Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico, 55787-55790 [2022-19611]
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Federal Register / Vol. 87, No. 175 / Monday, September 12, 2022 / Notices
housekeeping, stock assessment
prioritization, and essential fish habitat
review. Other items on the Pacific
Council’s November agenda or future
Council agendas may be discussed as
well. The CPSMT will also be
discussing changes to the CPS stock
assessment and fishery evaluation
(SAFE) document. The meeting agenda
will be available on the Pacific
Council’s website in advance of the
meeting.
Although non-emergency issues not
contained in the meeting agenda may be
discussed, those issues may not be the
subject of formal action during this
meeting. Action will be restricted to
those issues specifically listed in this
document and any issues arising after
publication of this document that
require emergency action under section
305(c) of the Magnuson-Stevens Fishery
Conservation and Management Act,
provided the public has been notified of
the intent to take final action to address
the emergency.
Special Accommodations
Requests for sign language
interpretation or other auxiliary aids
should be directed to Mr. Kris
Kleinschmidt (kris.kleinschmidt@
noaa.gov; (503) 820–2412) at least 10
days prior to the meeting date.
Authority: 16 U.S.C. 1801 et seq.
Dated: September 7, 2022.
Rey Israel Marquez,
Acting Deputy Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. 2022–19651 Filed 9–9–22; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[RTID 0648–XC323]
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.
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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
SUMMARY:
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Activities in the Gulf of Mexico,
notification is hereby given that a Letter
of Authorization (LOA) has been issued
to WesternGeco for the take of marine
mammals incidental to geophysical
survey activity in the Gulf of Mexico.
DATES: The LOA is effective from
August 31, 2022, through April 18,
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,
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55787
feeding, or sheltering (Level B
harassment).
On January 19, 2021, we issued a final
rule with regulations to govern the
unintentional taking of marine
mammals incidental to geophysical
survey activities conducted by oil and
gas industry operators, and those
persons authorized to conduct activities
on their behalf (collectively ‘‘industry
operators’’), in Federal waters of the
U.S. Gulf of Mexico (GOM) over the
course of 5 years (86 FR 5322, January
19, 2021). The rule was based on our
findings that the total taking from the
specified activities over the 5-year
period will have a negligible impact on
the affected species or stock(s) of marine
mammals and will not have an
unmitigable adverse impact on the
availability of those species or stocks for
subsistence uses. The rule became
effective on April 19, 2021.
Our regulations at 50 CFR 217.180 et
seq. allow for the issuance of LOAs to
industry operators for the incidental
take of marine mammals during
geophysical survey activities and
prescribe the permissible methods of
taking and other means of effecting the
least practicable adverse impact on
marine mammal species or stocks and
their habitat (often referred to as
mitigation), as well as requirements
pertaining to the monitoring and
reporting of such taking. Under 50 CFR
217.186(e), issuance of an LOA shall be
based on a determination that the level
of taking will be consistent with the
findings made for the total taking
allowable under these regulations and a
determination that the amount of take
authorized under the LOA is of no more
than small numbers.
Summary of Request and Analysis
WesternGeco plans to conduct a 3D
ocean bottom node (OBN) survey in the
Green Canyon and Walker Ridge
protraction areas, including
approximately 322 lease blocks.
Approximate water depths of the survey
area range from 1,000 to 2,500 meters
(m). See Section F of the LOA
application for a map of the area.
WesternGeco anticipates using two
triple source vessels, towing airgun
array sources consisting of 22 elements,
with a total volume of 5,370 cubic
inches (in3). Please see WesternGeco’s
application for additional detail.
Consistent with the preamble to the
final rule, the survey effort proposed by
WesternGeco in its LOA request was
used to develop LOA-specific take
estimates based on the acoustic
exposure modeling results described in
the preamble (86 FR 5398, January 19,
2021). In order to generate the
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Federal Register / Vol. 87, No. 175 / Monday, September 12, 2022 / Notices
appropriate take numbers 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
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 survey will involve two source
vessels sailing along survey lines
approximately 30 km in length. The coil
survey pattern was assumed to cover
approximately 144 kilometers squared
(km2) per day (compared with
approximately 795 km2, 199 km2, and
845 km2 per day for the 2D, 3D NAZ,
and 3D WAZ survey patterns,
respectively). Among the different
parameters of the modeled survey
patterns (e.g., area covered, line spacing,
number of sources, shot interval, total
simulated pulses), NMFS considers area
covered per day to be most influential
on daily modeled exposures exceeding
Level B harassment criteria. Although
WesternGeco is not proposing to
perform a survey using the coil
geometry, its planned 3D OBN survey is
expected to cover approximately 115
km2 per day, meaning that the coil
proxy is most representative of the effort
planned by WesternGeco in terms of
predicted Level B harassment
exposures.
In addition, all available acoustic
exposure modeling results assume use
of a 72-element, 8,000 in3 array. Thus,
estimated take numbers for this LOA are
considered conservative due to
differences between the airgun array
planned for use (22 elements, 5,370 in3)
and the proxy array modeled for the
rule.
The survey will take place over
approximately 85 days, including 69
days of sound source operation. The
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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survey plan includes 54 days within
Zone 5 and 15 days within Zone 7. The
seasonal distribution of survey days is
not known in advance. Therefore, the
take estimates for each species are based
on the season that produces the greater
value.
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. The approach used in the
acoustic exposure modeling, in which
seven modeling zones were defined over
the U.S. GOM, necessarily averages finescale information about marine mammal
distribution over the large area of each
modeling zone. This can result in
unrealistic projections regarding the
likelihood of encountering particularly
rare species and/or species not expected
to occur outside particular habitats.
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 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 that are 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 mostly found
in a ‘‘core habitat area’’ located in the
northeastern GOM in waters between
100–400 m depth along the continental
shelf break (Rosel et al., 2016). (Note
that this core habitat area is outside the
scope of the rule.) However, 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). In
addition, habitat-based density
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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modeling identified similar habitat (i.e.,
approximately 100–400 m water depths
along the continental shelf break) as
being potential Rice’s whale habitat
(Roberts et al., 2016), although the core
habitat area contained approximately 92
percent of the predicted abundance of
Rice’s whales. See discussion provided
at, e.g., 83 FR 29228, 83 FR 29280 (June
22, 2018); 86 FR 5418 (January 19,
2021).
Although Rice’s whales may occur
outside of the core habitat area, we
expect that any such occurrence would
be limited to the narrow band of
suitable habitat described above (i.e.,
100–400 m) and that, based on the few
available records, these occurrences
would be rare. WesternGeco’s planned
activities will occur in water depths of
approximately 1,000–2,500 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). 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 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,
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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Federal Register / Vol. 87, No. 175 / Monday, September 12, 2022 / Notices
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 5334 (January 19,
2021), and similarly informs our
analysis here.
The rarity of encounter during seismic
surveys is not likely to be the product
of high bias on the probability of
detection. Unlike certain cryptic species
with high detection bias, such as Kogia
spp. or beaked whales, or deep-diving
species with high availability bias, such
as beaked whales or sperm whales,
killer whales are typically available for
detection when present and are easily
observed. Roberts et al. (2015) stated
that availability is not a major factor
affecting detectability of killer whales
from shipboard surveys, as they are not
a particularly long-diving species. Baird
et al. (2005) reported that mean dive
durations for 41 fish-eating killer whales
for dives greater than or equal to 1
minute in duration was 2.3–2.4 minutes,
and Hooker et al. (2012) reported that
killer whales spent 78 percent of their
time at depths between 0–10 m.
Similarly, Kvadsheim et al. (2012)
reported data from a study of four killer
whales, noting that the whales
performed 20 times as many dives to 1–
30 m depth than to deeper waters, with
an average depth during those most
common dives of approximately 3 m.
In summary, killer whales are the
most rarely encountered species in the
GOM and typically occur only in
particularly deep water. While this
information is reflected through the
density model informing the acoustic
exposure modeling results, there is
relatively high uncertainty associated
with the model for this species, and the
acoustic exposure modeling applies
mean distribution data over areas where
the species is in fact less likely to occur.
In addition, as noted above in relation
to the general take estimation
methodology, the assumed proxy source
(72-element, 8,000-in3 array) results in a
significant overestimate of the actual
potential for take to occur. NMFS’
determination in reflection of the
information discussed above, which
informed the final rule, is that use of the
generic acoustic exposure modeling
results for killer whales for this survey
would result in estimated take numbers
that are inconsistent with the
assumptions made in the rule regarding
expected killer whale take (86 FR 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 and 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 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 for the affected species or
stocks of marine mammals. 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
55789
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 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 5404, January 19,
2021). The output of this scaling, where
appropriate, is incorporated into
adjusted total take estimates that are the
basis for NMFS’ small numbers
determinations, as depicted in Table 1.
This product is used by NMFS in
making the necessary small numbers
determinations through comparison
with the best available abundance
estimates (see discussion at 86 FR 5391,
January 19, 2021). For this comparison,
NMFS’ approach is to use the maximum
theoretical population, determined
through review of current stock
assessment reports (SAR;
www.fisheries.noaa.gov/national/
marine-mammal-protection/marinemammal-stock-assessments) and modelpredicted abundance information
(https://seamap.env.duke.edu/models/
Duke/GOM/). For the latter, for taxa
where a density surface model could be
produced, we use the maximum mean
seasonal (i.e., 3-month) abundance
prediction for purposes of comparison
as a precautionary smoothing of monthto-month fluctuations and in
consideration of a corresponding lack of
data in the literature regarding seasonal
distribution of marine mammals in the
GOM. Information supporting the small
numbers determinations is provided in
Table 1.
TABLE 1—TAKE ANALYSIS
Authorized
take
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Species
Rice’s whale .....................................................................................................
Sperm whale ....................................................................................................
Kogia spp .........................................................................................................
Beaked whales ................................................................................................
Rough-toothed dolphin ....................................................................................
Bottlenose dolphin ...........................................................................................
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0
1,500
3 582
6,970
1,208
5,111
Scaled take 1
n/a
634.4
176.4
704.0
346.8
1,466.8
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Abundance 2
51
2,207
4,373
3,768
4,853
176,108
Percent
abundance
n/a
28.7
4.8
18.7
7.1
0.8
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Federal Register / Vol. 87, No. 175 / Monday, September 12, 2022 / Notices
TABLE 1—TAKE ANALYSIS—Continued
Authorized
take
Species
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 ...................................................................................
3,377
2,040
17,180
3,768
1,363
397
947
2,215
577
868
7
594
Scaled take 1
969.3
585.5
4,930.7
1,081.5
391.3
113.9
279.3
653.3
170.2
256.1
n/a
175.2
Abundance 2
Percent
abundance
11,895
74,785
102,361
25,114
5,229
1,665
3,764
7,003
2,126
3,204
267
1,981
8.1
0.8
4.8
4.3
7.5
6.8
7.4
9.3
8.0
8.0
2.6
8.8
1 Scalar ratios were applied to ‘‘Authorized Take’’ values as described at 86 FR 5322, 5404 (January 19, 2021) to derive scaled take numbers
shown here.
2 Best abundance estimate. For most taxa, the best abundance estimate for purposes of comparison with take estimates is considered here to
be the model-predicted abundance (Roberts et al., 2016). For those taxa where a density surface model predicting abundance by month was
produced, the maximum mean seasonal abundance was used. For those taxa where abundance is not predicted by month, only mean annual
abundance is available. For the killer whale, the larger estimated SAR abundance estimate is used.
3 Includes 32 takes by Level A harassment and 550 takes by Level B harassment. Scalar ratio is applied to takes by Level B harassment only;
small numbers determination made on basis of scaled Level B harassment take plus authorized Level A harassment take.
Based on the analysis contained
herein of WesternGeco’s proposed
survey activity described in its LOA
application and the anticipated take of
marine mammals, NMFS finds that
small numbers of marine mammals will
be taken relative to the affected species
or stock sizes and therefore is of no
more than small numbers.
Authorization
NMFS has determined that the level
of taking for this LOA request is
consistent with the findings made for
the total taking allowable under the
incidental take regulations and that the
amount of take authorized under the
LOA is of no more than small numbers.
Accordingly, we have issued an LOA to
WesternGeco authorizing the take of
marine mammals incidental to its
geophysical survey activity, as
described above.
Dated: September 7, 2022.
Catherine G. Marzin,
Deputy Director, Office of Protected
Resources, National Marine Fisheries Service.
[FR Doc. 2022–19611 Filed 9–9–22; 8:45 am]
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BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
the contact listed below (see FOR
FURTHER INFORMATION CONTACT).
National Oceanic and Atmospheric
Administration
FOR FURTHER INFORMATION CONTACT:
[RTID 0648–XC318]
Taking and Importing Marine
Mammals; Taking Marine Mammals
Incidental to Geophysical Surveys
Related to Oil and Gas Activities in the
Gulf of Mexico
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of issuance of Letter of
Authorization.
AGENCY:
In accordance with the
Marine Mammal Protection Act
(MMPA), as amended, its implementing
regulations, and NMFS’ MMPA
Regulations for Taking Marine
Mammals Incidental to Geophysical
Surveys Related to Oil and Gas
Activities in the Gulf of Mexico,
notification is hereby given that a Letter
of Authorization (LOA) has been issued
to Shell Offshore Inc. (Shell) for the take
of marine mammals incidental to
geophysical survey activity in the Gulf
of Mexico.
DATES: The LOA is effective from
October 1, 2022, through August 31,
2023.
SUMMARY:
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
ADDRESSES:
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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)
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]]>Agencies
[Federal Register Volume 87, Number 175 (Monday, September 12, 2022)]
[Notices]
[Pages 55787-55790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-19611]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XC323]
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to Geophysical Surveys Related to Oil and Gas Activities in
the Gulf of Mexico
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of issuance of Letter of Authorization.
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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA), as
amended, its implementing regulations, and NMFS' MMPA Regulations for
Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil
and Gas Activities in the Gulf of Mexico, notification is hereby given
that a Letter of Authorization (LOA) has been issued to WesternGeco for
the take of marine mammals incidental to geophysical survey activity in
the Gulf of Mexico.
DATES: The LOA is effective from August 31, 2022, through April 18,
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).
On January 19, 2021, we issued a final rule with regulations to
govern the unintentional taking of marine mammals incidental to
geophysical survey activities conducted by oil and gas industry
operators, and those persons authorized to conduct activities on their
behalf (collectively ``industry operators''), in Federal waters of the
U.S. Gulf of Mexico (GOM) over the course of 5 years (86 FR 5322,
January 19, 2021). The rule was based on our findings that the total
taking from the specified activities over the 5-year period will have a
negligible impact on the affected species or stock(s) of marine mammals
and will not have an unmitigable adverse impact on the availability of
those species or stocks for subsistence uses. The rule became effective
on April 19, 2021.
Our regulations at 50 CFR 217.180 et seq. allow for the issuance of
LOAs to industry operators for the incidental take of marine mammals
during geophysical survey activities and prescribe the permissible
methods of taking and other means of effecting the least practicable
adverse impact on marine mammal species or stocks and their habitat
(often referred to as mitigation), as well as requirements pertaining
to the monitoring and reporting of such taking. Under 50 CFR
217.186(e), issuance of an LOA shall be based on a determination that
the level of taking will be consistent with the findings made for the
total taking allowable under these regulations and a determination that
the amount of take authorized under the LOA is of no more than small
numbers.
Summary of Request and Analysis
WesternGeco plans to conduct a 3D ocean bottom node (OBN) survey in
the Green Canyon and Walker Ridge protraction areas, including
approximately 322 lease blocks. Approximate water depths of the survey
area range from 1,000 to 2,500 meters (m). See Section F of the LOA
application for a map of the area.
WesternGeco anticipates using two triple source vessels, towing
airgun array sources consisting of 22 elements, with a total volume of
5,370 cubic inches (in\3\). Please see WesternGeco's application for
additional detail.
Consistent with the preamble to the final rule, the survey effort
proposed by WesternGeco in its LOA request was used to develop LOA-
specific take estimates based on the acoustic exposure modeling results
described in the preamble (86 FR 5398, January 19, 2021). In order to
generate the
[[Page 55788]]
appropriate take numbers 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 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 survey will involve two source
vessels sailing along survey lines approximately 30 km in length. The
coil survey pattern was assumed to cover approximately 144 kilometers
squared (km\2\) per day (compared with approximately 795 km\2\, 199
km\2\, and 845 km\2\ per day for the 2D, 3D NAZ, and 3D WAZ survey
patterns, respectively). Among the different parameters of the modeled
survey patterns (e.g., area covered, line spacing, number of sources,
shot interval, total simulated pulses), NMFS considers area covered per
day to be most influential on daily modeled exposures exceeding Level B
harassment criteria. Although WesternGeco is not proposing to perform a
survey using the coil geometry, its planned 3D OBN survey is expected
to cover approximately 115 km\2\ per day, meaning that the coil proxy
is most representative of the effort planned by WesternGeco in terms of
predicted Level B harassment exposures.
In addition, all available acoustic exposure modeling results
assume use of a 72-element, 8,000 in\3\ array. Thus, estimated take
numbers for this LOA are considered conservative due to differences
between the airgun array planned for use (22 elements, 5,370 in\3\) and
the proxy array modeled for the rule.
The survey will take place over approximately 85 days, including 69
days of sound source operation. The survey plan includes 54 days within
Zone 5 and 15 days within Zone 7. The seasonal distribution of survey
days is not known in advance. Therefore, the take estimates for each
species are based on the season that produces the greater value.
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.
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. This can result in unrealistic projections
regarding the likelihood of encountering particularly rare species and/
or species not expected to occur outside particular habitats. 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 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 that are 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 mostly
found in a ``core habitat area'' located in the northeastern GOM in
waters between 100-400 m depth along the continental shelf break (Rosel
et al., 2016). (Note that this core habitat area is outside the scope
of the rule.) However, 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). In addition, habitat-based density modeling identified similar
habitat (i.e., approximately 100-400 m water depths along the
continental shelf break) as being potential Rice's whale habitat
(Roberts et al., 2016), although the core habitat area contained
approximately 92 percent of the predicted abundance of Rice's whales.
See discussion provided at, e.g., 83 FR 29228, 83 FR 29280 (June 22,
2018); 86 FR 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 Rice's whales may occur outside of the core habitat area,
we expect that any such occurrence would be limited to the narrow band
of suitable habitat described above (i.e., 100-400 m) and that, based
on the few available records, these occurrences would be rare.
WesternGeco's planned activities will occur in water depths of
approximately 1,000-2,500 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). 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
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,
[[Page 55789]]
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 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. In addition, as
noted above in relation to the general take estimation methodology, the
assumed proxy source (72-element, 8,000-in\3\ array) results in a
significant overestimate of the actual potential for take to occur.
NMFS' determination in reflection of the information discussed above,
which informed the final rule, is that use of the generic acoustic
exposure modeling results for killer whales for this survey would
result in estimated take numbers that are inconsistent with the
assumptions made in the rule regarding expected killer whale take (86
FR 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 and 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 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 for
the affected species or stocks of marine mammals. 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 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 5404, January 19, 2021). The output of this scaling, where
appropriate, is incorporated into adjusted total take estimates that
are the basis for NMFS' small numbers determinations, as depicted in
Table 1.
This product is used by NMFS in making the necessary small numbers
determinations through comparison with the best available abundance
estimates (see discussion at 86 FR 5391, January 19, 2021). For this
comparison, NMFS' approach is to use the maximum theoretical
population, determined through review of current stock assessment
reports (SAR; www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and model-predicted abundance
information (https://seamap.env.duke.edu/models/Duke/GOM/). For the
latter, for taxa where a density surface model could be produced, we
use the maximum mean seasonal (i.e., 3-month) abundance prediction for
purposes of comparison as a precautionary smoothing of month-to-month
fluctuations and in consideration of a corresponding lack of data in
the literature regarding seasonal distribution of marine mammals in the
GOM. Information supporting the small numbers determinations is
provided in Table 1.
Table 1--Take Analysis
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Authorized Scaled take Percent
Species take \1\ Abundance \2\ abundance
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Rice's whale.................................... 0 n/a 51 n/a
Sperm whale..................................... 1,500 634.4 2,207 28.7
Kogia spp....................................... \3\ 582 176.4 4,373 4.8
Beaked whales................................... 6,970 704.0 3,768 18.7
Rough-toothed dolphin........................... 1,208 346.8 4,853 7.1
Bottlenose dolphin.............................. 5,111 1,466.8 176,108 0.8
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Clymene dolphin................................. 3,377 969.3 11,895 8.1
Atlantic spotted dolphin........................ 2,040 585.5 74,785 0.8
Pantropical spotted dolphin..................... 17,180 4,930.7 102,361 4.8
Spinner dolphin................................. 3,768 1,081.5 25,114 4.3
Striped dolphin................................. 1,363 391.3 5,229 7.5
Fraser's dolphin................................ 397 113.9 1,665 6.8
Risso's dolphin................................. 947 279.3 3,764 7.4
Melon-headed whale.............................. 2,215 653.3 7,003 9.3
Pygmy killer whale.............................. 577 170.2 2,126 8.0
False killer whale.............................. 868 256.1 3,204 8.0
Killer whale.................................... 7 n/a 267 2.6
Short-finned pilot whale........................ 594 175.2 1,981 8.8
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\1\ Scalar ratios were applied to ``Authorized Take'' values as described at 86 FR 5322, 5404 (January 19, 2021)
to derive scaled take numbers shown here.
\2\ Best abundance estimate. For most taxa, the best abundance estimate for purposes of comparison with take
estimates is considered here to be the model-predicted abundance (Roberts et al., 2016). For those taxa where
a density surface model predicting abundance by month was produced, the maximum mean seasonal abundance was
used. For those taxa where abundance is not predicted by month, only mean annual abundance is available. For
the killer whale, the larger estimated SAR abundance estimate is used.
\3\ Includes 32 takes by Level A harassment and 550 takes by Level B harassment. Scalar ratio is applied to
takes by Level B harassment only; small numbers determination made on basis of scaled Level B harassment take
plus authorized Level A harassment take.
Based on the analysis contained herein of WesternGeco's proposed
survey activity described in its LOA application and the anticipated
take of marine mammals, NMFS finds that small numbers of marine mammals
will be taken relative to the affected species or stock sizes and
therefore is of no more than small numbers.
Authorization
NMFS has determined that the level of taking for this LOA request
is consistent with the findings made for the total taking allowable
under the incidental take regulations and that the amount of take
authorized under the LOA is of no more than small numbers. Accordingly,
we have issued an LOA to WesternGeco authorizing the take of marine
mammals incidental to its geophysical survey activity, as described
above.
Dated: September 7, 2022.
Catherine G. Marzin,
Deputy Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2022-19611 Filed 9-9-22; 8:45 am]
BILLING CODE 3510-22-P
