[Federal Register Volume 89, Number 172 (Thursday, September 5, 2024)]
[Notices]
[Pages 72379-72381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-19920]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE209]


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 NMFS has issued a Letter of Authorization (LOA) to Echo Offshore, 
LLC (Echo) for the take of marine mammals incidental to geophysical 
survey activity in the Gulf of Mexico (GOM).

DATES: The LOA is effective from August 21, 2024 through December 31, 
2024.

[[Page 72380]]


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 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

    Echo plans to conduct a 2D high-resolution seismic survey in the 
Vermillion area (Lease Blocks 164, 165, 178, and 179) and Eugene 
Island, South Addition area (Lease Blocks 369, 370, 371, 385, 386, and 
387), with water depths ranging from approximately 27-157 meters (m). 
See section F of the LOA application for a map of the area. Echo plans 
to use a single, 20-cubic inch airgun, in addition to three other high-
resolution geophysical (HRG) acoustic sources. Please see Echo's 
application for additional detail.
    Consistent with the preamble to the final rule, the survey effort 
proposed by Echo 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\ 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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    Exposure modeling results were generated using the single airgun 
proxy. Because those results assume use of a 90-cubic inch (in\3\) 
airgun, the take numbers authorized through this LOA are considered 
conservative (i.e., they likely overestimate take) due to differences 
in the sound source planned for use by Echo, as compared to those 
modeled for the rule.
    The survey will take place over approximately 13 days with 6 days 
of sound source operation in Zone 2. The monthly distribution of survey 
days is not known in advance, though we assume that the planned 6 days 
of source operation would occur contiguously. Take estimates for each 
species are based on the month that produces the greatest value.
    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

[[Page 72381]]

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, are used by NMFS 
in making the necessary small numbers determinations, through 
comparison with the best available abundance estimates (see discussion 
at 86 FR 5322, 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.cnoaa.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                        Percent
                             Species                                   take        Abundance \2\     abundance
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Rice's whale....................................................               0              51             n/a
Sperm whale.....................................................               0           3,007             n/a
Kogia spp.......................................................               0             980             n/a
Beaked whales...................................................               0             803             n/a
Rough-toothed dolphin...........................................          \3\ 14           4,853               0
Bottlenose dolphin..............................................             185         165,125               0
Clymene dolphin.................................................               0           4,619             n/a
Atlantic spotted dolphin........................................          \4\ 26          21,506               0
Pantropical spotted dolphin.....................................               0          67,225             n/a
Spinner dolphin.................................................               0           5,548             n/a
Striped dolphin.................................................               0           5,634             n/a
Fraser's dolphin................................................               0           1,665             n/a
Risso's dolphin.................................................               0           1,974             n/a
Blackfish \5\...................................................               0           6,113             n/a
Short-finned pilot whale........................................               0           2,741             n/a
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\1\ Scalar ratios were not applied in this case due to brief survey duration.
\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\ Modeled take of 3 increased to account for potential encounter with a group of average size (Maze-Foley and
  Mullin, 2006).
\4\ Modeled take of 13 increased to account for potential encounter with a group of average size (Maze-Foley and
  Mullin, 2006).
\5\ The ``blackfish'' guild includes melon-headed whales, false killer whales, pygmy killer whales, and killer
  whales.

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

    Dated: August 30, 2024.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2024-19920 Filed 9-4-24; 8:45 am]
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