Takes of Marine Mammals Incidental to Specified Activities; Harbor Activities Related to the Delta IV/Evolved Expendable Launch Vehicle at Vandenberg Air Force Base, CA, 33721-33726 [2011-14335]

Download as PDF Federal Register / Vol. 76, No. 111 / Thursday, June 9, 2011 / Notices beluga whales, and Steller sea lions. The BiOp also concluded that designated critical habitat for these species does not occur in the action area and would not be affected by the survey. USGS must comply with the Relevant Terms and Conditions of the Incidental Take Statement (ITS) corresponding to NMFS’s BiOp issued to both USGS and NMFS’s Office of Protected Resources. USGS must also comply with the mitigation and monitoring requirements included in the IHA in order to be exempt under the ITS in the BiOp from the prohibition on take of listed endangered marine mammal species otherwise prohibited by section 9 of the ESA. Impact on Availability of Affected Species or Stock for Taking for Subsistence Uses Section 101(a)(5)(D) also requires NMFS 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 (deep, offshore waters of the central GOA) that implicate MMPA section 101(a)(5)(D). mstockstill on DSK4VPTVN1PROD with NOTICES will have a negligible impact on the species in the specified geographic region. 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, NMFS finds that USGS’s planned research activities will result in the incidental take of small numbers of marine mammals, by Level B harassment only, and that the total taking from the marine seismic survey will have a negligible impact on the affected species or stocks of marine mammals; and that impacts to affected species or stocks of marine mammals have been mitigated to the lowest level practicable. With its complete application, USGS provided NMFS an EA analyzing the direct, indirect, and cumulative environmental impacts of the specified activities on marine mammals including those listed as threatened or endangered under the ESA. The EA, prepared by LGL on behalf of USGS, is entitled ‘‘Environmental Assessment of a Marine Geophysical Survey by the R/V Marcus G. Langseth in the central Gulf of Alaska, June 2011.’’ After NMFS reviewed and evaluated the USGS EA for consistency with the regulations published by the Council of Environmental Quality (CEQ) and NOAA Administrative Order 216–6, Environmental Review Procedures for Implementing the National Environmental Policy Act, NMFS adopted the USGS EA and issued a Finding of No Significant Impact (FONSI). Endangered Species Act Of the species of marine mammals that may occur in the survey area, several are listed as endangered under the ESA, including the North Pacific right, humpback, sei, fin, blue, and sperm whales, as well as the Cook Inlet DPS of beluga whales and the western stock of Steller sea lions. The eastern stock of Steller sea lions is listed as threatened, as is the southwest Alaska DPS of the sea otter. Under section 7 of the ESA, USGS initiated formal consultation with the NMFS, Office of Protected Resources, Endangered Species Division, on this seismic survey. NMFS’s Office of Protected Resources, Permits, Conservation and Education Division, also initiated formal consultation under section 7 of the ESA with NMFS’s Office of Protected Resources, Endangered Species Division, to obtain a Biological Opinion (BiOp) evaluating the effects of issuing the IHA on threatened and endangered marine mammals and, if appropriate, authorizing incidental take. In June 2011, NMFS issued a BiOp and concluded that the action and issuance of the IHA are not likely to jeopardize the continued existence of the North Pacific right, humpback, sei, fin, blue, and sperm whales, Cook Inlet DPS of VerDate Mar<15>2010 17:56 Jun 08, 2011 Jkt 223001 Authorization NMFS has issued an IHA to USGS for the take, by Level B harassment, of small numbers of marine mammals incidental to conducting a marine geophysical survey in the central GOA, June 2011, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. Dated: June 3, 2011. Helen M. Golde, Deputy Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2011–14331 Filed 6–8–11; 8:45 am] National Oceanic and Atmospheric Administration RIN 0648–XA449 Takes of Marine Mammals Incidental to Specified Activities; Harbor Activities Related to the Delta IV/Evolved Expendable Launch Vehicle at Vandenberg Air Force Base, CA National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; issuance of an incidental harassment authorization. AGENCY: In accordance with the Marine Mammal Protection Act (MMPA) regulations, notification is hereby given that NMFS has issued an Incidental Harassment Authorization (IHA) to United Launch Alliance (ULA), to take marine mammals, by Level B harassment, incidental to conducting Delta Mariner operations, cargo unloading activities, and harbor maintenance activities related to the Delta IV/Evolved Expendable Launch Vehicle (Delta IV/EELV) at south Vandenberg Air Force Base, CA (VAFB). DATES: Effective June 7, 2011, through June 6, 2012. ADDRESSES: A copy of the authorization, application, and associated Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) may be obtained 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, telephoning the contact listed below (see FOR FURTHER INFORMATION CONTACT), or visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/ incidental.htm#applications. Documents cited in this notice may also be viewed, by appointment, during regular business hours, at the aforementioned address. FOR FURTHER INFORMATION CONTACT: Jeannine Cody, NMFS, Office of Protected Resources, NMFS (301) 713– 2289. SUPPLEMENTARY INFORMATION: Fmt 4703 Background Section 101(a)(5)(D) of the MMPA (16 U.S.C. 1371 (a)(5)(D)) directs the Secretary of Commerce to authorize, upon request, the incidental, but not intentional, taking of small numbers of marine mammals of a species or population stock, by U.S. citizens who BILLING CODE 3510–22–P Frm 00022 DEPARTMENT OF COMMERCE SUMMARY: NEPA PO 00000 33721 Sfmt 4703 E:\FR\FM\09JNN1.SGM 09JNN1 33722 Federal Register / Vol. 76, No. 111 / Thursday, June 9, 2011 / Notices mstockstill on DSK4VPTVN1PROD with NOTICES 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 (where relevant). 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. 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. Within 45 days of the close of the public comment period, NMFS must either issue or deny the authorization. NMFS must publish a notice in the Federal Register within 30 days of its determination to issue or deny the authorization. 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]. Summary of Request NMFS received an application on August 4, 2010, from ULA requesting the taking by harassment, of small numbers of marine mammals, incidental to conducting Delta Mariner harbor operations for one year. NMFS reviewed VerDate Mar<15>2010 17:56 Jun 08, 2011 Jkt 223001 the ULA application and identified a number of issues requiring further clarification. After addressing comments from NMFS, ULA modified its application and submitted a revised application on February 11, 2011. NMFS determined that application complete and adequate on March 29, 2011. These activities (i.e., transport vessel operations, cargo movement activities, and harbor maintenance dredging) will support Delta IV/EELV launch activities from the Space Launch Complex at VAFB Harbor and would occur in the vicinity of a known pinniped haul out site (Small Haul-out Site #1) located at 34°33.192′ N, 120° 36.580′ W. Acoustic and visual stimuli generated by the use of heavy equipment during the Delta Mariner off-loading operations and the cargo movement activities, the increased presence of personnel, and harbor maintenance dredging may have the potential to cause California sea lions (Zalophus californianus), Pacific harbor seals (Phoca vitulina), and Northern elephant seals (Mirounga angustirostris) hauled out on Small Haul-out Site #1 to flush into VAFB Harbor or to cause a short-term behavioral disturbance for marine mammals in the area. These types of disturbances are the principal means of marine mammal taking associated with these activities, and ULA has requested an authorization to take 1,075 Pacific harbor seals; 86 California sea lions; and 43 Northern elephant seals by Level B harassment only. Description of the Specified Geographic Region The activities will take place in or near the VAFB harbor located on the central coast of California at 34° 33′ N, 120° 36′ W in the northeast Pacific Ocean. The harbor is 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 rookery. Description of the Specified Activity ULA proposes to conduct Delta IV/ EELV activities (transport vessel operations, harbor maintenance dredging, and cargo movement activities) between June 8, 2011, and June 7, 2012. To date, NMFS has issued eight, 1year IHAs to ULA for the conduct of the same activities from 2002 to 2010, with the last IHA expiring on September 3, 2010 (74 FR 46742, September 11, 2009). The Delta IV/EELV launch vehicle is comprised of a common booster core (CBC), an upper stage, and a payload PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 fairing. The size of the CBC requires it to be transported to the VAFB launch site by a specially designed vessel, the Delta Mariner. To allow safe operation of the Delta Mariner, maintenance dredging within a harbor located in Zone 6 of the Western Space and Missile Center (WSMC) in the Pacific Ocean (33 CFR 334.1130(a)(2)(vi)), ULA requires that the harbor undergo maintenance on a periodic basis. Delta Mariner Operations The Delta Mariner is a 312-foot (ft) (95.1-meter (m)) long, 84-ft (25.6-m) wide, steel-hulled, ocean-going vessel capable of operating at an 8-ft (2.4-m) draft. It is a roll-on, roll-off, selfpropelled ship with an enclosed watertight cargo area, a superstructure forward, and a ramp at the vessel’s stern. Delta Mariner off-loading operations and associated cargo movements within the harbor would occur at a maximum frequency of four times per year. The 8,000-horsepower vessel would enter the harbor stern first at 1.5 to 2 knots (1.72 mi per hour (mph)) during daylight hours at high tide, approaching the wharf at less than 0.75 knot (less than one mph). At least one tugboat will always accompany the Delta Mariner during visits to the VAFB harbor. Departure will occur under the previously-stated conditions. Harbor Maintenance Activities ULA must perform maintenance dredging annually or twice per year, depending on the hardware delivery schedule. To accommodate the Delta Mariner’s draft, ULA would need to remove up to 5,000 cubic yards of sediment per dredging cycle. Dredging would involve the use of heavy equipment, including a clamshell dredge, dredging crane, a small tug, dredging barge, dump trucks, and a skip loader. Dredge operations, from set-up to tear-down, would continue 24-hours a day for approximately 35 days. ULA provides a more detailed description of the work proposed for 2011–2012 in the application and the Final U.S. Air Force EA for Harbor Activities Associated with the Delta IV Program at Vandenberg Air Force Base (ENSR International, 2001) which are available upon request (see ADDRESSES). Cargo Movement Activities Removal of the CBC from the vessel requires the use of an elevating platform transporter (EPT). The EPT is powered by a diesel engine manufactured by Daimler-Chrysler AG (Mercedes), model OM442A, 340HP. ULA would limit cargo unloading activities to periods of E:\FR\FM\09JNN1.SGM 09JNN1 Federal Register / Vol. 76, No. 111 / Thursday, June 9, 2011 / Notices mstockstill on DSK4VPTVN1PROD with NOTICES high tide. It takes approximately two hours to remove the first CBC from the cargo bay and six hours to remove a complement of three CBCs. It would take up to two additional hours to remove remaining cargo which may consist of two upper stages, one set of fairings, and one payload attach fitting. The total of 10 hours includes time required to move the flight hardware to the staging area. Flight hardware items, other than the CBCs, are packaged in containers equipped with retractable casters and tow bars. ULA would tow these containers off the vessel by a standard diesel truck tractor. Noise from the ground support equipment will be muted while inside the cargo bay and will be audible to marine mammals only during the time the equipment is in the harbor area. Cargo movement operations would occur for approximately 43 days (concurrent with the harbor maintenance activities). NMFS outlined the purpose of the program in the Notice of Proposed IHA (76 FR 21862, April 19, 2011). The activities to be conducted have not changed between the Notice of Proposed IHA (76 FR 21862, April 19, 2011) and this final notice announcing the issuance of the IHA. For a more detailed description of the authorized action, including a discussion of associated noise sources from the harbor operations, NMFS refers the reader to the Notice of Proposed IHA (76 FR 21862, April 19, 2011), the application, and associated documents referenced earlier in this document. Comments and Responses NMFS published a notice of receipt of the ULA application and proposed IHA in the Federal Register on April 19, 2011 (76 FR 21862). During the 30-day public comment period, NMFS received two comments from the public and a letter from the Marine Mammal Commission (Commission). Following are the comments from the public commenter and the Commission with NMFS’ responses. Comment 1: One commenter opposed the project on the grounds that it would cause injury or mortality to marine mammals. Response: As described in detail in the Federal Register notice of the proposed IHA (76 FR 21862, April 19, 2011), no marine mammal would be killed or injured as a result of the operations by ULA. The project would only result in Level B behavioral harassment only of a small number of marine mammals. Comment 2: The commenter believed that NMFS inflated the population estimate for the California sea lion stock VerDate Mar<15>2010 17:56 Jun 08, 2011 Jkt 223001 in the Notice of Proposed IHA (76 FR 21862, April 19, 2011). Response: The Notice of Proposed IHA (76 FR 21862, April 19, 2011) states that the estimated population of the U.S. stock of California sea lion ranged from 141,842 to 238,000 animals in 2009. The peer-reviewed source for the estimate is the most recent NMFS Stock Assessment Report (SAR) for California sea lions (Carretta et al., 2010). The SAR is available on the Internet at: http:// www.nmfs.noaa.gov/pr/pdfs/sars/ po2009.pdf. Comment 3: The Commission recommended that NMFS issue the IHA, subject to inclusion of the proposed mitigation and monitoring measures and also recommended that in the case of injury or mortality that may have resulted from the proposed activities, NMFS require that ULA suspend its activities until the agency is able to review the circumstances of the take. Response: NMFS has included all of the mitigation and monitoring measures proposed in the Notice of Proposed IHA (76 FR 21862, April 19, 2011). The IHA’s reporting requirements direct ULA to report all injured or dead marine mammals (regardless of cause) to NMFS. In the unanticipated event that any taking of a marine mammal in a manner prohibited by the IHA occurs, such as an injury, serious injury, or mortality, and are judged to result from the activities, ULA shall report the incident to NMFS immediately. ULA will postpone the activities until NMFS is able to review the circumstances of the take. NMFS will work with ULA to determine whether modifications to the harbor activities are warranted. Description of Marine Mammals in the Area of the Specified Activity The marine mammal species most likely to be harassed incidental to conducting Delta Mariner operations, cargo unloading activities, and harbor maintenance activities at VAFB are the California sea lion, the Pacific harbor seal, and the northern elephant seal. California sea lions, Pacific harbor seals, and northern elephant seals are not listed as threatened or endangered under the U.S. Endangered Species Act of 1973 (ESA; 16 U.S.C. 1531 et seq.), nor are they categorized as depleted under the MMPA. Other cetaceans that have the potential to transit in the vicinity of the VAFB harbor include the short-beaked common dolphin (Delphinus delphis), the Pacific white-sided dolphin (Lagenorhynchus obliquidens), and the gray whale (Eschrichtius robustus). However, these species are rare in the immediate harbor area. NMFS included PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 33723 a more detailed discussion of the status of these stocks and their occurrence at VAFB in the Notice of Proposed IHA (76 FR 21862, April 19, 2011). Potential Effects on Marine Mammals 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 effects of the harbor activities would be limited to short-term startle responses and localized behavioral changes and have the potential to temporarily displace the animals from a haul out site. NMFS would expect the pinnipeds to return to a haulout site within 60 minutes of the disturbance (Allen et al., 1985) and does not expect that the pinnipeds would permanently abandon a haul-out site during the conduct of harbor maintenance and Delta Mariner operations. Finally, no operations would occur on pinniped rookeries; therefore, NMFS does not expect mother and pup separation or crushing of pups to occur. For a more detailed 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, NMFS refers the reader to the Notice of Proposed IHA (76 FR 21862, April 19, 2011), the application, and associated documents. Anticipated Effects on Habitat NMFS does not anticipate that the operations would result in any temporary or permanent effects on the habitats used by the marine mammals in the VAFB harbor, including the food sources they use (i.e. fish and invertebrates). NMFS does not anticipate that there would be any physical damage to any habitat. While NMFS anticipates that the specified activity may result in marine mammals avoiding certain areas due to temporary ensonification and human presence, this impact to habitat is temporary and reversible which NMFS considered in further detail earlier in this document and the Notice of Proposed IHA (76 FR 21862, April 19, 2011), as behavioral modification. E:\FR\FM\09JNN1.SGM 09JNN1 33724 Federal Register / Vol. 76, No. 111 / Thursday, June 9, 2011 / Notices mstockstill on DSK4VPTVN1PROD with NOTICES Mitigation In order to issue an incidental take authorization (ITA) under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and the availability of such species or stock for taking for certain subsistence uses. ULA has based the mitigation measures described herein, to be implemented for the habor operations, on the following: (1) Protocols used during previous operations as approved by NMFS; and (2) Previous IHA applications and IHAs approved and authorized by NMFS. To reduce the potential for disturbance from visual and acoustic stimuli associated with the activities, ULA/and or its designees shall implement the following mitigating measures for marine mammals: (1) If activities occur during nighttime hours, ULA will turn on lighting equipment before dusk and the lights shall 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, ULA shall initiate a gradual start-up of activities to ensure a gradual increase in noise levels; (5) a NMFS-qualified marine mammal observer shall visually monitor the harbor seals on the beach adjacent to the harbor and on rocks for any flushing or other behaviors as a result of ULA’s activities (see Monitoring); (6) the Delta Mariner and accompanying vessels shall 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– 2.0 nm/hr; 2.8–3.7 km/hr) once the vessel is within 3 mi (4.83 km) of the harbor. The vessel shall enter the harbor stern first, approaching the wharf and moorings 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. NMFS has carefully evaluated the applicant’s proposed mitigation measures and has considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal VerDate Mar<15>2010 17:56 Jun 08, 2011 Jkt 223001 species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: (1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals; (2) the proven or likely efficacy of the specific measure to minimize impacts as planned; and (3) the practicability of the measure for applicant implementation. Based on our evaluation of the applicant’s proposed measures, as well as other measures considered by NMFS or recommended by the public, NMFS has determined that the mitigation measures provide the means of effecting the least practicable adverse impacts on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. Monitoring In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth ‘‘requirements pertaining to the monitoring and reporting of such taking’’. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for IHAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area. ULA will sponsor a marine mammal monitor during the present project, in order to implement the mitigation measures thus satisfying the monitoring requirements of the IHA. ULA’s monitoring activities will consist of: (1) A NMFS-qualified and VAFBdesignated biologically trained observer monitoring the area for pinnipeds during all harbor activities. During nighttime activities, the monitor would use a night vision scope. (2) Conducting baseline observations of pinnipeds in the project area prior to initiating project activities. (3) 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. (4) 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. PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 Reporting ULA will notify NMFS two weeks prior to initiation of each activity. After the completion of each activity, ULA will submit a draft final monitoring report to NMFS within 120 days to the Director of Office of Protected Resources at NMFS Headquarters. If ULA receives no comments from NMFS on the draft Final Monitoring Report, NMFS would consider the draft Final Monitoring Report to be the Final Monitoring Report. The final report shall 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 would 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 the specified activity clearly causes the take of a marine mammal in a manner prohibited by this Authorization, such as an injury (Level A Harassment), serious injury or mortality (e.g., shipstrike, gear interaction, and/or entanglement), ULA shall immediately cease the specified activities and immediately report the incident to the Chief of the Permits, Conservation, and Education Division, Office of Protected Resources, NMFS, at 301–713–2289 and/or by e-mail to Michael.Payne@noaa.gov and Jeannine.Cody@noaa.gov, and the Southwest Regional Stranding Coordinators (Joe.Cordaro@noaa.gov and Sarah.Wilkin@noaa.gov). The report must include the following information: (a) Time, date, and location (latitude/ longitude) of the incident; the name and type of vessel involved; the vessel’s speed during and leading up to the incident; description of the incident; status of all sound source use in the 24 hours preceding the incident; water depth; environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility); description of marine mammal observations in the 24 hours preceding the incident; species identification or description of the animal(s) involved; the fate of the animal(s); and photographs or video footage of the animal (if equipment is available). ULA shall not resume its activities until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with ULA to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA E:\FR\FM\09JNN1.SGM 09JNN1 Federal Register / Vol. 76, No. 111 / Thursday, June 9, 2011 / Notices compliance. ULA may not resume their activities until notified by NMFS via letter or e-mail, or telephone. In the event that ULA discovers an injured or dead marine mammal, and the NMFS-qualified marine mammal observer determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), ULA will immediately report the incident to the Chief of the Permits Conservation, and Education Division, Office of Protected Resources, NMFS, and to the NMFS Southwest Stranding Coordinators. The report must include the same information identified in Condition (a). ULA may continue its activities while NMFS reviews the circumstances of the incident. NMFS will work with ULA to determine whether modifications in the activities are appropriate. In the event that ULA discovers an injured or dead marine mammal, and the NMFS-qualified marine mammal observer determines that the injury or death is not associated with or related to the activities authorized in Condition 2 of this Authorization (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), ULA shall report the incident to the Chief of the Permits Conservation, and Education Division, Office of Protected Resources, NMFS, and to the NMFS Southwest Stranding Coordinators within 24 hours of the discovery. ULA shall provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. Estimated Take by Incidental Harassment Except with respect to certain activities not pertinent here, the MMPA defines ‘‘harassment’’ as: mstockstill on DSK4VPTVN1PROD with NOTICES 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]. NMFS anticipates take by Level B harassment only as a result of the harbor maintenance and Delta Mariner operations in the VAFB harbor. Based on ULA’s previous monitoring reports, with the same activities conducted in the operations area NMFS estimates that small numbers of Pacific harbor seals, California sea lions, and northern VerDate Mar<15>2010 17:56 Jun 08, 2011 Jkt 223001 elephant seals could be potentially affected by Level B behavioral harassment over the course of the IHA. For this IHA, NMFS has authorized the take of 1,075 Pacific harbor seals, 86 California sea lions, and 43 northern elephant seals. Because of the required mitigation measures and the likelihood that some pinnipeds will avoid the area due to wave inundation of the haulout area, NMFS expects no injury, serious injury, or mortality to occur, and no takes by injury or mortality are authorized. Negligible Impact and Small Numbers Analysis and Determination 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.’’ In making a negligible impact determination, NMFS considers a variety of factors, including but not limited to: (1) The number of anticipated mortalities; (2) The number and nature of anticipated injuries; (3) The number, nature, and intensity, and duration of Level B harassment; and (4) The context in which the takes occur. As mentioned previously, NMFS estimates that three species of marine mammals could be potentially affected by Level B harassment over the course of the IHA. For each species, these numbers are small (each, less than two percent) relative to the population size. NMFS does not anticipate takes by Level A harassment, serious injury, or mortality to occur as a result of ULA’s activities, and none are authorized. These species may exhibit behavioral modifications, including temporarily vacating the area during the proposed harbor maintenance and Delta Mariner operations to avoid the resultant acoustic and visual disturbances. However, NMFS anticipates only shortterm behavioral disturbance due to the brief duration of the proposed activities; the availability of alternate areas near the VAFB harbor for pinnipeds to avoid the resultant noise from the maintenance and vessel operations; and that no operations would occur on pinniped rookeries. Due to the nature, degree, and context of the behavioral harassment anticipated, the activities are not expected to impact rates of recruitment or survival. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals PO 00000 Frm 00026 Fmt 4703 Sfmt 4703 33725 and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS finds that the impact of conducting harbor maintenance and vessel operations from June, 2011, through June, 2012, will result in the incidental take of small numbers of marine mammals, by Level B behavioral harassment only, and that the total taking from the ULA’s 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 There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes. Endangered Species Act (ESA) This action will not affect species listed under the ESA that are under NMFS’ jurisdiction. VAFB formally consulted with the U.S. Fish and Wildlife Service in 1998 on the possible take of southern sea otters during ULA’s 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 (NEPA) In 2001, the USAF prepared an Environmental Assessment (EA) for Harbor Activities Associated with the Delta IV Program at VAFB. In 2005, NMFS prepared an EA augmenting the information contained in the USAF EA and issued a Finding of No Significant Impact (FONSI) on the issuance of an IHA for ULA’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). ULA’s activities and impacts for 2011–2012 are within the scope of NMFS’ 2005 EA and FONSI. NMFS has again reviewed the 2005 EA and determined that there are no new direct, E:\FR\FM\09JNN1.SGM 09JNN1 33726 Federal Register / Vol. 76, No. 111 / Thursday, June 9, 2011 / Notices indirect or cumulative impacts to the human and natural environment associated with the IHA requiring evaluation in a supplemental EA and NMFS, therefore, reaffirms the 2005 FONSI. A copy of the EA and the FONSI for this activity is available upon request (see ADDRESSES). Authorization As a result of these determinations, NMFS has issued an IHA to ULA to take marine mammals, by Level B harassment only, incidental to conducting Delta Mariner operations, cargo unloading activities, and harbor maintenance activities at south VAFB, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. Dated: June 6, 2011. Helen M. Golde, Deputy Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2011–14335 Filed 6–8–11; 8:45 am] BILLING CODE 3510–22–P CONSUMER PRODUCT SAFETY COMMISSION Sunshine Act Meeting Notice Wednesday, June 15, 2011; 10 a.m.–11 a.m. TIME AND DATE: Hearing Room 420, Bethesda Towers, 4330 East-West Highway, Bethesda, Maryland. PLACE: STATUS: Closed to the Public. Matter To Be Considered Compliance Status Report The Commission staff will brief the Commission on the status of compliance matters. For a recorded message containing the latest agenda information, call (301) 504–7948. CONTACT PERSON FOR MORE INFORMATION: mstockstill on DSK4VPTVN1PROD with NOTICES Todd A. Stevenson, Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East-West Highway, Bethesda, MD 20814, (301) 504–7923. Dated: June 7, 2011. Todd A Stevenson, Secretary. [FR Doc. 2011–14485 Filed 6–7–11; 4:15 pm] BILLING CODE 6355–01–P VerDate Mar<15>2010 19:07 Jun 08, 2011 Jkt 223001 COUNCIL ON ENVIRONMENTAL QUALITY National Ocean Council; Strategic Action Plan Content Outlines Council on Environmental Quality. ACTION: Notice of Availability, Strategic Action Plan Content Outlines; Request for Comments. AGENCY: On July 19, 2010, President Obama signed Executive Order 13547 establishing a National Policy for the Stewardship of the Ocean, our Coasts, and the Great Lakes (‘‘National Ocean Policy’’). The National Ocean Policy provides an implementation strategy, which describes nine priority objectives that seek to address some of the most pressing challenges facing the ocean, our coasts, and the Great Lakes. The National Ocean Council is responsible for developing strategic action plans for each of the nine priority objectives. As a first step, Federal interagency writing teams have developed content outlines for each draft strategic action plan. The NOC is seeking public review and comment of these content outlines. The purpose of the draft content outlines (outlines) is to provide the public with an initial view of potential actions that could be taken to further the national priority objectives. As such, they are an interim step toward development of the first full draft of each strategic action plan. In developing the outlines, the writing teams were informed by the comments received during an initial public scoping period that closed on April 29. Each outline presents in bulleted form potential actions to further the particular priority objective. It describes the reasons for taking the action, expected outcomes and milestones, gaps and needs in science and technology, and the timeframe for completing the action. The outlines also provide an overview of the priority objective, greater context for the strategic action plan in implementing the National Ocean Policy, and an overview of the preparation of the plan . Public comments received on the outlines will be collated and posted on the NOC Web site. The comments on the outlines will inform the preparation of full draft strategic action plans, which will be released for public review in the fall of 2011, allowing additional opportunity for the public to provide comments. Final strategic action plans are expected to be completed by early 2012. DATES: Comments should be submitted on or before July 2, 2011. SUMMARY: PO 00000 Frm 00027 Fmt 4703 Sfmt 4703 Content outlines can be downloaded here: http:// www.whitehouse.gov/administration/ eop/oceans. Comments should be submitted electronically at http:// www.WhiteHouse.gov/administration/ eop/oceans/comment or can be sent by mail to: National Ocean Council, 722 Jackson Place, NW., Washington, DC 20503. Comments and input may also be provided in person by participating in regional listening sessions that will be convened throughout the U.S. in the month of June. You can learn more about these regional listening sessions by visiting http://www.WhiteHouse.gov/ oceans. ADDRESSES: FOR FURTHER INFORMATION CONTACT: Michael Weiss, Deputy Associate Director for Ocean and Coastal Policy, at (202) 456–3892. On July 19, 2010, President Obama signed Executive Order 13547 establishing a National Policy for the Stewardship of the Ocean, our Coasts, and the Great Lakes (‘‘National Ocean Policy’’). That Executive Order adopts the Final Recommendations of the Interagency Ocean Policy Task Force and directs Federal agencies to take the appropriate steps to implement them. The Executive Order creates an interagency National Ocean Council (NOC) to strengthen ocean governance and coordination, identifies nine priority actions for the NOC to pursue, and adopts a flexible framework for effective coastal and marine spatial planning to address conservation, economic activity, user conflict, and sustainable use of the ocean, our coasts, and the Great Lakes. The National Ocean Policy provides a comprehensive approach, based on science and technology, to uphold our stewardship responsibilities and ensure accountability for our actions to present and future generations. The Obama Administration intends, through the National Ocean Policy, to provide a model of balanced, productive, efficient, sustainable, and informed ocean, coastal, and Great Lakes use, management, and conservation. The Final Recommendations provide an implementation strategy that describes a clear set of priority objectives that our Nation should pursue to further the National Policy. The nine priority objectives seek to address some of the most pressing challenges facing the ocean, our coasts, and the Great Lakes. The nine priority objectives are identified below. Additional information about each priority may be found at http:// www.WhiteHouse.gov/oceans. SUPPLEMENTARY INFORMATION: E:\FR\FM\09JNN1.SGM 09JNN1

Agencies

[Federal Register Volume 76, Number 111 (Thursday, June 9, 2011)]
[Notices]
[Pages 33721-33726]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-14335]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XA449


Takes of Marine Mammals Incidental to Specified Activities; 
Harbor Activities Related to the Delta IV/Evolved Expendable Launch 
Vehicle at Vandenberg Air Force Base, CA

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
regulations, notification is hereby given that NMFS has issued an 
Incidental Harassment Authorization (IHA) to United Launch Alliance 
(ULA), to take marine mammals, by Level B harassment, incidental to 
conducting Delta Mariner operations, cargo unloading activities, and 
harbor maintenance activities related to the Delta IV/Evolved 
Expendable Launch Vehicle (Delta IV/EELV) at south Vandenberg Air Force 
Base, CA (VAFB).

DATES: Effective June 7, 2011, through June 6, 2012.

ADDRESSES: A copy of the authorization, application, and associated 
Environmental Assessment (EA) and Finding of No Significant Impact 
(FONSI) may be obtained 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, telephoning the contact listed below (see FOR FURTHER 
INFORMATION CONTACT), or visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
    Documents cited in this notice may also be viewed, by appointment, 
during regular business hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT: Jeannine Cody, NMFS, Office of 
Protected Resources, NMFS (301) 713-2289.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(D) of the MMPA (16 U.S.C. 1371 (a)(5)(D)) directs 
the Secretary of Commerce to authorize, upon request, the incidental, 
but not intentional, taking of small numbers of marine mammals of a 
species or population stock, by U.S. citizens who

[[Page 33722]]

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 (where relevant). 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. 
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. Within 45 days of the 
close of the public comment period, NMFS must either issue or deny the 
authorization. NMFS must publish a notice in the Federal Register 
within 30 days of its determination to issue or deny the authorization.
    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].

Summary of Request

    NMFS received an application on August 4, 2010, from ULA requesting 
the taking by harassment, of small numbers of marine mammals, 
incidental to conducting Delta Mariner harbor operations for one year. 
NMFS reviewed the ULA application and identified a number of issues 
requiring further clarification. After addressing comments from NMFS, 
ULA modified its application and submitted a revised application on 
February 11, 2011. NMFS determined that application complete and 
adequate on March 29, 2011.
    These activities (i.e., transport vessel operations, cargo movement 
activities, and harbor maintenance dredging) will support Delta IV/EELV 
launch activities from the Space Launch Complex at VAFB Harbor and 
would occur in the vicinity of a known pinniped haul out site (Small 
Haul-out Site 1) located at 34[deg]33.192' N, 120[deg] 36.580' 
W.
    Acoustic and visual stimuli generated by the use of heavy equipment 
during the Delta Mariner off-loading operations and the cargo movement 
activities, the increased presence of personnel, and harbor maintenance 
dredging may have the potential to cause California sea lions (Zalophus 
californianus), Pacific harbor seals (Phoca vitulina), and Northern 
elephant seals (Mirounga angustirostris) hauled out on Small Haul-out 
Site 1 to flush into VAFB Harbor or to cause a short-term 
behavioral disturbance for marine mammals in the area. These types of 
disturbances are the principal means of marine mammal taking associated 
with these activities, and ULA has requested an authorization to take 
1,075 Pacific harbor seals; 86 California sea lions; and 43 Northern 
elephant seals by Level B harassment only.

Description of the Specified Geographic Region

    The 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. The harbor is 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 rookery.

Description of the Specified Activity

    ULA proposes to conduct Delta IV/EELV activities (transport vessel 
operations, harbor maintenance dredging, and cargo movement activities) 
between June 8, 2011, and June 7, 2012.
    To date, NMFS has issued eight, 1-year IHAs to ULA for the conduct 
of the same activities from 2002 to 2010, with the last IHA expiring on 
September 3, 2010 (74 FR 46742, September 11, 2009).
    The Delta IV/EELV launch vehicle is comprised of a common booster 
core (CBC), an upper stage, and a payload fairing. The size of the CBC 
requires it to be transported to the VAFB launch site by a specially 
designed vessel, the Delta Mariner. To allow safe operation of the 
Delta Mariner, maintenance dredging within a harbor located in Zone 6 
of the Western Space and Missile Center (WSMC) in the Pacific Ocean (33 
CFR 334.1130(a)(2)(vi)), ULA requires that the harbor undergo 
maintenance on a periodic basis.

Delta Mariner Operations

    The Delta Mariner is a 312-foot (ft) (95.1-meter (m)) long, 84-ft 
(25.6-m) wide, steel-hulled, ocean-going vessel capable of operating at 
an 8-ft (2.4-m) draft. It is a roll-on, roll-off, self-propelled ship 
with an enclosed watertight cargo area, a superstructure forward, and a 
ramp at the vessel's stern.
    Delta Mariner off-loading operations and associated cargo movements 
within the harbor would occur at a maximum frequency of four times per 
year. The 8,000-horsepower vessel would enter the harbor stern first at 
1.5 to 2 knots (1.72 mi per hour (mph)) during daylight hours at high 
tide, approaching the wharf at less than 0.75 knot (less than one mph). 
At least one tugboat will always accompany the Delta Mariner during 
visits to the VAFB harbor. Departure will occur under the previously-
stated conditions.

Harbor Maintenance Activities

    ULA must perform maintenance dredging annually or twice per year, 
depending on the hardware delivery schedule. To accommodate the Delta 
Mariner's draft, ULA would need to remove up to 5,000 cubic yards of 
sediment per dredging cycle. Dredging would involve the use of heavy 
equipment, including a clamshell dredge, dredging crane, a small tug, 
dredging barge, dump trucks, and a skip loader. Dredge operations, from 
set-up to tear-down, would continue 24-hours a day for approximately 35 
days.
    ULA provides a more detailed description of the work proposed for 
2011-2012 in the application and the Final U.S. Air Force EA for Harbor 
Activities Associated with the Delta IV Program at Vandenberg Air Force 
Base (ENSR International, 2001) which are available upon request (see 
ADDRESSES).

Cargo Movement Activities

    Removal of the CBC from the vessel requires the use of an elevating 
platform transporter (EPT). The EPT is powered by a diesel engine 
manufactured by Daimler-Chrysler AG (Mercedes), model OM442A, 340HP. 
ULA would limit cargo unloading activities to periods of

[[Page 33723]]

high tide. It takes approximately two hours to remove the first CBC 
from the cargo bay and six hours to remove a complement of three CBCs. 
It would take up to two additional hours to remove remaining cargo 
which may consist of two upper stages, one set of fairings, and one 
payload attach fitting. The total of 10 hours includes time required to 
move the flight hardware to the staging area. Flight hardware items, 
other than the CBCs, are packaged in containers equipped with 
retractable casters and tow bars. ULA would tow these containers off 
the vessel by a standard diesel truck tractor. Noise from the ground 
support equipment will be muted while inside the cargo bay and will be 
audible to marine mammals only during the time the equipment is in the 
harbor area. Cargo movement operations would occur for approximately 43 
days (concurrent with the harbor maintenance activities).
    NMFS outlined the purpose of the program in the Notice of Proposed 
IHA (76 FR 21862, April 19, 2011). The activities to be conducted have 
not changed between the Notice of Proposed IHA (76 FR 21862, April 19, 
2011) and this final notice announcing the issuance of the IHA. For a 
more detailed description of the authorized action, including a 
discussion of associated noise sources from the harbor operations, NMFS 
refers the reader to the Notice of Proposed IHA (76 FR 21862, April 19, 
2011), the application, and associated documents referenced earlier in 
this document.

Comments and Responses

    NMFS published a notice of receipt of the ULA application and 
proposed IHA in the Federal Register on April 19, 2011 (76 FR 21862). 
During the 30-day public comment period, NMFS received two comments 
from the public and a letter from the Marine Mammal Commission 
(Commission). Following are the comments from the public commenter and 
the Commission with NMFS' responses.
    Comment 1: One commenter opposed the project on the grounds that it 
would cause injury or mortality to marine mammals.
    Response: As described in detail in the Federal Register notice of 
the proposed IHA (76 FR 21862, April 19, 2011), no marine mammal would 
be killed or injured as a result of the operations by ULA. The project 
would only result in Level B behavioral harassment only of a small 
number of marine mammals.
    Comment 2: The commenter believed that NMFS inflated the population 
estimate for the California sea lion stock in the Notice of Proposed 
IHA (76 FR 21862, April 19, 2011).
    Response: The Notice of Proposed IHA (76 FR 21862, April 19, 2011) 
states that the estimated population of the U.S. stock of California 
sea lion ranged from 141,842 to 238,000 animals in 2009. The peer-
reviewed source for the estimate is the most recent NMFS Stock 
Assessment Report (SAR) for California sea lions (Carretta et al., 
2010). The SAR is available on the Internet at: http://www.nmfs.noaa.gov/pr/pdfs/sars/po2009.pdf.
    Comment 3: The Commission recommended that NMFS issue the IHA, 
subject to inclusion of the proposed mitigation and monitoring measures 
and also recommended that in the case of injury or mortality that may 
have resulted from the proposed activities, NMFS require that ULA 
suspend its activities until the agency is able to review the 
circumstances of the take.
    Response: NMFS has included all of the mitigation and monitoring 
measures proposed in the Notice of Proposed IHA (76 FR 21862, April 19, 
2011). The IHA's reporting requirements direct ULA to report all 
injured or dead marine mammals (regardless of cause) to NMFS. In the 
unanticipated event that any taking of a marine mammal in a manner 
prohibited by the IHA occurs, such as an injury, serious injury, or 
mortality, and are judged to result from the activities, ULA shall 
report the incident to NMFS immediately. ULA will postpone the 
activities until NMFS is able to review the circumstances of the take. 
NMFS will work with ULA to determine whether modifications to the 
harbor activities are warranted.

Description of Marine Mammals in the Area of the Specified Activity

    The marine mammal species most likely to be harassed incidental to 
conducting Delta Mariner operations, cargo unloading activities, and 
harbor maintenance activities at VAFB are the California sea lion, the 
Pacific harbor seal, and the northern elephant seal. California sea 
lions, Pacific harbor seals, and northern elephant seals are not listed 
as threatened or endangered under the U.S. Endangered Species Act of 
1973 (ESA; 16 U.S.C. 1531 et seq.), nor are they categorized as 
depleted under the MMPA.
    Other cetaceans that have the potential to transit in the vicinity 
of the VAFB harbor include the short-beaked common dolphin (Delphinus 
delphis), the Pacific white-sided dolphin (Lagenorhynchus obliquidens), 
and the gray whale (Eschrichtius robustus). However, these species are 
rare in the immediate harbor area. NMFS included a more detailed 
discussion of the status of these stocks and their occurrence at VAFB 
in the Notice of Proposed IHA (76 FR 21862, April 19, 2011).

Potential Effects on Marine Mammals

    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 effects of the harbor activities would be limited to short-term 
startle responses and localized behavioral changes and have the 
potential to temporarily displace the animals from a haul out site. 
NMFS would expect the pinnipeds to return to a haulout site within 60 
minutes of the disturbance (Allen et al., 1985) and does not expect 
that the pinnipeds would permanently abandon a haul-out site during the 
conduct of harbor maintenance and Delta Mariner operations.
    Finally, no operations would occur on pinniped rookeries; 
therefore, NMFS does not expect mother and pup separation or crushing 
of pups to occur. For a more detailed 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, NMFS refers the reader to the Notice of Proposed 
IHA (76 FR 21862, April 19, 2011), the application, and associated 
documents.

Anticipated Effects on Habitat

    NMFS does not anticipate that the operations would result in any 
temporary or permanent effects on the habitats used by the marine 
mammals in the VAFB harbor, including the food sources they use (i.e. 
fish and invertebrates). NMFS does not anticipate that there would be 
any physical damage to any habitat. While NMFS anticipates that the 
specified activity may result in marine mammals avoiding certain areas 
due to temporary ensonification and human presence, this impact to 
habitat is temporary and reversible which NMFS considered in further 
detail earlier in this document and the Notice of Proposed IHA (76 FR 
21862, April 19, 2011), as behavioral modification.

[[Page 33724]]

Mitigation

    In order to issue an incidental take authorization (ITA) under 
section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible 
methods of taking pursuant to such activity, and other means of 
effecting the least practicable impact on such species or stock and its 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance, and the availability of such species or 
stock for taking for certain subsistence uses.
    ULA has based the mitigation measures described herein, to be 
implemented for the habor operations, on the following:
    (1) Protocols used during previous operations as approved by NMFS; 
and
    (2) Previous IHA applications and IHAs approved and authorized by 
NMFS.
    To reduce the potential for disturbance from visual and acoustic 
stimuli associated with the activities, ULA/and or its designees shall 
implement the following mitigating measures for marine mammals: (1) If 
activities occur during nighttime hours, ULA will turn on lighting 
equipment before dusk and the lights shall 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, ULA shall initiate a gradual 
start-up of activities to ensure a gradual increase in noise levels; 
(5) a NMFS-qualified marine mammal observer shall visually monitor the 
harbor seals on the beach adjacent to the harbor and on rocks for any 
flushing or other behaviors as a result of ULA's activities (see 
Monitoring); (6) the Delta Mariner and accompanying vessels shall 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 (1.5-2.0 nm/hr; 2.8-3.7 
km/hr) once the vessel is within 3 mi (4.83 km) of the harbor. The 
vessel shall enter the harbor stern first, approaching the wharf and 
moorings 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.
    NMFS has carefully evaluated the applicant's proposed mitigation 
measures and has considered a range of other measures in the context of 
ensuring that NMFS prescribes the means of effecting the least 
practicable 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: (1) 
The manner in which, and the degree to which, the successful 
implementation of the measure is expected to minimize adverse impacts 
to marine mammals; (2) the proven or likely efficacy of the specific 
measure to minimize impacts as planned; and (3) the practicability of 
the measure for applicant implementation.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS or recommended by the public, 
NMFS has determined that the mitigation measures provide the means of 
effecting the least practicable adverse impacts on marine mammals 
species or stocks and their habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance.

Monitoring

    In order to issue an ITA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking''. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for IHAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and of the level of taking or impacts on populations of marine 
mammals that are expected to be present in the action area.
    ULA will sponsor a marine mammal monitor during the present 
project, in order to implement the mitigation measures thus satisfying 
the monitoring requirements of the IHA. ULA's monitoring activities 
will consist of:
    (1) A NMFS-qualified and VAFB-designated biologically trained 
observer monitoring the area for pinnipeds during all harbor 
activities. During nighttime activities, the monitor would use a night 
vision scope.
    (2) Conducting baseline observations of pinnipeds in the project 
area prior to initiating project activities.
    (3) 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.
    (4) 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

    ULA will notify NMFS two weeks prior to initiation of each 
activity. After the completion of each activity, ULA will submit a 
draft final monitoring report to NMFS within 120 days to the Director 
of Office of Protected Resources at NMFS Headquarters. If ULA receives 
no comments from NMFS on the draft Final Monitoring Report, NMFS would 
consider the draft Final Monitoring Report to be the Final Monitoring 
Report.
    The final report shall 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 would 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 the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by this 
Authorization, such as an injury (Level A Harassment), serious injury 
or mortality (e.g., ship-strike, gear interaction, and/or 
entanglement), ULA shall immediately cease the specified activities and 
immediately report the incident to the Chief of the Permits, 
Conservation, and Education Division, Office of Protected Resources, 
NMFS, at 301-713-2289 and/or by e-mail to Michael.Payne@noaa.gov and 
Jeannine.Cody@noaa.gov, and the Southwest Regional Stranding 
Coordinators (Joe.Cordaro@noaa.gov and Sarah.Wilkin@noaa.gov). The 
report must include the following information: (a) Time, date, and 
location (latitude/longitude) of the incident; the name and type of 
vessel involved; the vessel's speed during and leading up to the 
incident; description of the incident; status of all sound source use 
in the 24 hours preceding the incident; water depth; environmental 
conditions (e.g., wind speed and direction, Beaufort sea state, cloud 
cover, and visibility); description of marine mammal observations in 
the 24 hours preceding the incident; species identification or 
description of the animal(s) involved; the fate of the animal(s); and 
photographs or video footage of the animal (if equipment is available).
    ULA shall not resume its activities until NMFS is able to review 
the circumstances of the prohibited take. NMFS shall work with ULA to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA

[[Page 33725]]

compliance. ULA may not resume their activities until notified by NMFS 
via letter or e-mail, or telephone.
    In the event that ULA discovers an injured or dead marine mammal, 
and the NMFS-qualified marine mammal observer determines that the cause 
of the injury or death is unknown and the death is relatively recent 
(i.e., in less than a moderate state of decomposition as described in 
the next paragraph), ULA will immediately report the incident to the 
Chief of the Permits Conservation, and Education Division, Office of 
Protected Resources, NMFS, and to the NMFS Southwest Stranding 
Coordinators. The report must include the same information identified 
in Condition (a). ULA may continue its activities while NMFS reviews 
the circumstances of the incident. NMFS will work with ULA to determine 
whether modifications in the activities are appropriate.
    In the event that ULA discovers an injured or dead marine mammal, 
and the NMFS-qualified marine mammal observer determines that the 
injury or death is not associated with or related to the activities 
authorized in Condition 2 of this Authorization (e.g., previously 
wounded animal, carcass with moderate to advanced decomposition, or 
scavenger damage), ULA shall report the incident to the Chief of the 
Permits Conservation, and Education Division, Office of Protected 
Resources, NMFS, and to the NMFS Southwest Stranding Coordinators 
within 24 hours of the discovery. ULA shall provide photographs or 
video footage (if available) or other documentation of the stranded 
animal sighting to NMFS and the Marine Mammal Stranding Network.

Estimated Take by Incidental 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].

    NMFS anticipates take by Level B harassment only as a result of the 
harbor maintenance and Delta Mariner operations in the VAFB harbor. 
Based on ULA's previous monitoring reports, with the same activities 
conducted in the operations area NMFS estimates that small numbers of 
Pacific harbor seals, California sea lions, and northern elephant seals 
could be potentially affected by Level B behavioral harassment over the 
course of the IHA.
    For this IHA, NMFS has authorized the take of 1,075 Pacific harbor 
seals, 86 California sea lions, and 43 northern elephant seals. Because 
of the required mitigation measures and the likelihood that some 
pinnipeds will avoid the area due to wave inundation of the haulout 
area, NMFS expects no injury, serious injury, or mortality to occur, 
and no takes by injury or mortality are authorized.

Negligible Impact and Small Numbers Analysis and Determination

    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.'' In making a negligible impact determination, 
NMFS considers a variety of factors, including but not limited to:
    (1) The number of anticipated mortalities;
    (2) The number and nature of anticipated injuries;
    (3) The number, nature, and intensity, and duration of Level B 
harassment; and
    (4) The context in which the takes occur.
    As mentioned previously, NMFS estimates that three species of 
marine mammals could be potentially affected by Level B harassment over 
the course of the IHA. For each species, these numbers are small (each, 
less than two percent) relative to the population size.
    NMFS does not anticipate takes by Level A harassment, serious 
injury, or mortality to occur as a result of ULA's activities, and none 
are authorized. These species may exhibit behavioral modifications, 
including temporarily vacating the area during the proposed harbor 
maintenance and Delta Mariner operations to avoid the resultant 
acoustic and visual disturbances. However, NMFS anticipates only short-
term behavioral disturbance due to the brief duration of the proposed 
activities; the availability of alternate areas near the VAFB harbor 
for pinnipeds to avoid the resultant noise from the maintenance and 
vessel operations; and that no operations would occur on pinniped 
rookeries. Due to the nature, degree, and context of the behavioral 
harassment anticipated, the activities are not expected to impact rates 
of recruitment or survival.
    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, NMFS finds that the impact of conducting harbor maintenance 
and vessel operations from June, 2011, through June, 2012, will result 
in the incidental take of small numbers of marine mammals, by Level B 
behavioral harassment only, and that the total taking from the ULA's 
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

    There are no relevant subsistence uses of marine mammals implicated 
by this action. Therefore, NMFS has determined that the total taking of 
affected species or stocks would not have an unmitigable adverse impact 
on the availability of such species or stocks for taking for 
subsistence purposes.

Endangered Species Act (ESA)

    This action will not affect species listed under the ESA that are 
under NMFS' jurisdiction. VAFB formally consulted with the U.S. Fish 
and Wildlife Service in 1998 on the possible take of southern sea 
otters during ULA's 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 (NEPA)

    In 2001, the USAF prepared an Environmental Assessment (EA) for 
Harbor Activities Associated with the Delta IV Program at VAFB. In 
2005, NMFS prepared an EA augmenting the information contained in the 
USAF EA and issued a Finding of No Significant Impact (FONSI) on the 
issuance of an IHA for ULA'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). ULA's activities and impacts for 2011-2012 are 
within the scope of NMFS' 2005 EA and FONSI. NMFS has again reviewed 
the 2005 EA and determined that there are no new direct,

[[Page 33726]]

indirect or cumulative impacts to the human and natural environment 
associated with the IHA requiring evaluation in a supplemental EA and 
NMFS, therefore, reaffirms the 2005 FONSI. A copy of the EA and the 
FONSI for this activity is available upon request (see ADDRESSES).

Authorization

    As a result of these determinations, NMFS has issued an IHA to ULA 
to take marine mammals, by Level B harassment only, incidental to 
conducting Delta Mariner operations, cargo unloading activities, and 
harbor maintenance activities at south VAFB, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated.

    Dated: June 6, 2011.
Helen M. Golde,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2011-14335 Filed 6-8-11; 8:45 am]
BILLING CODE 3510-22-P