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[Federal Register Volume 90, Number 29 (Thursday, February 13, 2025)]
[Notices]
[Pages 9534-9537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-02607]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE551]

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

[[Page 9535]]

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

DATES: The LOA is effective from February 15, 2025 through December 31, 
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:  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 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 approximately 245 lease blocks in the Mississippi 
Canyon, Ewin Bank, South Timbalier, and Grand Isle-South Addition 
areas, with water depths ranging from approximately 50 to 1,800 m. See 
section F of the LOA application for a map of the area. TGS anticipates 
using two source vessels with a low-frequency dual barbell source known 
as Gemini. Please see TGS's application for additional detail.
    The Gemini source was not included in the acoustic exposure 
modeling developed in support of the rule. However, the Gemini was 
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 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 its use for purposes of generating take numbers for 
authorization represents the least impactful airgun array (but remains 
conservative for use in estimating takes that are expected to result 
from use of the Gemini source, 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

[[Page 9536]]

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 
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. The planned OBN survey will involve two source vessels 
sailing along closely spaced survey lines, with daily survey area 
coverage of approximately 96 kilometers squared per day, less than 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 83 days with 62 days 
of sound source operation, including 10 in zone 2 and 52 in zone 5. 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 the Rice's whale, 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). NMFS' 2024 final rule 
provided detailed discussion regarding Rice's whale habitat (see, e.g., 
89 FR 31508, 31519).
    TGS's planned activities will overlap this depth range, with 
approximately 25 percent of the area expected to be ensonified by the 
survey above root-mean-squared pressure received levels (RMS SPL) of 
160 decibel (dB) (referenced to 1 micropascal (re 1 [mu]Pa)) 
overlapping the 100-400 m isobaths. Therefore, there is some reasonable 
potential for take of Rice's whale to occur in association with this 
survey. The generic acoustic exposure modeling results in one take of 
Rice's whales and we have rounded that up to a group size, authorizing 
two Rice's whale takes.
    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 
2024 final 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, April 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 take                       Percent
                     Species                           take             \1\        Abundance \2\     abundance
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Rice's whale....................................           \3\ 2             0.4              51             0.7
Sperm whale.....................................             466             197           3,007             6.6
Kogia spp.......................................         \4\ 138              42             980             5.0
Beaked whales...................................           1,651             167             803            20.8
Rough-toothed dolphin...........................           1,290             370           4,853             7.6
Bottlenose dolphin..............................          10,824           3,107         165,125             1.9
Clymene dolphin.................................             762             219           4,619             4.7
Atlantic spotted dolphin........................             878             252          21,506             1.2
Pantropical spotted dolphin.....................          10,192           2,925          67,225             4.4
Spinner dolphin.................................             228              66           5,548             1.2
Striped dolphin.................................           2,167             622           5,634            11.0
Fraser's dolphin................................             449             129           1,665             7.7
Risso's dolphin.................................             372             110           1,974             5.6
Blackfish \5\...................................           2,658             784           6,113            12.8
Short-finned pilot whale........................             599             177           2,741             6.4
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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.

[[Page 9537]]

 
\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\ Modeled take of one increased to account for potential encounter with a group of average size (Maze-Foley
  and Mullin, 2006).
\4\ Includes 7 takes by Level A harassment and 130 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.
\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: February 10, 2025.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2025-02607 Filed 2-12-25; 8:45 am]
BILLING CODE 3510-22-P
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