[Federal Register Volume 89, Number 78 (Monday, April 22, 2024)]
[Notices]
[Pages 29307-29310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08542]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD797]
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; 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 bp Exploration
and Production Inc. (bp) for the take of marine mammals incidental to
geophysical survey activity in the Gulf of Mexico.
DATES: The LOA is effective from April 27, 2024 through September 15,
2024.
ADDRESSES: The LOA, LOA request, and supporting documentation are
available online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico. In case of problems accessing these documents, please call
the contact listed
[[Page 29308]]
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
Gulf of Mexico (GOM) over the course of 5 years (86 FR 5322). 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
Bp plans to conduct a three-dimensional (3D) ocean bottom node
(OBN) and distributed acoustic sensing (DAS) survey in the Atlantis
protraction area. Approximate water depths of the survey area range
from 1,295-2,346 meters (m). See section 1.1 of the LOA application for
a map of the area.
Consistent with the preamble to the final rule, the survey effort
proposed by bp 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 numbers 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 or DAS surveys were included in the modeled survey types,
and use of existing proxies (i.e., two-dimensional (2D), 3D narrow-
azimuth (NAZ), 3D wide-azimuth (WAZ), Coil) is generally conservative
for use in evaluation of 3D OBN and DAS 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 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 and DAS surveys will use the same seismic source
and are thus conducted at the same time. This will involve two source
vessels. The coil survey pattern was assumed to cover approximately 144
kilometers squared (km\2\) per day (compared with approximately 795
km\2\, 199 km\2\, and 845 km\2\ per day for 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 to be influential on daily modeled exposures exceeding Level B
harassment criteria. Although bp is not proposing to perform a survey
using the coil geometry, its planned 3D OBN and DAS survey is expected
to cover approximately 15 km\2\ per day, meaning that the coil proxy is
most representative of the total survey effort planned by bp in terms
of predicted Level B harassment exposures. In addition, all available
acoustic exposure modeling results assume use of a 72-element, 8,000
cubic inches (in\3\) array. Thus, estimated take numbers for this LOA
are considered conservative due to differences in both the airgun array
(32 elements, 5,110 in\3\) and daily survey area planned by bp, as
compared to those modeled for the rule.
The survey will include 60 days of sound source operation. The
survey plan includes 30 days within Zone 5 and 30 days within Zone 7.
The survey would occur in summer months only. Therefore, the take
estimates for each species are based on summer take estimates.
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. This can result in unrealistic projections
regarding the likelihood of encountering particularly rare species and/
or species not expected
[[Page 29309]]
to occur outside particular habitats. Thus, although the modeling
conducted for the rule is a natural starting point for estimating take,
our rule acknowledged that other information could be considered (e.g.,
86 FR 5322, 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 whales (formerly known as GOM
Bryde's whales) \3\ and killer whales 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.
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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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NMFS' final rule described a ``core habitat area'' for Rice's
whales 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 100-400 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.
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. Bp's
planned activities will occur in water depths of approximately 1,295-
2,347 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 this LOA.
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 to 2009 reported only 16
sightings of killer whales, with an additional 3 encounters during more
recent survey effort from 2017 to 2018 (Waring et al., 2013; https://www.boem.gov/gommapps). 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 (PSO) on industry geophysical survey
vessels from 2002 to 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 5322 and 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 encounter 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 and 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. 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. In addition, as noted above in relation to the general
take estimation methodology, the assumed proxy source (72-element,
8,000-in\3\ array) results in a significant overestimate of the actual
potential for take to occur. NMFS' determination in reflection of the
information 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 5322, January 19, 2021; 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
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 killer whales is more likely
than the model-generated estimates and has authorized take associated
with a single group encounter (i.e., up to 7 animals).
[[Page 29310]]
Based on the results of our analysis, NMFS has determined that the
level of taking authorized through the LOA is consistent with the
findings made for the total taking allowable under the regulations for
the affected species or stocks of marine mammals. 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 5322, January 19, 2021; 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; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-species-stock) and model-predicted abundance information (https://seamap.env.duke.edu/models/Duke/GOM/). 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.................................... 0 n/a 51 0
Sperm whale..................................... 932 394 2,207 17.9
Kogia spp....................................... \3\ 363 109 4,373 3.0
Beaked whales................................... 4,684 473 3,768 12.6
Rough-toothed dolphin........................... 804 231 4,853 4.8
Bottlenose dolphin.............................. 2,673 767 176,108 0.4
Clymene dolphin................................. 2,175 624 11,895 5.2
Atlantic spotted dolphin........................ 1,098 315 74,785 0.4
Pantropical spotted dolphin..................... 12,974 3,724 102,361 3.6
Spinner dolphin................................. 2,080 597 25,114 2.4
Striped dolphin................................. 924 265 5,229 5.1
Fraser's dolphin................................ 285 82 1,665 4.9
Risso's dolphin................................. 565 167 3,764 4.4
Melon-headed whale.............................. 1,478 436 7,003 6.2
Pygmy killer whale.............................. 438 129 2,126 4.4
False killer whale.............................. 612 180 3,204 5.6
Killer whale.................................... 7 n/a 267 2.6
Short-finned pilot whale........................ 346 102 1,981 5.2
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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 (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 the killer whale, the larger estimated SAR abundance estimate is used.
\3\ Includes 23 takes by Level A harassment and 340 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 bp'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 bp authorizing the take of marine mammals
incidental to its geophysical survey activity, as described above.
Dated: April 17, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2024-08542 Filed 4-19-24; 8:45 am]
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