Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico, 59783-59786 [2022-21362]

Download as PDF Federal Register / Vol. 87, No. 190 / Monday, October 3, 2022 / Notices The meeting will be held at the DoubleTree by Hilton Washington, DC—Silver Spring, 8727 Colesville Road, Silver Spring, Maryland 20910. Written comments should be sent via email to bryan.keller@noaa.gov. Comments may also be sent via mail to Bryan Keller at NMFS, Office of International Affairs, Trade, and Commerce, 1315 East-West Highway, Silver Spring, MD 20910. FOR FURTHER INFORMATION CONTACT: Bryan Keller, Office of International Affairs, Trade, and Commerce, (202) 897–9208 or at bryan.keller@noaa.gov. SUPPLEMENTARY INFORMATION: The Advisory Committee to the U.S. Section to ICCAT will meet October 19–20, 2022, first in an open session to consider information on the status of Atlantic highly migratory species and other scientific matters and then in a closed session to discuss sensitive matters related to their conservation and management. The open session will be from 9 a.m. to 12 p.m. on October 19, 2022, including an opportunity for public comment beginning at approximately 11:30 a.m. Comments may also be submitted in writing for the Advisory Committee’s consideration. Interested members of the public can submit comments by mail or email; use of email is encouraged. All written comments must be received by October 12, 2022 (see ADDRESSES). NMFS expects members of the public to conduct themselves appropriately at the open session of the Advisory Committee meeting. At the beginning of the public comment session, an explanation of the ground rules will be provided (e.g., alcohol in the meeting room is prohibited, speakers will be called to give their comments in the order in which they registered to speak, each speaker will have an equal amount of time to speak and speakers should not interrupt one another). The session will be structured so that all attending members of the public are able to comment, if they so choose, regardless of the degree of controversy of the subject(s). Those not respecting the ground rules will be asked to leave the meeting. After the open session, the Advisory Committee will meet in closed session to discuss sensitive information relating to upcoming international negotiations on the conservation and management of Atlantic highly migratory species. lotter on DSK11XQN23PROD with NOTICES1 ADDRESSES: should be directed to Bryan Keller at bryan.keller@noaa.gov at least 5 days prior to the meeting date. Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq. Dated: September 28, 2022. Alexa Cole, Director, Office of International Affairs, Trade, and Commerce, National Marine Fisheries Service. [FR Doc. 2022–21394 Filed 9–30–22; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [RTID 0648–XC276] Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of issuance of Letter of Authorization. AGENCY: In accordance with the Marine Mammal Protection Act (MMPA), as amended, its implementing regulations, and NMFS’ MMPA Regulations for Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico, notification is hereby given that a Letter of Authorization (LOA) has been issued to Anadarko Petroleum Corporation (Anadarko) for the take of marine mammals incidental to geophysical survey activity in the Gulf of Mexico. DATES: The LOA is effective from October 1, 2022, through April 1, 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: Kim Corcoran, Office of Protected Resources, NMFS, (301) 427–8401. SUPPLEMENTARY INFORMATION: SUMMARY: Special Accommodations Background The meeting location is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids 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 VerDate Sep<11>2014 19:00 Sep 30, 2022 Jkt 259001 PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 59783 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 E:\FR\FM\03OCN1.SGM 03OCN1 59784 Federal Register / Vol. 87, No. 190 / Monday, October 3, 2022 / Notices lotter on DSK11XQN23PROD with NOTICES1 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 Anadarko plans to conduct one of the following vertical seismic profile (VSP) survey types: Zero Offset, 2D, or 3D in the vicinity of the Horn Mountain field in the Mississippi Canyon area, around block MC–81. The location is in approximately 3,500 ft (1,067 m) water depth. See Section E of Anadarko’s application for a map. Anadarko plans to use either a 12-element, 2,400 cubic inch (in3) airgun array, or a 6-element, 1,500-in3 airgun array. The sound source used will be determined by the survey type that Anadarko ultimately determines that it needs to conduct. Please see Anadarko’s application for additional detail. Consistent with the preamble to the final rule, the survey effort proposed by Anadarko in its LOA request was used to develop LOA-specific take estimates based on the acoustic exposure modeling results described in the preamble (86 FR 5322, 5398; January 19, 2021). In order to generate the appropriate take 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 VSP 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 these survey types. 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 1 For purposes of acoustic exposure modeling, the GOM was divided into seven zones. Zone 1 is not included in the geographic scope of the rule. 2 For purposes of acoustic exposure modeling, seasons include Winter (December–March) and Summer (April–November). VerDate Sep<11>2014 19:00 Sep 30, 2022 Jkt 259001 spatial coverage of the planned survey is most similar to the coil survey pattern. For the planned survey, the seismic source array will be deployed in one of the following forms: Zero Offset VSP—the 1,500-in3 airgun array (hyper cluster) would be suspended at 5 meters (m) of water depth with a crane on one side of the drill ship without the use of a dedicated source vessel; 2D VSP— using a dedicated source vessel, the 2,400-in3 airgun array (dual magnum) would be towed along a straight line; 3D VSP—also using a dedicated source vessel, the dual magnum source would be towed in a spiral pattern, starting around the well, shooting in circles of increasing radius. Only the zero offset option would be stationary. The 3D VSP option is expected to cover the most area, compared with the zero offset and 2D VSP options, with a maximum radius of 7 kilometers (km). (Note that this 7-km radius around the survey location would cover a depth range of approximately 900–1,700 m.) The coil survey pattern in the model 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 Anadarko is not proposing to perform a survey using the coil geometry, its planned VSP survey is expected to cover only up to a maximum 7-km radius around the platform, meaning that the coil proxy is most representative of the effort planned by Anadarko 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 acoustic source planned for use (12 or 6 elements, 2,400 or 1,500 in3) and the proxy array modeled for the rule. The survey is planned to occur for up to 8 days in Zone 5. 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 PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 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 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 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. NMFS’ final rule described a ‘‘core habitat area’’ for Rice’s whales (formerly known as GOM Bryde’s whales) 3 located in the northeastern GOM in waters between 100–400 m depth along the continental shelf break (Rosel et al., 2016). 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, habitatbased 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). 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\03OCN1.SGM 03OCN1 lotter on DSK11XQN23PROD with NOTICES1 Federal Register / Vol. 87, No. 190 / Monday, October 3, 2022 / Notices 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. Anadarko’s planned activities will occur in water depths of approximately 900–1,700 m in the eastern central GOM. In addition, although this activity is located further to the east than other survey activities associated with issued LOAs, we considered the maximum duration of 8 days for this survey, which minimizes the potential for encounter with Rice’s whales. 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 3 encounters during more recent survey effort from 2017–18 (Waring et al., 2013; www.boem.gov/gommapps). Two other species were also observed on less than 20 occasions during the 1992–2009 NOAA surveys (Fraser’s dolphin and false killer whale 4). However, observational data collected by Protected Species Observers (PSOs) on industry geophysical survey vessels from 2002–2015 distinguish the killer 4 However, note that these species have been observed over a greater range of water depths in the GOM than have killer whales. VerDate Sep<11>2014 19:00 Sep 30, 2022 Jkt 259001 whale in terms of rarity. During this period, killer whales were encountered on only 10 occasions, whereas the next most rarely encountered species (Fraser’s dolphin) was recorded on 69 occasions (Barkaszi and Kelly, 2019). The false killer whale and pygmy killer whale were the next most rarely encountered species, with 110 records each. The killer whale was the species with the lowest detection frequency during each period over which PSO data were synthesized (2002–2008 and 2009– 2015). This information qualitatively informed our rulemaking process, as discussed at 86 FR 5322, 5334 (January 19, 2021), and similarly informs our analysis here. The rarity of encounter during seismic surveys is not likely to be the product of high bias on the probability of detection. Unlike certain cryptic species with high detection bias, such as Kogia spp. or beaked whales, or deep-diving species with high availability bias, such as beaked whales or sperm whales, killer whales are typically available for detection when present and are easily observed. Roberts et al. (2015) stated that availability is not a major factor affecting detectability of killer whales from shipboard surveys, as they are not a particularly long-diving species. Baird et al. (2005) reported that mean dive durations for 41 fish-eating killer whales for dives greater than or equal to 1 minute in duration was 2.3–2.4 minutes, and Hooker et al. (2012) reported that killer whales spent 78 percent of their time at depths between 0–10 m. Similarly, Kvadsheim et al. (2012) reported data from a study of four killer whales, noting that the whales performed 20 times as many dives to 1– 30 m depth than to deeper waters, with an average depth during those most common dives of approximately 3 m. In summary, killer whales are the most rarely encountered species in the GOM and typically occur only in particularly deep water. While this information is reflected through the density model informing the acoustic exposure modeling results, there is relatively high uncertainty associated with the model for this species, and the acoustic exposure modeling applies mean distribution data over areas where the species is in fact less likely to occur. 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 PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 59785 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 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 Anadarko’s survey, use of the exposure modeling produces an estimate of three killer whale exposures. Given the foregoing discussion, it is unlikely that even one killer whale would be encountered during this 8-day survey, and accordingly, no take of killer whales is authorized through the LOA. 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 5322, 5438; January 19, 2021). The take numbers for authorization, determined as described above in the Summary of Request and Analysis section, are used by NMFS in making the necessary small numbers determinations 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 model- E:\FR\FM\03OCN1.SGM 03OCN1 59786 Federal Register / Vol. 87, No. 190 / Monday, October 3, 2022 / Notices 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 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 1 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 ............................................................................................................... Abundance 2 0 210 3 80 929 160 757 449 302 2039 546 176 50 132 295 69 111 0 85 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 3.9 4.3 1.8 24.6 3.3 0.4 3.8 0.4 2.0 2.2 3.4 3.9 3.5 4.2 3.3 3.5 n/a 4.3 1 Scalar ratios were not applied in this case due to brief survey duration. 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. 3 Includes 4 takes by Level A harassment and 76 takes by Level B harassment. 2 Best Based on the analysis contained herein of Anadarko’s proposed survey activity described in its LOA application and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the affected species or stock sizes and therefore is of no more than small numbers. lotter on DSK11XQN23PROD with NOTICES1 NMFS has determined that the level of taking for this LOA request is consistent with the findings made for the total taking allowable under the incidental take regulations and that the amount of take authorized under the LOA is of no more than small numbers. Accordingly, we have issued an LOA to Anadarko authorizing the take of marine mammals incidental to its geophysical survey activity, as described above. Dated: September 27, 2022. Kimberly Damon-Randall, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2022–21362 Filed 9–30–22; 8:45 am] BILLING CODE 3510–22–P 19:00 Sep 30, 2022 Environmental Management SiteSpecific Advisory Board, Hanford Office of Environmental Management, Department of Energy. ACTION: Notice of open in-Person/virtual hybrid meeting: correction. AGENCY: On September 23, 2022, the Department of Energy published a notice of open meeting announcing an in-person/virtual hybrid meeting on October 19–20, 2022 of the Environmental Management SiteSpecific Advisory Board, Hanford (87 FR 58079). This document makes a correction to that notice. FOR FURTHER INFORMATION CONTACT: Gary Younger, Federal Coordinator, U.S. Department of Energy, Hanford Office of Communications, Richland Operations Office, P.O. Box 550, Richland, WA 99354; Phone: (509) 372–0923; or Email: gary.younger@rl.doe.gov. SUMMARY: Authorization VerDate Sep<11>2014 DEPARTMENT OF ENERGY Jkt 259001 Corrections In the Federal Register of September 23, 2022, in FR Doc. 2022–20647, on page 58079, please make the following correction: In that notice under ADDRESSES, third column, third paragraph, the meeting address has been changed. The original PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 address was Holiday Inn Richland on the River, 802 George Washington Way, Richland, WA 99352. The new address is Three Rivers Convention Center, 7016 W Grandridge Boulevard, Kennewick, WA 99336. The reason for the correction is the original venue can no longer host the meeting. Signing Authority This document of the Department of Energy was signed on September 27, 2022, by Shena Kennerly, Acting Committee Management Officer, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register. E:\FR\FM\03OCN1.SGM 03OCN1

Agencies

[Federal Register Volume 87, Number 190 (Monday, October 3, 2022)]
[Notices]
[Pages 59783-59786]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-21362]

-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC276]

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.

-----------------------------------------------------------------------

SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA), as
amended, its implementing regulations, and NMFS' MMPA Regulations for
Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil
and Gas Activities in the Gulf of Mexico, notification is hereby given
that a Letter of Authorization (LOA) has been issued to Anadarko
Petroleum Corporation (Anadarko) for the take of marine mammals
incidental to geophysical survey activity in the Gulf of Mexico.

DATES: The LOA is effective from October 1, 2022, through April 1,
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: Kim Corcoran, Office of Protected
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce to allow, upon request, the
incidental, but not intentional, taking of small numbers of marine
mammals by U.S. citizens who engage in a specified activity (other than
commercial fishing) within a specified geographical region if certain
findings are made and either regulations are issued or, if the taking
is limited to harassment, a notice of a proposed authorization is
provided to the public for review.
An authorization for incidental takings shall be granted if NMFS
finds that the taking will have a negligible impact on the species or
stock(s), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (where
relevant), and if the permissible methods of taking and requirements
pertaining to the mitigation, monitoring and reporting of such takings
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103
as an impact resulting from the specified activity that cannot be
reasonably expected to, and is not reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as: any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild (Level A harassment); or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).
On January 19, 2021, we issued a final rule with regulations to
govern the unintentional taking of marine mammals incidental to
geophysical survey activities conducted by oil and gas industry
operators, and those persons authorized to conduct activities on their
behalf (collectively ``industry operators''), in Federal waters of the
U.S. Gulf of Mexico (GOM) over the course of 5 years (86 FR 5322;
January 19, 2021). The rule was based on our findings that the total
taking from the specified activities over the 5-year period will have a
negligible impact on the affected species or stock(s) of marine mammals
and will not have an unmitigable adverse impact on the availability of
those species or stocks for subsistence uses. The rule became effective
on April 19, 2021.
Our regulations at 50 CFR 217.180 et seq. allow for the issuance of
LOAs to industry operators for the incidental take of marine mammals
during geophysical survey activities and prescribe the permissible
methods of

[[Page 59784]]

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

Anadarko plans to conduct one of the following vertical seismic
profile (VSP) survey types: Zero Offset, 2D, or 3D in the vicinity of
the Horn Mountain field in the Mississippi Canyon area, around block
MC-81. The location is in approximately 3,500 ft (1,067 m) water depth.
See Section E of Anadarko's application for a map. Anadarko plans to
use either a 12-element, 2,400 cubic inch (in\3\) airgun array, or a 6-
element, 1,500-in\3\ airgun array. The sound source used will be
determined by the survey type that Anadarko ultimately determines that
it needs to conduct. Please see Anadarko's application for additional
detail.
Consistent with the preamble to the final rule, the survey effort
proposed by Anadarko in its LOA request was used to develop LOA-
specific take estimates based on the acoustic exposure modeling results
described in the preamble (86 FR 5322, 5398; January 19, 2021). In
order to generate the appropriate take 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.
---------------------------------------------------------------------------

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

No VSP 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 these survey types. 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. For the planned survey, the seismic source
array will be deployed in one of the following forms: Zero Offset VSP--
the 1,500-in\3\ airgun array (hyper cluster) would be suspended at 5
meters (m) of water depth with a crane on one side of the drill ship
without the use of a dedicated source vessel; 2D VSP--using a dedicated
source vessel, the 2,400-in\3\ airgun array (dual magnum) would be
towed along a straight line; 3D VSP--also using a dedicated source
vessel, the dual magnum source would be towed in a spiral pattern,
starting around the well, shooting in circles of increasing radius.
Only the zero offset option would be stationary. The 3D VSP option is
expected to cover the most area, compared with the zero offset and 2D
VSP options, with a maximum radius of 7 kilometers (km). (Note that
this 7-km radius around the survey location would cover a depth range
of approximately 900-1,700 m.) The coil survey pattern in the model 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 Anadarko is not proposing to perform a survey using
the coil geometry, its planned VSP survey is expected to cover only up
to a maximum 7-km radius around the platform, meaning that the coil
proxy is most representative of the effort planned by Anadarko 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 acoustic source planned for use (12 or 6 elements, 2,400 or
1,500 in\3\) and the proxy array modeled for the rule.
The survey is planned to occur for up to 8 days in Zone 5. 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 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 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.
NMFS' final rule described a ``core habitat area'' for Rice's
whales (formerly known as GOM Bryde's whales) \3\ located in the
northeastern GOM in waters between 100-400 m depth along the
continental shelf break (Rosel et al., 2016). 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).
---------------------------------------------------------------------------

\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).

---------------------------------------------------------------------------

[[Page 59785]]

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.
Anadarko's planned activities will occur in water depths of
approximately 900-1,700 m in the eastern central GOM. In addition,
although this activity is located further to the east than other survey
activities associated with issued LOAs, we considered the maximum
duration of 8 days for this survey, which minimizes the potential for
encounter with Rice's whales. 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 3 encounters during more recent
survey effort from 2017-18 (Waring et al., 2013; www.boem.gov/gommapps). Two other species were also observed on less than 20
occasions during the 1992-2009 NOAA surveys (Fraser's dolphin and 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. 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 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 Anadarko's survey,
use of the exposure modeling produces an estimate of three killer whale
exposures. Given the foregoing discussion, it is unlikely that even one
killer whale would be encountered during this 8-day survey, and
accordingly, no take of killer whales is authorized through the LOA.
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 5322, 5438; January 19, 2021).
The take numbers for authorization, determined as described above
in the Summary of Request and Analysis section, are used by NMFS in
making the necessary small numbers determinations 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-

[[Page 59786]]

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
----------------------------------------------------------------------------------------------------------------
Authorized Percent
Species take \1\ Abundance \2\ abundance
----------------------------------------------------------------------------------------------------------------
Rice's whale.................................................... 0 51 3.9
Sperm whale..................................................... 210 2,207 4.3
Kogia spp....................................................... \3\ 80 4,373 1.8
Beaked whales................................................... 929 3,768 24.6
Rough-toothed dolphin........................................... 160 4,853 3.3
Bottlenose dolphin.............................................. 757 176,108 0.4
Clymene dolphin................................................. 449 11,895 3.8
Atlantic spotted dolphin........................................ 302 74,785 0.4
Pantropical spotted dolphin..................................... 2039 102,361 2.0
Spinner dolphin................................................. 546 25,114 2.2
Striped dolphin................................................. 176 5,229 3.4
Fraser's dolphin................................................ 50 1,665 3.9
Risso's dolphin................................................. 132 3,764 3.5
Melon-headed whale.............................................. 295 7,003 4.2
Pygmy killer whale.............................................. 69 2,126 3.3
False killer whale.............................................. 111 3,204 3.5
Killer whale.................................................... 0 267 n/a
Short-finned pilot whale........................................ 85 1,981 4.3
----------------------------------------------------------------------------------------------------------------
\1\ Scalar ratios were not applied in this case due to brief survey duration.
\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.
\3\ Includes 4 takes by Level A harassment and 76 takes by Level B harassment.

Based on the analysis contained herein of Anadarko's proposed
survey activity described in its LOA application and the anticipated
take of marine mammals, NMFS finds that small numbers of marine mammals
will be taken relative to the affected species or stock sizes and
therefore is of no more than small numbers.

Authorization

NMFS has determined that the level of taking for this LOA request
is consistent with the findings made for the total taking allowable
under the incidental take regulations and that the amount of take
authorized under the LOA is of no more than small numbers. Accordingly,
we have issued an LOA to Anadarko authorizing the take of marine
mammals incidental to its geophysical survey activity, as described
above.

Dated: September 27, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2022-21362 Filed 9-30-22; 8:45 am]
BILLING CODE 3510-22-P

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.