Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico, 4866-4869 [2022-01918]
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Federal Register / Vol. 87, No. 20 / Monday, January 31, 2022 / Notices
authorizes, funds, or carries out is not
likely to jeopardize the continued
existence of any endangered or
threatened species or result in the
destruction or adverse modification of
designated critical habitat. To ensure
ESA compliance for the issuance of
IHAs, NMFS consults internally
whenever we propose to authorize take
for endangered or threatened species
No incidental take of ESA-listed
species is proposed for authorization or
expected to result from this activity.
Therefore, NMFS has determined that
formal consultation under section 7 of
the ESA is not required for this action.
Proposed Authorization
As a result of these preliminary
determinations, NMFS proposes to issue
two consecutive IHA’s to BNSF for
conducting maintenance of Bridge 6.3 in
Kings County, WA from July 16, 2022 to
July, 15, 2023 (Year 1) and July 16, 2023
to July 15, 2024 (Year 2), provided the
previously mentioned mitigation,
monitoring, and reporting requirements
are incorporated. Drafts of the proposed
IHAs can be found at https://
www.fisheries.noaa.gov/permit/
incidental-take-authorizations-undermarine-mammal-protection-act.
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Request for Public Comments
We request comment on our analyses,
the proposed authorization, and any
other aspect of this notification of
proposed IHAs for the proposed action.
We also request at this time comment on
the potential Renewal of the proposed
IHAs as described in the paragraph
below. Please include with your
comments any supporting data or
literature citations to help inform
decisions on the request for these IHAs
or a subsequent Renewal IHA.
On a case-by-case basis, NMFS may
issue a one-time, one-year Renewal IHA
following notice to the public providing
an additional 15 days for public
comments when (1) up to another year
of identical or nearly identical activities
as described in the Description of
Proposed Activities section of this
notification is planned or (2) the
activities as described in the Description
of Proposed Activities section of this
notification would not be completed by
the time the IHA expires and a Renewal
would allow for completion of the
activities beyond that described in the
Dates and Duration section of this
notification, provided all of the
following conditions are met:
• A request for renewal is received no
later than 60 days prior to the needed
Renewal IHA effective date (recognizing
that the Renewal IHA expiration date
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cannot extend beyond one year from
expiration of the initial IHA);
• The request for renewal must
include the following:
(1) An explanation that the activities
to be conducted under the requested
Renewal IHA are identical to the
activities analyzed under the initial
IHA, are a subset of the activities, or
include changes so minor (e.g.,
reduction in pile size) that the changes
do not affect the previous analyses,
mitigation and monitoring
requirements, or take estimates (with
the exception of reducing the type or
amount of take); and
(2) A preliminary monitoring report
showing the results of the required
monitoring to date and an explanation
showing that the monitoring results do
not indicate impacts of a scale or nature
not previously analyzed or authorized.
Upon review of the request for
Renewal, the status of the affected
species or stocks, and any other
pertinent information, NMFS
determines that there are no more than
minor changes in the activities, the
mitigation and monitoring measures
will remain the same and appropriate,
and the findings in the initial IHA
remain valid.
Dated: January 25, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. 2022–01833 Filed 1–28–22; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[RTID 0648–XB742]
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
SUMMARY:
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to TotalEnergies E&P USA, Inc.
(TotalEnergies) for the take of marine
mammals incidental to geophysical
survey activity in the Gulf of Mexico.
DATES: The LOA is effective from April
20, 2022, through April 19, 2023.
ADDRESSES: The LOA, LOA request, and
supporting documentation are available
online at: www.fisheries.noaa.gov/
action/incidental-take-authorization-oiland-gas-industry-geophysical-surveyactivity-gulf-mexico. In case of problems
accessing these documents, please call
the contact listed below (see FOR
FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Ben
Laws, Office of Protected Resources,
NMFS, (301) 427–8401.
SUPPLEMENTARY INFORMATION:
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).
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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
TotalEnergies plans to conduct a 3D
ocean bottom node (OBN) survey within
the North Platte field. The survey area
is located in Garden Banks, Green
Canyon, Keathley Canyon, and Walker
Ridge lease areas with approximate
water depths ranging from 725 to 2,180
meters (m). See Figure 1 of the LOA
application for a map of the area.
TotalEnergies anticipates using two
source vessels, each towing up to three
airgun arrays operating in an alternating
manner. Each source array will consist
of up to 28 elements, with a total
volume of 5,200 cubic inches (in3).
Please see TotalEnergies’ application for
additional detail.
Consistent with the preamble to the
final rule, the survey effort proposed by
TotalEnergies 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
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appropriate take number for
authorization, the following information
was considered: (1) Survey type; (2)
location (by modeling zone 1); (3)
number of days; and (4) season.2 The
acoustic exposure modeling performed
in support of the rule provides 24-hour
exposure estimates for each species,
specific to each modeled survey type in
each zone and season.
No 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 in this case, because the
spatial coverage of the planned survey
is most similar to the coil survey
pattern. The planned 3D OBN surveys
will each involve source vessels sailing
along closely spaced survey lines
approximately 50 km in length,
completing 2–3 lines per day. The path
taken by the vessels to cover these lines
will mean that consecutive survey lines
sailed will be 1,200 m apart. 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
TotalEnergies is not proposing
specifically to perform a survey using
the coil geometry, its planned 3D OBN
survey is expected to cover
approximately 74 km2 per day, meaning
that the coil proxy is most
representative of the effort planned by
TotalEnergies 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. Thus,
estimated take numbers for this LOA are
considered conservative due to
differences in both the airgun array (28
elements, 5,200 in3) and the daily
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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4867
survey area planned by TotalEnergies
(74 km2), as compared to those modeled
for the rule.
The survey will take place over 100
days, including 65 days of sound source
operation. The survey will occur within
Zone 5. TotalEnergies expects that the
survey would occur entirely within the
Summer season. However, it is possible
that the survey could occur within
Winter and, therefore, the take estimates
for each species are based on the season
that produces the greater value for the
species (i.e., winter or summer).
Additionally, 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
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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habitat (Roberts et al., 2016), although a
‘‘core habitat area’’ defined in the
northeastern GOM (outside the scope of
the rule) contained approximately 92
percent of the predicted abundance of
Rice’s whales. See discussion provided
at, e.g., 83 FR 29212, 29228, 29280 (June
22, 2018); 86 FR 5322, 5418 (January 19,
2021).
Although it is possible that Rice’s
whales may occur outside of their core
habitat, NMFS expects that any such
occurrence would be limited to the
narrow band of suitable habitat
described above (i.e., 100–400 m).
TotalEnergies’ planned activities will
occur in water depths of approximately
725–2,180 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 can
result 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
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20 occasions during the 1992–2009
NOAA surveys (Fraser’s dolphin and
false killer whale 4). However,
observational data collected by
protected species observers (PSOs) on
industry geophysical survey vessels
from 2002–2015 distinguish the killer
whale in terms of rarity. During this
period, killer whales were encountered
on only 10 occasions, whereas the next
most rarely encountered species
(Fraser’s dolphin) was recorded on 69
occasions (Barkaszi and Kelly, 2019).
The false killer whale and pygmy killer
whale were the next most rarely
encountered species, with 110 records
each. The killer whale was the species
with the lowest detection frequency
during each period over which PSO data
were synthesized (2002–2008 and 2009–
2015). This information qualitatively
informed our rulemaking process, as
discussed at 86 FR 5322, 5334 (January
19, 2021), and similarly informs our
analysis here.
The rarity of encounter during seismic
surveys is not likely to be the product
of high bias on the probability of
detection. Unlike certain cryptic species
with high detection bias, such as Kogia
spp. or beaked whales, or deep-diving
species with high availability bias, such
as beaked whales or sperm whales,
killer whales are typically available for
detection when present and are easily
observed. Roberts et al. (2015) stated
that availability is not a major factor
affecting detectability of killer whales
from shipboard surveys, as they are not
a particularly long-diving species. Baird
et al. (2005) reported that mean dive
durations for 41 fish-eating killer whales
for dives greater than or equal to 1
minute in duration was 2.3–2.4 minutes,
and Hooker et al. (2012) reported that
killer whales spent 78 percent of their
time at depths between 0–10 m.
Similarly, Kvadsheim et al. (2012)
reported data from a study of four killer
whales, noting that the whales
performed 20 times as many dives to 1–
30 m depth than to deeper waters, with
an average depth during those most
common dives of approximately 3 m.
In summary, killer whales are the
most rarely encountered species in the
GOM and typically occur only in
particularly deep water. While this
information is reflected through the
density model informing the acoustic
exposure modeling results, there is
relatively high uncertainty associated
with the model for this species, and the
acoustic exposure modeling applies
mean distribution data over areas where
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 species is in fact less likely to occur.
NMFS’ determination in reflection of
the data discussed above, which
informed the final rule, is that use of the
generic acoustic exposure modeling
results for killer whales would result in
high estimated take numbers that are
inconsistent with the assumptions made
in the rule regarding expected killer
whale take (86 FR 5322, 5403; January
19, 2021).
In past authorizations, NMFS has
often addressed situations involving the
low likelihood of encountering a rare
species such as killer whales in the
GOM through authorization of take of a
single group of average size (i.e.,
representing a single potential
encounter). See 83 FR 63268, December
7, 2018. See also 86 FR 29090, May 28,
2021; 85 FR 55645, September 9, 2020.
For the reasons expressed above, NMFS
determined that a single encounter of
killer whales is more likely than the
model-generated estimates and has
authorized take associated with a single
killer whale group encounter (i.e., up to
7 animals).
Based on the results of our analysis,
NMFS has determined that the level of
taking authorized through the LOA is
consistent with the findings made for
the total taking allowable under the
regulations. See Table 1 in this notice
and Table 9 of the rule (86 FR 5322;
January 19, 2021).
Small Numbers Determination
Under the GOM rule, NMFS may not
authorize incidental take of marine
mammals in an LOA if it will exceed
‘‘small numbers.’’ In short, when an
acceptable estimate of the individual
marine mammals taken is available, if
the estimated number of individual
animals taken is up to, but not greater
than, one-third of the best available
abundance estimate, NMFS will
determine that the numbers of marine
mammals taken of a species or stock are
small. For more information please see
NMFS’ discussion of the MMPA’s small
numbers requirement provided in the
final rule (86 FR 5322, 5438; January 19,
2021).
The take numbers for authorization
are determined as described above 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
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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.
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 determination is provided in
Table 1.
TABLE 1—TAKE ANALYSIS
Authorized
take
Species
Rice’s whale .....................................................................................................
Sperm whale ....................................................................................................
Kogia spp .........................................................................................................
Beaked whales ................................................................................................
Rough-toothed dolphin ....................................................................................
Bottlenose dolphin ...........................................................................................
Clymene dolphin ..............................................................................................
Atlantic spotted dolphin ...................................................................................
Pantropical spotted dolphin .............................................................................
Spinner dolphin ................................................................................................
Striped dolphin .................................................................................................
Fraser’s dolphin ...............................................................................................
Risso’s dolphin .................................................................................................
Melon-headed whale .......................................................................................
Pygmy killer whale ...........................................................................................
False killer whale .............................................................................................
Killer whale ......................................................................................................
Short-finned pilot whale ...................................................................................
0
1,710
3 646
7,546
1,297
6,148
3,651
2,456
16,568
4,439
1,426
410
1,073
2,399
565
898
7
694
Scaled take 1
n/a
723.2
230.5
762.1
372.4
1,764.4
1,047.8
704.8
4,755.0
1,274.1
409.3
117.7
316.4
707.6
166.5
264.9
n/a
204.7
Abundance 2
51
2,207
4,373
3,768
4,853
176,108
11,895
74,785
102,361
25,114
5,229
1,665
3,764
7,003
2,126
3,204
267
1,981
Percent
abundance
n/a
32.8
5.3
20.2
7.7
1.0
8.8
0.9
4.6
5.1
7.8
7.1
8.4
10.1
7.8
8.3
2.6
10.3
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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 34 takes by Level A harassment and 612 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 TotalEnergies’ 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.
Dated: January 26, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources,
National Marine Fisheries Service.
Authorization
National Oceanic and Atmospheric
Administration
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
TotalEnergies authorizing the take of
marine mammals incidental to its
geophysical survey activity, as
described above.
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[FR Doc. 2022–01918 Filed 1–28–22; 8:45 am]
BILLING CODE 3510–22–P
process for the 2022 ocean salmon
fisheries off the U.S. West Coast. This
notice informs the public of
opportunities to provide comments on
the development of 2022 ocean salmon
management measures.
Written comments on the salmon
management alternatives adopted by the
Council at its March 2022 meeting, as
described in its Preseason Report II,
received electronically or in hard copy
by 5 p.m. Pacific Time, April 5, 2022,
will be considered in the Council’s final
recommendation for the 2022
management measures.
DATES:
DEPARTMENT OF COMMERCE
[RTID 0648–XB668]
Pacific Fishery Management Council;
Public Meetings and Hearings
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of opportunities to
submit public comments.
AGENCY:
The Pacific Fishery
Management Council (Council) has
begun its annual preseason management
SUMMARY:
PO 00000
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Documents will be available
from the Pacific Fishery Management
Council, 7700 NE Ambassador Place,
Suite 101, Portland, OR 97220–1384,
and will be posted on the Council’s
website at https://www.pcouncil.org. You
may submit comments by any one of the
following methods:
• Written comments should be sent
electronically to Mr. Marc Gorelnik,
Chair, Pacific Fishery Management
ADDRESSES:
E:\FR\FM\31JAN1.SGM
31JAN1
]]>Agencies
[Federal Register Volume 87, Number 20 (Monday, January 31, 2022)]
[Notices]
[Pages 4866-4869]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01918]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XB742]
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 TotalEnergies
E&P USA, Inc. (TotalEnergies) for the take of marine mammals incidental
to geophysical survey activity in the Gulf of Mexico.
DATES: The LOA is effective from April 20, 2022, through April 19,
2023.
ADDRESSES: The LOA, LOA request, and supporting documentation are
available online at: www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico. In case of problems accessing these documents, please call the
contact listed below (see FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Ben Laws, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce to allow, upon request, the
incidental, but not intentional, taking of small numbers of marine
mammals by U.S. citizens who engage in a specified activity (other than
commercial fishing) within a specified geographical region if certain
findings are made and either regulations are issued or, if the taking
is limited to harassment, a notice of a proposed authorization is
provided to the public for review.
An authorization for incidental takings shall be granted if NMFS
finds that the taking will have a negligible impact on the species or
stock(s), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (where
relevant), and if the permissible methods of taking and requirements
pertaining to the mitigation, monitoring and reporting of such takings
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103
as an impact resulting from the specified activity that cannot be
reasonably expected to, and is not reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as: Any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild (Level A harassment); or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).
[[Page 4867]]
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
TotalEnergies plans to conduct a 3D ocean bottom node (OBN) survey
within the North Platte field. The survey area is located in Garden
Banks, Green Canyon, Keathley Canyon, and Walker Ridge lease areas with
approximate water depths ranging from 725 to 2,180 meters (m). See
Figure 1 of the LOA application for a map of the area.
TotalEnergies anticipates using two source vessels, each towing up
to three airgun arrays operating in an alternating manner. Each source
array will consist of up to 28 elements, with a total volume of 5,200
cubic inches (in\3\). Please see TotalEnergies' application for
additional detail.
Consistent with the preamble to the final rule, the survey effort
proposed by TotalEnergies in its LOA request was used to develop LOA-
specific take estimates based on the acoustic exposure modeling results
described in the preamble (86 FR 5322, 5398; January 19, 2021). In
order to generate the appropriate take number for authorization, the
following information was considered: (1) Survey type; (2) location (by
modeling zone \1\); (3) number of days; and (4) season.\2\ The acoustic
exposure modeling performed in support of the rule provides 24-hour
exposure estimates for each species, specific to each modeled survey
type in each zone and season.
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\1\ For purposes of acoustic exposure modeling, the GOM was
divided into seven zones. Zone 1 is not included in the geographic
scope of the rule.
\2\ For purposes of acoustic exposure modeling, seasons include
Winter (December-March) and Summer (April-November).
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No 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 in this case,
because the spatial coverage of the planned survey is most similar to
the coil survey pattern. The planned 3D OBN surveys will each involve
source vessels sailing along closely spaced survey lines approximately
50 km in length, completing 2-3 lines per day. The path taken by the
vessels to cover these lines will mean that consecutive survey lines
sailed will be 1,200 m apart. 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 TotalEnergies is not proposing specifically to
perform a survey using the coil geometry, its planned 3D OBN survey is
expected to cover approximately 74 km\2\ per day, meaning that the coil
proxy is most representative of the effort planned by TotalEnergies 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. Thus, estimated take
numbers for 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 TotalEnergies (74 km\2\), as compared to those modeled
for the rule.
The survey will take place over 100 days, including 65 days of
sound source operation. The survey will occur within Zone 5.
TotalEnergies expects that the survey would occur entirely within the
Summer season. However, it is possible that the survey could occur
within Winter and, therefore, the take estimates for each species are
based on the season that produces the greater value for the species
(i.e., winter or summer).
Additionally, 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
[[Page 4868]]
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). TotalEnergies' planned activities will occur in water
depths of approximately 725-2,180 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 can result 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 industry geophysical survey vessels from
2002-2015 distinguish the killer whale in terms of rarity. During this
period, killer whales were encountered on only 10 occasions, whereas
the next most rarely encountered species (Fraser's dolphin) was
recorded on 69 occasions (Barkaszi and Kelly, 2019). The false killer
whale and pygmy killer whale were the next most rarely encountered
species, with 110 records each. The killer whale was the species with
the lowest detection frequency during each period over which PSO data
were synthesized (2002-2008 and 2009-2015). This information
qualitatively informed our rulemaking process, as discussed at 86 FR
5322, 5334 (January 19, 2021), and similarly informs our analysis here.
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\4\ However, note that these species have been observed over a
greater range of water depths in the GOM than have killer whales.
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The rarity of encounter during seismic surveys is not likely to be
the product of high bias on the probability of detection. Unlike
certain cryptic species with high detection bias, such as Kogia spp. or
beaked whales, or deep-diving species with high availability bias, such
as beaked whales or sperm whales, killer whales are typically available
for detection when present and are easily observed. Roberts et al.
(2015) stated that availability is not a major factor affecting
detectability of killer whales from shipboard surveys, as they are not
a particularly long-diving species. Baird et al. (2005) reported that
mean dive durations for 41 fish-eating killer whales for dives greater
than or equal to 1 minute in duration was 2.3-2.4 minutes, and Hooker
et al. (2012) reported that killer whales spent 78 percent of their
time at depths between 0-10 m. Similarly, Kvadsheim et al. (2012)
reported data from a study of four killer whales, noting that the
whales performed 20 times as many dives to 1-30 m depth than to deeper
waters, with an average depth during those most common dives of
approximately 3 m.
In summary, killer whales are the most rarely encountered species
in the GOM and typically occur only in particularly deep water. While
this information is reflected through the density model informing the
acoustic exposure modeling results, there is relatively high
uncertainty associated with the model for this species, and the
acoustic exposure modeling applies mean distribution data over areas
where the species is in fact less likely to occur. NMFS' determination
in reflection of the data discussed above, which informed the final
rule, is that use of the generic acoustic exposure modeling results for
killer whales would result in high estimated take numbers that are
inconsistent with the assumptions made in the rule regarding expected
killer whale take (86 FR 5322, 5403; January 19, 2021).
In past authorizations, NMFS has often addressed situations
involving the low likelihood of encountering a rare species such as
killer whales in the GOM through authorization of take of a single
group of average size (i.e., representing a single potential
encounter). See 83 FR 63268, December 7, 2018. See also 86 FR 29090,
May 28, 2021; 85 FR 55645, September 9, 2020. For the reasons expressed
above, NMFS determined that a single encounter of killer whales is more
likely than the model-generated estimates and has authorized take
associated with a single killer whale group encounter (i.e., up to 7
animals).
Based on the results of our analysis, NMFS has determined that the
level of taking authorized through the LOA is consistent with the
findings made for the total taking allowable under the regulations. See
Table 1 in this notice and Table 9 of the rule (86 FR 5322; January 19,
2021).
Small Numbers Determination
Under the GOM rule, NMFS may not authorize incidental take of
marine mammals in an LOA if it will exceed ``small numbers.'' In short,
when an acceptable estimate of the individual marine mammals taken is
available, if the estimated number of individual animals taken is up
to, but not greater than, one-third of the best available abundance
estimate, NMFS will determine that the numbers of marine mammals taken
of a species or stock are small. For more information please see NMFS'
discussion of the MMPA's small numbers requirement provided in the
final rule (86 FR 5322, 5438; January 19, 2021).
The take numbers for authorization are determined as described
above 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
[[Page 4869]]
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.
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 determination 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 n/a 51 n/a
Sperm whale..................................... 1,710 723.2 2,207 32.8
Kogia spp....................................... \3\ 646 230.5 4,373 5.3
Beaked whales................................... 7,546 762.1 3,768 20.2
Rough-toothed dolphin........................... 1,297 372.4 4,853 7.7
Bottlenose dolphin.............................. 6,148 1,764.4 176,108 1.0
Clymene dolphin................................. 3,651 1,047.8 11,895 8.8
Atlantic spotted dolphin........................ 2,456 704.8 74,785 0.9
Pantropical spotted dolphin..................... 16,568 4,755.0 102,361 4.6
Spinner dolphin................................. 4,439 1,274.1 25,114 5.1
Striped dolphin................................. 1,426 409.3 5,229 7.8
Fraser's dolphin................................ 410 117.7 1,665 7.1
Risso's dolphin................................. 1,073 316.4 3,764 8.4
Melon-headed whale.............................. 2,399 707.6 7,003 10.1
Pygmy killer whale.............................. 565 166.5 2,126 7.8
False killer whale.............................. 898 264.9 3,204 8.3
Killer whale.................................... 7 n/a 267 2.6
Short-finned pilot whale........................ 694 204.7 1,981 10.3
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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 34 takes by Level A harassment and 612 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 TotalEnergies' 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 TotalEnergies authorizing the take of marine
mammals incidental to its geophysical survey activity, as described
above.
Dated: January 26, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2022-01918 Filed 1-28-22; 8:45 am]
BILLING CODE 3510-22-P
