[Federal Register Volume 89, Number 19 (Monday, January 29, 2024)]
[Proposed Rules]
[Pages 5451-5479]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01366]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[240118-0018]
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: Proposed rule, Request for Comments.

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SUMMARY: NMFS has received a request from the U.S. Space Force (USSF) 
for authorization to take marine mammals incidental to launches and 
supporting activities at Vandenberg Space Force Base (VSFB) in 
Vandenberg, California from April, 2024 to April, 2029. Pursuant to the 
Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its 
proposal to issue regulations governing the incidental taking of marine 
mammals incidental to the specified activities. NMFS is proposing 
regulations to govern that take, and requests comments on the proposed 
regulations. NMFS will consider public comments prior to making any 
final decision on the issuance of the requested MMPA authorization and 
agency responses will be summarized in the final notice of our 
decision. Missile launches conducted at VSFB, which comprise a smaller 
portion of the activities, are considered military readiness activities 
pursuant to the MMPA, as amended by the National Defense Authorization 
Act for Fiscal Year 2004 (2004 NDAA).

DATES: Comments and information must be received no later than February 
28, 2024.

ADDRESSES: Submit all electronic public comments via the Federal e-
Rulemaking Portal. Go to https://www.regulations.gov and type NOAA-
NMFS-2024-0008 in the Search box (note: copying and pasting the FDMS 
Docket Number directly from this document may not yield search 
results). Click on the ``Comment'' icon, complete the required fields, 
and enter or attach your comments.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
https://www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.
    A copy of the USSF's application and other supporting documents and 
documents cited herein may be obtained online at: 
www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities. In case of problems 
accessing these documents, please use the contact listed here (see FOR 
FURTHER INFORMATION CONTACT).

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

[[Page 5452]]


SUPPLEMENTARY INFORMATION:

Purpose and Need for Regulatory Action

    This proposed rule, if promulgated, would establish 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.
    We received an application from the USSF requesting 5-year 
regulations and an associated letter of authorization to incidentally 
take marine mammals. Take is expected to occur by Level B harassment 
incidental to launch noise and sonic booms. Please see ``Background'' 
below for definitions of harassment.

Legal Authority for the Proposed 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 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; ``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.
    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 letters of 
authorization, or LOA(s). This proposed rule describes permissible 
methods of taking and mitigation, monitoring, and reporting 
requirements for USSF's proposed 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.
    A subset of the activities described here and for which incidental 
take of marine mammals is being requested (specifically, missile 
launches) qualifies as a military readiness activity.

Summary of Major Provisions Within the Rule

    Following is a summary of the major provisions of the regulations 
regarding USSF rocket and missile launches and supporting activities. 
These measures include:
    <bullet> Scheduling launches to avoid lowest tides during harbor 
seal and California sea lion pupping seasons, when practicable;
    <bullet> Required flight paths for aircraft takeoffs and landings 
and minimum altitude requirements to reduce disturbance to haul out 
areas;
    <bullet> Required minimum altitudes for unscrewed aerial systems 
(UAS);
    <bullet> 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
    <bullet> Required semi-monthly surveys of marine mammal haulouts at 
VSFB and NCI.

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 
preliminarily determined that the proposed action qualifies to be 
categorically excluded from further National Environmental Policy Act 
(NEPA) review.
    Information in the USSF application and this notice collectively 
provide the environmental information related to proposed issuance of 
these regulations and subsequent incidental take authorization for 
public review and comment. We will review all comments submitted in 
response to this notice prior to concluding our NEPA process or making 
a final decision on the request for incidental take authorization.

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 6 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.
    The take of marine mammals incidental to rocket and missile 
launches and aircraft operations at VSFB is currently authorized by 
NMFS via an LOA issued under current incidental take regulations, which 
are effective from April 10, 2019 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 Effects of the Specified Activity on Marine 
Mammals and their Habitat.

Description of Proposed Activity

Overview

    USSF operations include launch activities for commercial entities, 
as well as the Department of Defense,

[[Page 5453]]

National Aeronautics and Space Administration. VSFB is the primary west 
coast launch facility for placing commercial, government and military 
satellites into polar orbit on uncrewed rockets. A subset of rocket 
launches include a ``boost-back'' maneuver, wherein the first stage 
booster returns to land at VSFB or at a barge located offshore, for 
recovery and future re-use. VSFB is also the site of launches for 
testing and evaluation of intercontinental ballistic missiles (ICBMs) 
and sub-orbital target and interceptor missiles. The missile 
activities, which represent a small subset of the activities, are 
considered Military Readiness Activities.
    Rocket and missile launch activities 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.
    The USSF anticipates incremental increases in launch activity each 
year with a peak in activity of no more than 110 rocket launches and 15 
missile launches occurring in any one year (table 1).

                       Table 1--Anticipated Number of Launches and UAS Operations, by Year
----------------------------------------------------------------------------------------------------------------
                          Year                            Rocket launches    Missile launches    UAS operations
----------------------------------------------------------------------------------------------------------------
2024...................................................                 40                 15                100
2025...................................................                 55                 15                100
2026...................................................                 75                 15                100
2027...................................................                100                 15                100
2028...................................................                110                 15                100
----------------------------------------------------------------------------------------------------------------

    In addition to rocket and missile launch activities at VSFB, 
aircraft conduct flight operations to support activities at VSFB. Here, 
``aircraft'' includes crewed fixed wing airplanes and rotary wing 
helicopters, and different types of UAS. Slightly more than 600 
aircraft flights occur each year, and approximately 100 of those 
flights are UAS. These flight operations address mission needs 
including emergency response, search-and-rescue, delivery of rocket 
components, launch mission support, security reconnaissance, and 
training. VSFB no longer has aircraft stationed on site, but 
``transient'' aircraft may be stationed at the site on a temporary 
basis several times per year for periods of two or more weeks per 
operation. Take of hauled out pinnipeds from crewed fixed-wing 
airplanes and helicopter operations are not anticipated because these 
aircraft adhere to flight paths, minimum altitude requirements, and a 
buffer zone established to avoid haulouts when possible. In addition, 
pinnipeds that customarily haul out at sites near the airfield may be 
acclimated to aircraft and helicopter overflights. However, there is a 
limited potential for take to result from UAS operations. UAS are 
categorized by size into five classes, 0-5. While harassment of hauled 
out pinnipeds from UAS classes 0-2 is unlikely to occur at altitudes of 
200 feet (ft) and above (Erbe et al., 2017; Pomeroy et al., 2015; 
Sweeney et al., 2016; Sweeney and Gelatt, 2017), given that classes 0-3 
fly at lower altitudes, USSF anticipates that these classes could cause 
take of hauled out marine mammals due to visual disturbance, and NMFS 
concurs. Larger UAS (classes 4 and 5) that utilize the airfield for 
take offs and landings, must adhere to minimum altitude criteria and 
buffer zones around haul-out areas, as described in the Proposed 
Mitigation section. While pinnipeds at nearby haulouts may show brief 
reactions during takeoffs and landings of classes 4 and 5, animals near 
these haulouts are generally habituated to these activities and are not 
expected to have behavioral reactions that would rise to the level of 
take by Level B harassment.

Dates and Duration

    The activities proposed by USSF would occur for 5 years, from April 
2024 through April 2029. Activities would 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.

Specified Geographical Region

    VSFB occupies approximately 99,100 acres of land and approximately 
68 kilometers (km) of coastline in central Santa Barbara County, 
California (Figure 1). The Santa Ynez River and State Highway 246 
divide the base into two distinct parts, North Base and South Base.
BILLING CODE 3510-22-P

[[Page 5454]]

[GRAPHIC] [TIFF OMITTED] TP29JA24.026

BILLING CODE 3510-22-C
    Pinnipeds making use of haul-out sites along the coastline of VSFB 
are affected by launch noise. In addition to these effects at VSFB, 
some of the rocket launches and first-stage recoveries originating at 
VSFB may result in sonic booms that impact portions of the NCI, and as 
such NCI is also considered part of the project area. The NCI comprises 
four islands (San Miguel, Santa Rosa, Santa Cruz, and Anacapa) located 
approximately 50 km south of Point

[[Page 5455]]

Conception, which is located on the mainland approximately 6.5 km south 
of VSFB. The most proximate launch facility on the base and the nearest 
landmark on the NCI (Harris Point on San Miguel Island) are separated 
by more than 55 km.
    Rocket and missile flights originate from several different launch 
locations on VSFB, distributed across both North Base and South Base. 
Currently, there are nine active missile launch sites and seven active 
space launch facilities. In addition, two new launch sites and one 
former site on the base are expected to become operational in the 
future. The two largest classes of UAS use the VSFB airfield, three 
smaller classes of UAS can be launched from any location that is in 
keeping with buffers to pinniped haulout and rookery sites. The 
proximity of the launch sites in relation to specific pinniped haul-out 
and rookery areas at VSFB is shown in table 2. LF-09 is the closest 
active missile launch facility to a haul-out area, located about 0.5 km 
from Little Sal, and LF-10 is the most remote facility from any haul-
out area, located about 2.7 km from Lion's Head (see figure 2 in USSF's 
application).
    While rocket and missile launches do not occur in National Marine 
Sanctuary waters, depending on the direction of a given launch, rockets 
and missiles may cross over the Channel Islands National Marine 
Sanctuary.

                                 Table 2--Representative Rocket Launch Activities and Distance to Nearest Haul-Out Site
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                               Rocket       Rocket height                                                                   Distance to
                  Rocket                   diameter  (ft)       (ft)               Launch facility            Nearest pinniped haul-out   haul-out  (km)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                          Current (and recent) launch programs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Atlas V..................................            12.5             191  SLC-3E.........................  North Rocky Point...........             9.9
Firefly..................................               6              95  SLC-2W.........................  Purisima Point..............             2.3
Delta IV.................................              16             236  SLC-6..........................  North Rocky Point...........             2.3
Falcon 9.................................              12             230  SLC-4E.........................  North Rocky Point...........             8.2
Minotaur.................................               8              81  SLC-8..........................  North Rocky Point...........             1.6
Minotaur/Taurus..........................               8              91  LF-576E........................  South Spur Road.............             0.8
Minotaur/Buzzard.........................               6              63  TP-01..........................  Purisima Point..............             7.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Future launch programs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vector...................................               4              40  SLC-8..........................  North Rocky Point...........             1.6
Daytona..................................               5              62  SLC-5..........................  Point Arguello..............             3.9
New Glenn................................              23             200  SLC-9..........................  Point Arguello..............            10.2
Vulcan...................................            17.7            >220  SLC-3E.........................  Point Arguello..............            8.75
Terran...................................             7.5             126  SLC-11.........................  North Rocky Point...........             1.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Abbreviations: SLC = Space Launch Complex; LF = Launch Facility; E = East; W = West; TBD: To be determined.

Detailed Description of the Specified Activity

    VSFB is the primary west coast launch facility for placing 
commercial, government, and military satellites into polar orbit on 
uncrewed launch vehicles, and for the testing and evaluation of ICBMs 
and sub-orbital target and interceptor missiles by the Missile Defense 
Agency (MDA). Below, we discuss in detail, USSF's proposed rocket 
launches and recoveries, missile launches, and aircraft operations 
including UAS.
Rocket Launches
    Table 1 shows estimates of the numbers proposed rocket launches, 
missile launches, and UAS activities for each year. Reporting years 
would span one year from date of LOA issuance and each successive year 
thereafter, in accordance with the reporting requirements described in 
the Proposed Monitoring and Reporting section, below. The anticipated 
maximum number of launches in one year shown in table 1 is similar to 
the maximum number of launches in one year analyzed in the 2019 
rulemaking (84 FR 14314; April 10, 2019), with a small increase. For 
this rulemaking, USSF anticipates that the total number of launches 
would increase from the 500 analyzed for the 2019 rulemaking to 550 
over the effective period of this rule. Similarly, the estimated number 
of launches that may cause a sonic boom that affect haulouts at NCI are 
proposed to increase from 88 to 104 over the effective period of this 
rulemaking.
    A large percentage of this anticipated increase is expected to 
consist of smaller launch payloads moved by smaller rockets than 
previously utilized at VSFB. Accordingly, USSF is developing a new 
Small Launch Vehicles program (SLV) for the South Base launch sites at 
VSFB. This program is expected to require as many as 100 launches 
annually (included in the basewide 110 rocket launch/year total) and 
may involve two launches per day on some days. We note that ``small'' 
rockets (generally those less than 100 ft tall) are less likely to 
generate sonic booms that could disturb animals at haul outs.
    Whether or not sonic booms from launches originating at VSFB affect 
the NCI depends on the trajectory of the launch, the size of the 
rocket, and other factors such as environmental conditions. In any 
given year of this proposed rule, it is expected that fewer than 10 
percent of small rockets, 25 percent of medium rockets and 33 percent 
of large rockets would ``boom'' the NCI. When these sonic booms events 
do occur, they tend to disturb animals at haulouts on San Miguel and 
(occasionally) Santa Rosa Islands. Santa Cruz and Anacapa Islands are 
not expected to be impacted by sonic booms in excess of 1 pound per 
square foot (psf). Further, based on several years of onsite behavioral 
observations and monitoring data, VSFB maintains and NMFS concurs that 
harassment of marine mammals is unlikely to occur when the intensity of 
a sonic boom is below 2(psf). Although exact numbers are uncertain, 
launches that generate a sonic boom at NCI higher than 2 psf are 
expected to occur no more than 5 times in authorization year 2024, 12 
times in 2025, 24 times in 2026, 30 times in 2027 and 33 times in 2028.
    Some rocket launches include ``boost back'' and landing of a rocket 
component at a launch site on the base or on a floating offsite 
recovery barge.

[[Page 5456]]

These activities include the use of parachutes and parafoils to control 
the descent of components to the barge. These are usually recovered, 
but on occasion, parachutes or parafoils are abandoned, and they sink 
to the ocean floor. The parachutes would sink to a depth of 1,000 ft 
within 46 minutes and the parafoil (if it is not recovered) would reach 
the same depth in one to two hours. Therefore, given the short duration 
that an unrecovered parachute or parafoil would remain in the water 
column for a given launch, NMFS does not anticipate that they would 
take marine mammals, and the likelihood is further reduced by the 
relative infrequency of instances where parachutes or parafoils are 
used but not recovered.
Missiles
    A variety of small missiles are launched from various Launch 
Facilities (LFs) on north VSFB including Minuteman III, an ICBM which 
is launched from underground silos. USSF is currently modifying several 
existing silos for testing of the new Ground Based Strategic Defense 
(GBSD) program, which is expected to replace the Minuteman III as early 
as 2026. Several types of interceptor and target vehicles are also 
launched for the MDA. The MDA develops various systems including the 
Ballistic Missile Defense System (BMDS). The MDA estimates that no more 
than three missile tests per quarter will be conducted each year over 
the next 5 years, and none of the missiles would be significantly 
larger than the Minuteman III currently in use. This limitation (three 
missiles per quarter and none being larger than the Minuteman III) 
represents the anticipated extent of missile testing at VSFB over the 
next 5 years. No more than 15 missiles would be launched per year 
(table 1).
    The trajectories of all missile launches are generally westward and 
USSF indicates that they do not cause sonic boom impacts on the 
California mainland or the NCI. Missiles also transition to nearly 
horizontal flight within seconds of launch and do not create extended 
noise impacts to the coastline or result in a high degree of response 
from hauled-out pinnipeds. For these reasons, take on the NCI arising 
from missile launch operations is not anticipated or requested. All 
take associated with missile launch operations would occur on VSFB.
Aircraft Operations
    The VSFB airfield, located on north VSFB, supports various aircraft 
operations. Aircraft operations include fixed wing airplanes, rotary 
wing helicopters and UAS. Of these, only UAS is expected to result in 
take, as discussed below.
    Over the past 5 years, an average of slightly more than 600 flights 
has occurred each year, approximately 100 of which have been UAS, and 
USSF anticipates 100 UAS flights per year during the effective period 
of this proposed rule (table 1). Fixed-wing aircraft use VSFB for 
various purposes, including delivering rocket or missile components and 
training exercises. Helicopter (or, rotary wing) operations also 
occasionally occur at VSFB including transits through the area, 
exercises and mission support. Emergency helicopter operations, 
including but not limited to search-and-rescue and wildfire containment 
actions, also occur occasionally.
    Three approved flight paths for airfield access have been 
configured in order to avoid disturbances from aircraft at established 
pinniped haul out sites. As a result of these routing measures and 
minimum altitude criteria, and given that pinnipeds that haul out at 
VSFB are acclimatized to aircraft and helicopter overflights, USSF does 
not anticipate take of hauled out pinnipeds from fixed-wing and 
helicopter operations using the airfield, and NMFS concurs. In 
addition, no pinniped responses to fixed or rotary wing aircraft have 
ever been reported and none are anticipated (MMCG and SAIC 2012a).
    UAS operations at VSFB may include either rotary or fixed wing 
uncrewed aircraft. These are typically divided into as many as six 
classes, which graduate in size from class 0 (which are often smaller 
than 5 inches in diameter and always weigh less than one pound) to 
class 5 (which can be as large as a small piloted aircraft). UAS 
classes 03 can be used in almost any location, while classes 4 and 5 
typically require a runway and for that reason would only be operated 
from the VSFB airfield. The launch frequency and class of UAS 
conducting the flights is not possible to predict. As stated above, 
there is a limited potential for take to result from UAS operations. 
While harassment of hauled out pinnipeds from class 02 is unlikely to 
occur at altitudes of 200 ft and above (Erbe et al., 2017; Pomeroy et 
al., 2015; Sweeney et al., 2016; Sweeney and Gelatt, 2017), given that 
classes 0-3 fly at lower altitudes, USSF anticipates that these classes 
could cause take of hauled out marine mammals due to visual 
disturbance, and NMFS concurs.
Other Activities
    In addition to the activities described above, USSF operates a 
small harbor on the south coast, immediately adjacent to a haulout 
area. Operation of the harbor currently entails a maximum of two large 
vessel visits per year and one dredging operation typically conducted 
every other year. In addition, VSFB estimates that SpaceX conducts 
approximately 30 2-day operations per year using smaller vessels. NMFS 
does not anticipate take of marine mammals due to these activities for 
the reasons described herein, and they are not discussed further beyond 
the brief explanation provided here. While marine mammals may 
behaviorally respond in some small degree to the noise generated by 
dredging operations, given the slow, predictable movements of these 
vessels, and absent any other contextual features that would cause 
enhanced concern, NMFS does not expect the proposed dredging to result 
in the take of marine mammals. Further, routine harbor operations are 
not anticipated to result in take of marine mammals.
    Proposed mitigation, monitoring, and reporting measures are 
described in detail later in this document (see Proposed Mitigation and 
Proposed Monitoring and Reporting).

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' Stock 
Assessment Reports (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 3 lists all species or stocks for which take is expected and 
proposed to be 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

[[Page 5457]]

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 proposed to be 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 
comprises 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 3 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.

                                     Table 3--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             43,201 (N/A, 43,201,        2,592        112
                                                                                                             2017).
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 SARss 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 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.

    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 
proposed activities resulting in the harassment of any cetacean to be 
so low as to be discountable. Accordingly, cetaceans are not considered 
further in this proposed 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 proposed rule.

Pacific Harbor Seal (California Stock)

    Harbor seals haul out on intertidal sandbars, rocky shores and 
beaches along the California coast and islands including VSFB and, to a 
lesser extent, NCI. Coastwide, from 400 to 600 haul-out sites exist 
(Carretta et al., 2011; Caretta et al., 2012) and few to several 
hundred animals may occupy each site when conditions are favorable. 
Harbor seals generally haul out in greatest numbers during the 
afternoon but at some sites the beach profile and tidal inundation 
results in limited or no suitable haul out area. This is the case in 
some areas around VSFB, where shifting of coastal landforms including 
beaches, banks and bluffs affect availability of suitable haul out 
area. Considerable haul out area is consistently available at NCI, 
irrespective of tidal influence.
    Harbor seals generally forage locally but individuals, particularly 
juveniles, may travel up to 500 km either to find food or suitable 
breeding areas. The greatest numbers haul out during the molting 
season, from May into August throughout California (Carretta et al., 
2011; Caretta et al., 2012). In the vicinity of the project area, the 
pupping season peaks from mid-February through April; and at VSFB, it 
extends from March through June. Molting season follows, sometimes 
overlapping the pupping

[[Page 5458]]

season. Harbor seal numbers at VSFB haul out areas usually peak in 
June, but there is some variability (in some years the highest counts 
occurred in the fall or winter months). Harbor seal pupping also occurs 
on NCI from March to June.
    Harbor seals regularly use haulouts along the shoreline at VSFB. 
Haulout sites on VSFB can be found on both south VSFB and north VSFB, 
including Lion's Head and Little Sal.

California Sea Lion (U.S. Stock)

    The California sea lion occurs in the eastern north Pacific from 
Puerto Vallarta, Mexico, through the Gulf of California and north along 
the west coast of North America to the Gulf of Alaska (Barlow et al., 
2008; DeLong et al., 2017b; Jefferson et al., 2008). Typically, during 
the summer, California sea lions congregate near rookery islands and 
specific open-water areas, including NCI where one of the largest 
rookeries is found. The primary rookeries off the coast of the United 
States are on San Nicolas (SNI), San Miguel, Santa Barbara, and San 
Clemente Islands (Le Boeuf & Bonnell 1980; Lowry et al., 1992; Carretta 
et al., 2000; Lowry & Forney 2005; Lowry et al., 2017). About 50 
percent of the births on San Miguel Island occur in the Point Bennett 
area, during a pupping season that runs from May to August.
    In the nonbreeding season, beginning in late summer, adult and 
subadult males migrate northward along the coast of California to more 
northerly states, and are largely absent from the southern breeding 
areas until the following spring (Laake, 2017; Lowry & Forney, 2005). 
Females and juveniles also disperse to areas north and west of NCI, but 
tend to stay in the Southern California area. (Lowry & Forney, 2005; 
Melin & DeLong, 2000; Thomas et al., 2010).
    California sea lions also occur in open ocean and coastal waters 
(Barlow et al., 2008; Jefferson et al., 2008). Animals usually occur in 
waters over the continental shelf and slope; however, they are also 
known to occupy locations far offshore in deep, oceanic waters, such as 
Guadalupe Island and Alijos Rocks off Baja California (Jefferson et 
al., 2008; Melin et al., 2008; Urrutia & Dziendzielewski, 2012; Zavala-
Gonzalez & Mellink, 2000). California sea lions are the most frequently 
sighted pinnipeds offshore of Southern California during the spring, 
and peak abundance is during the May through August breeding season 
(Green et al., 1992; Keiper et al., 2005; Lowry et al., 2017).
    California sea lions haul out at sites in the southern portion of 
VSFB and have not been observed at any northern VSFB haulout locations, 
except for rare individuals affected by domoic acid poisoning (USAF 
2020; Evans, 2020). There is no known successful breeding of this 
species on VSFB.
    In 2019 a significant die-off of California sea lions, presumed to 
be caused by domoic acid toxicity associated with red tide algal 
blooms, was noted. This event included most of Southern and Central 
California and included more than 80 deceased California sea lions on 
VSFB beaches (USAF 2020; Evans, 2020).
    California sea lion pupping season begins in late May, peaking on 
or around the third week of June. Female sea lions nurse their pups for 
1 to 2 days, before embarking on progressively longer spans of time 
away from the haulout site to forage. Typically, the adult female 
spends 2 to 5 days feeding, before returning to nurse the pup. Females 
continue a pattern of going to sea for several days and nursing ashore 
for several days until pups are weaned. The weaning period continues 
for about 8 to 12 months (Carretta et al., 2011; Caretta et al., 2012).
    Females usually range from the Mexican border to as far north as 
San Francisco. If prey is scarce, particularly during El Ni[ntilde]o 
years, they have been known to extend their range into Oregon. Adult 
males claim their breeding territories in late May, usually leaving by 
August, with most animals moving north. Adult males may venture as far 
north as British Columbia or southeast Alaska.

Northern Elephant Seal (California Breeding Stock)

    The California breeding stock of the Northern elephant seal extends 
from the Channel Islands to the southeast Farallon Islands (Carretta et 
al., 201; Caretta et al., 2012). There are two distinct populations of 
northern elephant seals: one that breeds in Baja California, Mexico; 
and a population that breeds in California (Garcia-Aguilar et al. 
2018). The northern elephant seals in the VSFB Project Area are from 
the California Breeding stock, although elephant seals from Baja Mexico 
migrate through the Project Area (Aurioles-Gamboa & Camacho-Rios 2007; 
Carretta et al., 2017; Carretta et al., 2020). Females and juveniles 
feed from California into Washington, while males travel as far as 
Alaska and the Aleutians. Males and females return between March and 
August to molt.
    Northern elephant seals spend little time nearshore and migrate 
four times a year, traveling to and from breeding/pupping and molting 
areas and spending more than 80 percent of their annual cycle at sea 
(Robinson et al., 2012; Lowry et al., 2014; Lowry et al., 2017; 
Carretta et al., 2020). Peak abundance in California is during the 
January-February breeding season and when adults return to molt from 
April to July (Lowry et al. 2014; Lowry et al., 2017).
    Although northern elephant seals haul out at south VSFB locations, 
they were not observed at north VSFB haul outs in 2019 or in 2020. 
Breeding has been observed on south VSFB since 2017 (Evans, 2020), and 
pupping at VSFB was first documented in January 2017. Additional 
pupping has been observed every year since 2017, increasing each year, 
with a maximum of approximately 40 pups in 2022. Pupping occurs from 
January through March, with peak breeding in mid-February. Pups are 
weaned at 3 to 4 weeks of age, then abandoned and undergo their first 
molt, which can take several weeks. They then return to sea and 
customary offshore waters at the end of the molting cycle. Currently, 
the Amphitheatre Cove haul out at VSFB is the primary site used by 
elephant seals for breeding and pupping, however another location, 
Boathouse Beach, was the site for two successful pups each year in 2021 
and 2022. All age classes and sexes haul out on VSFB, at different 
times of the year, to rest, undergo molting and to reproduce or 
occasionally to rest at other times of year. On NCI, pupping activity 
occurs from December through March. While some animals disperse after 
the weaning period, elephant seals also haul out onshore during the 
seasonal molting period from March to August.

Steller Sea Lion (Eastern U.S. Stock)

    The eastern U.S. stock of Steller sea lions ranges from Cape 
Suckling, Alaska, to California (Cape Suckling is almost at the 
northernmost part of the Gulf of Alaska, at long. 140[deg] W). 
A[ntilde]o Nuevo Island, in central California, is now the southernmost 
known breeding colony for Steller sea lions (Carretta et al., 2011; 
Caretta et al., 2012), although they did breed at San Miguel Island 
until the 1982-1983 El Ni[ntilde]o. Sightings were rare after that. 
From 2010 to 2012, individual Steller sea lions have shown up along the 
mainland coast of the Southern California Bight, often hauled out on 
navigation buoys. At VSFB, Steller sea lions have been observed in 
generally low numbers since approximately 2012, but no breeding or 
pupping behavior has been documented.
    Steller sea lions range along the north Pacific from northern Japan 
to California (Perrin et al., 2009), with centers of

[[Page 5459]]

abundance and distribution in the Gulf of Alaska and Aleutian Islands 
(Muto et al., 2020). There have also been reports of Steller sea lions 
in waters off Mexico as far south as the various islands off the port 
of Manzanillo in Colima, Mexico (Gallo-Reynoso et al., 2020). The 
eastern U.S. stock (or DPS) of Steller sea lion is defined as the 
population occurring east of long. 144[deg] W. The locations and 
distribution of the eastern population's breeding sites along the U.S. 
Pacific coast have shifted northward, with fewer breeding sites in 
southern California and more sites established in Washington and 
southeast Alaska (Pitcher et al., 2007; Wiles, 2015). Steller sea lions 
pups were known to be born at San Miguel Island up until 1981 (Pitcher 
et al., 2007; National Marine Fisheries Service 2008; Muto et al., 
2020), and as the population continues to increase, Steller sea lions 
may re-establish a breeding colony on San Miguel Island. However, 
currently no pupping occurs on NCI.
    Despite the species' general absence from the area, some Steller 
sea lions (one to two individuals at a time) have been sighted in the 
Channel Islands and vicinity. Individual adult and subadult male 
Steller sea lions have been seen hauled out at San Miguel Island during 
the fall and winter, and adult and subadult males have occasionally 
been seen on rocks north of Northwest Point at San Miguel Island in the 
summer (Delong, 2019). Aerial surveys for pinnipeds in the Channel 
Islands from 2011 to 2015 encountered a single Steller sea lion at SNI 
in 2013 (Lowry et al., 2017). Additional sightings have included a 
single male that was seen hauled out on an oil production structure off 
Long Beach during the winter of 2015 and 2016, a Steller observed in 
2018 hauled out on a buoy outside Ventura Harbor, and a lone adult 
female that gave birth to and reared a pup on San Miguel Island in the 
summer of 2017 (Delong 2019).
    In April and May 2012 Steller sea lions were observed at VSFB 
marking the first time this species had been reported at VSFB over the 
prior two decades. Since 2012, Steller sea lions have been observed 
occasionally in routine monthly surveys, with a peak of 16 individuals 
recorded. In 2019, up to four Steller sea lions were observed on south 
VSFB during monthly marine mammal counts, and none were observed during 
monthly counts in the years that followed. While flying to VSFB from 
Santa Maria for an unrelated project, contract biologists observed and 
photographed three Steller sea lions at Lion Rock (Point Sal) in 
October 2017 (Ball, 2017). This offshore haulout site can be exposed to 
in-air noise levels from missile launches and is included in the take 
estimates provided below.

Northern Fur Seal (San Miguel Island Stock)

    Northern fur seals range from southern California to the Bering Sea 
and west to the Okhotsk Sea and Japan. About 74 percent of the breeding 
population occurs far north of the project area, on the Pribilof 
Islands of the southern Bering Sea. The San Miguel Island stock 
comprises less than one percent of the population. In general, Northern 
fur seals are highly pelagic, and adult northern fur seals spend more 
than 300 days per year (about 80 percent of their time) at sea, 
generally well offshore. While at sea, northern fur seals range 
throughout the North Pacific (Carretta et al., 2011; Caretta et al., 
2012). Migrating seals and those along the U.S. west coast are 
typically found over the edge of the continental shelf and slope 
(Kenyon & Wilke 1953; Sterling & Ream 2004; Gentry 2009; Adams et al. 
2014). Northern fur seals have not been observed at any VSFB haulout 
location (NMFS, 2020b) and are not expected to be subject to noise 
levels at the base that may cause behavioral effects.
    Adult males stay on or near haul-outs on NCI from May through 
August, with some non-breeding individuals remaining until November. 
Beginning in May, male seals start returning to the breeding islands. 
Upon arrival males seek to occupy and defend optimal breeding 
territories before the females arrive. Because males do not leave the 
breeding territory to feed, their ability to fast is critical. Males 
remain on their territory an average of 46 days. Adult females 
generally stay on or near haul-outs beginning in June and extending to 
fall, sometimes to as late as November. Peak pupping is in early July. 
Females nurse their newborn pups for 5 to 6 days and then go to sea to 
forage for 3.5 to 9.8 days. Females continue to cycle between land and 
sea for the remainder of the nursing period. Their time on land 
declines to less than 2 days and their time at sea generally increases. 
Pups are nursed until weaned (about 4 months) and leave the breeding 
site before their mothers to forage independently. Some juveniles are 
present year-round, but most juveniles and adults head for the open 
ocean and a pelagic existence until the following year. Pupping occurs 
at NCI (San Miguel Island) from June through August. Pupping does not 
occur at VSFB.

Guadalupe Fur Seal (Mexico)

    Satellite tracking data from Guadalupe fur seals tagged at 
Guadalupe Island in Mexico, have shown that the seals transit through 
offshore waters between 50 and 300 km from the U.S. west coast (Norris 
et al. 2015; Norris, 2017b; Norris, 2017a; Norris & Elorriaga-
Verplancken, 2020). Based on that data, the seals could occur in ocean 
and coastal waters within or adjacent to the VSFB Project Area. 
However, Guadalupe fur seals have not been observed at any VSFB haulout 
locations (USAF 2020; Evans, 2020) and are not expected to be subject 
to in-air noise levels at VSFB that may cause behavioral disturbance. 
Guadalupe fur seals are only rarely observed on San Miguel and San 
Nicolas Islands, typically at Point Bennett, and are almost always 
sighted as a lone individual. Lone adult males twice established 
territories on San Nicolas Island which lasted a few years each time, 
but no females arrived (Carretta et al., 2011; Caretta et al., 2012). 
As such, there is no pupping activity within the project area.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section provides a discussion of the ways in which components 
of the specified activity may impact marine mammals and their habitat. 
The Estimated Take of Marine Mammals section later in this document 
includes a quantitative analysis of the number of individuals that are 
expected to be taken by this activity. The Negligible Impact Analysis 
and Determination section considers the content of this section, the 
Estimated Take of Marine Mammals section, and the Proposed Mitigation 
section, to draw conclusions regarding the likely impacts of these 
activities on the reproductive success or survivorship of individuals 
and whether those impacts are reasonably expected to, or reasonably 
likely to, adversely affect the species or stock through effects on 
annual rates of recruitment or survival.
    In-air acoustic effects resulting from rocket launches and 
recoveries, missile launches and UAS operations may affect hauled out 
marine mammals. The effects of noise from the USSF's proposed 
activities have the potential to result in Level B harassment of marine 
mammals in the action area.

Description of Sound Sources

    This section contains a brief technical background on sound, the 
characteristics of certain sound types, and on metrics used in this 
proposal inasmuch as the information is relevant

[[Page 5460]]

to the specified activity and to a discussion of the potential effects 
of the specified activity on marine mammals found later in this 
document.
    Sound travels in waves, the basic components of which are 
frequency, wavelength, velocity, and amplitude. Frequency is the number 
of pressure waves that pass by a reference point per unit of time and 
is measured in hertz (Hz) or cycles per second. Wavelength is the 
distance between two peaks or corresponding points of a sound wave 
(length of one cycle). Higher frequency sounds have shorter wavelengths 
than lower frequency sounds, and typically attenuate (decrease) more 
rapidly, except in certain cases in shallower water. Amplitude is the 
height of the sound pressure wave or the ``loudness'' of a sound and is 
typically described using the relative unit of the dB. A sound pressure 
level (SPL) in dB is described as the ratio between a measured pressure 
and a reference pressure and is a logarithmic unit that accounts for 
large variations in amplitude; therefore, a relatively small change in 
dB corresponds to large changes in sound pressure. The source level 
(SL) represents the SPL referenced at a distance of 1 m from the source 
while the received level is the SPL at the listener's position. Note 
that all airborne sound levels in this document are referenced to a 
pressure of 20 [micro]Pa.
    Root mean square (rms) is the quadratic mean sound pressure over 
the duration of an impulse. Root mean square is calculated by squaring 
all of the sound amplitudes, averaging the squares, and then taking the 
square root of the average (Urick, 1983). Root mean square accounts for 
both positive and negative values; squaring the pressures makes all 
values positive so that they may be accounted for in the summation of 
pressure levels (Hastings and Popper, 2005). This measurement is often 
used in the context of discussing behavioral effects, in part because 
behavioral effects, which often result from auditory cues, may be 
better expressed through averaged units than by peak pressures.
    Sound exposure level (SEL; represented as dB re 1 [mu]Pa\2\-s) 
represents the total energy contained within a pulse and considers both 
intensity and duration of exposure. Peak sound pressure (also referred 
to as zero-to-peak sound pressure or 0-p) is the maximum instantaneous 
sound pressure measurable in the water at a specified distance from the 
source and is represented in the same units as the rms sound pressure. 
Another common metric is peak-to-peak sound pressure (pk-pk), which is 
the algebraic difference between the peak positive and peak negative 
sound pressures. Peak-to-peak pressure is typically approximately 6 dB 
higher than peak pressure (Southall et al., 2007).
    A-weighting is applied to instrument-measured sound levels in an 
effort to account for the relative loudness perceived by the human ear, 
as the ear is less sensitive to low audio frequencies, and is commonly 
used in measuring airborne noise. The relative sensitivity of pinnipeds 
listening in air to different frequencies is more-or-less similar to 
that of humans (Richardson et al., 1995), so A-weighting may, as a 
first approximation, be relevant to pinnipeds listening to moderate-
level sounds.
    The sum of the various natural and anthropogenic sound sources at 
any given location and time--which comprise ``ambient'' or 
``background'' sound--depends not only on the source levels (as 
determined by current weather conditions and levels of biological and 
human activity) but also on the ability of sound to propagate through 
the environment. In turn, sound propagation is dependent on the 
spatially and temporally varying properties of the water column and sea 
floor, and is frequency-dependent. As a result of the dependence on a 
large number of varying factors, ambient sound levels can be expected 
to vary widely over both coarse and fine spatial and temporal scales. 
Sound levels at a given frequency and location can vary by 10-20 dB 
from day to day (Richardson et al., 1995). The result is that, 
depending on the source type and its intensity, sound from a given 
activity may be a negligible addition to the local environment or could 
form a distinctive signal that may affect marine mammals. Details of 
source types are described in the following text.
    Sounds are often considered to fall into one of two general types: 
Pulsed and non-pulsed (defined in the following). The distinction 
between these two sound types is important because they have differing 
potential to cause physical effects, particularly with regard to 
hearing (e.g., Ward, 1997 in Southall et al., 2007). Please see 
Southall et al. (2007) for an in-depth discussion of these concepts.
    Pulsed sound sources (e.g., airguns, explosions, gunshots, sonic 
booms, impact pile driving) produce signals that are brief (typically 
considered to be less than one second), broadband, atonal transients 
(ANSI, 1986; ANSI, 2005; Harris, 1998; NIOSH, 1998; ISO, 2003) and 
occur either as isolated events or repeated in some succession. Pulsed 
sounds are all characterized by a relatively rapid rise from ambient 
pressure to a maximal pressure value followed by a rapid decay period 
that may include a period of diminishing, oscillating maximal and 
minimal pressures, and generally have an increased capacity to induce 
physical injury as compared with sounds that lack these features.
    Non-pulsed sounds can be tonal, narrowband, or broadband, brief or 
prolonged, and may be either continuous or non-continuous (ANSI, 1995; 
NIOSH, 1998). Some of these non-pulsed sounds can be transient signals 
of short duration but without the essential properties of pulses (e.g., 
rapid rise time). Examples of non-pulsed sounds include those produced 
by vessels, aircraft, machinery operations such as drilling or 
dredging, vibratory pile driving, and active sonar systems (such as 
those used by the U.S. Navy). The duration of such sounds, as received 
at a distance, can be greatly extended in a highly reverberant 
environment.
    The effects of sounds on marine mammals are dependent on several 
factors, including the species, size, and behavior (feeding, nursing, 
resting, etc.) of the animal; the intensity and duration of the sound; 
and the sound propagation properties of the environment. Impacts to 
marine species can result from physiological and behavioral responses 
to both the type and strength of the acoustic signature (Viada et al., 
2008). The type and severity of behavioral impacts are more difficult 
to define due to limited studies addressing the behavioral effects of 
sounds on marine mammals. Potential effects from impulsive sound 
sources can range in severity from effects such as behavioral 
disturbance or tactile perception to physical discomfort, slight injury 
of the internal organs and the auditory system, or mortality (Yelverton 
et al., 1973).
    The effects of sounds from the proposed activities are expected to 
result in behavioral disturbance of marine mammals. Due to the expected 
sound levels of the activities proposed and the distance of the 
activity from marine mammal habitat, the effects of sounds from the 
proposed activities are not expected to result in temporary or 
permanent hearing impairment (TTS and PTS, respectively), non-auditory 
physical or physiological effects, or masking in marine mammals. Data 
from monitoring reports associated with authorizations issued by NMFS 
previously for similar activities in the same location as the planned 
activities (described further below) provides further support for the 
assertion that TTS, PTS, non-auditory physical or physiological 
effects, and masking are not likely to occur (USAF, 2013b; SAIC,

[[Page 5461]]

2012). Therefore, TTS, PTS, non-auditory physical or physiological 
effects, and masking are not discussed further in this section.

Disturbance Reactions

    Disturbance includes a variety of effects, including subtle changes 
in behavior, more conspicuous changes in activities, and displacement. 
Though significantly driven by received level, the onset of behavioral 
disturbance from anthropogenic noise exposure is also informed to 
varying degrees by other factors related to the source or exposure 
context (e.g., frequency, predictability, duty cycle, duration of the 
exposure, signal-to-noise ratio, distance to the source, ambient noise, 
and the receiving animal's hearing, motivation, experience, demography, 
behavior at time of exposure, life stage, depth) and can be difficult 
to predict (e.g., Southall, et al., 2007, Southall et al., 2021; 
Ellison et al., 2012).
    Habituation can occur when an animal's response to a stimulus wanes 
with repeated exposure, usually in the absence of unpleasant associated 
events (Wartzok et al., 2003). Animals are most likely to habituate to 
sounds that are predictable and unvarying. The opposite process is 
sensitization, when an unpleasant experience leads to subsequent 
responses, often in the form of avoidance, at a lower level of 
exposure. Behavioral state may affect the type of response as well. For 
example, animals that are resting may show greater behavioral change in 
response to disturbing sound levels than animals that are highly 
motivated to remain in an area for feeding (Richardson et al., 1995; 
NRC, 2003; Wartzok et al., 2003).
    Controlled experiments with captive marine mammals have shown 
pronounced behavioral reactions, including avoidance of loud underwater 
sound sources (Ridgway et al., 1997; Finneran et al., 2003). These may 
be of limited relevance to the proposed activities given that airborne 
sound, and not underwater sound, may result in harassment of marine 
mammals as a result of the proposed activities; however we present this 
information as background on the potential impacts of sound on marine 
mammals. Observed responses of wild marine mammals to loud pulsed sound 
sources (typically seismic guns or acoustic harassment devices) have 
been varied but often consist of avoidance behavior or other behavioral 
changes suggesting discomfort (Morton and Symonds, 2002; Thorson and 
Reyff, 2006; Gordon et al., 2004; Wartzok et al., 2003; Nowacek et al., 
2007).
    The onset of noise can result in temporary, short term changes in 
an animal's typical behavior and/or avoidance of the affected area. 
These behavioral changes may include: reduced/increased vocal 
activities; changing/cessation of certain behavioral activities (such 
as socializing or feeding); visible startle response or aggressive 
behavior; avoidance of areas where sound sources are located; and/or 
flight responses (Richardson et al., 1995). Not all behavioral 
responses are indicative of a take. For further discussion of 
behavioral responses as they relate to take, see table 5.
    The biological significance of many of these behavioral 
disturbances is difficult to predict, especially if the detected 
disturbances appear minor. However, the consequences of behavioral 
modification could potentially be biologically significant if the 
change affects growth, survival, or reproduction. The onset of 
behavioral disturbance from anthropogenic sound is dependent upon a 
number of contextual factors including, but not limited to, sound 
source frequencies, whether the sound source is moving towards the 
animal, hearing ranges of marine mammals, behavioral state at time of 
exposure, status of individual exposed (e.g., reproductive status, age 
class, health) and an individual's experience with similar sound 
sources. Southall et al., (2021), Ellison et al. (2012) and Moore and 
Barlow (2013), among others, emphasize the importance of context (e.g., 
behavioral state of the animals, distance from the sound source) in 
evaluating behavioral responses of marine mammals to acoustic sources.
    Marine mammals that occur in the project area could be exposed to 
in-air sound that has the potential to result in behavioral harassment 
of pinnipeds that are hauled out. Airborne sound at certain levels is 
expected to result in behavioral responses similar to those discussed 
above in relation to underwater sound. For instance, anthropogenic 
sound could cause hauled out pinnipeds to exhibit changes in their 
normal behavior such as a change from resting state to an `alert' 
posture or to flush from a haulout site into the water.
    The results from studies of pinniped response to acoustic 
disturbance arising from launches and associated sonic booms at VSFB 
and NCI are highly variable (Holst et al., 2005; Ugoretz and Greene Jr. 
2012). Pinniped responses to rocket launches at the sites have been 
monitored for well over two decades. Monitoring data have consistently 
shown that the degree of pinniped reactions to sonic booms varies among 
species (table 4), with harbor seals typically showing the highest 
levels of disturbance, followed by California sea lions, and with 
northern elephant seals generally being much less responsive. Steller 
sea lions are only rarely observed in the project area and react to 
launch noise infrequently. Types of responses range from no response to 
heads-up alerts, from startle responses to some movements on land, and 
from some movements into the water to one instance of stampede.

  Table 4--Representative Pinniped Responses to Sonic Booms at San Miguel Island, Documented in U.S. Air Force
                                            Launch Monitoring Reports
----------------------------------------------------------------------------------------------------------------
                                            Sonic
                                             boom
              Launch event                  level        Monitoring location      Species observed and responses
                                            (psf)
----------------------------------------------------------------------------------------------------------------
Athena II (April 27, 1999)..............          1  Adams Cove................  California sea lion: 866
                                                                                  alerted; 232 (27 percent)
                                                                                  flushed into water.
                                                                                 Northern elephant seal: alerted
                                                                                  but did not flush.
                                                                                 Northern fur seal: alerted but
                                                                                  did not flush.
Athena II (September 24, 1999)..........       0.95  Point Bennett.............  California sea lion: 12 of 600
                                                                                  (2 percent) flushed into
                                                                                  water.
                                                                                 Northern elephant seal: alerted
                                                                                  but did not flush.
                                                                                 Northern fur seal: alerted but
                                                                                  did not flush.
Delta II 20 (November 20, 2000).........        0.4  Point Bennett.............  California sea lion: 60 pups
                                                                                  flushed into water; no
                                                                                  reaction from focal group.
                                                                                 Northern elephant seal: no
                                                                                  reaction.

[[Page 5462]]

 
Atlas II (September 8, 2001)............       0.75  Cardwell Point............  California sea lion (Group 1):
                                                                                  no reaction (1,200 animals).
                                                                                 California sea lion (Group 2):
                                                                                  no reaction (247 animals).
                                                                                 Northern elephant seal: no
                                                                                  reaction.
                                                                                 Harbor seal: 2 of 4 flushed
                                                                                  into water.
Delta II (February 11, 2002)............       0.64  Point Bennett.............  California sea lions and
                                                                                  northern fur seals: no
                                                                                  reaction among 485 animals in
                                                                                  3 groups.
                                                                                 Northern elephant seal: no
                                                                                  reaction among 424 animals in
                                                                                  2 groups.
Atlas II (December 2, 2003).............       0.88  Point Bennett.............  California sea lion:
                                                                                  approximately 40 percent
                                                                                  alerted; several flushed to
                                                                                  water (number unknown--night
                                                                                  launch).
                                                                                 Northern elephant seal: no
                                                                                  reaction.
Delta II (July 15, 2004)................       1.34  Adams Cove................  California sea lion: 10 percent
                                                                                  alerted (number unknown--night
                                                                                  launch).
Atlas V (March 13, 2008)................       1.24  Cardwell Point............  Northern elephant seal: no
                                                                                  reaction (109 pups).
Delta II (May 5, 2009)..................       0.76  West of Judith Rock.......  California sea lion: no
                                                                                  reaction (784 animals).
Atlas V (April 14, 2011)................       1.01  Cuyler Harbor.............  Northern elephant seal: no
                                                                                  reaction (445 animals).
Atlas V (September 13, 2012)............       2.10  Cardwell Point............  California sea lion: no
                                                                                  reaction (460 animals).
                                                                                 Northern elephant seal: no
                                                                                  reaction (68 animals).
                                                                                 Harbor seal: 20 of 36 (56
                                                                                  percent) flushed into water.
Atlas V (April 3, 2014).................       0.74  Cardwell Point............  Harbor seal: 1 of ~25 flushed
                                                                                  into water; no reaction from
                                                                                  others.
Atlas V (December 12, 2014).............       1.18  Point Bennett.............  California sea lion: 5 of ~225
                                                                                  alerted; none flushed.
Atlas V (October 8, 2015)...............       1.96  East Adams Cove of Point    California sea lion: ~60
                                                      Bennett.                    percent of CSL alerted and
                                                                                  raised their heads. None
                                                                                  flushed.
                                                                                 Northern elephant seal: No
                                                                                  visible response to sonic
                                                                                  boom, none flushed.
                                                                                 Northern fur seal: 60 percent
                                                                                  alerted and raised their
                                                                                  heads. None flushed.
Atlas V (March 1, 2017).................   \a\ ~0.8  Cuyler Harbor on San        Northern elephant seal: 13 of
                                                      Miguel Island.              235 (6 percent) alerted; none
                                                                                  flushed.
----------------------------------------------------------------------------------------------------------------
\a\ Peak sonic boom at the monitoring site was ~2.2 psf, but was in infrasonic range--not audible to pinnipeds.
  Within the audible frequency spectrum, boom at monitoring site estimated at ~0.8 psf.

    Post-launch monitoring of pinniped behavior shows that return to 
pre-launch numbers of animals and types of behaviors occurs within 
minutes or up to an hour or two after each launch event, regardless of 
species.
    Responsiveness also varies with time of year and age class, with 
juvenile pinnipeds being more likely to react by entering the water and 
temporarily leaving the haulout site. The probability and type of 
behavioral response also depends on the season, the group composition, 
and the type of activity or behavior at the time of disturbance. For 
example, in some cases, harbor seals have been found to be more 
responsive during the pupping/breeding season (Holst et al., 2005a; 
Holst et al., 2008) while in other instances, lone individuals seem 
more prone to react than mothers and pups (Ugoretz and Greene Jr., 
2012). California sea lions seem to be consistently less responsive 
during the pupping season (Holst et al., 2010; Holst et al., 2005a; 
Holst et al., 2008; Holst et al., 2011; Holst et al., 2005b; Ugoretz 
and Greene Jr., 2012).
    Pup abandonment could theoretically result in instances where 
adults flush into the water as a result of sound from an in-season 
launch. In its application, USSF cites one instance of a stampede on 
NCI that was triggered by launch noise in excess of that predicted to 
occur from USSF's proposed activity. No instances of pup abandonment 
are reflected in site-specific monitoring data. Given there is only one 
known instance of a stampede and no known pup abandonment, we find that 
abandonment is not likely to occur from future activities that create 
similar sound levels as those in the past. While reactions are 
variable, and can involve abrupt movements by some individuals, 
biological impacts of observed responses to launch activities and 
supporting operations appear to be limited in duration and consist of 
behavioral disruption including temporary abandonment of a haul out 
area.

Anticipated Effects on Marine Mammal Habitat

    Habitat includes, but is not necessarily limited to, rookeries, 
mating grounds, feeding areas, and areas of similar significance. We do 
not anticipate that the proposed activities would result in any 
temporary or permanent effects on the habitats used by the marine 
mammals in the proposed area, including the food sources they use 
(i.e., fish and invertebrates). Therefore, it is not expected that the 
specified activities would impact feeding success of pinnipeds.
    While it is anticipated that the proposed activity may result in 
marine mammals avoiding certain haulout areas due to temporary 
ensonification of out-of-water habitat, this impact is temporary and 
reversible and was discussed earlier in this document, in the context 
of behavioral modification. No impacts are anticipated to accrue to 
prey species or to foraging areas and in-water habitat frequented by 
pinnipeds. The main impact associated with the proposed activity will 
be temporarily elevated in-air noise levels and the associated reaction 
of certain pinnipeds, previously discussed in this proposed rule.

Estimated Take of Marine Mammals

    This section provides an estimate of the number of incidental takes 
proposed

[[Page 5463]]

for this rule, 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 comparatively small 
portion of USSF's 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 would be 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 proposed to be authorized. As described previously, no serious 
injury or mortality is anticipated or proposed to be authorized for 
this activity. Below we describe how the proposed 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 proposed 
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 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

[[Page 5464]]

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 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 GBSD is expected to utilize approximately 
the same trajectories as the current 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 14.
    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 5). NMFS considers the behaviors that meet the 
definitions of both movements and flushes in table 5 to qualify as 
behavioral harassment. Thus a pinniped on land is considered by NMFS to 
have been behaviorally harassed 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 5--Levels of Pinniped Behavioral Disturbance on Land
----------------------------------------------------------------------------------------------------------------
                                                                                             Characterized  as
               Level                    Type of response              Definition          behavioral  harassment
                                                                                                 by  NMFS
----------------------------------------------------------------------------------------------------------------
1..................................  Alert.................  Seal head orientation or     No.
                                                              brief 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     Yes.
                                                              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.
3..................................  Flush.................  All retreats (flushes) to    Yes.
                                                              the 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 the proposed regulations would be valid

[[Page 5465]]

(from 2024 to 2029), on both VAFB 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 VAFB 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 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 ten 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 VAFB 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 6. 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 7, 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 6--VSFB Max Counts From Monthly Surveys, 2020-2022
----------------------------------------------------------------------------------------------------------------
                                     Pacific harbor     California sea                         Northern elephant
              Month                       seal               lion          Steller sea lion           seal
----------------------------------------------------------------------------------------------------------------
Jan..............................                 61                 11  None in USSF record                  76
                                                                          2020-2022.
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 would 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 8 lists the proposed 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 would 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 would be taken by Level B 
harassment, we multiplied the max

[[Page 5466]]

count indicated in table 6 by the number of proposed launches per year 
(table 8) for each year of the proposed authorization. As noted in 
table 6, 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 7). Therefore, estimated 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 proposes to authorize are listed in table 
8.
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, would 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 would be taken by Level B 
harassment, we multiplied the max count indicated in table 6 by the 
number of proposed launches per year (table 8) for each year of the 
proposed authorization. As noted in table 6, monitoring data show that, 
generally speaking, most if not all California sea lions hauled out at 
VSFB would 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 7). 
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 proposes to 
authorize are listed in table 8.
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 would be taken by Level B 
harassment, we multiplied the max count indicated in table 6 by the 
number of proposed launches per year (table 8) for each year of the 
proposed authorization. As noted in table 6, 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 would 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 proposes to 
authorize are listed in table 8.
Steller Sea Lion
    Steller sea lions have been observed at VSFB since April 2012 (MMCG 
and SAIC 2012c), though as indicated in table 6, 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 proposed launches 
per year for each year of the proposed authorization (Table 8). 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 proposes to authorize are listed in 
table 8.

                            Table 7--Corrections and Adjustments by Stock at VSFB 1 2
----------------------------------------------------------------------------------------------------------------
                                                                                            VSFB, behavioral
                            Stock                             VSFB, tidal  inundation    disturbance correction
                                                                correction (percent)           (percent)
----------------------------------------------------------------------------------------------------------------
Harbor seal (California)....................................                       50                        100
California sea lion (California)............................                       50                        100
Northern elephant seal (CA Breeding)........................                      N/A                         15
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.


[[Page 5467]]


                   Table 8--Proposed 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          28,310
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          17,214
Steller sea lion (Eastern)..............................             200             275             375             500             550           1,900
--------------------------------------------------------------------------------------------------------------------------------------------------------

UAS at VSFB

    As stated in the Description of Proposed Activity section, while 
harassment of hauled out pinnipeds from UAS classes 0-2 is unlikely to 
occur at altitudes of 200 ft 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 would take, by 
Level B harassment, some animals hauled out at Small Haul-Out 1 at 
VSFB. Aircraft are required to maintain a 1000-ft 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 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 9 lists the proposed 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 proposed UAS class 0-3 
activities per year (100). Therefore, the number of estimated takes per 
year = 6 animals x 100 UAS activities, and the resultingtake numbers 
NMFS proposes to authorize are listed in table 9.
California Sea Lion
    California sea lions haul out at Small Haul-Out 1, though they are 
less abundant than Pacific harbor seal at that site. USSF estimates 
that up to 1 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 proposed 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 proposes to 
authorize are listed in table 9.

   Table 9--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 proposed launches per year (15 launches). 
NMFS conservatively assumes that all California sea lions at the site 
would be taken by Level B harassment during any given missile launch, 
though it is relatively unlikely that all 15 launches would fly close 
enough to this site to cause Level B harassment. Therefore, the number 
of estimated takes = 518 animals x number of rocket 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 proposed authorization) from

[[Page 5468]]

missile launches at VSFB, as indicated in table 10.

                       Table 10--Proposed 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, Point Sal..............      518 (2019)               15            7,770           38,850
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Annual take * 5 years.

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 11). 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 12). 
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 
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 four miles 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 13) 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 13). NMFS describes the calculations in further 
detail for each species, below.

                               Table 11--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.........................................................  ..............  ..............             N/R
Steller sea lion:

[[Page 5469]]

 
    San Miguel..................................................             N/R             N/R             N/R
    Santa Rosa..................................................             N/R             N/R             N/R
                                                                 -----------------------------------------------
    Sum.........................................................  ..............  ..............               5
----------------------------------------------------------------------------------------------------------------
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 13, 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 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 proposes to authorize are listed in table 13.

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 13, 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 proposes to 
authorize are listed in table 13.

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 13, 
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 proposes to authorize are listed in table 13.

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 13, 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 proposes to authorize are listed in table 
13.

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 5. 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 (5) by the number of booms 
anticipated to overlap the haulouts (table 13, 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 = 5 animals x number of sonic booms over 
2 psf x 0.5, and the resulting take numbers NMFS proposes to authorize 
are listed in table 13.

[[Page 5470]]



        Table 12--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 proposing to authorize take
  of Guadalupe fur seal as described herein.


                              Table 13--Proposed 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  ..............
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         220,392
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              70
----------------------------------------------------------------------------------------------------------------

Total Proposed Take
    Table 14 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 14--Total Estimated Annual and 5-Year Take \1\ Proposed for Authorization
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                         Highest annual
                                                                                                            Highest  1-      Stock     instances of take
                 Stock                       2024         2025         2026         2027         2028        year take     abundance     as percent of
                                                                                                             estimated                  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       43,201                  1
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.

Proposed 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

[[Page 5471]]

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 proposed 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, 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 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 two 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 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 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.

UAS

    UAS classes 0-2 must maintain a minimum altitude of 300 ft 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, 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 
over marine mammal haulouts except at take-off and landing. USSF must 
not fly class 4 or 5 UAS below 1,000 ft over haulouts.
    Based on our evaluation of the applicant's proposed measures, NMFS 
has preliminarily determined that the proposed mitigation measures 
provide the means of effecting the least practicable impact on the 
affected species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.

Proposed 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:
    <bullet> Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
    <bullet> 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);
    <bullet> Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
    <bullet> How anticipated responses to stressors impact either: (1) 
long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
    <bullet> Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and,
    <bullet> Mitigation and monitoring effectiveness.
    The USSF has proposed a suite of monitoring measures on both VSFB 
and the NCI to document impacts of the specified activities on marine 
mammals. These proposed 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 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. 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. Specific 
requirements for monitoring locations at VSFB and NCI respectively, are 
described in additional detail below.

Rocket Launch Monitoring at VSFB

    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

[[Page 5472]]

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 16) for marine mammal monitoring on NCI could be 
exceeded or not, and whether 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 protected species observer (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. For launches within the harbor seal pupping season, a 
two-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 15 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 15--Proposed NCI Sonic Boom Level Requiring Monitoring, by Date
------------------------------------------------------------------------
                  Dates                          Sonic boom  level
------------------------------------------------------------------------
1 March-31 July.........................  >5 psf.
1 August-30 September...................  >7 psf.
1 October-28 February...................  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 8). 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 would 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.

[[Page 5473]]

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 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 
proposed changes of monitoring criteria for launches, the applicant 
proposes to 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 appropriate. 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 substantial, NMFS 
will publish a notice of the planned LOA in the Federal Register and 
solicit public comment.

Reporting

    Proposed reporting requirements would include launch monitoring 
reports for each launch where monitoring is required or conducted, 
annual reports describing all activities and monitoring conducted in 
the project area that are covered under this proposed rule during each 
year, and a comprehensive 5-year report.
    A launch monitoring report containing the following information 
would be submitted to NMFS within 90 days after each rocket launch 
where monitoring is required:
    <bullet> Date(s) and time(s) of the launch (and sonic boom, if 
applicable);
    <bullet> Monitoring program design; and
    <bullet> 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, 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 recorded sound 
levels associated with the launch and/or sonic boom (if applicable).
    If a dead or seriously injured pinniped is found during post-launch 
monitoring, the incident must be reported to the NMFS Office of 
Protected Resources and the NMFS West Coast Regional Office 
immediately.
    USSF must submit an annual report to NMFS on March 1st of each year 
that summarizes the data reported in all

[[Page 5474]]

launch reports for the previous calendar year (as described above) 
including a summary of documented numbers of instances of harassment 
incidental to the specified activities. Annual reports would also 
include the results of the semi-monthly sentinel marine mammal 
monitoring and describe any documented takings incidental to the 
specified activities not included in the launch reports (e.g., takes 
incidental to aircraft or helicopter operations observed during the 
semi-monthly surveys).
    A final comprehensive 5- year report would be submitted to NMFS no 
later than 180 days prior to expiration of these regulations. This 
report must summarize the findings made in all previous reports and 
assess both the impacts at each of the major rookeries and assess any 
cumulative impacts on marine mammals from the specified activities.

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 3, 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.
    Activities associated with the proposed 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 would likely be limited to reactions such as moving a short 
distance, with some hauled out animals moving toward or entering 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 would 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 would not result in 
any adverse impact to the stock as a whole. Level B harassment would be 
reduced to the level of least practicable adverse impact 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 seal 
(January through March on VSFB and December through March on NCI), and 
northern fur seal (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 proposed activities. Further, 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, 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

[[Page 5475]]

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. For instance and 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 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 preliminary 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:
    <bullet> No injury, serious injury, or mortality are anticipated or 
authorized;
    <bullet> 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;
    <bullet> The proposed 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
    <bullet> The presumed efficacy of planned mitigation measures in 
reducing the effects of the specified activity to the level of least 
practicable adverse impact.
    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 proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the proposed 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 proposed 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. 
When the predicted maximum annual number of individuals to be taken is 
fewer than one-third of the species or stock abundance, 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 proceeding as 
though each instance of take affecting a different individual.
    For every year, the instances of take proposed for authorization of 
northern elephant seal, Steller sea lion, and Guadalupe fur seal 
comprise less than one-third of the best available population 
abundances (table 14). The number of animals authorized to be taken 
from these stocks would be considered small relative to the relevant 
stock's abundances even if each estimated instance of take occurred to 
a new 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 do not necessarily 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 proposed activity) 
and 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--only a much 
smaller portion of the stock would be expected to be impacted. Thus, 
while we propose to authorize the instances of incidental take of these 
species shown in table 14, the number of individuals that would be 
incidentally taken by the proposed activities would, 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 proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals would 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 would 
not have an unmitigable adverse impact on the availability of such 
species or stocks for taking for subsistence purposes.

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 Southwest Fisheries 
Science Center.
    NMFS is proposing to authorize a limited amount of take, by Level B 
harassment (5-23 annually, 70 over the

[[Page 5476]]

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 proposed 
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, depending on the direction 
of a given launch, rockets and missiles may cross over the Channel 
Islands National Marine Sanctuary. NMFS will work with NOAA's Office of 
National Marine Sanctuaries to fulfill our responsibilities under the 
NMSA as warranted and will complete any NMSA requirements prior to a 
determination on the issuance of the final rule and LOA.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) andNAO 216-6A, NMFS must review its proposed 
action (i.e., the issuance of an ITA) with respect to potential impacts 
on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (ITAs with no anticipated serious injury or 
mortality) 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 preliminarily determined 
that the issuance of the proposed ITA qualifies to be categorically 
excluded from further NEPA review.
    We will review all comments submitted in response to this notice 
prior to concluding our NEPA process or making a final decision on the 
ITA request.

Request for Information

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning the USSF request and the proposed 
regulations (see ADDRESSES). All comments will be reviewed and 
evaluated as we prepare a final rule and make final determinations on 
whether to issue the requested authorization. This notice and 
referenced documents provide all environmental information relating to 
our proposed action for public review.

Classification

    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
proposed rule is not significant.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The USSF is the sole entity that would be subject to the requirements 
in these proposed regulations, and the USSF is not a small governmental 
jurisdiction, small organization, or small business, as defined by the 
RFA. Because of this certification, a regulatory flexibility analysis 
is not required and none has been prepared. This rule does not contain 
a collection-of-information requirement subject to the provisions of 
the Paperwork Reduction Act because the applicant is a Federal agency.

List of Subjects in 50 CFR Part 217

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

    Dated: January 19, 2024.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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 these regulations 
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. Sec.  217.66 or 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.
------------------------------------------------------------------------

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

[[Page 5477]]

this subpart or a LOA issued under Sec. Sec.  216.106 of this chapter 
and Sec. Sec.  217.66 or 217.67 of this chapter;
    (2) Take any marine mammal species or stock not specified in such 
LOAs;
    (3) Take any marine mammal specified in such LOAs in any manner 
other than as specified; or
    (4) Take a marine mammal specified in 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 Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec. Sec.  
217.66 or 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 
psf from 1 June-31 July will be scheduled to coincide with tides in 
excess of +1.0 ft, 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 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 buffer at Small Haul-out 1).
    (3) UAS classes 0-2 must maintain a minimum altitude of 300 ft 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, 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 over marine mammal haulouts except at take-off and 
landing. USSF must not fly class 4 or 5 UAS below 1,000 ft 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 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 night-time video monitoring may be used 
in lieu of PSO monitoring.
    (c) 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.
    (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.
    (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 will 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 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 28 February.
    (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 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

[[Page 5478]]

the months of March through July across the 5-year duration of this 
rule.
    (1) When launch monitoring is required, monitoring must include 
multiple surveys each 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.
    (j) For each rocket or missile launch where monitoring is required 
as described in paragraphs (a), (c), and (e) of this section, USSF must 
submit a launch report to NMFS' West Coast Region and Office of 
Protected Resources within 90 days. This report must contain the 
following information:
    (1) Date(s) and time(s) of the launch (and sonic boom, if 
applicable);
    (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;
    (v) Number of animals, by species, age, and sex class that entered 
the water, 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 recorded sound 
levels associated with the launch and/or sonic boom (if applicable).
    (k) If the activity identified in Sec.  217.60(a) likely resulted 
in the mortality or injury of any marine mammals or in any 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 48 hours of the discovery of the 
injured or dead marine mammal.
    (i) USSF must submit an annual report each year to NMFS Office of 
Protected Resources. This report must summarize the data reported in 
all launch reports for the previous calendar year (as described in 
paragraph (g) of this section) including a summary of documented 
numbers of instances of harassment incidental to the specified 
activities. The annual reports must also include the results of the 
semi-monthly sentinel marine mammal monitoring and describe any 
documented takings incidental to the specified activities not included 
in the launch reports (e.g., takes incidental to aircraft or helicopter 
operations observed during the semi-monthly surveys).
    (l) 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 previous 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);


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, its habitat, and on the availability of the 
species for subsistence uses; and
    (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 these regulations.
    (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. Sec.  216.106 of this chapter and 
217.66 for the activity identified in Sec.  217.60(a) and (b) shall be 
modified upon request by the applicant, 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 these regulations 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 the regulations 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. Sec.  216.106 of this chapter and 
217.66 for the activity identified in Sec.  217.60(a) and (b) may be 
modified by NMFS under the following circumstances:

[[Page 5479]]

    (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 these regulations 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. Sec.  216.106 of this 
chapter and 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. 2024-01366 Filed 1-26-24; 8:45 am]
BILLING CODE 3510-22-P