Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico, 61160-61163 [2021-24251]
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Federal Register / Vol. 86, No. 212 / Friday, November 5, 2021 / Notices
that the document includes adequate
information analyzing the effects on the
human environment of issuing the IHA.
This IEE was made available to the
public for review during the public
comment period of the proposed IHA;
we did not receive any comments from
the public relevant to the IEE. A Finding
of No Significant Impact (FONSI) was
signed on October 27, 2021. A copy of
the IEE and FONSI is available upon
online at: https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/incidentaltake-authorizations-constructionactivities.
DATES:
Authorization
NMFS has issued an IHA to NSF for
the potential harassment of small
numbers of 17 marine mammal species
incidental to pile driving activities
associated with construction of the
Palmer Station Pier Replacement project
at Anvers Island, Antarctica, provided
the previously mentioned mitigation,
monitoring and reporting requirements
are followed.
Background
Dated: November 2, 2021.
Kimberly Damon-Randall,
Director, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. 2021–24274 Filed 11–4–21; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[RTID 0648–XB461]
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 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 WesternGeco for the take of marine
mammals incidental to the Engagement
2 geophysical survey activity in the Gulf
of Mexico.
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SUMMARY:
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The LOA is effective from
January 1, 2022, through April 30, 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: Kim
Corcoran, Office of Protected Resources,
NMFS, (301) 427–8401.
SUPPLEMENTARY INFORMATION:
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
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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
WesternGeco plans to conduct a long
offset sparse 3D ocean bottom node
(OBN) survey using airgun arrays as a
sound source within the Green Canyon
protraction area. Sparse OBN surveys
reduce receiver spacing and use dense
shots to provide full-azimuth/offset data
with uniform sampling in the azimuth/
offset (the distance from the source to
the receiver) domain (Olofsson et al.,
2012). WesternGeco’s sound source
consists of a 28-element, 5,200 cubic
inch (in3) airgun array. The survey will
use two source vessels, each towing
three sources at a crossline distance of
100 meters (m) and firing every 8
seconds. Please see WesternGeco’s
application for additional information.
Consistent with the preamble to the
final rule, the survey effort proposed by
WesternGeco 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)
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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 3D OBN 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 3D OBN survey
effort, largely due to the greater area
covered by the modeled proxies.
Summary descriptions of these modeled
survey geometries are available in the
preamble to the proposed rule (83 FR
29212, 29220; June 22, 2018). Coil was
selected as the best available proxy
survey type because it most closely
resembles sparse OBN, in that both
methods use efficient acquisition
methodology to acquire Full Azimuth
and long offset data to provide better
imaging of the sub-surface geological
structures. Additionally, the Coil survey
pattern was assumed to cover
approximately 144 kilometers squared
(km2) per day (compared with
approximately 795 km2, 199 km2, and
845 km2 per day for the 2D, 3D NAZ,
and 3D WAZ survey patterns,
respectively). Among the different
parameters of the modeled survey
patterns (e.g., area covered, line spacing,
number of sources, shot interval, total
simulated pulses), NMFS considers area
covered per day to be most influential
on daily modeled exposures exceeding
Level B harassment criteria. Although
WesternGeco is not proposing
specifically to perform a survey using
the coil geometry, its planned 3D OBN
survey is expected to cover
approximately 62.5 km2 per day,
meaning that the coil proxy is most
representative of the effort planned by
WesternGeco in terms of predicted
Level B harassment exposures.
In addition, all available acoustic
exposure modeling results assume use
of a 72 element, 8,000 in3 array. In this
case, take numbers authorized through
this LOA are considered conservative
due to differences in both the airgun
array (28 elements, 5,200 in3) and the
daily survey area planned by
WesternGeco (62.5 km2), as compared to
those modeled for the rule.
The survey is planned to occur for 48
days in Zone 5. Take estimates for each
species, except for sperm whales, are
based on the winter season, which
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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produces a greater value for these
species. For sperm whales, greater
values are produced in the summer
season. Since the survey could
potentially include up to 30 days in the
summer season, sperm whale take
estimates were calculated for 30 days in
the summer season and 18 days in the
winter season. Together, this produces
the most conservative take estimate for
sperm whales.
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 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
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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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).
WesternGeco’s planned activity will
occur in water depths of approximately
600–2,000 m in the central GOM. Thus,
NMFS does not expect there to be the
reasonable potential for take of Rice’s
whale in association with this survey
and, accordingly, does not authorize
take of Rice’s whale through 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 3
encounters during more recent survey
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
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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; n the
January 19, 2021).
The take numbers for authorization
are determined as described above in
the Summary of Request and Analysis
section. Subsequently, the total
incidents of harassment for each species
are multiplied by scalar ratios to
produce a derived product that better
reflects the number of individuals likely
to be taken within a survey (as
compared to the total number of
instances of take), accounting for the
likelihood that some individual marine
mammals may be taken on more than
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 WesternGeco’s 48-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 assessment 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., 3-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.
TABLE 1—TAKE ANALYSIS
Authorized
take
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Species
Rice’s whale .....................................................................................................
Kogia sp 3 .........................................................................................................
Beaked whales ................................................................................................
Bottlenose dolphin ...........................................................................................
Scaled take 1
0
477
5,572
4,540
0
170
563
1,303
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
51
4,373
3,768
176,108
Percent
abundance
0.0
3.9
14.9
0.7
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Federal Register / Vol. 86, No. 212 / Friday, November 5, 2021 / Notices
TABLE 1—TAKE ANALYSIS—Continued
Authorized
take
Species
Short-finned pilot whale ...................................................................................
Sperm whale ....................................................................................................
Atlantic spotted dolphin ...................................................................................
Clymene dolphin ..............................................................................................
False killer whale .............................................................................................
Fraser’s dolphin ...............................................................................................
Killer whale ......................................................................................................
Melon-headed whale .......................................................................................
Pantropical spotted dolphin .............................................................................
Pygmy killer whale ...........................................................................................
Risso’s dolphin .................................................................................................
Rough-toothed dolphin ....................................................................................
Spinner dolphin ................................................................................................
Striped dolphin .................................................................................................
Scaled take 1
512
1,258
1,813
2,696
663
303
7
1,771
12,235
417
792
958
3,278
1,053
151
532
520
774
196
87
N/A
523
3511
123
234
275
941
302
Abundance 2
1,981
2,207
74,785
11,895
3,204
1,665
267
7,003
102,361
2,126
3,764
4,853
25,114
5,229
Percent
abundance
7.6
24.1
0.7
6.5
6.1
5.2
2.6
7.5
3.4
5.8
6.2
5.7
3.7
5.8
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 25 takes by Level A harassment and 452 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 WesternGeco’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
WesternGeco authorizing the take of
marine mammals incidental to its
geophysical survey activity, as
described above.
Dated: November 2, 2021.
Kimberly Damon-Randall,
Director, Office of Protected Resources,
National Marine Fisheries Service.
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[RTID 0648–XB510]
Atlantic Highly Migratory Species;
Atlantic Highly Migratory Species
Southeast Data, Assessment, and
Review Workshops Advisory Panel
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; nominations for shark
stock assessment advisory panel.
AGENCY:
NMFS solicits nominations
for the Atlantic Highly Migratory
Species (HMS) Southeast Data,
Assessment, and Review (SEDAR)
Workshops Advisory Panel, also known
as the ‘‘SEDAR Pool.’’ The SEDAR Pool
is comprised of a group of individuals
who may be selected to consider data
and advise NMFS regarding the
scientific information, including but not
limited to data and models, used in
stock assessments for oceanic sharks in
the Atlantic Ocean, Gulf of Mexico, and
Caribbean Sea. Nominations are being
sought for 5-year appointments (2022–
2027). Individuals with definable
interests in the recreational and
commercial fishing and related
industries, environmental community,
academia, and non-governmental
organizations will be considered for
membership on the SEDAR Pool.
DATES: Nominations must be received
on or before December 6, 2021.
SUMMARY:
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You may submit
nominations and request the SEDAR
Pool Statement of Organization,
Practices, and Procedures electronically
via email to SEDAR.pool@noaa.gov.
Additional information on SEDAR
and the SEDAR guidelines can be found
at https://sedarweb.org/. The terms of
reference for the SEDAR Pool, along
with a list of current members, can be
found at https://
www.fisheries.noaa.gov/atlantic-highlymigratory-species/southeast-dataassessment-and-review-and-atlantichighly.
FOR FURTHER INFORMATION CONTACT:
Karyl Brewster-Geisz, (301) 425–8503.
SUPPLEMENTARY INFORMATION: Atlantic
HMS shark fisheries are managed under
the authority of the Magnuson-Stevens
Fishery Conservation and Management
Act (Magnuson-Stevens Act; 16 U.S.C.
1801 et seq.). The 2006 Consolidated
Atlantic HMS Fishery Management Plan
(2006 Consolidated HMS FMP) and its
amendments are implemented by
regulations at 50 CFR part 635 under the
Magnuson-Stevens Act and the Atlantic
Tunas Convention Act (ATCA; 16 U.S.C.
971 et seq.).
ADDRESSES:
Background
Section 302(g)(2) of the MagnusonStevens Act states that each Council
shall establish such advisory panels as
are necessary or appropriate to assist it
in carrying out its functions under the
Act. For the purposes of this section,
NMFS applies the above provision to
Atlantic HMS management (See section
304(g)(1) of the Magnuson-Stevens Act,
which provides that the Secretary will
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]]>Agencies
[Federal Register Volume 86, Number 212 (Friday, November 5, 2021)]
[Notices]
[Pages 61160-61163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24251]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XB461]
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 WesternGeco for
the take of marine mammals incidental to the Engagement 2 geophysical
survey activity in the Gulf of Mexico.
DATES: The LOA is effective from January 1, 2022, through April 30,
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: Kim Corcoran, 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
WesternGeco plans to conduct a long offset sparse 3D ocean bottom
node (OBN) survey using airgun arrays as a sound source within the
Green Canyon protraction area. Sparse OBN surveys reduce receiver
spacing and use dense shots to provide full-azimuth/offset data with
uniform sampling in the azimuth/offset (the distance from the source to
the receiver) domain (Olofsson et al., 2012). WesternGeco's sound
source consists of a 28-element, 5,200 cubic inch (in\3\) airgun array.
The survey will use two source vessels, each towing three sources at a
crossline distance of 100 meters (m) and firing every 8 seconds. Please
see WesternGeco's application for additional information.
Consistent with the preamble to the final rule, the survey effort
proposed by WesternGeco 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)
[[Page 61161]]
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 3D OBN 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 3D OBN survey effort, largely due
to the greater area covered by the modeled proxies. Summary
descriptions of these modeled survey geometries are available in the
preamble to the proposed rule (83 FR 29212, 29220; June 22, 2018). Coil
was selected as the best available proxy survey type because it most
closely resembles sparse OBN, in that both methods use efficient
acquisition methodology to acquire Full Azimuth and long offset data to
provide better imaging of the sub-surface geological structures.
Additionally, the Coil survey pattern was assumed to cover
approximately 144 kilometers squared (km\2\) per day (compared with
approximately 795 km\2\, 199 km\2\, and 845 km\2\ per day for the 2D,
3D NAZ, and 3D WAZ survey patterns, respectively). Among the different
parameters of the modeled survey patterns (e.g., area covered, line
spacing, number of sources, shot interval, total simulated pulses),
NMFS considers area covered per day to be most influential on daily
modeled exposures exceeding Level B harassment criteria. Although
WesternGeco is not proposing specifically to perform a survey using the
coil geometry, its planned 3D OBN survey is expected to cover
approximately 62.5 km\2\ per day, meaning that the coil proxy is most
representative of the effort planned by WesternGeco in terms of
predicted Level B harassment exposures.
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 this LOA are considered conservative due to
differences in both the airgun array (28 elements, 5,200 in\3\) and the
daily survey area planned by WesternGeco (62.5 km\2\), as compared to
those modeled for the rule.
The survey is planned to occur for 48 days in Zone 5. Take
estimates for each species, except for sperm whales, are based on the
winter season, which produces a greater value for these species. For
sperm whales, greater values are produced in the summer season. Since
the survey could potentially include up to 30 days in the summer
season, sperm whale take estimates were calculated for 30 days in the
summer season and 18 days in the winter season. Together, this produces
the most conservative take estimate for sperm whales.
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 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). WesternGeco's planned activity will occur in water depths
of approximately 600-2,000 m in the central GOM. Thus, NMFS does not
expect there to be the reasonable potential for take of Rice's whale in
association with this survey and, accordingly, does not authorize take
of Rice's whale through 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 3 encounters during more recent
survey 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
[[Page 61162]]
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; n the January 19, 2021).
The take numbers for authorization are determined as described
above in the Summary of Request and Analysis section. Subsequently, the
total incidents of harassment for each species are multiplied by scalar
ratios to produce a derived product that better reflects the number of
individuals likely to be taken within a survey (as compared to the
total number of instances of take), accounting for the likelihood that
some individual marine mammals may be taken on more than 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 WesternGeco's 48-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 assessment
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., 3-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 Percent
Species take \1\ Abundance \2\ abundance
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Rice's whale.................................... 0 0 51 0.0
Kogia sp \3\.................................... 477 170 4,373 3.9
Beaked whales................................... 5,572 563 3,768 14.9
Bottlenose dolphin.............................. 4,540 1,303 176,108 0.7
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Short-finned pilot whale........................ 512 151 1,981 7.6
Sperm whale..................................... 1,258 532 2,207 24.1
Atlantic spotted dolphin........................ 1,813 520 74,785 0.7
Clymene dolphin................................. 2,696 774 11,895 6.5
False killer whale.............................. 663 196 3,204 6.1
Fraser's dolphin................................ 303 87 1,665 5.2
Killer whale.................................... 7 N/A 267 2.6
Melon-headed whale.............................. 1,771 523 7,003 7.5
Pantropical spotted dolphin..................... 12,235 3511 102,361 3.4
Pygmy killer whale.............................. 417 123 2,126 5.8
Risso's dolphin................................. 792 234 3,764 6.2
Rough-toothed dolphin........................... 958 275 4,853 5.7
Spinner dolphin................................. 3,278 941 25,114 3.7
Striped dolphin................................. 1,053 302 5,229 5.8
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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 25 takes by Level A harassment and 452 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 WesternGeco'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 WesternGeco authorizing the take of marine
mammals incidental to its geophysical survey activity, as described
above.
Dated: November 2, 2021.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2021-24251 Filed 11-4-21; 8:45 am]
BILLING CODE 3510-22-P
