[Federal Register Volume 67, Number 100 (Thursday, May 23, 2002)]
[Notices]
[Pages 36151-36158]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13020]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 041602B]


Small Takes of Marine Mammals Incidental to Specified Activities; 
Harbor Activities at Vandenberg Air Force Base, CA

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

ACTION: Notice of issuance of incidental harassment authorization.

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SUMMARY: In accordance with provisions of the Marine Mammal Protection 
Act (MMPA) as amended, notification is hereby given that an Incidental 
Harassment Authorization (IHA) to take small numbers of marine mammals 
by harassment incidental to harbor activities related to the Delta IV/
Evolved Expendable Launch Vehicle (EELV) at south Vandenberg Air Force 
Base, CA (VAFB) has been issued to The Boeing Company (Boeing).

DATES: Effective from May 20, 2002, until May 20, 2003.

ADDRESSES: The application is available by writing to Donna Wieting, 
Chief, Marine Mammal Conservation Division, Office of Protected 
Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910-3225, 
or by telephoning one of the contacts listed here.

FOR FURTHER INFORMATION CONTACT: Simona Perry, (301) 713-2322, ext. 106 
or Christina Fahy, (562) 980-4023.

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 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, notice of a proposed authorization is 
provided to the public for review.
    Permission for incidental takings may be granted if NMFS finds that 
the taking

[[Page 36152]]

will have no more than a negligible impact on the 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 that the permissible 
methods of taking and requirements pertaining to the 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.''
    Subsection 101(a)(5)(D) of the MMPA established an expedited 
process by which citizens of the United States can apply for an 
authorization to incidentally take small numbers of marine mammals by 
harassment. The MMPA defines ``harassment'' as:
    ...any act of pursuit, torment, or annoyance which (i) has the 
potential to injure a marine mammal or marine mammal stock in the 
wild [``Level A harassment'']; or (ii) has the potential to disturb 
a marine mammal or marine mammal stock in the wild by causing 
disruption of behavioral patterns, including, but not limited to, 
migration, breathing, nursing, breeding, feeding, or sheltering 
[``Level B harassment''].
    Subsection 101(a)(5)(D) establishes a 45-day time limit for NMFS 
review of an application followed by a 30-day public notice and comment 
period on any proposed authorizations for the incidental harassment of 
small numbers of marine mammals. Within 45 days of the close of the 
comment period, NMFS must either issue or deny issuance of the 
authorization.

Summary of Request

    On January 28, 2001, NMFS received an application from the 30\th\ 
Space Wing on behalf of Boeing requesting an authorization for the 
harassment of small numbers of Pacific harbor seals, and other marine 
mammal species, incidental to harbor activities related to the Delta 
IV/EELV, including: wharf modification, transport vessel operations, 
cargo movement activities, and harbor maintenance dredging. The harbor 
where activities will take place is on south VAFB approximately 4 
kilometers (km) (2.5 miles, mi) south of Point Arguello, CA, and 
approximately 1.6 km (1 mi) north of the nearest marine mammal pupping 
site (i.e., Rocky Point).

Specified Activities

    Modifications to the existing wharf are needed to accommodate the 
specially designed transport vessel, the Delta Mariner, that will be 
used for delivering the Delta IV/EELV's common booster core (CBC). 
These modifications involve removing portions of the wharf surface, re-
surfacing the wharf with concrete and stainless steel rub-rails, and 
construction of a ramp on the seaward portion of the wharf. Equipment 
to be used includes: a skip-loader, concrete saw, concrete ready-mix 
truck, and dump truck. Measured noise levels of equivalent heavy 
equipment ranged from 61 dB A-weighted (quietest measurement from 
clamshell dredge measurement) to 81 dB A-weighted (loudest measurement 
from roll-off truck transporter) at a distance of 76.2 meters (m) (250 
feet, ft). (Acentech, 1998). These wharf modifications will take 
approximately 6 weeks.
    Delta Mariner CBC off-loading operations and associated cargo 
movement activities will occur a maximum of 6 times per year, with the 
first Mariner visit scheduled for spring of 2002 and the first off-load 
operation for August 2002. The Delta Mariner is a 95.1 m (312 ft) long, 
25.6 m (84 ft) wide steel hull ocean-going vessel capable of operating 
at a 2.4 m (8 ft) draft. For the first few visits to the south VAFB 
harbor, tug boats will accompany the Mariner. Sources of noise from the 
Delta Mariner vessel include ventilating propellers used for 
maneuvering into position and the cargo bay door when it becomes 
disengaged. Removal of the CBC from the Mariner requires use of an 
Elevating Platform Transporter (EPT). The EPT is an additional source 
of noise, with sound levels measured at a maximum of 82 dB A-weighted 
6.1 m (20 ft) from the engine exhaust (Acentech, 1998). EPT operation 
procedures require 2 short (approximately 1/3 seconds) beeps of the 
horn prior to starting the ignition. At 60.9 m (200 ft) away, the sound 
level of the EPT horn ranged from 62-70 dB A-weighted. Containers 
containing flight hardware items will be towed off the Mariner by a 
tractor tug that generates a sound level of approximately 87 dB A-
weighted at 15.2 m (50 ft) while in operational mode. Total time of 
Mariner docking and cargo movement activities is estimated at between 
14 and 18 hours in good weather.
    To accommodate the Delta Mariner, the harbor will need to be 
dredged to a working depth of approximately 3.0 m (10 ft) mean lower 
low water level plus a 0.61 m (2 ft) over-dredge. Dredging of the 
harbor will involve the use of heavy equipment, including a clamshell 
dredge, dredging crane, a small tug, dredging barge, dump trucks, and a 
skip loader. Measured sound levels from this equipment are roughly 
equivalent to those estimated for the wharf modification equipment: 61-
81 dB A-weighted at 76.2 m (250 ft). Dredge operations, from set-up to 
tear-down, would continue 24-hours a day for 3-5 weeks. The frequency 
of maintenance dredging will be based on fill rate surveys conducted 
periodically during the first year following the initial dredge to 
determine the sedimentation rate. Boeing expects maintenance dredging 
would likely be required every 2-3 years.
    A more detailed description of the work proposed for 2002 is 
contained in the application which is available upon request (see 
ADDRESSES) and in the Final US Air Force Environmental Assessment for 
Harbor Activities Associated with the Delta IV Program at Vandenberg 
Air Force Base (ENSRI, 2001).

Comments and Responses

    On March 4, 2002 (67 FR 9702), NMFS published a notice of receipt 
and a 30-day public comment period was provided on the application and 
proposed authorization. Comments were received from the Marine Mammal 
Commission (MMC), Boeing, The Otter Project, and two private citizens. 
NMFS has not addressed in this document those comments and/or 
information that are contained in, and not in disagreement with, 
statements made in either the Boeing application or the notice of 
proposed authorization (67 FR 9702, March 4, 2002).

Activity Concerns

    Comment 1: Has any work actually begun on this application (meaning 
physical work at the harbor) without NMFS benefit of public comment?
    Response: None of the actions covered in the permit application 
have begun.
    Comment 2: Why hasn't the noise from the jackhammer been included 
in Boeing's application?
    Response: Boeing's application includes an initial list of 
equipment required for the wharf modification that was requested from 
the construction contractor. A jackhammer was not listed on this 
initial list. The contractor has since informed Boeing that a 
jackhammer will be required for approximately a week. National 
Institute for Occupational Safety and Health (NIOSH) data shows that a 
jackhammer will generate between 102-111 dB measured at the operator's 
ear.
    Comment 3: Where was the EPT noise level of 85 dB measured from? 
What is the noise level when the EPT engine is under a load condition? 
Is the EPT engine diesel, gasoline, or powered by some other source?

[[Page 36153]]

    Response: The EPT noise level of 85 dB was measured less than 6.1 m 
(20 ft) from the engine exhaust. The measurement provided in the 
application was the noise level of the EPT with the engine revved. The 
engine runs at a constant speed with power to the drive train regulated 
by a hydraulic pump. The noise level of the EPT under load would be 
comparable to, but not precisely the same as, the noise measurements 
provided. The engine powering the EPT is a Diesel engine, manufactured 
by Daimler Chrysler AG (Mercedes), model OM442A, 340 HP. It conforms to 
2000 U.S. EPA California and Canada regulations for large non-road 
compression-ignition engines. It is certified to be operated on diesel 
fuel.
    Comment 4: Is the ``tractor tug'' electric, diesel, or gasoline 
powered? Is the tractor tug actually the roll-off truck transporter 
listed in the application? Define the ``operational mode'' of the 
``tractor tug.'' For example, what is the noise level when the 
``tractor tug'' engine is under a load condition?
    Response: The tractor tug is more accurately referred to as a 
standard diesel truck tractor. It has yet to be purchased, but the 
selected manufacturer is Peterbilt. The noise level will meet OSHA 
standards. Operational mode is the condition of operation under a load. 
The noise level under a load condition under load would be comparable 
to but not precisely the same as the noise measurements provided in the 
application.
    Comment 5: How much dredge material will be generated? Where is the 
National Environmental Policy Act (NEPA) documentation to support 
placement of this dredged material?
    Response: 3,000-5,000 cubic yards of dredge material will be 
generated. All dredge activities, including the maintenance dredging, 
were described and evaluated in the final Environmental Assessment (EA) 
for Harbor Activities at VAFB, dated July 2001. In the future, dredged 
material will either be used for beach replenishment at a site about 
3.2 km (2 mi) south of the harbor, or will be used to refill an old 
quarry at Point Pedernales (Honda Point) back to its original profile. 
Beach replenishment would entail placing the sediments in the shallow 
sub-tidal where it will be re-entrained in the long-shore current.
    Comment 6: Who makes the determination that the crew and captain of 
the Delta Mariner are capable of approaching and successfully mooring 
at the wharf? Will the same crew and captain that the tug boats 
accompany for these first few visits be present for all other visits?
    Response: Both captain and vessel are licensed by the United States 
Coast Guard (USCG). The USCG also issues the Certificate of Inspection 
that gives a vessel the operational endorsement for conducting 
``voyages'' in the Coastwise Registry. This includes the necessary 
arrival and departure from wharves or docks.
    The captains and crew of the Delta Mariner were selected by their 
professional skill and experience operating large tankers on the U.S. 
West Coast. The captains will have been operating the Mariner for over 
2 years prior to visiting VAFB harbor during the latter half of 2002. 
The experience of the captains and the crew operating the Mariner 
includes constrained inland water passages and open ocean voyages over 
a wide spectrum of environmental conditions.
    Foss, the tug boat company, is aware that greater caution is 
required for mooring and cargo operations at VAFB than at other Delta 
IV ports. Foss will put safety before schedule and approach the VAFB 
wharf in weather, tide, and sea conditions that reduce risk. After the 
first arrival of the Delta Mariner at the VAFB harbor, Foss intends to 
have a captain aboard the vessel that has previously called at VAFB.
    Foss will use tug boats local to the ports of Hueneme or Los 
Angeles requesting officers with VAFB harbor experience. Neither Foss 
nor Boeing can control who is assigned to operate the tug boat, but it 
is not a sound business decision to send the inexperienced operator.
    Comment 7: Where are the noise contour charts of the 10-fold 
increase to the ambient background to support the application?
    Response: The EPT horn maximum noise level is 112 dB. A jackhammer 
maximum noise level is 111 dB. Ambient noise measured at the VAFB 
harbor is between 35 and 48 dB on a typical day (ENSRI, 2001). Given 
that 35 dB x 10 = 350 and 48 dB x 10 = 480, 112 dB is only 2-3 times 
higher than the measured ambient background noise.
    Comment 8: Regarding the initial dredging, is the responsible 
entity NMFS (for the initial dredging details listed in the public 
notice but not in the application), VAFB or Boeing? If NMFS authorizes 
Boeing as stated in the Federal Register, then will NMFS issue a 
separate authorization to VAFB for the VAFB harbor maintenance 
dredging? Based on the NEPA documents referenced, who has 
responsibility as the action proponent for the actions listed in the 
application?
    Response: In accordance with agreements signed by the Air Force and 
Boeing, Boeing is responsible for payment of all fines or penalties 
imposed as a result of administrative or judicial enforcement actions 
or citizens' suits for violations of federal, state, or local laws or 
regulations arising out of the conduct or activities related to the 
agreement. Boeing is the action proponent.
    Comment 9: Is the previous harbor dredging required to support 
April 2002 operations? If so, was there an incidental harassment 
authorization application for this initial dredging?
    Response: The previous dredging was to allow for the delivery of 
the launch table, an oversized steel structure that is part of the 
launch pad. The launch table was built in Washington State and moved 
down the coast by barge, as it was far too large to go by road. It 
required the use of the VAFB harbor and resulted in the 2001 dredging. 
There was no application for a marine mammal incidental harassment 
authorization since NMFS was of the opinion at the time that MMPA 
coverage was not necessary for the dredging operation because few 
marine mammals were likely to occur in the project area and harassment 
was unlikely. However, to ensure that NMFS' opinion was correct, 
monitoring was required during initial dredging, and this monitoring 
showed that there were small numbers of harbor seals hauled out on 
rocks 180 m (591 ft) from the dock. Since these seals could potentially 
be harassed by harbor activities, Boeing decided to apply for the 
requisite MMPA authorization.
    Comment 10: Has NMFS unilaterally determined these initial dredging 
requirements to support Delta Mariner operations in the absence of any 
request in the application? Is NMFS asking the public to comment on an 
action in an application that has already begun without NMFS 
authorization?
    Response: NMFS was of the opinion at the time of initial dredging 
that a permit was not necessary for the operation. None of the actions 
covered in Boeing's authorization application have begun.

Marine Mammal Impact Concerns

    Comment 11: Is leaving out impacts on the dolphins mentioned in the 
application an oversight on the part of NMFS or a technical deficiency 
of the application?
    Response: The dolphins referenced in the application are a cluster 
of concrete piles topped with a bollard and used for mooring a vessel.

[[Page 36154]]

    Comment 12: Where is the scale navigational chart showing current 
depths, proposed depths for the initial dredging (if included in this 
application), area to be dredged, and location of seal haul-outs? At 
what distance are the marine mammals expected to be during these 
periods of vessel activity in harbor)?
    Response: This application does not include the initial dredging. 
As addressed in Comment 9, there was no MMPA authorization during 
initial dredging. The application contains a photo with an outline of 
the dredge area. This same photo also indicates where the harbor seals 
haul out during low tide. The distance is 180 m (591 ft) from the main 
seal haul-out to the southern edge of the dock.
    Comment 13: Where are the analyses to address air quality impacts 
on marine mammals from the operation of the Delta Mariner, the heavy 
equipment involved with wharf modifications, and the heavy equipment 
involved with launch vehicle/cargo handling? Where are the impact 
analyses on marine mammals to support Delta Mariner discharges from 
shipboard hotel services as well as the typical in-port maintenance 
that is conducted?
    Response: Analysis of air quality in general was addressed in the 
Supplemental EIS, dated March of 2000. However, this air quality 
analysis did not address potential impacts to marine mammals. There 
will be no discharge from shipboard hotel service or in-port 
maintenance while the Delta Mariner is in the harbor. The Delta Mariner 
will be making deliveries, and will minimize time spent at VAFB.
    Comment 14: Where are the analyses of the resultant harassment 
associated with loss of bottom flora and fauna in the food chain for 
marine mammals, impacts on water quality (e.g., turbidity, pollutants), 
and other potentially adverse impacts in this application to support 
the conclusions cited in the public notification that there is at worst 
only temporary modification to behavior?
    Response: As discussed in other responses, the re-dredging activity 
will be limited to those areas that had been dredged in the past. Based 
on studies conducted over the past two decades and cited in the EA 
(ENSRI, 2001), benthic resources in the dredge footprint consist of 
small infaunal invertebrates. Harbor seals foraging in the area around 
the harbor do not feed on these small organisms directly. Fish that 
could feed on these organisms and that could be a potential food source 
for the seals are sufficiently wide ranging that they would not be 
substantially affected by this temporary loss of a food source. The 
benthic community has developed over the past 18 years since the 
current harbor configuration was created. Because this community is 
adapted to this very dynamic environment of moving sands, it is 
expected to recover quickly after dredging events. Thus, the continued 
periodic dredging of the harbor is not expected to directly or 
indirectly affect the food resources of the adjacent seals.
    Comment 15: Based on recent NMFS concerns over US Navy, commercial, 
and private water-borne noise issues and their significant adverse 
affects on marine mammals, where are the analyses to address water-
borne noise impacts from the operation of the Delta Mariner in such 
shallow water, the heavy equipment involved with wharf modifications, 
and the heavy equipment involved with vehicle/cargo handling?
    Response: There have been very few studies on the effects of water-
borne noise from dredging or other construction operations on marine 
mammals. NMFS is currently in the process of determining safety 
criteria for marine species exposed to underwater sound, including 
impulsive and continuous noise. Until the agency publishes these 
criteria, however, NMFS has preliminarily determined that marine 
mammals may risk incurring a temporary threshold shift when exposed to 
underwater impulsive sound pressure levels of 180 dB re 1 micro-Pa for 
cetaceans and 190 dB re 1 micro-Pa for pinnipeds. Marine mammals have 
also shown behavioral changes when exposed to impulse sound pressure 
levels of 160 dB re 1 micro-Pa and continuous sound pressure levels of 
120 dB. NMFS does not believe that the underwater noise emanating from 
this project will be loud enough to harm marine mammals in the area. 
However, harbor seals may be temporarily displaced from the area due to 
a combination of disturbances: auditory exposure to underwater sound, 
and the visual exposure to boats, heavy equipment and people.
    Comment 16: The MMC suggests that NMFS consider providing 
authorization for the disturbance of a small number of individuals of 
other marine mammal species that are uncommon, yet could possibly be 
disturbed, in the south VAFB area, including California sea lions, 
northern elephant seals, and northern fur seals.
    Response: NMFS, in considering MMC's suggestion, has reviewed 
previous authorizations issued to VAFB as well as monitoring reports 
submitted as part of the reporting requirements of these 
authorizations. Based on review of these reports, NMFS has concluded 
that this IHA to Boeing should include authorization to incidentally 
harass small numbers of California sea lions, northern elephant seals, 
and northern fur seals. This conclusion is based on reports that 
California sea lions haul out in small numbers on South Rocky Point 
(approximately 3 km or 1.9 mi from the boat dock area) and Point Sal 
(northern limit of VAFB) during the fall, and that northern elephant 
seal pups and juveniles sporadically haul out for short periods during 
the spring on both north and south VAFB. According to the IHA issued to 
Boeing, a maximum of 10 California sea lions, 10 northern elephant 
seals, and five northern fur seals may be incidentally harassed during 
Boeing's harbor activities on south VAFB.

Habitat Concerns

    Comment 17: What impact will the placement of dredged materials 
have on marine mammals?
    Response: Beach replenishment with dredged materials would entail 
placing the sediments in the shallow sub-tidal where it will be re-
entrained in the long-shore current. Because marine mammals do not use 
this beach for hauling out, there will be no impacts from this disposal 
option. Disposal of dredged materials at Honda Point would entail 
activities essentially the same as those covered in the Final EA of 
July 2001. Regardless of which action is taken, the proper Air Force 
approval forms will be submitted to the 30th Space Wing for review, and 
a Supplemental EA for this activity will be prepared if it is deemed 
necessary.
    Comment 18: Where are the elevation drawings showing the ramp 
modification with respect to typical tidal fluctuations, particularly 
high tides where the lower ramp may induce haul out of marine mammals 
onto it?
    Response: Marine mammals do not currently use the wharf as a high 
tide haul-out location. Only 0.19 m (7.5 in) are being removed from the 
overall height of the wharf, which is unlikely to make the surface low 
enough to induce marine mammals to start using it for a high tide haul-
out site. Based on the as-built drawings, the surface of the dock is 
approximately +12 ft (+3.7 m) mean lower, low water (MLLW). Since 
maximum high tides in the harbor are no more than about 8 ft (2.4 m) 
MLLW, harbor seals would be unable to and have not been observed to 
haul out on the dock.

Cumulative Impacts

    Comment 19: What is the cumulative impact of harassing these marine

[[Page 36155]]

mammals over this extended period of time (14 hours) over repeated 
potential haul-out periods?
    Response: Over 14 hours there are usually only two low tide periods 
and whether seals do or do not haul-out near the dock depends on how 
high the low tide is and how low the high tide is. For example: On a 
given day at VAFB, there was a low tide at 07:52 PST at -0.03 ft (-
0.009 m)(seals could haul-out), high tide at 14:43 PST at 2.96 ft (0.9 
m)(seals can not haul-out), low tide at 18:45 PST at 2.33 ft (0.7 
m)(seals can not haul-out), and high tide at 01:22 PST at 4.68 feet 
(1.4 m)(seals can not haul-out). Out of this period of 17.5 hours there 
were only 2 low tides but only one low tide that seals would be able to 
haul-out at the harbor. Some seals may leave and haul-out someplace 
else or not come back until the next day. Depending on the tides, some 
seals may haul-out again after the initial disturbance from the vessel. 
Because the vessel operations are only for 14 hours on 1 day, it is 
expected that the seals will continue to use that site as they did 
during the dredging operations so there should be no cumulative impact 
problems.

Mitigation and Monitoring Concerns

    Comment 20: Has NMFS unilaterally determined more detailed 
mitigation measures than are found in the application? If additional 
information was provided to NMFS to supplement the original 
application, why wasn't the application modified and the additional 
information resubmitted in a more accurate and complete application?
    Response: The mitigation measures proposed in the Federal Register 
notice of March 4, 2002, follow mitigation NMFS has previously 
incorporated into IHAs for similar activities to ensure that marine 
mammal takes remain negligible. NMFS saw no reason to have such 
information re-submitted by the applicant.
    Comment 21: How is NMFS dealing with the unanswered question 
associated with timing of harbor activities (with breeding, molting, or 
pupping seasons) and the inconsistent treatment of this issue in the 
mitigation plan?
    Response: Harbor seals do not typically breed, molt, or pup in the 
south VAFB area where Boeing will be conducting harbor activities. The 
nearest pupping site is at Rocky Point, approximately 1.6 km (1 mi) 
north of the project area. However, the IHA monitoring plan requires 
Boeing to observe and record the age class and gender of all marine 
mammals before, during, and after harbor activities in order to verify 
that no breeding, molting, or pupping takes place in the project area.
    Comment 22: The MMC recommends that NMFS, if it has not already 
done so, assess whether the monitoring required as a condition of this 
and possible future incidental harassment authorizations will be 
adequate to detect possible non-negligible cumulative effects and, if 
not, what additional steps need to be taken to ensure that any such 
effects will be detected before they reach significant levels.
    Response: NMFS believes that the monitoring requirements, along 
with the requirement of all IHA holders to report their monitoring 
results in a timely manner, will allow NMFS to assess the potential for 
cumulative effects on marine mammals and modify the conditions of the 
authorization if necessary.
    Comment 23: Boeing requests that the mitigation measures proposed 
by NMFS in the Federal Register on March 4, 2002 (67 FR 9702), be 
modified to allow for the continuation of activities while seals are 
present, as this is consistent with NMFS' conclusion that there will be 
no more than a negligible impact on these marine mammals as a result of 
harbor activities.
    Response: NMFS concurs and has thus modified the mitigation 
measures contained in the authorization to allow for continuation of 
activities while seals are present. The mitigation measures still 
require marine mammal monitoring during all Boeing activities in the 
harbor and reporting of any possible disturbance of the harbor seals 
associated with those activities.

MMPA Concerns

    Comment 24: In the event of untoward impacts, injury to marine 
mammals, or violations of the permit which entity is held accountable 
and legally liable?
    Response: In accordance with agreements signed by the Air Force and 
Boeing, Boeing is responsible for payment of all fines or penalties 
imposed as a result of administrative or judicial enforcement actions 
or citizens' suits for violations of federal, state, or local laws or 
regulations arising out of the conduct or activities related to the 
agreement.
    Comment 25: Does VAFB have carte-blanche authorization to perform 
maintenance dredging at anytime for as long as it deems necessary?
    Response: No, NMFS is not granting VAFB ``carte-blanche'' to 
perform maintenance dredging anytime for as long as it deems necessary. 
First, this authorization will be issued to Boeing not VAFB. And, 
second, the incidental harassment authorization is only valid for 1 
year and must be re-applied for annually. Boeing is responsible for re-
application and subsequent maintenance dredging.

National Environmental Policy Act (NEPA) Concerns

    Comment 26: Why hasn't NMFS challenged the legal sufficiency of the 
segmented actions of the NEPA analysis/documents referenced as 
supporting this application when in fact the cumulative actions 
(particularly those that will be conducted concurrently) in the 
application are not those analyzed in the NEPA analyses/documents?
    Response: Before issuance of incidental harassment authorizations 
under the MMPA, NMFS must ensure that the environmental impacts of its 
decision to issue or deny such authorizations are in compliance with 
NEPA. A programmatic NEPA assessment conducted on the impact of NMFS' 
rulemaking for the issuance of IHAs (61 FR 15884; April 10, 1996) 
stated that for issuance of an IHA, NMFS must first determine that the 
taking (by harassment) would not result in any serious injury or death 
to a marine mammal, would have no more than a negligible impact on 
marine mammals and their habitat, and would not have an unmitigable 
adverse impact on the availability of the species or stock(s) for 
subsistence uses. Therefore, NMFS' decision-making process for IHA 
issuance or denial independently and separately analyzes factors 
similar to those suggested under section 6.01 of National Oceanic and 
Atmospheric Administration (NOAA) Administrative Order 216-6 
(Environmental Review Procedures for Implementing the National 
Environmental Policy Act, May 20, 1999) for determining the 
significance of agency actions for the purposes of NEPA. On a case-by-
case basis, NMFS determines whether the issuance of an IHA will 
individually or cumulatively have a significant impact on the quality 
of the human environment.
    NMFS has responsibility for insuring that its own actions are in 
compliance with NEPA. Except in regards to how Federal actions may 
impact resources protected under the MMPA, Endangered Species Act, or 
other marine resource laws and regulations, NMFS has no authority over 
the actions of other Federal agencies. NMFS reviewed all NEPA documents 
related to Boeing's request for a marine mammal authorization and found 
that these documents were sufficient to satisfy the

[[Page 36156]]

requirements of its decision-making process.
    Boeing's January 28, 2001, request for an incidental harassment 
authorization was specifically for the incidental and unintentional 
take of marine mammals during a one-year period of harbor activities 
and does not account for future maintenance dredging and other 
operations in the harbor. Incidental takes of marine mammals as a 
result of these future activities must be covered under subsequent 
authorizations that Boeing must request and NMFS must send out for 
public comment.

Endangered Species Act Concerns

    Comment 27: Possible impacts to the southern sea otter population 
have been overlooked and may need to be addressed. Decision on the 
incidental take permit request received by NMFS should be coordinated 
with U.S. Fish and Wildlife Service (FWS) officials to insure that 
impacts to southern sea otters are adequately addressed. In addition, 
applicants for marine mammal incidental take permits should be 
encouraged to apply for consultation and permits through both agencies.
    Response: Because the southern sea otter is designated threatened 
under the Endangered Species Act and management authority for this 
marine mammal species lies with FWS, VAFB initiated a formal Section 7 
consultation with the FWS in 1998 on Boeing's harbor activities. A 
Biological Opinion was written and Incidental Take Statement issued in 
August 2001. Southern sea otters were discussed in these documents and 
FWS recognized that Boeing will restore sea otter habitat (i.e., kelp 
beds) in the vicinity of the harbor to replace kelp destroyed during 
dredging. In addition, the FWS noted that VAFB has committed to a 
southern sea otter monitoring program designed to detect the presence 
and possible disturbance at the VAFB harbor area during dredging 
activities. NMFS expects Boeing to fulfill its obligations for sea 
otter habitat restoration and cooperate in VAFB's southern sea otter 
monitoring program.

Description of Habitat and Marine Mammals Affected by the Activity

    The only marine mammal species likely to be harassed incidental to 
harbor activities at south VAFB is the Pacific harbor seal (Phoca 
vitulina richardsi). The most recent estimate of the Pacific harbor 
seal population in California is 30,293 seals (Forney et al., 2000). 
From 1979 to 1995, the California population increased at an estimated 
annual rate of 5.6 percent. The total population of harbor seals on 
VAFB is now estimated to be 1,040 (775 on south VAFB) based on sighting 
surveys and telemetry data (SRS Technologies 2001).
    The daily haul-out behavior of harbor seals along the south VAFB 
coastline is dependent on time of day rather than tide height. The 
highest number of seals haul-out at south VAFB between 1100 through 
1700 hours. In addition, haul-out behavior at all sites seems to be 
influenced by environmental factors such as high swell, tide height, 
and wind. The combination of all three may prevent seals from hauling 
out at most sites. The number of seals hauled out at any site can vary 
greatly from day to day based on environmental conditions. Harbor seals 
occasionally haul out on rocks outside the harbor breakwater where 
Boeing will be conducting wharf modification, Delta Mariner operations, 
cargo loading, and dredging activities. The maximum number of seals 
present during past dredging of the harbor was 23, with an average of 7 
seals sighted per day. The harbor seal pupping site closest to south 
VAFB harbor is at Rocky Point, approximately 1.6 kilometers (km) (1 
mile, mi) north.
    Several factors affect the seasonal haul-out behavior of harbor 
seals including environmental conditions, reproduction, and molting. 
Harbor seal numbers at VAFB begin to increase in March during the 
pupping season (March to June) as females spend more time on shore 
nursing pups. The number of hauled-out seals is at its highest during 
the molt which occurs from May through July. During the molting season, 
tagged harbor seals at VAFB increased their time spent on shore by 22.4 
percent; however, all seals continued to make daily trips to sea to 
forage. Molting harbor seals entering the water because of a 
disturbance by a space vehicle launch or another source are not 
adversely affected in their ability to molt and do not endure 
thermoregulatory stress. During pupping and molting season, harbor 
seals at the south VAFB sites expand into haul-out areas that are not 
used the rest of the year. The number of seals hauled out begins to 
decrease in August after the molt is complete and reaches the lowest 
number in late fall and early winter.
    Three other marine mammal species are known to occur infrequently 
along the south VAFB coast during certain times of the year and are 
unlikely to be harassed by Boeing's activities. These three species 
are: the California sea lion (Zalophus californianus), northern 
elephant seal (Mirounga angustirostris) and northern fur seal 
(Callorhinus ursinus). Descriptions of the biology and local 
distribution of these species can be found in the application as well 
as other sources such as Stewart and Yochem (1994, 1984), Forney et al. 
(2000), Koski et al. (1998), Barlow et al. (1993), Stewart and DeLong 
(1995), and Lowry et al. (1992). Please refer to those documents for 
information on these species.

Potential Effects of Activities on Marine Mammals

    Acoustic and visual stimuli generated by the use of heavy equipment 
during the wharf modifications, Delta Mariner and off-loading 
operations, and dredging, as well as the increased presence of 
personnel, may cause short-term disturbance to harbor seals hauled out 
along the beach and rocks in the vicinity of the south VAFB harbor. 
This disturbance from acoustic and visual stimuli is the principal 
means of marine mammal taking associated with these activities. Based 
on the measured sounds of construction equipment, such as might be used 
during Boeing's activities, sound levels from all equipment drops to a 
maximum level of 95 dB A-weighted within 15.2 m (50 ft) of the sources. 
In contrast, the ambient background noise measured approximately 76.2 m 
(250 ft) from the beach was estimated to be 35-48 dB A-weighted 
(Acentech, 1998; EPA, 1971).
    Pinnipeds sometimes show startle reactions when exposed to sudden 
brief sounds. An acoustic stimulus with sudden onset may be analogous 
to a ``looming'' visual stimulus (Hayes and Saif, 1967), which may 
elicit flight away from the source (Berrens et al., 1988). The onset of 
operations by a loud sound source, such as the EPT during CBC off-
loading procedures may elicit such a reaction. In addition, the 
movements of cranes and dredges may represent a ``looming'' visual 
stimulus to marine mammals hauled out in close proximity. Marine 
mammals exposed to such acoustic and visual stimuli may either exhibit 
a startle response or leave the haul-out site.
    According to the MMPA, when harbor activities disrupt the 
behavioral patterns of marine mammals, they are considered to be taken 
by harassment. In general, if the received level of the noise stimulus 
exceeds both the background (ambient) noise level and the auditory 
threshold of the animals, and especially if the stimulus is novel to 
them, then there may be a behavioral response. The probability and 
degree of response will also depend on the season, the group 
composition of the marine mammals, and the type of activity in which 
they are engaged. Minor and brief responses, such as short-duration 
startle or alert reactions, are not likely to result in disruption of 
behavioral patterns, such

[[Page 36157]]

as migration, nursing, breeding, feeding, or sheltering (i.e., Level B 
harassment) and will not cause serious injury or mortality to marine 
mammals. On the other hand, startle and alert reactions accompanied by 
large-scale movements, such as stampedes into the water, may have 
adverse effects on individuals and would be considered a take by 
harassment due to disruption of behavioral patterns. In addition, such 
large-scale movements by dense aggregations of marine mammals or on 
pupping sites, could potentially lead to takes by serious injury or 
death. However, there is no potential for large-scale movements leading 
to serious injury or mortality near the south VAFB harbor, since on 
average the number of marine mammals hauled out near the site is less 
than 30 and there is no pupping at nearby sites. The effects of the 
harbor activities are expected to be limited to short-term startle 
responses and localized behavioral changes (i.e., Level B harassment).
    For a further discussion of the anticipated effects of the planned 
activities on marine mammals in the area, please refer to the 
application and ENSRI's 2001 Final EA. Information in the application 
and referenced sources is adopted by NMFS as the best information 
available on this subject.

Numbers of Marine Mammals Expected to Be Harassed

    Boeing estimates that a maximum of 30 harbor seals per day may be 
hauled out near the south VAFB harbor, with a daily average of 7 seals 
sighted during previous dredging operations in the harbor. Using the 
maximum and average number of seals hauled out per day, assuming that 
half of the seals will use the site at least twice, assuming that half 
of the seals hauled out will react to the activities, and using a 
maximum total of 83 operating days in 2002-2003, NMFS calculates that 
between 623 and 145 Pacific harbor seals may be subject to Level B 
harassment, as defined in 50 CFR 216.3. Although not likely to be 
present at the south VAFB harbor, NMFS is also authorizing the 
incidental harassment of 10 California sea lions, 10 northern elephant 
seals, and 5 northern fur seals and requires that marine mammal 
monitors note the presence and behavior of these marine mammal species 
in the project area.

Possible Effects of Activities on Marine Mammal Habitat

    Boeing anticipates no loss or modification to the habitat used by 
Pacific harbor seals that haul out near the south VAFB harbor. The 
harbor seal haul-out sites near south VAFB harbor are not used as 
breeding, molting, or mating sites; therefore, it is not expected that 
the activities in the harbor will have any impact on the ability of 
Pacific harbor seals in the area to reproduce.

Possible Effects of Activities on Subsistence Needs

    There are no subsistence uses for Pacific harbor seals, California 
sea lions, northern elephant seals, and northern fur seals in 
California waters, and, thus, there are no anticipated effects on 
subsistence needs.

Mitigation

    No pinniped mortality and no significant long-term effect on the 
stocks of pinnipeds hauled out near south VAFB harbor are expected 
based on the relatively low levels of sound generated by the equipment 
to be used during Boeing's harbor activities (maximum level of 95 dB A-
weighted within 50 ft (15.2 m)) and the relatively short time periods 
over which the project will take place (totaling approximately 83 
days). However, Boeing expects that the harbor activities may cause 
disturbance reactions by some of the harbor seals hauled out on the 
adjacent beach and rocks. To reduce the potential for disturbance from 
visual and acoustic stimuli associated with the activities Boeing will 
undertake the following marine mammal mitigating measures:
    (1) If activities occur during nighttime hours, lighting will be 
turned on before dusk and left on the entire night to avoid startling 
marine mammals at night.
    (2) Activities should be initiated before dusk.
    (3) Construction noises must be kept constant (i.e., not 
interrupted by periods of quiet in excess of 30 minutes) while marine 
mammals are present.
    (4) If activities cease for longer than 30 minutes and marine 
mammals are in the area, start-up of activities will include a gradual 
increase in noise levels.
    (5) A qualified marine mammal observer will visually monitor marine 
mammals on beaches and on rocks for any flushing or other behaviors as 
a result of Boeing's activities.
    (6) The Delta Mariner and accompanying vessels will enter the 
harbor only when the tide is too high for harbor seals to haul-out on 
the rocks.
    (7) As alternate dredge methods are explored, the dredge contractor 
may introduce quieter techniques and equipment.

Monitoring

    As part of its application, Boeing provided a proposed monitoring 
plan for assessing impacts to marine mammals from the activities at 
south VAFB harbor and for determining when mitigation measures should 
be employed.
    A NMFS-approved and VAFB-designated biologically trained observer 
will monitor the area for marine mammals during all harbor activities. 
During nighttime activities, the harbor area will be lit and the 
monitor will use a night vision scope. Monitoring activities will 
consist of:
    (1) Conducting baseline observation of marine mammals in the 
project area prior to initiating project activities.
    (2) Conducting and recording observations on harbor seals in the 
vicinity of the harbor for the duration of activities occurring when 
tides are low enough for harbor seals to haul out (+ 2 ft. or less).
    (3) Conducting post-construction observations of marine mammal 
haul-outs in the project area to determine whether animals disturbed by 
the project activities return to the haul-out.
    As required by the MMPA, this monitoring plan will be subject to a 
review by technical experts prior to formal acceptance by NMFS.

Reporting

    Boeing will notify NMFS 2 weeks prior to initiation of each 
activity. After each activity is completed, Boeing will provide a 
report to NMFS within 90 days. This report will provide dates and 
locations of specific activities, details of marine mammal behavioral 
observations, and estimates of the amount and nature of all takes of 
marine mammals by harassment or in other ways. In the unanticipated 
event that any cases of pinniped mortality are judged to result from 
these activities, this will be reported to NMFS immediately.

Consultation

    Boeing has not requested the take of any listed species nor is any 
take of listed species expected. Therefore, NMFS has determined that a 
section 7 consultation under the Endangered Species Act is not required 
at this time.
    Although sea otters are not within the jurisdiction of NMFS, VAFB 
formally consulted with FWS in 1998 on the possible take of southern 
sea otters during Boeing's harbor activities at south VAFB. A 
Biological Opinion was written and Incidental Take Statement issued in 
August 2001. Southern sea otters were discussed in these documents and 
FWS recognized that Boeing will restore sea otter habitat (i.e., kelp 
beds) in the vicinity of the harbor to replace kelp destroyed during

[[Page 36158]]

dredging. In addition, the FWS noted that VAFB has committed to a 
southern sea otter monitoring program designed to detect the presence 
and possible disturbance at the VAFB harbor area during dredging 
activities.

NEPA

    In accordance with section 6.01 of the National Oceanic and 
Atmospheric Administration (NOAA) Administrative Order 216-6 
(Environmental Review Procedures for Implementing the National 
Environmental Policy Act, May 20, 1999), NMFS has analyzed both the 
context and intensity of this action and determined based on a 
programmatic NEPA assessment conducted on the impact of NMFS' 
rulemaking for the issuance of IHAs (61 FR 15884; April 10, 1996), the 
content and analysis of Boeing's request for an IHA, and the Final EA 
for Harbor Activities Associated with the Delta IV Program at VAFB 
(ENSRI 2001) that the proposed issuance of this IHA to Boeing by NMFS 
will not individually or cumulatively result in a significant impact on 
the quality of the human environment as defined in 40 CFR 1508.27. 
Therefore, based on analysis of all relevant environmental documents, 
this action is exempted from further environmental review and meets the 
definition of a ``Categorical Exclusion'' as defined under NOAA 
Administrative Order 216-6.

Determinations

    NMFS has determined that the impact of harbor activities related to 
the Delta IV/EELV at VAFB, including: wharf modification, transport 
vessel operations, cargo movement activities, and harbor maintenance 
dredging, will result, at worst, in a temporary modification in 
behavior by Pacific harbor seals. California sea lions, northern 
elephant seals, and northern fur seals, while not likely to occur in 
the project area, may potentially experience the same temporary 
modification in behavior if they wander into the project area. While 
behavioral modifications may be made by these species to avoid the 
resultant acoustic and visual stimuli, there is no potential for large-
scale movements, such as stampedes, since pinniped species haul out in 
such small numbers near the site (maximum number of Pacific harbor 
seals hauled out in one day estimated at 30 seals). The effects of the 
harbor activities are expected to be limited to short-term and 
localized behavioral changes. Therefore, NMFS concludes that the 
effects of the planned activities will have no more than a negligible 
impact on marine mammals.
    Due to the localized nature of these activities, the number of 
potential takings by harassment are estimated to be small. In addition, 
no take by injury and/or death is anticipated, and the potential for 
temporary or permanent hearing impairment is unlikely given the low 
noise levels and will be entirely avoided through the incorporation of 
appropriate mitigation measures. No rookeries, mating grounds, areas of 
concentrated feeding, or other areas of special significance for marine 
mammals occur within or near south VAFB harbor.
    In summary, NMFS has determined that the proposed activity would 
result in the harassment of only small numbers of harbor seals, 
California sea lions, northern elephant seals, and northern fur seals; 
would have no more than a negligible impact on these marine mammal 
stocks; and would not have an unmitigable adverse impact on the 
availability of marine mammal stocks for subsistence uses.

Authorization

    NMFS has issued an IHA to Boeing for harbor activities related to 
the Delta IV/EELV to take place at south Vandenberg Air Force Base, CA, 
(VAFB) over a 1-year period. The issuance of this IHA is contingent 
upon adherence to the previously mentioned mitigation, monitoring, and 
reporting requirements.

    Dated: May 15, 2002.
David Cottingham,
Deputy Office Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 02-13020 Filed 5-22-02; 8:45 am]
BILLING CODE 3510-22-S