[Federal Register Volume 74, Number 129 (Wednesday, July 8, 2009)]
[Notices]
[Pages 32565-32570]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16070]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XQ00


Taking and Importing Marine Mammals: Taking Marine Mammals 
Incidental to 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 has received an application from United Launch Alliance 
(ULA) for an Incidental Harassment Authorization (IHA) to take small 
numbers of marine mammals, by harassment, incidental to conducting 
Delta Mariner operations, cargo unloading activities, harbor 
maintenance dredging, and kelp habitat mitigation activities related to 
the Delta IV/Evolved Expendable Launch Vehicle (Delta IV/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 only, small numbers of two 
species of pinnipeds at south VAFB beginning August, 2009.

DATES:  Comments and information must be received no later than August 
7, 2009.

ADDRESSES:  Comments on the application should be addressed to

[[Page 32566]]

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.
    All comments received are a part of the public record and will 
generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications without change. All Personal Identifying 
Information (for example, name, address, etc.) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit confidential 
business information or otherwise sensitive or protected information.
    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#applications.
    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 (Secretary) to allow, upon request, 
the incidental, but not intentional, taking 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 taking shall 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 subsistence uses, and if 
the permissible methods of taking and requirements pertaining to the 
mitigation, monitoring and reporting of such takings 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 with respect to certain 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 [ALevel 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) of the MMPA 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. Not later than 45 days 
after the close of the public comment period, if the Secretary makes 
the findings set forth in Section 101(a)(5)(D)(i), the Secretary shall 
issue or deny issuance of the authorization with appropriate conditions 
to meet the requirements of clause 101(a)(5)(D)(ii).

Summary of Request

    On June 5, 2009, NMFS received an application from ULA requesting 
an authorization for the harassment of small numbers of Pacific harbor 
seals (Phoca vitulina), California sea lions (Zalophus californianus), 
and northern elephant seals (Mirounga angustirostris) 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. These activities will 
support Delta IV/EELV launch activities from the Space Launch Complex 
at VAFB.
    NMFS has issued Incidental Harassment Authorizations (IHAs) 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), June 21, 2007 (72 FR 34444, June 22, 
2007), and August 19, 2008 (73 FR 49649, August 22, 2008) each for a 
one-year period. ULA did not conduct any dredging activities between 
2003 and 2008, and accordingly, was not required to conduct any 
monitoring activities. For the 2008 IHA, which expires on August 18, 
2009, ULA expects to commence dredging operations in July, 2009. ULA 
will submit a monitoring report 120 days after the expiration of the 
2008 IHA.

Description of the Specified Activity

    Delta Mariner off-loading operations and associated cargo movements 
will occur a maximum of three times per year. The activities will take 
place within the harbor located within the VAFB, approximately 2.5 
miles (mi) (4.02 kilometers (km) south of Point Arguello, CA and 
approximately 1 mi (1.61 km) south of the nearest marine mammal pupping 
site (i.e., Rocky Point).

Delta Mariner Operations

    The Delta Mariner is a 312-feet (ft) (95.1-meter (m)) long, 84-ft 
(25.6-m) wide steel hull ocean-going vessel capable of operating at an 
8-ft (2.4-m) draft. The vessel will enter the harbor stern first, 
during daylight hours at high tide, approaching the wharf at less than 
0.75 knot. At least one tugboat will always accompany the Delta Mariner 
during visits to the VAFB harbor. Departure will occur under the same 
conditions.
    Sources of noise from the Delta Mariner include ventilating 
propellers used for maneuvering the vessel into position and a brief 
sound from the cargo bay door when it becomes disengaged.

Harbor Maintenance Dredging

    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. ULA estimates that the noise levels emanating from within 
50 ft of the dredging and construction equipment would range from 56 to 
93 decibels (dB) (A-weighted) (re 20 FPascals at 1-m). Thus, there is 
the potential that an animal hauled out on the beach or breakwater 
could hear the dredging activities. Dredge operations, from set-up to 
tear-down, would continue 24-hours a day for three to five 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.

[[Page 32567]]

    A more detailed description of the work proposed for 2009-2010 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).

Cargo Movement Activities

    The Delta IV/EELV launch vehicle is comprised of a common booster 
core (CBC) and other mechanical elements. Removal of the CBC from the 
vessel requires the use of an elevating platform transporter (EPT). ULA 
measured the EPT's sound levels within 20 ft of the exhaust pipe with 
the engine running at mid-speed and observed sound levels of 85 dB (re 
20 FPascals at 1-m) (Acentech, 1998). The removal procedure requires 
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 
to 70 dB A-weighted at 200 ft (60.9 m) away, and 84 to 112 dB A-
weighted at 25 ft (7.6 m) away.
    For cargo other than the CBC, ULA will use a standard diesel truck 
tractor to offload containers containing flight hardware items from the 
Delta Mariner. The tractor would generate a sound level of 
approximately 87 dB A-weighted at 50 ft (15.2 m) while in operational 
mode. Total docking and cargo movement activities is estimated to last 
approximately no more than 18 hours in good weather.

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 and the 
California sea lion.

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 minimum population estimate of 
Pacific harbor seals in California is 31,600 seals (Carretta et al., 
2008). Carretta et al., (2008) report that net production rates 
appeared to decrease from 1982 to 1994 and hypothesized that the 
decrease occurred at the same time as a decrease in human-caused 
mortality and may indicate that the population has reached its 
environmental carrying capacity.
    The total population of harbor seals on VAFB is now estimated to be 
1,118 (maximum of 500 seals hauled out at one time on south VAFB) based 
on sighting surveys and telemetry data (Thorson, 2001). 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 2003-2008.
    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 estimate for the California sea lions range is 
238,000 (Caretta et al., 2008). 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. ULA notes 
that they have observed at least 100 sea lions 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

[[Page 32568]]

land occurs in September and October during the post-breeding 
dispersal, although many of the sea lions, 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/.

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 dB A-weighted of noise would be approximately 72 
dB A-weighted at the nearest beach or the end of the breakwater, 
roughly 250 ft (76.2 m) away. The EPT produces approximately 85 dB A-
weighted, 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 dB A-weighted at 25 ft (7.6 m) away and 62-70 
dB A-weighted 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 zero 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 the United 
States Air Force's (USAF) 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 2009-2010, 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 238,000. 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 124,000 in 2005 (Carretta et al., 2008).

[[Page 32569]]

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 the 2009 
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.

Proposed Reporting

    ULA will notify NMFS two weeks prior to initiation of each 
activity. After each activity is completed, ULA will provide a report 
to NMFS within 120 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.

Negligible Impact Determination

    NMFS has preliminarily determined, provided that the aforementioned 
mitigation and monitoring measures are implemented, that the impact of 
conducting a dredging program within VAFB may result, at worst, in a 
temporary modification in behavior and/or low-level physiological 
effects (Level B Harassment) of small numbers of certain species of 
marine mammals. While behavioral and avoidance reactions may be made by 
these species in response to the resultant noise from the dredging 
operations, these behavioral changes are expected to have a negligible 
impact on the affected species and stocks of marine mammals.
    While the number of potential incidental harassment takes will 
depend on the distribution and abundance of marine mammals in the area 
of dredging operations, the number of potential harassment takings is 
estimated to be relatively small in light of the population size.
    In addition, no take by death and/or serious injury is anticipated, 
and the potential for temporary or permanent hearing impairment will be 
avoided through the incorporation of the required mitigation measures 
described in this document.

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.

[[Page 32570]]

National Environmental Policy Act

    In 2001, the USAF prepared an EA for Harbor Activities Associated 
with the Delta IV Program at VAFB. In 2005, NMFS prepared an EA 
augmenting 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 2009-2010 are expected to be 
within the scope of NMFS' 2005 EA and FONSI.

Preliminary Conclusions

    Based on the preceding information, and provided that the proposed 
mitigation and monitoring are incorporated, NMFS has preliminarily 
concluded that the proposed activity will incidentally take, by level B 
behavioral harassment only, small numbers of marine mammals. There is 
no subsistence harvest of marine mammals in the proposed research area; 
therefore, the provision relating to impacts on certain subsistence 
activities is not implicated by this proposed action. No take by Level 
A harassment (injury) or death is anticipated and harassment takes 
should be at the lowest level practicable due to incorporation of the 
mitigation measures proposed in this document.
    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

    NMFS proposes to issue an IHA to ULA for the Delta IV/EELV Program 
during August 2009 to August 2010, provided that the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated.

    Dated: July 2, 2009.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E9-16070 Filed 7-7-09; 8:45 am]
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