Daily Rules, Proposed Rules, and Notices of the Federal Government


National Oceanic and Atmospheric Administration

RIN 0648-XK34

Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Target and Missile Launch Activities at San Nicolas Island, CA

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; receipt of application for letter of authorization; request for comments and information.
SUMMARY: NMFS has received a request from the U.S. Navy (Navy) for authorization for the take of marine mammals incidental to vehicle launches from San Nicolas Island (SNI), California, for the period 2009 2014. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is announcing receipt of the Navy's request for the development and implementation of regulations governing the incidental taking of marine mammals and inviting information, suggestions, and comments on the Navy's application and request.
DATES: Comments and information must be received no later than October 16, 2008.
ADDRESSES: Comments on the application should be addressed to P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225. The mailbox address for providing email comments Comments sent via e-mail, including all attachments, must not exceed a 10-megabyte file size.
FOR FURTHER INFORMATION CONTACT: Candace Nachman, Office of Protected Resources, NMFS, (301) 713-2289, ext. 156.

A copy of the Navy's application may be obtained by writing to the address specified above (ADDRESSES), telephoning the contact listed above (FOR FURTHER INFORMATION CONTACT), or visiting the internet at The Navy's Final Environmental Impact Statement (FEIS) for the Point Mugu Sea Range was made available to the public in March, 2002. To obtain a copy of the FEIS, contact Steven Schwartz, Naval Air Warfare Center Weapons Division (NAWCWD), via email


Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361et seq.) direct the Secretary of Commerce (Secretary) to allow, upon request, the incidental, but not intentional taking of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) if certain findings are made and regulations are issued or, if the taking is limited to harassment, notice of a proposed authorization is provided to the public for review.

Authorization for incidental takings may be granted if NMFS finds that the taking will have a negligible impact onthe species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such taking 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.

With respect to military readiness activities, the MMPA defines “harassment” as:

(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].

Summary of Request

On September 3, 2008, NMFS received an application from the Navy requesting authorization for the take of three pinniped species incidental to vehicle launches to be conducted from the western part of SNI (see pages 3-4 of the application), over the course of 5 years. These activities are classified as military readiness activities. The Navy plans to launch up to 40 vehicles from SNI per year, with up to 10 launches per year during nighttime hours. The Navy states that these activities may have both acoustic and non-acoustic effects on pinnipeds. Aircraft and helicopter flights between the Pt Mugu airfield on the mainland, the airfield on SNI, and the target sites in the Sea Range will be a routine part of a planned launch operation. These flights generally do not pass at low levels over the beaches where pinnipeds are expected to be hauled out. The Navy requests authorization to take three species of pinnipeds by Level B Harassment: harbor seals, northern elephant seals, and California sea lions. Injury or mortality is unlikely during launch activities, and take by Level A harassment (including injury) or mortality is not requested in the Navy's application.

Specified Activities

The Navy issued a FEIS, which analyzed the effects on the human environment of implementing their preferred alternative (among other alternatives), which includes conducting five general categories of tests to evaluate sea, land, and air weapons systems (i.e., air-to-air tests, air-to-surface tests, surface-to-air tests, surface-to-surface tests, and subsurface-to-surface tests) and three general categories of training (i.e., fleet training exercises, small-scale amphibious warfare training, and special warfare training). NAWCWD plans to continue a launch program for missiles and targets from several launch sites on SNI, the purpose of which is to support test and training activities associated with operations on the NAWCWD Point Mugu Sea Range.

Information Solicited

Interested persons may submit information, suggestions, and comments concerning the Navy's request (ADDRESSES). All information, suggestions, and comments related to the Navy's request and NMFS' potential development and implementation of regulations governing the incidental taking of marine mammals by the Navy on SNI will be considered by NMFS in developing regulations governing the issuance of letters of authorization.

Dated: September 10, 2008. Helen M. Golde, Deputy Director, Office of Protected Resources, National Marine Fisheries Service.