Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to the U.S. Navy Training and Testing Activities in the Point Mugu Sea Range Study Area, 37035-37036 [2023-12045]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 88, Number 108 (Tuesday, June 6, 2023)]
[Notices]
[Pages 37035-37036]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12045]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC837]


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to the U.S. Navy Training and Testing Activities in the 
Point Mugu Sea Range Study Area

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

ACTION: Notice; modification of letter of authorization.

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SUMMARY: NMFS has modified its Letter of Authorization (LOA) issued to 
the United States Navy (Navy) on July 7, 2022, for the taking of marine 
mammals incidental to training and testing activities conducted in the 
Point Mugu Sea Range (PMSR) study area and launch events from San 
Nicolas Island (SNI) over the course of seven years (2022-2029). 
Specifically, NMFS has removed certain reporting requirements related 
to explosives use, to be consistent with other LOAs issued for similar 
activities conducted by the Navy. The mitigation and mitigation related 
monitoring measures of the LOA remain unchanged, and the removal of 
these reporting measures do not change the findings made for the 
regulations or the original LOA or result in any change in the number 
of estimated or authorized takes.

DATES: The modified LOA is valid through July 6, 2029.

FOR FURTHER INFORMATION CONTACT: Craig Cockrell, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application and supporting documents (including NMFS Federal Register 
notices of the original proposed and final rules, and the initial LOA), 
may be obtained online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-testing-and-training-activities-point-mugu-sea-range. In case of problems accessing these documents, 
please call the contact listed above.

SUPPLEMENTARY INFORMATION: 

Background

    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.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking 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 and either regulations are issued or, if 
the taking is limited to harassment, a notice of a proposed incidental 
take authorization may be provided to the public for review.
    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). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the monitoring and 
reporting of such takings.
    Following rulemaking, NMFS issued final regulations and an LOA 
authorizing the Navy to take marine mammals, by Level A and Level B 
harassment only, incidental to training and testing activities (which 
qualify as military readiness activities) involving the use of at-
surface and near-surface explosive detonations throughout the PMSR 
Study Area, as well as launch events from San Nicolas Island (SNI). (87 
FR 40888, July 8, 2022). The regulations and LOA are effective from 
July 7, 2022, through July 6, 2029, and include mitigation, monitoring, 
and reporting requirements.

Modification Request and Analysis

    On October 11, 2022, NMFS received a request from the Navy for a 
modification of the LOA to remove part of the reporting requirements in 
Section 7 of the LOA, which governs the Annual PMSR Study Area Training 
and Testing Activity Report. Specifically, Navy requested removal of 
item 7.f.1.(i and ii), which requires information about each explosives 
event completed during the year and marine mammal observations by Navy 
Lookouts in association with explosives activities.
    These requirements are parallel to those that have been required 
for higher-impact Navy activities, such as Major Training Exercises 
involving multiple platforms or units utilizing hull-mounted active 
sonar for exercises of comparatively longer durations (days to a month) 
or Sinking Exercise, which consist of explosive detonations of higher 
net explosive weight used to sink a ship (85 FR 46302; July 31, 2020). 
In contrast, these requirements are not consistent with the required 
reporting measures in LOAs issued to the Navy for explosive activities 
for all of their other major training and testing rules (e.g., Hawaii 
Southern California Training and Testing, Atlantic Fleet Training and 
Testing), which have been established through years of coordination 
with the Navy after notice and public comment (85 FR 41780; July 10, 
2020 and 84 FR 70712; December 23, 2019), and were inadvertently 
included in the PMSR.
    In addition to being inconsistent with the reporting requirements 
broadly coordinated with the Navy for similar activities in LOAs for 
other areas, the Navy advises that the measures in question are 
infeasible at the PMSR, as the indicated information cannot be 
effectively collected from the aircraft used in the exercises, due to 
the speed and the height of the aircraft; and additional vessels and 
personnel are not allowed in the impact zones.
    NMFS' PMSR incidental take regulation at 50 CFR 218.17 addresses 
LOA modification requests by the applicant (Navy):
    (b) For LOA modification or renewal requests by the applicant that 
include changes to the activity or to 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 in this subpart 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 LOA 
in the Federal Register, including the associated analysis of the 
change, and solicit public comment before issuing the LOA.

[[Page 37036]]

    This LOA modification will have no effect on estimated number of 
takes or on the findings made for the regulations. It does not change 
mitigation or related monitoring. The only change is to conform the 
reporting requirements to those for similar Navy testing and training 
exercises, which were subject to notice and public comment. Additional 
public comment for the current LOA modification would not be likely to 
provide additional relevant information for consideration. The LOA 
changes are responsive to the Navy's aforementioned explanation for why 
the requirements would not be feasible, and we have concluded that 
explanation is reasonable.

Description of the Modified LOA

    Based on the foregoing information, NMFS has modified the LOA to 
remove the requirements in section 7.f.1 of the original LOA. The 
modified LOA is identical in every other way to the original LOA. It 
covers the same training and testing activities (categorized as 
military readiness activities) from (1) the use of at-surface or near-
surface explosive detonations in the PMSR Study Area, as well as (2) 
launch events from SNI as described in the 2022 final rule (87 FR 
40888; July 8, 2022) and the original LOA. The required mitigation and 
mitigation-related monitoring, as well as the total estimated and 
authorized numbers of takes for the issuance of the regulations and the 
original LOA, respectively, remain the same. NMFS refers the reader to 
relevant documents related to issuance of the original LOA, including 
the Navy's application, the proposed rule and request for comments (86 
FR 37790; July 16, 2021) and final rule (87 FR 40888; July 8, 2022), 
available at https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-testing-and-training-activities-point-mugu-sea-range for more detailed description of the project activities.
    The reporting requirements in this modified LOA are consistent with 
the requirements in other Navy LOAs for similar activities and are 
feasible for Navy implementation.
    NMFS has modified the original LOA to remove section 7.f.1 and 
renumber section 7.f.2 to section 7.f.1. Modifying this LOA to remove 
the aforementioned reporting requirements is consistent with 50 CFR 
218.17 (b). A copy of the modified LOA can be found at https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-testing-and-training-activities-point-mugu-sea-range.

Endangered Species Act (ESA)

    Section 7(a)(2) of the ESA (16 U.S.C. 1531 et seq.) requires that 
each Federal agency ensure 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 incidental take authorizations, NMFS 
consults internally whenever we propose to authorize take for 
endangered or threatened species.
    The effects of this Federal action were adequately analyzed in 
NMFS' Endangered Species Act Section 7 Biological Opinion on (1) U.S. 
Navy Point Mugu Sea Range (PMSR) Testing and Training Activities; and 
(2) the National Marine Fisheries Service's Promulgation of Regulations 
and Issuance of a Letter of Authorization Pursuant to the Marine Mammal 
Protection Act for the U.S. Navy to ``Take'' Marine Mammals Incidental 
to PMSR Activities from February 2022 through February 2029 (2022), 
which concluded that the take NMFS authorizes through the initial LOA 
would not jeopardize the continued existence of any endangered or 
threatened species.

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 actions and alternatives with respect 
to potential impacts on the human environment. NMFS participated as a 
cooperating agency on the 2022 PMSR Final Environmental Impact 
Statement (FEIS)/Overseas Environmental Impact Statement (OEIS), which 
was published January 2022, and is available at https://pmsr-eis.com/. 
NOAA/NMFS adopted the 2022 PMSR FEIS/OEIS and prepared a Record of 
Decision. https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-testing-and-training-activities-point-mugu-sea-range. The modification of the initial LOA falls does not have any 
additional impact on the human environment beyond the impacts of the 
proposed actions considered in the FEIS/OEIS.

    Dated: June 1, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-12045 Filed 6-5-23; 8:45 am]
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