Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico, 38447-38450 [2021-15453]

Download as PDF Federal Register / Vol. 86, No. 137 / Wednesday, July 21, 2021 / Notices entering either the title of the collection or the OMB Control Number 0694–0021. Sheleen Dumas, Department PRA Clearance Officer, Office of the Chief Information Officer, Commerce Department. [FR Doc. 2021–15489 Filed 7–20–21; 8:45 am] BILLING CODE 3510–33–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [RTID 0648–XB249] Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of issuance of Letters 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 two Letters of Authorization (LOA) have been issued to Shell Offshore Inc. (Shell) for the take of marine mammals incidental to geophysical survey activity in the Gulf of Mexico. DATES: The LOAs are effective from October 1, 2021, through March 31, 2022, and from August 15, 2021, through December 15, 2021. ADDRESSES: The LOAs, LOA requests, and supporting documentation are available online at: www.fisheries.noaa.gov/action/ incidental-take-authorization-oil-andgas-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: jbell on DSKJLSW7X2PROD with NOTICES SUMMARY: 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 VerDate Sep<11>2014 17:26 Jul 20, 2021 Jkt 253001 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. 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 PO 00000 Frm 00003 Fmt 4703 Sfmt 4703 38447 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 Shell plans to conduct two separate geophysical surveys, and submitted an LOA request for each survey. The first survey is a 4D (time lapse) survey of Lease Block WR 508 and portions of the surrounding approximately 100 lease blocks in the Stones development area (Stones survey). The second survey would also be a 4D (time lapse) survey, and would cover Lease Block AC 857 and portions of the surrounding approximately 60 lease blocks in the Perdido development area (Perdido survey). See Section F of the respective LOA applications for maps of these areas. For the Stones survey survey, Shell anticipates using an airgun array consisting of 32 elements, with a total volume of 5,110 cubic inches (in3). For the Perdido survey, Shell anticipates using an airgun array with a total volume of 2,280 in3. Please see Shell’s applications for additional detail. Consistent with the preamble to the final rule, the survey effort proposed by Shell in its LOA requests 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. Summary descriptions of the modeled survey geometries (i.e., 2D, 3D NAZ, 3D WAZ, Coil) are available in the preamble to the proposed rule (83 FR 29212, 29220; June 22, 2018). 3D NAZ 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). E:\FR\FM\21JYN1.SGM 21JYN1 jbell on DSKJLSW7X2PROD with NOTICES 38448 Federal Register / Vol. 86, No. 137 / Wednesday, July 21, 2021 / Notices was selected as the best available proxy survey type. The Stones survey will use a single source vessel with line spacing of 100 m and a shot interval of approximately 10.5 seconds. Although the 2D survey was the only exposure modeling scenario to use a single source vessel, the line spacing and shot interval represented by the 3D NAZ scenario make it most representative. The Perdido survey will also use a single source vessel, with source line spacing of 87.5 m and a shot interval of approximately 6 seconds. 3D NAZ is the most representative survey geometry for the same reasons discussed for the Stones survey. Note that all available acoustic exposure modeling results assume use of a 72 element, 8,000 in3 array. In this case, take numbers authorized through the LOAs are considered conservative (i.e., they likely overestimate take) primarily due to differences in the airgun arrays planned for use by Shell (most notably the relatively small array planned for use in the Perdido survey), as compared to the array modeled for the rule. The Stones survey will take place over 95 days, including 65 days of sound source operation. The Perdido survey will take place over 60 days, including 50 days of sound source operation. Both surveys will occur within Zone 7. For the Stones survey, the seasonal distribution of survey days is not known in advance. Therefore, the take estimates for each species are based on the winter season, which for all species produces the greater value. For the Perdido survey, it is assumed that, of the 50 survey days, 35 would occur during summer and 15 would occur during winter. 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 VerDate Sep<11>2014 17:26 Jul 20, 2021 Jkt 253001 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 as described below. 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 effort from 2017–18 (Waring et al., 2013; www.boem.gov/gommapps). Two other species were also observed on fewer than 20 occasions during the 1992–2009 NOAA surveys (Fraser’s dolphin and false killer whale 3). 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 3 However, note that these species have been observed over a greater range of water depths in the GOM than have killer whales. PO 00000 Frm 00004 Fmt 4703 Sfmt 4703 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 1–30 m in 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 will generally result in 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 E:\FR\FM\21JYN1.SGM 21JYN1 38449 Federal Register / Vol. 86, No. 137 / Wednesday, July 21, 2021 / Notices 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) for each LOA. Based on the results of our analysis, NMFS has determined that the level of taking expected for these surveys and authorized through the LOAs is consistent with the findings made for the total taking allowable under the regulations. See Tables 1 and 2 in this notice and Table 9 of the rule (86 FR 5322; January 19, 2021). Small Numbers Determinations 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 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 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 Tables 1 and 2. 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 may be 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 determinations, as depicted in Table 1 for Shell’s Stones survey and in Table 2 for the Perdido survey. TABLE 1—TAKE ANALYSIS, STONES LOA Authorized take Species Rice’s whale 3 ................................................................................................... Sperm whale .................................................................................................... Kogia spp ......................................................................................................... Beaked whales ................................................................................................ 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 0 523 4 319 5,131 712 23 2,227 0 22,112 519 1,157 399 365 1,572 589 667 7 125 n/a 221.2 121.3 518.2 204.3 6.6 639.1 n/a 6,346.1 149.0 332.1 114.5 107.7 463.7 173.8 196.8 n/a 36.9 Abundance 2 51 2,207 4,373 3,768 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 Percent abundance n/a 10.0 2.8 13.8 4.2 0.0 5.4 n/a 6.2 0.6 6.4 6.9 2.9 6.6 8.2 6.1 2.6 1.9 jbell on DSKJLSW7X2PROD with NOTICES 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 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). 4 Includes 11 takes by Level A harassment and 308 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 Level A harassment take. TABLE 2—TAKE ANALYSIS, PERDIDO LOA Authorized take Species Rice’s whale 3 ................................................................................................... Sperm whale .................................................................................................... Kogia spp ......................................................................................................... VerDate Sep<11>2014 17:26 Jul 20, 2021 Jkt 253001 PO 00000 Frm 00005 Fmt 4703 Sfmt 4703 Scaled take 1 0 377 4 227 E:\FR\FM\21JYN1.SGM n/a 159.5 88.0 21JYN1 Abundance 2 51 2,207 4,373 Percent abundance n/a 7.2 2.0 38450 Federal Register / Vol. 86, No. 137 / Wednesday, July 21, 2021 / Notices TABLE 2—TAKE ANALYSIS, PERDIDO LOA—Continued Authorized take Species Beaked whales ................................................................................................ Rough-toothed dolphin .................................................................................... Bottlenose dolphin 5 ......................................................................................... 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 3,793 496 21 1,521 0 15,101 354 790 281 249 1,109 410 464 7 88 383.1 142.4 n/a 436.5 n/a 4,334.0 101.6 226.7 80.6 73.5 327.2 121.0 136.9 n/a 26.0 Abundance 2 Percent abundance 3,768 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 10.2 2.9 0.0 3.7 n/a 4.2 0.4 4.3 4.8 2.0 4.7 5.7 4.3 2.6 1.3 jbell on DSKJLSW7X2PROD with NOTICES 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 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). 4 Includes 9 takes by Level A harassment and 218 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 Level A harassment take. 5 Modeled take of 16 increased to account for potential encounter with group of average size (Maze-Foley and Mullin, 2006). Based on the analysis contained herein of Shell’s proposed survey activity described in its LOA applications 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. Dated: July 14, 2021. Catherine Marzin, Acting Director, Office of Protected Resources, National Marine Fisheries Service. Authorization [CPSC Docket No. 21–2] NMFS has determined that the level of taking for these LOA requests 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 LOAs is of no more than small numbers. Accordingly, we have issued two LOAs to Shell authorizing the take of marine mammals incidental to its geophysical survey activity, as described above. Amazon.Com, Inc. VerDate Sep<11>2014 17:26 Jul 20, 2021 Jkt 253001 [FR Doc. 2021–15453 Filed 7–20–21; 8:45 am] BILLING CODE 3510–22–P CONSUMER PRODUCT SAFETY COMMISSION Consumer Product Safety Commission. ACTION: Publication of a Complaint under the Consumer Product Safety Act. AGENCY: Under provisions of its Rules of Practice for Adjudicative Proceeding, the Consumer Product Safety Commission must publish in the Federal Register Complaints which it SUMMARY: PO 00000 Frm 00006 Fmt 4703 Sfmt 4703 issues. Published below is a Complaint: In the matter of Amazon.com. FOR FURTHER INFORMATION CONTACT: Alberta E. Mills, Secretary, Division of the Secretariat, Office of the General Counsel, U.S. Consumer Product Safety Commission, 4330 East-West Highway, Bethesda, MD 20814, (301) 504–7479 (Office) or 240–863–8938 (cell). SUPPLEMENTARY INFORMATION: The Commission voted 3–1 to authorize issuance of this Complaint. Acting Chairman Adler, Commissioners Kaye and Feldman voted to authorize issuance of the Complaint. Commissioner Baiocco voted to not authorize issuance of the Complaint. The text of the Complaint appears below. Dated: July 15, 2021. Alberta E. Mills, Secretary, Consumer Product Safety Commission. BILLING CODE 6355–01–P E:\FR\FM\21JYN1.SGM 21JYN1

Agencies

[Federal Register Volume 86, Number 137 (Wednesday, July 21, 2021)]
[Notices]
[Pages 38447-38450]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15453]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB249]

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 Letters of Authorization.

-----------------------------------------------------------------------

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 two Letters of Authorization (LOA) have been issued to Shell
Offshore Inc. (Shell) for the take of marine mammals incidental to
geophysical survey activity in the Gulf of Mexico.

DATES: The LOAs are effective from October 1, 2021, through March 31,
2022, and from August 15, 2021, through December 15, 2021.

ADDRESSES: The LOAs, LOA requests, 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.
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

Shell plans to conduct two separate geophysical surveys, and
submitted an LOA request for each survey. The first survey is a 4D
(time lapse) survey of Lease Block WR 508 and portions of the
surrounding approximately 100 lease blocks in the Stones development
area (Stones survey). The second survey would also be a 4D (time lapse)
survey, and would cover Lease Block AC 857 and portions of the
surrounding approximately 60 lease blocks in the Perdido development
area (Perdido survey). See Section F of the respective LOA applications
for maps of these areas.
For the Stones survey survey, Shell anticipates using an airgun
array consisting of 32 elements, with a total volume of 5,110 cubic
inches (in\3\). For the Perdido survey, Shell anticipates using an
airgun array with a total volume of 2,280 in\3\. Please see Shell's
applications for additional detail.
Consistent with the preamble to the final rule, the survey effort
proposed by Shell in its LOA requests 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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Summary descriptions of the modeled survey geometries (i.e., 2D, 3D
NAZ, 3D WAZ, Coil) are available in the preamble to the proposed rule
(83 FR 29212, 29220; June 22, 2018). 3D NAZ

[[Page 38448]]

was selected as the best available proxy survey type. The Stones survey
will use a single source vessel with line spacing of 100 m and a shot
interval of approximately 10.5 seconds. Although the 2D survey was the
only exposure modeling scenario to use a single source vessel, the line
spacing and shot interval represented by the 3D NAZ scenario make it
most representative. The Perdido survey will also use a single source
vessel, with source line spacing of 87.5 m and a shot interval of
approximately 6 seconds. 3D NAZ is the most representative survey
geometry for the same reasons discussed for the Stones survey. Note
that 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 LOAs are considered conservative (i.e., they likely
overestimate take) primarily due to differences in the airgun arrays
planned for use by Shell (most notably the relatively small array
planned for use in the Perdido survey), as compared to the array
modeled for the rule.
The Stones survey will take place over 95 days, including 65 days
of sound source operation. The Perdido survey will take place over 60
days, including 50 days of sound source operation. Both surveys will
occur within Zone 7. For the Stones survey, the seasonal distribution
of survey days is not known in advance. Therefore, the take estimates
for each species are based on the winter season, which for all species
produces the greater value. For the Perdido survey, it is assumed that,
of the 50 survey days, 35 would occur during summer and 15 would occur
during winter.
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 as described below.
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 effort from 2017-18 (Waring et al., 2013; www.boem.gov/gommapps). Two other species were also observed on fewer than 20
occasions during the 1992-2009 NOAA surveys (Fraser's dolphin and false
killer whale \3\). 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.
---------------------------------------------------------------------------

\3\ However, note that these species have been observed over a
greater range of water depths in the GOM than have killer whales.
---------------------------------------------------------------------------

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 1-30 m in 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 will generally result in 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

[[Page 38449]]

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) for each LOA.
Based on the results of our analysis, NMFS has determined that the
level of taking expected for these surveys and authorized through the
LOAs is consistent with the findings made for the total taking
allowable under the regulations. See Tables 1 and 2 in this notice and
Table 9 of the rule (86 FR 5322; January 19, 2021).

Small Numbers Determinations

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
may be 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
determinations, as depicted in Table 1 for Shell's Stones survey and in
Table 2 for the Perdido survey.
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 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 Tables 1 and 2.

Table 1--Take Analysis, Stones LOA
----------------------------------------------------------------------------------------------------------------
Authorized Scaled take Percent
Species take \1\ Abundance \2\ abundance
----------------------------------------------------------------------------------------------------------------
Rice's whale \3\................................ 0 n/a 51 n/a
Sperm whale..................................... 523 221.2 2,207 10.0
Kogia spp....................................... \4\ 319 121.3 4,373 2.8
Beaked whales................................... 5,131 518.2 3,768 13.8
Rough-toothed dolphin........................... 712 204.3 4,853 4.2
Bottlenose dolphin.............................. 23 6.6 176,108 0.0
Clymene dolphin................................. 2,227 639.1 11,895 5.4
Atlantic spotted dolphin........................ 0 n/a 74,785 n/a
Pantropical spotted dolphin..................... 22,112 6,346.1 102,361 6.2
Spinner dolphin................................. 519 149.0 25,114 0.6
Striped dolphin................................. 1,157 332.1 5,229 6.4
Fraser's dolphin................................ 399 114.5 1,665 6.9
Risso's dolphin................................. 365 107.7 3,764 2.9
Melon-headed whale.............................. 1,572 463.7 7,003 6.6
Pygmy killer whale.............................. 589 173.8 2,126 8.2
False killer whale.............................. 667 196.8 3,204 6.1
Killer whale.................................... 7 n/a 267 2.6
Short-finned pilot whale........................ 125 36.9 1,981 1.9
----------------------------------------------------------------------------------------------------------------
\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\ 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).
\4\ Includes 11 takes by Level A harassment and 308 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 Level A harassment take.

Table 2--Take Analysis, Perdido LOA
----------------------------------------------------------------------------------------------------------------
Authorized Scaled take Percent
Species take \1\ Abundance \2\ abundance
----------------------------------------------------------------------------------------------------------------
Rice's whale \3\................................ 0 n/a 51 n/a
Sperm whale..................................... 377 159.5 2,207 7.2
Kogia spp....................................... \4\ 227 88.0 4,373 2.0

[[Page 38450]]

Beaked whales................................... 3,793 383.1 3,768 10.2
Rough-toothed dolphin........................... 496 142.4 4,853 2.9
Bottlenose dolphin \5\.......................... 21 n/a 176,108 0.0
Clymene dolphin................................. 1,521 436.5 11,895 3.7
Atlantic spotted dolphin........................ 0 n/a 74,785 n/a
Pantropical spotted dolphin..................... 15,101 4,334.0 102,361 4.2
Spinner dolphin................................. 354 101.6 25,114 0.4
Striped dolphin................................. 790 226.7 5,229 4.3
Fraser's dolphin................................ 281 80.6 1,665 4.8
Risso's dolphin................................. 249 73.5 3,764 2.0
Melon-headed whale.............................. 1,109 327.2 7,003 4.7
Pygmy killer whale.............................. 410 121.0 2,126 5.7
False killer whale.............................. 464 136.9 3,204 4.3
Killer whale.................................... 7 n/a 267 2.6
Short-finned pilot whale........................ 88 26.0 1,981 1.3
----------------------------------------------------------------------------------------------------------------
\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\ 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).
\4\ Includes 9 takes by Level A harassment and 218 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
Level A harassment take.
\5\ Modeled take of 16 increased to account for potential encounter with group of average size (Maze-Foley and
Mullin, 2006).

Based on the analysis contained herein of Shell's proposed survey
activity described in its LOA applications 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 these LOA requests
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 LOAs is of no more than small numbers.
Accordingly, we have issued two LOAs to Shell authorizing the take of
marine mammals incidental to its geophysical survey activity, as
described above.

Dated: July 14, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2021-15453 Filed 7-20-21; 8:45 am]
BILLING CODE 3510-22-P

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