[Federal Register Volume 89, Number 93 (Monday, May 13, 2024)]
[Notices]
[Pages 41384-41387]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-10303]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD880]


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.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA), as 
amended, its implementing regulations, and NMFS' MMPA Regulations for 
Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil 
and Gas Activities in the Gulf of Mexico (GOM), notification is hereby 
given that a Letter of Authorization (LOA) has been issued to Shell 
Offshore Inc. (Shell) for the take of marine mammals incidental to 
geophysical survey activity in the GOM.

DATES: The LOA is effective from July 1, 2024 through June 30, 2025.

ADDRESSES: The LOA, LOA request, and supporting documentation are 
available online at: 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 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

[[Page 41385]]

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. The rule became effective on April 19, 
2021.
    Our regulations at 50 CFR 217.180 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

    Shell plans to conduct a 4D ocean bottom node (OBN) survey in the 
Mississippi Canyon 392, De Soto Canyon and the surrounding 62 lease 
blocks; with approximate water depths ranging from 1,700 to 2,400 
meters (m). See section F of the LOA application for a map of the area. 
Shell anticipates using a single source vessel, towing a conventional 
airgun array source consisting of 32 elements, with a total volume of 
5,110 cubic inches (in\3\). Please see Shell's application for 
additional detail.
    Consistent with the preamble to the final rule, the survey effort 
proposed by Shell 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 number 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 OBN surveys were included in the modeled survey types, and use 
of existing proxies (i.e., 2D, 3D NAZ, 3D 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 because the 
spatial coverage of the planned survey is most similar to that 
associated with the coil survey pattern. The planned OBN survey will 
involve one source vessel sailing along closely spaced survey lines 
approximately 25 kilometers (km) in length. The coil survey pattern in 
the model 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 per day 
to be most influential on daily modeled exposures exceeding Level B 
harassment criteria. Although Shell is not proposing to perform a 
survey using the coil geometry, its planned OBN survey is expected to 
cover approximately 14.3 km\2\ per day, meaning that the coil proxy is 
most representative of the effort planned by Shell in terms of 
predicted Level B harassment exposures.
    In addition, all available acoustic exposure modeling results 
assume use of a 72-element, 8,000 in\3\ array. Thus, take numbers 
authorized through the LOA are considered conservative due to 
differences in both the airgun array (32 elements, 5,110 in\3\) and the 
daily survey area planned by Shell (14.3 km\2\), as compared to those 
modeled for the rule.
    The survey is planned to occur for approximately 90 days, with 
airguns being used on 19 of the days in Zone 5 and 44 days in Zone 7. 
The seasonal distribution of survey days is not known in advance. 
Therefore, the take estimates for each species are based on the season 
that has the greater value for the species (i.e., winter or summer).
    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

[[Page 41386]]

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 certain 
marine mammal species 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.
    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[thinsp]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.
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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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    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. Shell's planned 
activities will occur in water depths of approximately 1,700 to 2,400 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.
    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 to 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 to 2008 and 2009 to 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 0-10 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 (>700 
m). 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. NMFS' determination in reflection of the data 
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 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. See also 86 FR 29090, 
May 28, 2021 and 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 
seven animals).
    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 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

[[Page 41387]]

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 one day (see 
86 FR 5404, January 19, 2021). The output of this scaling, where 
appropriate, is incorporated into adjusted total take estimates that 
are the basis for NMFS' small numbers determinations, as depicted in 
table 1.
    This product is used by NMFS in making the necessary small numbers 
determinations through comparison with the best available abundance 
estimates (see discussion at 86 FR 5391, January 19, 2021). For this 
comparison, NMFS' approach is to use the maximum theoretical 
population, determined through review of current stock assessment 
reports (SAR; www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) 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 \3\................................               0             n/a              51             n/a
Sperm whale.....................................             733             310           2,207            14.0
Kogia spp.......................................         \4\ 320              96           4,373             2.7
Beaked whales...................................           4,263             431           3,768            11.4
Rough-toothed dolphin...........................             762             219           4,853             4.5
Bottlenose dolphin..............................           1,807             519         176,108             0.3
Clymene dolphin.................................           2,077             596          11,895             5.0
Atlantic spotted dolphin........................             718             206          74,785             0.3
Pantropical spotted dolphin.....................          14,864           4,266         102,361             4.2
Spinner dolphin.................................           1,533             440          25,114             1.8
Striped dolphin.................................             941             270           5,229             5.2
Fraser's dolphin................................             285              82           1,665             4.9
Risso's dolphin.................................             476             141           3,764             3.7
Melon-headed whale..............................           1,352             399           7,003             5.7
Pygmy killer whale..............................             482             142           2,126             6.7
False killer whale..............................             621             183           3,204             5.7
Killer whale....................................               7             n/a             267             2.6
Short-finned pilot whale........................             254              75           1,981             3.8
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\1\ Scalar ratios were applied to ``Authorized Take'' values as described at 86 FR 5322 at 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 killer whale, the larger estimated SAR abundance estimate is used.
\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).
\4\ Includes 21 takes by Level A harassment and 299 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 Shell'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 Shell authorizing the take of marine mammals 
incidental to its geophysical survey activity, as described above.

    Dated: May 7, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-10303 Filed 5-10-24; 8:45 am]
 BILLING CODE 3510-22-P