[Federal Register Volume 79, Number 36 (Monday, February 24, 2014)]
[Rules and Regulations]
[Pages 10016-10028]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-03958]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 130820738-4114-02]
RIN 0648-BD62


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to U.S. Air Force Launches, Aircraft and Helicopter 
Operations, and Harbor Activities Related to Launch Vehicles From 
Vandenberg Air Force Base (VAFB), California

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS, upon application from the U.S. Air Force (USAF), is 
issuing regulations pursuant to the Marine Mammal Protection Act (MMPA) 
to

[[Page 10017]]

govern the unintentional taking of marine mammals incidental to 
launches, aircraft and helicopter operations from VAFB launch complexes 
and Delta Mariner operations, cargo unloading activities, and harbor 
maintenance dredging in support of the Delta IV/Evolved Expendable 
Launch Vehicle (EELV) launch activity on south VAFB for the period 
March 2014 to March 2019. These regulations, which allow for the 
issuance of Letters of Authorization (LOAs) for the incidental take of 
marine mammals during the described activities and specified 
timeframes, prescribe the permissible methods of taking and other means 
of effecting the least practicable adverse impact on marine mammal 
species or stocks and their habitat, as well as requirements pertaining 
to the monitoring and reporting of such taking.

DATES: Effective from March 26, 2014 through March 26, 2019.

ADDRESSES: A copy of the application and our Environmental Assessment 
(EA) and Finding of No Significant Impact (FONSI) may be obtained by 
visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Documents cited in this final rule may 
also be viewed, by appointment, during regular business hours at 1315 
East West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Candace Nachman, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION: 

Background

    Sections 101(a)(5)(A) and (D) of the Marine Mammal Protection Act 
(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 small numbers of marine mammals by U.S. 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 that 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.''
    The National Defense Authorization Act of 2004 (NDAA) (Pub. L. 108-
136) removed the ``small numbers'' and ``specified geographical 
region'' limitations and amended the definition of ``harassment'' as it 
applies to a ``military readiness activity'' to read as follows 
(Section 3(18)(B) of the MMPA): ``(i) any act that injures or has the 
significant potential to injure a marine mammal or marine mammal stock 
in the wild [Level A Harassment]; or (ii) any act that disturbs or is 
likely to disturb a marine mammal or marine mammal stock in the wild by 
causing disruption of natural behavioral patterns, including, but not 
limited to, migration, surfacing, nursing, breeding, feeding, or 
sheltering, to a point where such behavioral patterns are abandoned or 
significantly altered [Level B Harassment].'' Because the USAF's 
activities constitute military readiness activities, they are not 
subject to the small numbers or specified geographic region limiations.
    Based on a previous request from the USAF, NMFS issued regulations 
and LOAs to the USAF to allow it to take species of pinnipeds at the 
VAFB. Those regulations and LOAs expired on February 6, 2014.

Summary of Request

    On June 24, 2013, NMFS received an application from the USAF 
requesting regulations and an LOA for the take of five species of 
pinnipeds incidental to USAF launch, aircraft, and helicopter 
operations from VAFB launch complexes and Delta Mariner operations, 
cargo unloading activities, and harbor maintenance dredging. The Delta 
Mariner operations, cargo unloading, and harbor maintenance dredging 
are conducted in support of the Delta IV/EELV launch activity from 
Space Launch Complex 6 on south VAFB. NMFS has issued regulations to 
govern these activities, to be effective from March 2014, through March 
2019. These training activities are classified as military readiness 
activities. The USAF states that these activities may result in take of 
marine mammals from noise or visual disturbance from rocket and missile 
launches, as well as from the use of heavy equipment during the Delta 
Mariner off-loading operations, cargo movement activities, increased 
presence of personnel, and harbor maintenance dredging. The USAF 
requested authorization to take annually five pinniped species by Level 
B Harassment: Pacific harbor seals; California sea lions; northern 
elephant seals; northern fur seals; and Steller sea lions. In this 
final rule, NMFS has authorized the take by Level B harassment of all 
five species listed here.
    Activities relating to the Delta Mariner operations have been 
authorized previously by NMFS under annual Incidental Harassment 
Authorizations (IHAs). To date, we have issued 10 IHAs to United Launch 
Alliance (working on behalf of the USAF) to take marine mammals 
incidental to conducting operations in support of Delta IV/EELV launch 
activity from Space Launch Complex (SLC) 6. The most recent IHA was 
effective from September 26, 2012, through September 25, 2013. Through 
this final rulemaking, NMFS and the USAF are incorporating the Delta 
Mariner operations into the rulemaking for the launch, aircraft, and 
helicopter operations at VAFB.

Description of the Specified Activity

VAFB Launch Activities and Aircraft and Helicopter Operations

    VAFB (see Figure 1 in the USAF application) is headquarters to the 
30th Space Wing (SW), the Air Force Space Command unit that operates 
VAFB and the Western Range. VAFB operates as a missile test base and 
aerospace center, supporting west coast space launch activities for the 
USAF, Department of Defense, National Aeronautics and Space 
Administration, and commercial contractors. VAFB is the main west coast 
launch facility for placing commercial, government, and military 
satellites into polar orbit on expendable (unmanned) launch vehicles, 
and for testing and evaluating intercontinental ballistic missiles 
(ICBM) and sub-orbital target and interceptor missiles. In addition to 
space vehicle and missile launch activities at VAFB, there are 
helicopter and aircraft operations for purposes such as search-and-
rescue, delivery of space vehicle components, launch mission support, 
security reconnaissance, and training flights. The USAF anticipates 
that the space and missile launch frequency will not exceed a combined 
total of 50 launches (35 rockets and 15 missiles) per year from VAFB. 
Table 1 in this document outlines the numbers of rocket and missile 
launches that occurred in 2011, 2012, and 2013. Although subject to 
change, Table 2 presents preliminary estimates of the numbers of rocket 
and missile launches from VAFB during calendar years 2014 through 2019. 
Estimates for the earlier years are likely

[[Page 10018]]

more accurate than those for the last two to three years. However, as 
noted earlier, the launch frequency is not anticipated to exceed 50 
launches in a given year. Any launches over this amount would require 
additional coordination between NMFS and the USAF before they occur.

 Table 1--Numbers of Rocket and Missile Launches in Calendar Years 2011,
                        2012, and 2013, From VAFB
------------------------------------------------------------------------
        Year               Rocket launches          Missile launches
------------------------------------------------------------------------
2011................  7.......................  2
2012................  2.......................  2
2013................  4 (as of Sept. 24, 2013,  5 (as of Sept. 24, 2013,
                       3 rockets launched with   3 missiles launched
                       1 additional planned      with 2 additional
                       before Dec. 31).          planned before Dec. 31)
------------------------------------------------------------------------


Table 2--Preliminary Numbers of Projected Rocket and Missile Launches in
               Calendar Years 2014 Through 2019 From VAFB
[The projections for calendar years 2018 and 2019 are highly preliminary
                              at this time]
------------------------------------------------------------------------
                                              Rocket          Missile
                  Year                       launches        launches
------------------------------------------------------------------------
2014....................................               6               6
2015....................................               9               5
2016....................................               9               6
2017....................................               4               5
2018....................................               9               6
2019....................................              12               7
------------------------------------------------------------------------

    There are currently six active facilities at VAFB used to launch 
satellites into polar orbit. These facilities support launch programs 
for the Atlas V, Delta II, Delta IV, Falcon 9, Minotaur, and Taurus 
rockets. Various booster and fuel packages can be configured to 
accommodate payloads. Details on the vehicle types and the sound 
exposure levels (SELs) produced by each missile or rocket, as well as 
the helicopter and aircraft operations, were described in the proposed 
rule (78 FR 73794, December 9, 2013). That information has not changed 
and therefore is not repeated here.

Timeframe of USAF Launch and Aircraft Operations

    Launch and aircraft operations could occur at any time of the day 
or night during the period to be covered under this final rule and 
associated LOA (March 2014-March 2019). The USAF anticipates that no 
more than 15 missile and 35 rocket launches would occur in any year. 
This number is far higher than launch activity in previous years, but 
one new facility (SLC 4) is being reactivated with intent to increase 
``commercial launch'' activity, and Test Pad-01 is being renovated. The 
USAF notes that activity levels over the 5-year period between March 
2014 and March 2019 will not exceed 75 missile and 175 rocket launches 
without additional coordination with NMFS. All launch operations would 
occur at VAFB, potentially resulting in launch noise and visual impacts 
there. Potential sonic boom impacts from space launch vehicles (SLVs) 
could occur over the Northern Channel Islands (NCI). Missiles are 
launched in a westerly trajectory and do not impact the NCI. Aircraft 
operations would occur only at VAFB and are anticipated to only impact 
hauled out pinnipeds when flying at low altitudes (i.e., typically 
below 305 m [1,000 ft]).

Harbor Activities Related to the Delta IV Evolved Expendable Launch 
Vehicle

    The Delta IV/EELV is comprised of a common booster core, an upper 
stage, and a payload fairing. The size of the common booster core 
requires it to be transported to the Base's launch site by a specially-
designed vessel, the Delta Mariner. United Launch Alliance operates the 
Delta Mariner on behalf of the USAF. The Delta Mariner docks at the 
harbor on south VAFB. To allow safe operation of the Delta Mariner, 
United Launch Alliance requires that the harbor undergo maintenance on 
a periodic basis. The proposed rule contained a full description of the 
Delta Mariner operations, harbor maintenance dredging, and cargo 
movement activities (78 FR 73794, December 9, 2013). Those activities 
have not changed and therefore are not described again here.

Timeframe of Delta Mariner Activities

    Cargo movement operations would occur for approximately 43 days 
(concurrent with the harbor maintenance activities). A fully-loaded 
vessel can be offloaded in 10 hours; however, the Delta Mariner may 
need to leave the dock and return at another time due to tide and wind 
extremes that may halt the removal of cargo. Dredging-related 
activities normally last between 3 and 5 weeks, including set-up and 
tear-down activities in the water and on shore. Dredging may proceed 24 
hours per day to complete the job as quickly as possible and minimize 
the disruptive effect on the local animals; however, dredging at VAFB 
has historically been conducted in the daylight. Sedimentation surveys 
completed since the initial dredging indicate that maintenance dredging 
could be required annually, or even twice per year, depending on the 
hardware delivery schedule. Up to 5,000 cubic yards of sediment are 
allowed to be removed from the harbor per year by the United States 
Army Corps of Engineers permit. A survey occurs several months prior to 
each Delta Mariner visit to assess whether the harbor can be safely 
navigated. The area to be dredged is shown in Figure 1.2-1 of Appendix 
A in the application.
    We expect that acoustic stimuli, resulting from the Delta Mariner 
activities, have the potential to incidentally harass marine mammals. 
We also expect these disturbances to be temporary and result in a 
temporary modification in behavior and/or low-level physiological 
effects (Level B harassment only) of certain species of marine mammals.
    We do not expect that the movement of the Delta Mariner during the 
conduct of the proposed activities has the potential to harass marine 
mammals because of the relatively slow operation speed of the vessel 
(1.5 to 2 kts; 1.72 mph) during its approach to the area at high tide 
and the vessel's slow

[[Page 10019]]

operational speed (0.75 kts; 0.86 mph) during its approach to the 
wharf.

Description of the Geographic Region of the Activities

VAFB

    VAFB is composed of approximately 99,000 acres of land, and 
approximately 64.4 km (40 mi) of coastline on the coast of central 
California, within Santa Barbara County (see Figure 1 in the USAF 
application). Space vehicles are launched into polar orbits on azimuths 
from 147-201 degrees, with sub-orbital flights to 281 degrees. Missile 
launches are directed toward Kwajalein Atoll in the Pacific. This over-
water sector, from 147-281 degrees, comprises the Western Range. Part 
of the Western Range encompasses the NCI (see Figure 1 in the USAF 
application).

NCI

    The NCI are located approximately 50 km (31 mi) south of the 
southern point on VAFB. Three islands, San Miguel, Santa Cruz, and 
Santa Rosa, make up the main NCI, with San Miguel Island being the 
primary site for pinniped rookeries. The NCI are part of the Channel 
Islands National Park and the Channel Islands National Marine 
Sanctuary. The closest part of the NCI (Harris Point on San Miguel 
Island) is located more than 55 km (34 mi) south-southeast of the 
nearest launch facility.

VAFB Harbor

    The harbor maintenance and Delta Mariner activities will take place 
in or near the VAFB harbor located on the central coast of California 
at 34[deg] 33' N., 120[deg] 36' W. in the northeast Pacific Ocean. 
Activities related to these operations and described in Appendix A of 
the application will take place at VAFB harbor, located on South Base, 
approximately 2.3 km (1.4 mi) south of Point Arguello, CA, and 
approximately 1 mi (1.61 km) south of the nearest marine mammal 
rookery.

Description of Marine Mammals in the Area of the Specified Activity

    Sections 3 and 4 of the USAF application and Sections 3 and 4 of 
Appendix A of the application contain detailed information on the 
abundance, status, and distribution of the species on VAFB and the NCI 
from surveys that they have conducted over the last decade and from 
NMFS Stock Assessment Reports (SARs). This information was summarized 
in the proposed rule (78 FR 73794, December 9, 2013) and may be viewed 
in detail in the USAF's LOA application (see ADDRESSES). Additional 
information is available in the NMFS SARs, which are available at: 
http://www.nmfs.noaa.gov/pr/sars/pdf/po2012.pdf.
    The species most likely to occur at VAFB and the VAFB harbor are 
Pacific harbor seals, California sea lions, and northern elephant 
seals. Steller sea lions have also been seen in recent years at VAFB. 
However, Steller sea lions are not anticipated to be encountered on the 
NCI. Northern fur seals may be encountered on the NCI but are not found 
at VAFB haul-outs. Table 3 in this document outlines current population 
estimates of the five pinniped species described here on the NCI.

                                   Table 3--NCI Pinniped Population Estimates
----------------------------------------------------------------------------------------------------------------
            Species               San Miguel Island    Santa Rosa Island   Santa Cruz Island    Anacapa Island
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal............  900................  1,000.............  1,000.............  100
California sea lion............  32,000 pups born in  500 \2\...........  1,200 \2\.........  1,000.\2\
                                  2012.\1\
Northern elephant seal.........  10,000   2,000   Occasional          Rare transient.
                                  pups yearly.         pups yearly.        transient.
Steller sea lion...............  Rare transient.....  None..............  None..............  None.
Northern fur seal..............  9,968..............  None..............  None..............  None.
----------------------------------------------------------------------------------------------------------------
Sources: Carretta et al. 2011 and 2012; Allen and Angliss 2011 and 2012.
\1\ No estimate is available for the total sea lion population on each main rookery island. Instead, pup counts
  are made at various breeding areas, and from this count, an estimate is made of the stock size, which includes
  pups, subadults and adults.
\2\ Regular surveys are not conducted of these islands, and pupping is very sporadic and minimal there. These
  are estimates of the total number of sea lions at these islands.

Other Marine Mammals in the Proposed Action Area

    There are several cetaceans that have the potential to transit in 
the vicinity of VAFB, including the short-beaked common dolphin 
(Delphinus delphis), the Pacific white-sided dolphin (Lagenorhynchus 
obliquidens), and the gray whale (Eschrichtius robustus). We do not 
consider these species further in this final rule because they are 
typically found farther offshore of VAFB and the VAFB harbor and are 
unlikely or rare in the action area. Guadalupe fur seals (Arctocephalus 
townsendi) are reported occasionally at San Miguel Island; and, in 
1998, a pup was successfully weaned there (Melin and DeLong, 1999). 
However, their occurrence is rare.
    California (southern) sea otters (Enhydra lutris nereis) are listed 
as threatened under the Endangered Species Act and categorized as 
depleted under the MMPA. The U.S. Fish and Wildlife Service manages 
this species, and we do not consider this species in greater detail 
within this final rule. This final rule only address requested take 
authorizations for pinnipeds. The USAF launch, aircraft, and helicopter 
operations have the potential to take Pacific harbor seals, California 
sea lions, northern elephant seals, Steller sea lions, and northern fur 
seals by Level B harassment. The harbor activities related to the 
launch vehicles at VAFB have the potential to take four of the same 
species (all but northern fur seals, which are not found in the 
vicinity of the VAFB harbor) by Level B harassment.

Potential Effects of Specified Activities on Marine Mammals

    The activities proposed have the potential to cause harassment of 
marine mammals through both acoustic and visual stimuli. The USAF 
launch and aircraft activities create two types of noise: continuous 
(but short-duration) noise, due mostly to combustion effects of 
aircraft and launch vehicles; and impulsive noise, due to sonic boom 
effects. Launch operations are the major source of noise on the marine 
environment from VAFB. The operation of launch vehicle engines produces 
significant sound levels. Generally, noise is generated from four 
sources during launches: (1) Combustion noise from launch vehicle 
chambers; (2) jet noise generated by the interaction of the exhaust jet 
and the atmosphere; (3) combustion noise from the post-burning of 
combustion products; and (4) sonic booms. Launch noise levels are 
highly dependent on the type of first-stage booster and the fuel used 
to propel the vehicle. Therefore, there is a great similarity in launch 
noise production within each class size of launch

[[Page 10020]]

vehicles. The noise generated by VAFB activities will result in the 
incidental harassment of pinnipeds, both behaviorally and in terms of 
physiological (auditory) impacts.
    Acoustic and visual stimuli generated by the use of heavy equipment 
during the Delta Mariner off-loading operations and harbor dredging and 
the increased presence of personnel may have the potential to cause 
Level B harassment of any pinnipeds hauled out in the VAFB harbor. This 
disturbance from acoustic and visual stimuli is the principal means of 
marine mammal taking associated with these activities.
    The noise and visual disturbances from SLV and missile launches, 
aircraft and helicopter operations, and harbor maintenance activities 
may cause the animals to lift their heads, move towards the water, or 
enter the water. The proposed rule (78 FR 73794, December 9, 2013) 
contained information regarding marine mammal responses to launch noise 
and harbor maintenance activities that has been gathered under previous 
LOAs and IHAs for these activities, as well as a scientific research 
permit issued to VAFB by NMFS for a research program (Permit No. 859-
1680-01, expired January 1, 2009, and Permit No. 14197, expires June 
30, 2014) to determine the short and long-term effects of SLV noise and 
sonic booms on affected marine mammals. That information is not 
repeated here.
    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 Level A harassment because animals could be 
injured. 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 very little potential for large-
scale movements leading to serious injury or mortality near the south 
VAFB harbor because, historically, 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. Additionally, the USAF does not anticipate a significant 
impact on any of the species or stocks of marine mammals from launches 
from VAFB. For even the largest launch vehicles, such as Delta IV, the 
launch noises and sonic booms can be expected to cause a startle 
response and flight to water for those harbor seals, California sea 
lions and other pinnipeds that are hauled out on the coastline of VAFB 
and on the NCI. The noise may cause temporary threshold shift in 
hearing depending on exposure levels, but no permanent threshold shift 
is anticipated. Because aircraft will fly at altitudes greater than 305 
m (1,000 ft) around pinniped haul-outs and rookeries, animals are not 
anticipated to react to aircraft and helicopter overflights.
    The potential effects to marine mammals described in this section 
of the document do not take into consideration the required monitoring 
and mitigation measures described later in this document (see the 
``Mitigation'' and ``Monitoring and Reporting'' sections) which, as 
noted, should effect the least practicable adverse impact on affected 
marine mammal species and stocks.

Anticipated Effects on Marine Mammal Habitat

    Impacts on marine mammal habitat are part of the consideration in 
making a finding of negligible impact on the species and stocks of 
marine mammals. Habitat includes rookeries, mating grounds, feeding 
areas, and areas of similar significance. We do not anticipate that the 
operations would result in any temporary or permanent effects on the 
habitats used by the marine mammals in the area, including the food 
sources they use (i.e. fish and invertebrates). While it is anticipated 
that the specified activity may result in marine mammals avoiding 
certain areas due to temporary ensonification, this impact to habitat 
is temporary and reversible and was considered in further detail, as 
behavioral modification. The main impact associated with the activity 
will be temporarily elevated noise levels and the associated direct 
effects on marine mammals.

Mitigation

    In order to issue an incidental take authorization (ITA) under 
section 101(a)(5)(A) of the MMPA, NMFS must, where applicable, set 
forth the permissible methods of taking pursuant to such activity, and 
other means of effecting the least practicable adverse impact on such 
species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of such species or stock for taking for subsistence 
uses (where relevant). The NDAA of 2004 amended the MMPA as it relates 
to military-readiness activities and the ITA process such that ``least 
practicable adverse impact'' shall include consideration of personnel 
safety, practicality of implementation, and impact on the effectiveness 
of the ``military readiness activity.'' The training activities 
described in the USAF application are considered military readiness 
activities.
    Section 11 of the USAF application and Section 11 of Appendix A in 
the application contain descriptions of the mitigation measures to be 
implemented during the specified activities in order to effect the 
least practicable adverse impact on the affected marine mammal species 
and stocks and their habitats. Please refer to the application (see 
ADDRESSES) for the full description.

Measures During Launches and Aircraft and Helicopter Operations

    All aircraft and helicopter flight paths must maintain a minimum 
distance of 1,000 ft (305 m) from recognized seal haul-outs and 
rookeries (e.g., Point Sal, Purisima Point, Rocky Point), except in 
emergencies or for real-time security incidents (e.g., search-and-
rescue, fire-fighting) which may require approaching pinniped haul-outs 
and rookeries closer than 1,000 ft (305 m). For missile and rocket 
launches, unless constrained by other factors including human safety, 
national security concerns or launch trajectories, holders of LOAs must 
schedule launches to avoid, whenever possible, launches during the 
harbor seal pupping season of March through June. The USAF must avoid, 
whenever possible, launches which are predicted to produce a sonic boom 
on the NCI during harbor seal, elephant seal, California sea lion, and 
northern fur seal pupping seasons.
    If post-launch surveys determine that an injurious or lethal take 
of a marine mammal has occurred, the launch procedure and the 
monitoring methods must be reviewed, in cooperation with NMFS, and 
appropriate changes must be made through modification to an LOA, prior 
to conducting the next launch of the same vehicle under that LOA.

[[Page 10021]]

Measures During Harbor Activities

    To reduce the potential for disturbance from visual and acoustic 
stimuli associated with the activities, the USAF contractor, United 
Launch Alliance/and or its designees, will implement the following 
mitigating measures for marine mammals:
    (1) If activities occur during nighttime hours, turn on lighting 
equipment before dusk. The lights would remain on for the entire night 
to avoid startling pinnipeds.
    (2) Initiate operations before dusk.
    (3) Keep construction noises at a constant level (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, initiate a gradual start-up of activities to ensure a 
gradual increase in noise levels.
    (5) A qualified observer would 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 the activities (see Monitoring).
    (6) The Delta Mariner and accompanying vessels would enter the 
harbor only when the tide is too high for harbor seals to haul-out on 
the rocks; reducing speed to 1.5 to 2 knots (1.5-2 nm/hr; 2.8-3.7 km/
hr) once the vessel is within 3 mi (4.83 km) of the harbor. The vessel 
would enter the harbor stern first, approaching the wharf and moorings 
at less than 0.75 knot (1.4 km/hr).
    (7) Explore alternate dredge methods and introduce quieter 
techniques and equipment as they become available.

Mitigation Conclusions

    NMFS has carefully evaluated the applicant's mitigation measures 
and considered a range of other measures in the context of ensuring 
that NMFS prescribes the means of effecting the least practicable 
adverse impact on the affected marine mammal species and stocks and 
their habitat. Our evaluation of potential measures included 
consideration of the following factors in relation to one another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals;
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
     The practicability of the measure for applicant 
implementation, including consideration of personnel safety, 
practicality of implementation, and impact on the effectiveness of the 
military readiness activity.
    Based on our evaluation of the applicant's measures, as well as 
other measures considered, NMFS has determined that the mitigation 
measures described above provide the means of effecting the least 
practicable adverse impact on marine mammals species or stocks and 
their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance while also considering 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.

Monitoring and Reporting

    In order to issue an ITA for an activity, section 101(a)(5)(A) of 
the MMPA states that we must set forth ``requirements pertaining to the 
monitoring and reporting of such taking.'' The Act's implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for an 
authorization must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and our expectations of the level of taking or 
impacts on populations of marine mammals present in the action area.
    As part of its application, the USAF provided a monitoring plan, 
similar to that in the current regulations (50 CFR 216.125) and 
previous IHAs issued to United Launch Alliance, for assessing impacts 
to marine mammals from rocket and missile launches at VAFB and Delta 
Mariner operations. This monitoring plan is described, in detail, in 
Section 8 of the main portion of the application for launch monitoring 
activities and Section 13 of Appendix A of the application for Delta 
Mariner operations monitoring activities. The following monitoring will 
be conducted under these regulations.
    The monitoring will be conducted by a NMFS-approved marine mammal 
biologist experienced in surveying large numbers of marine mammals.

Monitoring for Launches on VAFB

    Monitoring at the haul-out site closest to the launch facility will 
commence at least 72 hours prior to the launch and continue until at 
least 48 hours after the launch. Biological monitoring at VAFB will be 
conducted for all launches during the harbor seal pupping season, 1 
March to 30 June. Acoustic and biological monitoring will be conducted 
on new space and missile launch vehicles during at least the first 
launch, whether it occurs within the pupping season or not.
    Monitoring will include multiple surveys each day that record, when 
possible, the species, number of animals, general behavior, presence of 
pups, age class, gender, and reaction to launch noise, sonic booms, or 
other natural or human-caused disturbances. Environmental conditions 
such as tide, wind speed, air temperature, and swell will also be 
recorded. Time-lapse photography or video will be used during daylight 
launches to document the behavior of mother-pup pairs during launch 
activities. For launches during the harbor seal pupping season (March 
through June), follow-up surveys will be made within 2 weeks of the 
launch to ensure that there were no adverse effects on any marine 
mammals. A report detailing the species, number of animals observed, 
behavior, reaction to the launch noise, time to return to the haul-out 
site, any adverse behavior and environmental conditions will be 
submitted to NMFS within 90 days of the launch.

Monitoring for the NCI

    Monitoring will be conducted on the NCI (San Miguel, Santa Cruz, 
and Santa Rosa Islands) whenever a sonic boom over 1 pound per square 
foot (psf) is predicted (using the most current sonic boom modeling 
programs) to impact one of the islands between March 1 and June 30, 
over 1.5 psf between July 1 and September 30, and over 2 psf between 
October 1 and February 28. Monitoring will be conducted at the haul-out 
site closest to the predicted sonic boom impact area. Monitoring will 
be conducted by a NMFS-approved marine mammal biologist experienced in 
surveying large numbers of marine mammals. Monitoring will commence at 
least 72 hours prior to the launch and continue until at least 48 hours 
after the launch (if a sonic boom was detected during the actual 
launch).
    Sonic boom prediction modeling is not conducted prior to missile 
launches because of their trajectories, which do not have the potential 
to overfly and/or impact the NCI with sonic booms. Launches from the 
following sites would not overfly the NCI: Space Launch Complexes 2, 3, 
6, and 8; Launch Facility 576-E, Test pad 01; and missile launch 
facilities 4, 9, 10, 23, and 24.
    Monitoring will include multiple surveys each day that record the 
species, number of animals, general behavior, presence of pups, age 
class, gender, and reaction to launch noise, sonic booms, or other 
natural or human-caused disturbances. Environmental

[[Page 10022]]

conditions such as tide, wind speed, air temperature, and swell will 
also be recorded. Due to the large numbers of pinnipeds found on some 
beaches of San Miguel Island, smaller focal groups should be monitored 
in detail rather than the entire beach population. A general estimate 
of the entire beach population should be made once a day and their 
reaction to the launch noise noted. Photography or video will be used 
during daylight launches to document the behavior of mother-pup pairs 
or dependent pups during launch activities. During the pupping season 
of any species affected by a launch, follow-up surveys will be made 
within 2 weeks of the launch to ensure that there were no adverse 
effects on any marine mammals. A report detailing the species, number 
of animals observed, behavior, reaction to the launch noise, time to 
return to the haul-out site, any adverse behavior and environmental 
conditions will be submitted to NMFS within 90 days of the launch.

Harbor Activities

    United Launch Alliance will designate a qualified and biologically 
trained observer to monitor the area for pinnipeds during all harbor 
activities. During nighttime activities, United Launch Alliance will 
illuminate the harbor area and the observer will use a night vision 
scope.
    Monitoring activities will consist of the following:
    (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 (less than or equal to 2 ft (0.61 m) for pinnipeds 
to haul out.
    (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.

Reporting Measures

    A report containing the following information must be submitted to 
NMFS within 90 days after each launch: (1) Date(s) and time(s) of each 
launch; (2) date(s), location(s), and preliminary findings of any 
research activities related to monitoring the effects on launch noise 
and sonic booms on marine mammal populations; and (3) results of the 
monitoring programs, including but not necessarily limited to (a) 
numbers of pinnipeds present on the haul-out prior to commencement of 
the launch, (b) numbers of pinnipeds that may have been harassed as 
noted by the number of pinnipeds estimated to have entered the water as 
a result of launch noise, (c) the length of time(s) pinnipeds remained 
off the haul-out or rookery, (d) the numbers of pinniped adults or pups 
that may have been injured or killed as a result of the launch, and (4) 
any behavioral modifications by pinnipeds that likely were the result 
of launch noise or the sonic boom.
    If a freshly dead or seriously injured pinniped is found during 
post-launch monitoring, the incident must be reported within 48 hours 
to the NMFS Office of Protected Resources and the NMFS West Coast 
Regional Office.
    An annual report must be submitted to NMFS on March 1 of each year. 
The first report will cover the time period from issuance of the LOA 
through February 28, 2015. Each annual report after that time will 
cover the time period from March 1 through February 28. Information in 
the annual reports will describe any incidental takings under an LOA 
not reported in the 90-day launch reports, such as the aircraft test 
program and helicopter operations and any assessments made of their 
impacts on hauled-out pinnipeds, summarize the information from the 90-
day launch reports, and describe the information collected during 
monitoring of Delta Mariner operations. Information related to Delta 
Mariner operations that must be included in the annual report include: 
(1) Date, time, and duration of activity; (2) weather; (3) tide status; 
(4) composition (species, gender, and age class) and locations of haul-
out group(s); (5) horizontal visibility; and (6) and results of the 
monitoring program, which include (i) number and species of pinnipeds 
present on haul-out(s) prior to start of activity and behavioral 
patterns, (ii) number and species of pinnipeds that may have been 
harassed as noted by the number of pinnipeds estimated to have entered 
the water as a result of noise related to the activity, (iii) brief 
description of any activity/action that causes animal(s) to flush, (iv) 
length of time pinnipeds remained off the haul-out or rookery, and (v) 
noted behavioral modifications by pinnipeds that were likely the result 
of the activity in the harbor.
    A final report must be submitted to NMFS no later than 180 days 
prior to expiration of these regulations. This report must summarize 
the findings made in all previous reports and assess both the impacts 
at each of the major rookeries and the cumulative impact on pinnipeds 
and any other marine mammals from the specified activities.

Adaptive Management

    NMFS has included an adaptive management component in the 
regulations governing the take of marine mammals incidental to the USAF 
activities at VAFB. In accordance with 50 CFR 216.105(c), regulations 
must be based on the best available information. As new information is 
developed, through monitoring, reporting, or research, the regulations 
may be modified, in whole or in part, after notice and opportunity for 
public review. The use of adaptive management will allow NMFS to 
consider new information from different sources to determine if 
mitigation or monitoring measures should be modified (including 
additions or deletions) if new data suggest that such modifications are 
appropriate for subsequent LOAs. The following are some of the possible 
sources of applicable data:
     Results from the USAF's monitoring from the previous year;
     Results from general marine mammal and/or sound research 
or studies; or
     Any information which reveals that marine mammals may have 
been taken in a manner, extent or number not authorized by these 
regulations or subsequent LOAs.
    In addition, LOAs shall be withdrawn or suspended if, after notice 
and opportunity for public comment, the Assistant Administrator finds, 
among other things, the regulations are not being substantially 
complied with or the taking allowed is having more than a negligible 
impact on the species or stock, as allowed for in 50 CFR 216.106(e). 
That is, should monitoring and reporting indicate that the operations 
and activities from VAFB launch complexes or at VAFB harbor are having 
more than a negligible impact on marine mammals, then NMFS reserves the 
right to modify the regulations and/or withdraw or suspend an LOA after 
public review.

Comments and Responses

    On December 9, 2013 (78 FR 73794), we published a proposed rule in 
response to the USAF's request to take marine mammals incidental to 
launch, aircraft, and helicopter operations from VAFB launch complexes 
and Delta Mariner operations, cargo unloading activities, and harbor 
maintenance dredging in support of the Delta IV/EELV launch activity on 
south VAFB for a period of 5 years, requesting comments, information, 
and suggestions concerning the request. During the 30-day public 
comment period, we

[[Page 10023]]

received a letter from the Marine Mammal Commission. The letter stated 
that the Marine Mammal Commission concurs with NMFS' preliminary 
finding and therefore recommends that NMFS issue the final rule, 
subject to inclusion of the proposed mitigation, monitoring, and 
reporting measures. We have included all of the mitigation, monitoring, 
and reporting measures contained in the proposed rule in this final 
rule. We did not receive any other letters or comments from the public 
on the proposed rule.

Numbers of Marine Mammals Estimated To Be Taken by Harassment

    The marine mammal species NMFS believes likely to be taken by Level 
B harassment incidental to launch and aircraft and helicopter 
operations at VAFB are harbor seals, California sea lions, northern 
elephant seals, northern fur seals, and Steller sea lions. NMFS 
believes that all of these species except for northern fur seals are 
likely to be taken by Level B harassment incidental to Delta Mariner 
operations at the VAFB harbor. All of these species are protected under 
the MMPA, and none are listed under the Endangered Species Act (ESA). 
On November 4, 2013, NMFS published a final rule delisting the eastern 
distinct population segment (DPS) of Steller sea lions (78 FR 66139). 
We have determined that this DPS has recovered and no longer meets the 
definition of an endangered or threatened species under the ESA. The 
Steller sea lions at VAFB are part of the eastern DPS. Numbers of 
animals that may be taken by Level B harassment are expected to vary 
due to factors such as type of SLV, location of the sonic boom, weather 
conditions (which can influence the size of the sonic boom), the time 
of day, and the time of year, as well as launch trajectory and the 
number of launches in a given year. For this reason, ranges are given 
for the harassment estimates of marine mammals. Aircraft operations 
will occur frequently but will avoid pinniped haul-out areas and are 
unlikely to disturb pinnipeds.
    As noted earlier, sightings of Guadalupe fur seals have been 
extremely rare the last few decades at VAFB and on the NCI. Therefore, 
no takes by harassment are anticipated for this species incidental to 
the proposed activities.
    Take estimates at VAFB and the NCI from launches are based on 
decades of visual observations and systematic marine mammal surveys 
conducted at the launch sites and known pinniped haul-outs on VAFB and 
the NCI. Surveys are conducted by VAFB marine mammal monitors, as well 
as National Park Service employees. Take estimates at the VAFB harbor 
are based on visual observations conducted there since 2001 by marine 
mammal monitors noting observations during Delta Mariner operations.

Estimated Takes at VAFB

    The following text describes the potential range of takes possible 
of pinnipeds on VAFB during launches. Table 4 provides this information 
in outline form.
    Harbor seals: As many as 400 harbor seals per launch may be taken. 
Depending on the type of rocket being launched, the time of day, time 
of the year, weather conditions, tide and swell conditions, the number 
of seals that may be taken will range between 0 and 400. Launches and 
aircraft operations may occur at any time of the year, so any age 
classes and gender may be taken.
    California sea lions: As many as 300 sea lions per launch may be 
taken. Sea lions at VAFB are usually juveniles of both sexes and sub-
adult males that haul out in the fall during the post breeding 
dispersal. Births generally do not occur at VAFB, but five pups were 
observed at VAFB in 2003, an El Nino year, although all were abandoned 
by their mothers and died within several days of birth. Sick or 
emaciated weaned pups may also haul out briefly.
    Northern elephant seals: As many as 100 elephant seals per launch 
may be taken. Weaned elephant seal pups, juveniles, or young adults of 
both sexes, may occasionally haul out at VAFB for several days to rest 
or as long as 30 days to molt. Injured or sick seals may also haul out 
briefly.
    Steller sea lions: Steller sea lions have only been noted at VAFB 
in April and May of 2012 and again from February-April 2013. Numbers 
were small. As many as 36 Steller sea lions may be taken per launch.
    Northern fur seals: There are no reports of northern fur seals at 
VAFB. Therefore, it is unlikely that any fur seals will be taken.

                                 Table 4--Predicted Level B Harassment Takes of Pinnipeds on VAFB on a per Launch Basis
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                Takes per launch
              Species                     Age groups                Sex             Reproductive condition        from noise or     Takes from  aircraft
                                                                                                               visual disturbance         operations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pacific harbor seal...............  All..................  Both.................  Pupping and breeding March  0-400...............  None.
                                                                                   through June.
California sea lion...............  All..................  Both.................  Pupping and breeding June   0-300...............  None.
                                                                                   through July, but no
                                                                                   pupping expected at VAFB.
Northern elephant seal............  All..................  Both.................  No pregnant or breeding     0-100...............  None.
                                                                                   animals expected; mostly
                                                                                   ``weaners''.
Steller sea lion..................  All..................  Both.................  No pupping or breeding at   0-36................  None.
                                                                                   VAFB.
Northern fur seal.................  Mostly juveniles.....  Both.................  Only stranded animals.....  None................  None.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Estimated Takes on the NCI

    Sonic booms created by SLVs may impact marine mammals on the NCI, 
particularly San Miguel Island. Missile launches utilize westward 
trajectories so do not cause sonic boom impacts to the NCI. Sonic boom 
modeling software will continue to be used to predict the area of sonic 
boom impact and magnitude of the sonic boom on the NCI based on the 
launch vehicle, speed, trajectory, and meteorological conditions. Prior 
to each SLV launch, a predictive sonic boom map of the impact area and 
magnitude of the sonic boom will be generated. Based on previous 
monitoring of sonic booms created by SLVs on San Miguel (Thorson et 
al., 1999a: 1999b), it is estimated that as much as approximately 25 
percent of the marine mammals may be disturbed on SMI (Thorson et al., 
1999a; 1999b). Most sonic booms that reach San Miguel Island are small 
(<1 psf), although larger sonic booms are possible but rarely occur. A 
conservative take estimate of as much as 25 percent of the animals 
present is used for each species per launch. Table 5 presents the 
potential

[[Page 10024]]

numbers of takes per launch event on the NCI.

                  Table 5--Predicted Level B Harassment Takes on the NCI on a per Launch Basis
----------------------------------------------------------------------------------------------------------------
                                                                         Reproductive      Takes per launch from
            Species                Age groups            Sex              condition             sonic booms
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal...........  All.............  Both............  Pupping and breeding   0-200.
                                                                     March through June.
California sea lion...........  All.............  Both............  Pupping and breeding   0-6,000 pups 0-3,000
                                                                     June through July.     juveniles and
                                                                                            adults.
Northern elephant seal........  All.............  Both............  Pupping December       0-500 pups 1,000
                                                                     through March.         juveniles and
                                                                                            adults.
Steller sea lion..............  Adult...........  Both............  No pupping or          None; virtually no
                                                                     breeding at NCI.       presence on San
                                                                                            Miguel.
Northern fur seal.............  Mostly juveniles  Both............  Pupping and breeding   0-250 pups 0-1,000
                                                                     in June and July.      juveniles and
                                                                                            adults.
----------------------------------------------------------------------------------------------------------------

Estimated Takes From Delta Mariner Operations

    Estimates of the numbers of marine mammals that might be affected 
are based on consideration of the number of animals that could be 
disturbed appreciably by approximately 43 days for Pacific harbor seals 
and California sea lions, 8 days for northern elephant seals, and 3 
days for Steller sea lions. The lower number of days for northern 
elephant seals and Steller sea lions are based on the fact that those 
species haul-out in fewer numbers and fewer times throughout the year 
at the VAFB harbor than harbor seals or California sea lions.
    Based on previous monitoring reports, with the same activities 
conducted in the proposed operations area, we estimate that 
approximately 1,161 Pacific harbor seals, 129 California sea lions, 24 
northern elephant seals, and 24 Steller sea lions could be potentially 
affected by Level B behavioral harassment over the course of each year 
of activities. We base these estimates on historical pinniped survey 
counts from 2001 to 2011, and calculated takes by multiplying the 
average of the maximum abundance by the number of days noted above 
(i.e., the total number of operational days). Thus, the USAF requests 
authorization to incidentally harass approximately 1,161 Pacific harbor 
seals (27 animals by 43 days), 129 California sea lions (3 animals by 
43 days), 24 northern elephant seals (3 animals by 8 days), and 24 
Steller sea lions (8 animals by 3 days).
    Table 6 presents the maximum number of potential takes on an annual 
basis. However, actual takes could be lower than this number. The range 
of animals that could be taken is based on zero animals responding up 
to the maximum for each launch event plus Delta Mariner operations. 
Although not anticipated between 2014 and early 2019, up to 50 launches 
per year are authorized for taking of marine mammals. However, as noted 
in Table 2 earlier in this document, no more than 12-19 launches are 
actually anticipated to occur on an annual basis between 2014 and 2019. 
Additionally, not all launches will overfly the NCI. However, the 
numbers presented in Table 6 represent the maximum end of the range and 
assume that all 50 launches would overfly the NCI. Therefore, actual 
takes will likely be much lower than the maximum estimate.

    Table 6--Total Number of Annual Level B Takes From a Total of 50
                  Launches and Delta Mariner Operations
 [Numbers are likely overestimated as not all launches would overfly the
                                  NCI]
------------------------------------------------------------------------
                                                           Total number
                                                           of authorized
                         Species                           Level B takes
                                                             annually
------------------------------------------------------------------------
Pacific harbor seal.....................................          31,161
California sea lion.....................................         465,129
Northern elephant seal..................................          80,024
Steller sea lion........................................           1,824
Northern fur seal.......................................          62,500
------------------------------------------------------------------------

    With the incorporation of mitigation measures described earlier in 
this document, the USAF and NMFS expect that only Level B incidental 
harassment may occur as a result of the activities and that these 
events will result in no detectable impact on marine mammal species or 
stocks or on their habitats.

Negligible Impact Analysis and Determination

    We have 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.'' In making a negligible impact determination, 
we consider:
    (1) The number of anticipated injuries, serious injuries, or 
mortalities;
    (2) The number, nature, and intensity, and duration of Level B 
harassment (all relatively limited);
    (3) The context in which the takes occur (i.e., impacts to areas of 
significance, impacts to local populations, and cumulative impacts when 
taking into account successive/contemporaneous actions when added to 
baseline data);
    (4) The status of stock or species of marine mammals (i.e., 
depleted, not depleted, decreasing, increasing, stable, impact relative 
to the size of the population);
    (5) Impacts on habitat affecting rates of recruitment/survival; and
    (6) The effectiveness of monitoring and mitigation measures.
    As mentioned previously, we estimate that five species of marine 
mammals could be potentially affected by Level B harassment from launch 
activities and that four of those five species could be potentially 
affected by Level B harassment from Delta Mariner operations.
    For reasons stated previously in this document, the specified 
activities are not likely to cause long-term behavioral disturbance, 
abandonment of the haul-out area, serious injury, or mortality because:
    (1) The effects of the activities are expected to be limited to 
short-term startle responses and localized behavioral changes. 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.
    (2) Launches will likely not occur more than about 12-19 times per 
year over the next 5 years.
    (3) Delta Mariner off-loading operations and associated cargo 
movements within the harbor would occur at a maximum frequency of four

[[Page 10025]]

times per year, and the vessel's arrival and departure would occur 
during daylight hours at high tide when the haul out areas are fully 
submerged and few, if any, pinnipeds are present in the harbor;
    (4) The relatively slow operational speed of the Delta Mariner (1.5 
to 2 kts; 1.72 mph) during its approach to the harbor at high tide and 
the vessel's slow operational speed (0.75 kts; 0.86 mph) during its 
approach to the wharf;
    (5) There is no potential for large-scale movements leading to 
serious injury or mortality;
    (6) Many of the specified activities do not occur near rookeries;
    (7) The availability of alternate areas near the harbor for 
pinnipeds to avoid the resultant noise from the maintenance and vessel 
operations; and
    (8) Results from previous monitoring reports that support our 
conclusions that the pinnipeds returned to the haul-out sites during 
periods of low tide after the disturbance and do not permanently 
abandon a haul-out site during the conduct of harbor maintenance and 
Delta Mariner operations or launches from VAFB.
    As confirmed by past monitoring reports, we do not anticipate that 
any injuries, serious injuries, or mortalities would occur as a result 
of the activities, and did not authorize injury, serious injury or 
mortality. These species may exhibit behavioral modifications, 
including temporarily vacating the area during the activities to avoid 
the resultant acoustic and visual disturbances. Due to the nature, 
degree, and context of the behavioral harassment anticipated, the 
activities are not expected to impact rates of recruitment or survival. 
Further, these activities would not adversely impact marine mammal 
habitat.
    We have determined, provided that the USAF carries out the 
previously described mitigation and monitoring measures, that the 
impact of conducting the activities may result, at worst, in a 
temporary modification in behavior and/or low-level physiological 
effects (Level B harassment) of certain species of marine mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, we have determined that the total taking from the activities 
will have a negligible impact on the affected species or stocks; and 
that impacts to affected species or stocks of marine mammals would be 
mitigated to the lowest level practicable.

Impact on Availability of Affected Species or Stock for Taking for 
Subsistence Uses

    Section 101(a)(5)(A) of the MMPA also requires us to determine that 
the authorization will not have an unmitigable adverse effect on the 
availability of marine mammal species or stocks for subsistence use. 
There are no relevant subsistence uses of marine mammals in the study 
area (northeastern Pacific Ocean) that implicate section 101(a)(5)(A) 
of the MMPA.

Endangered Species Act

    There are no species listed as threatened or endangered in the 
activity area. Therefore, consultation under section 7 of the ESA is 
not required.

National Environmental Policy Act (NEPA)

    The USAF prepared a Final EA and issued a Finding of No Significant 
Impact (FONSI) in 1997 as part of its application for an incidental 
take authorization. On March 1, 1999 (64 FR 9925), NMFS adopted this EA 
as provided for by the Council on Environmental Quality regulations. In 
2003, NMFS prepared its own EA and issued a FONSI for the final rule 
issued in February, 2004. In January 2009, NMFS prepared a new EA and 
issued a FONSI for the final rule issued in February 2009.
    In 2001, the USAF prepared an EA for Harbor Activities Associated 
with the Delta IV Program at Vandenberg Air Force Base. In 2005, we 
prepared an EA augmenting the information contained in the USAF's EA 
and issued a FONSI on the issuance of an Incidental Harassment 
Authorization for United Launch Alliance's 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).
    NMFS conducted a new analysis, pursuant to NEPA, to determine 
whether the issuance of MMPA rulemaking and subsequent LOA(s) may have 
a significant effect on the human environment. In February 2014, NMFS 
released an EA and issued a FONSI for this action. NMFS determined that 
issuance of these regulations and subsequent LOA would not 
significantly impact the quality of the human environment; therefore, 
preparation of an Environmental Impact Statement was not required for 
this action.

National Marine Sanctuaries Act

    We previously discussed the promulgation of MMPA regulations and 
issuing associated LOAs with the NOAA National Ocean Service's Office 
of National Marine Sanctuaries to determine whether or not NMFS' action 
is likely to destroy, cause the loss of, or injure any national marine 
sanctuary resources. On December 12, 2008, the Office of National 
Marine Sanctuaries determined that no further consultation with NMFS 
was required on its proposed action as this action is not likely to 
destroy, cause the loss of, or injure any national marine sanctuary 
resources. The activities in this rulemaking are identical to those 
discussed in 2008.

Classification

    Pursuant to the procedures established to implement section 6 of 
Executive Order 12866, the Office of Management and Budget has 
determined that this final rule is not significant.
    At the proposed rule stage, the Chief Counsel for Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that this rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities. The 30th Space Wing, USAF, and their contractors are the 
entities that will be affected by this rulemaking, none of which are 
considered a small governmental jurisdiction, small organization, or 
small business, as defined by the Regulatory Flexibility Act. United 
Launch Alliance, the contractor hired by the USAF to conduct the harbor 
activities and Delta Mariner operations, is a joint venture between 
Boeing and Lockheed Martin. The Small Business Administration defines a 
small entity as one that is independently owned and operated and not 
dominant in its field of operation. United Launch Alliance employs 
approximately 3,900 employees working at sites across the country, has 
annual revenues exceeding $1 billion, and is dominant in the field of 
aerospace vehicle launching. United Launch Alliance therefore does not 
meet the definition of a small entity. No comments were received on the 
certification. Accordingly, a regulatory flexibility analysis is not 
required and none has been prepared.

List of Subjects in 50 CFR Part 217

    Exports, Fish, Imports, Indians, Labeling, Marine mammals, 
Penalties,

[[Page 10026]]

Reporting and recordkeeping requirements, Seafood, Transportation.

    Dated: February 19, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For reasons set forth in the preamble, 50 CFR part 217 is amended 
as follows:

PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS 
INCIDENTAL TO SPECIFIED ACTIVITIES

0
1. The authority citation for part 217 continues to read as follows:

    Authority:  16 U.S.C. 1361 et seq.


0
2. Subpart G is added to part 217 to read as follows:
Subpart G--Taking of Marine Mammals Incidental to U.S. Air Force 
Launches, Aircraft and Helicopter Operations, and Harbor Activities 
Related to Launch Vehicles From Vandenberg Air Force Base (VAFB), 
California
Sec.
217.60 Specified activity and specified geographical region.
217.61 Effective dates.
217.62 Permissible methods of taking.
217.63 Prohibitions.
217.64 Mitigation.
217.65 Requirements for monitoring and reporting.
217.66 Letters of Authorization.
217.67 Renewals and modifications of Letters of Authorization.

Subpart G--Taking of Marine Mammals Incidental to U.S. Air Force 
Launches, Aircraft and Helicopter Operations, and Harbor Activities 
Related to Launch Vehicles From Vandenberg Air Force Base (VAFB), 
California


Sec.  217.60  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the 30th Space Wing, 
United States Air Force (USAF), at Vandenberg Air Force Base and those 
persons it authorizes to conduct activities on its behalf for the 
taking of marine mammals that occurs in the area outlined in paragraph 
(b) of this section and that occurs incidental to:
    (1) Launching up to 15 space and each year from Vandenberg Air 
Force Base, for a total of up to 75 missiles over the 5-year period of 
these regulations,
    (2) Launching up to 35 rockets each year from Vandenberg Air Force 
Base, for a total of up to 175 rocket launches over the 5-year period 
of these regulations,
    (3) Aircraft flight test operations,
    (4) Helicopter operations from Vandenberg Air Force Base, and
    (5) Delta Mariner (or a similar vessel) operations, cargo unloading 
activities, and harbor maintenance dredging.
    (b) The taking of marine mammals by the USAF may be authorized in a 
Letter of Authorization only if it occurs from the space launch 
complexes, launch facilities, and test pads on north and south 
Vandenberg Air Force Base and the Vandenberg Air Force Base harbor on 
South Base.


Sec.  217.61  Effective dates.

    Regulations in this subpart are effective from March 26, 2014 
through March 26, 2019.


Sec.  217.62  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec.  
216.106 and 217.60 of this chapter, the Holder of the Letter of 
Authorization (herein after the USAF) may incidentally, but not 
intentionally, take marine mammals by harassment, within the area 
described in Sec.  217.60(b), provided the activity is in compliance 
with all terms, conditions, and requirements of the regulations in this 
subpart and the appropriate Letter of Authorization.
    (b) The activities identified in Sec.  217.60(a) must be conducted 
in a manner that minimizes, to the greatest extent practicable, any 
adverse impacts on marine mammals and their habitat.
    (c) The incidental take of marine mammals under the activities 
identified in Sec.  217.60(a) of this chapter is limited to the 
indicated number of Level B harassment takes on an annual basis of the 
following species:
    (1) Harbor seals (Phoca vitulina)--31,161;
    (2) California sea lions (Zalophus californianus)--465,129;
    (3) Northern elephant seals (Mirounga angustirostris)--80,024;
    (4) Northern fur seals (Callorhinus ursinus)--62,500; and
    (5) Steller sea lions (Eumetopias jubatus)--1,824.


Sec.  217.63  Prohibitions.

    Notwithstanding takings contemplated in Sec.  217.62(c) and 
authorized by a Letter of Authorization issued under Sec. Sec.  216.106 
and 217.66 of this chapter, no person in connection with the activities 
described in Sec.  217.60 may:
    (a) Take any marine mammal not specified in Sec.  217.62(c);
    (b) Take any marine mammal specified in Sec.  217.62(c) other than 
by incidental, unintentional Level B harassment;
    (c) Take a marine mammal specified in Sec.  217.62(c) if NMFS 
determines such taking results in more than a negligible impact on the 
species or stocks of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a Letter of Authorization issued under 
Sec. Sec.  216.106 and 217.66 of this chapter.


Sec.  217.64  Mitigation.

    (a) When conducting the activities identified in Sec.  217.60(a), 
the mitigation measures contained in the Letter of Authorization issued 
under Sec. Sec.  216.106 and 217.66 of this chapter must be 
implemented. These mitigation measures include (but are not limited 
to):
    (1) All aircraft and helicopter flight paths must maintain a 
minimum distance of 1,000 ft (305 m) from recognized seal haul-outs and 
rookeries (e.g., Point Sal, Purisima Point, Rocky Point), except in 
emergencies or for real-time security incidents (e.g., search-and-
rescue, fire-fighting), which may require approaching pinniped haul-
outs and rookeries closer than 1,000 ft (305 m).
    (2) For missile and rocket launches, holders of Letters of 
Authorization must avoid, whenever possible, launches during the harbor 
seal pupping season of March through June, unless constrained by 
factors including, but not limited to, human safety, national security, 
or for space vehicle launch trajectory necessary to meet mission 
objectives.
    (3) Vandenberg Air Force Base must avoid, whenever possible, 
launches which are predicted to produce a sonic boom on the Northern 
Channel Islands during harbor seal, elephant seal, California sea lion, 
and northern fur seal pupping seasons of March through June.
    (4) If post-launch surveys determine that an injurious or lethal 
take of a marine mammal has occurred, the launch procedure and the 
monitoring methods must be reviewed, in cooperation with the National 
Marine Fisheries Service (NMFS), and appropriate changes must be made 
through modification to a Letter of Authorization, prior to conducting 
the next launch under that Letter of Authorization.
    (5) Delta Mariner (or a similar vessel) operations, cargo 
unloading, and harbor maintenance dredging measures:
    (i) If activities occur during nighttime hours, turn on lighting 
equipment before dusk. Lights must remain on for the entire night to 
avoid startling pinnipeds.
    (ii) Initiate operations before dusk.
    (iii) Keep construction noises at a constant level (i.e., not 
interrupted by periods of quiet in excess of 30 minutes) while 
pinnipeds are present.

[[Page 10027]]

    (iv) Initiate a gradual start-up of activities to ensure a gradual 
increase in noise levels if activities cease for longer than 30 minutes 
and pinnipeds are in the area.
    (v) Conduct visual monitor, by a qualified observer, of the harbor 
seals on the beach adjacent to the harbor and on rocks for any flushing 
or other behaviors as a result of activities described in Sec.  
217.60(a).
    (vi) The Delta Mariner and accompanying vessels must enter the 
harbor only when the tide is too high for harbor seals to haul-out on 
the rocks; reducing speed to 1.5 to 2 knots (1.5-2 nm/hr; 2.8-3.7 km/
hr) once the vessel is within 3 mi (4.83 km) of the harbor. The vessel 
must enter the harbor stern first, approaching the wharf and moorings 
at less than 0.75 knot (1.4 km/hr).
    (vii) Explore alternate dredge methods and introduce quieter 
techniques and equipment as they become available.
    (6) Additional mitigation measures as contained in a Letter of 
Authorization.
    (b) [Reserved]


Sec.  217.65  Requirements for monitoring and reporting.

    (a) Unless specified otherwise in the Letter of Authorization, the 
USAF must notify the Administrator, West Coast Region, NMFS, by letter 
or telephone, at least 2 weeks prior to activities possibly involving 
the taking of marine mammals. If the authorized activity identified in 
Sec.  217.60(a) is thought to have resulted in the mortality or injury 
of any marine mammals or in any take of marine mammals not identified 
in Sec.  217.62(c), then the USAF must notify the Director, Office of 
Protected Resources, NMFS, or designee, by telephone (301-427-8401), 
within 48 hours of the discovery of the injured or dead animal.
    (b) To conduct monitoring of launch activities, the USAF must 
designate qualified, on-site individuals approved in advance by NMFS, 
as specified in the Letter of Authorization, to:
    (1) Conduct observations on pinniped activity in the vicinity of 
the rookery nearest the launch platform or, in the absence of pinnipeds 
at that location, at another nearby haul-out, for at least 72 hours 
prior to any planned launch occurring during the harbor seal pupping 
season (1 March through 30 June) and continue for a period of time not 
less than 48 hours subsequent to launching.
    (2) For launches during the harbor seal pupping season (March 
through June), conduct follow-up surveys within 2 weeks of the launch 
to ensure that there were no adverse effects on any marine mammals,
    (3) Monitor haul-out sites on the Northern Channel Islands, if it 
is determined by modeling that a sonic boom of greater than 1 psf is 
predicted to impact one of the Islands between March 1 and June 30, 
greater than 1.5 psf between July 1 and September 30, and greater than 
2 psf between October 1 and February 28. Monitoring will be conducted 
at the haul-out site closest to the predicted sonic boom impact area.
    (4) Investigate the potential for spontaneous abortion, disruption 
of effective female-neonate bonding, and other reproductive 
dysfunction,
    (5) Supplement observations on Vandenberg and on the Northern 
Channel Islands with video-recording of mother-pup seal responses for 
daylight launches during the pupping season,
    (6) Conduct acoustic measurements of those launch vehicles that 
have not had sound pressure level measurements made previously, and
    (7) Include multiple surveys each day that surveys are required 
that record the species, number of animals, general behavior, presence 
of pups, age class, gender and reaction to launch noise, sonic booms or 
other natural or human caused disturbances, in addition to recording 
environmental conditions such as tide, wind speed, air temperature, and 
swell.
    (c) To conduct monitoring of harbor activities, the USAF must 
designate qualified, on-site individuals approved in advance by NMFS, 
as specified in the Letter of Authorization. During nighttime 
activities, the harbor area will be illuminated, and the observer will 
use a night vision scope. Monitoring activities will consist of the 
following:
    (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 (less than or equal to 2 ft (0.61 m) for pinnipeds 
to haul out.
    (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.
    (d) Holders of Letters of Authorization must conduct additional 
monitoring as required under a Letter of Authorization.
    (e) The USAF must submit a report to the West Coast Regional 
Administrator, NMFS, within 90 days after each launch. This report must 
contain the following information:
    (1) Date(s) and time(s) of the launch,
    (2) Design of the monitoring program, and
    (3) Results of the monitoring program, including, but not 
necessarily limited to:
    (i) Numbers of pinnipeds present on the haul-out prior to 
commencement of the launch,
    (ii) Numbers of pinnipeds that may have been harassed as noted by 
the number of pinnipeds estimated to have entered the water as a result 
of launch noise,
    (iii) The length of time pinnipeds remained off the haul-out or 
rookery,
    (iv) Numbers of pinniped adults, juveniles or pups that may have 
been injured or killed as a result of the launch, and
    (v) Behavioral modifications by pinnipeds that were likely the 
result of launch noise or the sonic boom.
    (f) An annual report must be submitted on March 1 of each year.
    (g) A final report must be submitted at least 180 days prior to 
expiration of these regulations. This report will:
    (1) Summarize the activities undertaken and the results reported in 
all previous reports,
    (2) Assess the impacts at each of the major rookeries,
    (3) Assess the cumulative impacts on pinnipeds and other marine 
mammals from the activities specified in Sec.  217.60(a), and
    (4) State the date(s), location(s), and findings of any research 
activities related to monitoring the effects on launch noise, sonic 
booms, and harbor activities on marine mammal populations.


Sec.  217.66  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the USAF must apply for and obtain a Letter of 
Authorization.
    (b) A Letter of Authorization, unless suspended or revoked, may be 
effective for a period of time not to exceed the expiration date of 
these regulations.
    (c) If a Letter of Authorization expires prior to the expiration 
date of these regulations, the USAF must apply for and obtain a renewal 
of the Letter of Authorization.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by a Letter of 
Authorization, the USAF must apply for and obtain a modification of the 
Letter of Authorization as described in Sec.  217.67.
    (e) The Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e.,

[[Page 10028]]

mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (f) Issuance of the Letter of Authorization shall be based on a 
determination that the level of taking will be consistent with the 
findings made for the total taking allowable under these regulations.
    (g) Notice of issuance or denial of a Letter of Authorization shall 
be published in the Federal Register within 30 days of a determination.


Sec.  217.67  Renewals and modifications of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec.  216.106 and Sec.  
217.66 of this chapter for the activity identified in Sec.  217.60(a) 
shall be renewed or modified upon request by the applicant, provided 
that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations (excluding changes 
made pursuant to the adaptive management provision in Sec.  
217.67(c)(1) of this chapter), and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous Letter of Authorization under these 
regulations were implemented.
    (b) For Letter of Authorization modification or renewal requests by 
the applicant that include changes to the activity or the mitigation, 
monitoring, or reporting (excluding changes made pursuant to the 
adaptive management provision in Sec.  217.67(c)(1)) that do not change 
the findings made for the regulations or result in no more than a minor 
change in the total estimated number of takes (or distribution by 
species or years), NMFS may publish a notice of proposed Letter of 
Authorization in the Federal Register, including the associated 
analysis illustrating the change, and solicit public comment before 
issuing the Letter of Authorization.
    (c) A Letter of Authorization issued under Sec.  216.106 and Sec.  
217.66 of this chapter for the activity identified in Sec.  217.60(a) 
may be modified by NMFS under the following circumstances:
    (1) Adaptive Management--NMFS may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after 
consulting with the USAF regarding the practicability of the 
modifications) if doing so creates a reasonable likelihood of more 
effectively accomplishing the goals of the mitigation and monitoring 
set forth in the preamble for these regulations.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in a Letter 
of Authorization:
    (A) Results from the USAF's monitoring from the previous year(s).
    (B) Results from other marine mammal and/or sound research or 
studies.
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent Letters of Authorization.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
will publish a notice of proposed Letter of Authorization in the 
Federal Register and solicit public comment.
    (2) Emergencies--If NMFS determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in Sec.  217.62(c) of this chapter, a Letter 
of Authorization may be modified without prior notice or opportunity 
for public comment. Notice would be published in the Federal Register 
within 30 days of the action.

[FR Doc. 2014-03958 Filed 2-21-14; 8:45 am]
BILLING CODE 3510-22-P