Notice2024-31041
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 27, 2024
Effective
December 20, 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 NMFS has issued a Letter of Authorization (LOA) to TGS for the take of marine mammals incidental to geophysical survey activity in the Gulf of Mexico (GOM).
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 248 (Friday, December 27, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 248 (Friday, December 27, 2024)]
[Notices]
[Pages 105536-105539]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-31041]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XE504]
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.
-----------------------------------------------------------------------
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
[[Page 105537]]
Surveys Related to Oil and Gas Activities in the Gulf of Mexico,
notification is hereby given that NMFS has issued a Letter of
Authorization (LOA) to TGS for the take of marine mammals incidental to
geophysical survey activity in the Gulf of Mexico (GOM).
DATES: The LOA is effective from December 20, 2024 through December 19,
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 section).
FOR FURTHER INFORMATION CONTACT: Rachel Wachtendonk, 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 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'' standard of
the MMPA.
Summary of Request and Analysis
TGS plans to conduct a three-dimensional (3D) ocean bottom node
(OBN) survey over 453 lease blocks in the East Breaks area, with water
depths ranging from approximately 1,200 to 2,000 m. See section F of
the LOA application for a map of the area. TGS anticipates using two
source vessels with a low-frequency airgun source known as Gemini (also
referred to as a dual barbell source). Please see TGS's application for
additional detail.
The Gemini source was not included in the acoustic exposure
modeling developed in support of the rules. However, the Gemini was
previously described and evaluated in support of a previous LOA and we
rely on that analysis here (88 FR 72739, October 23, 2023). For
additional detail regarding the source, 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 rules. NMFS expects that use of modeling results
supporting the final rule relating to use of the 4,130 cubic inch
(in\3\) airgun array are expected to be conservative as a proxy for use
in evaluating potential impacts of use of the Gemini.
The survey effort proposed by TGS in its LOA request was used to
develop LOA-specific take estimates based on the acoustic exposure
modeling results described in our rule 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 4,130 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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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
[[Page 105538]]
(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 OBN survey will involve two source vessels sailing along
closely spaced survey lines, with daily survey area coverage of
approximately 172 kilometers squared 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 TGS is not proposing to
perform a survey using the coil geometry, the coil proxy is most
representative of the effort planned by TGS in terms of predicted Level
B harassment exposures.
The survey will take place over approximately 150 days with 90 days
of sound source operation in zone 6. The monthly distribution of survey
days is not known in advance, so take estimates for each species are
based on the time period that produces the greatest 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 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 whale produces results inconsistent
with what is known regarding their occurrence in the GOM. Accordingly,
we have adjusted the calculated take estimates for Rice's whale 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) (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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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 habitat described above (i.e., 100-400 m) and that, based on the few
available records, these occurrences would be rare. TGS's planned
activities will occur in water depths of approximately 1,200 to 2,000 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 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 (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 (86 FR
5404, January 19, 2021; 89 FR 31535, May 24, 2024). 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.
[[Page 105539]]
Table 1--Take Analysis
----------------------------------------------------------------------------------------------------------------
Authorized Scaled take Percent
Species take \1\ Abundance \2\ abundance
----------------------------------------------------------------------------------------------------------------
Rice's whale.................................... 0 n/a 51 n/a
Sperm whale..................................... 674 284.9 3,007 9.5
Kogia spp....................................... \3\ 259 79.0 980 9.4
Beaked whales................................... 254 25.7 803 3.2
Rough-toothed dolphin........................... 1,862 534.5 4,853 11.0
Bottlenose dolphin.............................. 2,581 740.8 165,125 0.4
Clymene dolphin................................. 3,209 921.1 4,619 19.9
Atlantic spotted dolphin........................ 4,349 1,248.2 21,506 5.8
Pantropical spotted dolphin..................... 11,870 3,406.7 67,225 5.1
Spinner dolphin................................. \4\ 152 43.6 5,548 0.8
Striped dolphin................................. 1,887 541.6 5,634 9.6
Fraser's dolphin................................ 742 213.0 1,665 12.8
Risso's dolphin................................. 482 142.1 1,974 7.2
Blackfish \5\................................... 5,034 1,484.9 6,113 24.3
Short-finned pilot whale........................ 2,561 755.5 2,741 27.6
----------------------------------------------------------------------------------------------------------------
\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 13 takes by Level A harassment and 246 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\ Modeled take of 9 increased to account for potential encounter with a group of average size (Maze-Foley and
Mullin, 2006).
\5\ The ``blackfish'' guild includes melon-headed whales, false killer whales, pygmy killer whales, and killer
whales.
Based on the analysis contained herein of TGS'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 TGS authorizing the take of marine mammals
incidental to its geophysical survey activity, as described above.
Dated: December 20, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2024-31041 Filed 12-26-24; 8:45 am]
BILLING CODE 3510-22-P
</pre></body>
</html>Indexed from Federal Register on December 27, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.