Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico, 71338-71341 [2023-22761]

Download as PDF 71338 Federal Register / Vol. 88, No. 198 / Monday, October 16, 2023 / Notices Dated: October 11, 2023. Jennifer M. Wallace, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 2023–22788 Filed 10–13–23; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [RTID 0648–XD302] Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of issuance of Letter of Authorization. AGENCY: In accordance with the Marine Mammal Protection Act (MMPA), as amended, its implementing regulations, and NMFS’ MMPA Regulations for Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico, notification is hereby given that a Letter of Authorization (LOA) has been issued to bp Exploration and Production Inc. (bp) for the take of marine mammals incidental to geophysical survey activity in the Gulf of Mexico. DATES: The LOA is effective from November 1, 2023, through July 31, 2024. SUMMARY: The LOA, LOA request, and supporting documentation are available online at: https:// www.fisheries.noaa.gov/action/ incidental-take-authorization-oil-andgas-industry-geophysical-surveyactivity-gulf-mexico. In case of problems accessing these documents, please call the contact listed below (see FOR FURTHER INFORMATION CONTACT). FOR FURTHER INFORMATION CONTACT: Jenna Harlacher, Office of Protected Resources, NMFS, (301) 427–8401. SUPPLEMENTARY INFORMATION: ddrumheller on DSK120RN23PROD with NOTICES1 ADDRESSES: Background Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified VerDate Sep<11>2014 17:03 Oct 13, 2023 Jkt 262001 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 authorization is provided to the public for review. An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined ‘‘negligible impact’’ in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival. Except with respect to certain activities not pertinent here, the MMPA defines ‘‘harassment’’ as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment). On January 19, 2021, we issued a final rule with regulations to govern the unintentional taking of marine mammals incidental to geophysical survey activities conducted by oil and gas industry operators, and those persons authorized to conduct activities on their behalf (collectively ‘‘industry operators’’), in U.S. waters of the Gulf of Mexico (GOM) over the course of 5 years (86 FR 5322, January 19, 2021). The rule was based on our findings that the total taking from the specified activities over the 5-year period will have a negligible impact on the affected species or stock(s) of marine mammals and will not have an unmitigable adverse impact on the availability of those species or stocks for subsistence uses. The rule became effective on April 19, 2021. Our regulations at 50 CFR 217.180 et seq. allow for the issuance of LOAs to industry operators for the incidental take of marine mammals during geophysical survey activities and prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat (often referred to as PO 00000 Frm 00006 Fmt 4703 Sfmt 4703 mitigation), as well as requirements pertaining to the monitoring and reporting of such taking. Under 50 CFR 217.186(e), issuance of an 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 and a determination that the amount of take authorized under the LOA is of no more than small numbers. Summary of Request and Analysis Bp plans to conduct a Zero Offset vertical seismic profile (VSP) survey within Mississippi Canyon Block 956. See section 1.1 of bp’s application for a map. Bp plans to use a 12-element, 2,400 cubic inch (in3) airgun array. Approximate water depths of the survey area is 2,000 meters (m). Please see bp’s application for additional detail. Consistent with the preamble to the final rule, the survey effort proposed by bp in its LOA request was used to develop LOA-specific take estimates based on the acoustic exposure modeling results described in the preamble (86 FR 5322, 5398, January 19, 2021). In order to generate the appropriate take number for authorization, the following information was considered: (1) survey type; (2) location (by modeling zone 1); (3) number of days; and (4) season.2 The acoustic exposure modeling performed in support of the rule provides 24-hour exposure estimates for each species, specific to each modeled survey type in each zone and season. No VSP surveys were included in the modeled survey types, and use of existing proxies (i.e., 2D, 3D NAZ, 3D WAZ, Coil) is generally conservative for use in evaluation of these survey types. Summary descriptions of these modeled survey geometries are available in the preamble to the proposed rule (83 FR 29212, 29220, June 22, 2018). Coil was selected as the best available proxy survey type for bp’s VSP survey because the spatial coverage of the planned surveys is most similar to the coil survey pattern. For the planned survey, the seismic source array will be deployed from a drilling rig at or near the borehole, with the seismic receivers (i.e., geophones) deployed in the borehole on wireline at specified depth intervals. The zero offset VSP will be stationary. The coil survey pattern in the model was assumed to cover approximately 144 square kilometers 1 For purposes of acoustic exposure modeling, the GOM was divided into seven zones. Zone 1 is not included in the geographic scope of the rule. 2 For purposes of acoustic exposure modeling, seasons include winter (December–March) and summer (April–November). E:\FR\FM\16OCN1.SGM 16OCN1 ddrumheller on DSK120RN23PROD with NOTICES1 Federal Register / Vol. 88, No. 198 / Monday, October 16, 2023 / Notices (km2) per day (compared with approximately 795 km2, 199 km2, and 845 km2 per day for the 2D, 3D NAZ, and 3D WAZ survey patterns, respectively). Among the different parameters of the modeled survey patterns (e.g., area covered, line spacing, number of sources, shot interval, total simulated pulses), NMFS considers area covered per day to be most influential on daily modeled exposures exceeding Level B harassment criteria. Because bp’s planned survey is expected to cover no additional area as a stationary source, the coil proxy is most representative of the effort planned by bp in terms of predicted Level B harassment. In addition, all available acoustic exposure modeling results assume use of a 72-element, 8,000 in3 array. Thus, estimated take numbers for this LOA are considered conservative due to the differences in both the airgun array (12 elements, 2,400 in3) and daily survey area planned by bp (as mentioned above), as compared to those modeled for the rule. The survey is planned to occur for a maximum of 2 days in Zone 7. The survey may occur in either season. Therefore, the take estimates for each species are based on the season that has the greater value for the species (i.e., winter or summer). Additionally, for some species, take estimates based solely on the modeling yielded results that are not realistically likely to occur when considered in light of other relevant information available during the rulemaking process regarding marine mammal occurrence in the GOM. The approach used in the acoustic exposure modeling, in which seven modeling zones were defined over the U.S. GOM, necessarily averages finescale information about marine mammal distribution over the large area of each modeling zone. This can result in unrealistic projections regarding the likelihood of encountering particularly rare species and/or species not expected to occur outside particular habitats. Thus, although the modeling conducted for the rule is a natural starting point for estimating take, our rule acknowledged that other information could be considered (see, e.g., 86 FR 5322, 5442 (January 19, 2021), discussing the need to provide flexibility and make efficient use of previous public and agency review of other information and identifying that additional public review is not necessary unless the model or inputs used differ substantively from those that were previously reviewed by NMFS and the public). For this survey, NMFS has other relevant information reviewed VerDate Sep<11>2014 17:03 Oct 13, 2023 Jkt 262001 during the rulemaking that indicates use of the acoustic exposure modeling to generate a take estimate for killer whales produces results inconsistent with what is known regarding their occurrence in the GOM. Accordingly, we have adjusted the calculated take estimates for that species as described below. Killer whales are the most rarely encountered species in the GOM, typically in deep waters of the central GOM (Roberts et al., 2015; Maze-Foley and Mullin, 2006). As discussed in the final rule, the density models produced by Roberts et al. (2016) provide the best available scientific information regarding predicted density patterns of cetaceans in the U.S. GOM. The predictions represent the output of models derived from multi-year observations and associated environmental parameters that incorporate corrections for detection bias. However, in the case of killer whales, the model is informed by few data, as indicated by the coefficient of variation associated with the abundance predicted by the model (0.41, the second-highest of any GOM species model; Roberts et al., 2016). The model’s authors noted the expected non-uniform distribution of this rarelyencountered species (as discussed above) and expressed that, due to the limited data available to inform the model, it ‘‘should be viewed cautiously’’ (Roberts et al., 2015). NOAA surveys in the GOM from 1992–2009 reported only 16 sightings of killer whales, with an additional 3 encounters during more recent survey effort from 2017–18 (Waring et al., 2013; https://www.boem.gov/gommapps). Two other species were also observed on less than 20 occasions during the 1992–2009 NOAA surveys (Fraser’s dolphin and false killer whale 3). However, observational data collected by protected species observers (PSOs) on industry geophysical survey vessels from 2002–2015 distinguish the killer whale in terms of rarity. During this period, killer whales were encountered on only 10 occasions, whereas the next most rarely encountered species (Fraser’s dolphin) was recorded on 69 occasions (Barkaszi and Kelly, 2019). The false killer whale and pygmy killer whale were the next most rarely encountered species, with 110 records each. The killer whale was the species with the lowest detection frequency during each period over which PSO data were synthesized (2002–2008 and 2009– 2015). This information qualitatively 3 However, note that these species have been observed over a greater range of water depths in the GOM than have killer whales. PO 00000 Frm 00007 Fmt 4703 Sfmt 4703 71339 informed our rulemaking process, as discussed at 86 FR 5322, 5334 (January 19, 2021), and similarly informs our analysis here. The rarity of encounter during seismic surveys is not likely to be the product of high bias on the probability of detection. Unlike certain cryptic species with high detection bias, such as Kogia spp. or beaked whales, or deep-diving species with high availability bias, such as beaked whales or sperm whales, killer whales are typically available for detection when present and are easily observed. Roberts et al. (2015) stated that availability is not a major factor affecting detectability of killer whales from shipboard surveys, as they are not a particularly long-diving species. Baird et al. (2005) reported that mean dive durations for 41 fish-eating killer whales for dives greater than or equal to 1 minute in duration was 2.3–2.4 minutes, and Hooker et al. (2012) reported that killer whales spent 78 percent of their time at depths between 0–10 m. Similarly, Kvadsheim et al. (2012) reported data from a study of 4 killer whales, noting that the whales performed 20 times as many dives to 1– 30 m depth than to deeper waters, with an average depth during those most common dives of approximately 3 m. In summary, killer whales are the most rarely encountered species in the GOM and typically occur only in particularly deep water. This survey would take place in deep waters that would overlap with depths in which killer whales typically occur. While this information is reflected through the density model informing the acoustic exposure modeling results, there is relatively high uncertainty associated with the model for this species, and the acoustic exposure modeling applies mean distribution data over areas where the species is in fact less likely to occur. In addition, as noted above in relation to the general take estimation methodology, the assumed proxy source (72-element, 8,000-in3 array) results in a significant overestimate of the actual potential for take to occur. NMFS’ determination in reflection of the information discussed above, which informed the final rule, is that use of the generic acoustic exposure modeling results for killer whales would result in estimated take numbers that are inconsistent with the assumptions made in the rule regarding expected killer whale take (86 FR 5322, 5403, January 19, 2021). In past authorizations, NMFS has often addressed situations involving the low likelihood of encountering a rare species, such as killer whales, in the GOM through authorization of take of a E:\FR\FM\16OCN1.SGM 16OCN1 71340 Federal Register / Vol. 88, No. 198 / Monday, October 16, 2023 / Notices single group of average size (i.e., representing a single potential encounter). See 83 FR 63268, December 7, 2018. See also 86 FR 29090, May 28, 2021; 85 FR 55645, September 9, 2020. For bp’s survey, use of the exposure modeling produces an estimate of two killer whale exposures. Given the foregoing discussion, it is unlikely that any killer whales would be encountered during this 2 day survey, and accordingly, no take of killer whales is authorized through the bp LOA. In addition, in this case, use of the exposure modeling produces results that are smaller than average GOM group sizes for multiple species (Maze-Foley and Mullin, 2006). NMFS’ typical practice in such a situation is to increase exposure estimates to the assumed average group size for a species in order to ensure that, if the species is encountered, exposures will not exceed the authorized take number. However, other relevant considerations here lead to a determination that increasing the estimated exposures to average group sizes would likely lead to an overestimate of actual potential take. In this circumstance, the very short survey duration (maximum of 2 days) and relatively small Level B harassment isopleths produced through use of the 12-element, 2,400-in3 airgun array (compared with the modeled 72element, 8,000 in3 array) mean that it is unlikely that certain species would be encountered at all, much less that the encounter would result in exposure of a greater number of individuals than is estimated through use of the exposure modeling results. As a result, in this case NMFS has not increased the estimated exposure values to assumed average group sizes in authorizing take. Based on the results of our analysis, NMFS has determined that the level of taking authorized through the LOA is consistent with the findings made for the total taking allowable under the regulations for the affected species or stocks of marine mammals. See Table 1 in this notice and Table 9 of the rule (86 FR 5322, January 19, 2021). Small Numbers Determination Under the GOM rule, NMFS may not authorize incidental take of marine mammals in an LOA if it will exceed ‘‘small numbers.’’ In short, when an acceptable estimate of the individual marine mammals taken is available, if the estimated number of individual animals taken is up to, but not greater than, one-third of the best available abundance estimate, NMFS will determine that the numbers of marine mammals taken of a species or stock are small. For more information please see NMFS’ discussion of the MMPA’s small numbers requirement provided in the final rule (86 FR 5322, 5438, January 19, 2021). The take numbers for authorization, which are determined as described above, are used by NMFS in making the necessary small numbers determinations, through comparison with the best available abundance estimates (see discussion at 86 FR 5322, 5391, January 19, 2021). For this comparison, NMFS’ approach is to use the maximum theoretical population, determined through review of current stock assessment reports (SAR; https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/marinemammal-stock-assessments) and modelpredicted abundance information (https://seamap.env.duke.edu/models/ Duke/GOM/). For the latter, for taxa where a density surface model could be produced, we use the maximum mean seasonal (i.e., 3-month) abundance prediction for purposes of comparison as a precautionary smoothing of monthto-month fluctuations and in consideration of a corresponding lack of data in the literature regarding seasonal distribution of marine mammals in the GOM. Information supporting the small numbers determinations is provided in Table 1. TABLE 1—TAKE ANALYSIS Authorized take 1 Species 40 Rice’s whale ................................................................................................................................. Sperm whale ................................................................................................................................ Kogia spp. .................................................................................................................................... Beaked whales ............................................................................................................................ Rough-toothed dolphin ................................................................................................................ Bottlenose dolphin ....................................................................................................................... Clymene dolphin .......................................................................................................................... Atlantic spotted dolphin ............................................................................................................... Pantropical spotted dolphin ......................................................................................................... Spinner dolphin ............................................................................................................................ Striped dolphin ............................................................................................................................. Fraser’s dolphin ........................................................................................................................... Risso’s dolphin ............................................................................................................................. Melon-headed whale ................................................................................................................... Pygmy killer whale ....................................................................................................................... False killer whale ......................................................................................................................... Killer whale .................................................................................................................................. Short-finned pilot whale ............................................................................................................... 11 36 94 17 0 4 46 0 456 4 11 4 24 48 47 4 30 4 14 4 16 40 42 Abundance 2 51 2,207 4,373 3,768 4,853 176,108 11,895 74,785 102,361 25,114 5,229 1,665 3,764 7,003 2,126 3,204 267 1,981 Percent abundance n/a 0.1 0.1 0.3 0.1 n/a 0.1 n/a 0.1 0 0.1 0.1 0.1 0.1 0.2 0.1 n/a 0 1 Scalar ratios were not applied in this case due to brief survey duration. abundance estimate. For most taxa, the best abundance estimate for purposes of comparison with take estimates is considered here to be the model-predicted abundance (Roberts et al., 2016). For those taxa where a density surface model predicting abundance by month was produced, the maximum mean seasonal abundance was used. For those taxa where abundance is not predicted by month, only mean annual abundance is available. For Rice’s whale and the killer whale, the larger estimated SAR abundance estimate is used. 3 Includes 1 take by Level A harassment and 5 takes by Level B harassment. 4 Modeled exposure estimate less than assumed average group size (Maze-Foley and Mullin, 2006). ddrumheller on DSK120RN23PROD with NOTICES1 2 Best Based on the analysis contained herein of bp’s proposed survey activity described in its LOA application and the anticipated take of marine VerDate Sep<11>2014 17:03 Oct 13, 2023 Jkt 262001 mammals, NMFS finds that small numbers of marine mammals will be taken relative to the affected species or PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 stock sizes and therefore is of no more than small numbers. E:\FR\FM\16OCN1.SGM 16OCN1 Federal Register / Vol. 88, No. 198 / Monday, October 16, 2023 / Notices Authorization NMFS has determined that the level of taking for this LOA request is consistent with the findings made for the total taking allowable under the incidental take regulations and that the amount of take authorized under the LOA is of no more than small numbers. Accordingly, we have issued an LOA to bp authorizing the take of marine mammals incidental to its geophysical survey activity, as described above. Dated: October 10, 2023. Kimberly Damon-Randall, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2023–22761 Filed 10–13–23; 8:45 am] BILLING CODE 3510–22–P COMMODITY FUTURES TRADING COMMISSION Sunshine Act Meetings 9:00 a.m. EDT, Friday, October 20, 2023. PLACE: Virtual meeting. STATUS: Closed. MATTERS TO BE CONSIDERED: Enforcement matters. In the event that the time, date, or location of this meeting changes, an announcement of the change, along with the new time, date, and/or place of the meeting will be posted on the Commission’s website at https://www.cftc.gov/. CONTACT PERSON FOR MORE INFORMATION: Christopher Kirkpatrick, 202–418–5964. Authority: 5 U.S.C. 552b. TIME AND DATE: Dated: October 11, 2023. Christopher Kirkpatrick, Secretary of the Commission. [FR Doc. 2023–22837 Filed 10–12–23; 11:15 am] BILLING CODE 6351–01–P COMMODITY FUTURES TRADING COMMISSION Agency Information Collection Activities: Notice of Intent To Extend Collection 3038–0062: Off-Exchange Foreign Currency Transactions Commodity Futures Trading Commission. ACTION: Notice. ddrumheller on DSK120RN23PROD with NOTICES1 AGENCY: The Commodity Futures Trading Commission (‘‘CFTC’’ or ‘‘Commission’’) is announcing an opportunity for public comment on the proposed renewal of a collection of certain information by the agency. Under the Paperwork Reduction Act (‘‘PRA’’), Federal agencies are required SUMMARY: VerDate Sep<11>2014 17:03 Oct 13, 2023 Jkt 262001 to publish notice in the Federal Register concerning each proposed collection of information, including a proposed extension of an existing collection of information, and to allow 60 days for public comment. This notice solicits comments on the collection of information provided for certain of the Commission’s regulations under the Commodity Exchange Act (‘‘CEA’’) relating to off-exchange foreign currency transactions. DATES: Comments must be submitted on or before December 15, 2023. ADDRESSES: You may submit comments, identified by ‘‘OMB Control No. 3038– 0062’’ by any of the following methods: • The Agency’s website, at https:// comments.cftc.gov/. Follow the instructions for submitting comments through the website. • Mail: Christopher Kirkpatrick, Secretary of the Commission, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW, Washington, DC 20581. • Hand Delivery/Courier: Same as ‘‘Mail’’ above. Please submit your comments using only one method. All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to https://www.cftc.gov. FOR FURTHER INFORMATION CONTACT: Philip Newsom, Special Counsel, Market Participants Division, Commodity Futures Trading Commission, (202) 418–5301, or pnewsom@cftc.gov, and refer to OMB Control No. 3038–0062. SUPPLEMENTARY INFORMATION: Under the PRA, 44 U.S.C. 3501 et seq., Federal agencies must obtain approval from the Office of Management and Budget (‘‘OMB’’) for each collection of information they conduct or sponsor. ‘‘Collection of Information’’ is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3 and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA, 44 U.S.C. 3506(c)(2)(A), requires Federal agencies to provide a 60-day notice in the Federal Register concerning each proposed collection of information, including each proposed extension of an existing collection of information, before submitting the collection to OMB for approval. To comply with this requirement, the CFTC is publishing notice of the proposed extension of the existing collections of information listed below. An agency may not conduct or sponsor, and a person is not required to PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 71341 respond to, a collection of information unless it displays a currently valid OMB control number.1 Title: Off-Exchange Foreign Currency Transactions (OMB Control No. 3038– 0062). This is a request for an extension of a currently approved information collection. Abstract: Part 5 of the Commission’s regulations under the CEA establishes rules applicable to retail foreign exchange dealers (‘‘RFEDs’’), futures commission merchants (‘‘FCMs’’), introducing brokers (‘‘IBs’’), commodity trading advisors (‘‘CTAs’’), and commodity pool operators (‘‘CPOs’’) engaged in the offer and sale of offexchange forex contracts to retail customers. Specifically: • Regulation 5.5 requires RFEDs, FCMs, and IBs to distribute risk disclosure statements to new retail forex customers. • Regulation 5.6 requires RFEDs and FCMs to report any failures to maintain the minimum capital required by Commission regulations. • Regulation 5.8 requires RFEDs and FCMs to calculate their total retail forex obligation. • Regulation 5.10 requires RFEDs to maintain and preserve certain risk assessment documentation. • Regulation 5.11(a)(1) requires RFEDs to submit certain risk assessment documentation to the Commission within 60 days of the effective date of their registration. • Regulation 5.11(a)(2) requires RFEDs to submit certain financial documentation to the Commission within 105 calendar days of the end of each fiscal year. RFEDs must also submit additional information, if requested, regarding affiliates’ financial impact on an RFED’s organizational structure. • Regulation 5.12(a) requires RFED applicants to submit a Form 1–FR–FCM concurrently with their registration application. • Regulation 5.12(b) requires registered RFEDs to file a Form 1–FR– FCM on a monthly and annual basis. • Regulation 5.12(g) states that, in the event that an RFED cannot file its Form 1–FR–FCM for any period within the time specified in Regulation 5.12(b), the RFED may file an application for an extension of time with its self-regulatory organization. • Regulation 5.13(a) requires RFEDs and FCMs to provide monthly account statements to their customers. • Regulation 5.13(b) requires RFEDs and FCMs to provide confirmation 1 44 U.S.C. 3512, 5 CFR 1320.5(b)(2)(i) and 1320.8(b)(3)(vi). E:\FR\FM\16OCN1.SGM 16OCN1

Agencies

[Federal Register Volume 88, Number 198 (Monday, October 16, 2023)]
[Notices]
[Pages 71338-71341]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22761]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD302]

Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to Geophysical Surveys Related to Oil and Gas Activities in
the Gulf of Mexico

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

ACTION: Notice of issuance of Letter of Authorization.

-----------------------------------------------------------------------

SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA), as
amended, its implementing regulations, and NMFS' MMPA Regulations for
Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil
and Gas Activities in the Gulf of Mexico, notification is hereby given
that a Letter of Authorization (LOA) has been issued to bp Exploration
and Production Inc. (bp) for the take of marine mammals incidental to
geophysical survey activity in the Gulf of Mexico.

DATES: The LOA is effective from November 1, 2023, through July 31,
2024.

ADDRESSES: The LOA, LOA request, and supporting documentation are
available online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico. In case of problems accessing these documents, please call
the contact listed below (see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Jenna Harlacher, Office of Protected
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce to allow, upon request, the
incidental, but not intentional, taking of small numbers 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 authorization is
provided to the public for review.
An authorization for incidental takings shall be granted if NMFS
finds that the taking will have a negligible impact on the species or
stock(s), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (where
relevant), and if the permissible methods of taking and requirements
pertaining to the mitigation, monitoring and reporting of such takings
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103
as an impact resulting from the specified activity that cannot be
reasonably expected to, and is not reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as: any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild (Level A harassment); or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).
On January 19, 2021, we issued a final rule with regulations to
govern the unintentional taking of marine mammals incidental to
geophysical survey activities conducted by oil and gas industry
operators, and those persons authorized to conduct activities on their
behalf (collectively ``industry operators''), in U.S. waters of the
Gulf of Mexico (GOM) over the course of 5 years (86 FR 5322, January
19, 2021). The rule was based on our findings that the total taking
from the specified activities over the 5-year period will have a
negligible impact on the affected species or stock(s) of marine mammals
and will not have an unmitigable adverse impact on the availability of
those species or stocks for subsistence uses. The rule became effective
on April 19, 2021.
Our regulations at 50 CFR 217.180 et seq. allow for the issuance of
LOAs to industry operators for the incidental take of marine mammals
during geophysical survey activities and prescribe the permissible
methods of taking and other means of effecting the least practicable
adverse impact on marine mammal species or stocks and their habitat
(often referred to as mitigation), as well as requirements pertaining
to the monitoring and reporting of such taking. Under 50 CFR
217.186(e), issuance of an 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 and a determination that
the amount of take authorized under the LOA is of no more than small
numbers.

Summary of Request and Analysis

Bp plans to conduct a Zero Offset vertical seismic profile (VSP)
survey within Mississippi Canyon Block 956. See section 1.1 of bp's
application for a map. Bp plans to use a 12-element, 2,400 cubic inch
(in\3\) airgun array. Approximate water depths of the survey area is
2,000 meters (m). Please see bp's application for additional detail.
Consistent with the preamble to the final rule, the survey effort
proposed by bp in its LOA request was used to develop LOA-specific take
estimates based on the acoustic exposure modeling results described in
the preamble (86 FR 5322, 5398, January 19, 2021). In order to generate
the appropriate take number for authorization, the following
information was considered: (1) survey type; (2) location (by modeling
zone \1\); (3) number of days; and (4) season.\2\ The acoustic exposure
modeling performed in support of the rule provides 24-hour exposure
estimates for each species, specific to each modeled survey type in
each zone and season.
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\1\ For purposes of acoustic exposure modeling, the GOM was
divided into seven zones. Zone 1 is not included in the geographic
scope of the rule.
\2\ For purposes of acoustic exposure modeling, seasons include
winter (December-March) and summer (April-November).
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No VSP surveys were included in the modeled survey types, and use
of existing proxies (i.e., 2D, 3D NAZ, 3D WAZ, Coil) is generally
conservative for use in evaluation of these survey types. Summary
descriptions of these modeled survey geometries are available in the
preamble to the proposed rule (83 FR 29212, 29220, June 22, 2018). Coil
was selected as the best available proxy survey type for bp's VSP
survey because the spatial coverage of the planned surveys is most
similar to the coil survey pattern. For the planned survey, the seismic
source array will be deployed from a drilling rig at or near the
borehole, with the seismic receivers (i.e., geophones) deployed in the
borehole on wireline at specified depth intervals. The zero offset VSP
will be stationary. The coil survey pattern in the model was assumed to
cover approximately 144 square kilometers

[[Page 71339]]

(km\2\) per day (compared with approximately 795 km\2\, 199 km\2\, and
845 km\2\ per day for the 2D, 3D NAZ, and 3D WAZ survey patterns,
respectively). Among the different parameters of the modeled survey
patterns (e.g., area covered, line spacing, number of sources, shot
interval, total simulated pulses), NMFS considers area covered per day
to be most influential on daily modeled exposures exceeding Level B
harassment criteria. Because bp's planned survey is expected to cover
no additional area as a stationary source, the coil proxy is most
representative of the effort planned by bp in terms of predicted Level
B harassment.
In addition, all available acoustic exposure modeling results
assume use of a 72-element, 8,000 in\3\ array. Thus, estimated take
numbers for this LOA are considered conservative due to the differences
in both the airgun array (12 elements, 2,400 in\3\) and daily survey
area planned by bp (as mentioned above), as compared to those modeled
for the rule.
The survey is planned to occur for a maximum of 2 days in Zone 7.
The survey may occur in either season. Therefore, the take estimates
for each species are based on the season that has the greater value for
the species (i.e., winter or summer).
Additionally, for some species, take estimates based solely on the
modeling yielded results that are not realistically likely to occur
when considered in light of other relevant information available during
the rulemaking process regarding marine mammal occurrence in the GOM.
The approach used in the acoustic exposure modeling, in which seven
modeling zones were defined over the U.S. GOM, necessarily averages
fine-scale information about marine mammal distribution over the large
area of each modeling zone. This can result in unrealistic projections
regarding the likelihood of encountering particularly rare species and/
or species not expected to occur outside particular habitats. Thus,
although the modeling conducted for the rule is a natural starting
point for estimating take, our rule acknowledged that other information
could be considered (see, e.g., 86 FR 5322, 5442 (January 19, 2021),
discussing the need to provide flexibility and make efficient use of
previous public and agency review of other information and identifying
that additional public review is not necessary unless the model or
inputs used differ substantively from those that were previously
reviewed by NMFS and the public). For this survey, NMFS has other
relevant information reviewed during the rulemaking that indicates use
of the acoustic exposure modeling to generate a take estimate for
killer whales produces results inconsistent with what is known
regarding their occurrence in the GOM. Accordingly, we have adjusted
the calculated take estimates for that species as described below.
Killer whales are the most rarely encountered species in the GOM,
typically in deep waters of the central GOM (Roberts et al., 2015;
Maze-Foley and Mullin, 2006). As discussed in the final rule, the
density models produced by Roberts et al. (2016) provide the best
available scientific information regarding predicted density patterns
of cetaceans in the U.S. GOM. The predictions represent the output of
models derived from multi-year observations and associated
environmental parameters that incorporate corrections for detection
bias. However, in the case of killer whales, the model is informed by
few data, as indicated by the coefficient of variation associated with
the abundance predicted by the model (0.41, the second-highest of any
GOM species model; Roberts et al., 2016). The model's authors noted the
expected non-uniform distribution of this rarely-encountered species
(as discussed above) and expressed that, due to the limited data
available to inform the model, it ``should be viewed cautiously''
(Roberts et al., 2015).
NOAA surveys in the GOM from 1992-2009 reported only 16 sightings
of killer whales, with an additional 3 encounters during more recent
survey effort from 2017-18 (Waring et al., 2013; https://www.boem.gov/gommapps). Two other species were also observed on less than 20
occasions during the 1992-2009 NOAA surveys (Fraser's dolphin and false
killer whale \3\). However, observational data collected by protected
species observers (PSOs) on industry geophysical survey vessels from
2002-2015 distinguish the killer whale in terms of rarity. During this
period, killer whales were encountered on only 10 occasions, whereas
the next most rarely encountered species (Fraser's dolphin) was
recorded on 69 occasions (Barkaszi and Kelly, 2019). The false killer
whale and pygmy killer whale were the next most rarely encountered
species, with 110 records each. The killer whale was the species with
the lowest detection frequency during each period over which PSO data
were synthesized (2002-2008 and 2009-2015). This information
qualitatively informed our rulemaking process, as discussed at 86 FR
5322, 5334 (January 19, 2021), and similarly informs our analysis here.
---------------------------------------------------------------------------

\3\ However, note that these species have been observed over a
greater range of water depths in the GOM than have killer whales.
---------------------------------------------------------------------------

The rarity of encounter during seismic surveys is not likely to be
the product of high bias on the probability of detection. Unlike
certain cryptic species with high detection bias, such as Kogia spp. or
beaked whales, or deep-diving species with high availability bias, such
as beaked whales or sperm whales, killer whales are typically available
for detection when present and are easily observed. Roberts et al.
(2015) stated that availability is not a major factor affecting
detectability of killer whales from shipboard surveys, as they are not
a particularly long-diving species. Baird et al. (2005) reported that
mean dive durations for 41 fish-eating killer whales for dives greater
than or equal to 1 minute in duration was 2.3-2.4 minutes, and Hooker
et al. (2012) reported that killer whales spent 78 percent of their
time at depths between 0-10 m. Similarly, Kvadsheim et al. (2012)
reported data from a study of 4 killer whales, noting that the whales
performed 20 times as many dives to 1-30 m depth than to deeper waters,
with an average depth during those most common dives of approximately 3
m.
In summary, killer whales are the most rarely encountered species
in the GOM and typically occur only in particularly deep water. This
survey would take place in deep waters that would overlap with depths
in which killer whales typically occur. While this information is
reflected through the density model informing the acoustic exposure
modeling results, there is relatively high uncertainty associated with
the model for this species, and the acoustic exposure modeling applies
mean distribution data over areas where the species is in fact less
likely to occur. In addition, as noted above in relation to the general
take estimation methodology, the assumed proxy source (72-element,
8,000-in\3\ array) results in a significant overestimate of the actual
potential for take to occur. NMFS' determination in reflection of the
information discussed above, which informed the final rule, is that use
of the generic acoustic exposure modeling results for killer whales
would result in estimated take numbers that are inconsistent with the
assumptions made in the rule regarding expected killer whale take (86
FR 5322, 5403, January 19, 2021).
In past authorizations, NMFS has often addressed situations
involving the low likelihood of encountering a rare species, such as
killer whales, in the GOM through authorization of take of a

[[Page 71340]]

single group of average size (i.e., representing a single potential
encounter). See 83 FR 63268, December 7, 2018. See also 86 FR 29090,
May 28, 2021; 85 FR 55645, September 9, 2020. For bp's survey, use of
the exposure modeling produces an estimate of two killer whale
exposures. Given the foregoing discussion, it is unlikely that any
killer whales would be encountered during this 2 day survey, and
accordingly, no take of killer whales is authorized through the bp LOA.
In addition, in this case, use of the exposure modeling produces
results that are smaller than average GOM group sizes for multiple
species (Maze-Foley and Mullin, 2006). NMFS' typical practice in such a
situation is to increase exposure estimates to the assumed average
group size for a species in order to ensure that, if the species is
encountered, exposures will not exceed the authorized take number.
However, other relevant considerations here lead to a determination
that increasing the estimated exposures to average group sizes would
likely lead to an overestimate of actual potential take. In this
circumstance, the very short survey duration (maximum of 2 days) and
relatively small Level B harassment isopleths produced through use of
the 12-element, 2,400-in\3\ airgun array (compared with the modeled 72-
element, 8,000 in\3\ array) mean that it is unlikely that certain
species would be encountered at all, much less that the encounter would
result in exposure of a greater number of individuals than is estimated
through use of the exposure modeling results. As a result, in this case
NMFS has not increased the estimated exposure values to assumed average
group sizes in authorizing take.
Based on the results of our analysis, NMFS has determined that the
level of taking authorized through the LOA is consistent with the
findings made for the total taking allowable under the regulations for
the affected species or stocks of marine mammals. See Table 1 in this
notice and Table 9 of the rule (86 FR 5322, January 19, 2021).

Small Numbers Determination

Under the GOM rule, NMFS may not authorize incidental take of
marine mammals in an LOA if it will exceed ``small numbers.'' In short,
when an acceptable estimate of the individual marine mammals taken is
available, if the estimated number of individual animals taken is up
to, but not greater than, one-third of the best available abundance
estimate, NMFS will determine that the numbers of marine mammals taken
of a species or stock are small. For more information please see NMFS'
discussion of the MMPA's small numbers requirement provided in the
final rule (86 FR 5322, 5438, January 19, 2021).
The take numbers for authorization, which are determined as
described above, are used by NMFS in making the necessary small numbers
determinations, through comparison with the best available abundance
estimates (see discussion at 86 FR 5322, 5391, January 19, 2021). For
this comparison, NMFS' approach is to use the maximum theoretical
population, determined through review of current stock assessment
reports (SAR; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and model-predicted
abundance information (https://seamap.env.duke.edu/models/Duke/GOM/).
For the latter, for taxa where a density surface model could be
produced, we use the maximum mean seasonal (i.e., 3-month) abundance
prediction for purposes of comparison as a precautionary smoothing of
month-to-month fluctuations and in consideration of a corresponding
lack of data in the literature regarding seasonal distribution of
marine mammals in the GOM. Information supporting the small numbers
determinations is provided in Table 1.

Table 1--Take Analysis
----------------------------------------------------------------------------------------------------------------
Authorized Percent
Species take \1\ Abundance \2\ abundance
----------------------------------------------------------------------------------------------------------------
Rice's whale.................................................... \4\ 0 51 n/a
Sperm whale..................................................... 11 2,207 0.1
Kogia spp....................................................... \3\ 6 4,373 0.1
Beaked whales................................................... 94 3,768 0.3
Rough-toothed dolphin........................................... 17 4,853 0.1
Bottlenose dolphin.............................................. 0 176,108 n/a
Clymene dolphin................................................. \4\ 46 11,895 0.1
Atlantic spotted dolphin........................................ 0 74,785 n/a
Pantropical spotted dolphin..................................... 456 102,361 0.1
Spinner dolphin................................................. \4\ 11 25,114 0
Striped dolphin................................................. \4\ 24 5,229 0.1
Fraser's dolphin................................................ \4\ 8 1,665 0.1
Risso's dolphin................................................. \4\ 7 3,764 0.1
Melon-headed whale.............................................. \4\ 30 7,003 0.1
Pygmy killer whale.............................................. \4\ 14 2,126 0.2
False killer whale.............................................. \4\ 16 3,204 0.1
Killer whale.................................................... \4\ 0 267 n/a
Short-finned pilot whale........................................ \4\ 2 1,981 0
----------------------------------------------------------------------------------------------------------------
\1\ Scalar ratios were not applied in this case due to brief survey duration.
\2\ Best abundance estimate. For most taxa, the best abundance estimate for purposes of comparison with take
estimates is considered here to be the model-predicted abundance (Roberts et al., 2016). For those taxa where
a density surface model predicting abundance by month was produced, the maximum mean seasonal abundance was
used. For those taxa where abundance is not predicted by month, only mean annual abundance is available. For
Rice's whale and the killer whale, the larger estimated SAR abundance estimate is used.
\3\ Includes 1 take by Level A harassment and 5 takes by Level B harassment.
\4\ Modeled exposure estimate less than assumed average group size (Maze-Foley and Mullin, 2006).

Based on the analysis contained herein of bp's proposed survey
activity described in its LOA application and the anticipated take of
marine mammals, NMFS finds that small numbers of marine mammals will be
taken relative to the affected species or stock sizes and therefore is
of no more than small numbers.

[[Page 71341]]

Authorization

NMFS has determined that the level of taking for this LOA request
is consistent with the findings made for the total taking allowable
under the incidental take regulations and that the amount of take
authorized under the LOA is of no more than small numbers. Accordingly,
we have issued an LOA to bp authorizing the take of marine mammals
incidental to its geophysical survey activity, as described above.

Dated: October 10, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-22761 Filed 10-13-23; 8:45 am]
BILLING CODE 3510-22-P

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