[Federal Register Volume 73, Number 129 (Thursday, July 3, 2008)]
[Notices]
[Pages 38176-38180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-15154]



[[Page 38176]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XI42


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; proposed incidental harassment authorization; request 
for comments.

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SUMMARY: NMFS received a request from United Launch Alliance (ULA) for 
a one-year authorization to take small numbers of marine mammals by 
harassment incidental to Delta Mariner operations, cargo unloading 
activities, harbor maintenance dredging, and kelp habitat mitigation 
activities related to the Delta IV/Evolved Expendable Launch Vehicle 
(EELV) at south Vandenberg Air Force Base, CA (VAFB). Pursuant to the 
Marine Mammal Protection Act (MMPA), NMFS requests comments on its 
proposal to authorize ULA to take, by Level B harassment, small numbers 
of several species of pinnipeds at south VAFB beginning August 2008.

DATES: Comments and information must be received no later than August 
4, 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 is [email protected]. Comments sent 
via e-mail, including all attachments, must not exceed a 10-megabyte 
file size.
    A copy of the application containing a list of the references used 
in this document may be obtained by writing to the address specified 
above, telephoning the contact listed below (see FOR FURTHER 
INFORMATION CONTACT), or visiting the internet 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: Jeannine Cody or Candace Nachman, 
Office of Protected Resources, NMFS, (301) 713-2289, or Monica 
DeAngelis, NMFS Southwest Region, (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 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, a notice of a proposed 
authorization is provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), and 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 either issue or deny the authorization.

Summary of Request

    On February 18, 2008, 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. Incidental Harassment Authorizations (IHAs) were issued to The 
Boeing Company, now ULA, on May 15, 2002 (67 FR 36151, May 23, 2002), 
May 20, 2003 (68 FR 36540, June 18, 2003), May 20, 2004 (69 FR 29696, 
May 25, 2004), May 23, 2005 (70 FR 30697, May 27, 2005), June 20, 2006 
(71 FR 36321, June 26, 2006), and June 21, 2007 (72 FR 34444, June 22, 
2007) each for a 1-year period. No work and, therefore, no monitoring 
was conducted under the 2007 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).

Specified Activities

    Delta Mariner off-loading operations and associated cargo movements 
will occur a maximum of 3 times per year. The Delta Mariner is a 312-ft 
(95.1-m) long, 84-ft (25.6-m) wide steel hull ocean-going vessel 
capable of operating at an 8-ft (2.4-m) draft. For the first few visits 
to the south VAFB harbor, tug boats will accompany the Delta Mariner. 
Sources of noise from the Delta Mariner include ventilating propellers 
used for maneuvering into position and the cargo bay door when it 
becomes disengaged. Removal of the common booster core (CBC) from the 
vessel requires use of an elevating platform transporter (EPT), an 
additional source of noise with sound levels measured at approximately 
85 decibels (dB) A-weighted (re 20 microPascals at 1-m) 20 ft (6.1 m) 
from the engine exhaust when the engine is running mid-speed (Acentech, 
1998). Procedures require two short (approximately 1/3 second) beeps of 
the horn prior to starting the ignition. The sound level of the EPT 
horn ranged from 62-70 dB A-weighted at 200 ft (60.9 m) away, and 84-
112 dB A-weighted at 25 ft (7.6 m) away. Containers containing flight 
hardware items will be towed off the Delta Mariner by a tractor tug 
that generates a sound level of

[[Page 38177]]

approximately 87 dB A-weighted at 50 ft (15.2 m) while in operational 
mode. Total docking and cargo movement activities is estimated to be 
approximately 14 to 18 hours in good weather.
    To accommodate the Delta Mariner, the harbor will need to be 
dredged, removing up to 5,000 cubic yards of sediment per dredging. 
Dredging 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: 43-
81 dB A-weighted at 250 ft (76.2 m). Dredge operations, from set-up to 
tear-down, would continue 24-hr 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 2008 is 
contained in the application which is available upon request (see 
ADDRESSES) and in the Final U.S. Air Force Environmental Assessment for 
Harbor Activities Associated with the Delta IV Program at Vandenberg 
Air Force Base (ENSR International, 2001).

Marine Mammals Affected by the Activity

Pacific Harbor Seals

    The marine mammal species likely to be harassed incidental to 
harbor activities at south VAFB are the Pacific harbor seal and the 
California sea lion. The most recent estimate of the Pacific harbor 
seal population in California is 31,600 seals. Since 1990 there has 
been no net population growth along the mainland or the Channel 
Islands. The decrease in population growth rate has occurred at the 
same time as a decrease in human-caused mortality and may indicate that 
the population has reached its environmental carrying capacity 
(Carretta et al., 2007). The total population of harbor seals on VAFB 
is now estimated to be 1,099 (maximum of 515 seals hauled out at one 
time on south VAFB) based on sighting surveys and telemetry data (SRS 
Technologies, 2003).
    The daily haul-out behavior of harbor seals along the south VAFB 
coastline is primarily dependent on time of day. The highest number of 
seals haul-out at south VAFB between 1100 through 1600 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 a site can vary greatly from 
day to day based on environmental conditions. Harbor seals occasionally 
haul out at a beach 250 ft (76.2 m) west of the south VAFB harbor and 
on rocks outside the harbor breakwater where ULA will be conducting 
Delta Mariner operations, cargo loading, dredging activities, and reef 
enhancement. The maximum number of seals present during the 2001 
dredging of the harbor was 23 (averaging 7 per observation period), and 
the maximum number hauled out during the 2002 wharf modification 
activities was 43, averaging 21 per day when tidal conditions were 
favorable for hauling out. Dredging and reef enhancement did not occur 
from 2003-2007. The harbor seal pupping site closest to south VAFB 
harbor is Rocky Point, approximately 1 mi (1.61 km) north of the 
harbor. However, harbor seals have been reported to haul-out on the 
coast at Sudden Ranch, approximately 0.5 mi (0.8 km) south of the 
harbor.
    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 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.

California Sea Lions

    During the wharf modification activity in June-July 2002, 
California sea lions were observed hauling out on the breakwater in 
small numbers (up to 6 individuals). Although this is considered to be 
an unusual occurrence and is possibly related to fish schooling in the 
area, ULA included sea lions in the request.
    California sea lions range from British Columbia to Mexico. The 
most recent population estimates for the California sea lions range 
from 237,000 to 244,000 individuals (Caretta et al., 2007). Between 
1975 and 2001, the population growth rate was 5.4-6.1 percent. A 1985-
1987 population survey indicated that most individuals on the Northern 
Channel Islands were on San Miguel Island (SMI), with the population 
ranging from 2,235 to over 17,000. The largest numbers of California 
sea lions in the VAFB vicinity occur at Lion Rock, 0.4 mi (0.64 km) 
southeast of Point Sal. This area is approximately 1.5 mi (2.41 km) 
north of the VAFB boundary. At least 100 sea lions can be observed 
during any season at this site. The Point Arguello beaches and the 
rocky ledges of South Rocky Point on south VAFB are haulout areas that 
may be used by California sea lions. In 2003, at least 145 sea lions 
were observed at Rocky Point, including five pups that did not survive 
due to abandonment shortly after birth. This was thought to be an El 
Nino effect, as there had never been any previously reported sea lion 
births at VAFB (Thorson, 2003).
    Each year, small groups of sea lions have been observed heading 
south along the VAFB coastline in April and May (Tetra Tech, 1997). 
Starting in August, large groups of sea lions can be seen moving north, 
in groups varying in size from 25 to more than 300 (Roest, 1995). This 
concurs with established migration patterns (Reeves et al., 1992; 
Roest, 1995). Juvenile sea lions can be observed hauled-out with harbor 
seals along the South Base sites from July through September (Tetra 
Tech, 1997). Starving and exhausted sub-adult sea lions are fairly 
common on central California beaches during the months of July and 
August (Roest, 1995).
    During the breeding season, most California sea lions inhabit 
southern California and Mexico. Rookery sites in southern California 
are limited to SMI and the southerly Channel Islands of San Nicolas, 
Santa Barbara, and San Clemente. Breeding season begins in mid-May, 
occurring within 10 days of arrival at the rookeries. Molting occurs 
gradually over several months in the late summer and fall. Because the 
molt is not catastrophic, the sea lions can enter the water to feed.
    Male California sea lions migrate annually. In the spring they 
migrate southward to breeding rookeries in the Channel Islands and 
Mexico, then migrate northward in the late summer following breeding 
season. Females appear to remain near the breeding rookeries. The 
greatest population on land occurs in September and October during the 
post-breeding dispersal, although many of the sea lions,

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particularly juveniles and sub-adult and adult males, may move north 
away from the Channel Islands.

Other Marine Mammals

    Other marine mammal species are rare to infrequent along the south 
VAFB coast during certain times of the year and are unlikely to be 
harassed by ULA's activities. These four species are: the northern 
elephant seal, the northern fur seal (Callorhinus ursinus), Guadalupe 
fur seal (Arctocephalus townsendi), and Steller sea lion (Eumetopias 
jubatus). Northern elephant seals may occur on VAFB but do not haul out 
in the harbor area. Northern fur seals, Guadalupe fur seals, and 
Steller sea lions occur along the California coast and Northern Channel 
Islands but are not likely to be found on VAFB. Descriptions of the 
biology and distribution of these species can be found in the NMFS 
Stock Assessment Reports at http://www.nmfs.noaa.gov/pr/sars/, 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 Delta Mariner off-loading operations, dredging, and kelp 
habitat mitigation and the increased presence of personnel, may cause 
short-term disturbance to harbor seals and California sea lions hauled 
out on the beach and rocks near 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 ULA's activities, sound level intensity decreases 
proportional to the square root of the distance from the source. A 
dredging crane at the end of the dock producing 88 dBA of noise would 
be approximately 72 dBA at the nearest beach or the end of the 
breakwater, roughly 250 ft (76.2 m) away. The EPT produces 
approximately 85 dBA, measured less than 20 ft (6 m) from the engine 
exhaust, when the engine is running at mid speed. The EPT operation 
procedure requires two short beeps of the horn (approximately 1/3 of a 
second each) prior to starting the ignition. Sound level measurements 
for the horn ranged from 84-112 dBA at 25 ft (7.6 m) away and 62-70 dBA 
at 200 ft (61 m) away. The highest measurement was taken from the side 
of the vehicle where the horn is mounted. Ambient background noise 
measured approximately 250 ft (76.2 m) from the beach was estimated to 
be 35-48 dBA (Acentech, 1998; EPA, 1971).
    Pinnipeds sometimes show startle reactions when exposed to sudden 
brief sounds. An acoustic stimulus with sudden onset (such as a sonic 
boom) 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 seals hauled out in close proximity. 
Seals and sea lions exposed to such acoustic and visual stimuli may 
either exhibit a startle response and/or leave the haul-out site.
    According to the MMPA and NMFS implementing regulations, if harbor 
activities disrupt the behavioral patterns of harbor seals or sea 
lions, these activities would take marine mammals by Level B 
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, there may be a behavioral response. The probability and degree of 
response will also depend on the season, the group composition of the 
pinnipeds, 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 constitute disruption of behavioral patterns, such as 
migration, nursing, breeding, feeding, or sheltering (i.e., Level B 
harassment) and would not cause 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 of hundreds of 
animals, may rise to the degree of Level A harassment and could result 
in injury of individuals. In addition, such large-scale movements by 
dense aggregations of marine mammals or at pupping sites could 
potentially lead to takes by injury or death. However, there is no 
potential for large-scale movements leading to serious injury or 
mortality near the south VAFB harbor because on average the number of 
harbor seals hauled out near the site is less than 30 individuals, 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.
    According to the June 2002 dock modification construction report 
(ENSRI, 2002), the maximum number of harbor seals hauled out each day 
ranged from 23 to 25 animals. There were 15 occasions in which 
construction noise, vehicle noise, or noise from a fishing boat caused 
the seals to lift their heads. Flushing only occurred due to fishing 
activities, which were unrelated to the construction activities. The 
sea lions were less reactive to the construction noise than the harbor 
seals. None of the construction activities caused any of the sea lions 
to leave the jetty rocks, and there was only one incident of a head 
alert reaction.
    The report from the December 2002 dredging activities show that the 
number of Pacific harbor seals ranged from 0 to 19, and that California 
sea lions did not haul out during the monitoring period. On 10 
occasions, harbor seals showed head alerts, although two of the alerts 
were for disturbances that were not related to the project. No harbor 
seals flushed during the activities on the dock.
    For a further discussion of the anticipated effects of the planned 
activities on harbor seals 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

    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 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 2008-2009, 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 
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

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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

    ULA does not anticipate any loss or modification to the habitat 
used by Pacific harbor seals or California sea lions that haul out near 
the south VAFB harbor. The harbor seal and sea lion 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 or California 
sea lions in the area to reproduce.
    ULA anticipates unavoidable kelp removal during dredging. This 
habitat modification will not affect the marine mammal habitat. 
However, ULA will mitigate for the removal of kelp habitat by placing 
150 tons of rocky substrate in a sandy area between the breakwater and 
the mooring dolphins to enhance an existing artificial reef. This type 
of mitigation was implemented by the Army Corps of Engineers following 
the 1984 and 1989 dredging. A lush kelp bed adjacent to the sandy area 
has developed from the efforts. The substrate will consist of 
approximately 150 sharp-faced boulders, each with a diameter of about 2 
ft (0.61 m) and each weighing about 1 ton (907 kg). The boulders will 
be brought in by truck from an off-site quarry and loaded by crane onto 
a small barge at the wharf. The barge is towed by a tugboat to a 
location along the mooring dolphins from which a small barge-mounted 
crane can place them into the sandy area. ULA plans to perform the reef 
enhancement in conjunction with the next maintenance dredging event in 
order to minimize cost and disturbances to animals. Noise will be 
generated by the trucks delivering the boulders to the harbor and 
during the operation of unloading the boulders onto the barges and into 
the water.

Proposed Mitigation Measures

    To reduce the potential for disturbance from visual and acoustic 
stimuli associated with the activities, ULA proposes to 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 harbor seals 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) 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, and the vessel will reduce speed to 1.5 to 2 knots (1.5-2.0 
nm/hr; 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).
    (7) As alternate dredge methods are explored, the dredge contractor 
may introduce quieter techniques and equipment.

Proposed Monitoring Measures

    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 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).
    (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. 
After each activity is completed, ULA will provide a report to NMFS 
within 90 days. This report 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 any cases of pinniped injury 
or mortality are judged to result from these activities, this will be 
reported to NMFS immediately.

Endangered Species Act (ESA)

    This action will not affect species listed under the ESA that are 
under NMFS' jurisdiction. VAFB formally consulted with the 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 
EELV Program is 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 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 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 on the 
issuance of an IHA for Boeing's, now ULA, harbor activities in 
accordance with section 6.01 of the NOAA Administrative Order 216-6 
(Environmental Review Procedures for Implementing the National 
Environmental Policy Act, May 20, 1999). ULA's proposed activities and 
impacts for 2007-2008 are expected to be within the scope of NMFS' 2005 
EA and FONSI.

Preliminary Conclusions

    NMFS proposes to issue an IHA to ULA for harbor activities related 
to the Delta IV/EELV to take place at south VAFB over a 1-year period. 
Issuance of this IHA would be contingent upon adherence to the proposed 
mitigation, monitoring, and reporting requirements described in this FR 
notice. NMFS has preliminarily determined that the impact of harbor 
activities related to the Delta IV/EELV at VAFB, including:

[[Page 38180]]

transport vessel operations, cargo movement activities, harbor 
maintenance dredging, and kelp habitat mitigation, would result in 
Level B harassment only of small numbers of Pacific harbor seals, 
California sea lions, and northern elephant seals; and would have a 
negligible impact on the affected species. The provision requiring that 
the activity not have an unmitigable adverse impact on the availability 
of the affected species or stock for subsistence uses does not apply 
for this proposed action. 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.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to ULA for the Delta IV EELV Program, provided that the 
previously mentioned mitigation, monitoring, and reporting requirements 
are incorporated.

    Dated: June 27, 2008.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E8-15154 Filed 7-2-08; 8:45 am]
BILLING CODE 3510-22-S