[Federal Register Volume 71, Number 122 (Monday, June 26, 2006)]
[Notices]
[Pages 36321-36323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-10044]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 060806C]


Small Takes of Marine Mammals Incidental to Specified Activities; 
Harbor Activities Related to the Delta IV/Evolved Expendable Launch 
Vehicle at Vandenberg Air Force Base, CA

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

ACTION: Notice; issuance of incidental harassment authorization.

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

DATES: Effective June 21, 2006, to June 20, 2007.

ADDRESSES: A copy of the IHA and the application are available by 
writing to 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, or by 
telephoning the contact listed here. A copy of the application 
containing a list of references used in this document may be obtained 
by writing to this address, by telephoning the contact listed here (See 
FOR FURTHER INFORMATION CONTACT) or online at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this 
notice may be viewed, by appointment, during regular business hours, at 
the aforementioned address.

FOR FURTHER INFORMATION CONTACT: Jolie Harrison, (301) 713-2289, ext. 
166 or Monica DeAngelis, (562) 980-3232.

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.
    Authorization for incidental takings may be granted if NMFS finds 
that the taking will have no more than 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, and that 
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.
    Section 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. 
Except for certain categories of activities not pertinent here, 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''].
    Section 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 determine whether to issue the authorization 
with appropriate conditions.

[[Page 36322]]

Summary of Request

    On February 28, 2006, NMFS received an application from Boeing 
requesting an authorization for the harassment of small numbers of 
Pacific harbor seals (Phoca vitulina richardsi) and California sea 
lions (Zalophus californianus) incidental to harbor activities related 
to the Delta IV/EELV, including: transport vessel operations, cargo 
movement activities, harbor maintenance dredging, and kelp habitat 
mitigation operations. In addition, northern elephant seals (Mirounga 
angustirostris) may also be incidentally harassed but in even smaller 
numbers. Incidental Harassment Authorizations (IHAs) were previously 
issued to Boeing in 2002 (67 FR 36151), 2003 (68 FR 36540), 2004 (69 FR 
29696), and 2005 (70 FR 30697). No work and, therefore, no monitoring 
was conducted under the 2005 IHA. The harbor where activities will take 
place is on south VAFB approximately 2.5 mi (4.02 km) south of Point 
Arguello, CA and approximately 1 mi (1.61 km) north of the nearest 
marine mammal pupping site (i.e., Rocky Point).
    Additional background relating to this application and the scope of 
the activities is set forth in the proposed notice (71 FR 26069, May 3, 
2006) and is not repeated here. The activities to be conducted have not 
changed between the notice of the proposed activities and this final 
notice announcing the issuance of the IHA.

Specified Activities

    Delta Mariner off-loading operations and associated cargo movements 
will occur a maximum of 3 times per year, each of which is estimated to 
take approximately between 14 and 18 hours in good weather.
    To accommodate the Delta Mariner, the harbor will need to be 
dredged, removing approximately 3,000 to 5,000 cubic yards of sediment 
per dredging. Dredge operations, from set-up to tear-down, would 
continue 24-hours a day for 3 to 5 weeks. Sedimentation surveys have 
shown that initial dredging indicates that maintenance dredging should 
be required annually or twice per year, depending on the hardware 
delivery schedule.
    A more detailed description of the work proposed for 2006/2007 is 
contained in the re-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 (ENSR International, 2001).

Comments and Responses

    On May 3, 2006 (71 FR 26069), NMFS published a notice of receipt of 
application of an IHA on MBNMS's request to take marine mammals, by 
harassment, incidental to harbor activities related to the Delta IV/
EELV, including: transport vessel operations, cargo movement 
activities, harbor maintenance dredging, and kelp habitat mitigation 
and requested comments, information and suggestions concerning the 
request. During the 30-day public comment period, NMFS received one 
comment.
    Comment: The commenter opposed the issuance of permits to allow 
killing of marine mammals.
    Response: NMFS does not believe that the authorized activities will 
result in the death of any marine mammals, nor does this IHA authorize 
any marine mammal mortality.

Marine Mammals Affected by the Activity

    The marine mammal species likely to be harassed incidental to 
harbor activities at south VAFB are the Pacific harbor seal, California 
sea lion, and northern elephant seal, which haul out in the area where 
these activities are conducted. None of the haul-out areas near these 
activities are used for breeding, molting, or mating. A more detailed 
discussion of the status of these stocks and their occurrence at VAFB, 
as well as other marine mammal species that occur at VAFB, was included 
in the notice of the proposed IHA (71 FR 26069, May 3, 2006).

Potential Effects of Activities on Marine Mammals

    The primary impacts to marine mammals from these activities are 
expected to be short-term behavioral reactions in response to the 
acoustic and visual stimuli produced by the heavy machinery used. NMFS 
anticipates that no injury will result from these actions. A discussion 
of the sound levels produced by the equipment, behavioral reactions of 
marine mammals to loud noises or looming visual stimuli, and some 
specific observations of the response of marine mammals to this 
activity gathered during previous monitoring were presented in the 
proposed IHA (71 FR 26069, May 3, 2006) and will not be repeated here. 
For a further discussion of the anticipated effects of the planned 
activities on pinnipeds in the area, please refer to the application, 
NMFS 2005 Environmental Assessment (EA) and ENSR International's 2001 
Final EA.

Numbers of Marine Mammals Expected to be Harassed

    Boeing estimates that a maximum of 43 harbor seals per day may be 
hauled out near the south VAFB harbor, with a daily average of 21 seals 
sighted when tidal conditions were favorable during previous dredging 
operations in the harbor. Considering the maximum and average number of 
seals hauled out per day, assuming that the seals may be seen twice a 
day, and using a maximum total of 73 operating days in 2006-2007, NMFS 
estimates that a maximum of 767 to 1570 Pacific harbor seals may be 
subject to Level B harassment out of a total estimated population of 
31,600. These numbers are small relative to this population size (2.4 - 
5.0 percent).
    During wharf modification activities, a maximum of six California 
sea lions were seen hauling out in a single day. Based on the above-
mentioned calculation, NMFS believes that a maximum of 219 California 
sea lions may be subject to Level B harassment out of a total estimated 
population of 240,000. These numbers are small relative to this 
population size (less than 0.1 percent). Up to 10 northern elephant 
seals (because they may be in nearby waters) may be subject to Level B 
harassment out of a total estimated population of 101,000. These 
numbers are small relative to this population size (less than 0.01 
percent).

Possible Effects of Activities on Marine Mammal Habitat

    The anticipated negative effects of dredging and kelp mitigation 
(short-term increase in noise and sedimentation) will be short-term and 
are not expected to result in a loss or modification to the habitat 
used by Pacific harbor seals, California sea lions, or northern 
elephant seals that haul out near the south VAFB harbor. Additional 
details were provided in the proposed IHA (71 FR 26069, May 3, 2006).

Possible Effects of Activities on Subsistence Needs

    There are no subsistence uses for pinnipeds in California waters, 
and thus, there are no anticipated effects on subsistence needs.

Mitigation

    To reduce the potential for disturbance from visual and acoustic 
stimuli associated with the activities Boeing and/or its designees 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 
pinnipeds at night;

[[Page 36323]]

    (2) Activities will 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 
pinnipeds are present;
    (4) If activities cease for longer than 30 minutes and pinnipeds 
are in the area, start-up of activities will include a gradual increase 
in noise levels;
    (5) A NMFS-approved marine mammal observer will visually monitor 
the pinnipeds on the beach adjacent to the harbor and on rocks for any 
flushing or other behaviors as a result of Boeing's activities (see 
Monitoring); and
    (6) To the extent possible, 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. The vessel will reduce speed 1.5 to 2 
knots (2.8-3.7 km/hr) once the vessel is within 3 mi (4.83 km) of the 
harbor. The vessel will enter the harbor stern first, approaching the 
wharf and mooring dolphins at less than 0.75 knot (1.4 km/hr).

Monitoring

    As part of its 2002 application, Boeing provided a proposed 
monitoring plan for assessing impacts to harbor seals from the 
activities at south VAFB harbor and for determining when mitigation 
measures should be employed. NMFS proposes the same plan for this IHA.
    A NMFS-approved and VAFB-designated biologically trained observer 
will monitor the area for pinnipeds during all harbor activities. 
During nighttime activities, the harbor area will be illuminated, and 
the monitor will use a night vision scope. Monitoring activities will 
consist of:
    (1) Conducting baseline observation of pinnipeds in the project 
area prior to initiating project activities;
    (2) Conducting and recording observations on pinnipeds in the 
vicinity of the harbor for the duration of the activity occurring when 
tides are low enough for pinnipeds to haul out
    (2 ft, 0.61 m, or less); and
    (3) Conducting post-construction observations of pinniped haul-outs 
in the project area to determine whether animals disturbed by the 
project activities return to the haul-out.
    Monitoring results from previous years of these activities have 
been reviewed and incorporated into the analysis of potential effects 
in this document, as well as the take estimates.

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 seal behavioral 
observations, and estimates of the amount and nature of all takes of 
seals by harassment or in other ways. In addition, the report will 
include information on the weather, the tidal state, the horizontal 
visibility, and the composition (species, gender, and age class) and 
locations of haul-out group(s). In the unanticipated event that any 
marine mammal is injured or killed as a result of these activities, 
Boeing or its designee shall report the incident to NMFS immediately.

Endangered Species Act

    This action will not affect species listed under the Endangered 
Species Act (ESA) that are under the jurisdiction of NMFS. VAFB 
formally consulted with U.S. Fish and Wildlife Service (FWS) in 1998 on 
the possible take of southern sea otters during Boeing's harbor 
activities at south VAFB. A Biological Opinion was issued in August 
2001, which concluded that the proposed activities were not likely to 
jeopardize the continued existence of the southern sea otter. The 
activities covered by this IHA are analyzed in that Biological Opinion, 
and this IHA does not modify the action in a manner that was not 
previously analyzed.

National Environmental Policy Act

    In 2001, the USAF prepared an Environmental Assessment (EA) for 
Harbor Activities Associated with the Delta IV Program at Vandenberg 
Air Force Base. In 2005, NMFS prepared an EA supplementing the 
information contained in the USAF EA and issued a Finding of No 
Significant Impact (FONSI) on the issuance of an IHA for Boeing's 
harbor activities in accordance with section 6.01 of the National 
Oceanic and Atmospheric Administration Administrative Order (NAO) 216-6 
(Environmental Review Procedures for Implementing the National 
Environmental Policy Act, May 20, 1999). The proposed activity is 
within the scope of NMFS'2005 EA and FONSI.

Conclusions

    NMFS has issued an IHA to Boeing for harbor activities related to 
the Delta IV/EELV to take place at south VAFB over a 1-year period, 
contingent upon adherence to the previously mentioned mitigation, 
monitoring, and reporting requirements. NMFS has determined that the 
impact of harbor activities related to the Delta IV/EELV at VAFB 
(transport vessel operations, cargo movement activities, harbor 
maintenance dredging, and kelp habitat mitigation) will result in the 
Level B Harassment of small numbers of Pacific harbor seals, California 
sea lions, and northern elephant seals. The effects of Boeing's harbor 
activities are expected to be in the form of short-term and localized 
behavioral changes and no take by injury or death is anticipated or 
authorized. NMFS has further determined that these takes will have a 
negligible impact on the affected marine mammal species and stocks and 
will not have an unmitigable adverse impact on the availability of such 
marine mammal species and stocks for subsistence uses.

Authorization

    NMFS has issued an IHA to take marine mammals, by Level B 
harassment, incidental to conducting harbor activities at VAFB to 
Boeing for a 1-year period, provided the mitigation, monitoring, and 
reporting requirements are undertaken.

    Dated: June 19, 2006.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E6-10044 Filed 6-23-06; 8:45 am]
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