(a) Regulations in this subpart apply only to the United States Space Force (USSF) and those persons it authorizes to conduct activities on its behalf, for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section incidental to rocket and missile launches and supporting operations.

(b) The incidental taking of marine mammals under this subpart may be authorized in a Letter of Authorization (LOA) only for activities originating at Vandenberg Space Force Base (VSFB).

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

(b) [Reserved]

(a) Under an LOA issued pursuant to § 216.106 of this chapter and § 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 § 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 § 217.60 is limited to the following species and stocks:

(a) Except for takings contemplated in § 217.62 and authorized by a LOA issued under § 216.106 of this chapter and §§ 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 § 217.60:

(1) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under § 216.106 of this chapter and § 217.66 or § 217.67;

(2) Take any marine mammal species or stock not specified in this subpart or such LOAs;

(3) Take any marine mammal specified in this subpart or such LOAs in any manner other than as specified; or

(4) Take a marine mammal specified in this subpart or such LOAs if NMFS determines after notice and comment that the taking allowed for one or more activities under 16 U.S.C. 1371(a)(5)(A) is having or may have more than a negligible impact on the species or stocks of such marine mammal.

(b) [Reserved]

(a) When conducting the activities identified in § 217.60(a) and (b), the mitigation measures contained in any LOA issued under § 216.106 of this chapter and § 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 pounds per square foot (psf) from 1 June-31 July will be scheduled to coincide with tides in excess of +1.0 ft (0.3 m), with an objective to do so at least 50 percent of the time.

(2) For manned flight operations, aircraft must use approved routes for testing and evaluation. Manned aircraft must also remain outside of a 1,000-ft (305 m) buffer around pinniped rookeries and haul-out sites (except in emergencies such as law enforcement response or Search and Rescue operations, and with a reduced, 500-ft (152 m) buffer at Small Haul-out 1).

(3) Unscrewed aerial systems (UAS) classes 0-2 must maintain a minimum altitude of 300 ft (91 m) over all known marine mammal haulouts when marine mammals are present, except at take-off and landing. Class 3 must maintain a minimum altitude of 500 ft (152 m), except at take-off and landing. UAS classes 4 and 5 only operate from the VSFB airfield and must maintain a minimum altitude of 1,000 ft (305 m) over marine mammal haulouts except at take-off and landing. USSF must not fly class 4 or 5 UAS below 1,000 ft (305 m) over haulouts.

(b) [Reserved]

(a) Monitoring at VSFB and NCI must be conducted by at least one NMFS-approved Protected Species Observer (PSO) trained in marine mammal science. PSOs must have demonstrated proficiency in the identification of all age and sex classes of all marine mammal species that occur at VSFB and on Northern Channel Islands (NCI). They must be knowledgeable of approved count methodology and have experience in observing pinniped behavior, especially that due to human disturbances.

(b) In the event that the PSO requirements described in paragraph (a) of this section cannot be met (e.g., access is prohibited due to safety concerns), daylight or nighttime video monitoring must be used in lieu of PSO monitoring. In certain circumstances where the daylight or nighttime video monitoring is also not possible (e.g., USSF is unable to access a monitoring site due to road conditions or human safety concerns), USSF must notify NMFS.

(c) At VSFB, USSF must conduct marine mammal monitoring and take acoustic measurements for all new rockets, for rockets (existing and new) launched from new facilities, and for larger or louder rockets (including those with new launch proponents) than those that have been previously launched from VSFB during their first three launches and for the first three launches from any new facilities during March through July.

(1) For launches that occur during the harbor seal pupping season (March 1 through June 30) or when higher numbers of California sea lions are present (June 1 through July 31), monitoring must be conducted by at least one NMFS-approved PSO trained in marine mammal science.

(2) When launch monitoring is required, monitoring must begin at least 72 hours prior to the launch and continue through at least 48 hours after the launch. Monitoring must include multiple surveys each day, with a minimum of four surveys per day.

(3) For launches within the harbor seal pupping season, USSF must conduct a follow-up survey of pups.

(4) For launches that occur during daylight, USSF must make time-lapse video recordings to capture the reactions of pinnipeds to each launch. For launches that occur at night, USSF must employ night video monitoring, when feasible.

(5) When possible, PSOs must record: species, number, general behavior, presence and number of pups, age class, gender, and reaction to launch noise, or to natural or other human-caused disturbances. PSOs must also record environmental conditions, including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction.

(d) USSF must conduct sonic boom modeling prior to the first three small or medium rocket launches from new launch proponents or at new launch facilities, and all heavy or super-heavy rocket launches.

(e) USSF must conduct marine mammal monitoring and take acoustic measurements at the NCI if the sonic boom model indicates that pressures from a boom will reach or exceed 7 psf from 1 January through 28 February, 5 psf from 1 March through 31 July, or 7 psf from 1 August through 30 September. No monitoring is required on NCI from 1 October through 31 December.

(1) The monitoring site must be selected based upon the model results, prioritizing a significant haulout site on one of the islands where the maximum sound pressures are expected to occur.

(2) USSF must estimate the number of animals on the monitored beach and record their reactions to the launch noise and conduct more focused monitoring on a smaller subset or focal group.

(3) Monitoring must commence at least 72 hours prior to the launch, during the launch and at least 48 hours after the launch, unless no sonic boom is detected by the monitors and/or by the acoustic recording equipment, at which time monitoring may be stopped.

(4) For launches that occur in darkness, USSF must use night vision equipment.

(5) Monitoring for each launch must include multiple surveys each day that record, when possible: species, number, general behavior, presence of pups, age class, gender, and reaction to sonic booms or natural or human-caused disturbances.

(6) USSF must collect photo and/or video recordings for daylight launches when feasible, and if the launch occurs in darkness night vision equipment will be used.

(7) USSF must record environmental conditions, including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction.

(f) USSF must continue to test equipment and emerging technologies, including but not limited to night vision cameras, newer models of remote video cameras and other means of remote monitoring at both VSFB and on the NCI.

(g) USSF must evaluate UAS based or space-based technologies that become available for suitability, practicability, and for any advantage that remote sensing may provide to existing monitoring approaches.

(h) USSF must monitor marine mammals during the first three launches of the missiles for the new Ground Based Strategic Defense program during the months of March through July across the 5-year duration of this subpart.

(1) When launch monitoring is required, monitoring must include multiple surveys each day, with a minimum of four surveys per day.

(2) When possible, PSOs must record: species, number, general behavior, presence and number of pups, age class, gender, and reaction to launch noise, or to natural or other human-caused disturbances. PSOs must also record environmental conditions, including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction.

(i) USSF must conduct semi-monthly surveys (two surveys per month) to monitor the abundance, distribution, and status of pinnipeds at VSFB. Whenever possible, these surveys will be timed to coincide with the lowest afternoon tides of each month when the greatest numbers of animals are usually hauled out. If a VSFB or area closure precludes monitoring on a given day, USSF must monitor on the next best day.

(1) PSOs must gather the following data at each site: species, number, general behavior, presence and number of pups, age class, gender, and any reactions to natural or human-caused disturbances. PSOs must also record environmental conditions, including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction.

(2) [Reserved]

(j) USSF must submit an annual report each year to NMFS Office of Protected Resources and West Coast Region on March 1st of each year that describes all activities and monitoring for the specified activities during that year. This includes launch monitoring information in paragraphs (j)(1) through (3) of this section for each launch where monitoring is required or conducted. The annual reports must also include a summary of the documented numbers of instances of harassment incidental to the specified activities, including non-launch activities (e.g., takes incidental to aircraft or helicopter operations observed during the semi-monthly surveys). Annual reports must also include the results of the semi-monthly sentinel marine mammal monitoring described in paragraph (i) of this section.

(1) Launch information, including:

(i) Date(s) and time(s) of the launch (and sonic boom, if applicable); and

(ii) Number(s), type(s), and location(s) of rockets or missiles launched;

(2) Monitoring program design; and

(3) Results of the monitoring program, including, but not necessarily limited to:

(i) Date(s) and location(s) of marine mammal monitoring;

(ii) Number of animals observed, by species, on the haulout prior to commencement of the launch or recovery;

(iii) General behavior and, if possible, age (including presence and number of pups) and sex class of pinnipeds hauled out prior to the launch or recovery;

(iv) Number of animals, by species, age, and sex class that responded at a level indicative of harassment. Harassment is characterized by:

(A) Movements in response to the source of disturbance, ranging from short withdrawals at least twice the animal's body length to longer retreats over the beach, or if already moving a change of direction of greater than 90 degrees; or

(B) All retreats (flushes) to the water;

(v) Number of animals, by species, age, and sex class that entered the water, the length of time the animal(s) remained off the haulout, and any behavioral responses by pinnipeds that were likely in response to the specified activities, including in response to launch noise or a sonic boom;

(vi) Environmental conditions including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction; and

(vii) Results of acoustic monitoring, including the following:

(A) Recorded sound levels associated with the launch (in SEL, SPLpeak, and SPLrms);

(B) Recorded sound levels associated with the sonic boom (if applicable), in psf; and

(C) The estimated distance of the recorder to the launch site and the distance of the closest animals to the launch site.

(k) USSF must submit a final, comprehensive 5-year report to NMFS Office of Protected Resources. This report must:

(1) Summarize the activities undertaken and the results reported in all annual reports;

(2) Assess the impacts at each of the major rookeries; and

(3) Assess the cumulative impacts on pinnipeds and other marine mammals from the activities specified in § 217.60(a) and (b).

(l) If the activity identified in § 217.60(a) likely resulted in the take of marine mammals not identified in § 217.62, then the USSF must notify the NMFS Office of Protected Resources and the NMFS West Coast Region stranding coordinator within 24 hours of the discovery of the take.

(m) If real-time monitoring during a launch shows that the activity identified in § 217.60(a) is reasonably likely to have resulted in the mortality or injury of any marine mammal, USSF must notify NMFS within 24 hours (or next business day). NMFS and USSF must then jointly review the launch procedure and the mitigation requirements and make appropriate changes through the adaptive management process, as necessary and before any subsequent launches of rockets and missiles with similar or greater sound fields and/or sonic boom pressure levels.

(a) To incidentally take marine mammals pursuant to this subpart, the USSF must apply for and obtain an LOA in accordance with § 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 § 217.67(c)(1) required by an LOA, USSF must apply for and obtain a modification of the LOA as described in § 217.67.

(e) Each LOA will set forth:

(1) Permissible methods of incidental taking;

(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species and its habitat; and

(3) Requirements for monitoring and reporting.

(f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under this subpart.

(g) Notice of issuance or denial of a LOA shall be published in the Federal Register within 30 days of a determination.

(a) A LOA issued under § 216.106 of this chapter and § 217.66 for the activity identified in § 217.60(a) and (b) shall be modified upon request by USSF, provided that:

(1) The specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and

(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under this subpart were implemented.

(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting measures (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for this subpart or that result in no more than a minor change in the total estimated number of takes (or distribution by species or stock or years), NMFS may publish a notice of proposed changes to the LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.

(c) An LOA issued under § 216.106 of this chapter and § 217.66 for the activity identified in § 217.60(a) and (b) may be modified by NMFS under the following circumstances:

(1) After consulting with the USSF regarding the practicability of the modifications, NMFS, through adaptive management, may modify (including adding or removing measures) the existing mitigation, monitoring, or reporting measures if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring.

(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA include:

(A) Results from the USSF's monitoring from the previous year(s);

(B) Results from other marine mammal and/or sound research or studies; or

(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by this subpart or a subsequent LOA.

(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are more than minor, NMFS will publish a notice of the proposed changes to the LOA in the Federal Register and solicit public comment.

(2) If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to § 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.