[Federal Register Volume 89, Number 178 (Friday, September 13, 2024)]
[Notices]
[Pages 74921-74923]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20776]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE234]


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 bp Exploration 
and Production, Inc., (bp) for the take of marine mammals incidental to 
geophysical survey activity in the Gulf of Mexico (GOM).

DATES: The LOA is effective from September 9, 2024, through February 
14, 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 section).

FOR FURTHER INFORMATION CONTACT: Rachel Wachtendonk, Office of 
Protected Resources, NMFS, (301) 427-8401.

[[Page 74922]]


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 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.
    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

    Bp plans to conduct a three-dimensional (3D) ocean bottom node 
(OBN) survey over 325 lease blocks in the Alaminos Canyon, Garden 
Banks, Keathley Canyon, and East Breaks areas, with water depths 
ranging from approximately 1,000 to 2,500 m. See section F of the LOA 
application for a map of the area.
    Bp anticipates using two dual-source vessels, and would 
preferentially use the low-frequency airgun source known as Gemini 
(also referred to as a dual barbell source). Alternatively, bp may use 
conventional airgun sources, with each source configured as an array 
consisting of 28 elements with a total volume of 4,430 cubic inches 
(in\3\). Please see bp's application for additional detail.
    The Gemini source was not included in the acoustic exposure 
modeling developed in support of the rules. However, the Gemini was 
previously described and evaluated in support of a previous LOA and we 
rely on that analysis here (88 FR 72739, October 23, 2023). 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 rules. 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 Gemini.
    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 our rule 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., two-dimensional (2D), 3D (narrow-
azimuth) NAZ, 3D (wide-azimuth) 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 114 kilometers squared per day, similar

[[Page 74923]]

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 bp is 
not proposing to perform a survey using the coil geometry, the coil 
proxy is most representative of the effort planned by bp in terms of 
predicted Level B harassment exposures.
    The survey will take place over approximately 142 days with 66 days 
of sound source operation (12 days planned in zone 5 and 54 days 
planned in zone 7). The monthly distribution of survey days is not 
known in advance, so take estimates for each species are based on the 
time period 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. 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 (86 FR 
5404, January 19, 2021; 89 FR 31535, May 24, 2024). 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     Abundance     Percent
                            Species                                  take     take \1\       \2\       abundance
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Rice's whale...................................................            0       n/a            51         n/a
Sperm whale....................................................          408     172.5         3,007         5.7
Kogia spp......................................................      \3\ 287      85.3           980        10.8
Beaked whales..................................................          547      55.2           803         6.9
Rough-toothed dolphin..........................................        1,017     292.0         4,853         6.0
Bottlenose dolphin.............................................          363     103.4       165,125         0.1
Clymene dolphin................................................        1,713     491.7         4,619        10.6
Atlantic spotted dolphin.......................................          108      30.9        21,506         0.1
Pantropical spotted dolphin....................................       13,612   3,906.5        67,225         5.8
Spinner dolphin................................................          185      52.8         5,548         1.0
Striped dolphin................................................        4,849   1,391.6         5,634        24.7
Fraser's dolphin...............................................          444     127.3         1,665         7.6
Risso's dolphin................................................          210      62.0         1,974         3.1
Blackfish \4\..................................................        3,384     998.4         6,113        16.3
Short-finned pilot whale.......................................          142      42.0         2,741         1.5
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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 19 takes by Level A harassment and 268 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 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: September 9, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-20776 Filed 9-12-24; 8:45 am]
BILLING CODE 3510-22-P