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, 46742-46745 [E9-21961]
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Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / Notices
instrument is an electron microscope
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suited to these purposes, which was
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at the time of order of each instrument.
Dated: September 4, 2009.
Christopher Cassel,
Acting Director, Subsidies Enforcement
Office, Import Administration.
[FR Doc. E9–21964 Filed 9–10–09; 8:45 am]
BILLING CODE 3510–DS–S
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
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AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; issuance of incidental
harassment authorization.
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 EastWest 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:
https://www.nmfs.noaa.gov/pr/permits/
incidental.htm#applications.
Documents cited in this notice may be
viewed, by appointment, during regular
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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
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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).
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Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / Notices
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).
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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
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(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 Aweighted 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
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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
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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 (shortterm 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,
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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 VAFBdesignated 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
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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
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Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / Notices
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.
DEPARTMENT OF COMMERCE
Determinations
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; receipt of application.
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.
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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]
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National Oceanic and Atmospheric
Administration
RIN 0648–XR52
Marine Mammals; File No. 14534
SUMMARY: Notice is hereby given that
Ned Cyr, Director, NOAA Office of
Science and Technology, Silver Spring,
MD, has applied in due form for a
permit to conduct research on marine
mammals in the Pacific Ocean.
DATES: Written, telefaxed, or e-mail
comments must be received on or before
October 13, 2009.
ADDRESSES: The application and related
documents are available for review by
selecting ‘‘Records Open for Public
Comment’’ from the Features box on the
Applications and Permits for Protected
Species (APPS) home page, https://
apps.nmfs.noaa.gov, and then selecting
File No. 14534 from the list of available
applications.
These documents are also available
upon written request or by appointment
in the following office(s):
Permits, Conservation and Education
Division, Office of Protected Resources,
NMFS, 1315 East-West Highway, Room
13705, Silver Spring, MD 20910; phone
(301)713–2289; fax (301)713–0376; and
Southwest Region, NMFS, 501 West
Ocean Blvd., Suite 4200, Long Beach,
CA 90802–4213; phone (562)980–4001;
fax (562)980–4018.
Written comments on this application
should be submitted to the Chief,
Permits, Conservation and Education
Division, at the address listed above.
Comments may also be submitted by
facsimile to (301)713–0376, or by email
to NMFS.Pr1Comments@noaa.gov.
Please include the File No. in the
subject line of the email comment.
Those individuals requesting a public
hearing should submit a written request
to the Chief, Permits, Conservation and
Education Division at the address listed
above. The request should set forth the
specific reasons why a hearing on this
application would be appropriate.
FOR FURTHER INFORMATION CONTACT:
Tammy Adams or Carrie Hubard,
(301)713–2289.
SUPPLEMENTARY INFORMATION: The
subject permit is requested under the
authority of the Marine Mammal
Protection Act of 1972, as amended
(MMPA; 16 U.S.C. 1361 et seq.), the
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46745
regulations governing the taking and
importing of marine mammals (50 CFR
part 216), the Endangered Species Act of
1973, as amended (ESA; 16 U.S.C. 1531
et seq.), and the regulations governing
the taking, importing, and exporting of
endangered and threatened species (50
CFR 222–226).
The applicant requests a five-year
permit to conduct a research program
involving studies of sound production,
diving and other behavior, and
responses to sound of marine mammals,
including endangered species. The
results would be integrated with related
studies and directly contribute to
conservation management for sound
producers and regulatory agencies by
identifying characteristics of target
species that are critical for passive
monitoring, detection, and/or density
estimation and by demonstrating how
specific sounds, including simulated
military sonar, may evoke behavioral
responses in marine mammals. The
experimental design involves
temporarily attaching individual
recording tags to measure vocalization,
behavior, and physiological parameters
as well as sound exposure. Behavior
will be measured before, during, and
after carefully controlled exposures of
sound in conventional playback
experiments. Tagged subjects will be
exposed to received sound levels up to
180 dB re: 1μPa. This study will involve
various activities that could take
animals by harassment, including close
approaches, attachment of tags, and
sound exposure. Small fragments of
sloughed skin, which often remain
attached to retrieved tags, would be
used for genetic analyses. Target species
include beaked whales and other
odontocetes, key baleen whales, and
pinniped species for whom such data
have not been previously obtained;
other marine species may be
incidentally impacted. Please refer to
the tables in the application for the
numbers of marine mammals, by species
and stock, that are proposed for this
permit. The research will be focused in
the waters within the U.S. Navy’s
Southern California Range Complex,
and primarily near the vicinity of San
Clemente Island.
The applicant also submitted a draft
environmental assessment (EA)
prepared under the National
Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.), to examine whether
significant environmental impacts could
result from issuance of the proposed
scientific research permit and conduct
of the research. The draft EA is available
for review and comment simultaneous
with the scientific research permit
application.
E:\FR\FM\11SEN1.SGM
11SEN1
]]>Agencies
[Federal Register Volume 74, Number 175 (Friday, September 11, 2009)]
[Notices]
[Pages 46742-46745]
From the Federal Register Online via the Government Printing 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:
https://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
