Notice2023-18220
Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 24, 2023
Effective
August 18, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the Marine Mammal Protection Act (MMPA), as amended, its implementing regulations, and NMFS' MMPA Regulations for Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico, notification is hereby given that a Letter of Authorization (LOA) has been issued to ExxonMobil Corporation (ExxonMobil) for the take of marine mammals incidental to geophysical survey activity in the Gulf of Mexico.
Full Text
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<title>Federal Register, Volume 88 Issue 163 (Thursday, August 24, 2023)</title>
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[Federal Register Volume 88, Number 163 (Thursday, August 24, 2023)]
[Notices]
[Pages 57943-57945]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-18220]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD270]
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, notification is hereby given
that a Letter of Authorization (LOA) has been issued to ExxonMobil
Corporation (ExxonMobil) for the take of marine mammals incidental to
geophysical survey activity in the Gulf of Mexico.
DATES: The LOA is effective from August 18, 2023, through April 1,
2026.
ADDRESSES: The LOA, LOA request, and supporting documentation are
available online at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico">https://www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico</a>. In case of problems accessing these documents, please call
the contact listed below (see FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Ben Laws, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce to allow, upon request, the
incidental, but not intentional, taking of small numbers of marine
mammals by U.S. citizens who engage in a specified activity (other than
commercial fishing) within a specified geographical region if certain
findings are made and either regulations are issued or, if the taking
is limited to harassment, a notice of a proposed authorization is
provided to the public for review.
An authorization for incidental takings shall be granted if NMFS
finds that the taking will have a negligible impact on the species or
stock(s), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (where
relevant), and if the permissible methods of taking and requirements
pertaining to the mitigation, monitoring and reporting of such takings
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103
as an impact resulting from the specified activity that cannot be
reasonably expected to, and is not reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as: any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild (Level A harassment), or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).
On January 19, 2021, we issued a final rule with regulations to
govern the unintentional taking of marine mammals incidental to
geophysical survey activities conducted by oil and gas industry
operators, and those persons authorized to conduct activities on their
behalf (collectively ``industry operators''), in U.S. waters of the
Gulf of Mexico (GOM) over the course of 5 years (86 FR 5322, January
19, 2021). The rule was based on our findings that the total taking
from the specified activities over the 5-year period will have a
negligible impact on the affected species or stock(s) of marine mammals
and will not have an unmitigable adverse impact on the availability of
those species or stocks for subsistence uses. The rule became effective
on April 19, 2021.
Our regulations at 50 CFR 217.180 et seq. allow for the issuance of
LOAs to industry operators for the incidental take of marine mammals
during geophysical survey activities and prescribe the permissible
methods of taking and other means of effecting the least practicable
adverse impact on marine mammal species or stocks and their habitat
(often referred to as mitigation), as well as requirements pertaining
to the monitoring and reporting of such taking. Under 50 CFR
217.186(e), issuance of an LOA shall be based on a determination that
the level of taking will be consistent with the findings made for the
total taking allowable under these regulations and a determination that
the amount of take authorized under the LOA is of no more than small
numbers.
Summary of Request and Analysis
ExxonMobil plans to conduct well appraisal and high-resolution
engineering geophysical surveys associated with its federal lease
blocks within the High Island and Galveston areas. See Figure 1 of the
LOA application for a map of the area.
ExxonMobil anticipates using a daily contingent of from one to
three source
[[Page 57944]]
vessels, depending on the survey stage and ongoing survey requirements.
Surveys may be conducted 24 hours per day, but in some instances in
shallow water areas will only be conducted for 12 hours per day.
Depending on the survey objective, source vessels will tow a Sercel G-
Source II dual airgun array of 80 to 150 cubic inches (in\3\), or may
be outfitted with sources such as a multibeam echosounder, side scan
sonar, and sparker system (e.g., Geo-Source 200-400). During survey
effort using non-airgun sources, only the sparker source has the
potential to cause incidental take of marine mammals. Please see
ExxonMobil's application for additional detail.
Consistent with the preamble to the final rule, the survey effort
proposed by ExxonMobil 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 5398, January 19, 2021). In order to
generate the appropriate take numbers 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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Summary descriptions of modeled survey geometries (i.e., 2D, 3D
NAZ, 3D WAZ, Coil) are available in the preamble to the proposed rule
(83 FR 29220, June 22, 2018). In addition, surveys using single airguns
and high-resolution geophysical sources were also modeled. The single
airgun was selected as the best available proxy survey type in this
case, as ExxonMobil plans to conduct survey effort using two single
airguns or, alternatively, a sparker system. Although no sparkers were
modeled, use of the single airgun as a proxy source is conservative.
The survey will take place over approximately 338 days, within Zone
3 and adjacent state waters. The seasonal distribution of survey days
is not known in advance. Therefore, the take estimates for each species
are based on the season that produces the greater value.
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. Thus, although the modeling conducted for
the rule is a natural starting point for estimating take, the rule
acknowledged that other information could be considered (e.g., 86 FR
5442, January 19, 2021), discussing the need to provide flexibility and
make efficient use of previous public and agency review of other
information and identifying that additional public review is not
necessary unless the model or inputs used differ substantively from
those that were previously reviewed by NMFS and the public. For this
survey, NMFS has other relevant information reviewed during the
rulemaking that indicates use of the acoustic exposure modeling to
generate a take estimate for certain marine mammal species 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.
In this case, use of the exposure modeling produces results that
are smaller than average GOM group sizes for two species (Maze-Foley
and Mullin, 2006). NMFS' typical practice in such a situation is to
increase exposure estimates to the assumed average group size for a
species in order to ensure that, if the species is encountered,
exposures will not exceed the authorized take number. However, other
relevant considerations here lead to a determination that increasing
the estimated exposures to average group sizes would likely lead to an
overestimate of actual potential take. In this circumstance, the
generally shallow depths (5-50 feet (1.5-15.2 meters)) associated with
the survey and relatively small Level B harassment isopleths produced
through use of the single airguns or sparker systems 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. 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 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 (see 86
FR 5404, January 19, 2021). 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.
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; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and model-predicted
abundance information (<a href="https://seamap.env.duke.edu/models/Duke/GOM/">https://seamap.env.duke.edu/models/Duke/GOM/</a>).
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
[[Page 57945]]
GOM. Information supporting the small numbers determinations is
provided in Table 1.
Table 1--Take Analysis
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Authorized Scaled take Percent
Species take \1\ Abundance \2\ abundance
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Rice's whale.................................... 0 n/a 51 n/a
Sperm whale..................................... 0 n/a 2,207 n/a
Kogia spp....................................... 0 n/a 4,373 n/a
Beaked whales................................... 0 n/a 3,768 n/a
Rough-toothed dolphin........................... 137 39.2 4,853 0.8
Bottlenose dolphin.............................. 4,756 1,364.9 176,108 0.8
Clymene dolphin................................. 0 n/a 11,895 n/a
Atlantic spotted dolphin........................ 1,685 n/a 74,785 n/a
Pantropical spotted dolphin..................... 0 n/a 102,361 n/a
Spinner dolphin................................. 0 n/a 25,114 n/a
Striped dolphin................................. 0 n/a 5,229 n/a
Fraser's dolphin................................ \3\ 1 0.2 1,665 0.0
Risso's dolphin................................. 0 n/a 3,764 n/a
Melon-headed whale.............................. 0 n/a 7,003 n/a
Pygmy killer whale.............................. 0 n/a 2,126 n/a
False killer whale.............................. \3\ 5 1.3 3,204 0.0
Killer whale.................................... 0 n/a 267 n/a
Short-finned pilot whale........................ 0 n/a 1,981 n/a
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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 (Roberts et al., 2016). For those taxa where
a density surface model predicting abundance by month was produced, the maximum mean seasonal abundance was
used. For those taxa where abundance is not predicted by month, only mean annual abundance is available. For
Rice's whale and the killer whale, the larger estimated SAR abundance estimate is used.
\3\ Modeled exposure estimate less than assumed average group size (Maze-Foley and Mullin, 2006).
Based on the analysis contained herein of ExxonMobil'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 ExxonMobil authorizing the take of marine
mammals incidental to its geophysical survey activity, as described
above.
Dated: August 21, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-18220 Filed 8-23-23; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on August 24, 2023.
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