Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico, 68643-68646 [2021-26311]

Download as PDF Federal Register / Vol. 86, No. 230 / Friday, December 3, 2021 / Notices MS Average Pricing DEPARTMENT OF COMMERCE MS pricing is the average price per pound that the C/P Co-op Program will use to determine the fee amount due for that sector. The C/P sector value (V) is calculated by multiplying the retained catch estimates (weight) of Pacific whiting harvested by any vessel registered to a C/P-endorsed limited entry trawl permit by the MS pricing. NMFS has calculated the 2022 MS pricing to be used as a proxy by the CP Co-op Program as: $0.09/lb for Pacific whiting. Cost recovery fees are submitted to NMFS by fish buyers via Pay.gov (https://www.pay.gov/). Fees are only accepted in Pay.gov by credit/debit card or bank transfers. Cash or checks cannot be accepted. Fish buyers registered with Pay.gov can login in the upper righthand corner of the screen. Fish buyers not registered with Pay.gov can go to the cost recovery forms directly from the website below. The links to the Pay.gov forms for each program (IFQ, MS, or C/ P) are listed below: IFQ: https://www.pay.gov/public/ form/start/58062865; MS: https://www.pay.gov/public/ form/start/58378422; and C/P: https://www.pay.gov/public/ form/start/58102817. As stated in the preamble to the cost recovery proposed and final rules, in the spring of each year, NMFS will release an annual report documenting the details and data used for the fee percentage calculations. Annual reports are available at: https:// www.fisheries.noaa.gov/west-coast/ sustainable-fisheries/west-coastgroundfish-trawl-catch-shareprogram#cost-recovery. Authority: 16 U.S.C. 1801 et seq., 16 U.S.C.773 et seq., and 16 U.S.C. 7001 et seq. National Oceanic and Atmospheric Administration Dated: November 30, 2021. Ngagne Jafnar Gueye, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 2021–26287 Filed 12–2–21; 8:45 am] jspears on DSK121TN23PROD with NOTICES1 BILLING CODE 3510–22–P VerDate Sep<11>2014 18:06 Dec 02, 2021 Jkt 256001 [RTID 0648–XB596] 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 Anadarko Petroleum Corporation (Anadarko) for the take of marine mammals incidental to geophysical survey activity in the Gulf of Mexico. DATES: The LOA is effective from January 15, 2022, through July 15, 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: 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 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 PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 68643 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 E:\FR\FM\03DEN1.SGM 03DEN1 68644 Federal Register / Vol. 86, No. 230 / Friday, December 3, 2021 / Notices jspears on DSK121TN23PROD with NOTICES1 authorized under the LOA is of no more than small numbers. Summary of Request and Analysis Anadarko plans to conduct a 4D Time Lapse Seismic Survey, using an airgun array as the sound source, in the vicinity of the Holstein spar in the Green canyon area, and in the vicinity of lease block GC 645. The planned survey is the latest in a time series of 3D narrow azimuth (NAZ) surveys. The array consists of 22 elements, with a total volume of 4,280 cubic inches (in3). Please see Anadarko’s application for additional detail. Consistent with the preamble to the final rule, the survey effort proposed by Anadarko in its LOA request was used to develop LOA-specific take estimates based on the acoustic exposure modeling results described in the preamble (86 FR 5322, 5398; January 19, 2021). In order to generate the appropriate take number for authorization, the following information was considered: (1) Survey type; (2) location (by modeling zone 1); (3) number of days; and (4) season.2 The acoustic exposure modeling performed in support of the rule provides 24-hour exposure estimates for each species, specific to each modeled survey type in each zone and season. Summary descriptions of available 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 was selected as the best available proxy survey type because, as noted above, each iteration of the 4D survey is a 3D NAZ survey. The collection of 3D NAZ becomes a 4D ‘‘time lapse’’ once data is put together during the processing stage. Available acoustic exposure modeling results assume use of a 72 element, 8,000 in3 array. In addition, the modeled 3D NAZ survey geometry assumes a significantly greater area covered per day than is planned to occur during Anadarko’s survey. Therefore, in this case, estimated take numbers for this LOA are considered very conservative due to differences in both the airgun array and the survey geometry planned by Anadarko, as compared to those modeled for the rule. The survey is planned to occur for 34 days in Zone 5. Survey activity is planned to begin in winter but effectiveness dates extend through summer. Therefore, the take estimates 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). VerDate Sep<11>2014 18:06 Dec 02, 2021 Jkt 256001 for each species are based on the season that has the greater value for the species (i.e., winter or summer). For some species, take estimates based solely on the modeling yielded results that are not realistically likely to occur when considered in light of other relevant information available during the rulemaking process regarding marine mammal occurrence in the GOM. Thus, although the modeling conducted for the rule is a natural starting point for estimating take, our rule acknowledged that other information could be considered (see, e.g., 86 FR 5322, 5442 (January 19, 2021), discussing the need to provide flexibility and make efficient use of previous public and agency review of other information and identifying that additional public review is not necessary unless the model or inputs used differ substantively from those that were previously reviewed by NMFS and the public). For this survey, NMFS has other relevant information reviewed during the rulemaking that indicates use of the acoustic exposure modeling to generate a take estimate for certain marine mammal species produces results inconsistent with what is known regarding their occurrence in the GOM. Accordingly, we have adjusted the calculated take estimates for those species as described below. Rice’s whales (formerly known as GOM Bryde’s whales) 3 are generally found within a small area in the northeastern GOM in waters between 100–400 meters (m) depth along the continental shelf break (Rosel et al., 2016). Whaling records suggest that Rice’s whales historically had a broader distribution within similar habitat parameters throughout the GOM (Reeves et al., 2011; Rosel and Wilcox, 2014), and a NOAA survey reported observation of a Rice’s whale in the western GOM in 2017 (NMFS, 2018). Habitat-based density modeling identified similar habitat (i.e., approximately 100–400 m water depths along the continental shelf break) as being potential Rice’s whale habitat (Roberts et al., 2016), although a ‘‘core habitat area’’ defined in the northeastern GOM (outside the scope of the rule) contained approximately 92 percent of the predicted abundance of Rice’s whales. See discussion provided at, e.g., 83 FR 29212, 29228, 29280 (June 22, 2018); 86 FR 5322, 5418 (January 19, 2021). 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). PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 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). Anadarko’s planned activity will occur in water depths of approximately 1,100– 1,400 m in the central GOM. NMFS does not expect there to be the reasonable potential for take of Rice’s whale in association with this survey and, accordingly, does not authorize take of Rice’s whale through this LOA. Killer whales are the most rarely encountered species in the GOM, typically in deep waters of the central GOM (Roberts et al., 2015; Maze-Foley and Mullin, 2006). The approach used in the acoustic exposure modeling, in which seven modeling zones were defined over the U.S. GOM, necessarily averages fine-scale information about marine mammal distribution over the large area of each modeling zone. NMFS has determined that the approach results in unrealistic projections regarding the likelihood of encountering killer whales. As discussed in the final rule, the density models produced by Roberts et al. (2016) provide the best available scientific information regarding predicted density patterns of cetaceans in the U.S. GOM. The predictions represent the output of models derived from multi-year observations and associated environmental parameters that incorporate corrections for detection bias. However, in the case of killer whales, the model is informed by few data, as indicated by the coefficient of variation associated with the abundance predicted by the model (0.41, the second-highest of any GOM species model; Roberts et al., 2016). The model’s authors noted the expected non-uniform distribution of this rarelyencountered species (as discussed above) and expressed that, due to the limited data available to inform the model, it ‘‘should be viewed cautiously’’ (Roberts et al., 2015). NOAA surveys in the GOM from 1992–2009 reported only 16 sightings of killer whales, with an additional three encounters during more recent survey effort from 2017–18 (Waring et al., 2013; www.boem.gov/gommapps). Two other species were also observed on less than 20 occasions during the 1992–2009 NOAA surveys (Fraser’s dolphin and false killer whale 4). However, observational data collected by protected species observers (PSOs) on 4 However, note that these species have been observed over a greater range of water depths in the GOM than have killer whales. E:\FR\FM\03DEN1.SGM 03DEN1 68645 Federal Register / Vol. 86, No. 230 / Friday, December 3, 2021 / Notices 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 for each species in the LOA is consistent with the findings made for the total taking allowable under the regulations. See Table 1 in this notice and Table 9 of the rule (86 FR 5322; January 19, 2021). Small Numbers Determination Under the GOM rule, NMFS may not authorize incidental take of marine mammals in an LOA if it will exceed ‘‘small numbers.’’ In short, when an acceptable estimate of the individual marine mammals taken is available, if the estimated number of individual animals taken is up to, but not greater than, one-third of the best available abundance estimate, NMFS will determine that the numbers of marine mammals taken of a species or stock are small. For more information please see NMFS’ discussion of the MMPA’s small numbers requirement provided in the final rule (86 FR 5322, 5438; January 19, 2021). The take numbers for authorization are determined as described above. Subsequently, the total incidents of harassment for each species are multiplied by scalar ratios to produce a derived product that better reflects the number of individuals likely to be taken within a survey (as compared to the total number of instances of take), accounting for the likelihood that some individual marine mammals may be taken on more than one day (see 86 FR 5322, 5404; January 19, 2021). The output of this scaling, where appropriate, is incorporated into an adjusted total take estimate that is the basis for NMFS’ small numbers determination, as depicted in Table 1 for Anadarko’s 34-day survey. This product is used by NMFS in making the necessary small numbers determination, through comparison with the best available abundance estimates (see discussion at 86 FR 5322, 5391; January 19, 2021). For this comparison, NMFS’ approach is to use the maximum theoretical population, determined through review of current stock abundance reports (SAR; www.fisheries.noaa.gov/national/ marine-mammal-protection/marinemammal-stock-assessments) and modelpredicted abundance information (https://seamap.env.duke.edu/models/ Duke/GOM/). For the latter, for taxa where a density surface model could be produced, we use the maximum mean seasonal (i.e., three-month) abundance prediction for purposes of comparison as a precautionary smoothing of monthto-month fluctuations and in consideration of a corresponding lack of data in the literature regarding seasonal distribution of marine mammals in the GOM. Information supporting the small numbers determinations is provided in Table 1. TABLE 1—TAKE ANALYSIS Authorized take jspears on DSK121TN23PROD with NOTICES1 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 ................................................................................................ VerDate Sep<11>2014 18:06 Dec 02, 2021 Jkt 256001 PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 0 1,477 4 525 6,779 980 5,224 3,104 2,026 14,085 3,774 Scaled take 1 n/a 624.7 164.2 684.7 281.15 1,499.3 890.82 581.5 4,042.5 1,083.2 E:\FR\FM\03DEN1.SGM 03DEN1 Abundance 2 51 2,207 4,373 3,768 4,853 176,108 11,895 74,785 102,361 25,114 % abundance 0.0 28.3 4.1 18.2 5.8 0.9 7.5 0.8 3.9 4.3 68646 Federal Register / Vol. 86, No. 230 / Friday, December 3, 2021 / Notices TABLE 1—TAKE ANALYSIS—Continued Authorized take Species 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 1,212 338 934 1,978 426 678 7 572 Abundance 2 347.9 97.0 275.5 583.6 125.7 200.0 n/a 168.8 % abundance 5,229 1,665 3,764 7,003 2,126 3,204 267 1,981 6.7 5.8 7.3 8.3 5.9 6.2 2.6 8.5 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 13 takes by Level A harassment and 512 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 Anadarko’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 Anadarko authorizing the take of marine mammals incidental to its geophysical survey activity, as described above. Dated: November 30, 2021. Kimberly Damon-Randall, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2021–26311 Filed 12–2–21; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE jspears on DSK121TN23PROD with NOTICES1 National Oceanic and Atmospheric Administration Agency Information Collection Activities; Submission to the Office of Management and Budget (OMB) for Review and Approval; Comment Request; High Seas Fishing Permit Application, Logbook Reporting and Vessel Marking The Department of Commerce will submit the following information collection request to the Office of Management and Budget (OMB) for VerDate Sep<11>2014 18:06 Dec 02, 2021 Jkt 256001 review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. We invite the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public’s reporting burden. Public comments were previously requested via the Federal Register on August 19, 2021 during a 60-day comment period. This notice allows for an additional 30 days for public comments. Agency: National Oceanic and Atmospheric Administration (NOAA), Commerce. Title: High Seas Fishing Permit Application, Logbook Reporting and Vessel Marking. OMB Control Number: 0648–0304. Form Number(s): None. Type of Request: Regular [extension of a current information collection]. Number of Respondents: 600. Average Hours per Response: Permit application with vessel photo, 30 minutes; request to authorize a fishery on the high seas, 40 hours; transshipment notices and reports, 1 hour; power-down and power-on requests, 10 minutes; observer notification, 5 minutes. Total Annual Burden Hours: 151. Needs and Uses: This request is for extension of a currently approved information collection. United States vessels that fish on the high seas (waters beyond the U.S. exclusive economic zone) are required to possess a permit issued under the High Seas Fishing Compliance Act (HSFCA). Applicants for this permit must submit information to identify their vessels, owners and operators of the vessels, and intended fishing areas. PO 00000 Frm 00022 Fmt 4703 Sfmt 9990 The application information is used to process permits and to maintain a register of vessels authorized to fish on the high seas. The HSFCA also requires vessels be marked for identification and enforcement purposes. Vessels must be marked in three locations (port and starboard sides of the deckhouse or hull, and on a weather deck) with their official number or radio call sign. These requirements apply to all vessels fishing on the high seas. Affected Public: Business or other forprofit organizations. Frequency: Every five years or on occasion. Respondent’s Obligation: Mandatory. Legal Authority: High Seas Fishing Compliance Act. This information collection request may be viewed at www.reginfo.gov. Follow the instructions to view the Department of Commerce collections currently under review by OMB. Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website www.reginfo.gov/ public/do/PRAMain. Find this particular information collection by selecting ‘‘Currently under 30-day Review—Open for Public Comments’’ or by using the search function and entering either the title of the collection or the OMB Control Number 0648–0304. Sheleen Dumas, Department PRA Clearance Officer, Office of the Chief Information Officer, Commerce Department. [FR Doc. 2021–26321 Filed 12–2–21; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\03DEN1.SGM 03DEN1

Agencies

[Federal Register Volume 86, Number 230 (Friday, December 3, 2021)]
[Notices]
[Pages 68643-68646]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26311]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB596]

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 Anadarko
Petroleum Corporation (Anadarko) for the take of marine mammals
incidental to geophysical survey activity in the Gulf of Mexico.

DATES: The LOA is effective from January 15, 2022, through July 15,
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

[[Page 68644]]

authorized under the LOA is of no more than small numbers.

Summary of Request and Analysis

Anadarko plans to conduct a 4D Time Lapse Seismic Survey, using an
airgun array as the sound source, in the vicinity of the Holstein spar
in the Green canyon area, and in the vicinity of lease block GC 645.
The planned survey is the latest in a time series of 3D narrow azimuth
(NAZ) surveys. The array consists of 22 elements, with a total volume
of 4,280 cubic inches (in\3\). Please see Anadarko's application for
additional detail.
Consistent with the preamble to the final rule, the survey effort
proposed by Anadarko in its LOA request was used to develop LOA-
specific take estimates based on the acoustic exposure modeling results
described in the preamble (86 FR 5322, 5398; January 19, 2021). In
order to generate the appropriate take number for authorization, the
following information was considered: (1) Survey type; (2) location (by
modeling zone \1\); (3) number of days; and (4) season.\2\ The acoustic
exposure modeling performed in support of the rule provides 24-hour
exposure estimates for each species, specific to each modeled survey
type in each zone and season.
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\1\ For purposes of acoustic exposure modeling, the GOM was
divided into seven zones. Zone 1 is not included in the geographic
scope of the rule.
\2\ For purposes of acoustic exposure modeling, seasons include
Winter (December-March) and Summer (April-November).
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Summary descriptions of available 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 was selected as the
best available proxy survey type because, as noted above, each
iteration of the 4D survey is a 3D NAZ survey. The collection of 3D NAZ
becomes a 4D ``time lapse'' once data is put together during the
processing stage. Available acoustic exposure modeling results assume
use of a 72 element, 8,000 in\3\ array. In addition, the modeled 3D NAZ
survey geometry assumes a significantly greater area covered per day
than is planned to occur during Anadarko's survey. Therefore, in this
case, estimated take numbers for this LOA are considered very
conservative due to differences in both the airgun array and the survey
geometry planned by Anadarko, as compared to those modeled for the
rule.
The survey is planned to occur for 34 days in Zone 5. Survey
activity is planned to begin in winter but effectiveness dates extend
through summer. Therefore, the take estimates for each species are
based on the season that has the greater value for the species (i.e.,
winter or summer).
For some species, take estimates based solely on the modeling
yielded results that are not realistically likely to occur when
considered in light of other relevant information available during the
rulemaking process regarding marine mammal occurrence in the GOM. Thus,
although the modeling conducted for the rule is a natural starting
point for estimating take, our rule acknowledged that other information
could be considered (see, e.g., 86 FR 5322, 5442 (January 19, 2021),
discussing the need to provide flexibility and make efficient use of
previous public and agency review of other information and identifying
that additional public review is not necessary unless the model or
inputs used differ substantively from those that were previously
reviewed by NMFS and the public). For this survey, NMFS has other
relevant information reviewed during the rulemaking that indicates use
of the acoustic exposure modeling to generate a take estimate for
certain marine mammal species produces results inconsistent with what
is known regarding their occurrence in the GOM. Accordingly, we have
adjusted the calculated take estimates for those species as described
below.
Rice's whales (formerly known as GOM Bryde's whales) \3\ are
generally found within a small area in the northeastern GOM in waters
between 100-400 meters (m) depth along the continental shelf break
(Rosel et al., 2016). Whaling records suggest that Rice's whales
historically had a broader distribution within similar habitat
parameters throughout the GOM (Reeves et al., 2011; Rosel and Wilcox,
2014), and a NOAA survey reported observation of a Rice's whale in the
western GOM in 2017 (NMFS, 2018). Habitat-based density modeling
identified similar habitat (i.e., approximately 100-400 m water depths
along the continental shelf break) as being potential Rice's whale
habitat (Roberts et al., 2016), although a ``core habitat area''
defined in the northeastern GOM (outside the scope of the rule)
contained approximately 92 percent of the predicted abundance of Rice's
whales. See discussion provided at, e.g., 83 FR 29212, 29228, 29280
(June 22, 2018); 86 FR 5322, 5418 (January 19, 2021).
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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). Anadarko's planned activity will occur in water depths of
approximately 1,100-1,400 m in the central GOM. NMFS does not expect
there to be the reasonable potential for take of Rice's whale in
association with this survey and, accordingly, does not authorize take
of Rice's whale through this LOA.
Killer whales are the most rarely encountered species in the GOM,
typically in deep waters of the central GOM (Roberts et al., 2015;
Maze-Foley and Mullin, 2006). The approach used in the acoustic
exposure modeling, in which seven modeling zones were defined over the
U.S. GOM, necessarily averages fine-scale information about marine
mammal distribution over the large area of each modeling zone. NMFS has
determined that the approach results in unrealistic projections
regarding the likelihood of encountering killer whales.
As discussed in the final rule, the density models produced by
Roberts et al. (2016) provide the best available scientific information
regarding predicted density patterns of cetaceans in the U.S. GOM. The
predictions represent the output of models derived from multi-year
observations and associated environmental parameters that incorporate
corrections for detection bias. However, in the case of killer whales,
the model is informed by few data, as indicated by the coefficient of
variation associated with the abundance predicted by the model (0.41,
the second-highest of any GOM species model; Roberts et al., 2016). The
model's authors noted the expected non-uniform distribution of this
rarely-encountered species (as discussed above) and expressed that, due
to the limited data available to inform the model, it ``should be
viewed cautiously'' (Roberts et al., 2015).
NOAA surveys in the GOM from 1992-2009 reported only 16 sightings
of killer whales, with an additional three encounters during more
recent survey effort from 2017-18 (Waring et al., 2013; www.boem.gov/gommapps). Two other species were also observed on less than 20
occasions during the 1992-2009 NOAA surveys (Fraser's dolphin and false
killer whale \4\). However, observational data collected by protected
species observers (PSOs) on

[[Page 68645]]

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.
---------------------------------------------------------------------------

\4\ 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 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 for each species in the LOA is consistent
with the findings made for the total taking allowable under the
regulations. See Table 1 in this notice and Table 9 of the rule (86 FR
5322; January 19, 2021).

Small Numbers Determination

Under the GOM rule, NMFS may not authorize incidental take of
marine mammals in an LOA if it will exceed ``small numbers.'' In short,
when an acceptable estimate of the individual marine mammals taken is
available, if the estimated number of individual animals taken is up
to, but not greater than, one-third of the best available abundance
estimate, NMFS will determine that the numbers of marine mammals taken
of a species or stock are small. For more information please see NMFS'
discussion of the MMPA's small numbers requirement provided in the
final rule (86 FR 5322, 5438; January 19, 2021).
The take numbers for authorization are determined as described
above. Subsequently, the total incidents of harassment for each species
are multiplied by scalar ratios to produce a derived product that
better reflects the number of individuals likely to be taken within a
survey (as compared to the total number of instances of take),
accounting for the likelihood that some individual marine mammals may
be taken on more than one day (see 86 FR 5322, 5404; January 19, 2021).
The output of this scaling, where appropriate, is incorporated into an
adjusted total take estimate that is the basis for NMFS' small numbers
determination, as depicted in Table 1 for Anadarko's 34-day survey.
This product is used by NMFS in making the necessary small numbers
determination, through comparison with the best available abundance
estimates (see discussion at 86 FR 5322, 5391; January 19, 2021). For
this comparison, NMFS' approach is to use the maximum theoretical
population, determined through review of current stock abundance
reports (SAR; www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and model-predicted abundance
information (https://seamap.env.duke.edu/models/Duke/GOM/). For the
latter, for taxa where a density surface model could be produced, we
use the maximum mean seasonal (i.e., three-month) abundance prediction
for purposes of comparison as a precautionary smoothing of month-to-
month fluctuations and in consideration of a corresponding lack of data
in the literature regarding seasonal distribution of marine mammals in
the GOM. Information supporting the small numbers determinations is
provided in Table 1.

Table 1--Take Analysis
----------------------------------------------------------------------------------------------------------------
Authorized Scaled take
Species take \1\ Abundance \2\ % abundance
----------------------------------------------------------------------------------------------------------------
Rice's whale \3\................................ 0 n/a 51 0.0
Sperm whale..................................... 1,477 624.7 2,207 28.3
Kogia spp....................................... \4\ 525 164.2 4,373 4.1
Beaked whales................................... 6,779 684.7 3,768 18.2
Rough-toothed dolphin........................... 980 281.15 4,853 5.8
Bottlenose dolphin.............................. 5,224 1,499.3 176,108 0.9
Clymene dolphin................................. 3,104 890.82 11,895 7.5
Atlantic spotted dolphin........................ 2,026 581.5 74,785 0.8
Pantropical spotted dolphin..................... 14,085 4,042.5 102,361 3.9
Spinner dolphin................................. 3,774 1,083.2 25,114 4.3

[[Page 68646]]

Striped dolphin................................. 1,212 347.9 5,229 6.7
Fraser's dolphin................................ 338 97.0 1,665 5.8
Risso's dolphin................................. 934 275.5 3,764 7.3
Melon-headed whale.............................. 1,978 583.6 7,003 8.3
Pygmy killer whale.............................. 426 125.7 2,126 5.9
False killer whale.............................. 678 200.0 3,204 6.2
Killer whale.................................... 7 n/a 267 2.6
Short-finned pilot whale........................ 572 168.8 1,981 8.5
----------------------------------------------------------------------------------------------------------------
\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 13 takes by Level A harassment and 512 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 Anadarko'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 Anadarko authorizing the take of marine
mammals incidental to its geophysical survey activity, as described
above.

Dated: November 30, 2021.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2021-26311 Filed 12-2-21; 8:45 am]
BILLING CODE 3510-22-P

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