[Federal Register Volume 74, Number 175 (Friday, September 11, 2009)]
[Notices]
[Pages 46742-46745]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21961]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XR49


Incidental Takes of Marine Mammals During 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 September 4, 2009, through 
September 3, 2010.

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#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, 
(301) 713-2289 or Monica DeAngelis, NMFS Southwest Region, (562) 980-
3232.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(D) of the MMPA (16 U.S.C. 1371 (a)(5)(D)) directs 
the Secretary of Commerce (Secretary) to allow, upon request, the 
incidental, but not intentional, taking of marine mammals, for periods 
of not more than one year, 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, if the taking is 
limited to harassment, a notice of a proposed authorization is provided 
to the public for review.
    Authorization for incidental taking of small numbers of marine 
mammals 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 subsistence uses. The authorization must set forth the 
permissible methods of taking, other means of effecting the least 
practicable adverse impact on the species or stock and its habitat and 
monitoring and reporting of such takings. 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 [``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) 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) of the MMPA, the 
Secretary shall issue or deny issuance of the authorization with 
appropriate conditions to meet the requirements of clause 
101(a)(5)(D)(ii) of the MMPA.

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 richardsi) and 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 outlined the purpose of the program 
in a previous notice for the proposed IHA (74 FR 32565, July 8, 2009). 
The activities to be conducted have not changed between the proposed 
IHA notice and this final notice announcing the issuance of the IHA.

Description of the Specified Activity

    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.

Specified Activities

    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).

[[Page 46743]]

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.
    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.
    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

    NMFS published a notice of receipt of the ULA application and 
proposed IHA in the Federal Register on July 8, 2009 (74 FR 32565). 
During the 30-day public comment period, NMFS received one comment from 
the public and comments from the Marine Mammal Commission (Commission). 
Following are the comments from the Commission and the public commenter 
and NMFS' responses.
    Comment 1: 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 8, 
2009 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), (72 FR 34444, June 22, 2007), and (73 FR 49649, 
August 22, 2008) are required in the current IHA.
    Comment 2: One commenter opposed the project on the grounds that it 
would cause injury or mortality.
    Response: As described in detail in the Federal Register notice of 
receipt of the application (74 FR 32565, July 8, 2009), no marine 
mammal will be killed or injured as a result of the operations by ULA. 
The project would only result Level B behavioral harassment of a small 
number of. No take by Level A harassment (injury) or death is 
anticipated nor authorized from this project.

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 (74 FR 32565, July 8, 2009).

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. 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 (74 FR 32565, July 8, 2009) 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

[[Page 46744]]

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 present in 
nearby waters) may be subject to Level B harassment out of a total 
estimated population of 124,000 in 2005. 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 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 (74 FR 32565, July 
8, 2009).

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-qualified 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-qualified 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 2010-2011, 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

[[Page 46745]]

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.
    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: September 4, 2009.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E9-21961 Filed 9-10-09; 8:45 am]
BILLING CODE 3510-22-S