAs to result in any impacts to small entities pursuant to 
the RFA. Because this action, if adopted, would directly affect the 
Navy and not any small entities, NMFS concludes that the action would 
not result in a significant economic impact on a substantial number of 
small entities. Therefore, an Initial Regulatory Flexibility Analysis 
is not required and none has been prepared.

List of Subjects in 50 CFR Part 217

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


[[Page 13032]]


    Dated: February 25, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For reasons set forth in the preamble, 50 CFR Part 217 is proposed 
to be amended as follows:

PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS 
INCIDENTAL TO SPECIFIED ACTIVITIES


0
1. The authority citation for part 217 continues to read as follows:

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

0
2. Subpart F is added to part 217 to read as follows:
Subpart F--Taking of Marine Mammals Incidental to Target and Missile 
Launch Activities From San Nicolas Island, CA
Sec.
217.50 Specified activity and specified geographical region.
217.51 Effective dates.
217.52 Permissible methods of taking.
217.53 Prohibitions.
217.54 Mitigation.
217.55 Requirements for monitoring and reporting.
217.56 Applications for Letters of Authorization.
217.57 Letters of Authorization.
217.58 Renewal of Letters of Authorization.
217.59 Modifications to Letters of Authorization.

Subpart F--Taking of Marine Mammals Incidental to Target and 
Missile Launch Activities From San Nicolas Island, CA


Sec.  217.50  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the incidental taking 
of marine mammals specified in paragraph (b) of this section by the 
Naval Air Warfare Center Weapons Division, U.S. Navy, and those persons 
it authorizes to engage in target missile launch activities and 
associated aircraft and helicopter operations at the Naval Air Warfare 
Center Weapons Division facilities on San Nicolas Island, California.
    (b) The incidental take of marine mammals under the activity 
identified in paragraph (a) of this section is limited to the following 
species: northern elephant seals (Mirounga angustirostris), harbor 
seals (Phoca vitulina), and California sea lions (Zalophus 
californianus).
    (c) This Authorization is valid only for activities associated with 
the launching of a total of 40 Coyote (or similar sized) vehicles from 
Alpha Launch Complex and smaller missiles and targets from Building 807 
on San Nicolas Island, California.


Sec.  217.51  Effective dates.

    (a) Regulations in this subpart become effective upon issuance of 
the final rule.
    (b) [Reserved].


Sec.  217.52  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec.  216.106 
and 217.57 of this chapter, the Holder of the Letter of Authorization 
may incidentally, but not intentionally, take marine mammals by 
harassment, within the area described in Sec.  217.50, provided the 
activity is in compliance with all terms, conditions, and requirements 
of the regulations and the appropriate Letter of Authorization.
    (b) The activities identified in Sec.  217.50 must be conducted in 
a manner that minimizes, to the greatest extent practicable, any 
adverse impacts on marine mammals and their habitat.
    (c) The incidental take of marine mammals is authorized for the 
species listed in Sec.  217.50(b) and is limited to Level B Harassment.


Sec.  217.53  Prohibitions.

    Notwithstanding takings contemplated in Sec.  217.50 and authorized 
by a Letter of Authorization issued under Sec. Sec.  216.106 and 217.57 
of this chapter, no person in connection with the activities described 
in Sec.  217.50 may:
    (a) Take any marine mammal not specified in Sec.  217.50(b);
    (b) Take any marine mammal specified in Sec.  217. 50(b) other than 
by incidental, unintentional harassment;
    (c) Take a marine mammal specified in Sec.  217.50(b) if such 
taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a Letter of Authorization issued under 
Sec. Sec.  216.106 and 217.57 of this chapter.


Sec.  217.54  Mitigation.

    (a) When conducting operations identified in Sec.  217.50(c), the 
mitigation measures contained in the Letter of Authorization issued 
under Sec. Sec.  216.106 and 217.57 must be implemented. These 
mitigation measures include, but are not limited to:
    (1) The holder of the Letter of Authorization must prohibit 
personnel from entering pinniped haul-out sites below the missile's 
predicted flight path for 2 hours prior to planned missile launches.
    (2) The holder of the Letter of Authorization must avoid, whenever 
possible, launch activities during harbor seal pupping season (February 
to April), unless constrained by factors including, but not limited to, 
human safety, national security, or for vehicle launch trajectory 
necessary to meet mission objectives.
    (3) The holder of the Letter of Authorization must limit, whenever 
possible, launch activities during other pinniped pupping seasons, 
unless constrained by factors including, but not limited to, human 
safety, national security, or for vehicle launch trajectory necessary 
to meet mission objectives.
    (4) The holder of the Letter of Authorization must not launch 
vehicles from the Alpha Complex at low elevation (less than 1,000 feet 
(305 m)) on launch azimuths that pass close to pinniped haul-out sites 
when occupied.
    (5) The holder of the Letter of Authorization must avoid, 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, except when required by the test 
objectives.
    (7) Aircraft and helicopter flight paths must maintain a minimum 
altitude of 1,000 feet (305 m) from pinniped haul-outs and rookeries, 
except in emergencies or for real-time security incidents (e.g., 
search-and-rescue, fire-fighting), which may require approaching 
pinniped haul-outs and rookeries closer than 1,000 feet (305 m).
    (8) If post-launch surveys determine that an injurious or lethal 
take of a marine mammal has occurred or there is an indication that the 
distribution, size, or productivity of the potentially affected 
pinniped populations has been affected, the launch procedure and the 
monitoring methods must be reviewed, in cooperation with NMFS, and, if 
necessary, appropriate changes must be made through modification to a 
Letter of Authorization, prior to conducting the next launch of the 
same vehicle under that Letter of Authorization.
    (9) Additional mitigation measures as contained in a Letter of 
Authorization.
    (b) [Reserved]


Sec.  217.55  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec. Sec.  216.106 and 217.57 of this chapter for activities described 
in Sec.  217.50 are required to cooperate with NMFS, and any other 
federal, state, or local agency with authority to monitor the impacts 
of the activity on marine mammals. Unless specified otherwise in the 
Letter of

[[Page 13033]]

Authorization, the Holder of the Letter of Authorization must notify 
the Administrator, Southwest Region, NMFS, by letter or telephone, at 
least 2 weeks prior to activities possibly involving the taking of 
marine mammals. If the authorized activity identified in Sec.  217.50 
is thought to have resulted in the mortality or injury of any marine 
mammals or in any take of marine mammals not identified in Sec.  
217.50(b), then the Holder of the Letter of Authorization must notify 
the Director, Office of Protected Resources, NMFS, or designee, by 
telephone (301-427-8401), and the Administrator, Southwest Region, 
NMFS, or designee, by telephone (562-980-3232), within 48 hours of the 
discovery of the injured or dead animal.
    (b) The National Marine Fisheries Service must be informed 
immediately of any changes or deletions to any portions of the proposed 
monitoring plan submitted, in accordance with the Letter of 
Authorization.
    (c) The holder of the Letter of Authorization must designate 
biologically trained, on-site individual(s), approved in advance by 
NMFS, 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 three 
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 Coyote 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, 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
    (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 three 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 NMFS, Southwest Regional Office, providing reporting 
items found under the Letter of Authorization, unless other 
arrangements for monitoring are agreed upon in writing.
    (2) The Navy shall submit an annual report describing their 
activities and including the following information:
    (i) Timing, number, and nature of launch operations;
    (ii) Summary of mitigation and monitoring implementation;
    (iii) Summary of pinniped behavioral observations; and
    (iv) Estimate of the amount and nature of all takes by harassment 
or by other means.
    (3) The Navy shall submit a draft comprehensive technical report to 
the Office of Protected Resources and Southwest Regional Office, NMFS, 
180 days prior to the expiration of the regulations in this subpart, 
providing full documentation of the methods, results, and 
interpretation of all monitoring tasks for launches to date plus 
preliminary information for missile launches during the first 6 months 
of the regulations.
    (4) A revised final comprehensive technical report, including all 
monitoring results during the entire period of the Letter of 
Authorization will be due 90 days after the end of the period of 
effectiveness of the regulations in this subpart.
    (5) Both the 60-day and final reports will be subject to review and 
comment by NMFS. Any recommendations made by NMFS must be addressed in 
the final comprehensive technical report prior to acceptance by NMFS.
    (f) Activities related to the monitoring described in paragraphs 
(c) and (d) of this section, or in the Letter of Authorization issued 
under Sec. Sec.  216.106 and 217.57 of this chapter, 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 NMFS 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.  217.56  Applications for Letters of Authorization

    To incidentally take marine mammals pursuant to the regulations in 
this subpart, the U.S. citizen (as defined by Sec.  216.06 of this 
chapter) conducting the activity identified in Sec.  217.50 (the U.S. 
Navy) must apply for and obtain either an initial LOA in accordance 
with Sec.  217.57 or a renewal under Sec.  217.58.


Sec.  217.57  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact on the 
species, its habitat, and on the availability of the species for 
subsistence uses (i.e., mitigation); and
    (3) Requirements for mitigation, monitoring, and reporting.
    (c) Issuance and renewal of the Letter of Authorization will be 
based on a

[[Page 13034]]

determination that the total number of marine mammals taken by the 
activity as a whole will have no more than a negligible impact on the 
affected species or stock of marine mammal(s).


Sec.  217.58  Renewals and Modifications of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. Sec.  216.106 and 
217.57 of this chapter for the activity identified in Sec.  217.50 will 
be renewed or modified upon request of the applicant, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations (excluding changes 
made pursuant to the adaptive management provision of this chapter), 
and;
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For LOA modification or renewal requests by the applicant that 
include changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision of this chapter) that do not change the findings made for the 
regulations or result in no more than a minor change in the total 
estimated number of takes (or distribution by species or years), NMFS 
may publish a notice of proposed LOA in the Federal Register, including 
the associated analysis illustrating the change, and solicit public 
comments before issuing the LOA.
    (c) An LOA issued under Sec. Sec.  216.106 and 217.57 of this 
chapter for the activity identified in Sec.  217.50 may be modified by 
NMFS under the following circumstances:
    (1) Adaptive Management--NMFS may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after 
consulting with the Navy regarding the practicability of the 
modifications) if doing so creates a reasonable likelihood of more 
effectively accomplishing the goals of the mitigation and monitoring 
set forth in the preamble for these regulations.
    (i) Possible sources of data could contribute to the decision to 
modify the mitigation, monitoring, and reporting measures in an LOA:
    (A) Results from the Navy's monitoring from the previous year(s);
    (B) Results from other marine mammal and/or sound research or 
studies; or
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent, or number not authorized by these regulations or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
will publish a notice of proposed LOA in the Federal Register and 
solicit public comment.
    (2) Emergencies--If NMFS 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.  217.50(b), a Letter of Authorization 
may be modified without prior notice or opportunity for public comment. 
Notice would be published in the Federal Register within 30 days of the 
action.

[FR Doc. 2014-04996 Filed 3-6-14; 8:45 am]
BILLING CODE 3510-22-P