Notice2024-28455
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
December 5, 2024
Effective
October 31, 2025
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 (GOM), notification is hereby given that NMFS has modified the expiration date of a Letter of Authorization (LOA) issued to Shell Offshore Inc. (Shell) for the taking of marine mammals incidental to geophysical survey activity in the GOM.
Full Text
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<title>Federal Register, Volume 89 Issue 234 (Thursday, December 5, 2024)</title>
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[Federal Register Volume 89, Number 234 (Thursday, December 5, 2024)]
[Notices]
[Pages 96643-96645]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-28455]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XE478]
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 modification to expiration date 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 modified the expiration date of a Letter of
Authorization (LOA) issued to Shell Offshore Inc. (Shell) for the
taking of marine mammals incidental to geophysical survey activity in
the GOM.
DATES: This LOA is effective through October 31, 2025.
ADDRESSES: The LOA, LOA request, and supporting documentation are
available online at: <a href="https://www.fisheries.noaa.gov/marine-mammal-protection/issued-letters-authorization-oil-and-gas-industry-geophysical-survey">https://www.fisheries.noaa.gov/marine-mammal-protection/issued-letters-authorization-oil-and-gas-industry-geophysical-survey</a>. In case of problems accessing these documents,
please call the contact listed below 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
[[Page 96644]]
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.
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.
NMFS issued a LOA to Shell on April 19, 2024, for the take of
marine mammals incidental to a four-dimensional (4D) ocean bottom node
survey in the Mississippi Canyon 941 and portions of the surrounding 80
lease blocks, effective July 1, 2024, through June 30, 2025. Please see
the Federal Register notice of issuance (89 FR 25577, April 11, 2024)
for additional detail regarding the LOA and the survey activity.
Shell has requested that the June 30, 2025, expiration date be
extended to October 31, 2025, due to changes in survey timing. Since we
issued the LOA to Shell, we have updated the final rule to include
corrected take estimates and new information as discussed above;
therefore, we have updated the authorized take numbers accordingly
based on this new information. There are no changes to the planned
survey, as described in the previous notice of issuance (89 FR 25577,
April 11, 2024), including the planned location and duration of the
survey.
As discussed in the previous notice of issuance (89 FR 25577, April
11, 2024), no 4D ocean bottom node (OBN) surveys were included in the
modeled survey types, thus the coil proxy was selected. Shell plans to
cover approximately 15.7 square kilometers (km\2\) per day compared to
the 144 km\2\ in the coil proxy, and although Shell is not proposing to
perform a survey using the coil geometry, the coil proxy is most
representative of the effort planned by Shell in terms of predicted
Level B harassment exposures. Additionally, Shell plans to use a 32-
element, 5,110 cubic inch (in\3\) airgun array and therefore the 5,110
in\3\ proxy was selected.
The survey will take place over approximately 90 days with 60 days
of sound source operation, all planned in zone 5. The monthly
distribution of survey days is not known in advance, though we assume
that the planned 60 days of source operation would occur contiguously.
Take estimates for each species are based on the time period that
produces the greatest value. There are no other changes to Shell's
planned activity.
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. Shell's planned activities will occur in
water depths of approximately 1,500 to 3,000 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
[[Page 96645]]
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. 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 0
Sperm whale..................................... 543 230 3,007 7.6
Kogia spp....................................... \3\ 172 52 980 6.2
Beaked whales................................... 1,882 190 803 23.7
Rough-toothed dolphin........................... 1,399 401 4,853 8.3
Bottlenose dolphin.............................. 1,684 483 165,125 0.3
Clymene dolphin................................. 869 168 4,619 3.6
Atlantic spotted dolphin........................ 496 142 21,506 0.7
Pantropical spotted dolphin..................... 11,845 3,400 67,225 5.1
Spinner dolphin................................. 258 74 5,548 1.3
Striped dolphin................................. 2,441 701 5,634 12.4
Fraser's dolphin................................ 512 98 1,665 5.9
Risso's dolphin................................. 421 124 1,974 6.3
Blackfish \4\................................... 3,012 888 6,113 14.5
Short-finned pilot whale........................ 698 206 2,741 7.5
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\1\ Scalar ratios were applied to ``Authorized Take'' values as described at 86 FR 5322 and 86 FR 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 SAR abundance estimate is used.
\3\ Includes 9 takes by Level A harassment and 163 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.
Authorization
NMFS has changed the expiration date of the LOA from June 30, 2025,
to October 31, 2025 and updated authorized take numbers based on the
corrected information in the updated rule. There are no other changes
to the LOA as described in the April 11, 2024, Federal Register notice
of issuance (89 FR 25577); the specified survey activity, and small
numbers analysis and determination remain unchanged and are
incorporated here by reference.
Dated: November 27, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2024-28455 Filed 12-4-24; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on December 5, 2024.
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