Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico, 72996-73000 [2023-23455]
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Federal Register / Vol. 88, No. 204 / Tuesday, October 24, 2023 / Notices
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[RTID 0648–XD470]
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 (GOM),
notification is hereby given that a Letter
of Authorization (LOA) has been issued
to Murphy Exploration & Production
Company (Murphy) for the take of
marine mammals incidental to
geophysical survey activity in the GOM.
DATES: The LOA is effective from
November 1, 2023, through October 30,
2024.
ADDRESSES: The LOA, LOA request, and
supporting documentation are available
online at: https://
www.fisheries.noaa.gov/action/
incidental-take-authorization-oil-andSUMMARY:
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gas-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:
Rachel Wachtendonk, Office of
Protected Resources, NMFS, (301) 427–
8401.
SUPPLEMENTARY INFORMATION:
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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 GOM
over the course of 5 years (86 FR 5322,
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January 19, 2021). The rule was based
on our findings that the total taking
from the specified activities over the 5year 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
Murphy plans to conduct a vertical
seismic profile (VSP) within Atwater
Valley Block 138. The survey will occur
at a water depth of 1,050 meters (m).
Murphy plans to use a 12-element,
2,400 cubic inch (in3) airgun array. The
survey is planned to occur for 2 days
during the period from November 1,
2023 to October 30, 2024. Please see
Murphy’s application for additional
detail.
Consistent with the preamble to the
final rule, the survey effort proposed by
Murphy 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, 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.
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., two-dimensional
(2D), three-dimensional narrow azimuth
(3D NAZ), 3D wide-azimuth (WAZ),
Coil) is generally conservative for use in
evaluation of VSP survey effort.
Summary descriptions of these modeled
survey geometries are available in the
preamble to the proposed rule (83 FR
29212, June 22, 2018). Coil was selected
as the best available proxy survey type
because the spatial coverage of the
planned survey is most similar to that
associated with the coil survey pattern.
For the planned survey, the seismic
source array will be deployed from a
stationary 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 coil survey pattern in the
model was assumed to cover
approximately 144 kilometers squared
(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
Murphy’s planned survey would not
cover any additional area beyond that
ensonified by the stationary source, the
coil proxy is most representative of the
effort planned by Murphy 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 and 2,400 in3), and in daily
survey area planned by Murphy, as
compared to those modeled for the rule.
The survey is planned to occur in
Zone 5. The survey could take place in
any 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
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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,
(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 Rice’s
whales and killer whales produces
results inconsistent with what is known
regarding their occurrence in the GOM.
Accordingly, we have adjusted the
calculated take estimates for those
species as described below.
NMFS’ final rule described a ‘‘core
habitat area’’ for Rice’s whales (formerly
known as GOM Bryde’s whales) 3
located in the northeastern GOM in
waters between 100–400 m depth along
the continental shelf break (Rosel et al.,
2016). However, whaling records
suggest that Rice’s whales historically
had a broader distribution within
similar habitat parameters throughout
the GOM (Reeves et al., 2011; Rosel and
Wilcox, 2014). In addition, habitatbased density modeling identified
similar habitat (i.e., approximately 100–
400 m water depths along the
continental shelf break) as being
potential Rice’s whale habitat (Roberts
et al., 2016), although the core habitat
area contained approximately 92
percent of the predicted abundance of
Rice’s whales. See discussion provided
at, e.g., 83 FR 29228, 83 FR 29280 (June
22, 2018); 86 FR 5418 (January 19,
2021).
Although Rice’s whales may occur
outside of the core habitat area, we
expect that any such occurrence would
be limited to the narrow band of
suitable habitat described above (i.e.,
100–400 m) and that, based on the few
available records, these occurrences
would be rare. Murphy’s planned
activities will occur in water depths of
3 The final rule refers to the GOM Bryde’s whale
(Balaenoptera edeni). These whales were
subsequently described as a new species, Rice’s
whale (Balaenoptera ricei) (Rosel et al., 2021).
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approximately 1,050 m in the central
GOM. Thus, NMFS does not expect
there to be the reasonable potential for
take of Rice’s whale in association with
this survey and, accordingly, does not
authorize take of Rice’s whale through
the LOA.
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 2017–2018 (Waring et al.,
2013; https://www.boem.gov/
gommapps). Two other species were
also observed on fewer than 20
occasions during the 1992–2009 NOAA
surveys (Fraser’s dolphin and false
killer whale 4). 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
4 However, note that these species have been
observed over a greater range of water depths in the
GOM than have killer whales.
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rulemaking process, as discussed at 86
FR 5322, 86 FR 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 1–30
m in 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 will generally
result in estimated take numbers that
are inconsistent with the assumptions
made in the rule regarding expected
killer whale take (86 FR 5322, 86 FR
5403, January 19, 2021). In this case, use
of the acoustic exposure modeling
produces an estimate of one killer whale
exposure. Given the foregoing, it is
unlikely that any killer whales would be
encountered during this at most 2-day
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survey, and accordingly no take of killer
whales is authorized through this LOA.
In addition, in this case, use of the
exposure modeling produces results that
are smaller than average GOM group
sizes for one 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 the average
group size 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 expected for this survey and
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, 86 FR 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,
86 FR 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
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 ...............................................................................................................
Abundance 2
0
53
3 20
232
40
189
112
76
510
4 137
4 44
4 13
33
4 74
4 17
28
0
4 21
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
2.4
0.4
6.2
0.8
0.1
0.9
0.1
0.5
0.5
0.8
0.8
0.9
1.1
0.8
0.9
n/a
1.1
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 killer whale, the larger estimated SAR abundance estimate is used.
3 Includes 1 take by Level A harassment and 19 takes by Level B harassment.
4 Modeled exposure estimate less than assumed average group size (Maze-Foley and Mullin, 2006).
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2 Best
Based on the analysis contained
herein of Murphy’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
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or stock sizes (i.e., less than one-third of
the best available abundance estimate)
and therefore the taking is of no more
than small numbers.
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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
E:\FR\FM\24OCN1.SGM
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73000
Federal Register / Vol. 88, No. 204 / Tuesday, October 24, 2023 / Notices
amount of take authorized under the
LOA is of no more than small numbers.
Accordingly, we have issued an LOA to
Murphy authorizing the take of marine
mammals incidental to its geophysical
survey activity, as described above.
Dated: October 19, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. 2023–23455 Filed 10–23–23; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
Patent and Trademark Office
[Docket No.: PTO–C–2023–0020]
Formal Tribal Consultation on WIPO
IGC Negotiations
United States Patent and
Trademark Office, Department of
Commerce.
ACTION: Notice of Tribal Consultation
meetings and request for comments.
AGENCY:
The United States Patent and
Trademark Office (USPTO), Department
of Commerce, announces a formal Tribal
Consultation, and requests written
comments on issues involving genetic
resources (GR), traditional knowledge
(TK), and traditional cultural
expressions (TCEs). These topics are
being discussed at the World
Intellectual Property Organization
(WIPO). Specifically, the WIPO
Intergovernmental Committee on
Intellectual Property and Genetic
Resources, Traditional Knowledge, and
Folklore (traditional cultural
expressions) (WIPO IGC) is undertaking
negotiations regarding how best to
protect GR, TK, and TCEs of Indigenous
Peoples.
DATES: Webinar Dates: The webinar for
federally recognized Tribal Nations and
their proxies will be held on Tuesday,
January 16, 2024, from 3 to 5 p.m. ET
and Wednesday, January 17, 2024 from
3 to 5 p.m. ET. The webinar for state
recognized Tribes and other Tribal
members, Native Hawaiians and their
representatives, and inter-tribal
organizations, will be held on Friday,
January 19, 2024, from 3 to 5 p.m. ET
and Tuesday, January 23, 2024, from 3
to 5 p.m. ET. Please register in advance
to participate in one of these webinars
at: https://cvent.me/bZRP3L. After
registering, you will receive a
confirmation email containing
information about joining the meeting. If
you are unable to join via the platform,
a call-in number also will be provided.
The webinar for federally recognized
ddrumheller on DSK120RN23PROD with NOTICES1
SUMMARY:
VerDate Sep<11>2014
17:08 Oct 23, 2023
Jkt 262001
Tribes is open only to federally
recognized Tribal Nations and their
proxies and is closed to the press. The
webinar for state recognized Tribes and
other Tribal members, Native Hawaiians
and their representatives, and intertribal organizations is open only to these
entities and communities and is also
closed to the press.
Comment Deadline: Written
comments pursuant to the questions in
this Notice must be received by Friday,
February 23, 2024.
ADDRESSES: Written comments may be
submitted by email to:
TribalConsultWIPOIGC2023@uspto.gov.
Please use the heading ‘‘WIPO IGC
FORMAL TRIBAL CONSULTATION
2023’’ in the subject line.
If electronic submission of comments
is not feasible due to a lack of access to
a computer and/or the internet, please
submit comments by First-Class Mail or
Priority Mail to: Susan Anthony, Tribal
Affairs Liaison, Mail Stop OPIA, U.S.
Patent and Trademark Office, P.O. Box
1450, Alexandria, VA 22314–1450.
FOR FURTHER INFORMATION CONTACT:
Susan Anthony, Tribal Affairs Liaison,
Office of Policy and International
Affairs (OPIA), USPTO, at
Susan.Anthony@uspto.gov or at 571–
272–8459. Please direct media inquiries
to the USPTO’s Office of the Chief
Communications Officer at 571–272–
8400. These webinars are closed to the
media.
SUPPLEMENTARY INFORMATION: The
USPTO has been actively engaged in
discussions in the WIPO IGC, along
with other Federal agencies, and has
been responsible for leading the
development of U.S. positions on WIPO
IGC issues. The USPTO’s announcement
for formal Tribal Consultation on WIPO
IGC issues aligns with the Federal
Government’s policies and relationship
with Tribal Governments, including:
Executive Order 13175; 1 President
Biden’s Memorandum on Tribal
Consultation and Strengthening Nationto-Nation Relationships; 2 President
Biden’s Memorandum on Uniform
Standards for Tribal Consultation; 3 and
the Tribal Consultation and
Coordination Policy for the U.S.
Department of Commerce (‘‘Policy’’).4
1 www.federalregister.gov/documents/2000/11/
09/00-29003/consultation-and-coordination-withIndian-tribal-governments/.
2 www.whitehouse.gov/briefing-room/
presidential-actions/2021/01/26/memorandum-ontribal-consultation-and-strengthening-nation-tonation-relationships/.
3 www.whitehouse.gov/briefing-room/
presidential-actions/2022/11/30/memorandum-onuniform-standards-for-tribal-consultation/.
4 www.commerce.gov/sites/default/files/media/
files/2013/tribal-consultation-final.pdf.
PO 00000
Frm 00014
Fmt 4703
Sfmt 4703
The Policy requires that the Department
and operating units engage in
meaningful dialogue with Tribes
regarding policies that have Tribal
implications. This Tribal Consultation
will consist of a webinar for federally
recognized Tribal Nations and their
proxies and a separate webinar for state
recognized Tribes and other Tribal
members, Native Hawaiians, and intertribal associations.
In addition to these webinars, the
USPTO seeks written comments
regarding the questions in this Notice.
Written comments may include
comments responsive to the questions
in this Notice, comments responsive to
issues discussed during the webinars,
and any other related concerns.
WIPO is a specialized United Nations
agency based in Geneva, Switzerland,
that focuses on intellectual property
(IP). Established in September 2000, the
WIPO IGC serves as a forum where
WIPO Member States 5 and accredited
observers can discuss the intellectual
property issues that arise in the context
of access to GR and benefit-sharing, as
well as the protection of TK and
folklore/TCEs.
Since 2009, the WIPO IGC has been
engaged in text-based negotiations on an
international legal instrument for GR,
TK, and TCEs. The U.S. understands the
term ‘‘international legal instrument(s)’’
in the WIPO IGC mandate 6 to include
declarations, recommendations, best
practices, toolkits, and other forms of
‘‘soft law’’ and actively seeks practical
recommendations in addressing the
matters under discussion within the
WIPO IGC. WIPO also has the authority
to initiate norm-setting discussions and
to propose international rules for
adoption by a diplomatic conference or
adoption by another WIPO body.
‘‘International legal instrument(s)’’
could also include a treaty or
international agreement, although there
is no requirement that prescribes this
particular outcome. This request for
comments seeks Tribal input on, among
other topics, whether a treaty or forms
of soft law are necessary to address
issues regarding TK and TCEs.
The WIPO General Assembly, held in
Geneva, Switzerland, on July 14–22,
2022, decided to convene a diplomatic
conference to conclude an International
Legal Instrument Relating to Intellectual
Property, Genetic Resources and
Traditional Knowledge Associated with
Genetic Resources, based on document
5 WIPO currently has 193 Member States:
www.wipo.int/members/en/.
6 The current ‘‘IGC Mandate’’ may be found at:
www.wipo.int/tk/en/igc. As of this writing, the IGC
Mandate covers the biennium 2024/2025.
E:\FR\FM\24OCN1.SGM
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]]>Agencies
[Federal Register Volume 88, Number 204 (Tuesday, October 24, 2023)]
[Notices]
[Pages 72996-73000]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23455]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD470]
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 (GOM), notification is hereby
given that a Letter of Authorization (LOA) has been issued to Murphy
Exploration & Production Company (Murphy) for the take of marine
mammals incidental to geophysical survey activity in the GOM.
DATES: The LOA is effective from November 1, 2023, through October 30,
2024.
ADDRESSES: The LOA, LOA request, and supporting documentation are
available online at: https://www.fisheries.noaa.gov/action/incidental-
take-authorization-oil-and-
[[Page 72997]]
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: Rachel Wachtendonk, 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 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
Murphy plans to conduct a vertical seismic profile (VSP) within
Atwater Valley Block 138. The survey will occur at a water depth of
1,050 meters (m). Murphy plans to use a 12-element, 2,400 cubic inch
(in\3\) airgun array. The survey is planned to occur for 2 days during
the period from November 1, 2023 to October 30, 2024. Please see
Murphy's application for additional detail.
Consistent with the preamble to the final rule, the survey effort
proposed by Murphy 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, 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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
No VSP surveys were included in the modeled survey types, and use
of existing proxies (i.e., two-dimensional (2D), three-dimensional
narrow azimuth (3D NAZ), 3D wide-azimuth (WAZ), Coil) is generally
conservative for use in evaluation of VSP survey effort. Summary
descriptions of these modeled survey geometries are available in the
preamble to the proposed rule (83 FR 29212, June 22, 2018). Coil was
selected as the best available proxy survey type because the spatial
coverage of the planned survey is most similar to that associated with
the coil survey pattern.
For the planned survey, the seismic source array will be deployed
from a stationary 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 coil survey pattern in the
model was assumed to cover approximately 144 kilometers squared (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 Murphy's planned survey would not cover
any additional area beyond that ensonified by the stationary source,
the coil proxy is most representative of the effort planned by Murphy
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 and 2,400 in\3\), and in daily
survey area planned by Murphy, as compared to those modeled for the
rule.
The survey is planned to occur in Zone 5. The survey could take
place in any 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
[[Page 72998]]
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,
(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 Rice's whales and killer whales produces results
inconsistent with what is known regarding their occurrence in the GOM.
Accordingly, we have adjusted the calculated take estimates for those
species as described below.
NMFS' final rule described a ``core habitat area'' for Rice's
whales (formerly known as GOM Bryde's whales) \3\ located in the
northeastern GOM in waters between 100-400 m depth along the
continental shelf break (Rosel et al., 2016). However, whaling records
suggest that Rice's whales historically had a broader distribution
within similar habitat parameters throughout the GOM (Reeves et al.,
2011; Rosel and Wilcox, 2014). In addition, habitat-based density
modeling identified similar habitat (i.e., approximately 100-400 m
water depths along the continental shelf break) as being potential
Rice's whale habitat (Roberts et al., 2016), although the core habitat
area contained approximately 92 percent of the predicted abundance of
Rice's whales. See discussion provided at, e.g., 83 FR 29228, 83 FR
29280 (June 22, 2018); 86 FR 5418 (January 19, 2021).
---------------------------------------------------------------------------
\3\ The final rule refers to the GOM Bryde's whale (Balaenoptera
edeni). These whales were subsequently described as a new species,
Rice's whale (Balaenoptera ricei) (Rosel et al., 2021).
---------------------------------------------------------------------------
Although Rice's whales may occur outside of the core habitat area,
we expect that any such occurrence would be limited to the narrow band
of suitable habitat described above (i.e., 100-400 m) and that, based
on the few available records, these occurrences would be rare. Murphy's
planned activities will occur in water depths of approximately 1,050 m
in the central GOM. Thus, NMFS does not expect there to be the
reasonable potential for take of Rice's whale in association with this
survey and, accordingly, does not authorize take of Rice's whale
through the LOA.
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 2017-2018 (Waring et al., 2013; https://www.boem.gov/gommapps). Two other species were also observed on fewer
than 20 occasions during the 1992-2009 NOAA surveys (Fraser's dolphin
and false killer whale \4\). 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, 86 FR 5334 (January 19, 2021), and similarly informs our
analysis here.
---------------------------------------------------------------------------
\4\ 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 1-30 m in 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
will generally result in estimated take numbers that are inconsistent
with the assumptions made in the rule regarding expected killer whale
take (86 FR 5322, 86 FR 5403, January 19, 2021). In this case, use of
the acoustic exposure modeling produces an estimate of one killer whale
exposure. Given the foregoing, it is unlikely that any killer whales
would be encountered during this at most 2-day
[[Page 72999]]
survey, and accordingly no take of killer whales is authorized through
this LOA.
In addition, in this case, use of the exposure modeling produces
results that are smaller than average GOM group sizes for one 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 the average group size 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 expected for this survey and 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, 86 FR 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, 86 FR 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.................................................... 0 51 n/a
Sperm whale..................................................... 53 2,207 2.4
Kogia spp....................................................... \3\ 20 4,373 0.4
Beaked whales................................................... 232 3,768 6.2
Rough-toothed dolphin........................................... 40 4,853 0.8
Bottlenose dolphin.............................................. 189 176,108 0.1
Clymene dolphin................................................. 112 11,895 0.9
Atlantic spotted dolphin........................................ 76 74,785 0.1
Pantropical spotted dolphin..................................... 510 102,361 0.5
Spinner dolphin................................................. \4\ 137 25,114 0.5
Striped dolphin................................................. \4\ 44 5,229 0.8
Fraser's dolphin................................................ \4\ 13 1,665 0.8
Risso's dolphin................................................. 33 3,764 0.9
Melon-headed whale.............................................. \4\ 74 7,003 1.1
Pygmy killer whale.............................................. \4\ 17 2,126 0.8
False killer whale.............................................. 28 3,204 0.9
Killer whale.................................................... 0 267 n/a
Short-finned pilot whale........................................ \4\ 21 1,981 1.1
----------------------------------------------------------------------------------------------------------------
\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 killer whale, the larger estimated SAR abundance estimate is used.
\3\ Includes 1 take by Level A harassment and 19 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 Murphy'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 (i.e., less than
one-third of the best available abundance estimate) and therefore the
taking is of no more than small numbers.
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
[[Page 73000]]
amount of take authorized under the LOA is of no more than small
numbers. Accordingly, we have issued an LOA to Murphy authorizing the
take of marine mammals incidental to its geophysical survey activity,
as described above.
Dated: October 19, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-23455 Filed 10-23-23; 8:45 am]
BILLING CODE 3510-22-P
