Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico, 37313-37316 [2021-15048]
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Federal Register / Vol. 86, No. 133 / Thursday, July 15, 2021 / Notices
Authorization
Special Accommodations
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
Shell authorizing the take of marine
mammals incidental to its geophysical
survey activity, as described above.
The meeting is physically accessible
to people with disabilities. Requests for
sign language interpretation or other
auxiliary aids should be directed to
Kathy Collins at the Council Office,
(302) 526–5253, at least 5 days prior to
the meeting date.
Dated: July 12, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources,
National Marine Fisheries Service.
Authority: 16 U.S.C. 1801 et seq.
Dated: July 7, 2021.
Tracey L. Thompson,
Acting Deputy Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. 2021–14782 Filed 7–14–21; 8:45 am]
BILLING CODE 3510–22–P
[FR Doc. 2021–15047 Filed 7–14–21; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
National Oceanic and Atmospheric
Administration
[RTID 0648–XB212]
Taking and Importing Marine
Mammals; Taking Marine Mammals
Incidental to Geophysical Surveys
Related to Oil and Gas Activities in the
Gulf of Mexico
[RTID 0648–XB225]
Mid-Atlantic Fishery Management
Council (MAFMC); Meeting
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; public meeting.
AGENCY:
The Mid-Atlantic Fishery
Management Council’s Mackerel, Squid,
and Butterfish (MSB) Monitoring
Committee will hold a public meeting.
DATES: The meeting will be held on
Monday, July 26, 2021; from 10 a.m. to
1 p.m. For agenda details, see
SUPPLEMENTARY INFORMATION.
ADDRESSES: The meeting will be held
via webinar. Webinar connection
information will be available at
www.mafmc.org/council-events.
Council address: Mid-Atlantic Fishery
Management Council, 800 N State
Street, Suite 201, Dover, DE 19901;
telephone: (302) 674–2331;
www.mafmc.org.
SUMMARY:
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FOR FURTHER INFORMATION CONTACT:
Christopher M. Moore, Ph.D., Executive
Director, Mid-Atlantic Fishery
Management Council, telephone: (302)
526–5255.
SUPPLEMENTARY INFORMATION: The
purpose of the meeting is for the MSB
Monitoring Committee to provide
recommendations regarding Atlantic
mackerel, potentially including: 2021/
2022 emergency action, future
specifications, and/or rebuilding plan
modifications and options.
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National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of issuance of Letter of
Authorization.
AGENCY:
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 a Letter
of Authorization (LOA) has been issued
to Chevron U.S.A. Inc. (Chevron) for the
take of marine mammals incidental to
geophysical survey activity in the Gulf
of Mexico.
DATES: The LOA is effective from
August 1, 2021, through June 1, 2022.
ADDRESSES: The LOA, LOA request, and
supporting documentation are available
online at: www.fisheries.noaa.gov/
action/incidental-take-authorization-oiland-gas-industry-geophysical-surveyactivity-gulf-mexico. In case of problems
accessing these documents, please call
the contact listed below (see FOR
FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Ben
Laws, Office of Protected Resources,
NMFS, (301) 427–8401.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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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 Federal waters of the
U.S. Gulf of Mexico (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.
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Federal Register / Vol. 86, No. 133 / Thursday, July 15, 2021 / Notices
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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.
Summary of Request and Analysis
Chevron plans to conduct a 3D
borehole seismic survey using an airgun
array as the sound source, covering
portions of approximately 40 lease
blocks centered around Lease Block
G16942 (Big Foot). The survey is a type
of vertical seismic profile (VSP) survey.
The array consists of 32 elements, with
a total volume of 5,040 cubic inches
(in3). Please see Chevron’s application
for additional detail.
Consistent with the preamble to the
final rule, the survey effort proposed by
Chevron in its LOA request was used to
develop LOA-specific take estimates
based on the acoustic exposure
modeling results described in the
preamble (86 FR 5322, 5398; January 19,
2021). 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; and (4) season.2 The
acoustic exposure modeling performed
in support of the rule provides 24-hour
exposure estimates for each species,
specific to each modeled survey type in
each zone and season.
No VSP surveys were included in the
modeled survey types, and use of
existing proxies (i.e., 2D, 3D NAZ, 3D
WAZ, Coil) is generally conservative for
use in evaluation of VSP survey effort.
Summary descriptions of these modeled
survey geometries are available in the
preamble to the proposed rule (83 FR
29212, 29220; June 22, 2018). 3D NAZ
was selected as the best available proxy
survey type. In addition, all available
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 For purposes of acoustic exposure modeling,
seasons include Winter (December–March) and
Summer (April–November).
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acoustic exposure modeling results
assume use of a 72 element, 8,000 in3
array. In this case, take numbers
authorized through the LOA are
considered conservative due to
differences in both the airgun array and
the survey geometry planned by
Chevron, as compared to those modeled
for the rule.
The survey is planned to occur for 22
days, with 14 days occurring in Zone 5
and 8 days in Zone 7. The season is not
known in advance. Therefore, the take
estimates for each species are based on
the season that has the greater value for
the species (i.e., winter or summer).
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. Thus, although the modeling
conducted for the rule is a natural
starting point for estimating take, our
rule acknowledged that other
information could be considered (see,
e.g., 86 FR 5322, 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 certain
marine mammal species produces
results inconsistent with what is known
regarding their occurrence in the GOM.
Accordingly, we have adjusted the
calculated take estimates for those
species as described below.
Rice’s whales (formerly known as
GOM Bryde’s whales) 3 are generally
found within a small area in the
northeastern GOM in waters between
100–400 meters (m) depth along the
continental shelf break (Rosel et al.,
2016). 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),
and a NOAA survey reported
observation of a Rice’s whale in the
western GOM in 2017 (NMFS, 2018).
Habitat-based density modeling
identified similar habitat (i.e.,
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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approximately 100–400 m water depths
along the continental shelf break) as
being potential Rice’s whale habitat
(Roberts et al., 2016), although a ‘‘core
habitat area’’ defined in the northeastern
GOM (outside the scope of the rule)
contained approximately 92 percent of
the predicted abundance of Rice’s
whales. See discussion provided at, e.g.,
83 FR 29212, 29228, 29280 (June 22,
2018); 86 FR 5322, 5418 (January 19,
2021).
Although it is possible that Rice’s
whales may occur outside of their core
habitat, NMFS expects that any such
occurrence would be limited to the
narrow band of suitable habitat
described above (i.e., 100–400 m).
Chevron’s planned activity will occur in
water depths of approximately 1,200–
2,000 m in the central GOM. 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 this LOA.
Killer whales are the most rarely
encountered species in the GOM,
typically in deep waters of the central
GOM (Roberts et al., 2015; Maze-Foley
and Mullin, 2006). 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. NMFS
has determined that the approach
results in unrealistic projections
regarding the likelihood of encountering
killer whales.
As discussed in the final rule, the
density models produced by Roberts et
al. (2016) provide the best available
scientific information regarding
predicted density patterns of cetaceans
in the U.S. GOM. The predictions
represent the output of models derived
from multi-year observations and
associated environmental parameters
that incorporate corrections for
detection bias. However, in the case of
killer whales, the model is informed by
few data, as indicated by the coefficient
of variation associated with the
abundance predicted by the model
(0.41, the second-highest of any GOM
species model; Roberts et al., 2016). The
model’s authors noted the expected
non-uniform distribution of this rarelyencountered species (as discussed
above) and expressed that, due to the
limited data available to inform the
model, it ‘‘should be viewed cautiously’’
(Roberts et al., 2015).
NOAA surveys in the GOM from
1992–2009 reported only 16 sightings of
killer whales, with an additional three
encounters during more recent survey
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Federal Register / Vol. 86, No. 133 / Thursday, July 15, 2021 / Notices
effort from 2017–18 (Waring et al., 2013;
www.boem.gov/gommapps). Two other
species were also observed on less than
20 occasions during the 1992–2009
NOAA surveys (Fraser’s dolphin and
false killer whale).4 However,
observational data collected by
protected species observers (PSOs) on
industry geophysical survey vessels
from 2002–2015 distinguish the killer
whale in terms of rarity. During this
period, killer whales were encountered
on only 10 occasions, whereas the next
most rarely encountered species
(Fraser’s dolphin) was recorded on 69
occasions (Barkaszi and Kelly, 2019).
The false killer whale and pygmy killer
whale were the next most rarely
encountered species, with 110 records
each. The killer whale was the species
with the lowest detection frequency
during each period over which PSO data
were synthesized (2002–2008 and 2009–
2015). This information qualitatively
informed our rulemaking process, as
discussed at 86 FR 5322, 5334 (January
19, 2021), and similarly informs our
analysis here.
The rarity of encounter during seismic
surveys is not likely to be the product
of high bias on the probability of
detection. Unlike certain cryptic species
with high detection bias, such as Kogia
spp. or beaked whales, or deep-diving
species with high availability bias, such
as beaked whales or sperm whales,
killer whales are typically available for
detection when present and are easily
observed. Roberts et al. (2015) stated
that availability is not a major factor
affecting detectability of killer whales
from shipboard surveys, as they are not
a particularly long-diving species. Baird
et al. (2005) reported that mean dive
durations for 41 fish-eating killer whales
for dives greater than or equal to 1
minute in duration was 2.3–2.4 minutes,
and Hooker et al. (2012) reported that
killer whales spent 78 percent of their
time at depths between 0–10 m.
Similarly, Kvadsheim et al. (2012)
reported data from a study of four killer
whales, noting that the whales
performed 20 times as many dives to 1–
30 m depth than to deeper waters, with
an average depth during those most
common dives of approximately 3 m.
In summary, killer whales are the
most rarely encountered species in the
GOM and typically occur only in
particularly deep water. While this
information is reflected through the
density model informing the acoustic
exposure modeling results, there is
relatively high uncertainty associated
with the model for this species, and the
acoustic exposure modeling applies
mean distribution data over areas where
the species is in fact less likely to occur.
NMFS’ determination in reflection of
the data discussed above, which
informed the final rule, is that use of the
generic acoustic exposure modeling
results for killer whales would result in
high estimated take numbers that are
inconsistent with the assumptions made
in the rule regarding expected killer
whale take (86 FR 5322, 5403; January
19, 2021).
In past authorizations, NMFS has
often addressed situations involving the
low likelihood of encountering a rare
species such as killer whales in the
GOM through authorization of take of a
single group of average size (i.e.,
representing a single potential
encounter). See 83 FR 63268, December
7, 2018. See also 86 FR 29090, May 28,
2021; 85 FR 55645, September 9, 2020.
For the reasons expressed above, NMFS
determined that a single encounter of
killer whales is more likely than the
model-generated estimates and has
authorized take associated with a single
killer whale group encounter (i.e., up to
7 animals).
Based on the results of our analysis,
NMFS has determined that the level of
taking 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 9 of the rule (86 FR 5322;
January 19, 2021).
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. For more information please see
NMFS’ discussion of the MMPA’s small
numbers requirement provided in the
final rule (86 FR 5322, 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 one day (see 86 FR
5322, 5404; January 19, 2021). The
output of this scaling, where
appropriate, is incorporated into an
adjusted total take estimate that is the
basis for NMFS’ small numbers
determination, as depicted in Table 1
for Chevron’s 22-day survey.
This product is used by NMFS in
making the necessary small numbers
determination, through comparison
with the best available abundance
estimates (see discussion at 86 FR 5322,
5391; January 19, 2021). For this
comparison, NMFS’ approach is to use
the maximum theoretical population,
determined through review of current
stock abundance reports (SAR;
www.fisheries.noaa.gov/national/
marine-mammal-protection/marinemammal-stock-assessments) and modelpredicted abundance information
(https://seamap.env.duke.edu/models/
Duke/GOM/). For the latter, for taxa
where a density surface model could be
produced, we use the maximum mean
seasonal (i.e., three-month) abundance
prediction for purposes of comparison
as a precautionary smoothing of monthto-month fluctuations and in
consideration of a corresponding lack of
data in the literature regarding seasonal
distribution of marine mammals in the
GOM. Information supporting the small
numbers determinations is provided in
Table 1.
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TABLE 1—TAKE ANALYSIS
Authorized
take
Species
Sperm whale ....................................................................................................
Kogia spp .........................................................................................................
Beaked whales ................................................................................................
Scaled take 1
673
3 255
3,423
284.7
79.6
345.7
4 However, note that these species have been
observed over a greater range of water depths in the
GOM than have killer whales.
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Abundance 2
2,207
4,373
3,768
% Abundance
12.9
2.0
9.2
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Federal Register / Vol. 86, No. 133 / Thursday, July 15, 2021 / Notices
TABLE 1—TAKE ANALYSIS—Continued
Authorized
take
Species
Rough-toothed dolphin ....................................................................................
Bottlenose dolphin ...........................................................................................
Clymene dolphin ..............................................................................................
Atlantic spotted dolphin ...................................................................................
Pantropical spotted dolphin .............................................................................
Spinner dolphin ................................................................................................
Striped dolphin .................................................................................................
Fraser’s dolphin ...............................................................................................
Risso’s dolphin .................................................................................................
Melon-headed whale .......................................................................................
Pygmy killer whale ...........................................................................................
False killer whale .............................................................................................
Killer whale ......................................................................................................
Short-finned pilot whale ...................................................................................
Scaled take 1
491
2,154
1,552
834
8,521
1,618
642
188
429
1,008
248
361
7
251
140.9
618.2
445.4
239.4
2,445.5
464.4
184.3
54.0
126.6
297.4
73.2
106.5
n/a
74.0
Abundance 2
% Abundance
4,853
176,108
11,895
74,785
102,361
25,114
5,229
1,665
3,764
7,003
2,126
3,204
267
1,981
2.9
0.4
3.7
0.3
2.4
1.8
3.5
3.2
3.4
4.2
3.4
3.3
2.6
3.7
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 (Roberts et al., 2016). For those taxa where a density surface model predicting abundance by month was
produced, the maximum mean seasonal abundance was used. For those taxa where abundance is not predicted by month, only mean annual
abundance is available. For the killer whale, the larger estimated SAR abundance estimate is used.
3 Includes 7 takes by Level A harassment and 248 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.
Based on the analysis contained
herein of Chevron’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 and therefore 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
Chevron authorizing the take of marine
mammals incidental to its geophysical
survey activity, as described above.
Dated: July 12, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. 2021–15048 Filed 7–14–21; 8:45 am]
DEPARTMENT OF COMMERCE
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Patent and Trademark Office
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Patent Eligibility Jurisprudence Study
United States Patent and
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ACTION: Request for information;
correction.
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FOR FURTHER INFORMATION CONTACT:
Courtney Stopp, USPTO, Office of
Policy and International Affairs, at
Courtney.Stopp@uspto.gov or 571–272–
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SUPPLEMENTARY INFORMATION:
Correction
In the Federal Register of July 9,
2021, in FR Doc. 2021–14628, on page
36258, in the first column, correct the
information provided under the caption
FOR FURTHER INFORMATION CONTACT to
read:
FOR FURTHER INFORMATION CONTACT:
Courtney Stopp, USPTO, Office of
Policy and International Affairs, at
Courtney.Stopp@uspto.gov or 571–272–
9300. Please direct media inquiries to
the USPTO’s Office of the Chief
Communications Officer at 571–272–
8400.
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The United States Patent and
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July 9, 2021 requesting public
comments on the current state of patent
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of the document that identifies the
individual who may be contacted for
information regarding the request.
SUMMARY:
Andrew Hirshfeld,
Commissioner for Patents, Performing the
Functions and Duties of the Under Secretary
of Commerce for Intellectual Property and
Director of the United States Patent and
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Agency Information Collection
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DATES: Interested persons are invited to
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ADDRESSES: To access and review all the
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use https://www.regulations.gov by
searching the Docket ID number ED–
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[Federal Register Volume 86, Number 133 (Thursday, July 15, 2021)]
[Notices]
[Pages 37313-37316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15048]
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National Oceanic and Atmospheric Administration
[RTID 0648-XB212]
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 a Letter of Authorization (LOA) has been issued to Chevron U.S.A.
Inc. (Chevron) for the take of marine mammals incidental to geophysical
survey activity in the Gulf of Mexico.
DATES: The LOA is effective from August 1, 2021, through June 1, 2022.
ADDRESSES: The LOA, LOA request, and supporting documentation are
available online at: 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).
FOR FURTHER INFORMATION CONTACT: Ben Laws, 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 Federal waters of the
U.S. Gulf of Mexico (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.
[[Page 37314]]
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.
Summary of Request and Analysis
Chevron plans to conduct a 3D borehole seismic survey using an
airgun array as the sound source, covering portions of approximately 40
lease blocks centered around Lease Block G16942 (Big Foot). The survey
is a type of vertical seismic profile (VSP) survey. The array consists
of 32 elements, with a total volume of 5,040 cubic inches (in\3\).
Please see Chevron's application for additional detail.
Consistent with the preamble to the final rule, the survey effort
proposed by Chevron in its LOA request was used to develop LOA-specific
take estimates based on the acoustic exposure modeling results
described in the preamble (86 FR 5322, 5398; January 19, 2021). 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; and (4) season.\2\ The acoustic
exposure modeling performed in support of the rule provides 24-hour
exposure estimates for each species, specific to each modeled survey
type in each zone and season.
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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\ For purposes of acoustic exposure modeling, seasons include
Winter (December-March) and Summer (April-November).
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No VSP surveys were included in the modeled survey types, and use
of existing proxies (i.e., 2D, 3D NAZ, 3D WAZ, Coil) is generally
conservative for use in evaluation of VSP survey effort. Summary
descriptions of these modeled survey geometries are available in the
preamble to the proposed rule (83 FR 29212, 29220; June 22, 2018). 3D
NAZ was selected as the best available proxy survey type. In addition,
all available acoustic exposure modeling results assume use of a 72
element, 8,000 in\3\ array. In this case, take numbers authorized
through the LOA are considered conservative due to differences in both
the airgun array and the survey geometry planned by Chevron, as
compared to those modeled for the rule.
The survey is planned to occur for 22 days, with 14 days occurring
in Zone 5 and 8 days in Zone 7. The season is not known in advance.
Therefore, the take estimates for each species are based on the season
that has the greater value for the species (i.e., winter or summer).
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. Thus,
although the modeling conducted for the rule is a natural starting
point for estimating take, our rule acknowledged that other information
could be considered (see, e.g., 86 FR 5322, 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
certain marine mammal species produces results inconsistent with what
is known regarding their occurrence in the GOM. Accordingly, we have
adjusted the calculated take estimates for those species as described
below.
Rice's whales (formerly known as GOM Bryde's whales) \3\ are
generally found within a small area in the northeastern GOM in waters
between 100-400 meters (m) depth along the continental shelf break
(Rosel et al., 2016). 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), and a NOAA survey reported observation of a Rice's whale in the
western GOM in 2017 (NMFS, 2018). Habitat-based density modeling
identified similar habitat (i.e., approximately 100-400 m water depths
along the continental shelf break) as being potential Rice's whale
habitat (Roberts et al., 2016), although a ``core habitat area''
defined in the northeastern GOM (outside the scope of the rule)
contained approximately 92 percent of the predicted abundance of Rice's
whales. See discussion provided at, e.g., 83 FR 29212, 29228, 29280
(June 22, 2018); 86 FR 5322, 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 it is possible that Rice's whales may occur outside of
their core habitat, NMFS expects that any such occurrence would be
limited to the narrow band of suitable habitat described above (i.e.,
100-400 m). Chevron's planned activity will occur in water depths of
approximately 1,200-2,000 m in the central GOM. 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 this LOA.
Killer whales are the most rarely encountered species in the GOM,
typically in deep waters of the central GOM (Roberts et al., 2015;
Maze-Foley and Mullin, 2006). 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. NMFS has
determined that the approach results in unrealistic projections
regarding the likelihood of encountering killer whales.
As discussed in the final rule, the density models produced by
Roberts et al. (2016) provide the best available scientific information
regarding predicted density patterns of cetaceans in the U.S. GOM. The
predictions represent the output of models derived from multi-year
observations and associated environmental parameters that incorporate
corrections for detection bias. However, in the case of killer whales,
the model is informed by few data, as indicated by the coefficient of
variation associated with the abundance predicted by the model (0.41,
the second-highest of any GOM species model; Roberts et al., 2016). The
model's authors noted the expected non-uniform distribution of this
rarely-encountered species (as discussed above) and expressed that, due
to the limited data available to inform the model, it ``should be
viewed cautiously'' (Roberts et al., 2015).
NOAA surveys in the GOM from 1992-2009 reported only 16 sightings
of killer whales, with an additional three encounters during more
recent survey
[[Page 37315]]
effort from 2017-18 (Waring et al., 2013; www.boem.gov/gommapps). Two
other species were also observed on less than 20 occasions during the
1992-2009 NOAA surveys (Fraser's dolphin and false killer whale).\4\
However, observational data collected by protected species observers
(PSOs) on industry geophysical survey vessels from 2002-2015
distinguish the killer whale in terms of rarity. During this period,
killer whales were encountered on only 10 occasions, whereas the next
most rarely encountered species (Fraser's dolphin) was recorded on 69
occasions (Barkaszi and Kelly, 2019). The false killer whale and pygmy
killer whale were the next most rarely encountered species, with 110
records each. The killer whale was the species with the lowest
detection frequency during each period over which PSO data were
synthesized (2002-2008 and 2009-2015). This information qualitatively
informed our rulemaking process, as discussed at 86 FR 5322, 5334
(January 19, 2021), and similarly informs our analysis here.
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\4\ However, note that these species have been observed over a
greater range of water depths in the GOM than have killer whales.
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The rarity of encounter during seismic surveys is not likely to be
the product of high bias on the probability of detection. Unlike
certain cryptic species with high detection bias, such as Kogia spp. or
beaked whales, or deep-diving species with high availability bias, such
as beaked whales or sperm whales, killer whales are typically available
for detection when present and are easily observed. Roberts et al.
(2015) stated that availability is not a major factor affecting
detectability of killer whales from shipboard surveys, as they are not
a particularly long-diving species. Baird et al. (2005) reported that
mean dive durations for 41 fish-eating killer whales for dives greater
than or equal to 1 minute in duration was 2.3-2.4 minutes, and Hooker
et al. (2012) reported that killer whales spent 78 percent of their
time at depths between 0-10 m. Similarly, Kvadsheim et al. (2012)
reported data from a study of four killer whales, noting that the
whales performed 20 times as many dives to 1-30 m depth than to deeper
waters, with an average depth during those most common dives of
approximately 3 m.
In summary, killer whales are the most rarely encountered species
in the GOM and typically occur only in particularly deep water. While
this information is reflected through the density model informing the
acoustic exposure modeling results, there is relatively high
uncertainty associated with the model for this species, and the
acoustic exposure modeling applies mean distribution data over areas
where the species is in fact less likely to occur. NMFS' determination
in reflection of the data discussed above, which informed the final
rule, is that use of the generic acoustic exposure modeling results for
killer whales would result in high estimated take numbers that are
inconsistent with the assumptions made in the rule regarding expected
killer whale take (86 FR 5322, 5403; January 19, 2021).
In past authorizations, NMFS has often addressed situations
involving the low likelihood of encountering a rare species such as
killer whales in the GOM through authorization of take of a single
group of average size (i.e., representing a single potential
encounter). See 83 FR 63268, December 7, 2018. See also 86 FR 29090,
May 28, 2021; 85 FR 55645, September 9, 2020. For the reasons expressed
above, NMFS determined that a single encounter of killer whales is more
likely than the model-generated estimates and has authorized take
associated with a single killer whale group encounter (i.e., up to 7
animals).
Based on the results of our analysis, NMFS has determined that the
level of taking 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 9 of the rule (86 FR 5322; January 19,
2021).
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. For more information please see NMFS'
discussion of the MMPA's small numbers requirement provided in the
final rule (86 FR 5322, 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 one day (see 86 FR 5322, 5404; January 19, 2021).
The output of this scaling, where appropriate, is incorporated into an
adjusted total take estimate that is the basis for NMFS' small numbers
determination, as depicted in Table 1 for Chevron's 22-day survey.
This product is used by NMFS in making the necessary small numbers
determination, through comparison with the best available abundance
estimates (see discussion at 86 FR 5322, 5391; January 19, 2021). For
this comparison, NMFS' approach is to use the maximum theoretical
population, determined through review of current stock abundance
reports (SAR; 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/). For the
latter, for taxa where a density surface model could be produced, we
use the maximum mean seasonal (i.e., three-month) abundance prediction
for purposes of comparison as a precautionary smoothing of month-to-
month fluctuations and in consideration of a corresponding lack of data
in the literature regarding seasonal distribution of marine mammals in
the GOM. Information supporting the small numbers determinations is
provided in Table 1.
Table 1--Take Analysis
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Authorized Scaled take
Species take \1\ Abundance \2\ % Abundance
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Sperm whale..................................... 673 284.7 2,207 12.9
Kogia spp....................................... \3\ 255 79.6 4,373 2.0
Beaked whales................................... 3,423 345.7 3,768 9.2
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Rough-toothed dolphin........................... 491 140.9 4,853 2.9
Bottlenose dolphin.............................. 2,154 618.2 176,108 0.4
Clymene dolphin................................. 1,552 445.4 11,895 3.7
Atlantic spotted dolphin........................ 834 239.4 74,785 0.3
Pantropical spotted dolphin..................... 8,521 2,445.5 102,361 2.4
Spinner dolphin................................. 1,618 464.4 25,114 1.8
Striped dolphin................................. 642 184.3 5,229 3.5
Fraser's dolphin................................ 188 54.0 1,665 3.2
Risso's dolphin................................. 429 126.6 3,764 3.4
Melon-headed whale.............................. 1,008 297.4 7,003 4.2
Pygmy killer whale.............................. 248 73.2 2,126 3.4
False killer whale.............................. 361 106.5 3,204 3.3
Killer whale.................................... 7 n/a 267 2.6
Short-finned pilot whale........................ 251 74.0 1,981 3.7
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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 (Roberts et al., 2016). For those taxa where
a density surface model predicting abundance by month was produced, the maximum mean seasonal abundance was
used. For those taxa where abundance is not predicted by month, only mean annual abundance is available. For
the killer whale, the larger estimated SAR abundance estimate is used.
\3\ Includes 7 takes by Level A harassment and 248 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.
Based on the analysis contained herein of Chevron'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 and therefore 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 Chevron authorizing the take of marine mammals
incidental to its geophysical survey activity, as described above.
Dated: July 12, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2021-15048 Filed 7-14-21; 8:45 am]
BILLING CODE 3510-22-P
