Notice2024-07138
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
April 5, 2024
Effective
May 1, 2024
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 WesternGeco for the take of marine mammals incidental to geophysical survey activity in the Gulf of Mexico (GOM).
Full Text
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<title>Federal Register, Volume 89 Issue 67 (Friday, April 5, 2024)</title>
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[Federal Register Volume 89, Number 67 (Friday, April 5, 2024)]
[Notices]
[Pages 23981-23985]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-07138]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD714]
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 WesternGeco for
the take of marine mammals incidental to geophysical survey activity in
the Gulf of Mexico (GOM).
DATES: The LOA is effective from May 1, 2024 through April 30, 2025.
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: Rachel Wachtendonk, Office of
[[Page 23982]]
Protected Resources, NMFS, (301) 427-8401, <a href="/cdn-cgi/l/email-protection#ff889e9c978b9a919b909194d1968b8fbf91909e9ed1989089"><span class="__cf_email__" data-cfemail="295e484a415d4c474d46474207405d596947464848074e465f">[email protected]</span></a>.
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 (see 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 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
WesternGeco plans to conduct a three-dimensional (3D) ocean bottom
node (OBN) survey over Walker Ridge and Green Canyon areas, with
approximate water depths ranging from approximately 700 to 3,000 meters
(m). WesternGeco anticipates using a single dual source vessel, either
towing airgun array sources consisting of 28 elements, with a total
volume of 5,240 cubic inches (in\3\; 0.086 cubic meters (m\3\)), or a
Gemini enhanced frequency source (EFS) array. Please see WesternGeco's
LOA application for additional detail.
The Gemini source operates on the same basic principles as a
traditional airgun source in that it uses compressed air to create a
bubble in the water column, which then goes through a series of
collapses and expansions creating primarily low-frequency sounds.
However, the Gemini source consists of one physical element with two
large chambers of 4,000 in\3\ (0.066 m\3\) each (total volume of 8,000
in\3\ (0.131 m\3\)). This creates a larger bubble resulting in more of
the energy being concentrated in low frequencies, with a fundamental
frequency of 3.7 hertz. In addition to concentrating energy at lower
frequencies, the Gemini source is expected to produce lower overall
sound levels than the conventional airgun proxy source. The number of
airguns in an array is highly influential on overall sound energy
output, because the output increases approximately linearly with the
number of airgun elements. In this case, because the same air volume is
used to operate two very large guns, rather than tens of smaller guns,
the array produces lower sound levels than a conventional array of
equivalent total volume. NMFS anticipates that take by Level B
harassment associated with use of the Gemini source would be less than
would occur for a similar survey instead using the modeled airgun array
as a sound source. Please see prior notices (e.g., 88 FR 72739, October
23, 2023) for additional detail regarding the Gemini source.
Consistent with the preamble to the final rule, the survey effort
proposed by WesternGeco in its LOA request was used to develop LOA-
specific take estimates based on the acoustic exposure modeling results
described in the preamble (see 86 FR 5398, January 19, 2021). In order
to generate the appropriate take number for authorization, the
following information was considered: (1) survey type; (2) location (by
modeling zone \1\); (3) number of days; and (4) season.\2\ The acoustic
exposure modeling performed in support of the rule provides 24-hour
exposure estimates for each species, specific to each modeled survey
type in each zone and season.
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\1\ For purposes of acoustic exposure modeling, the GOM was
divided into seven zones. Zone 1 is not included in the geographic
scope of the rule.
\2\ For purposes of acoustic exposure modeling, seasons include
winter (December-March) and summer (April-November).
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No 3D OBN surveys were included in the modeled survey types, and
use of existing proxies (i.e., two-dimensional (2D), 3D narrow-azimuth
(NAZ), 3D wide-azimuth (WAZ), Coil) is generally conservative for use
in evaluation of 3D OBN survey effort, largely due to the greater area
covered by the modeled proxies. Summary descriptions of these modeled
survey geometries are available in the preamble to the proposed rule
(83 FR 29212, 29220, June 22, 2018). Coil was selected as the best
available proxy survey type in this case because the spatial coverage
of the planned survey is most similar to the coil survey pattern. The
planned 3D OBN survey will involve a single source vessel sailing along
closely spaced survey lines that are approximately 345 m apart and
approximately 100 kilometers (km) in length. The coil survey pattern
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. Although
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WesternGeco is not proposing to perform a survey using the coil
geometry, its planned 3D OBN survey is expected to cover approximately
69 km\2\ per day, meaning that the coil proxy is most representative of
the effort planned by WesternGeco in terms of predicted Level B
harassment exposures.
All available acoustic exposure modeling results assume use of a
72-element, 8,000 in\3\ array. Thus, take numbers authorized through
the LOA are considered conservative due to differences in the airgun
array (28 elements, 5,240 in\3\ or Gemini), as compared to the source
modeled for the rule.
The survey will take place over approximately 65 days, with 43 days
in Zone 5 and 22 days in Zone 7. Although WesternGeco plans to conduct
all 65 survey days in the ``summer'' season, we have calculated
estimated take numbers based on an assumption that the survey could
occur in either season in order to accommodate any potential delay of
survey dates.
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 (see, e.g., 86
FR 5322, 5442, January 19, 2021), discussing the need to provide
flexibility and make efficient use of previous public and agency review
of other information and identifying that additional public review is
not necessary unless the model or inputs used differ substantively from
those that were previously reviewed by NMFS and the public. For this
survey, NMFS has other relevant information reviewed during the
rulemaking that indicates use of the acoustic exposure modeling to
generate a take estimate for Rice's whales and killer whales produces
results inconsistent with what is known regarding its occurrence in the
GOM. Accordingly, we have adjusted the calculated take estimates for
these 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 and 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 has 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; Garrison et al., 2023), and
Rice's whales have been detected within this depth band throughout the
GOM (Soldevilla et al., 2022, 2024). See discussion provided at, e.g.,
83 FR 29228, June 22, 2018; 83 FR 29280, June 22, 2018; 86 FR 5418,
January 19, 2021.
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\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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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.
WesternGeco's planned activities will overlap this depth range, with
approximately 3.6 percent of the area expected to be ensonified by the
survey above root-mean-squared pressure received levels (RMS SPL) of
160 decibel (dB) (referenced to 1 micropascal (re 1 [mu]Pa))
overlapping the 100-400 m isobaths. Therefore, while we expect take of
Rice's whale to be unlikely, there is some reasonable potential for
take of Rice's whale to occur in association with this survey. However,
NMFS' determination in reflection of the data discussed above, which
informed the final rule, is that use of the generic acoustic exposure
modeling results for Rice's whales would result in estimated take
numbers that are inconsistent with the assumptions made in the rule
regarding expected Rice's whale take (86 FR 5322, January 19, 2021).
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). 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. NMFS has
determined that the approach results in unrealistic projections
regarding the likelihood of encountering killer whales.
As discussed in the final rule, the density models produced by
Roberts et al. (2016) 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; <a href="https://www.boem.gov/gommapps">https://www.boem.gov/gommapps</a>). 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 5334 (January 19, 2021), and similarly informs our analysis
here.
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\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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The rarity of encounters 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
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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 (>700
m). 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. NMFS' determination in reflection of the data
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 5403, January 19, 2021).
In past authorizations, NMFS has often addressed situations
involving the low likelihood of encountering a rare species, such as
Rice's whales and killer whales in the GOM, through authorization of
take of a single group of average size (i.e., representing a single
potential encounter). See 83 FR 63268, December 7, 2018. See also 86 FR
29090, May 28, 2021 and 85 FR 55645, September 9, 2020. For the reasons
expressed above, NMFS determined that a single encounter of Rice's
whales and killer whales are more likely than the model-generated
estimates and has authorized take associated with a single group
encounter (i.e., up to two animals for Rice's whales and up to seven
animals for killer whales).
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 (see 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 GOM. Information supporting the small numbers
determinations is provided in table 1.
Table 1--Take Analysis
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Scaled take Percent
Species Authorized take \1\ Abundance \2\ abundance
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Rice's whale \3\.............................. 2 n/a 51 7.0
Sperm whale................................... 1,248 527.7 2,207 23.9
Kogia spp..................................... \4\ 493 149.2 4,373 4.1
Beaked whales................................. 6,021 608.1 3,768 16.1
Rough-toothed dolphin......................... 1,050 301.2 4,853 6.2
Bottlenose dolphin............................ 4,072 1,168.7 176,108 0.7
Clymene dolphin............................... 2,920 838.0 11,895 7.0
Atlantic spotted dolphin...................... 1,625 466.2 74,785 0.6
Pantropical spotted dolphin................... 15,971 4,583.6 102,361 4.5
Spinner dolphin............................... 3,054 876.6 25,114 3.5
Striped dolphin............................... 1,206 346.0 5,229 6.6
Fraser's dolphin.............................. 354 101.5 1,665 6.1
Risso's dolphin............................... 791 233.3 3,764 6.2
Melon-headed whale............................ 1,912 564.1 7,003 8.1
Pygmy killer whale............................ 532 156.9 2,126 7.4
False killer whale............................ 773 228.1 3,204 7.1
Killer whale.................................. 7 n/a 267 3.4
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Short-finned pilot whale...................... 485 143.0 1,981 7.2
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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 (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\ 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).
\4\ Includes 28 takes by Level A harassment and 465 takes by Level B harassment. Scalar ratio is applied to
takes by Level B harassment only; small numbers determination made on basis of scaled Level B harassment take
plus authorized Level A harassment take.
Based on the analysis contained herein of WesternGeco'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 WesternGeco authorizing the take of marine
mammals incidental to its geophysical survey activity, as described
above.
Dated: March 28, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2024-07138 Filed 4-4-24; 8:45 am]
BILLING CODE 3510-22-P
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