Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico, 1550-1553 [2024-00299]

Download as PDF 1550 Federal Register / Vol. 89, No. 7 / Wednesday, January 10, 2024 / Notices Notification to Importers DEPARTMENT OF COMMERCE This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in Commerce’s presumption that reimbursement of antidumping duties has occurred and the subsequent assessment of double antidumping duties. National Oceanic and Atmospheric Administration Administrative Protective Order This notice also serves as a final reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation subject to sanction. Notification to Interested Parties We are issuing and publishing these final results of administrative review in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(5) and 19 CFR 351.213(h)(2). Dated: January 3, 2024. Abdelali Elouaradia, Deputy Assistant Secretary for Enforcement and Compliance. lotter on DSK11XQN23PROD with NOTICES1 List of Topics Discussed in the Issues and Decision Memorandum I. Summary II. Background III. Scope of the Order IV. Discussion of the Issues Comment 1: Application of Partial Adverse Facts Available to Tainai Comment 2: Deduction of Section 301 Duties Comment 3: Capping Section 301 Duty Payments Comment 4: Differential Pricing Analysis V. Recommendation BILLING CODE 3510–DS–P VerDate Sep<11>2014 16:40 Jan 09, 2024 Jkt 262001 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 Anadarko Petroleum Corporation (Anadarko) for the take of marine mammals incidental to geophysical survey activity in the GOM. DATES: The LOA is effective from January 15, 2024, through May 15, 2024. ADDRESSES: The LOA, LOA request, and supporting documentation are available online at: https://www.fisheries. noaa.gov/action/incidental-takeauthorization-oil-and-gas-industrygeophysical-survey-activity-gulf-mexico. In case of problems accessing these documents, please call the contact listed below (see FOR FURTHER INFORMATION CONTACT). SUMMARY: FOR FURTHER INFORMATION CONTACT: Rachel Wachtendonk, Office of Protected Resources, NMFS, (301) 427– 8401. SUPPLEMENTARY INFORMATION: Appendix [FR Doc. 2024–00304 Filed 1–9–24; 8:45 am] [RTID 0648–XD580] 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 PO 00000 Frm 00042 Fmt 4703 Sfmt 4703 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 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 E:\FR\FM\10JAN1.SGM 10JAN1 Federal Register / Vol. 89, No. 7 / Wednesday, January 10, 2024 / Notices lotter on DSK11XQN23PROD with NOTICES1 authorized under the LOA is of no more than small numbers. Summary of Request and Analysis Anadarko plans to conduct a onedimensional vertical seismic profile (VSP) within Mississippi Canyon Block MC–40. The survey area has water depths of approximately 1,070 meters (m). Anadarko plans to use either a 12element, 2,400 cubic inch (in3) airgun array, or a 6-element, 1,500 in3 airgun array. The survey is planned to occur for up to 8 days in February 2024. Please see Anadarko’s application for additional detail. Consistent with the preamble to the final rule, the survey effort proposed by Anadarko 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. 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 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 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). VerDate Sep<11>2014 16:40 Jan 09, 2024 Jkt 262001 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 Anadarko’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 Anadarko 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 (maximum of 12 elements and 2,400 in3), and in daily survey area planned by Anadarko (as mentioned above), 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 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 PO 00000 Frm 00043 Fmt 4703 Sfmt 4703 1551 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 (June 22, 2018); 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. Anadarko’s planned activities will occur in water depths of approximately 1,070 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 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). E:\FR\FM\10JAN1.SGM 10JAN1 lotter on DSK11XQN23PROD with NOTICES1 1552 Federal Register / Vol. 89, No. 7 / Wednesday, January 10, 2024 / Notices 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 to 2009 reported only 16 sightings of killer whales, with an additional 3 encounters during more recent survey effort from 2017 to 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 to 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 (January 19, 2021) and 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, January 19, 2021; 86 FR 5403, January 19, 2021). In this case, use of the acoustic exposure modeling produces an estimate of three killer whale exposures. Given the foregoing, it is unlikely that any killer whales would be encountered during this at most 8-day 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 8 days) and relatively small Level B harassment isopleths produced through use of the (at most) 12-element, 2,400-in3 airgun array (compared with the modeled 72- element, 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, January 19, 2021; 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, January 19, 2021 and 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 4 However, note that these species have been observed over a greater range of water depths in the GOM than have killer whales. VerDate Sep<11>2014 16:40 Jan 09, 2024 Jkt 262001 PO 00000 Frm 00044 Fmt 4703 Sfmt 4703 E:\FR\FM\10JAN1.SGM 10JAN1 1553 Federal Register / Vol. 89, No. 7 / Wednesday, January 10, 2024 / Notices 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 a 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 ............................................................................................................... 0 210 c 89 929 160 757 449 302 2,039 546 176 d 50 132 295 69 111 0 85 Abundance b 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 9.5 1.8 24.6 3.3 0.4 3.8 0.4 2 2.2 3.4 3 3.5 4.2 3.3 3.5 n/a 4.3 a 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. c Includes 4 takes by Level A harassment and 76 takes by Level B harassment. d Modeled exposure estimate less than assumed average group size (Maze-Foley and Mullin, 2006). b Best Based on the analysis contained herein of Anadarko’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 lotter on DSK11XQN23PROD with NOTICES1 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 Anadarko authorizing the take of marine mammals incidental to its geophysical survey activity, as described above. Dated: January 4, 2024. Kimberly Damon-Randall, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2024–00299 Filed 1–9–24; 8:45 am] BILLING CODE 3510–22–P VerDate Sep<11>2014 16:40 Jan 09, 2024 Jkt 262001 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [RTID 0648–XD622] South Atlantic Fishery Management Council; Public Meeting National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of a meeting of the South Atlantic Fishery Management Council’s Law Enforcement Advisory Panel. AGENCY: The South Atlantic Fishery Management Council’s (Council) will hold a meeting of the Law Enforcement Advisory Panel (AP) January 29–30, 2024, in Charleston, SC. DATES: The Law Enforcement AP will meet from 1 p.m. until 5 p.m. on January 29, and from 9 a.m. until 5 p.m. on January 30, 2024. ADDRESSES: Meeting address: The meeting will be held at the Crowne Plaza, 4831 Tanger Outlet Blvd., North Charleston, SC 29418. FOR FURTHER INFORMATION CONTACT: Kim Iverson, Public Information Officer, SAFMC; phone: (843) 571–4366 or toll free: (866) SAFMC–10; fax: (843) 769– 4520; email: kim.iverson@safmc.net. SUMMARY: PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 Meeting information, including the agenda, overview, briefing book materials, and an online public comment form will be posted on the Council’s website at: https://safmc.net/advisory-panelmeetings/ 2 weeks prior to the meeting. The meeting is open to the public and available via webinar as it occurs. The webinar registration link will be available from the Council’s website. Public comment will also be taken during the meeting. The agenda for the Law Enforcement AP meeting includes: an update on developing amendments; discussion of enforcement components of amendments for wreckfish management (Snapper Grouper Amendment 48), recreational permitting for the Snapper Grouper Fishery (Snapper Grouper Amendment 46), and on-demand gear for black sea bass pots (Snapper Grouper Regulatory Amendment 36). The AP will also receive an overview and discuss tournament sales of king mackerel; updates on compliance with for-hire reporting, descending devices, and protected areas; and general updates from Federal and state enforcement representatives. The AP will provide input and recommendations on agenda items for the Council’s consideration and address other items as needed. SUPPLEMENTARY INFORMATION: E:\FR\FM\10JAN1.SGM 10JAN1

Agencies

[Federal Register Volume 89, Number 7 (Wednesday, January 10, 2024)]
[Notices]
[Pages 1550-1553]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00299]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD580]

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.

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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 Anadarko
Petroleum Corporation (Anadarko) for the take of marine mammals
incidental to geophysical survey activity in the GOM.

DATES: The LOA is effective from January 15, 2024, through May 15,
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: 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

[[Page 1551]]

authorized under the LOA is of no more than small numbers.

Summary of Request and Analysis

Anadarko plans to conduct a one-dimensional vertical seismic
profile (VSP) within Mississippi Canyon Block MC-40. The survey area
has water depths of approximately 1,070 meters (m). Anadarko plans to
use either a 12-element, 2,400 cubic inch (in\3\) airgun array, or a 6-
element, 1,500 in\3\ airgun array. The survey is planned to occur for
up to 8 days in February 2024. Please see Anadarko's application for
additional detail.
Consistent with the preamble to the final rule, the survey effort
proposed by Anadarko 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.
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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., 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 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 Anadarko'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 Anadarko 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 (maximum of 12 elements and 2,400 in\3\), and
in daily survey area planned by Anadarko (as mentioned above), 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 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 (June 22,
2018); 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.
Anadarko's planned activities will occur in water depths of
approximately 1,070 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

[[Page 1552]]

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 to 2009 reported only 16
sightings of killer whales, with an additional 3 encounters during more
recent survey effort from 2017 to 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 to 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 (January 19, 2021) and 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, January 19, 2021; 86 FR 5403, January 19, 2021). In
this case, use of the acoustic exposure modeling produces an estimate
of three killer whale exposures. Given the foregoing, it is unlikely
that any killer whales would be encountered during this at most 8-day
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 8 days) and
relatively small Level B harassment isopleths produced through use of
the (at most) 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, January 19, 2021; 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, January 19, 2021 and 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

[[Page 1553]]

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 \a\ Abundance \b\ abundance
----------------------------------------------------------------------------------------------------------------
Rice's whale.................................................... 0 51 n/a
Sperm whale..................................................... 210 2,207 9.5
Kogia spp....................................................... \c\ 89 4,373 1.8
Beaked whales................................................... 929 3,768 24.6
Rough-toothed dolphin........................................... 160 4,853 3.3
Bottlenose dolphin.............................................. 757 176,108 0.4
Clymene dolphin................................................. 449 11,895 3.8
Atlantic spotted dolphin........................................ 302 74,785 0.4
Pantropical spotted dolphin..................................... 2,039 102,361 2
Spinner dolphin................................................. 546 25,114 2.2
Striped dolphin................................................. 176 5,229 3.4
Fraser's dolphin................................................ \d\ 50 1,665 3
Risso's dolphin................................................. 132 3,764 3.5
Melon-headed whale.............................................. 295 7,003 4.2
Pygmy killer whale.............................................. 69 2,126 3.3
False killer whale.............................................. 111 3,204 3.5
Killer whale.................................................... 0 267 n/a
Short-finned pilot whale........................................ 85 1,981 4.3
----------------------------------------------------------------------------------------------------------------
\a\ Scalar ratios were not applied in this case due to brief survey duration.
\b\ 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.
\c\ Includes 4 takes by Level A harassment and 76 takes by Level B harassment.
\d\ Modeled exposure estimate less than assumed average group size (Maze-Foley and Mullin, 2006).

Based on the analysis contained herein of Anadarko'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 amount of take
authorized under the LOA is of no more than small numbers. Accordingly,
we have issued an LOA to Anadarko authorizing the take of marine
mammals incidental to its geophysical survey activity, as described
above.

Dated: January 4, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2024-00299 Filed 1-9-24; 8:45 am]
BILLING CODE 3510-22-P

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