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[Federal Register Volume 89, Number 248 (Friday, December 27, 2024)]
[Notices]
[Pages 105536-105539]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-31041]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE504]

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

[[Page 105537]]

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 TGS for the take of marine mammals incidental to 
geophysical survey activity in the Gulf of Mexico (GOM).

DATES: The LOA is effective from December 20, 2024 through December 19, 
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.

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

    TGS plans to conduct a three-dimensional (3D) ocean bottom node 
(OBN) survey over 453 lease blocks in the East Breaks area, with water 
depths ranging from approximately 1,200 to 2,000 m. See section F of 
the LOA application for a map of the area. TGS anticipates using two 
source vessels with a low-frequency airgun source known as Gemini (also 
referred to as a dual barbell source). Please see TGS'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 the source, 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 expects that use of modeling results 
supporting the final rule relating to use of the 4,130 cubic inch 
(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 TGS 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 4,130 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

[[Page 105538]]

(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 172 kilometers squared 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 TGS is not proposing to 
perform a survey using the coil geometry, the coil proxy is most 
representative of the effort planned by TGS in terms of predicted Level 
B harassment exposures.
    The survey will take place over approximately 150 days with 90 days 
of sound source operation in zone 6. 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.
    For some species, 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 for Rice's whale produces results inconsistent 
with what is known regarding their occurrence in the GOM. Accordingly, 
we have adjusted the calculated take estimates for Rice's whale as 
described below.
    NMFS' final rule described a ``core habitat area'' for Rice's 
whales (formerly known as GOM Bryde's whales) \3\ located in the 
northeastern GOM in waters between 100 and 400 m depth along the 
continental shelf break (Rosel et al., 2016). However, whaling records 
suggest that Rice's whales historically had a broader distribution 
within similar habitat parameters throughout the GOM (Reeves et al., 
2011; Rosel and Wilcox, 2014). In addition, habitat-based density 
modeling has identified similar habitat (i.e., approximately 100 to 400 
m water depths along the continental shelf break) (Roberts et al., 
2016; Garrison et al., 2023), and Rice's whales have been detected 
within this depth band throughout the GOM (Soldevilla et al., 2022, 
2024). See discussion provided at, e.g., 83 FR 29228, June 22, 2018; 83 
FR 29280, June 22, 2018; 86 FR 5418, January 19, 2021.
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    \3\ The final rule refers to the GOM Bryde's whale (Balaenoptera 
edeni). These whales were subsequently described as a new species, 
Rice's whale (Balaenoptera ricei) (Rosel et al., 2021).
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    Although Rice's whales may occur outside of the core habitat area, 
we expect that any such occurrence would be limited to the narrow band 
of habitat described above (i.e., 100-400 m) and that, based on the few 
available records, these occurrences would be rare. TGS's planned 
activities will occur in water depths of approximately 1,200 to 2,000 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 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.

[[Page 105539]]

                                             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.....................................             674           284.9           3,007             9.5
Kogia spp.......................................         \3\ 259            79.0             980             9.4
Beaked whales...................................             254            25.7             803             3.2
Rough-toothed dolphin...........................           1,862           534.5           4,853            11.0
Bottlenose dolphin..............................           2,581           740.8         165,125             0.4
Clymene dolphin.................................           3,209           921.1           4,619            19.9
Atlantic spotted dolphin........................           4,349         1,248.2          21,506             5.8
Pantropical spotted dolphin.....................          11,870         3,406.7          67,225             5.1
Spinner dolphin.................................         \4\ 152            43.6           5,548             0.8
Striped dolphin.................................           1,887           541.6           5,634             9.6
Fraser's dolphin................................             742           213.0           1,665            12.8
Risso's dolphin.................................             482           142.1           1,974             7.2
Blackfish \5\...................................           5,034         1,484.9           6,113            24.3
Short-finned pilot whale........................           2,561           755.5           2,741            27.6
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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 13 takes by Level A harassment and 246 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\ Modeled take of 9 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 TGS'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 TGS authorizing the take of marine mammals 
incidental to its geophysical survey activity, as described above.

    Dated: December 20, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-31041 Filed 12-26-24; 8:45 am]
BILLING CODE 3510-22-P
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