[Federal Register Volume 72, Number 120 (Friday, June 22, 2007)]
[Notices]
[Pages 34443-34446]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-12135]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XA74


Incidental 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 United 
Launch Alliance (ULA) to take small numbers of marine mammals, by Level 
B harassment only, incidental to harbor activities related to the Delta 
IV/Evolved Expendable Launch Vehicle (EELV) at south Vandenberg Air 
Force Base, CA (VAFB).

DATES: This authorization is effective from June 21, 2007, through June 
20, 2008.

ADDRESSES: A copy of the IHA and the application are available by 
writing 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, 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 (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.

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FOR FURTHER INFORMATION CONTACT: Candace Nachman or Jolie Harrison, 
(301) 713-2289.

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 United States 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 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 certain 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.
    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.

Summary of Request

    On January 26, 2007, NMFS received an application from ULA 
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. IHAs were previously issued to The Boeing Company, now ULA, in 
2002 (67 FR 36151, May 23, 2002), 2003 (68 FR 36540, June 18, 2003), 
2004 (69 FR 29696, May 25, 2004), 2005 (70 FR 30697, May 27, 2005), and 
2006 (71 FR 36321, June 26, 2006). No work and, therefore, no 
monitoring was conducted under the 2006 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 IHA notice (72 FR 20324, 
April 24, 2007) and is not repeated here. The activities to be 
conducted have not changed between the proposed IHA notice and this 
final notice announcing the issuance of the IHA.

Specified Activities

    To accommodate the Delta Mariner, the harbor will need to be 
dredged, removing up 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. 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.
    A more detailed description of the work proposed for 2007/2008 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 (ENSR International, 2001).

Comments and Responses

    On April 24, 2007 (72 FR 20324), NMFS published a notice of receipt 
of proposed IHA for ULA'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 from the Marine Mammal Commission, which recommended that NMFS 
issue the authorization as proposed. NMFS also received one comment 
from a private citizen.
    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 (72 FR 20324, April 24, 2007).

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 
notice of proposed IHA (72 FR 20324, April 24, 2007) and is not 
repeated here. For a further discussion of anticipated effects

[[Page 34445]]

of the planned activities on pinnipeds in the area, refer to the 
application, NMFS' 2005 Environmental Assessment (EA) and ENSR 
International's 2001 Final EA.

Numbers of Marine Mammals Expected to be Harassed

    ULA 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 harbor 
dredging operations. 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 2007-2008, NMFS 
estimates that a maximum of 767 to 1,570 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 notice of proposed IHA (72 FR 20324, April 
24, 2007).

Mitigation

    To reduce the potential for disturbance from visual and acoustic 
stimuli associated with the activities, ULA 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;
    (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 ULA's activities (see 
Monitoring);
    (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); and
    (7) As alternate dredge methods are explored, the dredge contractor 
may introduce quieter techniques and equipment.

Monitoring

    As part of its 2002 application, Boeing, now ULA, 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 is requiring 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

    ULA will notify NMFS 2 weeks prior to initiation of each activity. 
ULA will submit a final report to NMFS within 120 days of the 
expiration of the Authorization and a draft report 120 days prior to 
the expiration of the IHA if a new IHA is requested. The reports will 
provide dates, times, durations and locations of specific activities, 
details of pinniped behavioral observations, and estimates of numbers 
of affected pinnipeds and impacts (behavioral or other). In addition, 
the report will include information on the weather, tidal state, 
horizontal visibility, and composition (species, gender and age class) 
and locations of haul-out group(s). In the unanticipated event that a 
marine mammal is injured or killed as a result of these activities, ULA 
or its designee shall cease operations immediately and report the 
incident to NMFS immediately.

Endangered Species Act

    This action will not affect species listed under the Endangered 
Species Act that are under the jurisdiction of NMFS. VAFB formally 
consulted with U.S. Fish and Wildlife Service in 1998 on the possible 
take of southern sea otters during Boeing's, now ULA, 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 and no injury or 
mortality is expected. The activities covered by this IHA are analyzed 
in that Opinion, and this IHA does not modify the action in a manner 
that was not previously analyzed.

National Environmental Policy Act

    In 2001, the United States Air Force (USAF) prepared an EA for 
Harbor Activities Associated with the Delta IV Program at VAFB. 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, now ULA, harbor activities in 
accordance with section 6.01 of the National Oceanic and Atmospheric 
Administration Administrative Order 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 ULA for harbor activities related to the 
Delta IV/

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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 ULA'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. Northern fur seals, 
Guadalupe fur seals, and Steller sea lions are unlikely to be found in 
the area and, therefore, will not be affected. No rookeries, mating 
grounds, areas of concentrated feeding, or other areas of special 
significance for marine mammals occur within or near south VAFB harbor.

Authorization

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

    Dated: June 18, 2007.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E7-12135 Filed 6-21-07; 8:45 am]
BILLING CODE 3510-22-S