[Federal Register Volume 89, Number 184 (Monday, September 23, 2024)]
[Notices]
[Pages 77475-77477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-21612]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE282]


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 LLOG 
Exploration Offshore, LLC (LLOG) for the take of marine mammals 
incidental to geophysical survey activity in the Gulf of Mexico (GOM).

DATES: The LOA is effective from September 16, 2024, through April 19, 
2026.

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 section).

FOR FURTHER INFORMATION CONTACT: Rachel Wachtendonk, 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 77476]]

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 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 Sec.  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'' standard of 
the MMPA.

Summary of Request and Analysis

    LLOG plans to conduct a Zero Offset, Offset, or Walkaway vertical 
seismic profile (VSP), Salt Proximity Survey, and/or Checkshot survey 
in lease block OCS-G 36103 AC 337, with water depths ranging from 
approximately 1,200 to 1,500 meters (m). LLOG plans to use either a 12-
element, 2,400 cubic inch (in\3\) airgun array, or a 6-element, 1,500 
in\3\ airgun array. See section G of the LOA application for a map of 
the area.
    Consistent with the preamble to the final rule, the survey effort 
proposed by LLOG 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 4,130 in\3\ airgun array was selected. 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 VSP 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 VSP 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 2018 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.
    For the planned survey, the seismic source array will be deployed 
in one of the following forms: Zero Offset VSP--deployed from a 
drilling rig at or near the borehole, with the seismic receivers (i.e., 
geophones) deployed in the borehole on wireline at specified depth 
intervals; Offset VSP--in a fixed position deployed from a supply 
vessel on an offset position; Walkaway VSP--attached to a line, or a 
series of lines, towed by a supply vessel; 3D VSP--source moves along a 
spiral or line swaths towed by a supply vessel; Salt-Proximity--
consists typically of a combination of both Zero Offset VSP plus a 
fixed Offset VSP; or Checkshot--similar to Zero Offset VSP, typically 
hung from a platform and a sensor placed at a few depths in the well, 
where only the first energy arrival is recorded. 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. Because LLOG's planned survey is expected to cover 
no additional area as a stationary source, the coil proxy is most

[[Page 77477]]

representative of the effort planned by LLOG in terms of predicted 
Level B harassment.
    The survey will take place over approximately 5 days in zone 6. The 
monthly distribution of survey days is not known in advance. 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 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 (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.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 \1\
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                                                                    Authorized                        Percent
                             Species                                   take        Abundance \2\     abundance
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Rice's whale....................................................               0              51             n/a
Sperm whale.....................................................              38           3,007             1.3
Kogia spp.......................................................          \3\ 15             980             1.5
Beaked whales...................................................              15             803             1.9
Rough-toothed dolphin...........................................             103           4,853             2.1
Bottlenose dolphin..............................................             154         165,125             0.1
Clymene dolphin.................................................             190           4,619             4.1
Atlantic spotted dolphin........................................             248          21,506             1.2
Pantropical spotted dolphin.....................................             751          67,225             1.1
Spinner dolphin.................................................           \4\ 0           5,548             n/a
Striped dolphin.................................................             112           5,634             2.0
Fraser's dolphin................................................          \5\ 65           1,665             3.9
Risso's dolphin.................................................              28           1,974             1.4
Blackfish \6\...................................................             296           6,113             4.8
Short-finned pilot whale........................................             153           2,741             5.6
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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\ Includes 1 take by Level A harassment and 14 takes by Level B harassment. Small numbers determination made
  on basis of scaled Level B harassment take plus authorized Level A harassment take.
\4\ Modeled take of 1 rounded down to 0.
\5\ Modeled take of 41 increased to account for potential encounter with a group of average size (Maze-Foley and
  Mullin, 2006).
\6\ The ``blackfish'' guild includes melon-headed whales, false killer whales, pygmy killer whales, and killer
  whales.

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

    Dated: September 17, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-21612 Filed 9-20-24; 8:45 am]
BILLING CODE 3510-22-P