[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]
BILLING CODE 3510-22-P