Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to U.S. Space Force Launches and Supporting Activities at Vandenberg Space Force Base, Vandenberg, California, 25163-25185 [2024-07559]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 89, Number 70 (Wednesday, April 10, 2024)]
[Rules and Regulations]
[Pages 25163-25185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07559]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 240404-0097]
RIN 0648-BM48


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to U.S. Space Force Launches and 
Supporting Activities at Vandenberg Space Force Base, Vandenberg, 
California

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

ACTION: Final rule; notice of issuance of Letter of Authorization.

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SUMMARY: NMFS, in response to the request of the U.S. Space Force 
(USSF), hereby issues regulations and a Letter of Authorization (LOA) 
to govern the unintentional taking of marine mammals incidental to 
launches and supporting activities at Vandenberg Space Force Base 
(VSFB) in Vandenberg, California, from April 2024 to April 2029. 
Missile launches conducted at VSFB, which comprise a portion of the 
activities, are considered military readiness activities under the 
Marine Mammal Protection Act (MMPA), as amended by the National Defense 
Authorization Act for Fiscal

[[Page 25164]]

Year 2004 (2004 NDAA). These regulations, which allow for the issuance 
of 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 April 10, 2024, through April 9, 2029.

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

SUPPLEMENTARY INFORMATION:

Availability

    A copy of USSF's Incidental Take Authorization (ITA) application, 
supporting documents, received public comments, and the proposed rule, 
as well as a list of the references cited in this document, may be 
obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities. In case of problems accessing these documents, please call 
the contact listed above (see FOR FURTHER INFORMATION CONTACT).

Purpose and Need for Regulatory Action

    This final rule provides a framework under the authority of the 
MMPA (16 U.S.C. 1361 et seq.) for NMFS to authorize the take of marine 
mammals incidental to space vehicle (rocket) launches, missile 
launches, and aircraft operations at VSFB. NMFS received a request from 
USSF to incidentally take six species of marine mammals (with six 
managed stocks) by Level B harassment incidental to launch noise and 
sonic booms. No take by Level A harassment, mortality or serious injury 
is anticipated or authorized in this final rulemaking. Please see the 
Legal Authority for the Final Action section below for definitions of 
harassment, serious injury, and incidental take.

Legal Authority for the Final Action

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) generally direct the Secretary of Commerce (as delegated to 
NMFS) 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, regulations 
are promulgated (when applicable), and public notice and an opportunity 
for public comment are provided.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the affected species 
or stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). If such findings are made, NMFS must prescribe the 
permissible methods of taking and ``other means of effecting the least 
practicable adverse impact'' on the affected species or stocks and 
their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance, and on the availability of 
the species or stocks for taking for certain subsistence uses (referred 
to as ``mitigation'') and requirements pertaining to the monitoring and 
reporting of such takings.
    As noted above, no serious injury or mortality is anticipated or 
authorized in this final rule. Relevant definitions of MMPA statutory 
and regulatory terms are included below:
     U.S. Citizens--individual U.S. citizens or any corporation 
or similar entity if it is organized under the laws of the United 
States or any governmental unit defined in 16 U.S.C. 1362(13) (50 CFR 
216.103);
     Take--to harass, hunt, capture, or kill, or attempt to 
harass, hunt, capture, or kill any marine mammal (16 U.S.C. 1362(13); 
50 CFR 216.3);
     Incidental harassment, incidental taking, and incidental, 
but not intentional, taking--an accidental taking. This does not mean 
that the taking is unexpected, but rather it includes those takings 
that are infrequent, unavoidable, or accidental (see 50 CFR 216.103);
     Serious Injury--any injury that will likely result in 
mortality (50 CFR 216.3);
     Level A harassment--any act of pursuit, torment, or 
annoyance which has the potential to injure a marine mammal or marine 
mammal stock in the wild (16 U.S.C. 1362(18); 50 CFR 216.3); and
     Level B harassment--any act of pursuit, torment, or 
annoyance which 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 (16 U.S.C. 1362(18); 50 CFR 216.3).
    Section 101(a)(5)(A) of the MMPA and the implementing regulations 
at 50 CFR part 216, subpart I provide the legal basis for proposing 
and, if appropriate, issuing regulations and an associated LOA(s). This 
final rule describes permissible methods of taking and mitigation, 
monitoring, and reporting requirements for USSF's activities.
    The National Defense Authorization Act for Fiscal Year 2004 (2004 
NDAA, Pub. L. 108-136) amended the MMPA to remove the ``small numbers'' 
and ``specified geographical region'' limitations indicated above and 
amended the definition of ``harassment'' as applied to a ``military 
readiness activity.'' Missile launches conducted at VSFB, which 
comprise a small portion of the activities, are considered military 
readiness activities pursuant to the MMPA, as amended by the 2004 NDAA.

Summary of Major Provisions Within the Final Rule

    The major provisions of this final rule are:
     Scheduling launches to avoid lowest tides during harbor 
seal and California sea lion pupping seasons, when practicable;
     Required flight paths for aircraft takeoffs and landings 
and minimum altitude requirements to reduce disturbance to haul out 
areas;
     Required minimum altitudes for unscrewed aerial systems 
(UAS);
     Required acoustic and biological monitoring during a 
subset of launches to record the presence of marine mammals and 
document marine mammal responses to the launches; and
     Required semi-monthly surveys of marine mammal haulouts at 
VSFB and Northern Channel Islands (NCI).

Summary of Request

    On November 2, 2022, NMFS received a request from USSF requesting 
authorization for the take of marine mammals incidental to rocket and 
missile launch activities and aircraft operations at VSFB in 
Vandenberg, California. Following NMFS' review of the materials 
provided, USSF submitted a revised application on May 25, 2023. The 
application was deemed adequate and complete on May 26, 2023. USSF's 
request for authorization pertains to incidental take of six species of 
marine mammals, by Level B harassment only.
    On June 15, 2023, we published a notice of receipt of the USSF's 
application in the Federal Register (88 FR 39231), requesting comments 
and information related to the USSF request for 30 days. We received no 
responsive comments. On January 29, 2024, NMFS published a proposed 
rule in the Federal Register (89 FR 5451). The public comment period on 
the proposed rule was open for 30 days on https://

[[Page 25165]]

www.regulations.gov starting on January 29, 2024, and closed after 
February 28, 2024. The public comments can be viewed at https://www.regulations.gov/document/NOAA-NMFS-2024-0008-0003/comment; a 
summary of public comments received during this 30-day period and NMFS 
responses are described in the Comments and Responses section.
    The take of marine mammals incidental to rocket and missile 
launches and aircraft operations at VSFB is currently authorized via an 
LOA issued under current incidental take regulations, which are 
effective through April 10, 2024 (84 FR 14314; April 10, 2019). To 
date, NMFS has promulgated incidental take regulations under the MMPA 
for substantially similar activities at the site four times.
    Responsibility for activities at the site were transferred from the 
U.S. Air Force (USAF) to the USSF in May 2021, and both entities 
complied with the requirements (e.g., mitigation, monitoring, and 
reporting) of the current LOA. Information regarding the monitoring 
results may be found in the Potential Effects of the Specified Activity 
on Marine Mammals and their Habitat section.

Description of the Specified Activity

    USSF operations include rocket and missile launch activities that 
create noise (launch noise and/or sonic booms (overpressure of high-
energy impulsive sound)) and visual stimulus that can take pinnipeds 
hauled out on shore along the periphery of VSFB by Level B harassment. 
In addition, a subset of rocket launches can create noise that affects 
pinniped haul outs along the shoreline of the Northern Channel Islands 
(NCI), particularly San Miguel and Santa Rosa islands. In addition to 
rocket and missile launch activities at VSFB, aircraft (crewed fixed 
wing airplanes and rotary wing helicopters, and different types of UAS) 
conduct flight operations to support activities at VSFB, and USSF 
operates a small harbor on the south coast. The activities will occur 
over the 5-year period of the regulations, from April 2024 through 
April 2029. Activities will occur year-round and could occur at any 
time of day, during any or all days of the week. As annual launch 
numbers increase, more than one launch could occur on some days.
    A detailed description of the planned activities comprising the 
specified activity is provided in the proposed rule (89 FR 5451, 
January 29, 2024) and is not repeated here. Since that time, there have 
been minor changes to the schedule for rocket launches and the amount 
of harbor operations that do not affect the analyses in the proposed 
rule, as described below in the Changes from the Proposed to Final Rule 
section of this final rule.
    Required mitigation, monitoring, and reporting measures are 
described in detail later in this document (see the Mitigation and 
Monitoring and Reporting sections of this final rule).

Comments and Responses

    The proposed rule, which was published in the Federal Register on 
January 29, 2024 (89 FR 5451), described, in detail, USSF's activity, 
the marine mammal species that may be affected by the activity, and the 
anticipated effects on marine mammals. The proposed rule also requested 
public input on the request for authorization described therein, our 
analyses, our preliminary determinations, and any other aspect of the 
proposed rule, and requested that interested persons submit relevant 
information, suggestions, and comments.
    During the 30-day public comment period, NMFS received comments 
from seven members of the general public and recommendations from the 
Marine Mammal Commission. All relevant substantive comments and NMFS' 
responses are summarized below. The comments are available online at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities. Please 
see the comment submissions for full details.
    Comment 1: A commenter stated that USSF is requesting authorization 
from NMFS to take the marine mammals out of an area where they will be 
completing tests for 5 years. The commenter stated that NMFS should 
require USSF to provide proper shelter and habitat for the marine 
mammals and that NMFS should not be responsible for transport of the 
marine mammals.
    Response: The commenter appears to have misunderstood the intent of 
this rulemaking, and NMFS has clarified herein. While this proposed 
rule is titled ``Taking Marine Mammals Incidental to U.S. Space Force 
Launches and Supporting Activities at Vandenberg Space Force Base, 
Vandenberg, California,'' the rule and associated LOA would not 
authorize USSF to transport marine mammals to another location. Rather, 
this final rule and LOA authorize USSF to ``take'' marine mammals by 
Level B harassment. The MMPA defines Level B harassment for military 
readiness and non-military readiness activities. Take by Level B 
harassment authorized by this final rule and LOA would be in the form 
of disruption of behavioral patterns for individual marine mammals 
resulting from exposure to launch related visual or auditory stimulus. 
As such, while NMFS considered impacts of USSF's activities to marine 
mammal habitat, as described in the Potential Effects of the Specified 
Activity on Marine Mammals and Their Habitat section of the proposed 
rule (89 FR 5451, January 29, 2024) and this final rule, this final 
rule does not require USSF to provide shelter and habitat for marine 
mammals.
    Comment 2: NMFS received comments stating that despite not doing 
substantial harm to pinnipeds, it should be of importance to minimize 
or potentially eliminate any take to the pinnipeds, and there must be a 
clear mitigation plan with an end goal of eliminating any takes; that 
it is imperative for the USSF to find a way that either absorbs or 
reflects the sound of sonic booms away from seals; and that USSF could 
explore the use of technology to reduce noise levels during launches.
    One comment stated that a study of physical response from pinniped 
species is not enough to prove minimal harm, although the commenter 
stated that they admire the amount of research and attention the USSF 
gave to including biological effects in their research and USSF's 
acknowledgement of harm from these disturbances.
    Another comment stated that it is important to consider the 
potential effects of launches and supporting activities on marine 
mammal populations and to implement measures to mitigate any negative 
impacts. The commenter stated that, for example, USSF could implement 
monitoring programs to assess the potential impact of their activities 
on marine mammal populations, and could adjust their operations if 
necessary to minimize any adverse effects.
    Response: NMFS concurs with the commenters that appropriate 
mitigation for USSF's activity is important. While the statutory 
criteria for issuance of an ITA does not use the terminology of 
``minimal harm'' to marine mammals, as described in the Mitigation 
section of this final rule, in order to authorize take under section 
101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods 
of taking pursuant to the activity, and other means of effecting the 
least practicable impact on the species or stock and its habitat, 
paying particular attention to rookeries, mating grounds, and areas of 
similar significance, and on the availability of the species or stock 
for taking for certain subsistence uses (the latter not being

[[Page 25166]]

applicable for this action). As such, this final rule requires USSF to 
implement certain mitigation measures for its activities. For launches 
(rockets and missiles), USSF must provide pupping information to launch 
proponents at the earliest possible stage in the launch planning 
process to maximize their ability to schedule launches to minimize 
pinniped disturbance during pupping seasons on VSFB from 1 March to 30 
April and on the Northern Channel Islands from 1 June to 31 July. If 
practicable, rocket launches predicted to produce a sonic boom on the 
Northern Channel Islands >3 pounds per square foot (psf) from 1 June--
31 July will be scheduled to coincide with tides in excess of +1.0 feet 
(ft; 0.3 m), with an objective to do so at least 50 percent of the 
time. USSF will provide to NMFS for approval a detailed plan that 
outlines how this measure will be implemented. This measure will 
minimize occurrence of launches during low tides when harbor seals and 
California sea lions are anticipated to haul out in the greatest 
numbers during times of year when pupping may be occurring, thereby 
further reducing the already unlikely potential for separation of 
mothers from pups and potential for injury during stampedes. While 
harbor seal pupping extends through June, harbor seals reach full size 
at approximately 2 months old, at which point they are less vulnerable 
to disturbances. In consideration of those facts and practicability 
concerns raised by USSF, this measure does not extend through the later 
portion of the harbor seal pupping season at VSFB.
    For manned flight operations, aircraft must use approved routes for 
testing and evaluation. Manned aircraft must also remain outside of a 
1,000-ft (305 m) buffer around pinniped rookeries and haul-out sites 
(except in emergencies such as law enforcement response or Search and 
Rescue operations, and with a reduced, 500-ft (152 m) buffer at Small 
Haul-out 1). As discussed earlier, use of these routes and 
implementation of the buffer would avoid behavioral disturbance of 
marine mammals from manned aircraft operations.
    For UAS, UAS classes 0-2 must maintain a minimum altitude of 300 ft 
(91 m) over all known marine mammal haulouts when marine mammals are 
present, except at take-off and landing. Class 3 must maintain a 
minimum altitude of 500 ft (152 m), except at take-off and landing. UAS 
classes 4 and 5 only operate from the VSFB airfield and must maintain a 
minimum altitude of 1,000 ft (305 m) over marine mammal haulouts except 
at take-off and landing. USSF must not fly class 4 or 5 UAS below 1,000 
ft (305 m) over haulouts.
    While absorbing or reflecting the sound of sonic booms away from 
seals, as suggested by the commenter, could be an effective measure in 
theory, such technology does not currently exist.
    In addition to the mitigation described above, USSF must conduct 
monitoring as suggested by the commenter. USSF must conduct routine, 
semi-monthly counts on all haul out sites on VSFB and launch-specific 
monitoring at VSFB and/or NCI when specific criteria are met. Please 
see the Monitoring and Reporting section of this final rule for 
additional details.
    Comment 3: A commenter noted that the USSF has requested a 5-year 
ITA, but will continue rocket and missile launches that take pinnipeds 
beyond the 5-year expiration of an authorization, such that it will 
need to request subsequent authorization(s). The commenter stated that 
a 5-year request is ``redundant'' if it will continue to be requested.
    Response: Under section 101(a)(5)(A) of the MMPA, incidental take 
authorizations are limited to periods of 5 years at a time for all non-
commercial fishing activities except military readiness activities, for 
which incidental take authorizations can be effective for up to 7 years 
at a time. Accordingly, for applicants or authorization-holders that 
want MMPA incidental take authorization for activities that extend 
beyond 5 (or 7) years, it is necessary for them to request, and NMFS to 
analyze and potentially issue, a new authorization every 5 (or 7) 
years.
    NMFS also received recommendations from the Marine Mammal 
Commission (MMC), which are noted in the next section, Changes from the 
Proposed to Final Rule.

Changes From the Proposed to Final Rule

    NMFS made changes to multiple components in this final rule, in 
part due to additional discussions with USSF, and in part as a result 
of recommendations provided by the MMC. These changes are relatively 
minor and in many cases, are intended to further clarify the 
requirements of the rule. In table 9 and table 13 of the proposed rule 
(89 FR 5451, January 29, 2024), the 5-year take numbers reflect the 
addition of the unrounded annual take estimates for each year. 
Following the MMC's recommendation, NMFS updated table 5 and table 10 
of this final rule such that the 5-year take estimates reflect the sum 
of the rounded annual take numbers. This resulted in a change to the 5-
year take estimate for harbor seal and elephant seal in table 5, and 
for California sea lion and Guadalupe fur seal in table 10.
    NMFS made some minor changes to the monitoring measures in this 
final rule. First, as recommended by the MMC, NMFS clarified 50 CFR 
217.65(c) to state that, at VSFB, USSF must conduct marine mammal 
monitoring and take acoustic measurements (1) for all new rockets, (2) 
for rockets (existing and new) launched from new facilities, (3) for 
larger or louder rockets (including those with new launch proponents) 
than those that have been previously launched from VSFB during their 
first three launches, and (4) for the first three launches from any new 
facilities during March through July. This updated language did not 
change the intent of the proposed measure. (In the proposed rule, this 
measure stated ``at VSFB, USSF must conduct marine mammal monitoring 
and take acoustic measurements for all new rockets (for both existing 
and new launch proponents using the existing facilities) that are 
larger or louder than those that have been previously launched from 
VSFB during their first three launches and for the first three launches 
from any new facilities during March through July.'') Second, also in 
response to an MMC recommendation, NMFS updated 50 CFR 217.65(c)(2) and 
(h)(2) to clarify that USSF must conduct a minimum of four surveys per 
day during the 72 hours prior to a launch and during the 48 hours after 
a launch. (The proposed rule did not include a required minimum number 
of surveys, and instead stated that ``monitoring must include multiple 
surveys each day.'') Third, upon further consideration, NMFS' final 
rule requires monitoring of launches with a sonic boom expected to 
exceed 7 psf from January 1 through February 28. (The proposed rule did 
not require monitoring on the NCI from October 1 through February 28 
each year, a portion of which overlaps with elephant seal pupping.) 
This change is intended to ensure that some monitoring is conducted 
during the majority of the period when elephant seal pups may be 
present on the NCI.
    NMFS also updated several reporting requirements as recommended by 
the MMC. NMFS updated Sec.  217.65(j)(1) to require reporting of the 
number(s), type(s), and location(s) of rockets/missiles launched. NMFS 
also added the description of responses that would constitute 
harassment from this activity to Sec.  217.65(j)(3)(iv) of this final 
rule. NMFS also edited Sec.  217.65(j)(3)(v) to require that USSF 
report the length of

[[Page 25167]]

time the animal(s) remained off the haulout. Lastly, NMFS updated Sec.  
217.65(j)(3)(vii) to specify that the recorded sound levels associated 
with the launch must be reported in sound exposure level (SEL), peak 
sound pressure level (SPLpeak), and root mean square sound pressure 
level (SPLrms), and psf if a sonic boom occurs. Additionally, USSF must 
report the estimated distance of the recorder to the launch site and 
the distance of the closest animals to the launch site.
    The required reporting frequency for individual launches has also 
been updated. The proposed rule would have required USSF to submit a 
launch report to NMFS' West Coast Region and Office of Protected 
Resources within 90 days for each rocket or missile launch where 
monitoring is required. In coordination with USSF, NMFS updated this 
measure to require USSF to submit this information in its annual 
report, rather than separate, launch-specific reports. NMFS anticipates 
that submission of this information in an annual report will be 
administratively simpler for USSF, and it will also make the 
information easier for NMFS and the public to locate and consider. NMFS 
also updated Sec.  217.65(k), related to reporting of mortality or 
injury of marine mammals. As suggested by the MMC in its informal 
comments, this measure now requires that if real-time monitoring during 
a launch shows that the activity identified in Sec.  217.60(a) is 
reasonably likely to have resulted in the mortality or injury of any 
marine mammal, USSF must notify NMFS within 24 hours (or next business 
day). NMFS and USSF must then jointly review the launch procedure and 
the mitigation requirements and make appropriate changes through the 
adaptive management process, as necessary and before any subsequent 
launches of rockets and missiles with similar or greater sound fields 
and/or sonic boom pressure levels. (In the proposed rule, this measure 
required reporting of likely mortality or injury of any marine mammals 
within 48 hours of discovery, but it did not specify steps that would 
be taken after a report is made.)
    Further, after publication of the proposed rule, USSF notified NMFS 
that United Launch Alliance (ULA) concluded its lease of the space 
launch complex (SLC)-6 site, and SpaceX plans to begin launches of its 
Falcon and Falcon Heavy rockets in late 2024/early 2025. This would 
include no more than five Falcon Heavy launches per year. The total 
number of rocket launches from VSFB would not exceed the 110 launches 
estimated in the proposed rule (89 FR 5451, January 29, 2024). Further, 
while some of these launches may result in a sonic boom exceeding 2.0 
psf over the NCI, the total number of launches exceeding the 2.0 psf 
threshold over NCI would not increase from that described in the 
proposed rule (89 FR 5451, January 29, 2024). Therefore these changes 
did not affect our analysis and changes to the take estimates were not 
warranted.
    Additionally, as described in the proposed rule (89 FR 5451, 
January 29, 2024), USSF's activity includes harbor operations (e.g., 
vessel transits). While pinnipeds may occur around the harbor, NMFS 
generally expects that they would be habituated to these routine harbor 
operations and, while they may show brief reactions to these 
activities, such reactions are not expected to qualify as Level B 
harassment. Since publication of the proposed rule, USSF has informed 
NMFS that harbor operations will be more extensive than initially 
anticipated and described in the proposed rule (up to 200 small barge 
operations per year vs. 30 as described in the proposed rule). However, 
this change does not alter our assessment that take is not expected to 
result from harbor operations.
    Lastly, since publication of the proposed rule (89 FR 5451, January 
29, 2024), NMFS released the draft 2023 Stock Assessment Reports (SARs; 
available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports). Therefore, in this 
final rule NMFS updated information on abundance and serious injury and 
mortality information for Steller sea lions, as reflected in the 2023 
SARs (see table 1).

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
relevant behavior and life history of the potentially affected species. 
NMFS fully considered all of this information, and we refer the reader 
to these descriptions and to additional information regarding 
population trends and threats that may be found in NMFS' SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments). More general information about these species (e.g., 
physical and behavioral descriptions) may be found on NMFS' website 
(https://www.fisheries.noaa.gov/find-species).
    Table 1 lists all species or stocks for which take is expected and 
authorized for this activity, and summarizes information related to the 
population or stock, including regulatory status under the MMPA and 
Endangered Species Act (ESA) and potential biological removal (PBR), 
where known. PBR is defined by the MMPA as the maximum number of 
animals, not including natural mortalities, that may be removed from a 
marine mammal stock while allowing that stock to reach or maintain its 
optimum sustainable population (as described in NMFS' SARs). While no 
serious injury or mortality is anticipated or authorized here, PBR and 
annual serious injury and mortality from anthropogenic sources are 
included here as gross indicators of the status of the species or 
stocks and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprise that stock. We also refer to studies and onsite monitoring to 
inform abundance and distribution trends within the project area. For 
some species, such as the Guadalupe fur seal, this geographic area may 
extend beyond U.S. waters. All managed stocks in this region are 
assessed in NMFS' SARs. All values presented in table 1 are the most 
recent available at the time of publication and are available online 
at: https://ww.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

[[Page 25168]]



                                     Table 1--Marine Mammal Species \1\ Likely Impacted by the Specified Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/MMPA status;    Stock abundance  (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \2\          abundance survey) \3\               SI \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
 sea lions):
    California Sea Lion.............  Zalophus californianus.  United States..........  -, -, N             257,606 (N/A, 233,515,     14,011       >321
                                                                                                             2014).
    Guadalupe Fur Seal..............  Arctocephalus townsendi  Mexico.................  T, D, Y             34,187 (N/A, 31,019,        1,062      >=3.8
                                                                                                             2013).
    Northern Fur Seal...............  Callorhinus ursinus....  California.............  -, D, N             14,050 (N/A, 7,524,           451        1.8
                                                                                                             2013).
    Steller Sea Lion................  Eumetopias jubatus.....  Eastern................  -, -, N             36,308 \5\ (N/A,            2,178       93.2
                                                                                                             36,308, 2022).
Family Phocidae (earless seals):
    Harbor Seal.....................  Phoca vitulina.........  California.............  -, -, N             30,968 (N/A, 27,348,        1,641         43
                                                                                                             2012).
    Northern Elephant Seal..........  Mirounga angustirostris  California Breeding....  -, -, N             187,386 (N/A, 85,369,       5,122       13.7
                                                                                                             2013).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
  (https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2022)).
\2\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\3\ NMFS marine mammal SARs online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region.
  CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance.
\4\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual mortality and serious injury (M/SI) often cannot be determined precisely and is in some cases presented as
  a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.
\5\ Best estimate of counts that have not been corrected for animals at sea during abundance surveys. Estimates provided are for the U.S. only.

    As indicated above, all six species (with six managed stocks) 
temporally and spatially co-occur with the specified activity to the 
degree that take is reasonably likely to occur. In addition to the 6 
species of pinniped expected to be affected by the specified 
activities, an additional 28 species of cetaceans are expected to occur 
or could occur in the waters near the project area. However, we have 
determined that the potential stressors associated with the specified 
activities that could result in take of marine mammals (i.e., launch 
noise, sonic booms and disturbance from aircraft operations) only have 
the potential to result in harassment of marine mammals that are hauled 
out of the water. Noise from the specified activities is unlikely to 
ensonify subsurface waters to an extent that could result in take of 
cetaceans. Therefore, we have concluded that the likelihood of the 
planned activities resulting in the harassment of any cetacean to be so 
low as to be discountable. Accordingly, cetaceans are not considered 
further in this final rule. Further, only one live northern fur seal 
has been reported at VSFB in the past 25 years (SBMMC 2012), at least 
two deceased fur seals have been found on VSFB. Guadalupe fur seals 
have yet to be reported at VSFB. Therefore, it is extremely unlikely 
that any fur seals will be taken at that site. However as discussed 
below, NMFS anticipates that both species could be taken at NCI. 
Steller sea lions are not anticipated to occur at NCI, and therefore, 
are not expected to be taken at that site, but are likely to be taken 
at VSFB. Harbor seal, northern elephant seal, and California sea lion 
are likely to be taken at both NCI and VSFB.
    California sea otters (Enhydra lutris nereis) may also be found in 
waters off of VSFB, which is near the southern extent of their range. 
However, California sea otters are managed by the U.S. Fish and 
Wildlife Service and are not considered further in this final rule.
    A detailed description of the species likely to be affected by 
USSF's activities, including brief introductions to the species and 
relevant stocks as well as available information regarding population 
trends and threats, and information regarding local occurrence, were 
provided in the proposed rule (89 FR 5451, January 29, 2024); since 
that time, we are not aware of any changes in the status of these 
species and stocks; therefore, detailed descriptions are not provided 
here. Please refer to the proposed rule for these descriptions. Please 
also refer to NMFS' website (https://www.fisheries.noaa.gov/find-species) for generalized species accounts.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of noise from USSF's activities have the potential to 
result in behavioral harassment of marine mammals in the vicinity of 
VSFB and the NCI. The proposed rule (89 FR 5451, January 29, 2024) 
included a discussion of the effects of anthropogenic noise on marine 
mammals and the potential effects of noise from USSF's activities on 
marine mammals and their habitat. That information and analysis is 
referenced in this final rule and is not repeated here; please refer to 
the proposed rule (89 FR 5451, January 29, 2024).

Estimated Take of Marine Mammals

    This section provides an estimate of the number of incidental takes 
authorized by this rule and LOA, which will inform both NMFS' 
consideration of ``small numbers'' and the negligible impact 
determinations.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to military readiness activities, 
section 3(18) of the MMPA defines ``harassment'' as any act of pursuit, 
torment, or annoyance, which: (i) has the potential to injure a marine 
mammal or marine mammal stock in the wild (Level A harassment); or (ii) 
has the potential to disturb a marine mammal or marine mammal stock in 
the wild by causing disruption of behavioral patterns, including, but 
not limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment). As stated above, a relatively small 
portion of USSF's

[[Page 25169]]

activities are considered military readiness activities. For military 
readiness activities, the MMPA defines ``harassment'' as: (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 the behavioral 
patterns are abandoned or significantly altered (Level B harassment). 
The take estimate methodology outlined below is considered appropriate 
for the quantification of take by Level B harassment based on either of 
the two definitions.
    Authorized takes are by Level B harassment only, in the form of 
disruption of behavioral patterns for individual marine mammals 
resulting from exposure to launch related visual or auditory stimulus. 
Based on the nature of the activity and as shown in activity-specific 
studies (described below), Level A harassment is neither anticipated 
nor authorized. As described previously, no serious injury or mortality 
is anticipated or authorized for this activity. Below we describe how 
the authorized take numbers are estimated.
    For acoustic impacts, generally speaking, we estimate take by 
considering: (1) acoustic thresholds above which NMFS believes the best 
available science indicates marine mammals will be behaviorally 
harassed or incur some degree of permanent hearing impairment; (2) the 
area that will be ensonified above these levels in a day; (3) the 
density or occurrence of marine mammals within these ensonified areas; 
and, (4) the number of days of activities. We note that while these 
factors can contribute to a basic calculation to provide an initial 
prediction of potential takes, additional information that can 
qualitatively inform take estimates is also sometimes available (e.g., 
previous monitoring results or average group size). Below, we describe 
the factors considered here (which include thresholds for take from 
launches and UAS, considered in combination with pinniped survey data 
in the form of daily counts) in more detail and present the take 
estimates.

Acoustic Thresholds

    For underwater sounds, NMFS recommends the use of acoustic 
thresholds that identify the received levels above which exposed marine 
mammals would be reasonably expected to be behaviorally harassed 
(equated to Level B harassment) or to incur permanent threshold shift 
(PTS) of some degree (equated to Level A harassment). Thresholds have 
also been developed identifying the received level of in-air sound 
above which exposed pinnipeds would likely be behaviorally harassed. 
Here, thresholds for behavioral disturbance from launch activities have 
been developed based on observations of pinniped responses before, 
during, and after launches and UAS activity. For rocket and missile 
launches at VSFB, given the sound levels and proximity, NMFS assumes 
that all rocket launches will behaviorally harass pinnipeds of any 
species hauled out at sites around the periphery of the base. For 
rocket launches from VSFB that transit over or near NCI, based on 
several years of onsite behavioral observations and monitoring data, 
NMFS predicts that those that create a sonic boom over 2.0 psf could 
behaviorally harass pinnipeds of any species hauled out on NCI. For UAS 
activity NMFS predicts that, given the potential variability of 
locations, routing and altitudes necessary to meet mission needs, 
classes 0-3 could behaviorally harass pinnipeds of any species hauled 
out at VSFB.
    Regarding potential hearing impairment, the effects of launch noise 
on pinniped hearing were the subject of studies at the site in the 
past. In addition to monitoring pinniped haul-out sites before, during 
and after launches, researchers were previously required to capture 
harbor seals at nearby haulouts and Point Conception to test their 
sensitivity to launch noises. Auditory Brainstem Response (ABR) tests 
were performed under 5-year SRPs starting in 1997. The goal was to 
determine whether launch noise affected the hearing of pinnipeds (MMCG 
and SAIC 2012a). The low frequency sounds from launches can be intense, 
with the potential of causing a temporary threshold shift (TTS), in 
which part or all of an animal's hearing range is temporarily 
diminished. In some cases, this diminishment can last from minutes to 
days before hearing returns to normal. None of the seals tested in 
these studies over a span of 15 years showed signs of TTS or PTS, 
supporting a finding that launch noise at the levels tested is unlikely 
to cause PTS and that any occurrence of TTS may be of short duration.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that are used in estimating the area ensonified above the 
acoustic thresholds, including source levels and transmission loss 
coefficient.
    Because the haulouts at NCI are more distant from the rocket launch 
sites than those at VSFB, different methods are used to predict when 
launches are likely to impact pinnipeds at the two sites. As stated 
above, for rocket and missile launches at VSFB, NMFS conservatively 
assumes that all rocket launches will behaviorally harass pinnipeds of 
any species hauled out at sites around the periphery of the base. For 
rocket launches from VSFB that transit over or near NCI, NMFS predicts 
that those that are projected to create a sonic boom over 2 psf could 
behaviorally harass pinnipeds of any species hauled out on NCI. For UAS 
activity, NMFS predicts that classes 0-3 could behaviorally harass 
pinnipeds of any species hauled out at VSFB.
    The USSF is not able to predict the exact areas that will be 
impacted by noise associated with the specified activities, including 
sonic booms, launch noise and UAS operations. Many different types of 
launch vehicle types are operated from VSFB. Different combinations of 
vehicles and launch sites create different sound profiles, and dynamic 
environmental conditions also bear on sound transmission. As such, the 
different haul-out sites around the periphery of the base are 
ensonified to varying degrees when launches and, when applicable, 
recoveries of first stage boosters occur. USSF is not able to predict 
the exact timing, types and trajectories of these future rocket launch 
programs. However, as described below, rocket launches are expected to 
behaviorally disturb pinnipeds at VSFB and some launches are also 
expected to disturb pinniped hauled out at NCI. Missiles are only 
expected to impact pinnipeds at Lion Rock (Point Sal), and UAS impacts 
are only expected to occur at Small Haulout 1 (in VSFB).
    Therefore, for the purposes of estimating take, we conservatively 
estimate that all haulout sites at VSFB will be ensonified by rocket 
launch noise above the level expected to result in behavioral 
disturbance. Different space launch vehicles also have varying 
trajectories, which result in different sonic boom profiles, some of 
which are likely to affect areas on the NCI (San Miguel, Santa Rosa, 
Santa Cruz, and Anacapa). Based on several years of onsite monitoring 
data, harassment of marine mammals is unlikely to occur when the 
intensity of a sonic boom is below 2 psf. Santa Cruz and Anacapa 
Islands are not expected to be impacted by sonic booms in excess of 2 
psf (USAF, 2018), therefore, USSF does not

[[Page 25170]]

anticipate take of marine mammals on these islands, and NMFS concurs. 
Sonic booms from VSFB launches or recoveries can impact haul out areas 
and may take marine mammals on San Miguel Island and occasionally on 
Santa Rosa Island. In order to accommodate the variability of possible 
launches and (when applicable) sonic booms over NCI, USSF estimates 
that 25 percent of pinniped haulouts on San Miguel and Santa Rosa 
Islands may be ensonified to a level above 2 psf. NMFS concurs, and we 
consider this to be a conservative assumption based on sonic boom 
models which show that areas predicted to be impacted by a sonic boom 
with peak overpressures of 2 psf and above are typically limited to 
isolated parts of a single island, and sonic boom model results tend to 
overestimate actual recorded sonic booms on the NCI (personal 
communication: R. Evans, USSF, to J. Carduner, NMFS, OPR).
    Modeling has not been required for launches of currently deployed 
missiles because of their trajectories west of VSFB and north of San 
Miguel Island and the previously well-documented acoustic properties of 
the missiles. The anticipated Ground-Based Strategic Defense Program 
(GBSD) is expected to utilize approximately the same trajectories as 
the current intercontinental ballistic missile (ICBM), and the GBSD 
program will be required to model at least one representative launch. 
When missiles are launched in a generally western direction (they turn 
south several hundred miles from VSFB and at high altitude), there is 
no sonic boom impact on the NCI; thus take of pinnipeds on NCI is not 
anticipated from missile launches. Given flight characteristics and 
trajectories, take from missile launch is not anticipated for most 
species. However, given proximity and the generally western trajectory, 
noise from missile launches from North Base may take California sea 
lions that haul out at Lion Rock (Point Sal) near VSFB's northern 
boundary.

Marine Mammal Occurrence and Take Estimation

    In this section, we bring together the information above and 
describe take from the three different activity types (rockets, 
missiles, and UAS) expected to occur at VSFB and NCI, the marine mammal 
occurrence data (based on two survey series specific to VSFB and NCI), 
species and location-specific data related the likelihood of either 
exposure (e.g., tidal differences) or response (e.g., proportion of 
previously recorded responses that qualify as take), and the amount of 
activity. We describe the calculations used to arrive at the take 
estimates for each activity, species, and location, and present the 
total estimated take in table 11.
    NMFS uses a three-tiered scale to determine whether the response of 
a pinniped on land to stimuli is indicative of Level B harassment under 
the MMPA (table 2). NMFS considers the behaviors that meet the 
definitions of both movements and flushes in table 2 to qualify as 
Level B harassment. Thus a pinniped on land is considered by NMFS to 
have been taken by Level B harassment if it moves greater than two 
times its body length, or if the animal is already moving and changes 
direction and/or speed, or if the animal flushes from land into the 
water. Animals that become alert or stir without other movements 
indicative of disturbance are not considered harassed. Prior 
observations of pinniped responses to certain exposures may be used to 
predict future responses and assist in estimating take. Here, the 
levels of observed responses of particular species during monitoring 
are used to inform take estimate correction factors as described in the 
species and activity-specific sections below.

                           Table 2--Levels of Pinniped Behavioral Disturbance on Land
----------------------------------------------------------------------------------------------------------------
                                                                                          Characterized as Level
              Level                Type of response               Definition               B harassment by NMFS
----------------------------------------------------------------------------------------------------------------
1...............................  Alert.............  Seal head orientation or brief     No.
                                                       movement in response to
                                                       disturbance, which may include
                                                       turning head towards the
                                                       disturbance, craning head and
                                                       neck while holding the body
                                                       rigid in a u-shaped position,
                                                       changing from a lying to a
                                                       sitting position, or brief
                                                       movement of less than twice the
                                                       animal's body length.
2...............................  Movement..........  Movements in response to the       Yes.
                                                       source of disturbance, ranging
                                                       from short withdrawals at least
                                                       twice the animal's body length
                                                       to longer retreats over the
                                                       beach, or if already moving a
                                                       change of direction of greater
                                                       than 90 degrees.
3...............................  Flush.............  All retreats (flushes) to the      Yes.
                                                       water.
----------------------------------------------------------------------------------------------------------------

    Data collected from marine mammal surveys, including monthly marine 
mammal surveys and launch-specific monitoring conducted by the USSF at 
VSFB, and observations collected by NMFS at NCI, represent the best 
available information on the occurrence of the six pinniped species 
expected to occur in the project area. Monthly marine mammal surveys at 
VSFB are conducted to document the abundance, distribution and status 
of pinnipeds at VSFB. When possible, these surveys are timed to 
coincide with the lowest afternoon tides of each month, when the 
greatest numbers of animals are usually hauled out. Data gathered 
during monthly surveys include: species, number, general behavior, 
presence of pups, age class, gender, reactions to natural or human-
caused disturbances, and environmental conditions. Some species are 
observed regularly at VSFB and the NCI (e.g., California sea lion), 
while other species are observed less frequently (e.g., northern fur 
seals and Guadalupe fur seals).
    Take estimates were calculated separately for each stock in each 
year that the regulations are valid (from 2024 to 2029), on both VSFB 
and the NCI, based on the number of animals assumed hauled out at each 
location that are expected to be behaviorally harassed by the stimuli 
associated with the specified activities (i.e., launch, sonic boom, or 
UAS noise). First, the number of hauled out animals per month was 
estimated at both VSFB and the NCI for each stock, based on survey data 
and subject matter expert input. Second, we estimated the percentage of 
animals that would be taken by harassment from a launch at a given 
site, using the corrections and adjustments. In order to determine that 
percentage, we considered whether certain factors could result in fewer 
than

[[Page 25171]]

the total estimated number at a location being harassed. These factors 
include whether the extent of ensonification is expected to affect only 
a portion of the animals in an area, tidal inundation that displaces 
animals from affected areas and for species reactivity to launch noise, 
life history patterns and, where appropriate, seasonal dispersal 
patterns.
    Launches covered in this authorization are not expected to produce 
a sonic boom over the mainland except that some first stage recoveries 
back to launch facilities on the base that may do so. Because first 
stage recoveries always occur within 10 minutes of the initial launch, 
a response from any given animal to both launch and recovery are 
considered to be one instance of take, even when both launch and 
recovery meet or exceed the 2 psf threshold for calculating take.
Vandenberg Space Force Base
    As described above, rocket launches, missile launches, and UAS 
activities are expected to result in take of pinnipeds on VSFB at haul 
outs along the periphery of the base. Because the supporting 
information and/or methods are different for these three activity 
types, we describe them separately below. Launches from different 
launch facilities at VSFB create different degrees of ensonification at 
specific haul out sites, and further, USSF has limited ability to 
forecast which launch sites may be used for future launches. As 
described previously, some launches also involve the recovery of a 
booster component back to the launch site, or to an alternate offshore 
location.
    As noted above, NMFS first estimated the number of hauled out 
animals per month at VSFB for each stock. NMFS used marine mammal 
counts collected by USSF during monthly marine mammal surveys to 
approximate haulout abundance. NMFS compared monthly counts for a given 
species from 2020 to 2022 and selected the highest count (sum across 
all haul out sites) for each month for each species, as indicated in 
table 3. NMFS then selected the highest monthly count for each species 
and used that as the estimated number of animals that would be hauled 
out at any given time during a launch. Because launches from different 
SLCs impact different haul-outs, we expect that using this highest 
monthly estimate will result in a conservative take estimate. 
Therefore, NMFS considers the 2020-2022 survey data relied upon to be 
the best data available.
    As further indicated in the table 4, and described below, the 
predicted number of animals taken by each launch, by species, is 
adjusted as indicated to account for the fact that (1) for some 
species, animals are only hauled out and available to be taken during 
low tide and (2) years of monitoring reports showing that different 
species respond behaviorally to launches in a different manner.

                            Table 3--VSFB Max Counts From Monthly Surveys, 2020-2022
----------------------------------------------------------------------------------------------------------------
                                        Pacific harbor  California sea                               Northern
                 Month                       seal            lion           Steller sea lion       elephant seal
----------------------------------------------------------------------------------------------------------------
Jan...................................              61              11  None in USSF record 2020-             76
                                                                         2022.
Feb...................................              73               9  0.......................              63
Mar...................................             105               0  0.......................              50
Apr...................................              87               3  0.......................             173
May...................................              95           * 112  0.......................           * 302
Jun...................................           * 149              72  0.......................              78
Jul...................................              61              26  0.......................              20
Aug...................................              60               1  0.......................              11
Sept..................................              54              16  0.......................              82
Oct...................................              59               2  0.......................             228
Nov...................................              65              28  0.......................             251
Dec...................................              51              16  0.......................             122
                                                                        USSF Estimated Max: 5 *.
----------------------------------------------------------------------------------------------------------------
Note: * indicates the highest monthly count for a given species.

Rocket Launches at VSFB

    USSF assumes that all rocket launches will take, by Level B 
harassment, animals hauled out at sites around the periphery of the 
base. Some rocket launches create overpressure at time of launch, and 
some recoveries of first-stage boosters can create a sonic boom when 
they return to the launch pad. Some flights also transit over or near 
portions of the NCI, but potential impacts to marine mammals at the NCI 
are discussed separately, below.
    Table 5 lists the authorized take by Level B harassment from rocket 
launch and recovery activities at VSFB, and below we describe how NMFS 
estimated take for each species. Note that northern fur seal and 
Guadalupe fur seal are not anticipated to occur at VSFB, and therefore, 
NMFS does not anticipate impacts to these species at VSFB.
Harbor Seals
    Pacific harbor seals haul out regularly at more than ten sites on 
both north and south VSFB. They are the most widespread pinniped 
species on VSFB and have been seen in all months, with decades of 
successful pupping. Rocket launches from sites closer to the haulouts 
are more likely to cause disturbance, including noise and visual 
impacts. Many of their haulout sites are inundated during high tide, 
and NMFS anticipates that take of this species will only occur during 
low tides. Rocket launches from sites closer to the haulouts are more 
likely to cause disturbance, including noise and visual impacts. 
However, to capture variability, we assume that all rocket launches 
result in Level B harassment of 100 percent of the harbor seals at all 
VSFB haulouts.
    To determine the number of animals that will be taken by Level B 
harassment, we multiplied the max count indicated in table 3 by the 
number of planned launches per year (table 5) for each year of the 
authorization. As noted in table 3, monitoring data show that, 
generally speaking, most if not all harbor seals exposed to launch 
noise exhibit a behavioral response to launch stimulus that equates to 
take by Level B harassment and, therefore, we predict that 100 percent 
of animals exposed to launch noise will be taken per launch. However, 
given that most haulout sites at VSFB are inundated at high tide, NMFS 
applied a 50 percent correction factor (table 4). Therefore, estimated

[[Page 25172]]

takes = max daily count (149) X tidal correction factor (0.5) X number 
of rocket launches in the area for each year for each year (40 in year 
1, etc.), and the resulting take numbers NMFS is authorizing are listed 
in table 5.
California Sea Lion
    California sea lions on VSFB only haul out regularly at Rocky Point 
(north and south) and Amphitheatre Cove. California sea lions are most 
abundant at the haul out in Zone G at Lion Rock (Point Sal). Rocket 
launches from SLC-6, SLC-8, and the future SLC-11, which are closest to 
North Rocky Point, will be the most likely to result in noise and 
visual impacts. Rocket launches from SLC-3E and SLC-4E, both farther 
inland and some four times the distance, are less likely to impact 
California sea lions at North Rocky Point. During very high tides and 
strong winds, when spray is heavy, the sea lions often leave this site 
or are unable to access it. Therefore, NMFS assumes that for any given 
rocket launch at VSFB, 50 percent of the maximum number of California 
sea lions that haul out at VSFB may be taken by Level B harassment.
    To determine the number of animals that will be taken by Level B 
harassment, we multiplied the max count indicated in table 3 by the 
number of planned launches per year (table 5) for each year of the 
authorization. As noted in table 3, monitoring data show that, 
generally speaking, most if not all California sea lions hauled out at 
VSFB will exhibit a behavioral response to launch stimulus that equates 
to take by Level B harassment and, therefore, we predict that 100 
percent of animals exposed to launch noise will be taken per launch. 
However, given that most haulout sites at VSFB are inundated at high 
tide, NMFS applied a 50 percent correction factor (table 4). Therefore, 
the number of estimated takes = max daily count (112) x tidal 
correction factor (0.5) x number of rocket launches in the area (40 in 
year 1, etc.), and the resulting take numbers NMFS is authorizing are 
listed in table 5.
Northern Elephant Seal
    Northern elephant seals historically hauled out at VSFB only 
rarely, and most animals observed onsite were subadult males. In 2004, 
a record count of 188 animals was made, mostly newly weaned seals (MMCG 
and SAIC 2012a); these numbers continued to increase (unpublished data, 
however reported annually to NMFS). In November 2016, mature adults 
were observed in Amphitheatre Cove, and pupping was first documented in 
January 2017 with 18 pups born and weaned. In January 2018, a total of 
25 pups were born and weaned; 26 in 2019, 34 in 2020, 33 in 2021 and 49 
in 2022. Two pups were born and weaned at Boathouse Beach in both 2021 
and 2022. We assume that this site, in addition to Amphitheater, will 
support pupping in future years. Pupping occurs from December through 
March, with peak breeding in mid-February.
    To determine the number of animals that will be taken by Level B 
harassment, we multiplied the max count indicated in table 3 by the 
number of planned launches per year (table 5) for each year of the 
authorization. As noted in table 3, given elephant seals' known lack of 
sensitivity to noise, based on VSFB monitoring reports and the 
literature, NMFS predicts that only 15 percent of elephant seals 
exposed to the launch noise will respond in a manner that constitutes 
take by Level B harassment, and, therefore, a 15 percent correction 
factor was applied. We also note that, unlike for harbor seals and 
California sea lions, Northern elephant seal presence and numbers are 
not affected by tides. Therefore, the number of estimated takes = 
highest daily count (302) x behavioral harassment correction factor 
(0.15) x number of rocket launches in the area for each year (40 in 
year 1, etc.), and the resulting take numbers NMFS is authorizing are 
listed in table 5.
Steller Sea Lion
    Steller sea lions have been observed at VSFB since April 2012 (MMCG 
and SAIC 2012c), though as indicated in table 3, they were not observed 
between 2020 and 2022. For purposes of estimating take, USSF estimates 
that up to five Steller sea lions may haul out at VSFB during any given 
launch. NMFS multiplied this number by the number of planned launches 
per year for each year of the authorization (table 5). NMFS assumes 
that all rocket launches result in behavioral disturbance (i.e., Level 
B harassment) of 100 percent of the Steller sea lions hauled out at 
VSFB. Therefore, the number of estimated takes = 5 animals x number of 
rocket launches in the area (40 in year 1, etc.), and the resulting 
take numbers NMFS is authorizing are listed in table 5.

        Table 4--Corrections and Adjustments by Stock at VSFB 1 2
------------------------------------------------------------------------
                                       VSFB, tidal      VSFB, behavioral
                                        inundation        disturbance
               Stock                    correction         correction
                                        (percent)          (percent)
------------------------------------------------------------------------
Harbor seal (California)..........                 50                100
California sea lion (California)..                 50                100
Northern elephant seal (CA                        N/A                 15
 Breeding)........................
Steller sea lion (eastern)........                N/A                100
------------------------------------------------------------------------
\1\ Northern elephant seals and Steller sea lion takes are adjusted to
  reflect observed species-specific reactivity to launch stimulus.
\2\ ``N/A'' indicates that no tidal adjustment was made.


                  Table 5--Authorized Annual and 5-Year Instances of Incidental Take From Rocket Launch and Recovery Activities at VSFB
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                           5 year total
                                                               2024            2025            2026            2027            2028          estimated
                                                                                                                                               takes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Rocket Launches...............................              40              55              75             100             110  ..............
Pacific harbor seal (CA)................................           2,980           4,098           5,588           7,450           8,195          28,311
California sea lion (U.S.)..............................           2,240           3,080           4,200           5,600           6,160          21,280
Northern elephant seal (CA breeding)....................           1,812           2,492           3,398           4,530           4,983          17,215
Steller sea lion (Eastern)..............................             200             275             375             500             550           1,900
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 25173]]

UAS at VSFB

    As stated in the Description of Proposed Activity section of the 
proposed rule (89 FR 5451, January 29, 2024), while harassment of 
hauled out pinnipeds from UAS classes 0-2 is unlikely to occur at 
altitudes of 200 ft (61 m) and above (Erbe et al., 2017; Pomeroy et 
al., 2015; Sweeney et al., 2016; Sweeney and Gelatt, 2017), USSF 
conservatively assumes that UAS classes 0-3 operations will take, by 
Level B harassment, some animals hauled out at Small Haul-Out 1 at 
VSFB. Aircraft are required to maintain a 1,000-ft (305 m) buffer 
around pinniped haul-out and rookery areas except in emergency 
circumstances, such as Search and Rescue. However, Small Haul-Out 1, 
has a reduced 500-ft (152 m) buffer because pinnipeds using this 
particular site have acclimated to the activity. Therefore, a small 
number of takes by Level B harassment may result from UAS activity at 
Small Haul-Out 1, only. Table 6 lists the authorized take by Level B 
harassment at VSFB from UAS activities, and below, we describe how NMFS 
estimated take for each species. Note that northern fur seal and 
Guadalupe fur seal are not anticipated to occur at VSFB, and therefore, 
NMFS does not anticipate impacts to these species at VSFB. While 
Northern elephant seals have been observed on nearby beaches, only 
Pacific harbor seals and California sea lions are known to use Small 
Haul-Out 1, and therefore, these are the only species anticipated to be 
taken by UAS activities.
Pacific Harbor Seal
    Pacific harbor seals are the most common species at Small Haul-Out 
1. USSF estimates that up to six harbor seals may be taken by Level B 
harassment at Small Haul-Out 1 during any given UAS activity, based 
upon previous monitoring data at Small Haul-Out site 1. NMFS concurs, 
and multiplied this number by the number of planned UAS class 0-3 
activities per year (100). Therefore, the number of estimated takes per 
year = 6 animals x 100 UAS activities, and the resulting take numbers 
NMFS is authorizing are listed in table 6.
California Sea Lion
    California sea lions haul out at Small Haul-Out 1, though they are 
less abundant than Pacific harbor seals at that site. USSF estimates 
that up to one California sea lion may be taken by Level B harassment 
at Small Haul-Out 1 during any given UAS activity, based upon previous 
monitoring data at Small Haul-Out site 1. NMFS concurs, and multiplied 
this number by the number of planned UAS class 0-3 activities per year 
(100). Therefore, the number of estimated takes per year = 1 animal x 
100 UAS activities, and the resulting take numbers NMFS is authorizing 
are listed in table 6.

   Table 6--Take by Level B Harassment of Pinnipeds From UAS Activity
------------------------------------------------------------------------
                                      Annual take by   5-Year total take
              Species                    Level B           by Level B
                                        harassment         harassment
------------------------------------------------------------------------
Pacific harbor seal...............                600              3,000
California sea lion...............                100                500
------------------------------------------------------------------------

Missiles at VSFB

    USSF oversees missile launches from seven locations on VSFB. The 
launches occur on a routine basis up to 15 times per year. In addition 
to originating from different locations than rockets, missile 
trajectories are also different. All missile launches tend in north-
westerly direction, and missiles in flight transition to a near-
horizontal profile shortly after launch. USSF's application describes 
that missile launches are not anticipated to result in take of 
pinnipeds at south VSFB, as they do not create a ``boom.'' However, 
USSF anticipates, and NMFS concurs, that missile launches from sites in 
North Base could take California sea lions at Lion Rock (Point Sal), an 
off-base location. Lion Rock (Point Sal) is the only site at which USSF 
anticipates that take of pinnipeds may occur during missile activities, 
and NMFS concurs. Lowry et al. (2021) provides marine mammal occurrence 
data at Lion Rock (Point Sal) for July 2016 and July 2017. While NMFS 
used more recent data (2020 to 2022) to estimate take of pinnipeds 
during rocket launch and UAS activities (described above), those 
surveys did not include Lion Rock (Point Sal), and therefore, NMFS has 
relied on the Lowry et al. (2021) data for missile launch impacts.
    For purposes of estimating take, NMFS conservatively estimates that 
up to 518 California sea lions may haul out at Lion Rock (Point Sal) 
during any given missile launch. This is the higher count of California 
sea lions at the site from 2016 (Lowry et al. 2021). NMFS multiplied 
this number by the number of planned launches per year (15 launches). 
NMFS conservatively assumes that all California sea lions at the site 
will be taken by Level B harassment during any given missile launch, 
though it is relatively unlikely that all 15 launches will fly close 
enough to this site to cause Level B harassment. Therefore, the number 
of estimated takes = 518 animals x number of missile launches in the 
area in a given year (15), and NMFS proposes to authorize 7,770 takes 
by Level B harassment of California sea lion annually (38,850 over the 
duration of the authorization) from missile launches at VSFB, as 
indicated in table 7.

  Table 7--Authorized Instances of Incidental Take From Missile Launches (Military Readiness Activity) at VSFB
----------------------------------------------------------------------------------------------------------------
                                                                                                   5 year total
             Species                 Location       High count     Launches/year   Annual takes      takes \1\
----------------------------------------------------------------------------------------------------------------
California sea lion.............      Lion Rock,      518 (2019)              15           7,770          38,850
                                       Point Sal
----------------------------------------------------------------------------------------------------------------
\1\ Annual take * 5 years.


[[Page 25174]]

NCI
    While USSF does not propose launching rockets from NCI, as noted 
previously, a subset of VSFB rocket launches transit over or near NCI, 
and a subset of those may create a sonic boom that affects some portion 
of pinniped haulouts on NCI (San Miguel and Santa Rosa). No take of 
pinnipeds on NCI is expected to result from missile launches or UAS 
activities. To estimate take of marine mammals at NCI resulting from 
rocket launches at VSFB, NMFS first estimated the number of hauled out 
animals per species across all potentially affected haulouts on San 
Miguel and Santa Rosa Islands. NMFS selected the high count from San 
Miguel and Santa Rosa Islands between 2017 and 2019 (NOAA Technical 
Memorandum SWFSC-656 (Lowry et al., 2021) and summed the high counts 
from each site (table 7). NMFS then applied a correction factor to this 
estimate to account for whether a given species is expected to be 
hauled out in the area during all or a portion of the year (table 9). 
This is referred to as Step 1 below.
    Next, NMFS determined the approximate number of sonic booms over 2 
psf anticipated to occur over the NCI (28 over 5 years, as reflected in 
USSF's application). USSF's application indicates that during previous 
monitoring of pinnipeds on NCI during rocket launches, few to no 
behavioral reactions that would qualify as Level B harassment using the 
3-point scale (table 5) were observed during sonic booms of less than 2 
psf. Therefore, in estimating take herein, NMFS assumes that take of 
marine mammals will only occur during sonic booms of 2 psf or greater. 
Summarizing 20 years of sonic boom modeling (MMCG and SAIC, 2012a), we 
anticipate that no more than 25 percent of space launches will produce 
a sonic boom greater than 2 psf over the NCI (estimated to be 28 
launches over 5 years). On one occasion, pinnipeds on one side of San 
Miguel Island reacted to a boom, while animals 4 miles (6 km) away on 
the other did not react, nor was the boom detected there by acoustic 
instruments (MMCG and SAIC, 2012a). Therefore, NMFS multiplied the 
number of annual booms (table 10) by a 0.25 correction factor for all 
species and rounded each year up to the next whole number. This is 
referred to as step 2 below.
    Next, NMFS multiplied the number of animals anticipated to be at a 
haulout during a launch (calculated in step 1) by the number of annual 
launches anticipated to affect animals at the haulouts (calculated in 
step 2), and then multiplied the product by the likelihood of a given 
species responding in a manner that would be considered take by Level B 
harassment (table 10). NMFS describes the calculations in further 
detail for each species, below.

                                Table 8--NCI, High Count 2017-2019 From SWFSC-656
                                              [Lowry et al. (2021)]
----------------------------------------------------------------------------------------------------------------
                                                                                                    High count
                                                                       2017            2019        from 2017 and
                                                                                                       2019
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal:
    San Miguel..................................................             230             254      254 (2019)
    Santa Rosa..................................................             266             148      266 (2017)
                                                                 -----------------------------------------------
        Sum.....................................................  ..............  ..............             520
California sea lion:
    San Miguel..................................................          49,252          60,277   60,277 (2019)
    Santa Rosa..................................................           2,692           1,618    2,692 (2017)
                                                                 -----------------------------------------------
        Sum.....................................................  ..............  ..............          62,969
Northern elephant seal:
    San Miguel..................................................           2,327           2,791    2,791 (2019)
    Santa Rosa..................................................           1,169           1,015    1,169 (2017)
                                                                 -----------------------------------------------
        Sum.....................................................  ..............  ..............           3,960
Northern fur seal:
    San Miguel..................................................           4,520           4,377    4,520 (2017)
    Santa Rosa..................................................             N/R             N/R             N/R
                                                                 -----------------------------------------------
        Sum.....................................................  ..............  ..............           4,520
Guadalupe fur seal:
    San Miguel..................................................             N/R             N/R             N/R
    Santa Rosa..................................................             N/R             N/R             N/R
                                                                 -----------------------------------------------
        Sum.....................................................  ..............  ..............               5
Steller sea lion:
    San Miguel..................................................             N/R             N/R             N/R
    Santa Rosa..................................................             N/R             N/R             N/R
                                                                 -----------------------------------------------
        Sum.....................................................  ..............  ..............             N/R
----------------------------------------------------------------------------------------------------------------
Note: N/R: No sightings recorded.

Harbor Seals

    For harbor seal, the sum of the high counts at the San Miguel and 
Santa Rosa haulouts during 2017 and 2019 is 520. NMFS expects Pacific 
harbor seals to occur at the haulouts year round, and therefore did not 
apply a correction for seasonal occurrence. NMFS multiplied the harbor 
seal haulout abundance (520) by the number of booms anticipated to 
overlap the haulouts (table 10, calculated in step 2 above). Based on 
years of monitoring reports showing the responses of harbor seals at 
NCI (which is farther from the launch sites than the VSFB sites) to 
launches, NMFS anticipates that 50 percent of harbor

[[Page 25175]]

seals exposed to a sonic boom overlapping a haulout will be taken by 
Level B harassment. Therefore, for each year, the number of estimated 
takes = 520 animals x number of sonic booms over 2 psf x 0.5, and the 
resulting take numbers NMFS is authorizing are listed in table 10.

California Sea Lions

    For California sea lion, the sum of the high counts at the San 
Miguel and Santa Rosa haulouts during 2017 and 2019 is 62,969. While 
some California sea lions remain in the general vicinity of southern 
California throughout the year and may haul out onshore, the use of 
haulout sites at NCI is principally for breeding during peak summer 
months. Given the fact that most male sea lions and a substantial 
portion of all sea lions are not onshore at NCI outside of the breeding 
season, we applied a 50 percent correction factor to better relate 
instances of take to the number of individuals that may be hauled out 
and subject to acoustic effects of launches. NMFS multiplied the 
California sea lion haulout abundance (62,969) by the number of booms 
anticipated to overlap the haulouts (table 10, calculated in Step 2 
above). Based on years of monitoring reports showing the responses of 
California sea lions at NCI to launches, NMFS anticipates that 25 
percent of California sea lions exposed to a sonic boom overlapping a 
haulout will be taken by Level B harassment. Therefore, for each year, 
the number of estimated takes = 62,969 animals x number of sonic booms 
over 2 psf x 0.25, and the resulting take numbers NMFS is authorizing 
are listed in table 10.

Northern Elephant Seals

    For Northern elephant seal, the sum of the high counts at the San 
Miguel and Santa Rosa haulouts during 2017 and 2019 is 3,960. NMFS 
expects Northern elephant seals to occur at the haulouts year round, 
and therefore did not apply a correction for seasonal occurrence. NMFS 
multiplied the Northern elephant seal haulout abundance (3,960) by the 
number of booms anticipated to overlap the haulouts (table 10, 
calculated in step 2 above). Based on years of monitoring reports 
showing the responses of Northern elephant seals at NCI to launches, 
NMFS anticipates that 5 percent of Northern elephant seals exposed to a 
sonic boom overlapping a haulout will be taken by Level B harassment. 
Therefore, for each year, the number of estimated takes = 3,960 animals 
x number of sonic booms over 2.0 psf x 0.05, and the resulting take 
numbers NMFS is authorizing are listed in table 10.

Northern Fur Seal

    For Northern fur seal, the sum of the high counts at the San Miguel 
and Santa Rosa haulouts during 2017 and 2019 is 4,377. Northern fur 
seals spend approximately 80 percent of the year at sea, generally well 
offshore (Carretta et al., 2011; Caretta et al., 2012). To account for 
that seasonal occurrence, NMFS applied a conservative seasonal 
correction factor of 60 percent. NMFS multiplied the Northern fur seal 
haulout abundance (4,377) by the number of booms anticipated to overlap 
the haulouts (table 10, calculated in step 2 above). Based on years of 
monitoring reports showing the responses of Northern fur seals at NCI 
to launches, NMFS anticipates that 5 percent of Northern fur seals 
exposed to a sonic boom overlapping a haulout will be taken by Level B 
harassment. Therefore, for each year, the number of estimated takes = 
4,377 animals x number of sonic booms over 2 psf x 0.05, and the 
resulting take numbers NMFS is authorizing are listed in table 10.

Guadalupe Fur Seal

    For Guadalupe fur seal, the sum of the high counts at the San 
Miguel and Santa Rosa haulouts during 2017 and 2019 is conservatively 
assumed to be five, despite them having not been recorded there, as 
noted in table 8. NMFS estimates the potential for Guadalupe fur seals 
to occur at the haulouts to be comparable throughout the year and, 
therefore, did not apply a correction for seasonal occurrence. NMFS 
multiplied the Guadalupe fur seal haulout abundance (five) by the 
number of booms anticipated to overlap the haulouts (table 10, 
calculated in step 2 above). Based on years of monitoring reports 
showing the responses of Guadalupe fur seals at NCI to launches, NMFS 
anticipates that 50 percent of Guadalupe fur seals exposed to a sonic 
boom overlapping a haulout will be taken by Level B harassment. 
Therefore, for each year, the number of estimated takes = five animals 
x number of sonic booms over 2 psf x 0.5, and the resulting take 
numbers NMFS is authorizing are listed in table 10.

        Table 9--Corrections and Adjustments by Stock at NCI 1 2
------------------------------------------------------------------------
                                     Species response       Seasonal
              Species                 to sonic boom        occurrence
                                        (percent)      (percent of year)
------------------------------------------------------------------------
Harbor seal.......................                 50                100
California sea lion...............                 25                 50
Northern elephant seal............                  5                100
Northern fur seal.................                 25             \3\ 60
Guadalupe fur seal................                 50            \4\ N/A
------------------------------------------------------------------------
\1\ Northern elephant seals and Steller sea lion takes are adjusted to
  reflect observed species-specific reactivity to launch stimulus.
\2\ ``N/A'' indicates that a species is not expected to occur at the
  location.
\3\ Of note, from November to May, there are approximately 125
  individuals at the NCI (S. Melin, 2019), further supporting a seasonal
  correction factor.
\4\ Guadalupe fur seal are generally not expected to occur on the NCI.
  However, as described herein, given that they have occasionally been
  sighted on the NCI, NMFS is conservatively authorizing take of
  Guadalupe fur seal as described herein.


                                                 Table 10--Authorized Take by Level B Harassment at NCI
                                                               [San Miguel and Santa Rosa]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                           5-Year total
                                                               2024            2025            2026            2027            2028            take
--------------------------------------------------------------------------------------------------------------------------------------------------------
Maximum number of sonic booms...........................               5              12              24              30              33  ..............
Maximum number of sonic booms over 2.0 psf..............               2               3               6               8               9  ..............

[[Page 25176]]

 
Pacific harbor seal.....................................             520             780           1,560           2,080           2,340           7,280
California sea lion.....................................          15,742          23,613          47,227          62,969          70,840         220,391
Northern elephant seal..................................             396             594           2,970           3,960           4,455          12,375
Northern fur seal.......................................           1,313           1,970           3,939           5,252           5,909          18,383
Guadalupe fur seal......................................               5               8              15              20              23              71
--------------------------------------------------------------------------------------------------------------------------------------------------------

Total Authorized Take
    Table 11 sums the take estimates described above for VSFB (rocket 
launches, missile launches, and UAS) and NCI (rocket launches only). 
These takes represent the number of instances of harassment of 
pinnipeds following exposure to the indicated activities. However, 
every take does not necessarily, and in this case is not expected to, 
represent a separate individual. Rather, given the known repeated use 
of haulouts by pinnipeds of all species, it is reasonable to expect 
that some subset of the calculated takes represent repeated takes of 
the same individuals, which means that the number of individuals taken 
is expected to be significantly smaller than the number of instances of 
take.

                                                                           Table 11--Total Authorized Annual Take \1\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                                                  Highest annual
                                                                                                                                                                                   instances of
                                                                                                                                                  Highest 1-year       Stock          take as
                             Species                                   2024            2025            2026            2027            2028       take estimated     abundance      percent of
                                                                                                                                                                                       stock
                                                                                                                                                                                     abundance
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Pacific harbor seal.............................................           4,100           5,478           7,748          10,130          11,135          11,135          30,968              36
California sea lion.............................................          25,852          34,563          59,297          76,439          84,870          84,870         257,606              33
Northern elephant seal..........................................           2,208           3,086           6,368           8,490           9,438           9,438         187,386               5
Steller sea lion................................................             200             275             375             500             550             550          36,308               2
Northern fur seal...............................................           1,313           1,970           3,939           5,252           5,909           5,909          14,050              42
Guadalupe fur seal..............................................               5               8              15              20              23              23          34,187               0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Given the known repeated use of haulouts by pinnipeds of all species, it is reasonable to expect that some subset of the calculated takes represent repeated takes of the same individuals,
  which means that the number of individuals taken is expected to be significantly smaller than the number of instances of take.

Mitigation

    In order to issue regulations and an LOA under section 101(a)(5)(A) 
of the MMPA, NMFS must set forth the permissible methods of taking 
pursuant to the activity, and other means of effecting the least 
practicable impact on the species or stock and its habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of the species or stock for 
taking for certain subsistence uses (latter not applicable for this 
action). NMFS regulations require applicants to include information 
about the availability and feasibility (economic and technological) of 
equipment, methods, and manner of conducting the activity or other 
means of effecting the least practicable adverse impact upon the 
affected species or stocks, and their habitat (50 CFR 216.104(a)(11)). 
The NDAA for Fiscal Year 2004 amended the MMPA as it relates to 
military readiness activities and the incidental take authorization 
process such that ``least practicable impact'' shall include 
consideration of personnel safety, practicality of implementation, and 
impact on the effectiveness of the military readiness activity.
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, NMFS 
considers two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned), and;
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost and impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.
    Below, we describe the required mitigation measures for launches 
(rocket and missile), manned aircraft, and UAS.

Launches (Rocket and Missile)

    USSF must provide pupping information to launch proponents at the 
earliest possible stage in the launch planning process to maximize 
their ability to schedule launches to minimize pinniped disturbance 
during pupping seasons on VSFB from 1 March to 30 April and on the 
Northern Channel Islands from 1 June-31 July. If practicable, rocket 
launches predicted to produce a sonic boom on the Northern Channel 
Islands >3 psf from 1 June-31 July will be scheduled to coincide with 
tides in excess of +1.0 ft (0.3 m), with an objective to do so at least 
50 percent of the time. USSF will provide a detailed plan to NMFS for 
approval that outlines how this measure will be implemented. This 
measure will minimize occurrence of launches during low tides when 
harbor seals and California sea lions are anticipated to haul out in 
the greatest numbers during times of year when pupping may be 
occurring, therefore further reducing the

[[Page 25177]]

already unlikely potential for separation of mothers from pups and 
potential for injury during stampedes. While harbor seal pupping 
extends through June, harbor seals reach full size at approximately 2 
months old, at which point they are less vulnerable to disturbances. In 
consideration of that and practicability concerns raised by USSF, this 
measure does not extend through the later portion of the harbor seal 
pupping season at VSFB.

Manned Aircraft

    For manned flight operations, aircraft must use approved routes for 
testing and evaluation. Manned aircraft must also remain outside of a 
1,000-ft (305 m) buffer around pinniped rookeries and haul-out sites 
(except in emergencies such as law enforcement response or Search and 
Rescue operations, and with a reduced, 500-ft (152 m) buffer at Small 
Haul-out 1). As discussed earlier, use of these routes and 
implementation of the buffer will avoid behavioral disturbance of 
marine mammals from manned aircraft operations.

UAS

    UAS classes 0-2 must maintain a minimum altitude of 300 ft (91 m) 
over all known marine mammal haulouts when marine mammals are present, 
except at take-off and landing. Class 3 must maintain a minimum 
altitude of 500 ft (152 m), except at take-off and landing. UAS classes 
4 and 5 only operate from the VSFB airfield and must maintain a minimum 
altitude of 1,000 ft (305 m) over marine mammal haulouts except at 
take-off and landing. USSF must not fly class 4 or 5 UAS below 1,000 ft 
(305 m) over haulouts.
    Based on our evaluation of the applicant's proposed measures, NMFS 
has determined that the required mitigation measures provide the means 
of effecting the least practicable adverse impact on the affected 
species or stocks and their habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an ITA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present while 
conducting the activities. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the activity; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and,
     Mitigation and monitoring effectiveness.
    The USSF proposed a suite of monitoring measures on both VSFB and 
the NCI to document impacts of the specified activities on marine 
mammals. These monitoring measures include both routine, semi-monthly 
counts at all haul out sites on VSFB, and launch-specific monitoring at 
VSFB and/or NCI when specific criteria are met. For monitoring at VSFB 
and NCI, monitoring must be conducted by at least one NMFS-approved 
protected species observer (PSO) trained in marine mammal science. PSOs 
must have demonstrated proficiency in the identification of all age and 
sex classes of both common and uncommon pinniped species found at VSFB 
and the NCI. They must be knowledgeable of approved count methodology 
and have experience in observing pinniped behavior, especially that due 
to human disturbances, to document pinniped activity at the monitoring 
site(s) and to record marine mammal response to base operations. 
Specific requirements for monitoring locations at VSFB and NCI 
respectively, are described in additional detail below. In the event 
that the requirement for PSO monitoring cannot be met (such as when 
access is prohibited due to safety concerns), daylight or night-time 
video monitoring may be used in lieu of PSO monitoring. In certain 
circumstances where the daylight or nighttime video monitoring is not 
possible (e.g., USSF is unable to access a monitoring site due to road 
conditions or human safety concerns), USSF must notify NMFS.

Rocket Launch Monitoring at VSFB

    At VSFB, USSF must conduct marine mammal monitoring and take 
acoustic measurements for all new rockets, for rockets (existing and 
new) launched from new facilities, and for larger or louder rockets 
(including those with new launch proponents) than those that have been 
previously launched from VSFB during their first three launches, and 
for the first three launches from any new facilities during March 
through July (i.e., the period during which harbor seals are pupping 
occurs and California sea lions are present).
    For the purposes of establishing monitoring criteria for VSFB 
haulouts, computer software is used to model sound pressure levels 
anticipated to occur for a given launch and/or recovery. Sonic boom 
modeling will be performed prior to the first three small or medium 
rocket launches from new launch proponents or at new launch facilities, 
and all heavy or super-heavy rocket launches. PCBoom, a commercially 
available modeling program, or an acceptable substitute, will be used 
to model sonic booms from new vehicles.
    Launch parameters specific to each launch will be incorporated into 
each model run, including: launch direction and trajectory, rocket 
weight, length, engine thrust, engine plume drag, and launch profile 
(vehicle position versus time from launch to first-stage burnout), 
among other aspects. Various weather scenarios will be analyzed from 
NOAA weather records for the region, then run through the model. Among 
other factors, these will include the presence or absence of the jet 
stream, and if present, its direction, altitude and velocity. The type, 
altitude, and density of clouds will also be considered. From these 
data, the models will predict peak amplitudes and impacted locations. 
As described below, this approach is also used to assess whether 
thresholds (table 12) for marine mammal monitoring on NCI could be 
exceeded or not, and whether

[[Page 25178]]

marine mammal monitoring will be necessary for animals hauled out at 
NCI.
    In general, on both VSFB and NCI, event-specific monitoring 
typically involves four to six observations of each significant haul-
out area each day, over a period of 3 to 5 hours. For launches that 
occur during the harbor seal pupping season (March 1 through June 30) 
or when higher numbers of California sea lions are present (June 1 
through July 31), monitoring will be conducted by at least one NMFS-
approved PSO trained in marine mammal science. Authorized PSOs shall 
have demonstrated proficiency in the identification of all age and sex 
classes of all marine mammal species that occur at VSFB. They shall be 
knowledgeable of approved count methodology and have experience in 
observing pinniped behavior, especially that due to human disturbances.
    When launch monitoring is required, monitoring will begin at least 
72 hours prior to the launch and continue through at least 48 hours 
after the launch. USSF will conduct a minimum of four surveys per day 
during these windows. For launches within the harbor seal pupping 
season, a 2-week follow-up pup survey will be required to ensure that 
there were no adverse effects to pups. During daylight monitoring, 
time-lapse video recordings will be made to capture the reactions of 
pinnipeds to each launch, and during nighttime monitoring, USSF will 
employ night video monitoring, when feasible. Monitoring will include 
multiple surveys each day. When possible, PSOs will record: species, 
number, general behavior, presence of pups, age class, gender, and 
reaction to launch noise, or to natural or other human-caused 
disturbances. They will also record environmental conditions, including 
visibility, air temperature, clouds, wind speed and direction, tides, 
and swell height and direction.

NCI Launch Monitoring

    USSF will conduct marine mammal monitoring and take acoustic 
measurements at the NCI if the sonic boom model indicates that 
pressures from a boom will reach or exceed the psf level detailed in 
table 12 during the indicated date range. These dates were determined 
to be appropriate to account for sensitive seasons, primarily pupping, 
for the various pinniped species.

      Table 12--NCI Sonic Boom Level Requiring Monitoring, by Date
------------------------------------------------------------------------
                         Dates                          Sonic boom level
------------------------------------------------------------------------
1 January-28 February.................................           >7 psf.
1 March-31 July.......................................           >5 psf.
1 August-30 September.................................           >7 psf.
1 October-31 December.................................    no monitoring.
------------------------------------------------------------------------

    USSF will use specialized acoustic instruments to record sonic 
booms generated by launches from VSFB and resulting overflights or 
recoveries predicted to affect NCI haul out sites. VSFB will analyze 
the recordings to determine the intensity, duration, and frequency of 
sonic booms and resulting marine mammal responses in order to compare 
monitoring results with levels considered potentially harmful to marine 
mammals. The analysis can also be used to validate the efficacy of the 
model.
    Monitoring locations on NCI will be selected based upon the model 
results, prioritizing a significant haulout site on one of the islands 
where the maximum sound pressures are expected to occur. Currently, 
monitoring the reactions of northern fur seals and Pacific harbor seals 
to sonic booms is of a higher priority than monitoring of California 
sea lions and northern elephant seals, for which more data is currently 
available (table 5). Monitoring the reactions of mother-pup pairs of 
any species is also a high priority.
    Considering the large numbers of pinnipeds (sometimes thousands) 
that occur on some NCI beaches, while estimates of the entire beach 
population will be made and their reactions to the launch noise noted, 
more focused and detailed monitoring will be conducted on a smaller 
subset or focal group. Photos and/or video recordings will be collected 
for daylight launches when feasible, and if the launch occurs in 
darkness night vision equipment will be used. Potential impediments to 
effective use of photographic and video equipment include periods of 
reduced visibility, terrain that obscures animals from view from one 
observation point, severe glare and fog that can occur, and/or other 
factors.
    Monitoring will be conducted by at least one NMFS-approved PSO who 
is trained in marine mammal science. Another person will accompany the 
monitor for safety reasons. Monitoring will commence at least 72 hours 
prior to the launch, during the launch and at least 48 hours after the 
launch, unless no sonic boom is detected by the monitors and/or by the 
acoustic recording equipment, at which time monitoring will be stopped. 
If the launch occurs in darkness, night vision equipment will be used. 
Monitoring for each launch will include multiple surveys each day that 
record, when possible: species, number, general behavior, presence of 
pups, age class, gender, and reaction to sonic booms or natural or 
human-caused disturbances. Photos and/or video recordings will be taken 
when feasible. Environmental conditions will also be recorded, 
including visibility, air temperature, clouds, wind speed and 
direction, tides, and swell height and direction.
    USSF will continue to test equipment and emerging technologies, 
including but not limited to night vision cameras, newer models of 
remote video cameras and other means of remote monitoring at both VSFB 
and on the NCI. UAS-based or space-based technologies that may become 
available will be evaluated for suitability and practicability, and for 
any advantage that remote sensing may provide to existing monitoring 
approaches, including ensuring coverage when scheduling constraints or 
other factors impede onsite monitoring at NCI.

Missile Launch Monitoring

    Multiple years of monitoring indicates that missile launches do not 
result in significant take (i.e., only a subset of pinnipeds, in the 
vicinity of the launch trajectory, respond in a manner that would 
qualify as a take, and the impacts appear comparatively minor and of 
short duration). Therefore, monitoring of marine mammals is only 
required for the first three launches of the missiles for the new GBSD 
during the months of March through July (i.e., the period during which 
harbor seals are pupping and California sea lions are present) across 
the 5-year duration of this rule.
    When missile launch monitoring is required, monitoring will include 
multiple surveys each day. When possible, PSOs will record: species, 
number, general behavior, presence of pups, age class, gender, and 
reaction to launch noise, or to natural or other human-caused 
disturbances. They will also record environmental conditions, including 
visibility, air temperature, clouds, wind speed and direction, tides, 
and swell height and direction.

USSF Semi-Monthly Sentinel Surveys

    USSF conducts marine mammal surveys on a regular basis in addition 
to the monitoring that is required based on launch characteristics and 
sound pressure thresholds, described above. These regular surveys help 
characterize onsite trends in pinniped presence and abundance and, over 
the longer term, provide important context for

[[Page 25179]]

interpreting seasonal trends and launch-specific monitoring results. 
The current monthly surveys have allowed researchers to assess haul-out 
patterns and relative abundance over time, presenting a better picture 
of pinniped population trends at VSFB and whether USSF operations are 
resulting in cumulative impacts. For the period of this LOA, and in 
conjunction with changes of monitoring criteria for launches, the 
applicant will change the frequency of sentinel surveys from monthly to 
semi-monthly (two surveys per month).
    Past surveys have captured important data including novel 
occurrences (such as unsuccessful California sea lion pupping on VSFB 
in 2003 and northern elephant seal pupping in 2017) and emerging or 
fleeting trends (such as greater numbers of northern elephant seals 
hauling out in 2004, and a temporary increase in California sea lions 
onsite in 2018 and 2019). These results, in conjunction with 
anticipated changes in launch activity and environmental factors 
underscore the value of consistent surveys collected on a regular 
basis, to provide sound context for launch-specific monitoring results.
    USSF will conduct semi-monthly surveys (two surveys per month, 
rather than the current monthly surveys) to monitor the abundance, 
distribution, and status of pinnipeds at VSFB. Whenever possible, these 
surveys will be timed to coincide with the lowest afternoon tides of 
each month when the greatest numbers of animals are usually hauled out. 
South VSFB surveys start about two hours before the low tide and end 
two hours afterward. North VSFB surveys are either conducted by a 
separate surveyor on the same day as south VSFB, or on the day before/
after south VSFB surveys. North VSFB surveys require approximately 90 
minutes. Monitoring during nighttime low tides is not possible because 
of the dangerously unstable nature of the bluffs overlooking many of 
the observation points. Occasional VSFB or area closures also sometimes 
preclude monitoring on a given day, in which case the next best day 
will be selected.
    NMFS-approved PSOs will gather the following data at each site: 
species, number, general behavior, presence of pups, age class, gender, 
and any reactions to natural or human-caused disturbances. They will 
also record environmental conditions, including visibility, air 
temperature, clouds, wind speed and direction, tides, and swell height 
and direction.

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
launches and supporting activities at VSFB contain an adaptive 
management component. Our understanding of the effects of launches and 
supporting activities (e.g., acoustic and visual stressors) on marine 
mammals continues to evolve, which makes the inclusion of an adaptive 
management component both valuable and necessary within the context of 
5-year regulations.
    The reporting requirements associated with this rule are designed 
to provide NMFS with monitoring data from the previous year to allow 
NMFS to consider whether any changes to existing mitigation, monitoring 
or reporting requirements are warranted. The use of adaptive management 
also allows NMFS to consider new information from different sources to 
determine (with input from the USSF regarding practicability) on an 
annual or biennial basis if mitigation or monitoring measures should be 
modified (including additions or deletions). Mitigation measures could 
be modified if new data suggests that such modifications will have a 
reasonable likelihood of more effectively accomplishing the goals of 
the mitigation and monitoring and if the measures are practicable. If 
the modifications to the mitigation, monitoring, or reporting measures 
are more than minor, NMFS will publish a notice of the planned LOA in 
the Federal Register and solicit public comment.

Reporting

    USSF is required to submit annual reports as well as a 5-year 
comprehensive report. USSF is not required to submit launch-specific 
reports within 90 days after each rocket launch where monitoring is 
required as was described in the proposed rule (89 FR 5451, January 29, 
2024).
    USSF must submit an annual report to NMFS on March 1st of each year 
that describes all activities and monitoring for the specified 
activities during that year. This includes launch monitoring 
information for each launch where monitoring is required or conducted, 
including the specific information described below in this section. The 
annual reports must also include a summary of the documented numbers of 
instances of harassment incidental to the specified activities, 
including non-launch activities (e.g., takes incidental to aircraft or 
helicopter operations observed during the semi-monthly surveys). Annual 
reports must also include the results of the semi-monthly sentinel 
marine mammal monitoring.
    Launch monitoring information in the annual reports must include 
the following:
     Date(s) and time(s) of the launch (and sonic boom, if 
applicable);
     Number(s), type(s), and location(s) of rockets or missiles 
launched;
     Monitoring program design; and
     Results of the monitoring program, including, but not 
necessarily limited to:
    [cir] Date(s) and location(s) of marine mammal monitoring;
    [cir] Number of animals observed, by species, on the haulout prior 
to commencement of the launch or recovery;
    [cir] General behavior and, if possible, age (including presence of 
pups) and sex class of pinnipeds hauled out prior to the launch or 
recovery;
    [cir] Number of animals, by species, age, and sex class, that 
responded at a level indicative of harassment;
    [cir] Number of animals, by species, age, and sex class that 
entered the water, the length of time the animal(s) remained off the 
haulout, and any behavioral responses by pinnipeds that were likely in 
response to the specified activities, including in response to launch 
noise or a sonic boom;
    [cir] Environmental conditions including visibility, air 
temperature, clouds, wind speed and direction, tides, and swell height 
and direction; and
    [cir] Results of acoustic monitoring, including the following
    [ssquf] Recorded sound levels associated with the launch (in SEL, 
SPLpeak, and SPLrms);
    [ssquf] Recorded sound levels associated with the sonic boom (if 
applicable), in psf;
    [ssquf] The estimated distance of the recorder to the launch site 
and the distance of the closest animals to the launch site.
    USSF must submit a final comprehensive 5-year report 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 assess any cumulative 
impacts on marine mammals from the specified activities.
    If real-time monitoring during a launch shows that the activity 
identified in Sec.  217.60(a) is reasonably likely to have resulted in 
the mortality or injury of any marine mammal, USSF must notify NMFS 
within 24 hours (or next business day). NMFS and USSF must then jointly 
review the launch procedure and the mitigation

[[Page 25180]]

requirements and make appropriate changes through the adaptive 
management process, as necessary and before any subsequent launches of 
rockets and missiles with similar or greater sound fields and/or sonic 
boom pressure levels.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact 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 (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any impacts or responses (e.g., intensity, duration), 
the context of any impacts or responses (e.g., critical reproductive 
time or location, foraging impacts affecting energetics), as well as 
effects on habitat, and the likely effectiveness of the mitigation. We 
also assess the number, intensity, and context of estimated takes by 
evaluating this information relative to population status. Consistent 
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338, 
September 29, 1989), the impacts from other past and ongoing 
anthropogenic activities are incorporated into this analysis via their 
impacts on the baseline (e.g., as reflected in the regulatory status of 
the species, population size and growth rate where known, ongoing 
sources of human-caused mortality, or ambient noise levels).
    To avoid repetition, this introductory discussion of our analysis 
applies to all the species listed in table 4, given that many of the 
anticipated effects of this project on different marine mammal stocks 
are expected to be relatively similar in nature. Where there are 
meaningful differences between species or stocks, or groups of species, 
in anticipated individual responses to activities, impact of expected 
take on the population due to differences in population status, or 
impacts on habitat, they are described independently in the analysis 
below.
    USSF's activities, as outlined previously, have the potential to 
disturb and temporarily displace marine mammals. Specifically, the 
specified activities may result in take, in the form of Level B 
harassment only, from airborne sounds resulting from launches and 
recoveries, including sonic booms from certain launches and sound or 
visual stimuli from UAS operations. Based on the best available 
information, including monitoring reports from similar activities 
conducted at the site, the Level B harassment of pinnipeds will likely 
be limited to reactions such as moving a short distance, with some 
hauled out animals moving toward or flushing into the water for a 
period of time following the disturbance.
    As mentioned previously, different species of marine mammals and 
different conditions at haul out sites can result in different degrees 
of response from the animals. Sufficient data collected onsite can be 
used to characterize the relative tendency of species to react to 
acoustic disturbance and, specifically, to noise from VSFB launches and 
operations. These distinctions in species response are discussed above 
in the Potential Effects of Specified Activities on Marine Mammals and 
Their Habitat section, and correction factors for species sensitivity 
are applied to the take estimates provided in this document.
    As discussed earlier, Level B harassment of pinnipeds from rocket 
and missile launch activities or UAS exposure is primarily expected to 
be of relatively short duration, in the form of changing position, 
direction, or location on the haulout or, on a subset of occasions, 
flushing into the water for some amount of time (up to a few hours). 
UAS flights will be conducted in accordance with minimum altitude 
requirements designed to minimize impacts over haulouts and planning 
measures are in place to minimize launch effects to pinnipeds on 
beaches where pupping is occurring. Given the potential for seasonal 
site fidelity, it is likely that some individuals will be taken 
multiple times during the course of the year as a result of exposure to 
multiple launches, and potentially UAS overflights. However, given the 
intermittency of the launches and the fact that they do not all 
originate from the same location, these repeated exposures are not 
expected to result in prolonged exposures over multiple days. Thus, 
even repeated instances of Level B harassment of some small subset of 
an overall stock is unlikely to result in any significant realized 
decrease in fitness of those individuals, and thus will not result in 
any adverse impact to the stock as a whole. Level B harassment will be 
minimized through use of mitigation measures described above.
    As discussed earlier, some of the beaches that may be impacted by 
launch activities and UAS overflights support pupping in some months, 
specifically for harbor seals (March through June on VSFB and NCI), 
California sea lions (May through August on NCI), elephant seals 
(January through March on VSFB and December through March on NCI), and 
northern fur seals (June through August on San Miguel Island, NCI).
    Broadly speaking, flushing of pinnipeds into the water has the 
potential to result in mother-pup separation, or in extreme 
circumstances could result in a stampede, either of which could 
potentially result in serious injury or mortality. However, based on 
the best available information, including reports from over 20 years of 
monitoring pinniped response to launch noise at VSFB and the NCI, no 
serious injury or mortality of marine mammals is anticipated as a 
result of the activities. USSF is required to provide pupping 
information to launch proponents at the earliest possible stage in the 
launch planning process, to maximize their ability to schedule launches 
to minimize pinniped disturbance during Pacific harbor seal pupping on 
Vandenberg SFB (1 March to 30 April) and California sea lion pupping on 
the Northern Channel Islands (1 June-31 July of each year). If 
practicable, rocket launches predicted to produce a sonic boom on the 
Northern Channel Islands >5 psf during the California sea lion pupping 
season will be scheduled to coincide with tides in excess of +1.0 ft 
(0.3 m), with an objective to achieve such avoidance at least 50 
percent of the time, which is expected to minimize the impacts at 
places and times where pupping could be occurring. Even in the 
instances of pinnipeds being harassed by sonic booms from rocket 
launches at VSFB, no evidence of abnormal behavior, injuries or 
mortalities, or pup abandonment as a result of sonic booms (SAIC 2013; 
CEMML, 2018) has been presented. These findings are supported by more 
than two decades of surveys at VSFB and the NCI (MMCG and SAIC, 2012). 
Post-launch monitoring generally reveals a return to normal behavioral 
patterns within minutes up to an hour or two of each launch, regardless 
of species. Of note, research on abundance and fecundity has been 
conducted at San Miguel Island (recognized as an important pinniped 
rookery) for decades. This research, as well as SARs, support a 
conclusion that operations at VSFB have not had significant impacts on 
the numbers of animals observed at

[[Page 25181]]

San Miguel Island rookeries and haulouts (SAIC, 2012). In addition, 
northern elephant seal pupping was documented on VSFB for the first 
time in 2017 and continued into 2022, further indicating that the 
effects of ongoing launch activities do not preempt new marine mammal 
activity and are unlikely to have impacted annual rates of recruitment 
or survival among affected species.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
     No injury, serious injury, or mortality are anticipated or 
authorized;
     The anticipated instances of Level B harassment are 
expected to consist of, at worst, temporary modifications in behavior 
(i.e., short distance movements and occasional flushing into the water 
with return to haulouts within approximately 60-120 minutes), which are 
not expected to adversely affect the fitness of any individuals;
     The planned activities are expected to result in no long-
term changes in the use by pinnipeds of rookeries and haulouts in the 
project area, based on over 20 years of monitoring data; and
     The presumed efficacy of planned mitigation measures in 
reducing the effects of the specified activity.
    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 required monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
the planned activity will have a negligible impact on all affected 
marine mammal species or stocks.

Small Numbers

    As noted previously, only take of small numbers of marine mammals 
may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. Here, a 
small portion of the activities (missile launches only) are considered 
military readiness activities, but we have conducted the assessment 
considering the totality of the take considered for this final rule. 
The MMPA does not define small numbers and so, in practice, where 
estimated numbers are available, NMFS compares the maximum number of 
individuals taken in any year to the most appropriate estimation of 
abundance of the relevant species or stock in our determination of 
whether an authorization is limited to small numbers of marine mammals. 
Generally, if the predicted annual number of individuals to be taken is 
fewer than one-third of the species or stock abundance for each year of 
the period of an authorization, the take is considered to be of small 
numbers. See 86 FR 5438-5440, January 19, 2021. Additionally, other 
qualitative factors may be considered in the analysis, such as the 
temporal or spatial scale of the activities. Here, we considered the 
tendency to show site fidelity among affected species, their seasonal 
distribution trends and the likelihood of individual animals being 
disturbed repeatedly (i.e., taken by multiple launches across multiple 
days within a year), rather than treating each instance of take as 
though it was affecting a different individual.
    For every year, the instances of take authorized of northern 
elephant seal, Steller sea lion, and Guadalupe fur seal comprise less 
than one-third of the best available population abundances respectively 
(table 11). The number of animals authorized to be taken from these 
stocks is considered small relative to the relevant stock's abundances 
even if each estimated instance of take accrued to a different 
individual, which is an unlikely scenario.
    For harbor seals and California sea lions (years 4 and 5 only), and 
Northern fur seals (years 3, 4, and 5 only), the highest annual 
estimated instances of take are greater than or equal to one-third of 
the best available stock abundance (36, 33, and 42 percent, 
respectively). However, as noted previously, the number of expected 
instances of take does not always fairly represent the number of 
individual animals expected to be taken. The same individual can incur 
multiple takes by Level B harassment over the course of an activity 
that occurs multiple times in the same area (such as the USSF's planned 
activity), especially where species have documented site fidelity to a 
location within the project area, as is the case here. Additionally, 
due to the nature of the specified activity--launch activities 
affecting animals at specific haul out locations, rather than a mobile 
activity occurring throughout the much larger stock range--a much 
smaller portion of the stock is expected to be impacted. Thus, while we 
considered and authorize the instances of incidental take of these 
species shown in table 11, the number of individuals that would be 
incidentally taken by the planned activities will, in fact, be 
substantially lower than the authorized instances of take, and less 
than one third of the stock abundance for each of these species. We 
base the small numbers determination on the number of individuals taken 
versus the number of instances of take, as is appropriate when the 
information is available.
    Based on the analysis contained herein of the planned activity 
(including the required mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS finds that small numbers of 
marine mammals will be taken relative to the population size of the 
affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Classification

Endangered Species Act

    Section 7(a)(2) of the ESA of 1973 (ESA; 16 U.S.C. 1531 et seq.) 
requires that each Federal agency insure that any action it authorizes, 
funds, or carries out is not likely to jeopardize the continued 
existence of any endangered or threatened species or result in the 
destruction or adverse modification of designated critical habitat. To 
ensure ESA compliance for the issuance of ITAs, NMFS consults 
internally whenever we propose to authorize take for endangered or 
threatened species, in this case with the NMFS West Coast Region.
    NMFS is authorizing a limited amount of take, by Level B harassment 
(5-23 annually, 70 over the course of the 5-year rule), of Guadalupe 
fur seals, which are listed as Threatened under the ESA. On December 
20, 2023, NMFS' West Coast Regional Office concurred with OPR's 
determination that USSF's planned activities are consistent with those 
addressed by the region's February 15, 2019, letter of concurrence for 
the current LOA, and are not likely to adversely affect the Guadalupe 
fur seal.

National Marine Sanctuaries Act

    Federal agency actions that are likely to injure national marine 
sanctuary resources are subject to consultation with the Office of 
National Marine Sanctuaries (ONMS) under section 304(d) of the National 
Marine Sanctuaries Act (NMSA). While rocket and missile launches do not 
occur in national marine sanctuary waters,

[[Page 25182]]

depending on the direction of a given launch, rockets and missiles may 
cross over the Channel Islands National Marine Sanctuary. NMFS, in 
coordination with NOAA's Office of National Marine Sanctuaries, 
determined that consultation under the NMSA is not warranted.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must evaluate our proposed action (i.e., the promulgation of 
regulations and subsequent issuance of incidental take authorization) 
and alternatives with respect to potential impacts on the human 
environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 of the Companion Manual for NAO 216-6A, 
which do not individually or cumulatively have the potential for 
significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical exclusion. Accordingly, NMFS has determined 
that this action qualifies to be categorically excluded from further 
NEPA review.

Executive Order 12866

    The Office of Management and Budget has determined that this rule 
is not significant for purposes of Executive Order 12866.

Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et 
seq.), the Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required and none was prepared.

Waiver of Delay in Effective Date

    The Assistant Administrator for Fisheries has determined that there 
is a sufficient basis under the Administrative Procedure Act (APA) to 
waive the 30-day delay in the effective date of the measures contained 
in the final rule. Section 553 of the APA provides that the required 
publication or service of a substantive rule shall be made not less 
than 30 days before its effective date with certain exceptions, 
including (1) for a substantive rule that relieves a restriction or (2) 
when the agency finds and provides good cause for foregoing delayed 
effectiveness (5 U.S.C 553(d)(1), (d)(3)). Here, the issuance of 
regulations under section 101(a)(5)(A) of the MMPA relieves the 
statutory prohibition on the taking of marine mammals, specifically, 
the incidental taking of marine mammals associated with USSF's launches 
and supporting activities.
    The waiver of the 30-day delay of the effective date of the final 
rule will ensure that the MMPA final rule and LOAs are in place by the 
time the current authorizations expire. Any delay in effectiveness of 
the final rule would result in either: (1) A suspension of planned 
launches and supporting activities, some of which are military 
readiness activities; or (2) the USSF's non-compliance with the MMPA 
(should the USSF conduct launches and supporting activities without 
LOAs, resulting in unauthorized takes of marine mammals). Moreover, 
USSF is ready to implement the regulations immediately. For these 
reasons, NMFS finds good cause to waive the 30-day delay in the 
effective date. In addition, the rule together with the LOA authorizes 
incidental take of marine mammals that would otherwise be prohibited 
under the statute. Therefore, by granting an exception to the USSF, the 
rule relieves restrictions under the MMPA, which provides a separate 
basis for waiving the 30-day effective date for the rule under section 
553(d)(1) of the APA.

List of Subjects in 50 CFR Part 217

    Exports, Fish, Imports, Marine mammals, Reporting and recordkeeping 
requirements, Transportation.

    Dated: April 4, 2024.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NOAA amends 50 CFR part 
217 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., unless otherwise noted.


0
2. Revise subpart G to read as follows:

Subpart G--Taking and Importing Marine Mammals; Taking Marine 
Mammals Incidental to U.S. Space Force Launches and Operations at 
Vandenberg Space Force Base, 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 requirements.
217.65 Requirements for monitoring and reporting.
217.66 Letters of Authorization.
217.67 Renewals and modifications of Letter of Authorization.
217.68-217.69 [Reserved]


Sec.  217.60  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the United States 
Space Force (USSF) and those persons it authorizes to conduct 
activities on its behalf, for the taking of marine mammals that occurs 
in the areas outlined in paragraph (b) of this section incidental to 
rocket and missile launches and supporting operations.
    (b) The incidental taking of marine mammals under this subpart may 
be authorized in a Letter of Authorization (LOA) only for activities 
originating at Vandenberg Space Force Base (VSFB).


Sec.  217.61  Effective dates.

    (a) Regulations in this subpart are effective from April 10, 2024, 
through April 10, 2029.
    (b) [Reserved]


Sec.  217.62  Permissible methods of taking.

    (a) Under an LOA issued pursuant to Sec.  216.106 of this chapter 
and Sec.  217.66 or Sec.  217.67, the Holder (hereinafter the USSF) may 
incidentally, but not intentionally, take marine mammals by Level B 
harassment, as described in Sec.  217.60(a) and (b), provided the 
activity is in compliance with all terms, conditions, and requirements 
of the regulations in this subpart and the appropriate LOA.
    (b) The incidental take of marine mammals by the activities listed 
in Sec.  217.60 is limited to the following species and stocks:

                       Table 1 to Sec.   217.62(b)
------------------------------------------------------------------------
                  Species                               Stock
------------------------------------------------------------------------
California sea lion.......................  United States.
Northern fur seal.........................  California.
Guadalupe fur seal........................  Mexico.
Steller sea lion..........................  Eastern.
Harbor seal...............................  California.
Northern elephant seal....................  California Breeding.
------------------------------------------------------------------------


[[Page 25183]]

Sec.  217.63  Prohibitions.

    (a) Except for takings contemplated in Sec.  217.62 and authorized 
by a LOA issued under Sec.  216.106 of this chapter and Sec. Sec.  
217.66 and 217.67, it shall be unlawful for any person to do any of the 
following in connection with the activities listed in Sec.  217.60:
    (1) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a LOA issued under Sec.  216.106 of 
this chapter and Sec.  217.66 or Sec.  217.67;
    (2) Take any marine mammal species or stock not specified in this 
subpart or such LOAs;
    (3) Take any marine mammal specified in this subpart or such LOAs 
in any manner other than as specified; or
    (4) Take a marine mammal specified in this subpart or such LOAs if 
NMFS determines after notice and comment that the taking allowed for 
one or more activities under 16 U.S.C. 1371(a)(5)(A) is having or may 
have more than a negligible impact on the species or stocks of such 
marine mammal.
    (b) [Reserved]


Sec.  217.64  Mitigation requirements.

    (a) When conducting the activities identified in Sec.  217.60(a) 
and (b), the mitigation measures contained in any LOA issued under 
Sec.  216.106 of this chapter and Sec.  217.66 or Sec.  217.67 must be 
implemented. These mitigation measures include (but are not limited 
to):
    (1) USSF must provide pupping information to launch proponents at 
the earliest possible stage in the launch planning process and direct 
launch proponents to, if practicable, avoid scheduling launches during 
pupping seasons on VSFB from 1 March to 30 April and on the Northern 
Channel Islands from 1 June-31 July. If practicable, rocket launches 
predicted to produce a sonic boom on the Northern Channel Islands >3 
pounds per square foot (psf) from 1 June-31 July will be scheduled to 
coincide with tides in excess of +1.0 ft (0.3 m), with an objective to 
do so at least 50 percent of the time.
    (2) For manned flight operations, aircraft must use approved routes 
for testing and evaluation. Manned aircraft must also remain outside of 
a 1,000-ft (305 m) buffer around pinniped rookeries and haul-out sites 
(except in emergencies such as law enforcement response or Search and 
Rescue operations, and with a reduced, 500-ft (152 m) buffer at Small 
Haul-out 1).
    (3) Unscrewed aerial systems (UAS) classes 0-2 must maintain a 
minimum altitude of 300 ft (91 m) over all known marine mammal haulouts 
when marine mammals are present, except at take-off and landing. Class 
3 must maintain a minimum altitude of 500 ft (152 m), except at take-
off and landing. UAS classes 4 and 5 only operate from the VSFB 
airfield and must maintain a minimum altitude of 1,000 ft (305 m) over 
marine mammal haulouts except at take-off and landing. USSF must not 
fly class 4 or 5 UAS below 1,000 ft (305 m) over haulouts.
    (b) [Reserved]


Sec.  217.65  Requirements for monitoring and reporting.

    (a) Monitoring at VSFB and NCI must be conducted by at least one 
NMFS-approved Protected Species Observer (PSO) trained in marine mammal 
science. PSOs must have demonstrated proficiency in the identification 
of all age and sex classes of all marine mammal species that occur at 
VSFB and on Northern Channel Islands (NCI). They must be knowledgeable 
of approved count methodology and have experience in observing pinniped 
behavior, especially that due to human disturbances.
    (b) In the event that the PSO requirements described in paragraph 
(a) of this section cannot be met (e.g., access is prohibited due to 
safety concerns), daylight or nighttime video monitoring must be used 
in lieu of PSO monitoring. In certain circumstances where the daylight 
or nighttime video monitoring is also not possible (e.g., USSF is 
unable to access a monitoring site due to road conditions or human 
safety concerns), USSF must notify NMFS.
    (c) At VSFB, USSF must conduct marine mammal monitoring and take 
acoustic measurements for all new rockets, for rockets (existing and 
new) launched from new facilities, and for larger or louder rockets 
(including those with new launch proponents) than those that have been 
previously launched from VSFB during their first three launches and for 
the first three launches from any new facilities during March through 
July.
    (1) For launches that occur during the harbor seal pupping season 
(March 1 through June 30) or when higher numbers of California sea 
lions are present (June 1 through July 31), monitoring must be 
conducted by at least one NMFS-approved PSO trained in marine mammal 
science.
    (2) When launch monitoring is required, monitoring must begin at 
least 72 hours prior to the launch and continue through at least 48 
hours after the launch. Monitoring must include multiple surveys each 
day, with a minimum of four surveys per day.
    (3) For launches within the harbor seal pupping season, USSF must 
conduct a follow-up survey of pups.
    (4) For launches that occur during daylight, USSF must make time-
lapse video recordings to capture the reactions of pinnipeds to each 
launch. For launches that occur at night, USSF must employ night video 
monitoring, when feasible.
    (5) When possible, PSOs must record: species, number, general 
behavior, presence and number of pups, age class, gender, and reaction 
to launch noise, or to natural or other human-caused disturbances. PSOs 
must also record environmental conditions, including visibility, air 
temperature, clouds, wind speed and direction, tides, and swell height 
and direction.
    (d) USSF must conduct sonic boom modeling prior to the first three 
small or medium rocket launches from new launch proponents or at new 
launch facilities, and all heavy or super-heavy rocket launches.
    (e) USSF must conduct marine mammal monitoring and take acoustic 
measurements at the NCI if the sonic boom model indicates that 
pressures from a boom will reach or exceed 7 psf from 1 January through 
28 February, 5 psf from 1 March through 31 July, or 7 psf from 1 August 
through 30 September. No monitoring is required on NCI from 1 October 
through 31 December.
    (1) The monitoring site must be selected based upon the model 
results, prioritizing a significant haulout site on one of the islands 
where the maximum sound pressures are expected to occur.
    (2) USSF must estimate the number of animals on the monitored beach 
and record their reactions to the launch noise and conduct more focused 
monitoring on a smaller subset or focal group.
    (3) Monitoring must commence at least 72 hours prior to the launch, 
during the launch and at least 48 hours after the launch, unless no 
sonic boom is detected by the monitors and/or by the acoustic recording 
equipment, at which time monitoring may be stopped.
    (4) For launches that occur in darkness, USSF must use night vision 
equipment.
    (5) Monitoring for each launch must include multiple surveys each 
day that record, when possible: species, number, general behavior, 
presence of pups, age class, gender, and reaction to sonic booms or 
natural or human-caused disturbances.
    (6) USSF must collect photo and/or video recordings for daylight 
launches

[[Page 25184]]

when feasible, and if the launch occurs in darkness night vision 
equipment will be used.
    (7) USSF must record environmental conditions, including 
visibility, air temperature, clouds, wind speed and direction, tides, 
and swell height and direction.
    (f) USSF must continue to test equipment and emerging technologies, 
including but not limited to night vision cameras, newer models of 
remote video cameras and other means of remote monitoring at both VSFB 
and on the NCI.
    (g) USSF must evaluate UAS based or space-based technologies that 
become available for suitability, practicability, and for any advantage 
that remote sensing may provide to existing monitoring approaches.
    (h) USSF must monitor marine mammals during the first three 
launches of the missiles for the new Ground Based Strategic Defense 
program during the months of March through July across the 5-year 
duration of this subpart.
    (1) When launch monitoring is required, monitoring must include 
multiple surveys each day, with a minimum of four surveys per day.
    (2) When possible, PSOs must record: species, number, general 
behavior, presence and number of pups, age class, gender, and reaction 
to launch noise, or to natural or other human-caused disturbances. PSOs 
must also record environmental conditions, including visibility, air 
temperature, clouds, wind speed and direction, tides, and swell height 
and direction.
    (i) USSF must conduct semi-monthly surveys (two surveys per month) 
to monitor the abundance, distribution, and status of pinnipeds at 
VSFB. Whenever possible, these surveys will be timed to coincide with 
the lowest afternoon tides of each month when the greatest numbers of 
animals are usually hauled out. If a VSFB or area closure precludes 
monitoring on a given day, USSF must monitor on the next best day.
    (1) PSOs must gather the following data at each site: species, 
number, general behavior, presence and number of pups, age class, 
gender, and any reactions to natural or human-caused disturbances. PSOs 
must also record environmental conditions, including visibility, air 
temperature, clouds, wind speed and direction, tides, and swell height 
and direction.
    (2) [Reserved]
    (j) USSF must submit an annual report each year to NMFS Office of 
Protected Resources and West Coast Region on March 1st of each year 
that describes all activities and monitoring for the specified 
activities during that year. This includes launch monitoring 
information in paragraphs (j)(1) through (3) of this section for each 
launch where monitoring is required or conducted. The annual reports 
must also include a summary of the documented numbers of instances of 
harassment incidental to the specified activities, including non-launch 
activities (e.g., takes incidental to aircraft or helicopter operations 
observed during the semi-monthly surveys). Annual reports must also 
include the results of the semi-monthly sentinel marine mammal 
monitoring described in paragraph (i) of this section.
    (1) Launch information, including:
    (i) Date(s) and time(s) of the launch (and sonic boom, if 
applicable); and
    (ii) Number(s), type(s), and location(s) of rockets or missiles 
launched;
    (2) Monitoring program design; and
    (3) Results of the monitoring program, including, but not 
necessarily limited to:
    (i) Date(s) and location(s) of marine mammal monitoring;
    (ii) Number of animals observed, by species, on the haulout prior 
to commencement of the launch or recovery;
    (iii) General behavior and, if possible, age (including presence 
and number of pups) and sex class of pinnipeds hauled out prior to the 
launch or recovery;
    (iv) Number of animals, by species, age, and sex class that 
responded at a level indicative of harassment. Harassment is 
characterized by:
    (A) Movements in response to the source of disturbance, ranging 
from short withdrawals at least twice the animal's body length to 
longer retreats over the beach, or if already moving a change of 
direction of greater than 90 degrees; or
    (B) All retreats (flushes) to the water;
    (v) Number of animals, by species, age, and sex class that entered 
the water, the length of time the animal(s) remained off the haulout, 
and any behavioral responses by pinnipeds that were likely in response 
to the specified activities, including in response to launch noise or a 
sonic boom;
    (vi) Environmental conditions including visibility, air 
temperature, clouds, wind speed and direction, tides, and swell height 
and direction; and
    (vii) Results of acoustic monitoring, including the following:
    (A) Recorded sound levels associated with the launch (in SEL, 
SPLpeak, and SPLrms);
    (B) Recorded sound levels associated with the sonic boom (if 
applicable), in psf; and
    (C) The estimated distance of the recorder to the launch site and 
the distance of the closest animals to the launch site.
    (k) USSF must submit a final, comprehensive 5-year report to NMFS 
Office of Protected Resources. This report must:
    (1) Summarize the activities undertaken and the results reported in 
all annual reports;
    (2) Assess the impacts at each of the major rookeries; and
    (3) Assess the cumulative impacts on pinnipeds and other marine 
mammals from the activities specified in Sec.  217.60(a) and (b).
    (l) If the activity identified in Sec.  217.60(a) likely resulted 
in the take of marine mammals not identified in Sec.  217.62, then the 
USSF must notify the NMFS Office of Protected Resources and the NMFS 
West Coast Region stranding coordinator within 24 hours of the 
discovery of the take.
    (m) If real-time monitoring during a launch shows that the activity 
identified in Sec.  217.60(a) is reasonably likely to have resulted in 
the mortality or injury of any marine mammal, USSF must notify NMFS 
within 24 hours (or next business day). NMFS and USSF must then jointly 
review the launch procedure and the mitigation requirements and make 
appropriate changes through the adaptive management process, as 
necessary and before any subsequent launches of rockets and missiles 
with similar or greater sound fields and/or sonic boom pressure levels.


Sec.  217.66  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to this subpart, 
the USSF must apply for and obtain an LOA in accordance with Sec.  
216.106 of this chapter.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed expiration of this subpart.
    (c) If an LOA expires prior to the expiration date of this subpart, 
the USSF may apply for and obtain a renewal LOA.
    (d) In the event of projected changes to the activity or to 
mitigation, monitoring, or reporting (excluding changes made pursuant 
to the adaptive management provision of Sec.  217.67(c)(1) required by 
an LOA, USSF must apply for and obtain a modification of the LOA as 
described in Sec.  217.67.
    (e) Each LOA will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species and its habitat; and

[[Page 25185]]

    (3) Requirements for monitoring and reporting.
    (f) Issuance of the LOA shall be based on a determination that the 
level of taking will be consistent with the findings made for the total 
taking allowable under this subpart.
    (g) Notice of issuance or denial of a LOA shall be published in the 
Federal Register within 30 days of a determination.


Sec.  217.67  Renewals and modifications of Letter of Authorization.

    (a) A LOA issued under Sec.  216.106 of this chapter and Sec.  
217.66 for the activity identified in Sec.  217.60(a) and (b) shall be 
modified upon request by USSF, provided that:
    (1) The specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for this subpart (excluding changes made 
pursuant to the adaptive management provision in paragraph (c)(1) of 
this section); and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under this subpart were 
implemented.
    (b) For LOA modification or renewal requests by the applicant that 
include changes to the activity or the mitigation, monitoring, or 
reporting measures (excluding changes made pursuant to the adaptive 
management provision in paragraph (c)(1) of this section) that do not 
change the findings made for this subpart or that result in no more 
than a minor change in the total estimated number of takes (or 
distribution by species or stock or years), NMFS may publish a notice 
of proposed changes to the LOA in the Federal Register, including the 
associated analysis of the change, and solicit public comment before 
issuing the LOA.
    (c) An LOA issued under Sec.  216.106 of this chapter and Sec.  
217.66 for the activity identified in Sec.  217.60(a) and (b) may be 
modified by NMFS under the following circumstances:
    (1) After consulting with the USSF regarding the practicability of 
the modifications, NMFS, through adaptive management, may modify 
(including adding or removing measures) the existing mitigation, 
monitoring, or reporting measures if doing so creates a reasonable 
likelihood of more effectively accomplishing the goals of the 
mitigation and monitoring.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA 
include:
    (A) Results from the USSF's monitoring from the previous year(s);
    (B) Results from other marine mammal and/or sound research or 
studies; or
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by this subpart or a 
subsequent LOA.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are more than minor, NMFS 
will publish a notice of the proposed changes to the LOA in the Federal 
Register and solicit public comment.
    (2) 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 LOAs issued pursuant to Sec.  216.106 of this 
chapter and Sec.  217.62, an LOA 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.


Sec. Sec.  217.68-217.69  [Reserved]

[FR Doc. 2024-07559 Filed 4-9-24; 8:45 am]
BILLING CODE 3510-22-P