Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to U.S. Air Force Launches, Aircraft and Helicopter Operations, and Harbor Activities Related to Launch Vehicles From Vandenberg Air Force Base (VAFB), California, 10016-10028 [2014-03958]
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Federal Register / Vol. 79, No. 36 / Monday, February 24, 2014 / Rules and Regulations
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Dated: January 27, 2014.
David L. Miller,
Associate Administrator, Federal Insurance
and Mitigation Administration, Department
of Homeland Security, Federal Emergency
Management Agency.
[FR Doc. 2014–03762 Filed 2–21–14; 8:45 am]
BILLING CODE 9110–12–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 73
[MB Docket No. 09–189; RM–11564; DA 14–
112]
Radio Broadcasting Services; Kahuku
and Kualapuu, Hawaii
Federal Communications
Commission.
ACTION: Final rule, denial of petition for
reconsideration.
AGENCY:
The Media Bureau denies a
Petition for Reconsideration filed by
Kona Coast Radio, LLC (‘‘Kona’’) of the
dismissal of its Petition for Rule Making
for a new FM allotment at Kahuku,
Hawaii, because Kona had not
demonstrated error with the staff’s
decision. The Bureau also affirmed the
grant of a Counterproposal filed by
Kemp Communications, Inc. for a new
allotment at Kualapuu, Hawaii, and a
minor modification application filed by
Big D Consulting, Inc. See
SUPPLEMENTARY INFORMATION.
DATES: Effective February 24, 2014.
FOR FURTHER INFORMATION CONTACT:
Andrew J. Rhodes or Deborah Dupont,
Media Bureau, (202) 418–2700.
rmajette on DSK2TPTVN1PROD with RULES
SUMMARY:
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This is a
summary of the Commission’s
Memorandum Opinion and Order, DA
14–112, adopted January 30, 2014, and
released January 31, 2014. The full text
of this Commission decision is available
for inspection and copying during
normal business hours in the
Commission’s Reference Center 445
12th Street SW., Washington, DC 20554.
The complete text of this decision may
also be purchased from the
Commission’s duplicating contractor,
Best Copy and Printing, Inc., 445 12th
Street SW., Room CY–B402,
Washington, DC, 20054, telephone 1–
800–378–3160 or www.BCPIWEB.com.
This document is not subject to the
Congressional Review Act. (The
Commission is, therefore, not required
to submit a copy of this Memorandum
Opinion and Order to the General
Accounting Office pursuant to the
Congressional Review Act, see 5 U.S.C.
801(a)(1)(A), because the Petition for
Reconsideration was denied.
The Bureau ruled that Kona’s Petition
for Rule Making was properly dismissed
for three reasons. First, Kona had
submitted a late filed expression of
interest in the proposed allotment that
would prejudice another party in
violation of Commission policy. Second,
although Kona’s Petition for Rule
Making was filed on July 24, 2009, it
was improperly addressed and not
received at the Office of the Secretary
until August 18, 2009. Because an
intervening and conflicting application
was filed by Big D Consulting, Inc., on
August 10, 2009, the application had
`
cut-off protection vis-a-vis Kona’s filing,
and, therefore, Kona’s Petition for Rule
SUPPLEMENTARY INFORMATION:
PO 00000
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Fmt 4700
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Making was properly dismissed. Third,
Kona had not submitted sufficient
grounds for waiver of the filing
requirement that pleadings in FM
allotment rule making proceedings be
officially filed at the Secretary’s office.
See also Report and Order, 76 FR 12292,
March 7, 2011.
Federal Communications Commission.
Peter H. Doyle,
Chief, Audio Division, Media Bureau.
[FR Doc. 2014–03498 Filed 2–21–14; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 217
[Docket No. 130820738–4114–02]
RIN 0648–BD62
Taking and Importing Marine
Mammals; Taking Marine Mammals
Incidental to U.S. Air Force Launches,
Aircraft and Helicopter Operations, and
Harbor Activities Related to Launch
Vehicles From Vandenberg Air Force
Base (VAFB), California
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
NMFS, upon application from
the U.S. Air Force (USAF), is issuing
regulations pursuant to the Marine
Mammal Protection Act (MMPA) to
SUMMARY:
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Federal Register / Vol. 79, No. 36 / Monday, February 24, 2014 / Rules and Regulations
rmajette on DSK2TPTVN1PROD with RULES
govern the unintentional taking of
marine mammals incidental to
launches, aircraft and helicopter
operations from VAFB launch
complexes and Delta Mariner
operations, cargo unloading activities,
and harbor maintenance dredging in
support of the Delta IV/Evolved
Expendable Launch Vehicle (EELV)
launch activity on south VAFB for the
period March 2014 to March 2019.
These regulations, which allow for the
issuance of Letters of Authorization
(LOAs) for the incidental take of marine
mammals during the described activities
and specified timeframes, prescribe the
permissible methods of taking and other
means of effecting the least practicable
adverse impact on marine mammal
species or stocks and their habitat, as
well as requirements pertaining to the
monitoring and reporting of such taking.
DATES: Effective from March 26, 2014
through March 26, 2019.
ADDRESSES: A copy of the application
and our Environmental Assessment (EA)
and Finding of No Significant Impact
(FONSI) may be obtained by visiting the
Internet at: https://www.nmfs.noaa.gov/
pr/permits/incidental.htm#applications.
Documents cited in this final rule may
also be viewed, by appointment, during
regular business hours at 1315 East West
Highway, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT:
Candace Nachman, Office of Protected
Resources, NMFS, (301) 427–8401.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and (D) of the
Marine Mammal Protection Act (MMPA;
16 U.S.C. 1361 et seq.) direct the
Secretary of Commerce (Secretary) to
allow, upon request, the incidental, but
not intentional taking of small numbers
of marine mammals by U.S. citizens
who engage in a specified activity (other
than commercial fishing) within a
specified geographical region if certain
findings are made and either regulations
are issued or, if the taking is limited to
harassment, notice of a proposed
authorization is provided to the public
for review.
Authorization for incidental takings
may be granted if NMFS finds that the
taking will have a negligible impact on
the species or stock(s), will not have an
unmitigable adverse impact on the
availability of the species or stock(s) for
certain subsistence uses, and that the
permissible methods of taking and
requirements pertaining to the
mitigation, monitoring and reporting of
such taking are set forth. NMFS has
defined ‘‘negligible impact’’ in 50 CFR
216.103 as: ‘‘an impact resulting from
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the specified activity that cannot be
reasonably expected to, and is not
reasonably likely to, adversely affect the
species or stock through effects on
annual rates of recruitment or survival.’’
The National Defense Authorization
Act of 2004 (NDAA) (Pub. L. 108–136)
removed the ‘‘small numbers’’ and
‘‘specified geographical region’’
limitations and amended the definition
of ‘‘harassment’’ as it applies to a
‘‘military readiness activity’’ to read as
follows (Section 3(18)(B) of the MMPA):
‘‘(i) any act that injures or has the
significant potential to injure a marine
mammal or marine mammal stock in the
wild [Level A Harassment]; or (ii) any
act that disturbs or is likely to disturb
a marine mammal or marine mammal
stock in the wild by causing disruption
of natural behavioral patterns,
including, but not limited to, migration,
surfacing, nursing, breeding, feeding, or
sheltering, to a point where such
behavioral patterns are abandoned or
significantly altered [Level B
Harassment].’’ Because the USAF’s
activities constitute military readiness
activities, they are not subject to the
small numbers or specified geographic
region limiations.
Based on a previous request from the
USAF, NMFS issued regulations and
LOAs to the USAF to allow it to take
species of pinnipeds at the VAFB. Those
regulations and LOAs expired on
February 6, 2014.
Summary of Request
On June 24, 2013, NMFS received an
application from the USAF requesting
regulations and an LOA for the take of
five species of pinnipeds incidental to
USAF launch, aircraft, and helicopter
operations from VAFB launch
complexes and Delta Mariner
operations, cargo unloading activities,
and harbor maintenance dredging. The
Delta Mariner operations, cargo
unloading, and harbor maintenance
dredging are conducted in support of
the Delta IV/EELV launch activity from
Space Launch Complex 6 on south
VAFB. NMFS has issued regulations to
govern these activities, to be effective
from March 2014, through March 2019.
These training activities are classified as
military readiness activities. The USAF
states that these activities may result in
take of marine mammals from noise or
visual disturbance from rocket and
missile launches, as well as from the use
of heavy equipment during the Delta
Mariner off-loading operations, cargo
movement activities, increased presence
of personnel, and harbor maintenance
dredging. The USAF requested
authorization to take annually five
pinniped species by Level B
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10017
Harassment: Pacific harbor seals;
California sea lions; northern elephant
seals; northern fur seals; and Steller sea
lions. In this final rule, NMFS has
authorized the take by Level B
harassment of all five species listed
here.
Activities relating to the Delta
Mariner operations have been
authorized previously by NMFS under
annual Incidental Harassment
Authorizations (IHAs). To date, we have
issued 10 IHAs to United Launch
Alliance (working on behalf of the
USAF) to take marine mammals
incidental to conducting operations in
support of Delta IV/EELV launch
activity from Space Launch Complex
(SLC) 6. The most recent IHA was
effective from September 26, 2012,
through September 25, 2013. Through
this final rulemaking, NMFS and the
USAF are incorporating the Delta
Mariner operations into the rulemaking
for the launch, aircraft, and helicopter
operations at VAFB.
Description of the Specified Activity
VAFB Launch Activities and Aircraft
and Helicopter Operations
VAFB (see Figure 1 in the USAF
application) is headquarters to the 30th
Space Wing (SW), the Air Force Space
Command unit that operates VAFB and
the Western Range. VAFB operates as a
missile test base and aerospace center,
supporting west coast space launch
activities for the USAF, Department of
Defense, National Aeronautics and
Space Administration, and commercial
contractors. VAFB is the main west
coast launch facility for placing
commercial, government, and military
satellites into polar orbit on expendable
(unmanned) launch vehicles, and for
testing and evaluating intercontinental
ballistic missiles (ICBM) and sub-orbital
target and interceptor missiles. In
addition to space vehicle and missile
launch activities at VAFB, there are
helicopter and aircraft operations for
purposes such as search-and-rescue,
delivery of space vehicle components,
launch mission support, security
reconnaissance, and training flights. The
USAF anticipates that the space and
missile launch frequency will not
exceed a combined total of 50 launches
(35 rockets and 15 missiles) per year
from VAFB. Table 1 in this document
outlines the numbers of rocket and
missile launches that occurred in 2011,
2012, and 2013. Although subject to
change, Table 2 presents preliminary
estimates of the numbers of rocket and
missile launches from VAFB during
calendar years 2014 through 2019.
Estimates for the earlier years are likely
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more accurate than those for the last two
to three years. However, as noted
earlier, the launch frequency is not
anticipated to exceed 50 launches in a
given year. Any launches over this
amount would require additional
coordination between NMFS and the
USAF before they occur.
TABLE 1—NUMBERS OF ROCKET AND MISSILE LAUNCHES IN CALENDAR YEARS 2011, 2012, AND 2013, FROM VAFB
Year
Rocket launches
Missile launches
2011 ..............
2012 ..............
2013 ..............
7 ..................................................................................................
2 ..................................................................................................
4 (as of Sept. 24, 2013, 3 rockets launched with 1 additional
planned before Dec. 31).
2
2
5 (as of Sept. 24, 2013, 3 missiles launched with 2 additional
planned before Dec. 31)
TABLE 2—PRELIMINARY NUMBERS OF PROJECTED ROCKET AND MISSILE LAUNCHES IN CALENDAR YEARS 2014 THROUGH
2019 FROM VAFB
[The projections for calendar years 2018 and 2019 are highly preliminary at this time]
Year
2014
2015
2016
2017
2018
2019
Rocket launches
............
............
............
............
............
............
6
9
9
4
9
12
There are currently six active facilities
at VAFB used to launch satellites into
polar orbit. These facilities support
launch programs for the Atlas V, Delta
II, Delta IV, Falcon 9, Minotaur, and
Taurus rockets. Various booster and fuel
packages can be configured to
accommodate payloads. Details on the
vehicle types and the sound exposure
levels (SELs) produced by each missile
or rocket, as well as the helicopter and
aircraft operations, were described in
the proposed rule (78 FR 73794,
December 9, 2013). That information
has not changed and therefore is not
repeated here.
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Missile launches
Timeframe of USAF Launch and
Aircraft Operations
Launch and aircraft operations could
occur at any time of the day or night
during the period to be covered under
this final rule and associated LOA
(March 2014–March 2019). The USAF
anticipates that no more than 15 missile
and 35 rocket launches would occur in
any year. This number is far higher than
launch activity in previous years, but
one new facility (SLC 4) is being
reactivated with intent to increase
‘‘commercial launch’’ activity, and Test
Pad-01 is being renovated. The USAF
notes that activity levels over the 5-year
period between March 2014 and March
2019 will not exceed 75 missile and 175
rocket launches without additional
coordination with NMFS. All launch
operations would occur at VAFB,
potentially resulting in launch noise
and visual impacts there. Potential sonic
boom impacts from space launch
vehicles (SLVs) could occur over the
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6
5
6
5
6
7
Northern Channel Islands (NCI).
Missiles are launched in a westerly
trajectory and do not impact the NCI.
Aircraft operations would occur only at
VAFB and are anticipated to only
impact hauled out pinnipeds when
flying at low altitudes (i.e., typically
below 305 m [1,000 ft]).
Harbor Activities Related to the Delta IV
Evolved Expendable Launch Vehicle
The Delta IV/EELV is comprised of a
common booster core, an upper stage,
and a payload fairing. The size of the
common booster core requires it to be
transported to the Base’s launch site by
a specially-designed vessel, the Delta
Mariner. United Launch Alliance
operates the Delta Mariner on behalf of
the USAF. The Delta Mariner docks at
the harbor on south VAFB. To allow
safe operation of the Delta Mariner,
United Launch Alliance requires that
the harbor undergo maintenance on a
periodic basis. The proposed rule
contained a full description of the Delta
Mariner operations, harbor maintenance
dredging, and cargo movement activities
(78 FR 73794, December 9, 2013). Those
activities have not changed and
therefore are not described again here.
Timeframe of Delta Mariner Activities
Cargo movement operations would
occur for approximately 43 days
(concurrent with the harbor
maintenance activities). A fully-loaded
vessel can be offloaded in 10 hours;
however, the Delta Mariner may need to
leave the dock and return at another
time due to tide and wind extremes that
may halt the removal of cargo. Dredging-
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Fmt 4700
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related activities normally last between
3 and 5 weeks, including set-up and
tear-down activities in the water and on
shore. Dredging may proceed 24 hours
per day to complete the job as quickly
as possible and minimize the disruptive
effect on the local animals; however,
dredging at VAFB has historically been
conducted in the daylight.
Sedimentation surveys completed since
the initial dredging indicate that
maintenance dredging could be required
annually, or even twice per year,
depending on the hardware delivery
schedule. Up to 5,000 cubic yards of
sediment are allowed to be removed
from the harbor per year by the United
States Army Corps of Engineers permit.
A survey occurs several months prior to
each Delta Mariner visit to assess
whether the harbor can be safely
navigated. The area to be dredged is
shown in Figure 1.2–1 of Appendix A
in the application.
We expect that acoustic stimuli,
resulting from the Delta Mariner
activities, have the potential to
incidentally harass marine mammals.
We also expect these disturbances to be
temporary and result in a temporary
modification in behavior and/or lowlevel physiological effects (Level B
harassment only) of certain species of
marine mammals.
We do not expect that the movement
of the Delta Mariner during the conduct
of the proposed activities has the
potential to harass marine mammals
because of the relatively slow operation
speed of the vessel (1.5 to 2 kts; 1.72
mph) during its approach to the area at
high tide and the vessel’s slow
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operational speed (0.75 kts; 0.86 mph)
during its approach to the wharf.
Description of the Geographic Region of
the Activities
VAFB
VAFB is composed of approximately
99,000 acres of land, and approximately
64.4 km (40 mi) of coastline on the coast
of central California, within Santa
Barbara County (see Figure 1 in the
USAF application). Space vehicles are
launched into polar orbits on azimuths
from 147–201 degrees, with sub-orbital
flights to 281 degrees. Missile launches
are directed toward Kwajalein Atoll in
the Pacific. This over-water sector, from
147–281 degrees, comprises the Western
Range. Part of the Western Range
encompasses the NCI (see Figure 1 in
the USAF application).
NCI
The NCI are located approximately 50
km (31 mi) south of the southern point
on VAFB. Three islands, San Miguel,
Santa Cruz, and Santa Rosa, make up
the main NCI, with San Miguel Island
being the primary site for pinniped
rookeries. The NCI are part of the
Channel Islands National Park and the
Channel Islands National Marine
Sanctuary. The closest part of the NCI
(Harris Point on San Miguel Island) is
located more than 55 km (34 mi) southsoutheast of the nearest launch facility.
VAFB Harbor
The harbor maintenance and Delta
Mariner activities will take place in or
near the VAFB harbor located on the
central coast of California at 34° 33′ N.,
120° 36′ W. in the northeast Pacific
Ocean. Activities related to these
operations and described in Appendix
A of the application will take place at
VAFB harbor, located on South Base,
approximately 2.3 km (1.4 mi) south of
Point Arguello, CA, and approximately
1 mi (1.61 km) south of the nearest
marine mammal rookery.
Description of Marine Mammals in the
Area of the Specified Activity
Sections 3 and 4 of the USAF
application and Sections 3 and 4 of
10019
Appendix A of the application contain
detailed information on the abundance,
status, and distribution of the species on
VAFB and the NCI from surveys that
they have conducted over the last
decade and from NMFS Stock
Assessment Reports (SARs). This
information was summarized in the
proposed rule (78 FR 73794, December
9, 2013) and may be viewed in detail in
the USAF’s LOA application (see
ADDRESSES). Additional information is
available in the NMFS SARs, which are
available at: https://www.nmfs.noaa.gov/
pr/sars/pdf/po2012.pdf.
The species most likely to occur at
VAFB and the VAFB harbor are Pacific
harbor seals, California sea lions, and
northern elephant seals. Steller sea lions
have also been seen in recent years at
VAFB. However, Steller sea lions are
not anticipated to be encountered on the
NCI. Northern fur seals may be
encountered on the NCI but are not
found at VAFB haul-outs. Table 3 in this
document outlines current population
estimates of the five pinniped species
described here on the NCI.
TABLE 3—NCI PINNIPED POPULATION ESTIMATES
Species
San Miguel Island
Santa Rosa Island
Santa Cruz Island
Pacific harbor seal ..............
California sea lion ...............
900 ....................................
32,000 pups born in
2012.1
±10,000 pups yearly .........
Rare transient ...................
9,968 .................................
1,000 .................................
500 2 ..................................
1,000 .................................
1,200 2 ...............................
100
1,000.2
±2,000 pups yearly ...........
None .................................
None .................................
Occasional transient .........
None .................................
None .................................
Rare transient.
None.
None.
Northern elephant seal ........
Steller sea lion ....................
Northern fur seal .................
Anacapa Island
Sources: Carretta et al. 2011 and 2012; Allen and Angliss 2011 and 2012.
1 No estimate is available for the total sea lion population on each main rookery island. Instead, pup counts are made at various breeding
areas, and from this count, an estimate is made of the stock size, which includes pups, subadults and adults.
2 Regular surveys are not conducted of these islands, and pupping is very sporadic and minimal there. These are estimates of the total number of sea lions at these islands.
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Other Marine Mammals in the Proposed
Action Area
There are several cetaceans that have
the potential to transit in the vicinity of
VAFB, including the short-beaked
common dolphin (Delphinus delphis),
the Pacific white-sided dolphin
(Lagenorhynchus obliquidens), and the
gray whale (Eschrichtius robustus). We
do not consider these species further in
this final rule because they are typically
found farther offshore of VAFB and the
VAFB harbor and are unlikely or rare in
the action area. Guadalupe fur seals
(Arctocephalus townsendi) are reported
occasionally at San Miguel Island; and,
in 1998, a pup was successfully weaned
there (Melin and DeLong, 1999).
However, their occurrence is rare.
California (southern) sea otters
(Enhydra lutris nereis) are listed as
threatened under the Endangered
Species Act and categorized as depleted
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15:17 Feb 21, 2014
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under the MMPA. The U.S. Fish and
Wildlife Service manages this species,
and we do not consider this species in
greater detail within this final rule. This
final rule only address requested take
authorizations for pinnipeds. The USAF
launch, aircraft, and helicopter
operations have the potential to take
Pacific harbor seals, California sea lions,
northern elephant seals, Steller sea
lions, and northern fur seals by Level B
harassment. The harbor activities
related to the launch vehicles at VAFB
have the potential to take four of the
same species (all but northern fur seals,
which are not found in the vicinity of
the VAFB harbor) by Level B
harassment.
Potential Effects of Specified Activities
on Marine Mammals
The activities proposed have the
potential to cause harassment of marine
mammals through both acoustic and
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visual stimuli. The USAF launch and
aircraft activities create two types of
noise: continuous (but short-duration)
noise, due mostly to combustion effects
of aircraft and launch vehicles; and
impulsive noise, due to sonic boom
effects. Launch operations are the major
source of noise on the marine
environment from VAFB. The operation
of launch vehicle engines produces
significant sound levels. Generally,
noise is generated from four sources
during launches: (1) Combustion noise
from launch vehicle chambers; (2) jet
noise generated by the interaction of the
exhaust jet and the atmosphere; (3)
combustion noise from the post-burning
of combustion products; and (4) sonic
booms. Launch noise levels are highly
dependent on the type of first-stage
booster and the fuel used to propel the
vehicle. Therefore, there is a great
similarity in launch noise production
within each class size of launch
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Federal Register / Vol. 79, No. 36 / Monday, February 24, 2014 / Rules and Regulations
vehicles. The noise generated by VAFB
activities will result in the incidental
harassment of pinnipeds, both
behaviorally and in terms of
physiological (auditory) impacts.
Acoustic and visual stimuli generated
by the use of heavy equipment during
the Delta Mariner off-loading operations
and harbor dredging and the increased
presence of personnel may have the
potential to cause Level B harassment of
any pinnipeds hauled out in the VAFB
harbor. This disturbance from acoustic
and visual stimuli is the principal
means of marine mammal taking
associated with these activities.
The noise and visual disturbances
from SLV and missile launches, aircraft
and helicopter operations, and harbor
maintenance activities may cause the
animals to lift their heads, move
towards the water, or enter the water.
The proposed rule (78 FR 73794,
December 9, 2013) contained
information regarding marine mammal
responses to launch noise and harbor
maintenance activities that has been
gathered under previous LOAs and
IHAs for these activities, as well as a
scientific research permit issued to
VAFB by NMFS for a research program
(Permit No. 859–1680–01, expired
January 1, 2009, and Permit No. 14197,
expires June 30, 2014) to determine the
short and long-term effects of SLV noise
and sonic booms on affected marine
mammals. That information is not
repeated here.
In general, if the received level of the
noise stimulus exceeds both the
background (ambient) noise level and
the auditory threshold of the animals,
and especially if the stimulus is novel
to them, there may be a behavioral
response. The probability and degree of
response will also depend on the
season, the group composition of the
pinnipeds, and the type of activity in
which they are engaged. Minor and brief
responses, such as short-duration startle
or alert reactions, are not likely to
constitute disruption of behavioral
patterns, such as migration, nursing,
breeding, feeding, or sheltering (i.e.,
Level B harassment) and would not
cause injury or mortality to marine
mammals. On the other hand, startle
and alert reactions accompanied by
large-scale movements, such as
stampedes into the water of hundreds of
animals, may rise to Level A harassment
because animals could be injured. In
addition, such large-scale movements by
dense aggregations of marine mammals
or at pupping sites could potentially
lead to takes by injury or death.
However, there is very little potential
for large-scale movements leading to
serious injury or mortality near the
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south VAFB harbor because,
historically, the number of harbor seals
hauled out near the site is less than 30
individuals, and there is no pupping at
nearby sites. The effects of the harbor
activities are expected to be limited to
short-term startle responses and
localized behavioral changes.
Additionally, the USAF does not
anticipate a significant impact on any of
the species or stocks of marine
mammals from launches from VAFB.
For even the largest launch vehicles,
such as Delta IV, the launch noises and
sonic booms can be expected to cause a
startle response and flight to water for
those harbor seals, California sea lions
and other pinnipeds that are hauled out
on the coastline of VAFB and on the
NCI. The noise may cause temporary
threshold shift in hearing depending on
exposure levels, but no permanent
threshold shift is anticipated. Because
aircraft will fly at altitudes greater than
305 m (1,000 ft) around pinniped haulouts and rookeries, animals are not
anticipated to react to aircraft and
helicopter overflights.
The potential effects to marine
mammals described in this section of
the document do not take into
consideration the required monitoring
and mitigation measures described later
in this document (see the ‘‘Mitigation’’
and ‘‘Monitoring and Reporting’’
sections) which, as noted, should effect
the least practicable adverse impact on
affected marine mammal species and
stocks.
Anticipated Effects on Marine Mammal
Habitat
Impacts on marine mammal habitat
are part of the consideration in making
a finding of negligible impact on the
species and stocks of marine mammals.
Habitat includes rookeries, mating
grounds, feeding areas, and areas of
similar significance. We do not
anticipate that the operations would
result in any temporary or permanent
effects on the habitats used by the
marine mammals in the area, including
the food sources they use (i.e. fish and
invertebrates). While it is anticipated
that the specified activity may result in
marine mammals avoiding certain areas
due to temporary ensonification, this
impact to habitat is temporary and
reversible and was considered in further
detail, as behavioral modification. The
main impact associated with the activity
will be temporarily elevated noise levels
and the associated direct effects on
marine mammals.
Mitigation
In order to issue an incidental take
authorization (ITA) under section
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101(a)(5)(A) of the MMPA, NMFS must,
where applicable, set forth the
permissible methods of taking pursuant
to such activity, and other means of
effecting the least practicable adverse
impact on such species or stock and its
habitat, paying particular attention to
rookeries, mating grounds, and areas of
similar significance, and on the
availability of such species or stock for
taking for subsistence uses (where
relevant). The NDAA of 2004 amended
the MMPA as it relates to militaryreadiness activities and the ITA process
such that ‘‘least practicable adverse
impact’’ shall include consideration of
personnel safety, practicality of
implementation, and impact on the
effectiveness of the ‘‘military readiness
activity.’’ The training activities
described in the USAF application are
considered military readiness activities.
Section 11 of the USAF application
and Section 11 of Appendix A in the
application contain descriptions of the
mitigation measures to be implemented
during the specified activities in order
to effect the least practicable adverse
impact on the affected marine mammal
species and stocks and their habitats.
Please refer to the application (see
ADDRESSES) for the full description.
Measures During Launches and Aircraft
and Helicopter Operations
All aircraft and helicopter flight paths
must maintain a minimum distance of
1,000 ft (305 m) from recognized seal
haul-outs and rookeries (e.g., Point Sal,
Purisima Point, Rocky Point), except in
emergencies or for real-time security
incidents (e.g., search-and-rescue, firefighting) which may require
approaching pinniped haul-outs and
rookeries closer than 1,000 ft (305 m).
For missile and rocket launches, unless
constrained by other factors including
human safety, national security
concerns or launch trajectories, holders
of LOAs must schedule launches to
avoid, whenever possible, launches
during the harbor seal pupping season
of March through June. The USAF must
avoid, whenever possible, launches
which are predicted to produce a sonic
boom on the NCI during harbor seal,
elephant seal, California sea lion, and
northern fur seal pupping seasons.
If post-launch surveys determine that
an injurious or lethal take of a marine
mammal has occurred, the launch
procedure and the monitoring methods
must be reviewed, in cooperation with
NMFS, and appropriate changes must be
made through modification to an LOA,
prior to conducting the next launch of
the same vehicle under that LOA.
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Measures During Harbor Activities
To reduce the potential for
disturbance from visual and acoustic
stimuli associated with the activities,
the USAF contractor, United Launch
Alliance/and or its designees, will
implement the following mitigating
measures for marine mammals:
(1) If activities occur during nighttime
hours, turn on lighting equipment
before dusk. The lights would remain on
for the entire night to avoid startling
pinnipeds.
(2) Initiate operations before dusk.
(3) Keep construction noises at a
constant level (i.e., not interrupted by
periods of quiet in excess of 30 minutes)
while pinnipeds are present.
(4) If activities cease for longer than
30 minutes and pinnipeds are in the
area, initiate a gradual start-up of
activities to ensure a gradual increase in
noise levels.
(5) A qualified observer would
visually monitor the harbor seals on the
beach adjacent to the harbor and on
rocks for any flushing or other behaviors
as a result of the activities (see
Monitoring).
(6) The Delta Mariner and
accompanying vessels would enter the
harbor only when the tide is too high for
harbor seals to haul-out on the rocks;
reducing speed to 1.5 to 2 knots (1.5–
2 nm/hr; 2.8–3.7 km/hr) once the vessel
is within 3 mi (4.83 km) of the harbor.
The vessel would enter the harbor stern
first, approaching the wharf and
moorings at less than 0.75 knot (1.4 km/
hr).
(7) Explore alternate dredge methods
and introduce quieter techniques and
equipment as they become available.
rmajette on DSK2TPTVN1PROD with RULES
Mitigation Conclusions
NMFS has carefully evaluated the
applicant’s mitigation measures and
considered a range of other measures in
the context of ensuring that NMFS
prescribes the means of effecting the
least practicable adverse impact on the
affected marine mammal species and
stocks and their habitat. Our evaluation
of potential measures included
consideration of the following factors in
relation to one another:
• The manner in which, and the
degree to which, the successful
implementation of the measure is
expected to minimize adverse impacts
to marine mammals;
• The proven or likely efficacy of the
specific measure to minimize adverse
impacts as planned; and
• The practicability of the measure
for applicant implementation, including
consideration of personnel safety,
practicality of implementation, and
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impact on the effectiveness of the
military readiness activity.
Based on our evaluation of the
applicant’s measures, as well as other
measures considered, NMFS has
determined that the mitigation measures
described above provide the means of
effecting the least practicable adverse
impact on marine mammals species or
stocks and their habitat, paying
particular attention to rookeries, mating
grounds, and areas of similar
significance while also considering
personnel safety, practicality of
implementation, and impact on the
effectiveness of the military readiness
activity.
Monitoring and Reporting
In order to issue an ITA for an
activity, section 101(a)(5)(A) of the
MMPA states that we must set forth
‘‘requirements pertaining to the
monitoring and reporting of such
taking.’’ The Act’s implementing
regulations at 50 CFR 216.104(a)(13)
indicate that requests for an
authorization must include the
suggested means of accomplishing the
necessary monitoring and reporting that
will result in increased knowledge of
the species and our expectations of the
level of taking or impacts on
populations of marine mammals present
in the action area.
As part of its application, the USAF
provided a monitoring plan, similar to
that in the current regulations (50 CFR
216.125) and previous IHAs issued to
United Launch Alliance, for assessing
impacts to marine mammals from rocket
and missile launches at VAFB and Delta
Mariner operations. This monitoring
plan is described, in detail, in Section
8 of the main portion of the application
for launch monitoring activities and
Section 13 of Appendix A of the
application for Delta Mariner operations
monitoring activities. The following
monitoring will be conducted under
these regulations.
The monitoring will be conducted by
a NMFS-approved marine mammal
biologist experienced in surveying large
numbers of marine mammals.
Monitoring for Launches on VAFB
Monitoring at the haul-out site closest
to the launch facility will commence at
least 72 hours prior to the launch and
continue until at least 48 hours after the
launch. Biological monitoring at VAFB
will be conducted for all launches
during the harbor seal pupping season,
1 March to 30 June. Acoustic and
biological monitoring will be conducted
on new space and missile launch
vehicles during at least the first launch,
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10021
whether it occurs within the pupping
season or not.
Monitoring will include multiple
surveys each day that record, when
possible, the species, number of
animals, general behavior, presence of
pups, age class, gender, and reaction to
launch noise, sonic booms, or other
natural or human-caused disturbances.
Environmental conditions such as tide,
wind speed, air temperature, and swell
will also be recorded. Time-lapse
photography or video will be used
during daylight launches to document
the behavior of mother-pup pairs during
launch activities. For launches during
the harbor seal pupping season (March
through June), follow-up surveys will be
made within 2 weeks of the launch to
ensure that there were no adverse effects
on any marine mammals. A report
detailing the species, number of animals
observed, behavior, reaction to the
launch noise, time to return to the haulout site, any adverse behavior and
environmental conditions will be
submitted to NMFS within 90 days of
the launch.
Monitoring for the NCI
Monitoring will be conducted on the
NCI (San Miguel, Santa Cruz, and Santa
Rosa Islands) whenever a sonic boom
over 1 pound per square foot (psf) is
predicted (using the most current sonic
boom modeling programs) to impact one
of the islands between March 1 and June
30, over 1.5 psf between July 1 and
September 30, and over 2 psf between
October 1 and February 28. Monitoring
will be conducted at the haul-out site
closest to the predicted sonic boom
impact area. Monitoring will be
conducted by a NMFS-approved marine
mammal biologist experienced in
surveying large numbers of marine
mammals. Monitoring will commence at
least 72 hours prior to the launch and
continue until at least 48 hours after the
launch (if a sonic boom was detected
during the actual launch).
Sonic boom prediction modeling is
not conducted prior to missile launches
because of their trajectories, which do
not have the potential to overfly and/or
impact the NCI with sonic booms.
Launches from the following sites
would not overfly the NCI: Space
Launch Complexes 2, 3, 6, and 8;
Launch Facility 576–E, Test pad 01; and
missile launch facilities 4, 9, 10, 23, and
24.
Monitoring will include multiple
surveys each day that record the
species, number of animals, general
behavior, presence of pups, age class,
gender, and reaction to launch noise,
sonic booms, or other natural or humancaused disturbances. Environmental
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conditions such as tide, wind speed, air
temperature, and swell will also be
recorded. Due to the large numbers of
pinnipeds found on some beaches of
San Miguel Island, smaller focal groups
should be monitored in detail rather
than the entire beach population. A
general estimate of the entire beach
population should be made once a day
and their reaction to the launch noise
noted. Photography or video will be
used during daylight launches to
document the behavior of mother-pup
pairs or dependent pups during launch
activities. During the pupping season of
any species affected by a launch, followup surveys will be made within 2 weeks
of the launch to ensure that there were
no adverse effects on any marine
mammals. A report detailing the
species, number of animals observed,
behavior, reaction to the launch noise,
time to return to the haul-out site, any
adverse behavior and environmental
conditions will be submitted to NMFS
within 90 days of the launch.
rmajette on DSK2TPTVN1PROD with RULES
Harbor Activities
United Launch Alliance will
designate a qualified and biologically
trained observer to monitor the area for
pinnipeds during all harbor activities.
During nighttime activities, United
Launch Alliance will illuminate the
harbor area and the observer will use a
night vision scope.
Monitoring activities will consist of
the following:
(1) Conducting baseline observation of
pinnipeds in the project area prior to
initiating project activities.
(2) Conducting and recording
observations on pinnipeds in the
vicinity of the harbor for the duration of
the activity occurring when tides are
low enough (less than or equal to 2 ft
(0.61 m) for pinnipeds to haul out.
(3) Conducting post-construction
observations of pinniped haul-outs in
the project area to determine whether
animals disturbed by the project
activities return to the haul-out.
Reporting Measures
A report containing the following
information must be submitted to NMFS
within 90 days after each launch: (1)
Date(s) and time(s) of each launch; (2)
date(s), location(s), and preliminary
findings of any research activities
related to monitoring the effects on
launch noise and sonic booms on
marine mammal populations; and (3)
results of the monitoring programs,
including but not necessarily limited to
(a) numbers of pinnipeds present on the
haul-out prior to commencement of the
launch, (b) numbers of pinnipeds that
may have been harassed as noted by the
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number of pinnipeds estimated to have
entered the water as a result of launch
noise, (c) the length of time(s) pinnipeds
remained off the haul-out or rookery, (d)
the numbers of pinniped adults or pups
that may have been injured or killed as
a result of the launch, and (4) any
behavioral modifications by pinnipeds
that likely were the result of launch
noise or the sonic boom.
If a freshly dead or seriously injured
pinniped is found during post-launch
monitoring, the incident must be
reported within 48 hours to the NMFS
Office of Protected Resources and the
NMFS West Coast Regional Office.
An annual report must be submitted
to NMFS on March 1 of each year. The
first report will cover the time period
from issuance of the LOA through
February 28, 2015. Each annual report
after that time will cover the time period
from March 1 through February 28.
Information in the annual reports will
describe any incidental takings under an
LOA not reported in the 90-day launch
reports, such as the aircraft test program
and helicopter operations and any
assessments made of their impacts on
hauled-out pinnipeds, summarize the
information from the 90-day launch
reports, and describe the information
collected during monitoring of Delta
Mariner operations. Information related
to Delta Mariner operations that must be
included in the annual report include:
(1) Date, time, and duration of activity;
(2) weather; (3) tide status; (4)
composition (species, gender, and age
class) and locations of haul-out group(s);
(5) horizontal visibility; and (6) and
results of the monitoring program,
which include (i) number and species of
pinnipeds present on haul-out(s) prior
to start of activity and behavioral
patterns, (ii) number and species of
pinnipeds that may have been harassed
as noted by the number of pinnipeds
estimated to have entered the water as
a result of noise related to the activity,
(iii) brief description of any activity/
action that causes animal(s) to flush, (iv)
length of time pinnipeds remained off
the haul-out or rookery, and (v) noted
behavioral modifications by pinnipeds
that were likely the result of the activity
in the harbor.
A final report must be submitted to
NMFS no later than 180 days prior to
expiration of these regulations. This
report must summarize the findings
made in all previous reports and assess
both the impacts at each of the major
rookeries and the cumulative impact on
pinnipeds and any other marine
mammals from the specified activities.
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Adaptive Management
NMFS has included an adaptive
management component in the
regulations governing the take of marine
mammals incidental to the USAF
activities at VAFB. In accordance with
50 CFR 216.105(c), regulations must be
based on the best available information.
As new information is developed,
through monitoring, reporting, or
research, the regulations may be
modified, in whole or in part, after
notice and opportunity for public
review. The use of adaptive
management will allow NMFS to
consider new information from different
sources to determine if mitigation or
monitoring measures should be
modified (including additions or
deletions) if new data suggest that such
modifications are appropriate for
subsequent LOAs. The following are
some of the possible sources of
applicable data:
• Results from the USAF’s monitoring
from the previous year;
• Results from general marine
mammal and/or sound research or
studies; or
• Any information which reveals that
marine mammals may have been taken
in a manner, extent or number not
authorized by these regulations or
subsequent LOAs.
In addition, LOAs shall be withdrawn
or suspended if, after notice and
opportunity for public comment, the
Assistant Administrator finds, among
other things, the regulations are not
being substantially complied with or the
taking allowed is having more than a
negligible impact on the species or
stock, as allowed for in 50 CFR
216.106(e). That is, should monitoring
and reporting indicate that the
operations and activities from VAFB
launch complexes or at VAFB harbor are
having more than a negligible impact on
marine mammals, then NMFS reserves
the right to modify the regulations and/
or withdraw or suspend an LOA after
public review.
Comments and Responses
On December 9, 2013 (78 FR 73794),
we published a proposed rule in
response to the USAF’s request to take
marine mammals incidental to launch,
aircraft, and helicopter operations from
VAFB launch complexes and Delta
Mariner operations, cargo unloading
activities, and harbor maintenance
dredging in support of the Delta IV/
EELV launch activity on south VAFB for
a period of 5 years, requesting
comments, information, and suggestions
concerning the request. During the 30day public comment period, we
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received a letter from the Marine
Mammal Commission. The letter stated
that the Marine Mammal Commission
concurs with NMFS’ preliminary
finding and therefore recommends that
NMFS issue the final rule, subject to
inclusion of the proposed mitigation,
monitoring, and reporting measures. We
have included all of the mitigation,
monitoring, and reporting measures
contained in the proposed rule in this
final rule. We did not receive any other
letters or comments from the public on
the proposed rule.
Numbers of Marine Mammals
Estimated To Be Taken by Harassment
The marine mammal species NMFS
believes likely to be taken by Level B
harassment incidental to launch and
aircraft and helicopter operations at
VAFB are harbor seals, California sea
lions, northern elephant seals, northern
fur seals, and Steller sea lions. NMFS
believes that all of these species except
for northern fur seals are likely to be
taken by Level B harassment incidental
to Delta Mariner operations at the VAFB
harbor. All of these species are
protected under the MMPA, and none
are listed under the Endangered Species
Act (ESA). On November 4, 2013, NMFS
published a final rule delisting the
eastern distinct population segment
(DPS) of Steller sea lions (78 FR 66139).
We have determined that this DPS has
recovered and no longer meets the
definition of an endangered or
threatened species under the ESA. The
Steller sea lions at VAFB are part of the
eastern DPS. Numbers of animals that
may be taken by Level B harassment are
expected to vary due to factors such as
type of SLV, location of the sonic boom,
weather conditions (which can
influence the size of the sonic boom),
the time of day, and the time of year, as
well as launch trajectory and the
number of launches in a given year. For
this reason, ranges are given for the
harassment estimates of marine
mammals. Aircraft operations will occur
frequently but will avoid pinniped haulout areas and are unlikely to disturb
pinnipeds.
As noted earlier, sightings of
Guadalupe fur seals have been
extremely rare the last few decades at
VAFB and on the NCI. Therefore, no
takes by harassment are anticipated for
this species incidental to the proposed
activities.
Take estimates at VAFB and the NCI
from launches are based on decades of
visual observations and systematic
marine mammal surveys conducted at
the launch sites and known pinniped
haul-outs on VAFB and the NCI.
Surveys are conducted by VAFB marine
mammal monitors, as well as National
Park Service employees. Take estimates
at the VAFB harbor are based on visual
observations conducted there since 2001
by marine mammal monitors noting
observations during Delta Mariner
operations.
Estimated Takes at VAFB
The following text describes the
potential range of takes possible of
pinnipeds on VAFB during launches.
Table 4 provides this information in
outline form.
Harbor seals: As many as 400 harbor
seals per launch may be taken.
Depending on the type of rocket being
launched, the time of day, time of the
year, weather conditions, tide and swell
conditions, the number of seals that may
be taken will range between 0 and 400.
Launches and aircraft operations may
occur at any time of the year, so any age
classes and gender may be taken.
California sea lions: As many as 300
sea lions per launch may be taken. Sea
lions at VAFB are usually juveniles of
both sexes and sub-adult males that
haul out in the fall during the post
breeding dispersal. Births generally do
not occur at VAFB, but five pups were
observed at VAFB in 2003, an El Nino
year, although all were abandoned by
their mothers and died within several
days of birth. Sick or emaciated weaned
pups may also haul out briefly.
Northern elephant seals: As many as
100 elephant seals per launch may be
taken. Weaned elephant seal pups,
juveniles, or young adults of both sexes,
may occasionally haul out at VAFB for
several days to rest or as long as 30 days
to molt. Injured or sick seals may also
haul out briefly.
Steller sea lions: Steller sea lions have
only been noted at VAFB in April and
May of 2012 and again from FebruaryApril 2013. Numbers were small. As
many as 36 Steller sea lions may be
taken per launch.
Northern fur seals: There are no
reports of northern fur seals at VAFB.
Therefore, it is unlikely that any fur
seals will be taken.
TABLE 4—PREDICTED LEVEL B HARASSMENT TAKES OF PINNIPEDS ON VAFB ON A PER LAUNCH BASIS
Takes per launch
from noise or
visual disturbance
Age groups
Sex
Reproductive condition
Pacific harbor seal .....
All ........................
Both .....................
California sea lion ......
All ........................
Both .....................
Northern elephant
seal.
Steller sea lion ...........
Northern fur seal ........
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Species
All ........................
Both .....................
All ........................
Mostly juveniles ...
Both .....................
Both .....................
Pupping
and
breeding
March
through June.
Pupping and breeding June through
July, but no pupping expected at
VAFB.
No pregnant or breeding animals expected; mostly ‘‘weaners’’.
No pupping or breeding at VAFB .....
Only stranded animals ......................
Estimated Takes on the NCI
Sonic booms created by SLVs may
impact marine mammals on the NCI,
particularly San Miguel Island. Missile
launches utilize westward trajectories so
do not cause sonic boom impacts to the
NCI. Sonic boom modeling software will
continue to be used to predict the area
of sonic boom impact and magnitude of
the sonic boom on the NCI based on the
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launch vehicle, speed, trajectory, and
meteorological conditions. Prior to each
SLV launch, a predictive sonic boom
map of the impact area and magnitude
of the sonic boom will be generated.
Based on previous monitoring of sonic
booms created by SLVs on San Miguel
(Thorson et al., 1999a: 1999b), it is
estimated that as much as
approximately 25 percent of the marine
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Sfmt 4700
Takes from
aircraft
operations
0–400 ..................
None.
0–300 ..................
None.
0–100 ..................
None.
0–36 ....................
None ....................
None.
None.
mammals may be disturbed on SMI
(Thorson et al., 1999a; 1999b). Most
sonic booms that reach San Miguel
Island are small (<1 psf), although larger
sonic booms are possible but rarely
occur. A conservative take estimate of as
much as 25 percent of the animals
present is used for each species per
launch. Table 5 presents the potential
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numbers of takes per launch event on
the NCI.
TABLE 5—PREDICTED LEVEL B HARASSMENT TAKES ON THE NCI ON A PER LAUNCH BASIS
Species
Age groups
Sex
Reproductive condition
Pacific harbor seal
All ..........................
Both ......................
California sea lion ..
All ..........................
Both ......................
Northern elephant
seal.
Steller sea lion .......
All ..........................
Both ......................
Pupping and breeding March through
June.
Pupping and breeding June through
July.
Pupping December through March .....
Adult .....................
Both ......................
No pupping or breeding at NCI ...........
Northern fur seal ....
Mostly juveniles ....
Both ......................
Pupping and breeding in June and
July.
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Estimated Takes From Delta Mariner
Operations
Estimates of the numbers of marine
mammals that might be affected are
based on consideration of the number of
animals that could be disturbed
appreciably by approximately 43 days
for Pacific harbor seals and California
sea lions, 8 days for northern elephant
seals, and 3 days for Steller sea lions.
The lower number of days for northern
elephant seals and Steller sea lions are
based on the fact that those species
haul-out in fewer numbers and fewer
times throughout the year at the VAFB
harbor than harbor seals or California
sea lions.
Based on previous monitoring reports,
with the same activities conducted in
the proposed operations area, we
estimate that approximately 1,161
Pacific harbor seals, 129 California sea
lions, 24 northern elephant seals, and 24
Steller sea lions could be potentially
affected by Level B behavioral
harassment over the course of each year
of activities. We base these estimates on
historical pinniped survey counts from
2001 to 2011, and calculated takes by
multiplying the average of the
maximum abundance by the number of
days noted above (i.e., the total number
of operational days). Thus, the USAF
requests authorization to incidentally
harass approximately 1,161 Pacific
harbor seals (27 animals by 43 days),
129 California sea lions (3 animals by 43
days), 24 northern elephant seals (3
animals by 8 days), and 24 Steller sea
lions (8 animals by 3 days).
Table 6 presents the maximum
number of potential takes on an annual
basis. However, actual takes could be
lower than this number. The range of
animals that could be taken is based on
zero animals responding up to the
maximum for each launch event plus
Delta Mariner operations. Although not
anticipated between 2014 and early
2019, up to 50 launches per year are
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Takes per launch from sonic booms
0–200.
0–6,000 pups 0–3,000 juveniles
adults.
0–500 pups 1,000 juveniles
adults.
None; virtually no presence on
Miguel.
0–250 pups 0–1,000 juveniles
adults.
authorized for taking of marine
mammals. However, as noted in Table 2
earlier in this document, no more than
12–19 launches are actually anticipated
to occur on an annual basis between
2014 and 2019. Additionally, not all
launches will overfly the NCI. However,
the numbers presented in Table 6
represent the maximum end of the range
and assume that all 50 launches would
overfly the NCI. Therefore, actual takes
will likely be much lower than the
maximum estimate.
and
and
San
and
(1) The number of anticipated
injuries, serious injuries, or mortalities;
(2) The number, nature, and intensity,
and duration of Level B harassment (all
relatively limited);
(3) The context in which the takes
occur (i.e., impacts to areas of
significance, impacts to local
populations, and cumulative impacts
when taking into account successive/
contemporaneous actions when added
to baseline data);
(4) The status of stock or species of
marine mammals (i.e., depleted, not
TABLE 6—TOTAL NUMBER OF ANNUAL depleted, decreasing, increasing, stable,
LEVEL B TAKES FROM A TOTAL OF impact relative to the size of the
50 LAUNCHES AND DELTA MARINER population);
(5) Impacts on habitat affecting rates
OPERATIONS
of recruitment/survival; and
[Numbers are likely overestimated as not all
(6) The effectiveness of monitoring
launches would overfly the NCI]
and mitigation measures.
As mentioned previously, we estimate
Total number
that five species of marine mammals
of authorized
Species
Level B takes could be potentially affected by Level B
annually
harassment from launch activities and
that four of those five species could be
Pacific harbor seal ................
31,161
potentially affected by Level B
California sea lion .................
465,129
Northern elephant seal .........
80,024 harassment from Delta Mariner
Steller sea lion ......................
1,824 operations.
For reasons stated previously in this
Northern fur seal ...................
62,500
document, the specified activities are
With the incorporation of mitigation
not likely to cause long-term behavioral
measures described earlier in this
disturbance, abandonment of the hauldocument, the USAF and NMFS expect
out area, serious injury, or mortality
that only Level B incidental harassment because:
(1) The effects of the activities are
may occur as a result of the activities
expected to be limited to short-term
and that these events will result in no
startle responses and localized
detectable impact on marine mammal
behavioral changes. Minor and brief
species or stocks or on their habitats.
responses, such as short-duration startle
Negligible Impact Analysis and
or alert reactions, are not likely to
Determination
constitute disruption of behavioral
We have defined ‘‘negligible impact’’
patterns, such as migration, nursing,
in 50 CFR 216.103 as ‘‘. . . an impact
breeding, feeding, or sheltering.
resulting from the specified activity that
(2) Launches will likely not occur
cannot be reasonably expected to, and is more than about 12–19 times per year
not reasonably likely to, adversely affect over the next 5 years.
the species or stock through effects on
(3) Delta Mariner off-loading
annual rates of recruitment or survival.’’ operations and associated cargo
In making a negligible impact
movements within the harbor would
determination, we consider:
occur at a maximum frequency of four
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times per year, and the vessel’s arrival
and departure would occur during
daylight hours at high tide when the
haul out areas are fully submerged and
few, if any, pinnipeds are present in the
harbor;
(4) The relatively slow operational
speed of the Delta Mariner (1.5 to 2 kts;
1.72 mph) during its approach to the
harbor at high tide and the vessel’s slow
operational speed (0.75 kts; 0.86 mph)
during its approach to the wharf;
(5) There is no potential for largescale movements leading to serious
injury or mortality;
(6) Many of the specified activities do
not occur near rookeries;
(7) The availability of alternate areas
near the harbor for pinnipeds to avoid
the resultant noise from the
maintenance and vessel operations; and
(8) Results from previous monitoring
reports that support our conclusions
that the pinnipeds returned to the haulout sites during periods of low tide after
the disturbance and do not permanently
abandon a haul-out site during the
conduct of harbor maintenance and
Delta Mariner operations or launches
from VAFB.
As confirmed by past monitoring
reports, we do not anticipate that any
injuries, serious injuries, or mortalities
would occur as a result of the activities,
and did not authorize injury, serious
injury or mortality. These species may
exhibit behavioral modifications,
including temporarily vacating the area
during the activities to avoid the
resultant acoustic and visual
disturbances. Due to the nature, degree,
and context of the behavioral
harassment anticipated, the activities
are not expected to impact rates of
recruitment or survival. Further, these
activities would not adversely impact
marine mammal habitat.
We have determined, provided that
the USAF carries out the previously
described mitigation and monitoring
measures, that the impact of conducting
the activities may result, at worst, in a
temporary modification in behavior
and/or low-level physiological effects
(Level B harassment) of certain species
of marine mammals.
Based on the analysis contained
herein of the likely effects of the
specified activity on marine mammals
and their habitat, and taking into
consideration the implementation of the
mitigation and monitoring measures, we
have determined that the total taking
from the activities will have a negligible
impact on the affected species or stocks;
and that impacts to affected species or
stocks of marine mammals would be
mitigated to the lowest level practicable.
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Impact on Availability of Affected
Species or Stock for Taking for
Subsistence Uses
Section 101(a)(5)(A) of the MMPA
also requires us to determine that the
authorization will not have an
unmitigable adverse effect on the
availability of marine mammal species
or stocks for subsistence use. There are
no relevant subsistence uses of marine
mammals in the study area
(northeastern Pacific Ocean) that
implicate section 101(a)(5)(A) of the
MMPA.
Endangered Species Act
There are no species listed as
threatened or endangered in the activity
area. Therefore, consultation under
section 7 of the ESA is not required.
National Environmental Policy Act
(NEPA)
The USAF prepared a Final EA and
issued a Finding of No Significant
Impact (FONSI) in 1997 as part of its
application for an incidental take
authorization. On March 1, 1999 (64 FR
9925), NMFS adopted this EA as
provided for by the Council on
Environmental Quality regulations. In
2003, NMFS prepared its own EA and
issued a FONSI for the final rule issued
in February, 2004. In January 2009,
NMFS prepared a new EA and issued a
FONSI for the final rule issued in
February 2009.
In 2001, the USAF prepared an EA for
Harbor Activities Associated with the
Delta IV Program at Vandenberg Air
Force Base. In 2005, we prepared an EA
augmenting the information contained
in the USAF’s EA and issued a FONSI
on the issuance of an Incidental
Harassment Authorization for United
Launch Alliance’s harbor activities in
accordance with section 6.01 of the
NOAA Administrative Order 216–6
(Environmental Review Procedures for
Implementing the National
Environmental Policy Act, May 20,
1999).
NMFS conducted a new analysis,
pursuant to NEPA, to determine
whether the issuance of MMPA
rulemaking and subsequent LOA(s) may
have a significant effect on the human
environment. In February 2014, NMFS
released an EA and issued a FONSI for
this action. NMFS determined that
issuance of these regulations and
subsequent LOA would not significantly
impact the quality of the human
environment; therefore, preparation of
an Environmental Impact Statement was
not required for this action.
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10025
National Marine Sanctuaries Act
We previously discussed the
promulgation of MMPA regulations and
issuing associated LOAs with the NOAA
National Ocean Service’s Office of
National Marine Sanctuaries to
determine whether or not NMFS’ action
is likely to destroy, cause the loss of, or
injure any national marine sanctuary
resources. On December 12, 2008, the
Office of National Marine Sanctuaries
determined that no further consultation
with NMFS was required on its
proposed action as this action is not
likely to destroy, cause the loss of, or
injure any national marine sanctuary
resources. The activities in this
rulemaking are identical to those
discussed in 2008.
Classification
Pursuant to the procedures
established to implement section 6 of
Executive Order 12866, the Office of
Management and Budget has
determined that this final rule is not
significant.
At the proposed rule stage, the Chief
Counsel for Regulation of the
Department of Commerce certified to
the Chief Counsel for Advocacy of the
Small Business Administration that this
rule, if adopted, would not have a
significant economic impact on a
substantial number of small entities.
The 30th Space Wing, USAF, and their
contractors are the entities that will be
affected by this rulemaking, none of
which are considered a small
governmental jurisdiction, small
organization, or small business, as
defined by the Regulatory Flexibility
Act. United Launch Alliance, the
contractor hired by the USAF to
conduct the harbor activities and Delta
Mariner operations, is a joint venture
between Boeing and Lockheed Martin.
The Small Business Administration
defines a small entity as one that is
independently owned and operated and
not dominant in its field of operation.
United Launch Alliance employs
approximately 3,900 employees working
at sites across the country, has annual
revenues exceeding $1 billion, and is
dominant in the field of aerospace
vehicle launching. United Launch
Alliance therefore does not meet the
definition of a small entity. No
comments were received on the
certification. Accordingly, a regulatory
flexibility analysis is not required and
none has been prepared.
List of Subjects in 50 CFR Part 217
Exports, Fish, Imports, Indians,
Labeling, Marine mammals, Penalties,
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Reporting and recordkeeping
requirements, Seafood, Transportation.
Dated: February 19, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble,
50 CFR part 217 is amended as follows:
PART 217—REGULATIONS
GOVERNING THE TAKE OF MARINE
MAMMALS INCIDENTAL TO
SPECIFIED ACTIVITIES
§ 217.61
1. The authority citation for part 217
continues to read as follows:
§ 217.62
Authority: 16 U.S.C. 1361 et seq.
2. Subpart G is added to part 217 to
read as follows:
■
Subpart G—Taking of Marine Mammals
Incidental to U.S. Air Force Launches,
Aircraft and Helicopter Operations, and
Harbor Activities Related to Launch
Vehicles From Vandenberg Air Force Base
(VAFB), California
Sec.
217.60 Specified activity and specified
geographical region.
217.61 Effective dates.
217.62 Permissible methods of taking.
217.63 Prohibitions.
217.64 Mitigation.
217.65 Requirements for monitoring and
reporting.
217.66 Letters of Authorization.
217.67 Renewals and modifications of
Letters of Authorization.
Subpart G—Taking of Marine Mammals
Incidental to U.S. Air Force Launches,
Aircraft and Helicopter Operations, and
Harbor Activities Related to Launch
Vehicles From Vandenberg Air Force
Base (VAFB), California
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§ 217.60 Specified activity and specified
geographical region.
(a) Regulations in this subpart apply
only to the 30th Space Wing, United
States Air Force (USAF), at Vandenberg
Air Force Base and those persons it
authorizes to conduct activities on its
behalf for the taking of marine mammals
that occurs in the area outlined in
paragraph (b) of this section and that
occurs incidental to:
(1) Launching up to 15 space and each
year from Vandenberg Air Force Base,
for a total of up to 75 missiles over the
5-year period of these regulations,
(2) Launching up to 35 rockets each
year from Vandenberg Air Force Base,
for a total of up to 175 rocket launches
over the 5-year period of these
regulations,
(3) Aircraft flight test operations,
(4) Helicopter operations from
Vandenberg Air Force Base, and
15:17 Feb 21, 2014
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Effective dates.
Regulations in this subpart are
effective from March 26, 2014 through
March 26, 2019.
■
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(5) Delta Mariner (or a similar vessel)
operations, cargo unloading activities,
and harbor maintenance dredging.
(b) The taking of marine mammals by
the USAF may be authorized in a Letter
of Authorization only if it occurs from
the space launch complexes, launch
facilities, and test pads on north and
south Vandenberg Air Force Base and
the Vandenberg Air Force Base harbor
on South Base.
Permissible methods of taking.
(a) Under Letters of Authorization
issued pursuant to §§ 216.106 and
217.60 of this chapter, the Holder of the
Letter of Authorization (herein after the
USAF) may incidentally, but not
intentionally, take marine mammals by
harassment, within the area described in
§ 217.60(b), provided the activity is in
compliance with all terms, conditions,
and requirements of the regulations in
this subpart and the appropriate Letter
of Authorization.
(b) The activities identified in
§ 217.60(a) must be conducted in a
manner that minimizes, to the greatest
extent practicable, any adverse impacts
on marine mammals and their habitat.
(c) The incidental take of marine
mammals under the activities identified
in § 217.60(a) of this chapter is limited
to the indicated number of Level B
harassment takes on an annual basis of
the following species:
(1) Harbor seals (Phoca vitulina)—
31,161;
(2) California sea lions (Zalophus
californianus)—465,129;
(3) Northern elephant seals (Mirounga
angustirostris)—80,024;
(4) Northern fur seals (Callorhinus
ursinus)—62,500; and
(5) Steller sea lions (Eumetopias
jubatus)—1,824.
§ 217.63
Prohibitions.
Notwithstanding takings
contemplated in § 217.62(c) and
authorized by a Letter of Authorization
issued under §§ 216.106 and 217.66 of
this chapter, no person in connection
with the activities described in § 217.60
may:
(a) Take any marine mammal not
specified in § 217.62(c);
(b) Take any marine mammal
specified in § 217.62(c) other than by
incidental, unintentional Level B
harassment;
(c) Take a marine mammal specified
in § 217.62(c) if NMFS determines such
taking results in more than a negligible
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impact on the species or stocks of such
marine mammal; or
(d) Violate, or fail to comply with, the
terms, conditions, and requirements of
this subpart or a Letter of Authorization
issued under §§ 216.106 and 217.66 of
this chapter.
§ 217.64
Mitigation.
(a) When conducting the activities
identified in § 217.60(a), the mitigation
measures contained in the Letter of
Authorization issued under §§ 216.106
and 217.66 of this chapter must be
implemented. These mitigation
measures include (but are not limited
to):
(1) All aircraft and helicopter flight
paths must maintain a minimum
distance of 1,000 ft (305 m) from
recognized seal haul-outs and rookeries
(e.g., Point Sal, Purisima Point, Rocky
Point), except in emergencies or for realtime security incidents (e.g., search-andrescue, fire-fighting), which may require
approaching pinniped haul-outs and
rookeries closer than 1,000 ft (305 m).
(2) For missile and rocket launches,
holders of Letters of Authorization must
avoid, whenever possible, launches
during the harbor seal pupping season
of March through June, unless
constrained by factors including, but not
limited to, human safety, national
security, or for space vehicle launch
trajectory necessary to meet mission
objectives.
(3) Vandenberg Air Force Base must
avoid, whenever possible, launches
which are predicted to produce a sonic
boom on the Northern Channel Islands
during harbor seal, elephant seal,
California sea lion, and northern fur seal
pupping seasons of March through June.
(4) If post-launch surveys determine
that an injurious or lethal take of a
marine mammal has occurred, the
launch procedure and the monitoring
methods must be reviewed, in
cooperation with the National Marine
Fisheries Service (NMFS), and
appropriate changes must be made
through modification to a Letter of
Authorization, prior to conducting the
next launch under that Letter of
Authorization.
(5) Delta Mariner (or a similar vessel)
operations, cargo unloading, and harbor
maintenance dredging measures:
(i) If activities occur during nighttime
hours, turn on lighting equipment
before dusk. Lights must remain on for
the entire night to avoid startling
pinnipeds.
(ii) Initiate operations before dusk.
(iii) Keep construction noises at a
constant level (i.e., not interrupted by
periods of quiet in excess of 30 minutes)
while pinnipeds are present.
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(iv) Initiate a gradual start-up of
activities to ensure a gradual increase in
noise levels if activities cease for longer
than 30 minutes and pinnipeds are in
the area.
(v) Conduct visual monitor, by a
qualified observer, of the harbor seals on
the beach adjacent to the harbor and on
rocks for any flushing or other behaviors
as a result of activities described in
§ 217.60(a).
(vi) The Delta Mariner and
accompanying vessels must enter the
harbor only when the tide is too high for
harbor seals to haul-out on the rocks;
reducing speed to 1.5 to 2 knots (1.5–
2 nm/hr; 2.8–3.7 km/hr) once the vessel
is within 3 mi (4.83 km) of the harbor.
The vessel must enter the harbor stern
first, approaching the wharf and
moorings at less than 0.75 knot (1.4 km/
hr).
(vii) Explore alternate dredge methods
and introduce quieter techniques and
equipment as they become available.
(6) Additional mitigation measures as
contained in a Letter of Authorization.
(b) [Reserved]
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§ 217.65 Requirements for monitoring and
reporting.
(a) Unless specified otherwise in the
Letter of Authorization, the USAF must
notify the Administrator, West Coast
Region, NMFS, by letter or telephone, at
least 2 weeks prior to activities possibly
involving the taking of marine
mammals. If the authorized activity
identified in § 217.60(a) is thought to
have resulted in the mortality or injury
of any marine mammals or in any take
of marine mammals not identified in
§ 217.62(c), then the USAF must notify
the Director, Office of Protected
Resources, NMFS, or designee, by
telephone (301–427–8401), within 48
hours of the discovery of the injured or
dead animal.
(b) To conduct monitoring of launch
activities, the USAF must designate
qualified, on-site individuals approved
in advance by NMFS, as specified in the
Letter of Authorization, to:
(1) Conduct observations on pinniped
activity in the vicinity of the rookery
nearest the launch platform or, in the
absence of pinnipeds at that location, at
another nearby haul-out, for at least 72
hours prior to any planned launch
occurring during the harbor seal
pupping season (1 March through 30
June) and continue for a period of time
not less than 48 hours subsequent to
launching.
(2) For launches during the harbor
seal pupping season (March through
June), conduct follow-up surveys within
2 weeks of the launch to ensure that
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15:17 Feb 21, 2014
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there were no adverse effects on any
marine mammals,
(3) Monitor haul-out sites on the
Northern Channel Islands, if it is
determined by modeling that a sonic
boom of greater than 1 psf is predicted
to impact one of the Islands between
March 1 and June 30, greater than 1.5
psf between July 1 and September 30,
and greater than 2 psf between October
1 and February 28. Monitoring will be
conducted at the haul-out site closest to
the predicted sonic boom impact area.
(4) Investigate the potential for
spontaneous abortion, disruption of
effective female-neonate bonding, and
other reproductive dysfunction,
(5) Supplement observations on
Vandenberg and on the Northern
Channel Islands with video-recording of
mother-pup seal responses for daylight
launches during the pupping season,
(6) Conduct acoustic measurements of
those launch vehicles that have not had
sound pressure level measurements
made previously, and
(7) Include multiple surveys each day
that surveys are required that record the
species, number of animals, general
behavior, presence of pups, age class,
gender and reaction to launch noise,
sonic booms or other natural or human
caused disturbances, in addition to
recording environmental conditions
such as tide, wind speed, air
temperature, and swell.
(c) To conduct monitoring of harbor
activities, the USAF must designate
qualified, on-site individuals approved
in advance by NMFS, as specified in the
Letter of Authorization. During
nighttime activities, the harbor area will
be illuminated, and the observer will
use a night vision scope. Monitoring
activities will consist of the following:
(1) Conducting baseline observation of
pinnipeds in the project area prior to
initiating project activities.
(2) Conducting and recording
observations on pinnipeds in the
vicinity of the harbor for the duration of
the activity occurring when tides are
low enough (less than or equal to 2 ft
(0.61 m) for pinnipeds to haul out.
(3) Conducting post-construction
observations of pinniped haul-outs in
the project area to determine whether
animals disturbed by the project
activities return to the haul-out.
(d) Holders of Letters of Authorization
must conduct additional monitoring as
required under a Letter of
Authorization.
(e) The USAF must submit a report to
the West Coast Regional Administrator,
NMFS, within 90 days after each
launch. This report must contain the
following information:
(1) Date(s) and time(s) of the launch,
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10027
(2) Design of the monitoring program,
and
(3) Results of the monitoring program,
including, but not necessarily limited
to:
(i) Numbers of pinnipeds present on
the haul-out prior to commencement of
the launch,
(ii) Numbers of pinnipeds that may
have been harassed as noted by the
number of pinnipeds estimated to have
entered the water as a result of launch
noise,
(iii) The length of time pinnipeds
remained off the haul-out or rookery,
(iv) Numbers of pinniped adults,
juveniles or pups that may have been
injured or killed as a result of the
launch, and
(v) Behavioral modifications by
pinnipeds that were likely the result of
launch noise or the sonic boom.
(f) An annual report must be
submitted on March 1 of each year.
(g) A final report must be submitted
at least 180 days prior to expiration of
these regulations. This report will:
(1) Summarize the activities
undertaken and the results reported in
all previous reports,
(2) Assess the impacts at each of the
major rookeries,
(3) Assess the cumulative impacts on
pinnipeds and other marine mammals
from the activities specified in
§ 217.60(a), and
(4) State the date(s), location(s), and
findings of any research activities
related to monitoring the effects on
launch noise, sonic booms, and harbor
activities on marine mammal
populations.
§ 217.66
Letters of Authorization.
(a) To incidentally take marine
mammals pursuant to these regulations,
the USAF must apply for and obtain a
Letter of Authorization.
(b) A Letter of Authorization, unless
suspended or revoked, may be effective
for a period of time not to exceed the
expiration date of these regulations.
(c) If a Letter of Authorization expires
prior to the expiration date of these
regulations, the USAF must apply for
and obtain a renewal of the Letter of
Authorization.
(d) In the event of projected changes
to the activity or to mitigation and
monitoring measures required by a
Letter of Authorization, the USAF must
apply for and obtain a modification of
the Letter of Authorization as described
in § 217.67.
(e) The Letter of Authorization will
set forth:
(1) Permissible methods of incidental
taking;
(2) Means of effecting the least
practicable adverse impact (i.e.,
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mitigation) on the species, its habitat,
and on the availability of the species for
subsistence uses; and
(3) Requirements for monitoring and
reporting.
(f) Issuance of the Letter of
Authorization shall be based on a
determination that the level of taking
will be consistent with the findings
made for the total taking allowable
under these regulations.
(g) Notice of issuance or denial of a
Letter of Authorization shall be
published in the Federal Register
within 30 days of a determination.
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§ 217.67 Renewals and modifications of
Letters of Authorization.
(a) A Letter of Authorization issued
under § 216.106 and § 217.66 of this
chapter for the activity identified in
§ 217.60(a) shall be renewed or modified
upon request by the applicant, provided
that:
(1) The proposed specified activity
and mitigation, monitoring, and
reporting measures, as well as the
anticipated impacts, are the same as
those described and analyzed for these
regulations (excluding changes made
pursuant to the adaptive management
provision in § 217.67(c)(1) of this
chapter), and
(2) NMFS determines that the
mitigation, monitoring, and reporting
measures required by the previous
Letter of Authorization under these
regulations were implemented.
(b) For Letter of Authorization
modification or renewal requests by the
applicant that include changes to the
activity or the mitigation, monitoring, or
reporting (excluding changes made
pursuant to the adaptive management
provision in § 217.67(c)(1)) that do not
change the findings made for the
regulations or result in no more than a
minor change in the total estimated
number of takes (or distribution by
species or years), NMFS may publish a
notice of proposed Letter of
Authorization in the Federal Register,
including the associated analysis
illustrating the change, and solicit
public comment before issuing the
Letter of Authorization.
(c) A Letter of Authorization issued
under § 216.106 and § 217.66 of this
chapter for the activity identified in
§ 217.60(a) may be modified by NMFS
under the following circumstances:
(1) Adaptive Management—NMFS
may modify (including augment) the
existing mitigation, monitoring, or
reporting measures (after consulting
with the USAF regarding the
practicability of the modifications) if
doing so creates a reasonable likelihood
of more effectively accomplishing the
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15:17 Feb 21, 2014
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goals of the mitigation and monitoring
set forth in the preamble for these
regulations.
(i) Possible sources of data that could
contribute to the decision to modify the
mitigation, monitoring, or reporting
measures in a Letter of Authorization:
(A) Results from the USAF’s
monitoring from the previous year(s).
(B) Results from other marine
mammal and/or sound research or
studies.
(C) Any information that reveals
marine mammals may have been taken
in a manner, extent or number not
authorized by these regulations or
subsequent Letters of Authorization.
(ii) If, through adaptive management,
the modifications to the mitigation,
monitoring, or reporting measures are
substantial, NMFS will publish a notice
of proposed Letter of Authorization in
the Federal Register and solicit public
comment.
(2) Emergencies—If NMFS determines
that an emergency exists that poses a
significant risk to the well-being of the
species or stocks of marine mammals
specified in § 217.62(c) of this chapter,
a Letter of Authorization may be
modified without prior notice or
opportunity for public comment. Notice
would be published in the Federal
Register within 30 days of the action.
[FR Doc. 2014–03958 Filed 2–21–14; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Parts 622 and 635
[Docket No. 100510220–4111–06]
RIN 0648–AY87 and 0648–AY90
Fisheries of the Caribbean, Gulf of
Mexico, and South Atlantic; Highly
Migratory Species; Withdrawal of
Emergency Regulations Related to the
Deepwater Horizon MC252 Oil Spill
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Termination of emergency
regulations.
AGENCY:
NMFS terminates the
emergency regulations promulgated in
response to the Deepwater Horizon
MC252 oil spill. The circumstances that
created the need for emergency shortterm fishing closures no longer exist. As
of April 19, 2011, NMFS reopened all
areas of the Gulf of Mexico (Gulf)
SUMMARY:
PO 00000
Frm 00048
Fmt 4700
Sfmt 4700
exclusive economic zone (EEZ) that
were previously closed to all fishing
because of the oil spill. NMFS has
worked closely with the U.S. Food and
Drug Administration (FDA) to assess
whether seafood from the Gulf EEZ is
tainted or contaminated to levels that
pose a risk to human health. NMFS and
FDA have determined that seafood from
all previously closed areas of the Gulf
EEZ due to the oil spill is safe for
human consumption. Therefore, NMFS
withdraws the emergency regulations
that established a protocol for closing
and reopening portions of the Gulf,
South Atlantic, and Caribbean EEZ that
were or could potentially be affected by
the oil spill. The intent of this rule is to
withdraw the now obsolete regulations
from the codified text. While NMFS and
FDA determined that seafood from areas
previously closed due to the oil spill is
safe for human consumption, NOAA
and other natural resource trustees
continue to study the impacts of the oil
spill through the natural resource
damage assessment process to identify
the extent of injuries to natural
resources and services, as well as the
proposed restoration alternatives to
compensate for such injuries.
DATES: The rule is effective February 24,
2014.
ADDRESSES: Electronic copies of the
documents supporting this final rule
may be downloaded from the Southeast
Regional Office Web site at https://
sero.nmfs.noaa.gov/deepwater_horizon_
oil_spill.htm.
FOR FURTHER INFORMATION CONTACT:
Anik Clemens, telephone: 727–824–
5305, email: anik.clemens@noaa.gov.
SUPPLEMENTARY INFORMATION: The
Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act) provides the
legal authority for the withdrawal of
emergency regulations that respond to
an oil spill under section 305(c).
Background
NMFS responded to the April 20,
2010 Deepwater Horizon MC252 oil
spill by closing a portion of the Gulf
EEZ to all fishing through an emergency
rule effective May 2, 2010 (75 FR 24822,
May 6, 2010). The intent of the
emergency rule was to prohibit the
harvest of adulterated seafood. A second
emergency rule effective May 7, 2010
(75 FR 26679, May 12, 2010), expanded
the closed area in the Gulf.
The oil spill continually shifted
locations in the Gulf and had the
potential to reach the South Atlantic
and/or Caribbean EEZ, due to wind
speed and direction, currents, waves,
and other weather patterns. As the
E:\FR\FM\24FER1.SGM
24FER1
]]>Agencies
[Federal Register Volume 79, Number 36 (Monday, February 24, 2014)]
[Rules and Regulations]
[Pages 10016-10028]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-03958]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 130820738-4114-02]
RIN 0648-BD62
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to U.S. Air Force Launches, Aircraft and Helicopter
Operations, and Harbor Activities Related to Launch Vehicles From
Vandenberg Air Force Base (VAFB), California
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS, upon application from the U.S. Air Force (USAF), is
issuing regulations pursuant to the Marine Mammal Protection Act (MMPA)
to
[[Page 10017]]
govern the unintentional taking of marine mammals incidental to
launches, aircraft and helicopter operations from VAFB launch complexes
and Delta Mariner operations, cargo unloading activities, and harbor
maintenance dredging in support of the Delta IV/Evolved Expendable
Launch Vehicle (EELV) launch activity on south VAFB for the period
March 2014 to March 2019. These regulations, which allow for the
issuance of Letters of Authorization (LOAs) for the incidental take of
marine mammals during the described activities and specified
timeframes, prescribe the permissible methods of taking and other means
of effecting the least practicable adverse impact on marine mammal
species or stocks and their habitat, as well as requirements pertaining
to the monitoring and reporting of such taking.
DATES: Effective from March 26, 2014 through March 26, 2019.
ADDRESSES: A copy of the application and our Environmental Assessment
(EA) and Finding of No Significant Impact (FONSI) may be obtained by
visiting the Internet at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Documents cited in this final rule may
also be viewed, by appointment, during regular business hours at 1315
East West Highway, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Candace Nachman, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and (D) of the Marine Mammal Protection Act
(MMPA; 16 U.S.C. 1361 et seq.) direct the Secretary of Commerce
(Secretary) to allow, upon request, the incidental, but not intentional
taking of small numbers of marine mammals by U.S. citizens who engage
in a specified activity (other than commercial fishing) within a
specified geographical region if certain findings are made and either
regulations are issued or, if the taking is limited to harassment,
notice of a proposed authorization is provided to the public for
review.
Authorization for incidental takings may be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for certain subsistence uses,
and that the permissible methods of taking and requirements pertaining
to the mitigation, monitoring and reporting of such taking are set
forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 as:
``an impact resulting from the specified activity that cannot be
reasonably expected to, and is not reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.''
The National Defense Authorization Act of 2004 (NDAA) (Pub. L. 108-
136) removed the ``small numbers'' and ``specified geographical
region'' limitations and amended the definition of ``harassment'' as it
applies to a ``military readiness activity'' to read as follows
(Section 3(18)(B) of the MMPA): ``(i) any act that injures or has the
significant potential to injure a marine mammal or marine mammal stock
in the wild [Level A Harassment]; or (ii) any act that disturbs or is
likely to disturb a marine mammal or marine mammal stock in the wild by
causing disruption of natural behavioral patterns, including, but not
limited to, migration, surfacing, nursing, breeding, feeding, or
sheltering, to a point where such behavioral patterns are abandoned or
significantly altered [Level B Harassment].'' Because the USAF's
activities constitute military readiness activities, they are not
subject to the small numbers or specified geographic region limiations.
Based on a previous request from the USAF, NMFS issued regulations
and LOAs to the USAF to allow it to take species of pinnipeds at the
VAFB. Those regulations and LOAs expired on February 6, 2014.
Summary of Request
On June 24, 2013, NMFS received an application from the USAF
requesting regulations and an LOA for the take of five species of
pinnipeds incidental to USAF launch, aircraft, and helicopter
operations from VAFB launch complexes and Delta Mariner operations,
cargo unloading activities, and harbor maintenance dredging. The Delta
Mariner operations, cargo unloading, and harbor maintenance dredging
are conducted in support of the Delta IV/EELV launch activity from
Space Launch Complex 6 on south VAFB. NMFS has issued regulations to
govern these activities, to be effective from March 2014, through March
2019. These training activities are classified as military readiness
activities. The USAF states that these activities may result in take of
marine mammals from noise or visual disturbance from rocket and missile
launches, as well as from the use of heavy equipment during the Delta
Mariner off-loading operations, cargo movement activities, increased
presence of personnel, and harbor maintenance dredging. The USAF
requested authorization to take annually five pinniped species by Level
B Harassment: Pacific harbor seals; California sea lions; northern
elephant seals; northern fur seals; and Steller sea lions. In this
final rule, NMFS has authorized the take by Level B harassment of all
five species listed here.
Activities relating to the Delta Mariner operations have been
authorized previously by NMFS under annual Incidental Harassment
Authorizations (IHAs). To date, we have issued 10 IHAs to United Launch
Alliance (working on behalf of the USAF) to take marine mammals
incidental to conducting operations in support of Delta IV/EELV launch
activity from Space Launch Complex (SLC) 6. The most recent IHA was
effective from September 26, 2012, through September 25, 2013. Through
this final rulemaking, NMFS and the USAF are incorporating the Delta
Mariner operations into the rulemaking for the launch, aircraft, and
helicopter operations at VAFB.
Description of the Specified Activity
VAFB Launch Activities and Aircraft and Helicopter Operations
VAFB (see Figure 1 in the USAF application) is headquarters to the
30th Space Wing (SW), the Air Force Space Command unit that operates
VAFB and the Western Range. VAFB operates as a missile test base and
aerospace center, supporting west coast space launch activities for the
USAF, Department of Defense, National Aeronautics and Space
Administration, and commercial contractors. VAFB is the main west coast
launch facility for placing commercial, government, and military
satellites into polar orbit on expendable (unmanned) launch vehicles,
and for testing and evaluating intercontinental ballistic missiles
(ICBM) and sub-orbital target and interceptor missiles. In addition to
space vehicle and missile launch activities at VAFB, there are
helicopter and aircraft operations for purposes such as search-and-
rescue, delivery of space vehicle components, launch mission support,
security reconnaissance, and training flights. The USAF anticipates
that the space and missile launch frequency will not exceed a combined
total of 50 launches (35 rockets and 15 missiles) per year from VAFB.
Table 1 in this document outlines the numbers of rocket and missile
launches that occurred in 2011, 2012, and 2013. Although subject to
change, Table 2 presents preliminary estimates of the numbers of rocket
and missile launches from VAFB during calendar years 2014 through 2019.
Estimates for the earlier years are likely
[[Page 10018]]
more accurate than those for the last two to three years. However, as
noted earlier, the launch frequency is not anticipated to exceed 50
launches in a given year. Any launches over this amount would require
additional coordination between NMFS and the USAF before they occur.
Table 1--Numbers of Rocket and Missile Launches in Calendar Years 2011,
2012, and 2013, From VAFB
------------------------------------------------------------------------
Year Rocket launches Missile launches
------------------------------------------------------------------------
2011................ 7....................... 2
2012................ 2....................... 2
2013................ 4 (as of Sept. 24, 2013, 5 (as of Sept. 24, 2013,
3 rockets launched with 3 missiles launched
1 additional planned with 2 additional
before Dec. 31). planned before Dec. 31)
------------------------------------------------------------------------
Table 2--Preliminary Numbers of Projected Rocket and Missile Launches in
Calendar Years 2014 Through 2019 From VAFB
[The projections for calendar years 2018 and 2019 are highly preliminary
at this time]
------------------------------------------------------------------------
Rocket Missile
Year launches launches
------------------------------------------------------------------------
2014.................................... 6 6
2015.................................... 9 5
2016.................................... 9 6
2017.................................... 4 5
2018.................................... 9 6
2019.................................... 12 7
------------------------------------------------------------------------
There are currently six active facilities at VAFB used to launch
satellites into polar orbit. These facilities support launch programs
for the Atlas V, Delta II, Delta IV, Falcon 9, Minotaur, and Taurus
rockets. Various booster and fuel packages can be configured to
accommodate payloads. Details on the vehicle types and the sound
exposure levels (SELs) produced by each missile or rocket, as well as
the helicopter and aircraft operations, were described in the proposed
rule (78 FR 73794, December 9, 2013). That information has not changed
and therefore is not repeated here.
Timeframe of USAF Launch and Aircraft Operations
Launch and aircraft operations could occur at any time of the day
or night during the period to be covered under this final rule and
associated LOA (March 2014-March 2019). The USAF anticipates that no
more than 15 missile and 35 rocket launches would occur in any year.
This number is far higher than launch activity in previous years, but
one new facility (SLC 4) is being reactivated with intent to increase
``commercial launch'' activity, and Test Pad-01 is being renovated. The
USAF notes that activity levels over the 5-year period between March
2014 and March 2019 will not exceed 75 missile and 175 rocket launches
without additional coordination with NMFS. All launch operations would
occur at VAFB, potentially resulting in launch noise and visual impacts
there. Potential sonic boom impacts from space launch vehicles (SLVs)
could occur over the Northern Channel Islands (NCI). Missiles are
launched in a westerly trajectory and do not impact the NCI. Aircraft
operations would occur only at VAFB and are anticipated to only impact
hauled out pinnipeds when flying at low altitudes (i.e., typically
below 305 m [1,000 ft]).
Harbor Activities Related to the Delta IV Evolved Expendable Launch
Vehicle
The Delta IV/EELV is comprised of a common booster core, an upper
stage, and a payload fairing. The size of the common booster core
requires it to be transported to the Base's launch site by a specially-
designed vessel, the Delta Mariner. United Launch Alliance operates the
Delta Mariner on behalf of the USAF. The Delta Mariner docks at the
harbor on south VAFB. To allow safe operation of the Delta Mariner,
United Launch Alliance requires that the harbor undergo maintenance on
a periodic basis. The proposed rule contained a full description of the
Delta Mariner operations, harbor maintenance dredging, and cargo
movement activities (78 FR 73794, December 9, 2013). Those activities
have not changed and therefore are not described again here.
Timeframe of Delta Mariner Activities
Cargo movement operations would occur for approximately 43 days
(concurrent with the harbor maintenance activities). A fully-loaded
vessel can be offloaded in 10 hours; however, the Delta Mariner may
need to leave the dock and return at another time due to tide and wind
extremes that may halt the removal of cargo. Dredging-related
activities normally last between 3 and 5 weeks, including set-up and
tear-down activities in the water and on shore. Dredging may proceed 24
hours per day to complete the job as quickly as possible and minimize
the disruptive effect on the local animals; however, dredging at VAFB
has historically been conducted in the daylight. Sedimentation surveys
completed since the initial dredging indicate that maintenance dredging
could be required annually, or even twice per year, depending on the
hardware delivery schedule. Up to 5,000 cubic yards of sediment are
allowed to be removed from the harbor per year by the United States
Army Corps of Engineers permit. A survey occurs several months prior to
each Delta Mariner visit to assess whether the harbor can be safely
navigated. The area to be dredged is shown in Figure 1.2-1 of Appendix
A in the application.
We expect that acoustic stimuli, resulting from the Delta Mariner
activities, have the potential to incidentally harass marine mammals.
We also expect these disturbances to be temporary and result in a
temporary modification in behavior and/or low-level physiological
effects (Level B harassment only) of certain species of marine mammals.
We do not expect that the movement of the Delta Mariner during the
conduct of the proposed activities has the potential to harass marine
mammals because of the relatively slow operation speed of the vessel
(1.5 to 2 kts; 1.72 mph) during its approach to the area at high tide
and the vessel's slow
[[Page 10019]]
operational speed (0.75 kts; 0.86 mph) during its approach to the
wharf.
Description of the Geographic Region of the Activities
VAFB
VAFB is composed of approximately 99,000 acres of land, and
approximately 64.4 km (40 mi) of coastline on the coast of central
California, within Santa Barbara County (see Figure 1 in the USAF
application). Space vehicles are launched into polar orbits on azimuths
from 147-201 degrees, with sub-orbital flights to 281 degrees. Missile
launches are directed toward Kwajalein Atoll in the Pacific. This over-
water sector, from 147-281 degrees, comprises the Western Range. Part
of the Western Range encompasses the NCI (see Figure 1 in the USAF
application).
NCI
The NCI are located approximately 50 km (31 mi) south of the
southern point on VAFB. Three islands, San Miguel, Santa Cruz, and
Santa Rosa, make up the main NCI, with San Miguel Island being the
primary site for pinniped rookeries. The NCI are part of the Channel
Islands National Park and the Channel Islands National Marine
Sanctuary. The closest part of the NCI (Harris Point on San Miguel
Island) is located more than 55 km (34 mi) south-southeast of the
nearest launch facility.
VAFB Harbor
The harbor maintenance and Delta Mariner activities will take place
in or near the VAFB harbor located on the central coast of California
at 34[deg] 33' N., 120[deg] 36' W. in the northeast Pacific Ocean.
Activities related to these operations and described in Appendix A of
the application will take place at VAFB harbor, located on South Base,
approximately 2.3 km (1.4 mi) south of Point Arguello, CA, and
approximately 1 mi (1.61 km) south of the nearest marine mammal
rookery.
Description of Marine Mammals in the Area of the Specified Activity
Sections 3 and 4 of the USAF application and Sections 3 and 4 of
Appendix A of the application contain detailed information on the
abundance, status, and distribution of the species on VAFB and the NCI
from surveys that they have conducted over the last decade and from
NMFS Stock Assessment Reports (SARs). This information was summarized
in the proposed rule (78 FR 73794, December 9, 2013) and may be viewed
in detail in the USAF's LOA application (see ADDRESSES). Additional
information is available in the NMFS SARs, which are available at:
https://www.nmfs.noaa.gov/pr/sars/pdf/po2012.pdf.
The species most likely to occur at VAFB and the VAFB harbor are
Pacific harbor seals, California sea lions, and northern elephant
seals. Steller sea lions have also been seen in recent years at VAFB.
However, Steller sea lions are not anticipated to be encountered on the
NCI. Northern fur seals may be encountered on the NCI but are not found
at VAFB haul-outs. Table 3 in this document outlines current population
estimates of the five pinniped species described here on the NCI.
Table 3--NCI Pinniped Population Estimates
----------------------------------------------------------------------------------------------------------------
Species San Miguel Island Santa Rosa Island Santa Cruz Island Anacapa Island
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal............ 900................ 1,000............. 1,000............. 100
California sea lion............ 32,000 pups born in 500 \2\........... 1,200 \2\......... 1,000.\2\
2012.\1\
Northern elephant seal......... 10,000 2,000 Occasional Rare transient.
pups yearly. pups yearly. transient.
Steller sea lion............... Rare transient..... None.............. None.............. None.
Northern fur seal.............. 9,968.............. None.............. None.............. None.
----------------------------------------------------------------------------------------------------------------
Sources: Carretta et al. 2011 and 2012; Allen and Angliss 2011 and 2012.
\1\ No estimate is available for the total sea lion population on each main rookery island. Instead, pup counts
are made at various breeding areas, and from this count, an estimate is made of the stock size, which includes
pups, subadults and adults.
\2\ Regular surveys are not conducted of these islands, and pupping is very sporadic and minimal there. These
are estimates of the total number of sea lions at these islands.
Other Marine Mammals in the Proposed Action Area
There are several cetaceans that have the potential to transit in
the vicinity of VAFB, including the short-beaked common dolphin
(Delphinus delphis), the Pacific white-sided dolphin (Lagenorhynchus
obliquidens), and the gray whale (Eschrichtius robustus). We do not
consider these species further in this final rule because they are
typically found farther offshore of VAFB and the VAFB harbor and are
unlikely or rare in the action area. Guadalupe fur seals (Arctocephalus
townsendi) are reported occasionally at San Miguel Island; and, in
1998, a pup was successfully weaned there (Melin and DeLong, 1999).
However, their occurrence is rare.
California (southern) sea otters (Enhydra lutris nereis) are listed
as threatened under the Endangered Species Act and categorized as
depleted under the MMPA. The U.S. Fish and Wildlife Service manages
this species, and we do not consider this species in greater detail
within this final rule. This final rule only address requested take
authorizations for pinnipeds. The USAF launch, aircraft, and helicopter
operations have the potential to take Pacific harbor seals, California
sea lions, northern elephant seals, Steller sea lions, and northern fur
seals by Level B harassment. The harbor activities related to the
launch vehicles at VAFB have the potential to take four of the same
species (all but northern fur seals, which are not found in the
vicinity of the VAFB harbor) by Level B harassment.
Potential Effects of Specified Activities on Marine Mammals
The activities proposed have the potential to cause harassment of
marine mammals through both acoustic and visual stimuli. The USAF
launch and aircraft activities create two types of noise: continuous
(but short-duration) noise, due mostly to combustion effects of
aircraft and launch vehicles; and impulsive noise, due to sonic boom
effects. Launch operations are the major source of noise on the marine
environment from VAFB. The operation of launch vehicle engines produces
significant sound levels. Generally, noise is generated from four
sources during launches: (1) Combustion noise from launch vehicle
chambers; (2) jet noise generated by the interaction of the exhaust jet
and the atmosphere; (3) combustion noise from the post-burning of
combustion products; and (4) sonic booms. Launch noise levels are
highly dependent on the type of first-stage booster and the fuel used
to propel the vehicle. Therefore, there is a great similarity in launch
noise production within each class size of launch
[[Page 10020]]
vehicles. The noise generated by VAFB activities will result in the
incidental harassment of pinnipeds, both behaviorally and in terms of
physiological (auditory) impacts.
Acoustic and visual stimuli generated by the use of heavy equipment
during the Delta Mariner off-loading operations and harbor dredging and
the increased presence of personnel may have the potential to cause
Level B harassment of any pinnipeds hauled out in the VAFB harbor. This
disturbance from acoustic and visual stimuli is the principal means of
marine mammal taking associated with these activities.
The noise and visual disturbances from SLV and missile launches,
aircraft and helicopter operations, and harbor maintenance activities
may cause the animals to lift their heads, move towards the water, or
enter the water. The proposed rule (78 FR 73794, December 9, 2013)
contained information regarding marine mammal responses to launch noise
and harbor maintenance activities that has been gathered under previous
LOAs and IHAs for these activities, as well as a scientific research
permit issued to VAFB by NMFS for a research program (Permit No. 859-
1680-01, expired January 1, 2009, and Permit No. 14197, expires June
30, 2014) to determine the short and long-term effects of SLV noise and
sonic booms on affected marine mammals. That information is not
repeated here.
In general, if the received level of the noise stimulus exceeds
both the background (ambient) noise level and the auditory threshold of
the animals, and especially if the stimulus is novel to them, there may
be a behavioral response. The probability and degree of response will
also depend on the season, the group composition of the pinnipeds, and
the type of activity in which they are engaged. Minor and brief
responses, such as short-duration startle or alert reactions, are not
likely to constitute disruption of behavioral patterns, such as
migration, nursing, breeding, feeding, or sheltering (i.e., Level B
harassment) and would not cause injury or mortality to marine mammals.
On the other hand, startle and alert reactions accompanied by large-
scale movements, such as stampedes into the water of hundreds of
animals, may rise to Level A harassment because animals could be
injured. In addition, such large-scale movements by dense aggregations
of marine mammals or at pupping sites could potentially lead to takes
by injury or death. However, there is very little potential for large-
scale movements leading to serious injury or mortality near the south
VAFB harbor because, historically, the number of harbor seals hauled
out near the site is less than 30 individuals, and there is no pupping
at nearby sites. The effects of the harbor activities are expected to
be limited to short-term startle responses and localized behavioral
changes. Additionally, the USAF does not anticipate a significant
impact on any of the species or stocks of marine mammals from launches
from VAFB. For even the largest launch vehicles, such as Delta IV, the
launch noises and sonic booms can be expected to cause a startle
response and flight to water for those harbor seals, California sea
lions and other pinnipeds that are hauled out on the coastline of VAFB
and on the NCI. The noise may cause temporary threshold shift in
hearing depending on exposure levels, but no permanent threshold shift
is anticipated. Because aircraft will fly at altitudes greater than 305
m (1,000 ft) around pinniped haul-outs and rookeries, animals are not
anticipated to react to aircraft and helicopter overflights.
The potential effects to marine mammals described in this section
of the document do not take into consideration the required monitoring
and mitigation measures described later in this document (see the
``Mitigation'' and ``Monitoring and Reporting'' sections) which, as
noted, should effect the least practicable adverse impact on affected
marine mammal species and stocks.
Anticipated Effects on Marine Mammal Habitat
Impacts on marine mammal habitat are part of the consideration in
making a finding of negligible impact on the species and stocks of
marine mammals. Habitat includes rookeries, mating grounds, feeding
areas, and areas of similar significance. We do not anticipate that the
operations would result in any temporary or permanent effects on the
habitats used by the marine mammals in the area, including the food
sources they use (i.e. fish and invertebrates). While it is anticipated
that the specified activity may result in marine mammals avoiding
certain areas due to temporary ensonification, this impact to habitat
is temporary and reversible and was considered in further detail, as
behavioral modification. The main impact associated with the activity
will be temporarily elevated noise levels and the associated direct
effects on marine mammals.
Mitigation
In order to issue an incidental take authorization (ITA) under
section 101(a)(5)(A) of the MMPA, NMFS must, where applicable, set
forth the permissible methods of taking pursuant to such activity, and
other means of effecting the least practicable adverse impact on such
species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of such species or stock for taking for subsistence
uses (where relevant). The NDAA of 2004 amended the MMPA as it relates
to military-readiness activities and the ITA process such that ``least
practicable adverse impact'' shall include consideration of personnel
safety, practicality of implementation, and impact on the effectiveness
of the ``military readiness activity.'' The training activities
described in the USAF application are considered military readiness
activities.
Section 11 of the USAF application and Section 11 of Appendix A in
the application contain descriptions of the mitigation measures to be
implemented during the specified activities in order to effect the
least practicable adverse impact on the affected marine mammal species
and stocks and their habitats. Please refer to the application (see
ADDRESSES) for the full description.
Measures During Launches and Aircraft and Helicopter Operations
All aircraft and helicopter flight paths must maintain a minimum
distance of 1,000 ft (305 m) from recognized seal haul-outs and
rookeries (e.g., Point Sal, Purisima Point, Rocky Point), except in
emergencies or for real-time security incidents (e.g., search-and-
rescue, fire-fighting) which may require approaching pinniped haul-outs
and rookeries closer than 1,000 ft (305 m). For missile and rocket
launches, unless constrained by other factors including human safety,
national security concerns or launch trajectories, holders of LOAs must
schedule launches to avoid, whenever possible, launches during the
harbor seal pupping season of March through June. The USAF must avoid,
whenever possible, launches which are predicted to produce a sonic boom
on the NCI during harbor seal, elephant seal, California sea lion, and
northern fur seal pupping seasons.
If post-launch surveys determine that an injurious or lethal take
of a marine mammal has occurred, the launch procedure and the
monitoring methods must be reviewed, in cooperation with NMFS, and
appropriate changes must be made through modification to an LOA, prior
to conducting the next launch of the same vehicle under that LOA.
[[Page 10021]]
Measures During Harbor Activities
To reduce the potential for disturbance from visual and acoustic
stimuli associated with the activities, the USAF contractor, United
Launch Alliance/and or its designees, will implement the following
mitigating measures for marine mammals:
(1) If activities occur during nighttime hours, turn on lighting
equipment before dusk. The lights would remain on for the entire night
to avoid startling pinnipeds.
(2) Initiate operations before dusk.
(3) Keep construction noises at a constant level (i.e., not
interrupted by periods of quiet in excess of 30 minutes) while
pinnipeds are present.
(4) If activities cease for longer than 30 minutes and pinnipeds
are in the area, initiate a gradual start-up of activities to ensure a
gradual increase in noise levels.
(5) A qualified observer would visually monitor the harbor seals on
the beach adjacent to the harbor and on rocks for any flushing or other
behaviors as a result of the activities (see Monitoring).
(6) The Delta Mariner and accompanying vessels would enter the
harbor only when the tide is too high for harbor seals to haul-out on
the rocks; reducing speed to 1.5 to 2 knots (1.5-2 nm/hr; 2.8-3.7 km/
hr) once the vessel is within 3 mi (4.83 km) of the harbor. The vessel
would enter the harbor stern first, approaching the wharf and moorings
at less than 0.75 knot (1.4 km/hr).
(7) Explore alternate dredge methods and introduce quieter
techniques and equipment as they become available.
Mitigation Conclusions
NMFS has carefully evaluated the applicant's mitigation measures
and considered a range of other measures in the context of ensuring
that NMFS prescribes the means of effecting the least practicable
adverse impact on the affected marine mammal species and stocks and
their habitat. Our evaluation of potential measures included
consideration of the following factors in relation to one another:
The manner in which, and the degree to which, the
successful implementation of the measure is expected to minimize
adverse impacts to marine mammals;
The proven or likely efficacy of the specific measure to
minimize adverse impacts as planned; and
The practicability of the measure for applicant
implementation, including consideration of personnel safety,
practicality of implementation, and impact on the effectiveness of the
military readiness activity.
Based on our evaluation of the applicant's measures, as well as
other measures considered, NMFS has determined that the mitigation
measures described above provide the means of effecting the least
practicable adverse impact on marine mammals species or stocks and
their habitat, paying particular attention to rookeries, mating
grounds, and areas of similar significance while also considering
personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity.
Monitoring and Reporting
In order to issue an ITA for an activity, section 101(a)(5)(A) of
the MMPA states that we must set forth ``requirements pertaining to the
monitoring and reporting of such taking.'' The Act's implementing
regulations at 50 CFR 216.104(a)(13) indicate that requests for an
authorization must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and our expectations of the level of taking or
impacts on populations of marine mammals present in the action area.
As part of its application, the USAF provided a monitoring plan,
similar to that in the current regulations (50 CFR 216.125) and
previous IHAs issued to United Launch Alliance, for assessing impacts
to marine mammals from rocket and missile launches at VAFB and Delta
Mariner operations. This monitoring plan is described, in detail, in
Section 8 of the main portion of the application for launch monitoring
activities and Section 13 of Appendix A of the application for Delta
Mariner operations monitoring activities. The following monitoring will
be conducted under these regulations.
The monitoring will be conducted by a NMFS-approved marine mammal
biologist experienced in surveying large numbers of marine mammals.
Monitoring for Launches on VAFB
Monitoring at the haul-out site closest to the launch facility will
commence at least 72 hours prior to the launch and continue until at
least 48 hours after the launch. Biological monitoring at VAFB will be
conducted for all launches during the harbor seal pupping season, 1
March to 30 June. Acoustic and biological monitoring will be conducted
on new space and missile launch vehicles during at least the first
launch, whether it occurs within the pupping season or not.
Monitoring will include multiple surveys each day that record, when
possible, the species, number of animals, general behavior, presence of
pups, age class, gender, and reaction to launch noise, sonic booms, or
other natural or human-caused disturbances. Environmental conditions
such as tide, wind speed, air temperature, and swell will also be
recorded. Time-lapse photography or video will be used during daylight
launches to document the behavior of mother-pup pairs during launch
activities. For launches during the harbor seal pupping season (March
through June), follow-up surveys will be made within 2 weeks of the
launch to ensure that there were no adverse effects on any marine
mammals. A report detailing the species, number of animals observed,
behavior, reaction to the launch noise, time to return to the haul-out
site, any adverse behavior and environmental conditions will be
submitted to NMFS within 90 days of the launch.
Monitoring for the NCI
Monitoring will be conducted on the NCI (San Miguel, Santa Cruz,
and Santa Rosa Islands) whenever a sonic boom over 1 pound per square
foot (psf) is predicted (using the most current sonic boom modeling
programs) to impact one of the islands between March 1 and June 30,
over 1.5 psf between July 1 and September 30, and over 2 psf between
October 1 and February 28. Monitoring will be conducted at the haul-out
site closest to the predicted sonic boom impact area. Monitoring will
be conducted by a NMFS-approved marine mammal biologist experienced in
surveying large numbers of marine mammals. Monitoring will commence at
least 72 hours prior to the launch and continue until at least 48 hours
after the launch (if a sonic boom was detected during the actual
launch).
Sonic boom prediction modeling is not conducted prior to missile
launches because of their trajectories, which do not have the potential
to overfly and/or impact the NCI with sonic booms. Launches from the
following sites would not overfly the NCI: Space Launch Complexes 2, 3,
6, and 8; Launch Facility 576-E, Test pad 01; and missile launch
facilities 4, 9, 10, 23, and 24.
Monitoring will include multiple surveys each day that record the
species, number of animals, general behavior, presence of pups, age
class, gender, and reaction to launch noise, sonic booms, or other
natural or human-caused disturbances. Environmental
[[Page 10022]]
conditions such as tide, wind speed, air temperature, and swell will
also be recorded. Due to the large numbers of pinnipeds found on some
beaches of San Miguel Island, smaller focal groups should be monitored
in detail rather than the entire beach population. A general estimate
of the entire beach population should be made once a day and their
reaction to the launch noise noted. Photography or video will be used
during daylight launches to document the behavior of mother-pup pairs
or dependent pups during launch activities. During the pupping season
of any species affected by a launch, follow-up surveys will be made
within 2 weeks of the launch to ensure that there were no adverse
effects on any marine mammals. A report detailing the species, number
of animals observed, behavior, reaction to the launch noise, time to
return to the haul-out site, any adverse behavior and environmental
conditions will be submitted to NMFS within 90 days of the launch.
Harbor Activities
United Launch Alliance will designate a qualified and biologically
trained observer to monitor the area for pinnipeds during all harbor
activities. During nighttime activities, United Launch Alliance will
illuminate the harbor area and the observer will use a night vision
scope.
Monitoring activities will consist of the following:
(1) Conducting baseline observation of pinnipeds in the project
area prior to initiating project activities.
(2) Conducting and recording observations on pinnipeds in the
vicinity of the harbor for the duration of the activity occurring when
tides are low enough (less than or equal to 2 ft (0.61 m) for pinnipeds
to haul out.
(3) Conducting post-construction observations of pinniped haul-outs
in the project area to determine whether animals disturbed by the
project activities return to the haul-out.
Reporting Measures
A report containing the following information must be submitted to
NMFS within 90 days after each launch: (1) Date(s) and time(s) of each
launch; (2) date(s), location(s), and preliminary findings of any
research activities related to monitoring the effects on launch noise
and sonic booms on marine mammal populations; and (3) results of the
monitoring programs, including but not necessarily limited to (a)
numbers of pinnipeds present on the haul-out prior to commencement of
the launch, (b) numbers of pinnipeds that may have been harassed as
noted by the number of pinnipeds estimated to have entered the water as
a result of launch noise, (c) the length of time(s) pinnipeds remained
off the haul-out or rookery, (d) the numbers of pinniped adults or pups
that may have been injured or killed as a result of the launch, and (4)
any behavioral modifications by pinnipeds that likely were the result
of launch noise or the sonic boom.
If a freshly dead or seriously injured pinniped is found during
post-launch monitoring, the incident must be reported within 48 hours
to the NMFS Office of Protected Resources and the NMFS West Coast
Regional Office.
An annual report must be submitted to NMFS on March 1 of each year.
The first report will cover the time period from issuance of the LOA
through February 28, 2015. Each annual report after that time will
cover the time period from March 1 through February 28. Information in
the annual reports will describe any incidental takings under an LOA
not reported in the 90-day launch reports, such as the aircraft test
program and helicopter operations and any assessments made of their
impacts on hauled-out pinnipeds, summarize the information from the 90-
day launch reports, and describe the information collected during
monitoring of Delta Mariner operations. Information related to Delta
Mariner operations that must be included in the annual report include:
(1) Date, time, and duration of activity; (2) weather; (3) tide status;
(4) composition (species, gender, and age class) and locations of haul-
out group(s); (5) horizontal visibility; and (6) and results of the
monitoring program, which include (i) number and species of pinnipeds
present on haul-out(s) prior to start of activity and behavioral
patterns, (ii) number and species of pinnipeds that may have been
harassed as noted by the number of pinnipeds estimated to have entered
the water as a result of noise related to the activity, (iii) brief
description of any activity/action that causes animal(s) to flush, (iv)
length of time pinnipeds remained off the haul-out or rookery, and (v)
noted behavioral modifications by pinnipeds that were likely the result
of the activity in the harbor.
A final report must be submitted to NMFS no later than 180 days
prior to expiration of these regulations. This report must summarize
the findings made in all previous reports and assess both the impacts
at each of the major rookeries and the cumulative impact on pinnipeds
and any other marine mammals from the specified activities.
Adaptive Management
NMFS has included an adaptive management component in the
regulations governing the take of marine mammals incidental to the USAF
activities at VAFB. In accordance with 50 CFR 216.105(c), regulations
must be based on the best available information. As new information is
developed, through monitoring, reporting, or research, the regulations
may be modified, in whole or in part, after notice and opportunity for
public review. The use of adaptive management will allow NMFS to
consider new information from different sources to determine if
mitigation or monitoring measures should be modified (including
additions or deletions) if new data suggest that such modifications are
appropriate for subsequent LOAs. The following are some of the possible
sources of applicable data:
Results from the USAF's monitoring from the previous year;
Results from general marine mammal and/or sound research
or studies; or
Any information which reveals that marine mammals may have
been taken in a manner, extent or number not authorized by these
regulations or subsequent LOAs.
In addition, LOAs shall be withdrawn or suspended if, after notice
and opportunity for public comment, the Assistant Administrator finds,
among other things, the regulations are not being substantially
complied with or the taking allowed is having more than a negligible
impact on the species or stock, as allowed for in 50 CFR 216.106(e).
That is, should monitoring and reporting indicate that the operations
and activities from VAFB launch complexes or at VAFB harbor are having
more than a negligible impact on marine mammals, then NMFS reserves the
right to modify the regulations and/or withdraw or suspend an LOA after
public review.
Comments and Responses
On December 9, 2013 (78 FR 73794), we published a proposed rule in
response to the USAF's request to take marine mammals incidental to
launch, aircraft, and helicopter operations from VAFB launch complexes
and Delta Mariner operations, cargo unloading activities, and harbor
maintenance dredging in support of the Delta IV/EELV launch activity on
south VAFB for a period of 5 years, requesting comments, information,
and suggestions concerning the request. During the 30-day public
comment period, we
[[Page 10023]]
received a letter from the Marine Mammal Commission. The letter stated
that the Marine Mammal Commission concurs with NMFS' preliminary
finding and therefore recommends that NMFS issue the final rule,
subject to inclusion of the proposed mitigation, monitoring, and
reporting measures. We have included all of the mitigation, monitoring,
and reporting measures contained in the proposed rule in this final
rule. We did not receive any other letters or comments from the public
on the proposed rule.
Numbers of Marine Mammals Estimated To Be Taken by Harassment
The marine mammal species NMFS believes likely to be taken by Level
B harassment incidental to launch and aircraft and helicopter
operations at VAFB are harbor seals, California sea lions, northern
elephant seals, northern fur seals, and Steller sea lions. NMFS
believes that all of these species except for northern fur seals are
likely to be taken by Level B harassment incidental to Delta Mariner
operations at the VAFB harbor. All of these species are protected under
the MMPA, and none are listed under the Endangered Species Act (ESA).
On November 4, 2013, NMFS published a final rule delisting the eastern
distinct population segment (DPS) of Steller sea lions (78 FR 66139).
We have determined that this DPS has recovered and no longer meets the
definition of an endangered or threatened species under the ESA. The
Steller sea lions at VAFB are part of the eastern DPS. Numbers of
animals that may be taken by Level B harassment are expected to vary
due to factors such as type of SLV, location of the sonic boom, weather
conditions (which can influence the size of the sonic boom), the time
of day, and the time of year, as well as launch trajectory and the
number of launches in a given year. For this reason, ranges are given
for the harassment estimates of marine mammals. Aircraft operations
will occur frequently but will avoid pinniped haul-out areas and are
unlikely to disturb pinnipeds.
As noted earlier, sightings of Guadalupe fur seals have been
extremely rare the last few decades at VAFB and on the NCI. Therefore,
no takes by harassment are anticipated for this species incidental to
the proposed activities.
Take estimates at VAFB and the NCI from launches are based on
decades of visual observations and systematic marine mammal surveys
conducted at the launch sites and known pinniped haul-outs on VAFB and
the NCI. Surveys are conducted by VAFB marine mammal monitors, as well
as National Park Service employees. Take estimates at the VAFB harbor
are based on visual observations conducted there since 2001 by marine
mammal monitors noting observations during Delta Mariner operations.
Estimated Takes at VAFB
The following text describes the potential range of takes possible
of pinnipeds on VAFB during launches. Table 4 provides this information
in outline form.
Harbor seals: As many as 400 harbor seals per launch may be taken.
Depending on the type of rocket being launched, the time of day, time
of the year, weather conditions, tide and swell conditions, the number
of seals that may be taken will range between 0 and 400. Launches and
aircraft operations may occur at any time of the year, so any age
classes and gender may be taken.
California sea lions: As many as 300 sea lions per launch may be
taken. Sea lions at VAFB are usually juveniles of both sexes and sub-
adult males that haul out in the fall during the post breeding
dispersal. Births generally do not occur at VAFB, but five pups were
observed at VAFB in 2003, an El Nino year, although all were abandoned
by their mothers and died within several days of birth. Sick or
emaciated weaned pups may also haul out briefly.
Northern elephant seals: As many as 100 elephant seals per launch
may be taken. Weaned elephant seal pups, juveniles, or young adults of
both sexes, may occasionally haul out at VAFB for several days to rest
or as long as 30 days to molt. Injured or sick seals may also haul out
briefly.
Steller sea lions: Steller sea lions have only been noted at VAFB
in April and May of 2012 and again from February-April 2013. Numbers
were small. As many as 36 Steller sea lions may be taken per launch.
Northern fur seals: There are no reports of northern fur seals at
VAFB. Therefore, it is unlikely that any fur seals will be taken.
Table 4--Predicted Level B Harassment Takes of Pinnipeds on VAFB on a per Launch Basis
--------------------------------------------------------------------------------------------------------------------------------------------------------
Takes per launch
Species Age groups Sex Reproductive condition from noise or Takes from aircraft
visual disturbance operations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pacific harbor seal............... All.................. Both................. Pupping and breeding March 0-400............... None.
through June.
California sea lion............... All.................. Both................. Pupping and breeding June 0-300............... None.
through July, but no
pupping expected at VAFB.
Northern elephant seal............ All.................. Both................. No pregnant or breeding 0-100............... None.
animals expected; mostly
``weaners''.
Steller sea lion.................. All.................. Both................. No pupping or breeding at 0-36................ None.
VAFB.
Northern fur seal................. Mostly juveniles..... Both................. Only stranded animals..... None................ None.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Takes on the NCI
Sonic booms created by SLVs may impact marine mammals on the NCI,
particularly San Miguel Island. Missile launches utilize westward
trajectories so do not cause sonic boom impacts to the NCI. Sonic boom
modeling software will continue to be used to predict the area of sonic
boom impact and magnitude of the sonic boom on the NCI based on the
launch vehicle, speed, trajectory, and meteorological conditions. Prior
to each SLV launch, a predictive sonic boom map of the impact area and
magnitude of the sonic boom will be generated. Based on previous
monitoring of sonic booms created by SLVs on San Miguel (Thorson et
al., 1999a: 1999b), it is estimated that as much as approximately 25
percent of the marine mammals may be disturbed on SMI (Thorson et al.,
1999a; 1999b). Most sonic booms that reach San Miguel Island are small
(<1 psf), although larger sonic booms are possible but rarely occur. A
conservative take estimate of as much as 25 percent of the animals
present is used for each species per launch. Table 5 presents the
potential
[[Page 10024]]
numbers of takes per launch event on the NCI.
Table 5--Predicted Level B Harassment Takes on the NCI on a per Launch Basis
----------------------------------------------------------------------------------------------------------------
Reproductive Takes per launch from
Species Age groups Sex condition sonic booms
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal........... All............. Both............ Pupping and breeding 0-200.
March through June.
California sea lion........... All............. Both............ Pupping and breeding 0-6,000 pups 0-3,000
June through July. juveniles and
adults.
Northern elephant seal........ All............. Both............ Pupping December 0-500 pups 1,000
through March. juveniles and
adults.
Steller sea lion.............. Adult........... Both............ No pupping or None; virtually no
breeding at NCI. presence on San
Miguel.
Northern fur seal............. Mostly juveniles Both............ Pupping and breeding 0-250 pups 0-1,000
in June and July. juveniles and
adults.
----------------------------------------------------------------------------------------------------------------
Estimated Takes From Delta Mariner Operations
Estimates of the numbers of marine mammals that might be affected
are based on consideration of the number of animals that could be
disturbed appreciably by approximately 43 days for Pacific harbor seals
and California sea lions, 8 days for northern elephant seals, and 3
days for Steller sea lions. The lower number of days for northern
elephant seals and Steller sea lions are based on the fact that those
species haul-out in fewer numbers and fewer times throughout the year
at the VAFB harbor than harbor seals or California sea lions.
Based on previous monitoring reports, with the same activities
conducted in the proposed operations area, we estimate that
approximately 1,161 Pacific harbor seals, 129 California sea lions, 24
northern elephant seals, and 24 Steller sea lions could be potentially
affected by Level B behavioral harassment over the course of each year
of activities. We base these estimates on historical pinniped survey
counts from 2001 to 2011, and calculated takes by multiplying the
average of the maximum abundance by the number of days noted above
(i.e., the total number of operational days). Thus, the USAF requests
authorization to incidentally harass approximately 1,161 Pacific harbor
seals (27 animals by 43 days), 129 California sea lions (3 animals by
43 days), 24 northern elephant seals (3 animals by 8 days), and 24
Steller sea lions (8 animals by 3 days).
Table 6 presents the maximum number of potential takes on an annual
basis. However, actual takes could be lower than this number. The range
of animals that could be taken is based on zero animals responding up
to the maximum for each launch event plus Delta Mariner operations.
Although not anticipated between 2014 and early 2019, up to 50 launches
per year are authorized for taking of marine mammals. However, as noted
in Table 2 earlier in this document, no more than 12-19 launches are
actually anticipated to occur on an annual basis between 2014 and 2019.
Additionally, not all launches will overfly the NCI. However, the
numbers presented in Table 6 represent the maximum end of the range and
assume that all 50 launches would overfly the NCI. Therefore, actual
takes will likely be much lower than the maximum estimate.
Table 6--Total Number of Annual Level B Takes From a Total of 50
Launches and Delta Mariner Operations
[Numbers are likely overestimated as not all launches would overfly the
NCI]
------------------------------------------------------------------------
Total number
of authorized
Species Level B takes
annually
------------------------------------------------------------------------
Pacific harbor seal..................................... 31,161
California sea lion..................................... 465,129
Northern elephant seal.................................. 80,024
Steller sea lion........................................ 1,824
Northern fur seal....................................... 62,500
------------------------------------------------------------------------
With the incorporation of mitigation measures described earlier in
this document, the USAF and NMFS expect that only Level B incidental
harassment may occur as a result of the activities and that these
events will result in no detectable impact on marine mammal species or
stocks or on their habitats.
Negligible Impact Analysis and Determination
We have defined ``negligible impact'' in 50 CFR 216.103 as ``. . .
an impact resulting from the specified activity that cannot be
reasonably expected to, and is not reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.'' In making a negligible impact determination,
we consider:
(1) The number of anticipated injuries, serious injuries, or
mortalities;
(2) The number, nature, and intensity, and duration of Level B
harassment (all relatively limited);
(3) The context in which the takes occur (i.e., impacts to areas of
significance, impacts to local populations, and cumulative impacts when
taking into account successive/contemporaneous actions when added to
baseline data);
(4) The status of stock or species of marine mammals (i.e.,
depleted, not depleted, decreasing, increasing, stable, impact relative
to the size of the population);
(5) Impacts on habitat affecting rates of recruitment/survival; and
(6) The effectiveness of monitoring and mitigation measures.
As mentioned previously, we estimate that five species of marine
mammals could be potentially affected by Level B harassment from launch
activities and that four of those five species could be potentially
affected by Level B harassment from Delta Mariner operations.
For reasons stated previously in this document, the specified
activities are not likely to cause long-term behavioral disturbance,
abandonment of the haul-out area, serious injury, or mortality because:
(1) The effects of the activities are expected to be limited to
short-term startle responses and localized behavioral changes. Minor
and brief responses, such as short-duration startle or alert reactions,
are not likely to constitute disruption of behavioral patterns, such as
migration, nursing, breeding, feeding, or sheltering.
(2) Launches will likely not occur more than about 12-19 times per
year over the next 5 years.
(3) Delta Mariner off-loading operations and associated cargo
movements within the harbor would occur at a maximum frequency of four
[[Page 10025]]
times per year, and the vessel's arrival and departure would occur
during daylight hours at high tide when the haul out areas are fully
submerged and few, if any, pinnipeds are present in the harbor;
(4) The relatively slow operational speed of the Delta Mariner (1.5
to 2 kts; 1.72 mph) during its approach to the harbor at high tide and
the vessel's slow operational speed (0.75 kts; 0.86 mph) during its
approach to the wharf;
(5) There is no potential for large-scale movements leading to
serious injury or mortality;
(6) Many of the specified activities do not occur near rookeries;
(7) The availability of alternate areas near the harbor for
pinnipeds to avoid the resultant noise from the maintenance and vessel
operations; and
(8) Results from previous monitoring reports that support our
conclusions that the pinnipeds returned to the haul-out sites during
periods of low tide after the disturbance and do not permanently
abandon a haul-out site during the conduct of harbor maintenance and
Delta Mariner operations or launches from VAFB.
As confirmed by past monitoring reports, we do not anticipate that
any injuries, serious injuries, or mortalities would occur as a result
of the activities, and did not authorize injury, serious injury or
mortality. These species may exhibit behavioral modifications,
including temporarily vacating the area during the activities to avoid
the resultant acoustic and visual disturbances. Due to the nature,
degree, and context of the behavioral harassment anticipated, the
activities are not expected to impact rates of recruitment or survival.
Further, these activities would not adversely impact marine mammal
habitat.
We have determined, provided that the USAF carries out the
previously described mitigation and monitoring measures, that the
impact of conducting the activities may result, at worst, in a
temporary modification in behavior and/or low-level physiological
effects (Level B harassment) of certain species of marine mammals.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the mitigation and monitoring
measures, we have determined that the total taking from the activities
will have a negligible impact on the affected species or stocks; and
that impacts to affected species or stocks of marine mammals would be
mitigated to the lowest level practicable.
Impact on Availability of Affected Species or Stock for Taking for
Subsistence Uses
Section 101(a)(5)(A) of the MMPA also requires us to determine that
the authorization will not have an unmitigable adverse effect on the
availability of marine mammal species or stocks for subsistence use.
There are no relevant subsistence uses of marine mammals in the study
area (northeastern Pacific Ocean) that implicate section 101(a)(5)(A)
of the MMPA.
Endangered Species Act
There are no species listed as threatened or endangered in the
activity area. Therefore, consultation under section 7 of the ESA is
not required.
National Environmental Policy Act (NEPA)
The USAF prepared a Final EA and issued a Finding of No Significant
Impact (FONSI) in 1997 as part of its application for an incidental
take authorization. On March 1, 1999 (64 FR 9925), NMFS adopted this EA
as provided for by the Council on Environmental Quality regulations. In
2003, NMFS prepared its own EA and issued a FONSI for the final rule
issued in February, 2004. In January 2009, NMFS prepared a new EA and
issued a FONSI for the final rule issued in February 2009.
In 2001, the USAF prepared an EA for Harbor Activities Associated
with the Delta IV Program at Vandenberg Air Force Base. In 2005, we
prepared an EA augmenting the information contained in the USAF's EA
and issued a FONSI on the issuance of an Incidental Harassment
Authorization for United Launch Alliance's harbor activities in
accordance with section 6.01 of the NOAA Administrative Order 216-6
(Environmental Review Procedures for Implementing the National
Environmental Policy Act, May 20, 1999).
NMFS conducted a new analysis, pursuant to NEPA, to determine
whether the issuance of MMPA rulemaking and subsequent LOA(s) may have
a significant effect on the human environment. In February 2014, NMFS
released an EA and issued a FONSI for this action. NMFS determined that
issuance of these regulations and subsequent LOA would not
significantly impact the quality of the human environment; therefore,
preparation of an Environmental Impact Statement was not required for
this action.
National Marine Sanctuaries Act
We previously discussed the promulgation of MMPA regulations and
issuing associated LOAs with the NOAA National Ocean Service's Office
of National Marine Sanctuaries to determine whether or not NMFS' action
is likely to destroy, cause the loss of, or injure any national marine
sanctuary resources. On December 12, 2008, the Office of National
Marine Sanctuaries determined that no further consultation with NMFS
was required on its proposed action as this action is not likely to
destroy, cause the loss of, or injure any national marine sanctuary
resources. The activities in this rulemaking are identical to those
discussed in 2008.
Classification
Pursuant to the procedures established to implement section 6 of
Executive Order 12866, the Office of Management and Budget has
determined that this final rule is not significant.
At the proposed rule stage, the Chief Counsel for Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that this rule, if adopted, would not
have a significant economic impact on a substantial number of small
entities. The 30th Space Wing, USAF, and their contractors are the
entities that will be affected by this rulemaking, none of which are
considered a small governmental jurisdiction, small organization, or
small business, as defined by the Regulatory Flexibility Act. United
Launch Alliance, the contractor hired by the USAF to conduct the harbor
activities and Delta Mariner operations, is a joint venture between
Boeing and Lockheed Martin. The Small Business Administration defines a
small entity as one that is independently owned and operated and not
dominant in its field of operation. United Launch Alliance employs
approximately 3,900 employees working at sites across the country, has
annual revenues exceeding $1 billion, and is dominant in the field of
aerospace vehicle launching. United Launch Alliance therefore does not
meet the definition of a small entity. No comments were received on the
certification. Accordingly, a regulatory flexibility analysis is not
required and none has been prepared.
List of Subjects in 50 CFR Part 217
Exports, Fish, Imports, Indians, Labeling, Marine mammals,
Penalties,
[[Page 10026]]
Reporting and recordkeeping requirements, Seafood, Transportation.
Dated: February 19, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble, 50 CFR part 217 is amended
as follows:
PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS
INCIDENTAL TO SPECIFIED ACTIVITIES
0
1. The authority citation for part 217 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq.
0
2. Subpart G is added to part 217 to read as follows:
Subpart G--Taking of Marine Mammals Incidental to U.S. Air Force
Launches, Aircraft and Helicopter Operations, and Harbor Activities
Related to Launch Vehicles From Vandenberg Air Force Base (VAFB),
California
Sec.
217.60 Specified activity and specified geographical region.
217.61 Effective dates.
217.62 Permissible methods of taking.
217.63 Prohibitions.
217.64 Mitigation.
217.65 Requirements for monitoring and reporting.
217.66 Letters of Authorization.
217.67 Renewals and modifications of Letters of Authorization.
Subpart G--Taking of Marine Mammals Incidental to U.S. Air Force
Launches, Aircraft and Helicopter Operations, and Harbor Activities
Related to Launch Vehicles From Vandenberg Air Force Base (VAFB),
California
Sec. 217.60 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the 30th Space Wing,
United States Air Force (USAF), at Vandenberg Air Force Base and those
persons it authorizes to conduct activities on its behalf for the
taking of marine mammals that occurs in the area outlined in paragraph
(b) of this section and that occurs incidental to:
(1) Launching up to 15 space and each year from Vandenberg Air
Force Base, for a total of up to 75 missiles over the 5-year period of
these regulations,
(2) Launching up to 35 rockets each year from Vandenberg Air Force
Base, for a total of up to 175 rocket launches over the 5-year period
of these regulations,
(3) Aircraft flight test operations,
(4) Helicopter operations from Vandenberg Air Force Base, and
(5) Delta Mariner (or a similar vessel) operations, cargo unloading
activities, and harbor maintenance dredging.
(b) The taking of marine mammals by the USAF may be authorized in a
Letter of Authorization only if it occurs from the space launch
complexes, launch facilities, and test pads on north and south
Vandenberg Air Force Base and the Vandenberg Air Force Base harbor on
South Base.
Sec. 217.61 Effective dates.
Regulations in this subpart are effective from March 26, 2014
through March 26, 2019.
Sec. 217.62 Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to Sec. Sec.
216.106 and 217.60 of this chapter, the Holder of the Letter of
Authorization (herein after the USAF) may incidentally, but not
intentionally, take marine mammals by harassment, within the area
described in Sec. 217.60(b), provided the activity is in compliance
with all terms, conditions, and requirements of the regulations in this
subpart and the appropriate Letter of Authorization.
(b) The activities identified in Sec. 217.60(a) must be conducted
in a manner that minimizes, to the greatest extent practicable, any
adverse impacts on marine mammals and their habitat.
(c) The incidental take of marine mammals under the activities
identified in Sec. 217.60(a) of this chapter is limited to the
indicated number of Level B harassment takes on an annual basis of the
following species:
(1) Harbor seals (Phoca vitulina)--31,161;
(2) California sea lions (Zalophus californianus)--465,129;
(3) Northern elephant seals (Mirounga angustirostris)--80,024;
(4) Northern fur seals (Callorhinus ursinus)--62,500; and
(5) Steller sea lions (Eumetopias jubatus)--1,824.
Sec. 217.63 Prohibitions.
Notwithstanding takings contemplated in Sec. 217.62(c) and
authorized by a Letter of Authorization issued under Sec. Sec. 216.106
and 217.66 of this chapter, no person in connection with the activities
described in Sec. 217.60 may:
(a) Take any marine mammal not specified in Sec. 217.62(c);
(b) Take any marine mammal specified in Sec. 217.62(c) other than
by incidental, unintentional Level B harassment;
(c) Take a marine mammal specified in Sec. 217.62(c) if NMFS
determines such taking results in more than a negligible impact on the
species or stocks of such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or a Letter of Authorization issued under
Sec. Sec. 216.106 and 217.66 of this chapter.
Sec. 217.64 Mitigation.
(a) When conducting the activities identified in Sec. 217.60(a),
the mitigation measures contained in the Letter of Authorization issued
under Sec. Sec. 216.106 and 217.66 of this chapter must be
implemented. These mitigation measures include (but are not limited
to):
(1) All aircraft and helicopter flight paths must maintain a
minimum distance of 1,000 ft (305 m) from recognized seal haul-outs and
rookeries (e.g., Point Sal, Purisima Point, Rocky Point), except in
emergencies or for real-time security incidents (e.g., search-and-
rescue, fire-fighting), which may require approaching pinniped haul-
outs and rookeries closer than 1,000 ft (305 m).
(2) For missile and rocket launches, holders of Letters of
Authorization must avoid, whenever possible, launches during the harbor
seal pupping season of March through June, unless constrained by
factors including, but not limited to, human safety, national security,
or for space vehicle launch trajectory necessary to meet mission
objectives.
(3) Vandenberg Air Force Base must avoid, whenever possible,
launches which are predicted to produce a sonic boom on the Northern
Channel Islands during harbor seal, elephant seal, California sea lion,
and northern fur seal pupping seasons of March through June.
(4) If post-launch surveys determine that an injurious or lethal
take of a marine mammal has occurred, the launch procedure and the
monitoring methods must be reviewed, in cooperation with the National
Marine Fisheries Service (NMFS), and appropriate changes must be made
through modification to a Letter of Authorization, prior to conducting
the next launch under that Letter of Authorization.
(5) Delta Mariner (or a similar vessel) operations, cargo
unloading, and harbor maintenance dredging measures:
(i) If activities occur during nighttime hours, turn on lighting
equipment before dusk. Lights must remain on for the entire night to
avoid startling pinnipeds.
(ii) Initiate operations before dusk.
(iii) Keep construction noises at a constant level (i.e., not
interrupted by periods of quiet in excess of 30 minutes) while
pinnipeds are present.
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(iv) Initiate a gradual start-up of activities to ensure a gradual
increase in noise levels if activities cease for longer than 30 minutes
and pinnipeds are in the area.
(v) Conduct visual monitor, by a qualified observer, of the harbor
seals on the beach adjacent to the harbor and on rocks for any flushing
or other behaviors as a result of activities described in Sec.
217.60(a).
(vi) The Delta Mariner and accompanying vessels must enter the
harbor only when the tide is too high for harbor seals to haul-out on
the rocks; reducing speed to 1.5 to 2 knots (1.5-2 nm/hr; 2.8-3.7 km/
hr) once the vessel is within 3 mi (4.83 km) of the harbor. The vessel
must enter the harbor stern first, approaching the wharf and moorings
at less than 0.75 knot (1.4 km/hr).
(vii) Explore alternate dredge methods and introduce quieter
techniques and equipment as they become available.
(6) Additional mitigation measures as contained in a Letter of
Authorization.
(b) [Reserved]
Sec. 217.65 Requirements for monitoring and reporting.
(a) Unless specified otherwise in the Letter of Authorization, the
USAF must notify the Administrator, West Coast Region, NMFS, by letter
or telephone, at least 2 weeks prior to activities possibly involving
the taking of marine mammals. If the authorized activity identified in
Sec. 217.60(a) is thought to have resulted in the mortality or injury
of any marine mammals or in any take of marine mammals not identified
in Sec. 217.62(c), then the USAF must notify the Director, Office of
Protected Resources, NMFS, or designee, by telephone (301-427-8401),
within 48 hours of the discovery of the injured or dead animal.
(b) To conduct monitoring of launch activities, the USAF must
designate qualified, on-site individuals approved in advance by NMFS,
as specified in the Letter of Authorization, to:
(1) Conduct observations on pinniped activity in the vicinity of
the rookery nearest the launch platform or, in the absence of pinnipeds
at that location, at another nearby haul-out, for at least 72 hours
prior to any planned launch occurring during the harbor seal pupping
season (1 March through 30 June) and continue for a period of time not
less than 48 hours subsequent to launching.
(2) For launches during the harbor seal pupping season (March
through June), conduct follow-up surveys within 2 weeks of the launch
to ensure that there were no adverse effects on any marine mammals,
(3) Monitor haul-out sites on the Northern Channel Islands, if it
is determined by modeling that a sonic boom of greater than 1 psf is
predicted to impact one of the Islands between March 1 and June 30,
greater than 1.5 psf between July 1 and September 30, and greater than
2 psf between October 1 and February 28. Monitoring will be conducted
at the haul-out site closest to the predicted sonic boom impact area.
(4) Investigate the potential for spontaneous abortion, disruption
of effective female-neonate bonding, and other reproductive
dysfunction,
(5) Supplement observations on Vandenberg and on the Northern
Channel Islands with video-recording of mother-pup seal responses for
daylight launches during the pupping season,
(6) Conduct acoustic measurements of those launch vehicles that
have not had sound pressure level measurements made previously, and
(7) Include multiple surveys each day that surveys are required
that record the species, number of animals, general behavior, presence
of pups, age class, gender and reaction to launch noise, sonic booms or
other natural or human caused disturbances, in addition to recording
environmental conditions such as tide, wind speed, air temperature, and
swell.
(c) To conduct monitoring of harbor activities, the USAF must
designate qualified, on-site individuals approved in advance by NMFS,
as specified in the Letter of Authorization. During nighttime
activities, the harbor area will be illuminated, and the observer will
use a night vision scope. Monitoring activities will consist of the
following:
(1) Conducting baseline observation of pinnipeds in the project
area prior to initiating project activities.
(2) Conducting and recording observations on pinnipeds in the
vicinity of the harbor for the duration of the activity occurring when
tides are low enough (less than or equal to 2 ft (0.61 m) for pinnipeds
to haul out.
(3) Conducting post-construction observations of pinniped haul-outs
in the project area to determine whether animals disturbed by the
project activities return to the haul-out.
(d) Holders of Letters of Authorization must conduct additional
monitoring as required under a Letter of Authorization.
(e) The USAF must submit a report to the West Coast Regional
Administrator, NMFS, within 90 days after each launch. This report must
contain the following information:
(1) Date(s) and time(s) of the launch,
(2) Design of the monitoring program, and
(3) Results of the monitoring program, including, but not
necessarily limited to:
(i) Numbers of pinnipeds present on the haul-out prior to
commencement of the launch,
(ii) Numbers of pinnipeds that may have been harassed as noted by
the number of pinnipeds estimated to have entered the water as a result
of launch noise,
(iii) The length of time pinnipeds remained off the haul-out or
rookery,
(iv) Numbers of pinniped adults, juveniles or pups that may have
been injured or killed as a result of the launch, and
(v) Behavioral modifications by pinnipeds that were likely the
result of launch noise or the sonic boom.
(f) An annual report must be submitted on March 1 of each year.
(g) A final report must be submitted at least 180 days prior to
expiration of these regulations. This report will:
(1) Summarize the activities undertaken and the results reported in
all previous reports,
(2) Assess the impacts at each of the major rookeries,
(3) Assess the cumulative impacts on pinnipeds and other marine
mammals from the activities specified in Sec. 217.60(a), and
(4) State the date(s), location(s), and findings of any research
activities related to monitoring the effects on launch noise, sonic
booms, and harbor activities on marine mammal populations.
Sec. 217.66 Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these
regulations, the USAF must apply for and obtain a Letter of
Authorization.
(b) A Letter of Authorization, unless suspended or revoked, may be
effective for a period of time not to exceed the expiration date of
these regulations.
(c) If a Letter of Authorization expires prior to the expiration
date of these regulations, the USAF must apply for and obtain a renewal
of the Letter of Authorization.
(d) In the event of projected changes to the activity or to
mitigation and monitoring measures required by a Letter of
Authorization, the USAF must apply for and obtain a modification of the
Letter of Authorization as described in Sec. 217.67.
(e) The Letter of Authorization will set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
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mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the Letter of Authorization shall be based on a
determination that the level of taking will be consistent with the
findings made for the total taking allowable under these regulations.
(g) Notice of issuance or denial of a Letter of Authorization shall
be published in the Federal Register within 30 days of a determination.
Sec. 217.67 Renewals and modifications of Letters of Authorization.
(a) A Letter of Authorization issued under Sec. 216.106 and Sec.
217.66 of this chapter for the activity identified in Sec. 217.60(a)
shall be renewed or modified upon request by the applicant, provided
that:
(1) The proposed specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for these regulations (excluding changes
made pursuant to the adaptive management provision in Sec.
217.67(c)(1) of this chapter), and
(2) NMFS determines that the mitigation, monitoring, and reporting
measures required by the previous Letter of Authorization under these
regulations were implemented.
(b) For Letter of Authorization modification or renewal requests by
the applicant that include changes to the activity or the mitigation,
monitoring, or reporting (excluding changes made pursuant to the
adaptive management provision in Sec. 217.67(c)(1)) that do not change
the findings made for the regulations or result in no more than a minor
change in the total estimated number of takes (or distribution by
species or years), NMFS may publish a notice of proposed Letter of
Authorization in the Federal Register, including the associated
analysis illustrating the change, and solicit public comment before
issuing the Letter of Authorization.
(c) A Letter of Authorization issued under Sec. 216.106 and Sec.
217.66 of this chapter for the activity identified in Sec. 217.60(a)
may be modified by NMFS under the following circumstances:
(1) Adaptive Management--NMFS may modify (including augment) the
existing mitigation, monitoring, or reporting measures (after
consulting with the USAF regarding the practicability of the
modifications) if doing so creates a reasonable likelihood of more
effectively accomplishing the goals of the mitigation and monitoring
set forth in the preamble for these regulations.
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in a Letter
of Authorization:
(A) Results from the USAF's monitoring from the previous year(s).
(B) Results from other marine mammal and/or sound research or
studies.
(C) Any information that reveals marine mammals may have been taken
in a manner, extent or number not authorized by these regulations or
subsequent Letters of Authorization.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS
will publish a notice of proposed Letter of Authorization in the
Federal Register and solicit public comment.
(2) Emergencies--If NMFS determines that an emergency exists that
poses a significant risk to the well-being of the species or stocks of
marine mammals specified in Sec. 217.62(c) of this chapter, a Letter
of Authorization may be modified without prior notice or opportunity
for public comment. Notice would be published in the Federal Register
within 30 days of the action.
[FR Doc. 2014-03958 Filed 2-21-14; 8:45 am]
BILLING CODE 3510-22-P
