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[Federal Register Volume 89, Number 234 (Thursday, December 5, 2024)]
[Notices]
[Pages 96643-96645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28455]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE478]

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 modification to expiration date 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 NMFS has modified the expiration date of a Letter of 
Authorization (LOA) issued to Shell Offshore Inc. (Shell) for the 
taking of marine mammals incidental to geophysical survey activity in 
the GOM.

DATES: This LOA is effective through October 31, 2025.

ADDRESSES: The LOA, LOA request, and supporting documentation are 
available online at: https://www.fisheries.noaa.gov/marine-mammal-protection/issued-letters-authorization-oil-and-gas-industry-geophysical-survey. In case of problems accessing these documents, 
please call the contact listed below 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

[[Page 96644]]

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 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'' (LPAI) 
standard of the MMPA.
    NMFS issued a LOA to Shell on April 19, 2024, for the take of 
marine mammals incidental to a four-dimensional (4D) ocean bottom node 
survey in the Mississippi Canyon 941 and portions of the surrounding 80 
lease blocks, effective July 1, 2024, through June 30, 2025. Please see 
the Federal Register notice of issuance (89 FR 25577, April 11, 2024) 
for additional detail regarding the LOA and the survey activity.
    Shell has requested that the June 30, 2025, expiration date be 
extended to October 31, 2025, due to changes in survey timing. Since we 
issued the LOA to Shell, we have updated the final rule to include 
corrected take estimates and new information as discussed above; 
therefore, we have updated the authorized take numbers accordingly 
based on this new information. There are no changes to the planned 
survey, as described in the previous notice of issuance (89 FR 25577, 
April 11, 2024), including the planned location and duration of the 
survey.
    As discussed in the previous notice of issuance (89 FR 25577, April 
11, 2024), no 4D ocean bottom node (OBN) surveys were included in the 
modeled survey types, thus the coil proxy was selected. Shell plans to 
cover approximately 15.7 square kilometers (km\2\) per day compared to 
the 144 km\2\ in the coil proxy, and although Shell is not proposing to 
perform a survey using the coil geometry, the coil proxy is most 
representative of the effort planned by Shell in terms of predicted 
Level B harassment exposures. Additionally, Shell plans to use a 32-
element, 5,110 cubic inch (in\3\) airgun array and therefore the 5,110 
in\3\ proxy was selected.
    The survey will take place over approximately 90 days with 60 days 
of sound source operation, all planned in zone 5. The monthly 
distribution of survey days is not known in advance, though we assume 
that the planned 60 days of source operation would occur contiguously. 
Take estimates for each species are based on the time period that 
produces the greatest value. There are no other changes to Shell's 
planned activity.
    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. Shell's planned activities will occur in 
water depths of approximately 1,500 to 3,000 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

[[Page 96645]]

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. 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               0
Sperm whale.....................................             543             230           3,007             7.6
Kogia spp.......................................         \3\ 172              52             980             6.2
Beaked whales...................................           1,882             190             803            23.7
Rough-toothed dolphin...........................           1,399             401           4,853             8.3
Bottlenose dolphin..............................           1,684             483         165,125             0.3
Clymene dolphin.................................             869             168           4,619             3.6
Atlantic spotted dolphin........................             496             142          21,506             0.7
Pantropical spotted dolphin.....................          11,845           3,400          67,225             5.1
Spinner dolphin.................................             258              74           5,548             1.3
Striped dolphin.................................           2,441             701           5,634            12.4
Fraser's dolphin................................             512              98           1,665             5.9
Risso's dolphin.................................             421             124           1,974             6.3
Blackfish \4\...................................           3,012             888           6,113            14.5
Short-finned pilot whale........................             698             206           2,741             7.5
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\1\ Scalar ratios were applied to ``Authorized Take'' values as described at 86 FR 5322 and 86 FR 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 SAR abundance estimate is used.
\3\ Includes 9 takes by Level A harassment and 163 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.

Authorization

    NMFS has changed the expiration date of the LOA from June 30, 2025, 
to October 31, 2025 and updated authorized take numbers based on the 
corrected information in the updated rule. There are no other changes 
to the LOA as described in the April 11, 2024, Federal Register notice 
of issuance (89 FR 25577); the specified survey activity, and small 
numbers analysis and determination remain unchanged and are 
incorporated here by reference.

    Dated: November 27, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-28455 Filed 12-4-24; 8:45 am]
BILLING CODE 3510-22-P
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