[Federal Register Volume 89, Number 164 (Friday, August 23, 2024)]
[Notices]
[Pages 68141-68143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18941]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE122]


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, notification is hereby given 
that a Letter of Authorization (LOA) has been issued to CCG for the 
take of marine mammals incidental to geophysical survey activity in the 
Gulf of Mexico (GOM).

DATES: The LOA is effective from August 15, 2024 through July 31, 2025.

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 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 GOM 
over the course of 5 years (86 FR 5322, January 19, 2021). The rule was 
based on our findings that the total taking from the specified 
activities over the 5-year period will have a negligible impact on the 
affected species or stock(s) of marine mammals and will not have an 
unmitigable adverse impact on the availability of those species or 
stocks for subsistence uses, and became effective on April 19, 2021.
    The regulations at 50 CFR 217.180 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

[[Page 68142]]

217.186(e), issuance of an LOA shall be based on a determination that 
the level of taking will be consistent with the findings made for the 
total taking allowable under these regulations and a determination that 
the amount of take authorized under the LOA is of no more than small 
numbers.
    NMFS subsequently discovered that the 2021 rule was based on 
erroneous take estimates. We conducted another rulemaking using correct 
take estimates and other newly available and pertinent information 
relevant to the analyses supporting some of the findings in the 2021 
final rule and the taking allowable under the regulations. We issued a 
final rule in April 2024, effective May 24, 2024 (89 FR 31488, April 
24, 2024).
    The 2024 final rule made no changes to the specified activities or 
the specified geographical region in which those activities would be 
conducted, nor to the original 5-year period of effectiveness. In 
consideration of the new information, the 2024 rule presented new 
analyses supporting affirmance of the negligible impact determinations 
for all species, and affirmed that the existing regulations, which 
contain mitigation, monitoring, and reporting requirements, are 
consistent with the ``least practicable adverse impact'' (LPAI) 
standard of the MMPA.

Summary of Request and Analysis

    CGG plans to conduct a three-dimensional (3D) ocean bottom node 
(OBN) survey over 1,840 lease blocks in the Garden Banks and Keathley 
Canyon areas, with water depths ranging from approximately 1,000 to 
3,200 meters (m). See section F of the LOA application for a map of the 
area.
    CGG anticipates using two dual-source vessels, and would 
preferentially use the low-frequency tuned pulse source (TPS). 
Alternatively, CGG may use conventional airgun array sources consisting 
of 42 elements with a total volume of 5,220 cubic inches (in\3\). 
Please see CGG's application for additional detail.
    The TPS was not included in the acoustic exposure modeling 
developed in support of the rule. However, the TPS was previously 
described and evaluated in support of previous LOAs and we rely on 
those analyses here (86 FR 37309, 37310; July 15, 2021; see also 87 FR 
55790, 55791; September 12, 2022). For additional detail regarding 
sources, see section C of the LOA application. Based on this 
information we have determined there will be no effects of a magnitude 
or intensity different from those evaluated in support of the rule. 
NMFS therefore expects that use of modeling results supporting the 
final rule relating to use of the 32 element, 5,110 in\3\ airgun array 
are expected to be conservative as a proxy for use in evaluating 
potential impacts of use of the TPS.
    Consistent with the preamble to the final rule, the survey effort 
proposed by CGG in its LOA request was used to develop LOA-specific 
take estimates based on the acoustic exposure modeling results 
described in the preamble (89 FR 31488, April 24, 2024). In order to 
generate the appropriate take number for authorization, the following 
information was considered: (1) survey type; (2) location (by modeling 
zone \1\); (3) number of days; (4) source; and (5) month.\2\ In this 
case, the 5,110 in\3\ airgun array was selected, as discussed above. 
The acoustic exposure modeling performed in support of the rule 
provides 24-hour exposure estimates for each species, specific to each 
modeled source and survey type in each zone and month.
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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\ Acoustic propagation modeling was performed for two seasons: 
Winter (December-March) and Summer (April-November). Marine mammal 
density data is generally available on a monthly basis, and 
therefore further refines take estimates temporally.
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    No 3D 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 in this case 
because the spatial coverage of the planned survey is most similar to 
the coil survey pattern. The planned OBN survey will involve two source 
vessels sailing along closely spaced survey lines, with daily survey 
area coverage of approximately 144 kilometers squared (km\2\) per day, 
similar to that assumed for the coil survey proxy. Among the different 
parameters of the modeled survey patterns (e.g., area covered, line 
spacing, number of sources, shot interval, total simulated pulses), 
NMFS considers area covered per day to be most influential on daily 
modeled exposures exceeding Level B harassment criteria. Although CGG 
is not proposing to perform a survey using the coil geometry, the coil 
proxy is most representative of the effort planned by CGG in terms of 
predicted Level B harassment exposures.
    The survey will take place over approximately 115 days with 65 days 
of sound source operation, with 40 days planned in Zone 5 and 25 days 
planned in Zone 6. The monthly distribution of survey days is not known 
in advance, though we assume that the planned 65 days of source 
operation would occur contiguously. Take estimates for each species are 
based on the time period that produces the greatest value.
    For the Rice's whale, take estimates based solely on the modeling 
yielded results that are not realistically likely to occur when 
considered in light of other relevant information available during the 
rulemaking process regarding marine mammal occurrence in the GOM. The 
approach used in the acoustic exposure modeling, in which seven 
modeling zones were defined over the U.S. GOM, necessarily averages 
fine-scale information about marine mammal distribution over the large 
area of each modeling zone. Thus, although the modeling conducted for 
the rule is a natural starting point for estimating take, the rule 
acknowledged that other information could be considered (see, e.g., 86 
FR 5442, January 19, 2021, discussing the need to provide flexibility 
and make efficient use of previous public and agency review of other 
information and identifying that additional public review is not 
necessary unless the model or inputs used differ substantively from 
those that were previously reviewed by NMFS and the public). For this 
survey, NMFS has other relevant information reviewed during the 
rulemaking that indicates use of the acoustic exposure modeling to 
generate a take estimate may produce results inconsistent with what is 
known regarding their occurrence in the GOM. Accordingly, we have 
adjusted the calculated take estimates as described below.
    NMFS' 2024 final rule provided detailed discussion regarding Rice's 
whale habitat (see, e.g., 89 FR 31508, 31519). In summary, recent 
survey data, sightings, and acoustic data support Rice's whale 
occurrence in waters throughout the GOM between approximately 100 m and 
400 m depth along the continental shelf break, and associated habitat-
based density modeling has identified similar habitat (i.e., 
approximately 100 to 400 m water depths along the continental shelf 
break) as being Rice's whale habitat (Garrison et al., 2023; Soldevilla 
et al., 2022, 2024).
    Although Rice's whales may occur outside of the general depth range 
expected to provide suitable habitat, we expect that any such 
occurrence would be rare. CGG's planned activities will

[[Page 68143]]

occur in water depths of approximately 1,000 to 3,200 m in the central 
GOM. Thus, NMFS does not expect there to be the reasonable potential 
for take of Rice's whale in association with this survey and, 
accordingly, does not authorize take of Rice's whale through the LOA.
    Based on the results of our analysis, NMFS has determined that the 
level of taking expected for this survey and authorized through the LOA 
is consistent with the findings made for the total taking allowable 
under the regulations. See table 1 in this notice and table 6 of the 
rule (89 FR 31488, April 24, 2024).

Small Numbers Determination

    Under the GOM rule, NMFS may not authorize incidental take of 
marine mammals in an LOA if it will exceed ``small numbers.'' In short, 
when an acceptable estimate of the individual marine mammals taken is 
available, if the estimated number of individual animals taken is up 
to, but not greater than, one-third of the best available abundance 
estimate, NMFS will determine that the numbers of marine mammals taken 
of a species or stock are small (see 89 FR 31535, May 24, 2024). For 
more information please see NMFS' discussion of small numbers in the 
2021 final rule (86 FR 5438, January 19, 2021).
    The take numbers for authorization are determined as described 
above in the Summary of Request and Analysis section. Subsequently, the 
total incidents of harassment for each species are multiplied by scalar 
ratios to produce a derived product that better reflects the number of 
individuals likely to be taken within a survey (as compared to the 
total number of instances of take), accounting for the likelihood that 
some individual marine mammals may be taken on more than 1 day (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; https://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/). 
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             n/a
Sperm whale.....................................             572           241.8           3,007             8.0
Kogia spp.......................................         \3\ 196            59.6             980             7.1
Beaked whales...................................           1,354           136.8             803            17.0
Rough-toothed dolphin...........................           1,471           422.2           4,853             8.7
Bottlenose dolphin..............................           1,986           570.0         165,125             0.3
Clymene dolphin.................................           1,553           445.7           4,619             9.6
Atlantic spotted dolphin........................           1,702           488.5          21,506             2.3
Pantropical spotted dolphin.....................          12,124         3,479.5          67,225             5.2
Spinner dolphin.................................             188            53.9           5,548             1.0
Striped dolphin.................................           2,246           644.7           5,634            11.4
Fraser's dolphin................................             554           158.9           1,665             9.5
Risso's dolphin.................................             468           138.2           1,974             7.0
Blackfish \4\...................................           3,514         1,036.5           6,113            17.0
Short-finned pilot whale........................           1,305           384.9           2,741            14.0
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\1\ Scalar ratios were applied to ``Authorized Take'' values as described at 86 FR 5322, 5404 (January 19, 2021)
  to derive scaled take numbers shown here.
\2\ Best abundance estimate. For most taxa, the best abundance estimate for purposes of comparison with take
  estimates is considered here to be the model-predicted abundance (Garrison et al., 2023). For Rice's whale,
  Atlantic spotted dolphin, and Risso's dolphin, the larger estimated SAR abundance estimate is used.
\3\ Includes 10 takes by Level A harassment and 186 takes by Level B harassment. Scalar ratio is applied to
  takes by Level B harassment only; small numbers determination made on basis of scaled Level B harassment take
  plus authorized Level A harassment take.
\4\ The ``blackfish'' guild includes melon-headed whales, false killer whales, pygmy killer whales, and killer
  whales.

    Based on the analysis contained herein of CGG'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 CGG authorizing the take of marine mammals 
incidental to its geophysical survey activity, as described above.

    Dated: August 15, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-18941 Filed 8-22-24; 8:45 am]
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