Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Notices 32565 

Valley Cooperative Telephone Association at 6 

(Apr. 13, 2009) (census tract level per FCC form 477 

data collection); Traverse Technologies, Inc. at 2 

(Mar. 25, 2009) (providers’ customer service areas). 44See, e.g., CostQuest/LinkAmerica Alliance at 

17 (Alabama map); State of Arizona Government 

Information Technology Agency at 9 (Arizona Map); 

City and County of San Francisco at 25 (Apr. 13, 

2009) (California Map); State of Iowa at 7 (Hawaii 

map); Oakland County, Michigan at 7 (Illinois 

Map); ConnectKentucky at 3 (Kentucky Map); Joint 

Comments at 8, 13 (Massachusetts Map); Diane 

Wells at 1, 2 (Apr. 13, 2009) (Minnesota Map); State 

of Iowa at 7 (Missouri Map); Joint Response of the 

New York State CIO et al. at 4 (New York Map); 

Pennsylvania Governor’s Office of Administration 

at 8 (North Carolina Map); Pennsylvania Governor’s 

Office of Administration at 8 (Pennsylvania Map); 

Scott County Mayor Ricky A. Keeton at 1 (Apr. 13, 

2009) (Tennessee Map); Stratrum Broadband at 19 

(Mar. 31, 2009) (Vermont Map); City of Boston at 

9 (Virginia Tech Map); ViaStat, Inc. at 14, 15 (Apr. 

13, 2009) (Australia Map); City of Boston at 9 (New 

Zealand Map). 

45The RFI included a question regarding the 

specific information the States should collect as 

conditions of receiving statewide inventory grants 

(74 FR 10718). Most commenters agreed that States 

should collect information. See, e.g., WISPA at 13. 

There was disagreement over whether State data 

collection should be a condition to qualify for 

grants. See, e.g., Windstream Communications, Inc. 

at 27. Some commenters did not think providers 

should be required to provide mapping data. See, 

e.g., Independent Telephone and 

Telecommunications Alliance at 35. Some 

commenters recommended that providers be 

required to submit data. See, e.g., State of Missouri/ 

Missouri Public Services Commission at 12. 

46 74 FR at 10718. 

47NTIA received comments on the technical 

specifications of the map including the following: 

Triangle J Council of Governments Cable Broadband 

Consortium at 15 (Apr. 13, 2009) (NTIA should 

establish a standard template, such as a database 

directory, by which information is submitted); 

CostQuest/LinkAmerica Alliance at 18 (NTIA 

should clearly define certain data sets such as: 

Coverage areas, speed and service attributes, quality 

of service data, technologies, infrastructure 

elements, demand and demographic data price, 

deployment costs); The People of the State of 

California and Governor Arnold Schwarzenegger at 

46 (NTIA should establish definitions for address); 

National Tribal Telecommunications Association at 

3, 4 (NTIA should show customer class (residential, 

business, etc.); Joint Response of the New York 

State CIO et al. at 11 (data should allow for multiple 

demographic overlays); Apex CoVantage at 4 (link 

the customer database to the provider database and 

link the political data to census data); SEDA— 

Council of Governments at 6 (searchable by address 

and display in graphical rather than tabular format). 

48Link America Alliance at 17 (NTIA should 

follow Federal Geospatial Data Content standards 

that included geographic and topographic 

information); University of Nebraska at 4 (NTIA 

should require GIS software compatibility); The 

People of the State of California and Governor 

Arnold Schwarzenegger at 47 (NTIA should create 

Metadata (data about the data) according to Federal 

Geospatial Data Content (FGDC) standards to be 

generated after geo-coding); State of Arizona 

Government Information Technology Agency at 9 

(NTIA should create Metadata (data about the data) 

according to ESRI mapping standards); CostQuest/ 

Link America Alliance at 18, 19 (maps and features 

(data layers) should be collected in accordance with 

Open Geospatial Consortium (OGC) standards for 

geospatial data). 

Based on its review of the comments, 

examination of mapping methodologies 

currently employed at the State level, 

and consultation with the FCC, NTIA 

finds that data at the address level, or 

as close to the address level as 

practicable considering the technology 

type being employed, as set out in the 

Technical Appendix, should be 

collected by each awardee under this 

Program and that such data must be 

provided to NTIA pursuant to the terms 

of the Notice. State broadband maps 

developed pursuant to awards under 

this Program should display data at the 

address level, or as close to the address 

level as practicable considering the 

technology type being employed and as 

provided more fully in the Technical 

Appendix. 

State Models. NTIA has gathered 

information from a variety of sources, 

including mapping experts from many 

States. Additionally, commenters 

provided suggestions on what maps 

NTIA should use as models for the 

national broadband map.44 After careful 

consideration and consultation with the 

FCC and other agencies, determined that 

none of the suggested State map models 

contain all of the data sets necessary for 

the national broadband map, but may 

prove to be instructive and the source of 

valuable ideas. The information 

required under the Notice and 

Technical Appendix, however, is the 

principal source of information for the 

national map and guidance for 

applicants under this Program. 

State Collection of Mapping 

Information. State participation is 

critical to the national broadband 

mapping effort. Commenters expressed 

a range of opinions on the information 

that States should be required to collect 

as a condition of receiving statewide 

inventory grants.45 In order to promote 

the efficient creation of the State and 

national broadband maps, NTIA and 

RUS will require that broadband 

internet service providers that apply for 

infrastructure grants under BTOP and 

RUS’ Broadband Initiatives Program 

(BIP) agree to provide the data that 

awardees under this Program are 

required to collect pursuant to the 

Technical Appendix. NTIA and RUS 

find that the BIP/BTOP program’s 

incentive structure should complement 

the goals of the State and national 

mapping efforts and this requirement 

will further facilitate data collection. 

Technical Specifications of State 

Maps. The BDIA is silent on the 

technical specifications that should be 

included in each State map. NTIA 

sought comment in the RFI on the 

specifications that should be required of 

State Broadband Data Program grantees 

to ensure that the data collected at the 

State level can be efficiently 

incorporated into the national 

broadband map.46 As stated above, 

NTIA also consulted with the FCC and 

examined mapping methodologies 

currently employed at the State level, 

regarding the technical specifications 

with which awardees should comply in 

composing their maps with program 

funds. 

In response to the RFI, commenters 

provided varying insights on the data 

sets that should be displayed,47 and the 

technical format of the information 

provided.48 NTIA has determined to 

require that data be collected as 

specified in the Technical Appendix 

attached hereto. 

[FR Doc. E9–16103 Filed 7–7–09; 8:45 am] 

BILLING CODE 3510–60–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

RIN 0648–XQ00 

Taking and Importing Marine 

Mammals: Taking Marine Mammals 

Incidental to Harbor Activities Related 

to the Delta IV/Evolved Expendable 

Launch Vehicle at Vandenberg Air 

Force Base, CA 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice; proposed incidental 

harassment authorization; request for 

comments. 

SUMMARY: NMFS has received an 

application from United Launch 

Alliance (ULA) for an Incidental 

Harassment Authorization (IHA) to take 

small numbers of marine mammals, by 

harassment, incidental to conducting 

Delta Mariner operations, cargo 

unloading activities, harbor 

maintenance dredging, and kelp habitat 

mitigation activities related to the Delta 

IV/Evolved Expendable Launch Vehicle 

(Delta IV/EELV) at south Vandenberg 

Air Force Base, CA (VAFB). Pursuant to 

the Marine Mammal Protection Act 

(MMPA), NMFS requests comments on 

its proposal to authorize ULA to take, by 

Level B harassment only, small numbers 

of two species of pinnipeds at south 

VAFB beginning August, 2009. 

DATES: Comments and information must 

be received no later than August 7, 

2009. 

ADDRESSES: Comments on the 

application should be addressed to 

mstockstill on DSKH9S0YB1PROD with NOTICES

32566 Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Notices 

Michael Payne, Chief, Permits, 

Conservation and Education Division, 

Office of Protected Resources, National 

Marine Fisheries Service, 1315 EastWest Highway, Silver Spring, MD 

20910–3225. The mailbox address for 

providing email comments is PR1.0648– 

XQ00@noaa.gov. Comments sent via email, including all attachments, must 

not exceed a 10–megabyte file size. 

All comments received are a part of 

the public record and will generally be 

posted to http://www.nmfs.noaa.gov/pr/ 

permits/incidental.htm#applications 

without change. All Personal Identifying 

Information (for example, name, 

address, etc.) voluntarily submitted by 

the commenter may be publicly 

accessible. Do not submit confidential 

business information or otherwise 

sensitive or protected information. 

A copy of the application containing 

a list of the references used in this 

document may be obtained by writing to 

the address specified above, telephoning 

the contact listed below (see FOR 

FURTHER INFORMATION CONTACT), 

or visiting the internet at: http:// 

www.nmfs.noaa.gov/pr/permits/ 

incidental.htm#applications. 

Documents cited in this notice may be 

viewed, by appointment, during regular 

business hours, at the aforementioned 

address. 

FOR FURTHER INFORMATION CONTACT: 

Jeannine Cody or Candace Nachman, 

Office of Protected Resources, NMFS, 

(301) 713–2289, or Monica DeAngelis, 

NMFS Southwest Region, (562) 980– 

3232. 

SUPPLEMENTARY INFORMATION: 

Background 

Sections 101(a)(5)(A) and (D) of the 

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 marine 

mammals by United States citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region if certain findings 

are made and either regulations are 

issued or, if the taking is limited to 

harassment, a notice of a proposed 

authorization is provided to the public 

for review. 

Authorization for incidental taking 

shall 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 

subsistence uses, and if the permissible 

methods of taking and requirements 

pertaining to the mitigation, monitoring 

and reporting of such takings 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.’’ 

Section 101(a)(5)(D) of the MMPA 

established an expedited process by 

which citizens of the United States can 

apply for an authorization to 

incidentally take small numbers of 

marine mammals by harassment. Except 

with respect to certain activities not 

pertinent here, the MMPA defines 

‘‘harassment’’ as: 

any act of pursuit, torment, or annoyance 

which (i) has the potential to injure a marine 

mammal or marine mammal stock in the wild 

[ALevel A harassment@]; or (ii) has the 

potential to disturb a marine mammal or 

marine mammal stock in the wild by causing 

disruption of behavioral patterns, including, 

but not limited to, migration, breathing, 

nursing, breeding, feeding, or sheltering 

[‘‘Level B harassment’’]. 

Section 101(a)(5)(D) of the MMPA 

establishes a 45–day time limit for 

NMFS= review of an application 

followed by a 30–day public notice and 

comment period on any proposed 

authorizations for the incidental 

harassment of small numbers of marine 

mammals. Not later than 45 days after 

the close of the public comment period, 

if the Secretary makes the findings set 

forth in Section 101(a)(5)(D)(i), the 

Secretary shall issue or deny issuance of 

the authorization with appropriate 

conditions to meet the requirements of 

clause 101(a)(5)(D)(ii). 

Summary of Request 

On June 5, 2009, NMFS received an 

application from ULA requesting an 

authorization for the harassment of 

small numbers of Pacific harbor seals 

(Phoca vitulina), California sea lions 

(Zalophus californianus), and northern 

elephant seals (Mirounga angustirostris) 

incidental to harbor activities related to 

the Delta IV/EELV, including: transport 

vessel operations, cargo movement 

activities, harbor maintenance dredging, 

and kelp habitat mitigation operations. 

These activities will support Delta IV/ 

EELV launch activities from the Space 

Launch Complex at VAFB. 

NMFS has issued Incidental 

Harassment Authorizations (IHAs) to 

The Boeing Company, now ULA, on 

May 15, 2002 (67 FR 36151, May 23, 

2002), May 20, 2003 (68 FR 36540, June 

18, 2003), May 20, 2004 (69 FR 29696, 

May 25, 2004), May 23, 2005 (70 FR 

30697, May 27, 2005), June 20, 2006 (71 

FR 36321, June 26, 2006), June 21, 2007 

(72 FR 34444, June 22, 2007), and 

August 19, 2008 (73 FR 49649, August 

22, 2008) each for a one-year period. 

ULA did not conduct any dredging 

activities between 2003 and 2008, and 

accordingly, was not required to 

conduct any monitoring activities. For 

the 2008 IHA, which expires on August 

18, 2009, ULA expects to commence 

dredging operations in July, 2009. ULA 

will submit a monitoring report 120 

days after the expiration of the 2008 

IHA. 

Description of the Specified Activity 

Delta Mariner off-loading operations 

and associated cargo movements will 

occur a maximum of three times per 

year. The activities will take place 

within the harbor located within the 

VAFB, approximately 2.5 miles (mi) 

(4.02 kilometers (km) south of Point 

Arguello, CA and approximately 1 mi 

(1.61 km) south of the nearest marine 

mammal pupping site (i.e., Rocky 

Point). 

Delta Mariner Operations 

The Delta Mariner is a 312–feet (ft) 

(95.1–meter (m)) long, 84–ft (25.6–m) 

wide steel hull ocean-going vessel 

capable of operating at an 8–ft (2.4–m) 

draft. The vessel will enter the harbor 

stern first, during daylight hours at high 

tide, approaching the wharf at less than 

0.75 knot. At least one tugboat will 

always accompany the Delta Mariner 

during visits to the VAFB harbor. 

Departure will occur under the same 

conditions. 

Sources of noise from the Delta 

Mariner include ventilating propellers 

used for maneuvering the vessel into 

position and a brief sound from the 

cargo bay door when it becomes 

disengaged. 

Harbor Maintenance Dredging 

To accommodate the Delta Mariner, 

the harbor will need to be dredged, 

removing up to 5,000 cubic yards of 

sediment per dredging. Dredging will 

involve the use of heavy equipment, 

including a clamshell dredge, dredging 

crane, a small tug, dredging barge, dump 

trucks, and a skip loader. ULA estimates 

that the noise levels emanating from 

within 50 ft of the dredging and 

construction equipment would range 

from 56 to 93 decibels (dB) (A-weighted) 

(re 20 FPascals at 1–m). Thus, there is 

the potential that an animal hauled out 

on the beach or breakwater could hear 

the dredging activities. Dredge 

operations, from set-up to tear-down, 

would continue 24–hours a day for 

three to five weeks. Sedimentation 

surveys have shown that initial 

dredging indicates that maintenance 

dredging should be required annually or 

twice per year, depending on the 

hardware delivery schedule. 

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Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Notices 32567 

A more detailed description of the 

work proposed for 2009–2010 is 

contained in the application, which is 

available upon request (see ADDRESSES), 

and in the Final U.S. Air Force 

Environmental Assessment for Harbor 

Activities Associated with the Delta IV 

Program at Vandenberg Air Force Base 

(ENSR International, 2001). 

Cargo Movement Activities 

The Delta IV/EELV launch vehicle is 

comprised of a common booster core 

(CBC) and other mechanical elements. 

Removal of the CBC from the vessel 

requires the use of an elevating platform 

transporter (EPT). ULA measured the 

EPT’s sound levels within 20 ft of the 

exhaust pipe with the engine running at 

mid-speed and observed sound levels of 

85 dB (re 20 FPascals at 1–m) 

(Acentech, 1998). The removal 

procedure requires two short 

(approximately 1/3 second) beeps of the 

horn prior to starting the ignition. The 

sound level of the EPT horn ranged from 

62 to 70 dB A-weighted at 200 ft (60.9 

m) away, and 84 to 112 dB A-weighted 

at 25 ft (7.6 m) away. 

For cargo other than the CBC, ULA 

will use a standard diesel truck tractor 

to offload containers containing flight 

hardware items from the Delta Mariner. 

The tractor would generate a sound 

level of approximately 87 dB Aweighted at 50 ft (15.2 m) while in 

operational mode. Total docking and 

cargo movement activities is estimated 

to last approximately no more than 18 

hours in good weather. 

Marine Mammals Affected by the 

Activity 

The marine mammal species likely to 

be harassed incidental to harbor 

activities at south VAFB are the Pacific 

harbor seal and the California sea lion. 

Pacific Harbor Seals 

The marine mammal species likely to 

be harassed incidental to harbor 

activities at south VAFB are the Pacific 

harbor seal and the California sea lion. 

The most recent minimum population 

estimate of Pacific harbor seals in 

California is 31,600 seals (Carretta et al., 

2008). Carretta et al., (2008) report that 

net production rates appeared to 

decrease from 1982 to 1994 and 

hypothesized that the decrease occurred 

at the same time as a decrease in 

human-caused mortality and may 

indicate that the population has reached 

its environmental carrying capacity. 

The total population of harbor seals 

on VAFB is now estimated to be 1,118 

(maximum of 500 seals hauled out at 

one time on south VAFB) based on 

sighting surveys and telemetry data 

(Thorson, 2001). The daily haul-out 

behavior of harbor seals along the south 

VAFB coastline is primarily dependent 

on time of day. The highest number of 

seals haul-out at south VAFB between 

1100 through 1600 hours. In addition, 

haul-out behavior at all sites seems to be 

influenced by environmental factors 

such as high swell, tide height, and 

wind. The combination of all three may 

prevent seals from hauling out at most 

sites. The number of seals hauled out at 

a site can vary greatly from day to day 

based on environmental conditions. 

Harbor seals occasionally haul out at a 

beach 250 ft (76.2 m) west of the south 

VAFB harbor and on rocks outside the 

harbor breakwater where ULA will be 

conducting Delta Mariner operations, 

cargo loading, dredging activities, and 

reef enhancement. 

The maximum number of seals 

present during the 2001 dredging of the 

harbor was 23 (averaging 7 per 

observation period), and the maximum 

number hauled out during the 2002 

wharf modification activities was 43, 

averaging 21 per day when tidal 

conditions were favorable for hauling 

out. Dredging and reef enhancement did 

not occur from 2003–2008. 

Several factors affect the seasonal 

haul-out behavior of harbor seals 

including environmental conditions, 

reproduction, and molting. Harbor seal 

numbers at VAFB begin to increase in 

March during the pupping season 

(March to June) as females spend more 

time on shore nursing pups. The 

number of hauled-out seals is at its 

highest during the molt, which occurs 

from May through July. During the 

molting season, tagged harbor seals at 

VAFB increased their time spent on 

shore by 22.4 percent; however, all seals 

continued to make daily trips to sea to 

forage. Molting harbor seals entering the 

water because of a disturbance are not 

adversely affected in their ability to 

molt and do not endure 

thermoregulatory stress. During pupping 

and molting season, harbor seals at the 

south VAFB sites expand into haul-out 

areas that are not used the rest of the 

year. The number of seals hauled out 

begins to decrease in August after the 

molt is complete and reaches the lowest 

number in late fall and early winter. 

California Sea Lions 

During the wharf modification 

activity in June-July 2002, California sea 

lions were observed hauling out on the 

breakwater in small numbers (up to 6 

individuals). Although this is 

considered to be an unusual occurrence 

and is possibly related to fish schooling 

in the area, ULA included sea lions in 

the request. 

California sea lions range from British 

Columbia to Mexico. The most recent 

population estimate for the California 

sea lions range is 238,000 (Caretta et al., 

2008). Between 1975 and 2001, the 

population growth rate was 5.4–6.1 

percent. A 1985–1987 population 

survey indicated that most individuals 

on the Northern Channel Islands were 

on San Miguel Island (SMI), with the 

population ranging from 2,235 to over 

17,000. 

The largest numbers of California sea 

lions in the VAFB vicinity occur at Lion 

Rock, 0.4 mi (0.64 km) southeast of 

Point Sal. This area is approximately 1.5 

mi (2.41 km) north of the VAFB 

boundary. ULA notes that they have 

observed at least 100 sea lions during 

any season at this site. The Point 

Arguello beaches and the rocky ledges 

of South Rocky Point on south VAFB 

are haulout areas that may be used by 

California sea lions. In 2003, at least 145 

sea lions were observed at Rocky Point, 

including five pups that did not survive 

due to abandonment shortly after birth. 

This was thought to be an El Nino effect, 

as there had never been any previously 

reported sea lion births at VAFB 

(Thorson, 2003). Each year, small 

groups of sea lions have been observed 

heading south along the VAFB coastline 

in April and May (Tetra Tech, 1997). 

Starting in August, large groups of sea 

lions can be seen moving north, in 

groups varying in size from 25 to more 

than 300 (Roest, 1995). This concurs 

with established migration patterns 

(Reeves et al., 1992; Roest, 1995). 

Juvenile sea lions can be observed 

hauled-out with harbor seals along the 

South Base sites from July through 

September (Tetra Tech, 1997). Starving 

and exhausted sub-adult sea lions are 

fairly common on central California 

beaches during the months of July and 

August (Roest, 1995). 

During the breeding season, most 

California sea lions inhabit southern 

California and Mexico. Rookery sites in 

southern California are limited to SMI 

and the southerly Channel Islands of 

San Nicolas, Santa Barbara, and San 

Clemente. Breeding season begins in 

mid-May, occurring within 10 days of 

arrival at the rookeries. Molting occurs 

gradually over several months in the 

late summer and fall. Because the molt 

is not catastrophic, the sea lions can 

enter the water to feed. 

Male California sea lions migrate 

annually. In the spring they migrate 

southward to breeding rookeries in the 

Channel Islands and Mexico, then 

migrate northward in the late summer 

following breeding season. Females 

appear to remain near the breeding 

rookeries. The greatest population on 

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32568 Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Notices 

land occurs in September and October 

during the post-breeding dispersal, 

although many of the sea lions, 

particularly juveniles and sub-adult and 

adult males, may move north away from 

the Channel Islands. 

Other Marine Mammals 

Other marine mammal species are 

rare to infrequent along the south VAFB 

coast during certain times of the year 

and are unlikely to be harassed by 

ULA’s activities. These four species are: 

the northern elephant seal, the northern 

fur seal (Callorhinus ursinus), 

Guadalupe fur seal (Arctocephalus 

townsendi), and Steller sea lion 

(Eumetopias jubatus). Northern 

elephant seals may occur on VAFB but 

do not haul out in the harbor area. 

Northern fur seals, Guadalupe fur seals, 

and Steller sea lions occur along the 

California coast and Northern Channel 

Islands but are not likely to be found on 

VAFB. Descriptions of the biology and 

distribution of these species can be 

found in the NMFS Stock Assessment 

Reports at http://www.nmfs.noaa.gov/ 

pr/sars/. 

Potential Effects of Activities on Marine 

Mammals 

Acoustic and visual stimuli generated 

by the use of heavy equipment during 

the Delta Mariner off-loading 

operations, dredging, and kelp habitat 

mitigation and the increased presence of 

personnel, may cause short-term 

disturbance to harbor seals and 

California sea lions hauled out on the 

beach and rocks near south VAFB 

harbor. This disturbance from acoustic 

and visual stimuli is the principal 

means of marine mammal taking 

associated with these activities. Based 

on the measured sounds of construction 

equipment, such as might be used 

during ULA’s activities, sound level 

intensity decreases proportional to the 

square root of the distance from the 

source. A dredging crane at the end of 

the dock producing 88 dB A-weighted of 

noise would be approximately 72 dB Aweighted at the nearest beach or the end 

of the breakwater, roughly 250 ft (76.2 

m) away. The EPT produces 

approximately 85 dB A-weighted, 

measured less than 20 ft (6 m) from the 

engine exhaust, when the engine is 

running at mid speed. The EPT 

operation procedure requires two short 

beeps of the horn (approximately 1/3 of 

a second each) prior to starting the 

ignition. Sound level measurements for 

the horn ranged from 84–112 dB Aweighted at 25 ft (7.6 m) away and 62– 

70 dB A-weighted at 200 ft (61 m) away. 

The highest measurement was taken 

from the side of the vehicle where the 

horn is mounted. Ambient background 

noise measured approximately 250 ft 

(76.2 m) from the beach was estimated 

to be 35–48 dBA (Acentech, 1998; EPA, 

1971). 

Pinnipeds sometimes show startle 

reactions when exposed to sudden brief 

sounds. An acoustic stimulus with 

sudden onset (such as a sonic boom) 

may be analogous to a ‘‘looming’’ visual 

stimulus (Hayes and Saif, 1967), which 

may elicit flight away from the source 

(Berrens et al., 1988). The onset of 

operations by a loud sound source, such 

as the EPT during CBC off-loading 

procedures, may elicit such a reaction. 

In addition, the movements of cranes 

and dredges may represent a ‘‘looming’’ 

visual stimulus to seals hauled out in 

close proximity. Seals and sea lions 

exposed to such acoustic and visual 

stimuli may either exhibit a startle 

response and/or leave the haul-out site. 

According to the MMPA and NMFS’ 

implementing regulations, if harbor 

activities disrupt the behavioral patterns 

of harbor seals or sea lions, these 

activities would take marine mammals 

by Level B harassment. 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 the degree of Level 

A harassment and could result in injury 

of individuals. In addition, such largescale movements by dense aggregations 

of marine mammals or at pupping sites 

could potentially lead to takes by injury 

or death. However, there is no potential 

for large-scale movements leading to 

serious injury or mortality near the 

south VAFB harbor because, on average, 

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. 

According to the June 2002 dock 

modification construction report 

(ENSRI, 2002), the maximum number of 

harbor seals hauled out each day ranged 

from 23 to 25 animals. There were 15 

occasions in which construction noise, 

vehicle noise, or noise from a fishing 

boat caused the seals to lift their heads. 

Flushing only occurred due to fishing 

activities, which were unrelated to the 

construction activities. The sea lions 

were less reactive to the construction 

noise than the harbor seals. None of the 

construction activities caused any of the 

sea lions to leave the jetty rocks, and 

there was only one incident of a head 

alert reaction. 

The report from the December 2002 

dredging activities show that the 

number of Pacific harbor seals ranged 

from zero to 19, and that California sea 

lions did not haul out during the 

monitoring period. On 10 occasions, 

harbor seals showed head alerts, 

although two of the alerts were for 

disturbances that were not related to the 

project. No harbor seals flushed during 

the activities on the dock. 

For a further discussion of the 

anticipated effects of the planned 

activities on harbor seals in the area, 

please refer to the application, NMFS’ 

2005 Environmental Assessment (EA), 

and the United States Air Force’s 

(USAF) 2001 Final EA. 

Numbers of Marine Mammals Expected 

to be Harassed 

ULA estimates that a maximum of 43 

harbor seals per day may be hauled out 

near the south VAFB harbor, with a 

daily average of 21 seals sighted when 

tidal conditions were favorable during 

previous dredging operations in the 

harbor. Considering the maximum and 

average number of seals hauled out per 

day, assuming that the seals may be 

seen twice a day, and using a maximum 

total of 73 operating days in 2009–2010, 

NMFS estimates that a maximum of 767 

to 1,570 Pacific harbor seals may be 

subject to Level B harassment out of a 

total estimated population of 31,600. 

These numbers are small relative to this 

population size (2.4–5 percent). 

During wharf modification activities, 

a maximum of six California sea lions 

were seen hauling out in a single day. 

Based on the above-mentioned 

calculation, NMFS believes that a 

maximum of 219 California sea lions 

may be subject to Level B harassment 

out of a total estimated population of 

238,000. These numbers are small 

relative to this population size (less than 

0.1 percent). 

Up to 10 northern elephant seals 

(because they may be in nearby waters) 

may be subject to Level B harassment 

out of a total estimated population of 

124,000 in 2005 (Carretta et al., 2008). 

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Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Notices 32569 

These numbers are small relative to this 

population size (less than 0.01 percent). 

Possible Effects of Activities on Marine 

Mammal Habitat 

ULA does not anticipate any loss or 

modification to the habitat used by 

Pacific harbor seals or California sea 

lions that haul out near the south VAFB 

harbor. The harbor seal and sea lion 

haul-out sites near south VAFB harbor 

are not used as breeding, molting, or 

mating sites; therefore, it is not expected 

that the activities in the harbor will 

have any impact on the ability of Pacific 

harbor seals or California sea lions in 

the area to reproduce. 

ULA anticipates unavoidable kelp 

removal during dredging. This habitat 

modification will not affect the marine 

mammal habitat. However, ULA will 

mitigate for the removal of kelp habitat 

by placing 150 tons of rocky substrate in 

a sandy area between the breakwater 

and the mooring dolphins to enhance an 

existing artificial reef. This type of 

mitigation was implemented by the 

Army Corps of Engineers following the 

1984 and 1989 dredging. A lush kelp 

bed adjacent to the sandy area has 

developed from the efforts. The 

substrate will consist of approximately 

150 sharp-faced boulders, each with a 

diameter of about 2 ft (0.61 m) and each 

weighing about 1 ton (907 kg). The 

boulders will be brought in by truck 

from an off-site quarry and loaded by 

crane onto a small barge at the wharf. 

The barge is towed by a tugboat to a 

location along the mooring dolphins 

from which a small barge-mounted 

crane can place them into the sandy 

area. ULA plans to perform the reef 

enhancement in conjunction with the 

next maintenance dredging event in 

order to minimize cost and disturbances 

to animals. Noise will be generated by 

the trucks delivering the boulders to the 

harbor and during the operation of 

unloading the boulders onto the barges 

and into the water. 

Proposed Mitigation Measures 

To reduce the potential for 

disturbance from visual and acoustic 

stimuli associated with the activities, 

ULA proposes to undertake the 

following marine mammal mitigating 

measures: 

(1) If activities occur during nighttime 

hours, lighting will be turned on before 

dusk and left on the entire night to 

avoid startling pinnipeds at night. 

(2) Activities will be initiated before 

dusk. 

(3) Construction noises must be kept 

constant (i.e., not interrupted by periods 

of quiet in excess of 30 minutes) while 

pinnipeds are present. 

(4) If activities cease for longer than 

30 minutes and pinnipeds are in the 

area, start-up of activities will include a 

gradual increase in noise levels. 

(5) A NMFS-approved marine 

mammal observer will visually monitor 

the harbor seals on the beach adjacent 

to the harbor and on rocks for any 

flushing or other behaviors as a result of 

ULA’s activities (see Monitoring). 

(6) The Delta Mariner and 

accompanying vessels will enter the 

harbor only when the tide is too high for 

harbor seals to haul-out on the rocks, 

and the vessel will reduce speed to 1.5 

to 2 knots (1.5–2.0 nm/hr; 2.8–3.7 km/ 

hr) once the vessel is within 3 mi (4.83 

km) of the harbor. The vessel will enter 

the harbor stern first, approaching the 

wharf and mooring dolphins at less than 

0.75 knot (1.4 km/hr). 

(7) As alternate dredge methods are 

explored, the dredge contractor may 

introduce quieter techniques and 

equipment. 

Proposed Monitoring Measures 

As part of its 2002 application, 

Boeing, now ULA, provided a proposed 

monitoring plan for assessing impacts to 

harbor seals from the activities at south 

VAFB harbor and for determining when 

mitigation measures should be 

employed. NMFS proposes the same 

plan for the 2009 IHA. 

A NMFS-approved and VAFBdesignated biologically trained observer 

will monitor the area for pinnipeds 

during all harbor activities. During 

nighttime activities, the harbor area will 

be illuminated, and the monitor will use 

a night vision scope. Monitoring 

activities will consist of: 

(1) Conducting baseline observation of 

pinnipeds in the project area prior to 

initiating project activities. 

(2) Conducting and recording 

observations on pinnipeds in the 

vicinity of the harbor for the duration of 

the activity occurring when tides are 

low enough for pinnipeds to haul out 

(2 ft, 0.61 m, or less). 

(3) Conducting post-construction 

observations of pinniped haul-outs in 

the project area to determine whether 

animals disturbed by the project 

activities return to the haul-out. 

Monitoring results from previous 

years of these activities have been 

reviewed and incorporated into the 

analysis of potential effects in this 

document. 

Proposed Reporting 

ULA will notify NMFS two weeks 

prior to initiation of each activity. After 

each activity is completed, ULA will 

provide a report to NMFS within 120 

days. This report will provide dates, 

times, durations, and locations of 

specific activities, details of pinniped 

behavioral observations, and estimates 

of numbers of affected pinnipeds and 

impacts (behavioral or other). In 

addition, the report will include 

information on the weather, tidal state, 

horizontal visibility, and composition 

(species, gender, and age class) and 

locations of haul-out group(s). In the 

unanticipated event that any cases of 

pinniped injury or mortality are judged 

to result from these activities, this will 

be reported to NMFS immediately. 

Negligible Impact Determination 

NMFS has preliminarily determined, 

provided that the aforementioned 

mitigation and monitoring measures are 

implemented, that the impact of 

conducting a dredging program within 

VAFB may result, at worst, in a 

temporary modification in behavior 

and/or low-level physiological effects 

(Level B Harassment) of small numbers 

of certain species of marine mammals. 

While behavioral and avoidance 

reactions may be made by these species 

in response to the resultant noise from 

the dredging operations, these 

behavioral changes are expected to have 

a negligible impact on the affected 

species and stocks of marine mammals. 

While the number of potential 

incidental harassment takes will depend 

on the distribution and abundance of 

marine mammals in the area of dredging 

operations, the number of potential 

harassment takings is estimated to be 

relatively small in light of the 

population size. 

In addition, no take by death and/or 

serious injury is anticipated, and the 

potential for temporary or permanent 

hearing impairment will be avoided 

through the incorporation of the 

required mitigation measures described 

in this document. 

Endangered Species Act (ESA) 

This action will not affect species 

listed under the ESA that are under 

NMFS’ jurisdiction. VAFB formally 

consulted with the U.S. Fish and 

Wildlife Service in 1998 on the possible 

take of southern sea otters during 

Boeing’s, now ULA, harbor activities at 

south VAFB. A Biological Opinion was 

issued in August 2001, which 

concluded that the EELV Program is not 

likely to jeopardize the continued 

existence of the southern sea otter, and 

no injury or mortality is expected. The 

activities covered by this IHA are 

analyzed in that Biological Opinion, and 

this IHA does not modify the action in 

a manner that was not previously 

analyzed. 

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32570 Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Notices 

National Environmental Policy Act 

In 2001, the USAF prepared an EA for 

Harbor Activities Associated with the 

Delta IV Program at VAFB. In 2005, 

NMFS prepared an EA augmenting the 

information contained in the USAF EA 

and issued a Finding of No Significant 

Impact on the issuance of an IHA for 

Boeing’s, now ULA, harbor activities in 

accordance with section 6.01 of the 

NOAA Administrative Order 216–6 

(Environmental Review Procedures for 

Implementing the National 

Environmental Policy Act, May 20, 

1999). ULA’s proposed activities and 

impacts for 2009–2010 are expected to 

be within the scope of NMFS’ 2005 EA 

and FONSI. 

Preliminary Conclusions 

Based on the preceding information, 

and provided that the proposed 

mitigation and monitoring are 

incorporated, NMFS has preliminarily 

concluded that the proposed activity 

will incidentally take, by level B 

behavioral harassment only, small 

numbers of marine mammals. There is 

no subsistence harvest of marine 

mammals in the proposed research area; 

therefore, the provision relating to 

impacts on certain subsistence activities 

is not implicated by this proposed 

action. No take by Level A harassment 

(injury) or death is anticipated and 

harassment takes should be at the 

lowest level practicable due to 

incorporation of the mitigation 

measures proposed in this document. 

Northern fur seals, Guadalupe fur 

seals, and Steller sea lions are unlikely 

to be found in the area and, therefore, 

will not be affected. No rookeries, 

mating grounds, areas of concentrated 

feeding, or other areas of special 

significance for marine mammals occur 

within or near south VAFB harbor. 

Proposed Authorization 

NMFS proposes to issue an IHA to 

ULA for the Delta IV/EELV Program 

during August 2009 to August 2010, 

provided that the previously mentioned 

mitigation, monitoring, and reporting 

requirements are incorporated. 

Dated: July 2, 2009. 

James H. Lecky, 

Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. E9–16070 Filed 7–7–09; 8:45 am] 

BILLING CODE 3510–22–S 

CONSUMER PRODUCT SAFETY 

COMMISSION 

Proposed Extension of Approval of 

Information Collection; Comment 

Request—Safety Standard for 

Automatic Residential Garage Door 

Operators 

AGENCY: Consumer Product Safety 

Commission. 

ACTION: Notice. 

SUMMARY: As required by the Paperwork 

Reduction Act (44 U.S.C. Chapter 35), 

the Consumer Product Safety 

Commission (CPSC or Commission) 

requests comments on a proposed 

request for extension of approval of a 

collection of information from 

manufacturers and importers of 

residential garage door operators. The 

collection of information consists of 

testing and recordkeeping requirements 

in certification regulations 

implementing the Safety Standard for 

Automatic Residential Garage Door 

Operators (16 CFR Part 1211). The 

Commission will consider all comments 

received in response to this notice 

before requesting approval of this 

extension of a collection of information 

from the Office of Management and 

Budget (OMB). 

DATES: The Office of the Secretary must 

receive written comments not later than 

September 8, 2009. 

ADDRESSES: Written comments should 

be captioned ‘‘Residential Garage Door 

Operators’’ and e-mailed to the Office of 

the Secretary at cpsc-os@cpsc.gov. 

Comments may also be sent by facsimile 

to (301) 504–0127, or by mail to the 

Office of the Secretary, Consumer 

Product Safety Commission, 4330 EastWest Highway, Bethesda, Maryland 

20814. 

FOR FURTHER INFORMATION CONTACT: For 

information about the proposed 

collection of information call or write 

Linda Glatz, Division of Policy and 

Planning, Office of Information 

Technology and Technology Services, 

Consumer Product Safety Commission, 

4330 East-West Highway, Bethesda, MD 

20814; telephone: (301) 504–7671 or by 

e-mail to lglatz@cpsc.gov. 

SUPPLEMENTARY INFORMATION: In 1990, 

Congress enacted legislation requiring 

residential garage door operators to 

comply with the provisions of a 

standard published by Underwriters 

Laboratories to protect against 

entrapment under provisions of the 

Consumer Product Safety Act (CPSA) 

(15 U.S.C. 2051 et seq.). The entrapment 

protection requirements of UL Standard 

325 are codified into the Safety 

Standard for Automatic Residential 

Garage Door Operators, 16 CFR Part 

1211. Automatic residential garage door 

operators must comply with the latest 

edition of the Commission’s regulations 

at 16 CFR Part 1211. 

OMB approved the collection of 

information concerning the Safety 

Standard for Automatic Residential 

Garage Door Operators under control 

number 3041–0125. OMB’s most recent 

approval will expire on October 31, 

2009. The Commission now proposes to 

request an extension of approval 

without changes of this collection of 

information. 

A. Certification Requirements 

Section 203 of Public Law 101–608 

requires that UL Standard 325 shall be 

considered to be a consumer product 

safety standard under section 9 of the 

CPSA (15 U.S.C. 2058). Section 14(a) of 

the CPSA (15 U.S.C. 2063(a)) requires 

manufacturers, importers, and private 

labelers of a consumer product subject 

to a consumer product safety standard 

under the CPSA or similar rule, ban, 

standard, or regulation under any other 

act enforced by the Commission to issue 

a certificate stating that the product 

complies with all applicable rules, bans, 

standards or regulations. Section 14(a) 

of the CPSA also requires that the 

certificate of compliance must be based 

on a test of each product or upon a 

reasonable testing program and specify 

each such rule, ban, standard or 

regulation applicable to the product. 

Section 14(b) of the CPSA (15 U.S.C. 

2063(b)) authorizes the Commission to 

issue regulations to prescribe a 

reasonable testing program to support 

certificates of compliance with a 

consumer product safety standard under 

the CPSA or similar rule, ban, standard, 

or regulation under any other act 

enforced by the Commission. Section 

16(b) of the CPSA (15 U.S.C. 2065(b)) 

authorizes the Commission to issue 

rules to require that firms ‘‘establish and 

maintain’’ records to permit the 

Commission to determine compliance 

with rules issued under the authority of 

the CPSA. 

On December 22, 1992, the 

Commission issued rules prescribing 

requirements for a reasonable testing 

program to support certificates of 

compliance with the Safety Standard for 

Automatic Residential Garage Door 

Operators (57 FR 60449). These 

regulations also require manufacturers, 

importers, and private labelers of 

residential garage door operators to 

establish and maintain records to 

demonstrate compliance with the 

requirements for testing to support 

certification of compliance. 16 CFR Part 

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