[Federal Register Volume 88, Number 200 (Wednesday, October 18, 2023)]
[Notices]
[Pages 71840-71844]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22913]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD429]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to a Geophysical Survey in the Ross 
Sea, Antarctica

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; request for comments on proposed renewal incidental 
harassment authorization.

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SUMMARY: NMFS received a request from the United States National 
Science Foundation (NSF) for the renewal of their currently active 
incidental harassment authorization (IHA) (hereinafter, the ``initial 
IHA'') to take marine mammals incidental to a geophysical survey in the 
Ross Sea, Antarctica because NSF's activities will not be completed 
prior to the IHA's expiration. Pursuant to the Marine Mammal Protection 
Act, prior to issuing the currently active IHA, NMFS requested comments 
on both the proposed IHA and the potential for renewing the initial 
authorization if certain requirements were satisfied. The renewal 
requirements have been satisfied, and NMFS is now providing an 
additional 15-day comment period to allow for any additional comments 
on the proposed renewal not previously provided during the initial 30-
day comment period.

[[Page 71841]]


DATES: Comments and information must be received no later than November 
2, 2023.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources (OPR), 
NMFS, and should be submitted via email to [email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments, including all attachments, must 
not exceed a 25-megabyte file size. Attachments to comments will be 
accepted in Microsoft Word, Excel or Adobe PDF file formats only. All 
comments received are a part of the public record and will generally be 
posted online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All 
personal identifying information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information. Electronic copies of the original application, renewal 
request, and supporting documents (including NMFS Federal Register 
notices of the original proposed and final authorizations, and the 
previous IHA), as well as a list of the references cited in this 
document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these documents, please call the 
contact listed below.

FOR FURTHER INFORMATION CONTACT: Jenna Harlacher, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION: 

Background

    The Marine Mammal Protection Act (MMPA) prohibits the ``take'' of 
marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) 
of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce 
(as delegated to NMFS) 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 promulgated or, if the taking is limited to 
harassment, an incidental harassment authorization is issued.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to here as ``mitigation 
measures''). NMFS must also prescribe requirements pertaining to 
monitoring and reporting of such takings. The definition of key terms 
such as ``take,'' ``harassment,'' and ``negligible impact'' can be 
found in the MMPA and NMFS's implementing regulations (see 16 U.S.C. 
1362; 50 CFR 216.103).
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed 1 year for each reauthorization. In the notice of proposed IHA 
for the initial IHA, NMFS described the circumstances under which we 
would consider issuing a renewal for this activity, and requested 
public comment on a potential renewal under those circumstances. 
Specifically, on a case-by-case basis, NMFS may issue a one-time 1-year 
renewal of an IHA following notice to the public providing an 
additional 15 days for public comments when (1) up to another year of 
identical, or nearly identical, activities as described in the Detailed 
Description of Specified Activities section of the initial IHA issuance 
notice is planned or (2) the activities as described in the Description 
of the Specified Activities and Anticipated Impacts section of the 
initial IHA issuance notice would not be completed by the time the 
initial IHA expires and a renewal would allow for completion of the 
activities beyond that described in the DATES section of the notice of 
issuance of the initial IHA, provided all of the following conditions 
are met:
    1. A request for renewal is received no later than 60 days prior to 
the needed renewal IHA effective date (recognizing that the renewal IHA 
expiration date cannot extend beyond 1 year from expiration of the 
initial IHA);
    2. The request for renewal must include the following:
     An explanation that the activities to be conducted under 
the requested renewal IHA are identical to the activities analyzed 
under the initial IHA, are a subset of the activities, or include 
changes so minor (e.g., reduction in pile size) that the changes do not 
affect the previous analyses, mitigation and monitoring requirements, 
or take estimates (with the exception of reducing the type or amount of 
take); and
     A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized;
    3. Upon review of the request for renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed renewal. A description of the renewal process 
may be found on our website at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals. Any comments received on the potential renewal, along with 
relevant comments on the initial IHA, have been considered in the 
development of this proposed IHA renewal, and a summary of agency 
responses to applicable comments is included in this notice. NMFS will 
consider any additional public comments prior to making any final 
decision on the issuance of the requested renewal, and agency responses 
will be summarized in the final notice of our decision.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an IHA 
renewal) with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental take authorizations with no 
anticipated serious injury or mortality) of the Companion Manual for 
NOAA Administrative Order 216-6A, which do not individually or 
cumulatively have the potential for significant impacts on

[[Page 71842]]

the quality of the human environment and for which we have not 
identified any extraordinary circumstances that would preclude this 
categorical exclusion. Accordingly, NMFS determined that the issuance 
of the initial IHA qualified to be categorically excluded from further 
NEPA review. NMFS has preliminarily determined that the application of 
this categorical exclusion remains appropriate for this renewal IHA.

History of Request

    On December 15, 2022, NMFS issued an IHA to NSF to take marine 
mammals incidental to conducting a low energy seismic survey and 
icebreaking in the Ross Sea (87 FR 77,796, December 20, 2022), 
effective from December 15, 2022 through December 14, 2023. On 
September 7, 2023, NMFS received an application for the renewal of that 
initial IHA. As described in the application for renewal IHA, the 
activities for which incidental take authorization is requested consist 
of activities that are covered by the initial authorization but will 
not be completed prior to its expiration. As required, the applicant 
also provided a preliminary monitoring report, which confirms that the 
applicant has implemented the required mitigation and monitoring and 
which also shows that no impacts of a scale or nature not previously 
analyzed or authorized have occurred as a result of the activities 
conducted.

Description of the Specified Activities and Anticipated Impacts

    NSF initially described their activities as including two main 
survey areas (i.e., the Ross Bank and the Drygalski Trough). The 
purpose of the survey was to collect low energy 2D seismic reflection 
data, along with oceanographic and sediment samples to understand if, 
how, when, and why the Ross Ice Shelf unpinned from the Ross Bank in 
the recent geologic past.
    The initial planned survey involved one source vessel, RVIB Palmer, 
using an airgun array cluster consisting of two 105 cubic inches 
(in\3\) GI guns, with a total discharge volume of 210 in\3\, deployed 
at a depth of approximately 1-4 meters (m) below the surface to conduct 
both of the survey segments. During the Ross Bank survey, ~1920 
kilometers (km) of seismic data was planned to be collected and during 
the Drygalski Trough survey, ~1800 km of seismic acquisition was 
planned to occur, for a total of 3720 line km. During the Drygalski 
Trough survey portion, 2 deployments of 10 Ocean Bottom Seismometers 
(OBS) were planned to occur along 2 different seismic refraction lines.
    The seismic surveys would occur within the Ross Sea in water depths 
ranging from ~150 to 1100 m. The initial survey was expected to consist 
of 31 days at sea, including approximately 19 days of seismic 
operations (including 2 days of sea trials and/or contingency), 1 day 
of OBS deployment/recovery, and approximately 11 days of transit.
    Due to logistical challenges, the initial survey was not 
successfully completed. There was a long delay in leaving New Zealand 
due to an enforced quarantine after survey members tested positive for 
COVID-19 and only a subset of the survey activities in the initial IHA 
were completed. Specifically, under the initial IHA, the NSF completed 
surveys within the Ross Bank Area but not the Drygalski Trough area.
    This renewal request is to cover a subset of the activities covered 
in the initial IHA that will not be completed during the effective 
period of the initial IHA due to the aforementioned logistical 
challenges. The remaining survey activities would include the survey 
within the Dygalski Trough area and icebreaking and are expected to 
occur during February 2024 (11 days of transit, 9 days of seismic 
surveys, and 1 day of OBS deployment and retrieval).
    The potential impacts of the NSF's proposed activity on marine 
mammals could involve acoustic stressors and are unchanged from the 
impacts described in the initial IHA. Acoustic stressors include 
effects of the airgun array from the low-energy seismic surveys and 
icebreaking. The effects of underwater disturbance from the NSF's 
proposed activities have the potential to result in Level B harassment 
of marine mammals in the specified geographic region.

Detailed Description of the Activity

    A detailed description of the survey activities for which 
incidental take is proposed here may be found in the notices of the 
proposed and final IHAs for the initial authorization (87 FR 59204, 
September 29, 2022; 87 FR 77796, December 20, 2022). As previously 
mentioned, this request is for a subset of the activities analyzed for 
the initial IHA that would not be completed prior to its expiration due 
to logistical challenges. The timing, and nature of the activities, 
including the types of equipment planned for use, are identical to 
those described in the previous notice for the initial IHA. The 
proposed renewal IHA would be effective from December 15, 2023 through 
December 14, 2024.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which renewal authorization of take is proposed here, including 
information on abundance, status, distribution, and hearing, may be 
found in the notice of the proposed IHA for the initial authorization 
(87 FR 59204, September 29, 2022). NMFS has reviewed the monitoring 
data from the initial IHA, recent Stock Assessment Reports, information 
on relevant Unusual Mortality Events, and other scientific literature 
and determined there is no new information that affects which species 
or stocks have the potential to be affected or the pertinent 
information in the Description of the Marine Mammals in the Area of 
Specified Activities contained in the supporting documents for the 
initial IHA (87 FR 59204, September 29, 2022).

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which an 
authorization of incidental take is proposed here may be found in the 
notice of the proposed IHA for the initial authorization (87 FR 59204, 
September 29, 2022). NMFS has reviewed the monitoring data from the 
initial IHA, recent Stock Assessment Reports, information on relevant 
Unusual Mortality Events, and other scientific literature and 
determined that there is no new information that affects our initial 
analysis of impacts on marine mammals and their habitat.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the notices of the 
proposed and final IHAs for the initial authorization (87 FR 59204, 
September 29, 2022; 87 FR 77796, December 20, 2022). Specifically, the 
number of survey days, specified geographic region, specified 
activities and marine mammal occurrence data applicable to this 
authorization remain unchanged from the previously issued IHA. 
Similarly, the stocks taken, methods of take, take estimates and type 
of take (i.e., Level B harassment) remain unchanged from the previously 
issued IHA. The number of takes proposed for authorization in this 
renewal IHA are a subset of the initial authorized takes that better 
represent the amount of activity NSF has left to complete. These 
estimated takes, which reflect the remaining survey days and 
icebreaking

[[Page 71843]]

activities, are indicated below in Table 1.

    Table 1--Proposed Number of Takes by Level B Harassment by Species and Stock and Percent of Take by Stock
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                                           Level B Take
                                 --------------------------------   Total take      Population      Percent of
             Species                 Drygalski                       proposed        abundance      population
                                      survey        Icebreaking
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Humpback whale..................             159             266             425          42,000             1.0
Fin whale.......................             152             254             405          38,200             1.1
Blue whale......................              32              54              86           1,700             5.1
Sei whale.......................              23              38              61          10,000             0.6
Antarctic minke whale...........             418             700           1,118         515,000             0.2
Sperm whale.....................              49              82             131          12,069             1.1
Southern bottlenose whale.......              58              98             156         599,300            <0.1
Arnoux's beaked whale...........              66             111             178         599,300            <0.1
Strap-toothed beaked whale......              22              37              59         599,300            <0.1
Killer whale....................             103             173             276          25,000             1.1
Long-finned pilot whale.........             198             331             529         200,000             0.3
Hourglass dolphin...............              94             157             251         144,300             0.2
Crabeater seal..................           3,361           5,629           8,990       1,700,000             0.5
Leopard seal....................             132             221             353         220,000             0.2
Ross seal.......................              82             138             220         250,000             0.1
Weddell seal....................             527             883           1,410       1,000,000             0.1
Southern elephant seal..........               1               1               2         750,000            <0.1
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Description of Proposed Mitigation, Monitoring and Reporting Measures

    The proposed mitigation, monitoring, and reporting measures 
included as requirements in this authorization are identical to those 
included in the initial IHA and the discussion of the least practicable 
adverse impact determination included in Federal Register notice 
announcing the issuance of the initial IHA remains applicable and 
accurate (87 FR 77796, December 20, 2022). The following mitigation, 
monitoring, and reporting measures are proposed for this renewal:
     Mitigation measures that would be adopted during the 
planned survey include, but are not limited to: (1) Vessel speed or 
course alteration, provided that doing so would not compromise 
operation safety requirements. (2) GI-airgun shut down within shutdown 
zones, and (3) ramp-up procedures;
     During survey operations (e.g., any day on which use of 
the acoustic source is planned to occur, and whenever the acoustic 
source is in the water, whether activated or not), a minimum of one 
protected species observer (PSO) must be on duty and conducting visual 
observations at all times during daylight hours (i.e., from 30 minutes 
prior to sunrise through 30 minutes following sunset) and 30 minutes 
prior to and during ramp-up of the airgun array. Visual monitoring of 
the exclusion and buffer zones must begin no less than 30 minutes prior 
to ramp-up and must continue until one hour after use of the acoustic 
source ceases or until 30 minutes past sunset. Visual PSOs must 
coordinate to ensure 360 degree visual coverage around the vessel from 
the most appropriate observation posts, and must conduct visual 
observations using binoculars and the naked eye while free from 
distractions and in a consistent, systematic, and diligent manner;
     The PSOs would establish a minimum exclusion zone (EZ) 
with a 100 m radius with an additional 100 m buffer zone (total of 200 
m). The 200 m zone would be based on radial distance from the edge of 
the airgun array (rather than being based on the center of the array or 
around the vessel itself);
     An extended 500 m EZ must be established for beaked 
whales, large whales with a calf (defined as an animal less than two-
thirds the body size of an adult observed to be in close association 
with an adult), and an aggregation of six or more whales during all 
survey effort. No buffer zone is required;
     Ramp-up is the gradual and systematic increase of emitted 
sound levels from an airgun array. Ramp-up would begin with one GI 
airgun 45 cu in first being activated, followed by the second after 5 
minutes. The intent of pre-clearance observation (30 minutes) is to 
ensure no marine mammals are observed within the buffer zone prior to 
the beginning of ramp-up. During pre-clearance is the only time 
observations of marine mammals in the buffer zone would prevent 
operations (i.e., the beginning of ramp-up). The intent of ramp-up is 
to warn protected species of pending seismic operations and to allow 
sufficient time for those animals to leave the immediate vicinity. A 
ramp-up procedure, involving a stepwise increase in the number of 
airguns are activated and the full volume is achieve, is required at 
all times as part of the activation of the acoustic source;
     The shutdown of an airgun array requires the immediate de-
activation of all individual airgun elements of the array. Any PSO on 
duty will have the authority to delay the start of survey operations or 
to call for shutdown of the acoustic source if a marine mammal is 
detected within the applicable exclusion zone. The operator must also 
establish and maintain clear lines of communication directly between 
PSOs on duty and crew controlling the acoustic source to ensure that 
shutdown commands are conveyed swiftly while allowing PSOs to maintain 
watch. When the airgun array is active (i.e., anytime one or more 
airguns is active, including during ramp-up) and a marine mammal 
appears within or enters the applicable EZ, the acoustic source will be 
shut down. When shutdown is called for by a PSO, the acoustic source 
will be immediately deactivated and any dispute resolved only following 
deactivation;
     Following a shutdown, airgun activity would not resume 
until the marine mammal has cleared the EZ. The animal would be 
considered to have cleared the EZ if it is visually observed to have 
departed the EZ, or it has not been seen within the EZ for 15 minutes 
in the case of small odontocetes and pinnipeds, and 30 minutes for

[[Page 71844]]

mysticetes and all other odontocetes, including sperm and beaked 
whales, with no further observation of the marine mammal(s);
     The NSF must deploy vessel strike avoidance measures;
     The NSF must submit a draft report detailing all 
activities and monitoring results within 90 calendar days of the 
completion of the survey or expiration of the IHA, whichever comes 
sooner;
     The NSF must submit a final report within 30 days 
following resolution of comments on the draft report from NMFS; and
     The NSF must report injured or dead marine mammals.

Comments and Responses

    As noted previously, NMFS published a notice of a proposed IHA (87 
FR 59204, September 29, 2022) and solicited public comments on both our 
proposal to issue the initial IHA for geophysical survey in the Ross 
Sea and on the potential for a renewal IHA, should certain requirements 
be met. During the 30-day public comment period, NMFS received no 
substantive comments on either the proposal to issue the initial IHA 
for the NSF's survey activities or on the potential for a renewal IHA.

Preliminary Determinations

    NSF's proposed activities consist of a subset of activities 
analyzed in the initial IHA. In analyzing the effects of the activities 
for the initial IHA, NMFS determined that NSF's activities would have a 
negligible impact on the affected species or stocks and that authorized 
take numbers of each species or stock were small relative to the 
relevant stocks (e.g., less than one-third the abundance of all 
stocks). The mitigation measures and monitoring and reporting 
requirements as described above are identical to the initial IHA.
    NMFS has preliminarily concluded that there is no new information 
suggesting that our analysis or findings should change from those 
reached for the initial IHA. Based on the information and analysis 
contained here and in the referenced documents, NMFS has determined the 
following: (1) the required mitigation measures will effect the least 
practicable impact on marine mammal species or stocks and their 
habitat; (2) the authorized takes will have a negligible impact on the 
affected marine mammal species or stocks; (3) the authorized takes 
represent small numbers of marine mammals relative to the affected 
stock abundances; (4) NSF's activities will not have an unmitigable 
adverse impact on taking for subsistence purposes as no relevant 
subsistence uses of marine mammals are implicated by this action; and 
(5) appropriate monitoring and reporting requirements are included.

Endangered Species Act

    The NMFS OPR Endangered Species Act (ESA) Interagency Cooperation 
Division issued a Biological Opinion under section 7 of the ESA (16 
U.S.C. 1531 et seq.) on the issuance of an IHA and potential renewal 
IHA to NSF under section 101(a)(5)(D) of the MMPA by the NMFS OPR 
Permits and Conservation Division. The Biological Opinion concluded 
that the action is not likely to jeopardize the continued existence of 
ESA-listed blue whales, fin whales, sei whales, and sperm whales.

Proposed Renewal IHA and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue a renewal IHA to NSF for conducting geophysical survey and 
icebreaking activities in the Ross Sea in the February 2024, provided 
the previously described mitigation, monitoring, and reporting 
requirements are incorporated. A draft of the proposed and final 
initial IHA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. We 
request comment on our analyses, the proposed renewal IHA, and any 
other aspect of this notice. Please include with your comments any 
supporting data or literature citations to help inform our final 
decision on the request for MMPA authorization.

    Dated: October 12, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-22913 Filed 10-17-23; 8:45 am]
BILLING CODE 3510-22-P