Notice2024-10736
Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico
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Published
May 16, 2024
Effective
May 10, 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 CCG 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 96 (Thursday, May 16, 2024)</title>
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[Federal Register Volume 89, Number 96 (Thursday, May 16, 2024)]
[Notices]
[Pages 42849-42852]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-10736]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD842]
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 CCG for the
take of marine mammals incidental to geophysical survey activity in the
Gulf of Mexico (GOM).
DATES: The LOA is effective from May 10, 2024 through December 31,
2024.
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: Jenna Harlacher, 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
[[Page 42850]]
not have an unmitigable adverse impact on the availability of the
species or stock(s) for subsistence uses (where relevant), and if the
permissible methods of taking and requirements pertaining to the
mitigation, monitoring and reporting of such takings are set forth.
NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an impact
resulting from the specified activity that cannot be reasonably
expected to, and is not reasonably likely to, adversely affect the
species or stock through effects on annual rates of recruitment or
survival.
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as: any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild (Level A harassment); or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).
On January 19, 2021, we issued a final rule with regulations to
govern the unintentional taking of marine mammals incidental to
geophysical survey activities conducted by oil and gas industry
operators, and those persons authorized to conduct activities on their
behalf (collectively ``industry operators''), in U.S. waters of the GOM
over the course of 5 years (86 FR 5322, January 19, 2021). The rule was
based on our findings that the total taking from the specified
activities over the 5-year period will have a negligible impact on the
affected species or stock(s) of marine mammals and will not have an
unmitigable adverse impact on the availability of those species or
stocks for subsistence uses. The rule became effective on April 19,
2021.
Our regulations at 50 CFR 217.180 et seq. allow for the issuance of
LOAs to industry operators for the incidental take of marine mammals
during geophysical survey activities and prescribe the permissible
methods of taking and other means of effecting the least practicable
adverse impact on marine mammal species or stocks and their habitat
(often referred to as mitigation), as well as requirements pertaining
to the monitoring and reporting of such taking. Under 50 CFR
217.186(e), issuance of an LOA shall be based on a determination that
the level of taking will be consistent with the findings made for the
total taking allowable under these regulations and a determination that
the amount of take authorized under the LOA is of no more than small
numbers.
Summary of Request and Analysis
CGG plans to conduct a three-dimensional (3D) ocean bottom node
(OBN) survey over the Garden Banks and Keathley Canyon areas, with
approximate water depths ranging from approximately 190 to 2,650 meters
(m). See section F of the LOA application for a map of the area.
CGG anticipates using two source vessels, towing conventional
airgun array sources consisting of 42 elements with a total volume of
5,220 cubic inches (in\3\), or the low-frequency tuned pulse source
(TPS). Please see CGG's application for additional detail.
The TPS was not included in the acoustic exposure modeling
developed in support of the rule. However, the TPS was previously
described and evaluated in the notice of issuance of a previous LOA to
Shell (86 FR 37309, 37310; July 15, 2021; see also 87 FR 55790, 55791
(September 12, 2022 (notice of issuance of LOA to Shell)). For
additional detail regarding sources, see Section C of the LOA
application. Based on this information we have determined there will be
no effects of a magnitude or intensity different from those evaluated
in support of the rule. NMFS therefore expects that use of modeling
results supporting the final rule relating to use of the 72 element,
8,000 in\3\ airgun array are expected to be significantly conservative
as a proxy for use in evaluating potential impacts of use of the TPS.
Consistent with the preamble to the final rule, the survey effort
proposed by CGG 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 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., 2D, 3D NAZ, 3D 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 two source vessels sailing
with a minimum of 2,500 m separation. The coil survey pattern was
assumed to cover the smallest kilometers squared (km\2\) per day
(compared with 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 CGG is not proposing to perform a survey
using the coil geometry, the coil proxy is most representative of the
effort planned by CGG in terms of predicted Level B harassment
exposures.
All available acoustic exposure modeling results for the 2021 final
rule 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 (42 elements, 5,220 in\3\ or the TPS
source), as compared to the source modeled for the rule.
The survey will take place over approximately 115 days with 65 days
of sound source operation. The survey plan would include all 65 days in
Zone 5. 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 (see, e.g., 86
FR 5442, January 19, 2021, discussing the need to provide flexibility
and make efficient use of
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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 two
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.
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 to 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. CGG's
planned activities will slightly overlap this depth range, with
approximately 0.8 percent of the area expected to be ensonified by the
survey above root-mean-squared pressure received levels (RMS SPL) of
160 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; 86 FR 5403, 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). 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 2017-18 (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 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 or 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; 86 FR 29090, May 28,
2021; 85 FR 55645, September 9, 2020. For the reasons expressed above,
NMFS determined that a single encounter of Rice's whales or killer
whales is more likely than the model-generated
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estimates and has authorized take associated with a single group
encounter (i.e., up to two animals for Rice's whale 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 (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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Authorized Scaled take Percent
Species take \1\ Abundance \2\ abundance
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Rice's whale \3\................................ 2 n/a 51 3.9
Sperm whale..................................... 1,710 723 2,207 32.8
Kogia spp....................................... 646 \3\ 196 4,373 5.3
Beaked whales................................... 7,546 762 3,768 20.2
Rough-toothed dolphin........................... 1,297 372 4,853 7.7
Bottlenose dolphin.............................. 6,148 1,764 176,108 1.0
Clymene dolphin................................. 3,651 1,048 11,895 8.8
Atlantic spotted dolphin........................ 2,456 705 74,785 0.9
Pantropical spotted dolphin..................... 16,568 4,755 102,361 4.6
Spinner dolphin................................. 4,439 1,274 25,114 5.1
Striped dolphin................................. 1,426 409 5,229 7.8
Fraser's dolphin................................ 410 118 1,665 7.1
Risso's dolphin................................. 1,073 316 3,764 8.4
Melon-headed whale.............................. 2,399 708 7,003 10.1
Pygmy killer whale.............................. 565 167 2,126 7.8
False killer whale.............................. 898 265 3,204 8.3
Killer whale.................................... 7 n/a 267 2.6
Short-finned pilot whale........................ 694 205 1,981 10.3
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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\ Includes 34 takes by Level A harassment and 612 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 CGG'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 CGG authorizing the take of marine mammals
incidental to its geophysical survey activity, as described above.
Dated: May 10, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2024-10736 Filed 5-15-24; 8:45 am]
BILLING CODE 3510-22-P
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