Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico

<NOTICE> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <DEPDOC>[RTID 0648-XE478]</DEPDOC> <SUBJECT>Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. <HD SOURCE="HED">ACTION:</HD> Notice of modification to expiration date of letter of authorization. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <DATES> <HD SOURCE="HED">DATES:</HD> This LOA is effective through October 31, 2025. </DATES> <HD SOURCE="HED">ADDRESSES:</HD> The LOA, LOA request, and supporting documentation are available online at: <E T="03">https://www.fisheries.noaa.gov/marine-mammal-protection/issued-letters-authorization-oil-and-gas-industry-geophysical-survey.</E> In case of problems accessing these documents, please call the contact listed below <E T="02">FOR FURTHER INFORMATION CONTACT</E> . <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Jenna Harlacher, Office of Protected Resources, NMFS, (301) 427-8401. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Background</HD> Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 <E T="03">et seq.</E> ) 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. The rule became effective on April 19, 2021. Our regulations at 50 CFR 217.180 <E T="03">et seq.</E> 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 <E T="04">Federal Register</E> 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 <SU>2</SU> ) per day compared to the 144 km <SU>2</SU> 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 <SU>3</SU> ) airgun array and therefore the 5,110 in <SU>3</SU> 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 T="03">e.g.,</E> 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 T="03">e.g.,</E> 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 ( <E T="03">i.e.,</E> app ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 16k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━