[Federal Register Volume 73, Number 164 (Friday, August 22, 2008)]
[Notices]
[Pages 49649-49652]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19582]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XJ68


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 August 20, 2008 through 
August 19, 2009.

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 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.

FOR FURTHER INFORMATION CONTACT: Jeannine Cody or Candace Nachman, 
(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 either issue or deny the authorization.

Summary of Request

    On February 18, 2008, NMFS received an application from ULA 
requesting an

[[Page 49650]]

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 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 miles (mi) (4.02 kilometers (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 (73 FR 38176, 
July 3, 2008) 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

    The Delta Mariner is a 312 foot (ft)-long (95.1-meter (m)), 84 ft-
wide (25.6 m) steel hull ocean-going vessel capable of operating at an 
8 ft (2.4-m) draft. Containers containing flight hardware items will be 
towed off the Delta Mariner by a tractor tug that generates a sound 
level of approximately 87 decibels (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 (hr) 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 
to 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).

Comments and Responses

    On July 3, 2008 (73 FR 38176), 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 (Commission), which 
recommended that NMFS issue the authorization as proposed.
    Comment: The Commission recommends that NMFS approve the request 
provided that all reasonable measures will be taken to ensure the least 
practicable impact on the subject species and the required mitigation 
and monitoring activities are carried out as described in the July 3, 
2008 Federal Register notice and the IHA application.
    Response: NMFS agrees with the Commission's recommendation, and all 
monitoring and mitigation measures described in the previous Federal 
Register notices (67 FR 36151, May 23, 2002; 68 FR 36540, June 18, 
2003; 69 FR 29696, May 25, 2004; 70 FR 30697, May 27, 2005; 71 FR 
36321, June 26, 2006; and 72 FR 34444, June 22, 2007) are required in 
the current IHA.

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 (73 FR 38176, July 3, 2008).

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 (73 FR 38176, July 3, 2008) and is not repeated 
here. For a further discussion of anticipated effects 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 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 population of 101,000. These 
numbers are small relative to this population size (less than 0.01 
percent).

[[Page 49651]]

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 U.S. Army Corps of Engineers 
following the 1984 and 1989 dredging.
    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 (73 FR 38176, July 
3, 2008).

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 will 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).
    (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).
    (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 two weeks prior to initiation of each 
activity. ULA will submit a draft report on all activities, 120 days 
prior to the expiration of this Authorization if a new Authorization 
will be requested for 2009-2010, and a final report within 120 days 
after the expiration of this Authorization, regardless of whether or 
not a new Authorization will be requested. The 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, ULA or its designee shall cease operations immediately and 
report the incident to NMFS immediately.

Endangered Species Act (ESA)

    This action will not affect species listed under the ESA 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 
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 (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). ULA's activities and impacts for 2008-2009 are expected to 
be within the scope of NMFS( 2005 EA and FONSI.

Determinations

    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.

[[Page 49652]]

    While the number of incidental harassment takes will depend on the 
distribution and abundance of marine mammals in the vicinity of the 
activity, the number of potential harassment takings is estimated to be 
small (less than five percent of any of the estimated population sizes) 
and has been mitigated to the lowest level practicable through 
incorporation of the measures mentioned previously in this document.
    The provision requiring that the activity not have an unmitigable 
adverse impact on the availability of the affected species or stock for 
subsistence uses is not implicated by this 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.

Authorization

    As a result of these determinations, NMFS has issued an IHA to ULA 
to take marine mammals, by Level B harassment, incidental to conducting 
harbor activities at VAFB for a one-year period, provided that the 
previously mentioned mitigation, monitoring, and reporting requirements 
are incorporated.

    Dated: August 18, 2008.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E8-19582 Filed 8-21-08; 8:45 am]
BILLING CODE 3510-22-S