Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico, 74604-74607 [2022-26485]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 87, Number 233 (Tuesday, December 6, 2022)]
[Notices]
[Pages 74604-74607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-26485]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC564]


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 Woodside 
Energy, L.L.C. (Woodside) for the take of marine mammals incidental to 
geophysical survey activity in the Gulf of Mexico.

DATES: The LOA is effective from December 15, 2022, through June 15, 
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

[[Page 74605]]

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

    Woodside plans to conduct a Zero Offset Vertical Seismic Profile 
(VSP) survey within East Breaks Block 699. See Section H of Woodside's 
application for a map. Woodside plans to use either a 6-element, 1,500 
cubic inch (in\3\) airgun array or a 12-element, 2,400 in\3\ airgun 
array. Please see Woodside's application for additional detail.
    Consistent with the preamble to the final rule, the survey effort 
proposed by Woodside in its LOA request was used to develop LOA-
specific take estimates based on the acoustic exposure modeling results 
described in the preamble (86 FR 5322, 5398, January 19, 2021). In 
order to generate the appropriate take number for authorization, the 
following information was considered: (1) survey type; (2) location (by 
modeling zone); \1\ (3) number of days; and (4) season.\2\ The acoustic 
exposure modeling performed in support of the rule provides 24-hour 
exposure estimates for each species, specific to each modeled survey 
type in each zone and season.
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    \1\ For purposes of acoustic exposure modeling, the GOM was 
divided into seven zones. Zone 1 is not included in the geographic 
scope of the rule.
    \2\ For purposes of acoustic exposure modeling, seasons include 
Winter (December-March) and Summer (April-November).
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    No 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 for Woodside's VSP 
survey because the spatial coverage of the planned surveys is most 
similar to the coil survey pattern. For the planned survey, the seismic 
source array will be deployed in the following stationary form: Zero 
Offset VSP--deployed from a drilling rig at or near the borehole, with 
the seismic receivers (i.e., geophones) deployed in the borehole on 
wireline at specified depth intervals. 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. Because Woodside's planned survey is expected to 
cover no additional area as a stationary source, or up to three times 
the total depth of the well centered around the well head, the coil 
proxy is most representative of the effort planned by Woodside in terms 
of predicted Level B harassment.
    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 the differences 
in both the airgun array (6 or 12 elements, 1,500 or 2,400 in\3\), and 
in daily survey area planned by Woodside (as mentioned above), as 
compared to those modeled for the rule.
    The survey is planned to occur for a maximum of 2 days in Zone 6. 
The survey is planned to occur in winter, but may occur in either 
season. Therefore, the take estimates for each species are based on the 
season that has the greater value for the species (i.e., winter or 
summer).
    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 inconsistent with what 
is known regarding their occurrence in the GOM.

[[Page 74606]]

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).
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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. 
Woodside's planned activities will occur in water depths of 
approximately 941 m in the northern 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 
(as discussed above) and expressed that, due to the limited data 
available to inform the model, it ``should be viewed cautiously'' 
(Roberts et al., 2015).
    NOAA surveys in the GOM from 1992-2009 reported only 16 sightings 
of killer whales, with an additional 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.
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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 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 Woodside's survey, 
use of the exposure modeling produces an estimate of one killer whale 
exposure. Given the foregoing discussion, it is unlikely that any 
killer whales would be encountered during this 2-day survey, and 
accordingly, no take of killer whales is authorized through the 
Woodside 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

[[Page 74607]]

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, which are determined as 
described above, 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-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 take                           Percent
                        Species                                 \1\           Abundance \2\        abundance
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Rice's whale...........................................                  0                 51                n/a
Sperm whale............................................                 48              2,207                2.2
Kogia spp..............................................             \3\ 11              4,373                0.2
Beaked whales..........................................                182              3,768                4.8
Rough-toothed dolphin..................................                 34              4,853                0.7
Bottlenose dolphin.....................................                101            176,108                0.1
Clymene dolphin........................................                131             11,895                1.1
Atlantic spotted dolphin...............................                 42             74,785                0.1
Pantropical spotted dolphin............................                304            102,361                0.3
Spinner dolphin........................................                  7             25,114                  0
Striped dolphin........................................                 34              5,229                0.6
Fraser's dolphin.......................................                 12              1,665                0.7
Risso's dolphin........................................                 25              3,764                0.7
Melon-headed whale.....................................                 65              7,003                0.9
Pygmy killer whale.....................................                 15              2,126                0.7
False killer whale.....................................                 25              3,204                0.8
Killer whale...........................................                  0                267                n/a
Short-finned pilot whale...............................                 38              1,981                1.9
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\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. For
  Rice's whale and the killer whale, the larger estimated SAR abundance estimate is used.
\3\ Includes 1 take by Level A harassment and 10 takes by Level B harassment.

    Based on the analysis contained herein of Woodside'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 Woodside authorizing the take of marine 
mammals incidental to its geophysical survey activity, as described 
above.

    Dated: December 1, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-26485 Filed 12-5-22; 8:45 am]
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