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[Federal Register Volume 90, Number 3 (Monday, January 6, 2025)]
[Notices]
[Pages 603-606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-31750]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE545]

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

DATES: The LOA is effective from December 31, 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: 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.

[[Page 604]]

    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's new survey plans include conducting survey effort at 
multiple platform locations in the GOM. Survey effort could be 
conducted as Zero Offset, Offset, or Walkaway vertical seismic profile 
(VSP), Salt Proximity Survey, and/or Checkshot survey. Water depths at 
the locations where LLOG plans to conduct survey effort range from 
approximately 366 to 2,300 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.
    LLOG currently has 7 active LOAs associated with similar survey 
activities as described above: 3 in zone 7, effective January 1, 2023 
through December 31, 2024 (87 FR 78652, December 22, 2022), effective 
May 12, 2023 through December 31, 2024 (88 FR 31715, May 18, 2023), and 
effective March 1, 2022 through April 19, 2026 (89 FR 751, January 5, 
2024); 2 in zone 5, effective September 21, 2023 through December 31, 
2025 (88 FR 66409, September 27, 2023) and effective March 1, 2022 
through April 19, 2026 (89 FR 14056, February 26, 2024); and 2 in zone 
6, effective July 1, 2023 through July 5, 2025 (88 FR 41909, June 28, 
2023) and effective September 16, 2024 through April 19, 2026 (89 FR 
77475, September 23, 2024).
    The purpose of the newly issued LOA is to combine all LLOG survey 
activities, including remaining survey activity associated with the 
seven existing LOAs as well as newly planned survey activity, under a 
single LOA. This newly issued LOA would reduce workload for both LLOG 
and NMFS and streamline reporting. The new activity includes additional 
areas not covered under any active LLOG survey LOAs. As such, the seven 
active LOAs will expire to coincide with this new LOA that covers all 
of LLOGs survey activity. All currently active LOAs issued to LLOG were 
superseded by this new LOA, and all survey activity covered under 
previously active LOAs is now covered under this LOA.
    Consistent with the preamble to the final rule, the new 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. This proxy selection 
represents the least impactful modeled airgun array, but remains 
conservative for purposes of evaluating LLOG's planned survey effort 
(i.e., maximum 12-element, 2,400 in\3\ array). 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), three-dimensional (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 new survey activity is most similar to the 
coil survey pattern.
    For the new survey activity, the seismic source array will be 
deployed in

[[Page 605]]

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 
representative of the effort planned by LLOG in terms of predicted 
Level B harassment.
    The survey will take place over approximately 61 days total, 
including 19 days in zone 5, 19 days in zone 6, and 23 days in zone 7. 
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.
    For the Rice's whale, take estimates based on the modeling yielded 
results that are not realistically likely to occur when considered in 
light of other relevant information concerning Rice's whale habitat 
preferences considered during the rulemaking process. 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. LLOG's planned activities will occur in water 
depths of approximately 366 to 2,300 m in the central GOM. Although 
there is some minimal habitat depth overlap, the majority of LLOG's 
survey would occur in deeper water, and the modeling results indicate 
only 1 take of Rice's whale (even without considering whether there is 
overlap with Rice's whale habitat). 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 here and in the other 
previously issued LOAs, NMFS has determined that the level of taking 
expected for the newly combined survey activities 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. In addition, we 
are adding the previously analyzed take from LLOG's 7 active LOAs. 
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 \1\
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                                                    Authorized                                        Percent
                     Species                           take         Scaled take    Abundance \2\     abundance
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Rice's whale....................................               0             n/a              51             n/a
Sperm whale.....................................             443             187           3,007             6.2
Kogia spp.......................................         \3\ 207            62.3             980             7.7
Beaked whales...................................             743              75             803             9.3
Rough-toothed dolphin...........................           1,134             325           4,853             6.7
Bottlenose dolphin..............................           1,156             332         165,125             0.2
Clymene dolphin.................................           1,674             480           4,619            10.4
Atlantic spotted dolphin........................           1,111             319          21,506             1.5
Pantropical spotted dolphin.....................          11,871            3407          67,225             5.1
Spinner dolphin.................................             156              45           5,548             0.8

[[Page 606]]

 
Striped dolphin.................................           3,185             914           5,634            16.2
Fraser's dolphin................................             457             131           1,665             7.9
Risso's dolphin.................................             315              93           1,974             4.7
Blackfish \4\...................................           3,233             954           6,113            15.6
Short-finned pilot whale........................             803             237           2,741             8.6
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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 take by Level A harassment and 194 takes by Level B harassment. 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 LLOG's proposed survey 
activity described in its LOA application, the previous analysis from 
the 7 active LOAs, 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: December 31, 2024.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2024-31750 Filed 1-3-25; 8:45 am]
BILLING CODE 3510-22-P
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