Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico, 82230-82232 [2024-23483]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 89, Number 197 (Thursday, October 10, 2024)]
[Notices]
[Pages 82230-82232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-23483]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE367]


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; 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 NMFS has issued a Letter of Authorization (LOA) to 
WesternGeco for the take of marine mammals incidental to geophysical 
survey activity in the GOM.

DATES: This LOA is effective from October 3, 2024 through November 15, 
2024.

ADDRESSES: The LOA, LOA request, and supporting documentation are 
available online at: https://www.fisheries.noaa.gov/marine-mammal-protection/issued-letters-authorization-oil-and-gas-industry-geophysical-survey. In case of problems accessing these documents, 
please call the contact listed below (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). 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, and became effective on April 19, 2021.
    The 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 Sec.  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.
    NMFS subsequently discovered that the 2021 rule was based on 
erroneous take estimates. We conducted another rulemaking using correct 
take estimates and other newly available and pertinent information 
relevant to the analyses supporting some of the findings in the 2021 
final rule and the taking allowable under the regulations. We issued a 
final rule in April 2024, effective May 24, 2024 (89 FR 31488).
    The 2024 final rule made no changes to the specified activities or 
the specified geographical region in which those activities would be 
conducted, nor to the original 5-year period of effectiveness. In 
consideration of the new information, the 2024 rule presented new 
analyses supporting affirmance of the negligible impact determinations 
for all species, and affirmed that the existing regulations, which 
contain mitigation, monitoring, and reporting requirements, are 
consistent with the ``least practicable adverse impact'' standard of 
the MMPA.

Summary of Request and Analysis

    NMFS issued a LOA to TGS on September 27, 2023, for the take of 
marine mammals incidental to a 3-dimensional ocean bottom node survey 
in the Green Canyon, Ewing Bank, and Atwater Valley protraction areas, 
including approximately 380 lease blocks, effective September 27, 2023, 
through September 28, 2024. Please see the Federal Register 
notification (88 FR 68106, October 3, 2023) for additional detail 
regarding the LOA and the planned survey activity.
    On December 20, 2023, TGS requested the transfer of the LOA to 
WesternGeco, its partner in the planned survey effort. WesternGeco 
confirmed to NMFS that it similarly requested transfer of the LOA. No 
other changes were requested. The revised LOA remained effective 
through

[[Page 82231]]

September 28, 2024. Please see the Federal Register notice of issuance 
of a revised LOA (89 FR 5864, January 30, 2024) for additional detail 
regarding the transfer.
    WesternGeco notified NMFS that due to survey delays it had not 
completed the survey plan described in the initial LOA request 
submitted by TGS and, because the original LOA has expired, has 
requested that an additional LOA be issued effective through November 
15, 2024, to cover completion of the planned survey effort.
    Although this is technically a new LOA, NMFS considers this to be 
functionally an extension of the original LOA, as the survey activity 
considered herein represents the conclusion of the originally planned 
survey. Of the originally planned 65 days of sound source operations, 
approximately 16 days of surveying remains, all in Zone 5. There are no 
other changes to WesternGeco's planned activity, as described in the 
original notice of issuance (88 FR 68106, October 3, 2023). On this 
basis, NMFS has updated take estimates based on information provided in 
the 2024 final rule (89 FR 31488, April 24, 2024), and corresponding 
with the estimated 16 days of remaining survey activity. As 
WesternGeco's is using conventional airgun sources consisting of 28 
elements, with a total volume of 5,240 cubic inches (or the less-
impactful Gemini source), we have used the 5,110 cu in airgun array 
proxy to estimate the take numbers.
    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. See table 1 in this notice and table 6 of the 
rule (89 FR 31488, April 24, 2024).

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 (89 FR 31535, May 24, 2024). For more 
information please see NMFS' discussion of small numbers in the 2021 
final rule (86 FR 5438, January 19, 2021).
    The take numbers for authorization are determined as described 
above in the Summary of Request and Analysis section. Subsequently, the 
total incidents of harassment for each species are multiplied by scalar 
ratios to produce a derived product that better reflects the number of 
individuals likely to be taken within a survey (as compared to the 
total number of instances of take), accounting for the likelihood that 
some individual marine mammals may be taken on more than 1 day (86 FR 
5404, January 19, 2021; 89 FR 31535, May 24, 2024). The output of this 
scaling, where appropriate, is incorporated into adjusted total take 
estimates that are the basis for NMFS' small numbers determinations, as 
depicted in table 1. Normally, a survey with a duration of 16 days 
would not apply scalar ratios for the small numbers determination. 
However, scalar ratios were used in this instance since we consider 
this survey a continuation of the original 65 day survey.
    This product is used by NMFS in making the necessary small numbers 
determinations through comparison with the best available abundance 
estimates (see discussion at 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/). 
Information supporting the small numbers determinations is provided in 
table 1.

                                           Table 1--Take Analysis \1\
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                                                             Authorized                  Abundance     Percent
                          Species                               take      Scaled take       \2\       abundance
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Rice's whale..............................................            0           n/a            51          n/a
Sperm whale...............................................          112          47.4         3,007          1.6
Kogia spp.................................................       \3\ 48          14.7           980          1.7
Beaked whales.............................................          489          49.4           803          6.1
Rough-toothed dolphin.....................................          372         106.9         4,853          2.2
Bottlenose dolphin........................................          296          85.0       165,125          0.1
Clymene dolphin...........................................          208          59.6         4,619          1.3
Atlantic spotted dolphin..................................          108          31.0        21,506          0.1
Pantropical spotted dolphin...............................        2,834         813.4        67,225          1.2
Spinner dolphin...........................................      \4\ 152          14.4         5,548          0.3
Striped dolphin...........................................          525         150.6         5,634          2.7
Fraser's dolphin..........................................          137          39.2         1,665          2.4
Risso's dolphin...........................................           87          25.6         1,974          1.3
Blackfish \5\.............................................          804         237.3         6,113          3.9
Short-finned pilot whale..................................          113          33.3         2,741          1.2
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\1\ Scalar ratios were applied to ``Authorized Take'' values as described at 86 FR 5322, 5404 (January 19, 2021)
  to derive scaled take numbers shown here.
\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 (Garrison et al., 2023). For Rice's whale,
  Atlantic spotted dolphin, and Risso's dolphin, the larger estimated SAR abundance estimate is used.
\3\ Includes 2 takes by Level A harassment and 46 takes by Level B harassment. Small numbers determination made
  on basis of scaled Level B harassment take plus authorized Level A harassment take.
\4\ Modeled take of 50 increased to account for potential encounter with a group of average size (Maze-Foley and
  Mullin, 2006).
\5\ The ``blackfish'' guild includes melon-headed whales, false killer whales, pygmy killer whales, and killer
  whales.

    Based on the analysis contained herein of WesternGeco's modified 
survey activity described in its LOA modification requesr and the 
anticipated take of marine mammals, NMFS finds that small numbers of

[[Page 82232]]

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 modified 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 WesternGeco authorizing the take 
of marine mammals incidental to its geophysical survey activity, as 
described above.

    Dated: October 7, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-23483 Filed 10-9-24; 8:45 am]
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