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]

Download as PDF 4866 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. khammond on DSKJM1Z7X2PROD with NOTICES 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 VerDate Sep<11>2014 17:38 Jan 28, 2022 Jkt 256001 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: PO 00000 Frm 00035 Fmt 4703 Sfmt 4703 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). E:\FR\FM\31JAN1.SGM 31JAN1 Federal Register / Vol. 87, No. 20 / Monday, January 31, 2022 / Notices khammond on DSKJM1Z7X2PROD with NOTICES 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 VerDate Sep<11>2014 17:38 Jan 28, 2022 Jkt 256001 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). PO 00000 Frm 00036 Fmt 4703 Sfmt 4703 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). E:\FR\FM\31JAN1.SGM 31JAN1 khammond on DSKJM1Z7X2PROD with NOTICES 4868 Federal Register / Vol. 87, No. 20 / Monday, January 31, 2022 / Notices 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 VerDate Sep<11>2014 17:38 Jan 28, 2022 Jkt 256001 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. PO 00000 Frm 00037 Fmt 4703 Sfmt 4703 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 E:\FR\FM\31JAN1.SGM 31JAN1 4869 Federal Register / Vol. 87, No. 20 / Monday, January 31, 2022 / Notices 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 khammond on DSKJM1Z7X2PROD with NOTICES 1 Scalar ratios were applied to ‘‘Authorized Take’’ values as described at 86 FR 5322, 5404 (January 19, 2021) to derive scaled take numbers shown here. 2 Best abundance estimate. For most taxa, the best abundance estimate for purposes of comparison with take estimates is considered here to be the model-predicted abundance (Roberts et al., 2016). For those taxa where a density surface model predicting abundance by month was produced, the maximum mean seasonal abundance was used. For those taxa where abundance is not predicted by month, only mean annual abundance is available. For the killer whale, the larger estimated SAR abundance estimate is used. 3 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. VerDate Sep<11>2014 17:38 Jan 28, 2022 Jkt 256001 [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 Frm 00038 Fmt 4703 Sfmt 4703 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).
---------------------------------------------------------------------------

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

    \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 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
----------------------------------------------------------------------------------------------------------------
                                                    Authorized      Scaled take                       Percent
                     Species                           take             \1\        Abundance \2\     abundance
----------------------------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------
\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