# 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.
**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.
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.