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Title 50Chapter IISubchapter CPart 217 → Subpart G


Title 50: Wildlife and Fisheries
PART 217—REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS INCIDENTAL TO SPECIFIED ACTIVITIES


Subpart G—Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to U.S. Air Force Launches and Operations at Vandenberg Air Force Base, California


Contents
§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 Letters of Authorization.
§§217.68-217.69   [Reserved]

Source: 84 FR 14333, Apr. 10, 2019, unless otherwise noted.

Effective Date Note: At 84 FR 14333, Apr. 10, 2019, subpart G was added, effective Apr. 10, 2019, until Apr. 10, 2024.

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§217.60   Specified activity and specified geographical region.

(a) Regulations in this subpart apply only to the 30th Space Wing, United States Air Force (USAF) 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 and that occurs incidental to rocket and missile launches and aircraft operations.

(b) The taking of marine mammals by the USAF may be authorized in a Letter of Authorization (LOA) only if it occurs from activities originating at Vandenberg Air Force Base.

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§217.61   Effective dates.

Regulations in this subpart are effective from April 10, 2019, until April 10, 2024.

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§217.62   Permissible methods of taking.

(a) Under an LOA issued pursuant to §§216.106 and 217.60 of this chapter, the Holder of the LOA (herein after “USAF”) may incidentally, but not intentionally, take marine mammals by Level B harassment, within the area described in §217.60(b), provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.

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§217.63   Prohibitions.

Notwithstanding takings contemplated in §217.62(c) and authorized by an LOA issued under §§216.106 and 217.66 of this chapter, no person in connection with the activities described in §217.60 may:

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

(b) Take any marine mammal not specified in such LOAs;

(c) Take any marine mammal specified in such LOAs in any manner other than as specified;

(d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or

(e) Take a marine mammal specified in such LOAs if NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.

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§217.64   Mitigation requirements.

When conducting the activities identified in §217.60(a), the mitigation measures contained in any Letter of Authorization issued under §§216.106 of this chapter and 217.66 must be implemented. These mitigation measures include (but are not limited to):

(a) For missile and rocket launches, the USAF must avoid, whenever possible, launches during the harbor seal pupping season of March through June, unless constrained by factors including, but not limited to, human safety, national security, or launch mission objectives.

(b) For rocket launches, the USAF must avoid, whenever possible, launches which are predicted to produce a sonic boom on the Northern Channel Islands from March through June.

(c) Aircraft and helicopter flight paths must maintain a minimum distance of 1,000 feet (ft) (305 meters (m)) from recognized pinniped haulouts and rookeries, whenever possible, except for one area near the VAFB harbor over which aircraft may be flown to within 500 ft of a haulout, and except in emergencies or for real-time security incidents, which may require approaching pinniped haulouts and rookeries closer than 1,000 ft (305 m).

(d) Except for during take-off and landing actions, the following minimum altitudes must be maintained over all known marine mammal haulouts when marine mammals are present: For Class 0-2 UAS, a minimum of 300 ft; for Class 3 UAS, a minimum of 500 ft; and for Class 4 or 5 UAS, a minimum of 1,000 ft.

(e) If post-launch surveys determine that an injurious or lethal take of a marine mammal has occurred, the launch procedure and the monitoring methods must be reviewed, in cooperation with the National Marine Fisheries Service (NMFS), and appropriate changes must be made through modification to a Letter of Authorization, prior to conducting the next launch under that Letter of Authorization.

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§217.65   Requirements for monitoring and reporting.

(a) To conduct monitoring of rocket launch activities, the USAF must either use video recording, or must designate a qualified on-site individual approved in advance by NMFS, with demonstrated proficiency in the identification of all age and sex classes of both common and uncommon pinniped species found at VAFB and knowledge of approved count methodology and experience in observing pinniped behavior, as specified in the Letter of Authorization, to monitor and document pinniped activity as described below:

(1) For any launches of space launch vehicles or recoveries of the Falcon 9 First Stage occurring from January 1 through July 31, pinniped activity at VAFB must be monitored in the vicinity of the haulout nearest the launch platform, or, in the absence of pinnipeds at that location, at another nearby haulout, for at least 72 hours prior to any planned launch, and continue for a period of time not less than 48 hours subsequent to the launch;

(2) For any launches of new space launch vehicles that have not been monitored during at least 3 previous launches occurring from August 1 through December 31, pinniped activity at VAFB must be monitored in the vicinity of the haulout nearest the launch or landing platform, or, in the absence of pinnipeds at that location, at another nearby haulout, for at least 72 hours prior to any planned launch, and continue for a period of time not less than 48 hours subsequent to launching;

(3) For any launches of existing space launch vehicles that are expected to result in a louder launch noise or sonic boom than previous launches of the same vehicle type occurring from August 1 through December 31, pinniped activity at VAFB must be monitored in the vicinity of the haulout nearest the launch or landing platform, or, in the absence of pinnipeds at that location, at another nearby haulout, for at least 72 hours prior to any planned launch, and continue for a period of time not less than 48 hours subsequent to launching;

(4) For any launches of new types of missiles occurring from August 1 through December 31, pinniped activity at VAFB must be monitored in the vicinity of the haulout nearest the launch or landing platform, or, in the absence of pinnipeds at that location, at another nearby haulout, for at least 72 hours prior to any planned launch, and continue for a period of time not less than 48 hours subsequent to launching;

(5) For any recoveries of the Falcon 9 First Stage occurring from August 1 through December 31 that are predicted to result in a sonic boom of 1.0 pounds per square foot (psf) or above at VAFB, pinniped activity at VAFB must be monitored in the vicinity of the haulout nearest the launch or landing platform, or, in the absence of pinnipeds at that location, at another nearby haulout, for at least 72 hours prior to any planned launch, and continue for a period of time not less than 48 hours subsequent to launching;

(6) For any launches or Falcon 9 First Stage recoveries occurring from January 1 through July 31, follow-up surveys must be conducted within 2 weeks of the launch;

(7) For any launches or Falcon 9 First Stage recoveries, pinniped activity at the Northern Channel Islands must be monitored, if it is determined by modeling that a sonic boom of greater than 2.0 psf is predicted to impact one of the islands between March 1 and July 31, greater than 3.0 psf between August 1 and September 30, and greater than 4.0 psf between October 1 and February 28. Monitoring will be conducted at the haulout site closest to the predicted sonic boom impact area, or, in the absence of pinnipeds at that location, at another nearby haulout;

(8) For any launches or Falcon 9 First Stage recoveries for which marine mammal monitoring is required, acoustic measurements must be made; and

(9) Marine mammal monitoring must include multiple surveys each day that record the species, number of animals, general behavior, presence of pups, age class, gender and reaction to launch noise, sonic booms or other natural or human caused disturbances, in addition to recording environmental conditions such as tide, wind speed, air temperature, and swell. Number of marine mammals hauled out must be recorded immediately prior to the launch, unless weather conditions prevent accurate recording or it is technologically infeasible. When flushing behavior is observed, the amount of time for animals to return to the haulout must be recorded.

(10) Marine mammal monitoring of activities that occur during darkness at VAFB must include night video monitoring, when feasible.

(b) The USAF must submit a report to the Administrator, West Coast Region, NMFS, and Office of Protected Resources, NMFS, within 90 days after each launch. This report must contain the following information:

(1) Date(s) and time(s) of the launch;

(2) Design of the monitoring program; and

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

(i) Numbers of pinnipeds present on the haulout prior to commencement of the launch;

(ii) Numbers of pinnipeds that may have been harassed as noted by the number of pinnipeds estimated to have moved 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 degree, or, entered the water as a result of launch noise;

(iii) For any marine mammals that entered the water, the length of time they remained off the haulout;

(iv) Description of behavioral modifications by pinnipeds that were likely the result of launch noise or sonic boom; and

(v) Results of acoustic monitoring, including the intensity of any sonic boom (psf) and sound levels in SELs, SPLpeak and SPLrms.

(c) If the authorized activity identified in §217.60(a) is thought to have resulted in the mortality or injury of any marine mammals or in any take of marine mammals not authorized in LOAs, then the USAF must notify the Director, Office of Protected Resources, NMFS, and the stranding coordinator, West Coast Region, NMFS, within 48 hours of the discovery of the injured or dead marine mammal or of the take of marine mammals not authorized in an LOA.

(d) An annual report must be submitted on March 1 of each year to the Office of Protected Resources, NMFS.

(e) A final report must be submitted at least 180 days prior to expiration of these regulations to the Office of Protected Resources, NMFS. This report will:

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

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

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

(4) State the date(s), location(s), and findings of any research activities related to monitoring the effects on launch noise, sonic booms, and harbor activities on marine mammal populations.

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§217.66   Letters of Authorization.

(a) To incidentally take marine mammals pursuant to these regulations, the USAF must apply for and obtain an LOA.

(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.

(c) If an LOA expires prior to the expiration date of these regulations, the USAF may apply for and obtain a renewal of the LOA.

(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, the USAF must apply for and obtain a modification of the LOA as described in §217.67.

(e) The 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 an LOA shall be published in the Federal Register within 30 days of a determination.

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§217.67   Renewals and modifications of Letters of Authorization.

(a) An LOA issued under §§216.106 of this chapter and 217.66 for the activity identified in §217.60(a) shall be renewed or 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 these regulations (excluding changes made pursuant to the adaptive management provision in §217.67(c)(1)); 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 (excluding changes made pursuant to the adaptive management provision in §217.67(c)(1)) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed 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) may be modified by NMFS under the following circumstances:

(1) Adaptive Management—NMFS may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with the USAF regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations.

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

(A) Results from the USAF's monitoring from the previous year(s).

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

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

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

(2) Emergencies—If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in §217.62(c), 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.

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§§217.68-217.69   [Reserved]

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