[Federal Register Volume 79, Number 109 (Friday, June 6, 2014)]
[Rules and Regulations]
[Pages 32678-32686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-13084]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 131120978-4452-02]
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: Final rule.

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SUMMARY: Upon application from the U.S. Navy (Navy), Naval Air Warfare 
Center Weapons Division (NAWCWD), we (the National Marine Fisheries 
Service) are issuing regulations under the Marine Mammal Protection Act 
(MMPA) to govern the unintentional taking of marine mammals incidental 
to missile launches from San Nicolas Island (SNI) from June 2014 
through June 2019. These regulations allows us to issue a Letter of 
Authorization (LOA) for the incidental take of marine mammals during 
the Navy's specified activities and timeframes, set forth the 
permissible methods of taking, set forth other means of effecting the 
least practicable adverse impact on marine mammal species or stocks and 
their habitat, and set forth requirements pertaining to the monitoring 
and reporting of the incidental take.

DATES: Effective June 3, 2014, through June 3, 2019.

ADDRESSES: To obtain an electronic copy of the Navy's application or 
other referenced documents, visit 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 Office of Protected Resources, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910.

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

SUPPLEMENTARY INFORMATION: 

Background

    Section 101(a)(5)(A) of the MMPA (16 U.S.C 1361 et seq.) directs 
the Secretary 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 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), California. NMFS determined that the application 
was adequate and complete on November 18, 2013.
    The Navy proposed to continue a launch program for missiles and 
targets from several launch sites on SNI between June 2014 and June 
2019. These activities are considered military readiness activities. 
Marine mammals hauled out on SNI may be exposed to sound from missile 
launches. The Navy requests authorization to take three marine mammal 
species by Level B harassment: northern elephant seal (Mirounga 
angustirostris), Pacific harbor seal (Phoca vitulina), and California 
sea lion (Zalophus californianus).
    The Navy is currently operating under an authorization to take 
marine mammals incidental to missile launches from SNI, which expires 
June 3, 2014 (74 FR 26587).

Description of the Specified Activity

Overview

    The Navy is continuing 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 (40 missiles per year) 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. NMFS is issuing 
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

[[Page 32679]]

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 will 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). A description of the types of missiles that may be 
launched at SNI during the 5-year period and their sound 
characteristics was provided in the proposed rule (79 FR 13022, March 
7, 2014) and includes, in summary: the Rolling Airframe Missile (RAM), 
GQM-163A ``Coyote,'' Multi-stage Sea Skimming Target (MSST), Terrier 
(Black Brant, Lynx, and Orion), and RIM-161 Standard Missile 3 (SM-3).
    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.
    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.

Comments and Responses

    On March 7, 2014 (79 FR 13022), NMFS published a proposed rule to 
authorize the taking of marine mammals incidental to missile launches 
at SNI. During the 45-day public comment period, NMFS received comments 
from the Marine Mammal Commission (Commission) and a private citizen. 
The Commission's comment is specific to section 101(a)(5)(A) of the 
MMPA and NMFS' analysis of impacts to marine mammals and is summarized 
and addressed below and throughout the final rule.
    Comment 1: The Commission recommended that NMFS require the Navy to 
estimate the number of sea lion takes based on the greatest mean number 
of takes that has been estimated in any previous monitoring year 
multiplied by 40.
    Response: NMFS agrees that the potential number of annual launches 
(40) should be considered when estimating take in order to ensure that 
the Navy remains in compliance with the MMPA. NMFS reassessed the take 
estimates for California sea lion by calculating the annual average 
number of takes per launch and multiplying each average by 40. This 
total (24,360) is the number of California sea lions takes NMFS is 
authorizing over the 5-year rule (an average of 4,872 takes per year). 
This is the maximum number of takes expected, considering the Navy only 
conducted 42 launches over the past 5 years.
    Comment 2: A private citizen recommended that the Navy submit 
annual reports describing non-compliance, if any, with required 
mitigation measures--including frequency of occurrence, date of 
occurrence, and reason for occurrence of non-compliance.
    Response: It is standard practice for the Navy to include this type 
of information in their summary of implementation of mitigation 
measures in the annual interim technical reports and comprehensive 
technical reports submitted to NMFS. These reports are available on the 
NMFS Office of Protected Resources Web site at http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

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 lions, northern fur seals 
(Callorhinus ursinus), Guadalupe fur seal (Arctocephalus townsendi), 
Steller sea lions (Eumetopias jubatus), and southern sea otters 
(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 
under 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 were not considered further. The 
southern sea otter is managed by the U.S. Fish and Wildlife Service and 
was also not considered further. 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
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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.
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    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/.

[[Page 32680]]

Potential Effects of the Specified Activity on Marine Mammals
    This section of the proposed Incidental Harassment Authorization 
(IHA) (79 FR 13022, March 7, 2014) included 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. 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.
    In summary, 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. 
Detailed information on each potential effect (acoustic impacts, 
behavioral reactions of pinnipeds to missile launches, stampede-related 
injury or mortality from missile launches) was provided in the proposed 
rule (79 FR 13022, March 7, 2014) and that information has not changed.

Anticipated Effects on Marine Mammal Habitat

    Three species of pinnipeds 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. Therefore, launch activities are 
not expected to have any long-term, significant effects on marine 
mammal habitat.

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 will implement 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;
    (5) Avoid launching multiple missiles in quick succession over 
haul-out sites, especially when young pups are present; and
    (6) Maintain a minimum altitude of 305 m from pinniped haul-outs 
and rookeries for aircraft and helicopter flight paths during missile 
launch operations, 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. No additional mitigation measures were recommended 
during the public comment period on the proposed rule. 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

[[Page 32681]]

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 1, 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 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.

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. NMFS 
did not receive any comments suggesting a modification or 
supplementation to the proposed monitoring plan 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.

Monitoring Measures

    The Navy will conduct the following monitoring measures, which are 
further detailed in section 13 of their application:
     The Navy will 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 will 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 will be via autonomous video or 
Forward Looking Infrared (FLIR) cameras. Pinniped behavior on the beach 
will be documented prior to the planned launch operations, during the 
launch, and following the launch. Northern elephant seals will not be 
specifically targeted for monitoring, though may be present in the 
field of view when monitoring other species.
     During each launch, the Navy will 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 will 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 will 
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 will further 
characterize the relationship between the two. If there is a clear 
correlation, the Navy will determine the ``dose-response'' 
relationship.
    Visual Monitoring--The Navy will 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 will provide data required to characterize the extent 
and nature of the takes. In particular, the monitoring will 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 will 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 will 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

[[Page 32682]]

prevent personnel from being present in most of the areas of interest. 
In addition, video techniques will allow simultaneous observations at 
up to three different locations, and will provide a permanent record 
that could be reviewed in detail. No specific effort will be made to 
monitor elephant seals, though they may be present in mixed groups when 
monitoring other species.
    Acoustical Monitoring--The Navy will take acoustical recordings 
during each monitored launch. These recordings should be suitable for 
quantitative analysis of the levels and characteristics of the received 
launch sounds. The Navy will use up to four autonomous audio recorders 
to make acoustical measurements. During each launch, these will be 
located as close as practical to monitored pinniped haul-out sites and 
near the launch pad itself. The monitored haul-out sites will 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 will submit annual interim technical reports to NMFS no 
later than December 31 for the duration of the regulations. These 
reports will provide full documentation of methods, results, and 
interpretation pertaining to all monitoring tasks for launches during 
each calendar year. However, only preliminary information will be 
included for any launches during the 60-day period immediately 
preceding submission.
    The Navy will 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 will be due 90 days after the regulations 
expire.
    The Navy will 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 missile 
launches 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 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

[[Page 32683]]

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, the Navy concluded that 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 estimated that a maximum of 2,740 California sea 
lions on SNI might be taken by Level B harassment during a 1-year 
period. However, based on the Commission's comment during the proposed 
rule public comment period, NMFS agreed that the maximum number of 
annual launches (40) should also be a factor when estimating take. NMFS 
used the Navy's draft comprehensive monitoring report to calculate the 
annual average of potential takes per launch. Then, each average was 
multiplied by 40 and summed to get 24,360 takes over a 5-year period. 
NMFS estimates that an average of 4,872 takes of California sea lions 
may occur each year.

Summary

    NMFS is authorizing take according to the Navy's estimates and also 
considering monitoring results from the past 5 years and the potential 
for up to 40 launches to occur each year. 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 Authorized Take of Marine Mammals on an Annual
                                  Basis
------------------------------------------------------------------------
                                Estimated
                                 take by     Abundance      Population
     Common species name         Level B      of stock        trend
                                harassment
------------------------------------------------------------------------
Northern elephant seal.......          492      124,000  Unknown.
Harbor seal..................          686       30,196  Stable.
California sea lion..........        4,872      296,750  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 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

[[Page 32684]]

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. Furthermore, during 5 years of monitoring under the Navy's 
current authorization, there was no evidence of injury, mortality, pup 
abandonment, or other significant impact beyond behavioral harassment 
during or immediately succeeding any of the 33 launches. No known 
pinniped injuries or mortalities have occurred since monitoring began 
in 2001, and few, if any, pinnipeds are believed to have received sound 
levels strong enough to elicit TTS.
    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 required monitoring and 
mitigation measures, NMFS 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 will 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)

    NMFS prepared an Environmental Assessment (EA) analyzing the 
potential issuance of regulations and an LOA to the Navy for the period 
2014-2019. The final EA was prepared in May 2014 and NMFS issued a 
Finding of No Significant Impact for this action. These documents are 
available on our Web site at http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. NMFS determined that issuance of the 
rulemaking and subsequent LOA will not significantly impact the quality 
of the human environment and that preparation of an Environmental 
Impact Statement is not required.

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 certified to the Chief 
Counsel for Advocacy of the Small Business Administration at the 
proposed rule stage that this action will not have a significant 
economic impact on a substantial number of small entities. NMFS did not 
receive any public comments addressing this certification. Therefore, a 
Final Initial Regulatory Flexibility Analysis is not required and none 
has been prepared.
    The Assistant Administrator for Fisheries has determined that there 
is good cause under the Administrative Procedure Act (5 U.S.C 
553(d)(3)) to waive the 30-day delay in the effective date of the 
measures contained in the final rule. The existing regulations for SNI 
expire June 3, 2014 and launches may be scheduled soon after. Any delay 
of enacting the final rule would result in the Navy's non-compliance 
with the MMPA (should the Navy conduct missile launches without an 
LOA), thereby resulting in the potential for unauthorized takes of 
marine mammals. Moreover, the Navy is ready to implement the rule 
immediately. For these reasons, the Assistant Administrator finds good 
cause to waive the 30-day delay in the effective date.

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.

    Dated: June 2, 2014.
Eileen Sobeck,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For reasons set forth in the preamble, 50 CFR part 217 is 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 and modifications of 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 vehicles (e.g., RAM, Coyote, MSST, 
Terrier, SM-3, or similar) from Alpha Launch Complex and smaller 
missiles and targets from Building 807 on San Nicolas Island, 
California.


Sec.  217.51  Effective dates.

    Regulations in this subpart are effective from June 3, 2014, 
through June 3, 2019.


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.

[[Page 32685]]

    (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 not enter 
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) Unless specified otherwise in the Letter of Authorization, the 
Holder of the Letter of Authorization must notify the Administrator, 
West Coast 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, West Coast 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, of 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 target missiles.
    (iii) Systematic visual observations, by those individuals, 
described in paragraph (c) of this section, of 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.

[[Page 32686]]

    (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, West Coast 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 West Coast 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 validity 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) The final report 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, the NMFS may, at its discretion, 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.  216.6 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 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 measures (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. 2014-13084 Filed 6-2-14; 4:15 pm]
BILLING CODE 3510-22-P