Notice2024-18941
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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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 23, 2024
Effective
August 15, 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 164 (Friday, August 23, 2024)</title>
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[Federal Register Volume 89, Number 164 (Friday, August 23, 2024)]
[Notices]
[Pages 68141-68143]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-18941]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XE122]
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 August 15, 2024 through July 31, 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: 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 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, and became effective on April 19, 2021.
The 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
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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, April
24, 2024).
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'' (LPAI)
standard of the MMPA.
Summary of Request and Analysis
CGG plans to conduct a three-dimensional (3D) ocean bottom node
(OBN) survey over 1,840 lease blocks in the Garden Banks and Keathley
Canyon areas, with water depths ranging from approximately 1,000 to
3,200 meters (m). See section F of the LOA application for a map of the
area.
CGG anticipates using two dual-source vessels, and would
preferentially use the low-frequency tuned pulse source (TPS).
Alternatively, CGG may use conventional airgun array sources consisting
of 42 elements with a total volume of 5,220 cubic inches (in\3\).
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 support of previous LOAs and we rely on
those analyses here (86 FR 37309, 37310; July 15, 2021; see also 87 FR
55790, 55791; September 12, 2022). 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 32 element, 5,110 in\3\ airgun array
are expected to be 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 (89 FR 31488, April 24, 2024). 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; (4) source; and (5) month.\2\ In this
case, the 5,110 in\3\ airgun array was selected, as discussed above.
The acoustic exposure modeling performed in support of the rule
provides 24-hour exposure estimates for each species, specific to each
modeled source and survey type in each zone and month.
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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\ Acoustic propagation modeling was performed for two seasons:
Winter (December-March) and Summer (April-November). Marine mammal
density data is generally available on a monthly basis, and
therefore further refines take estimates temporally.
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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 OBN survey will involve two source
vessels sailing along closely spaced survey lines, with daily survey
area coverage of approximately 144 kilometers squared (km\2\) per day,
similar to that assumed for the coil survey proxy. 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.
The survey will take place over approximately 115 days with 65 days
of sound source operation, with 40 days planned in Zone 5 and 25 days
planned in Zone 6. The monthly distribution of survey days is not known
in advance, though we assume that the planned 65 days of source
operation would occur contiguously. Take estimates for each species are
based on the time period that produces the greatest value.
For the Rice's whale, 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 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 may produce results inconsistent with what is
known regarding their occurrence in the GOM. Accordingly, we have
adjusted the calculated take estimates as described below.
NMFS' 2024 final rule provided detailed discussion regarding Rice's
whale habitat (see, e.g., 89 FR 31508, 31519). In summary, recent
survey data, sightings, and acoustic data support Rice's whale
occurrence in waters throughout the GOM between approximately 100 m and
400 m depth along the continental shelf break, and associated habitat-
based density modeling has identified similar habitat (i.e.,
approximately 100 to 400 m water depths along the continental shelf
break) as being Rice's whale habitat (Garrison et al., 2023; Soldevilla
et al., 2022, 2024).
Although Rice's whales may occur outside of the general depth range
expected to provide suitable habitat, we expect that any such
occurrence would be rare. CGG's planned activities will
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occur in water depths of approximately 1,000 to 3,200 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.
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 (see 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 (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>).
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..................................... 572 241.8 3,007 8.0
Kogia spp....................................... \3\ 196 59.6 980 7.1
Beaked whales................................... 1,354 136.8 803 17.0
Rough-toothed dolphin........................... 1,471 422.2 4,853 8.7
Bottlenose dolphin.............................. 1,986 570.0 165,125 0.3
Clymene dolphin................................. 1,553 445.7 4,619 9.6
Atlantic spotted dolphin........................ 1,702 488.5 21,506 2.3
Pantropical spotted dolphin..................... 12,124 3,479.5 67,225 5.2
Spinner dolphin................................. 188 53.9 5,548 1.0
Striped dolphin................................. 2,246 644.7 5,634 11.4
Fraser's dolphin................................ 554 158.9 1,665 9.5
Risso's dolphin................................. 468 138.2 1,974 7.0
Blackfish \4\................................... 3,514 1,036.5 6,113 17.0
Short-finned pilot whale........................ 1,305 384.9 2,741 14.0
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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 10 takes by Level A harassment and 186 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.
\4\ The ``blackfish'' guild includes melon-headed whales, false killer whales, pygmy killer whales, and killer
whales.
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: August 15, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2024-18941 Filed 8-22-24; 8:45 am]
BILLING CODE 3510-22-P
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