Notice2023-12045
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
Primary source
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Published
June 6, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
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.
Full Text
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<title>Federal Register, Volume 88 Issue 108 (Tuesday, June 6, 2023)</title>
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[Federal Register Volume 88, Number 108 (Tuesday, June 6, 2023)]
[Notices]
[Pages 37035-37036]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-testing-and-training-activities-point-mugu-sea-range">https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-testing-and-training-activities-point-mugu-sea-range</a>. 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 <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-testing-and-training-activities-point-mugu-sea-range">https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-testing-and-training-activities-point-mugu-sea-range</a> 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 <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-testing-and-training-activities-point-mugu-sea-range">https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-testing-and-training-activities-point-mugu-sea-range</a>.
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 <a href="https://pmsr-eis.com/">https://pmsr-eis.com/</a>.
NOAA/NMFS adopted the 2022 PMSR FEIS/OEIS and prepared a Record of
Decision. <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-testing-and-training-activities-point-mugu-sea-range">https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-testing-and-training-activities-point-mugu-sea-range</a>. 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]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on June 6, 2023.
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