Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico, 9249-9252 [2023-02960]

Download as PDF Federal Register / Vol. 88, No. 29 / Monday, February 13, 2023 / Notices Proposed Activities section of this notice is planned or (2) the activities as described in the Description of Proposed Activities section of this notice would not be completed by the time the IHA expires and a renewal would allow for completion of the activities beyond that described in the Dates and Duration section of this notice, provided all of the following conditions are met: • A request for renewal is received no later than 60 days prior to the needed renewal IHA effective date (recognizing that the renewal IHA expiration date cannot extend beyond one year from expiration of the initial IHA). • The request for renewal must include the following: (1) An explanation that the activities to be conducted under the requested renewal IHA are identical to the activities analyzed under the initial IHA, are a subset of the activities, or include changes so minor (e.g., reduction in pile size) that the changes do not affect the previous analyses, mitigation and monitoring requirements, or take estimates (with the exception of reducing the type or amount of take). (2) A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized. Upon review of the request for renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures will remain the same and appropriate, and the findings in the initial IHA remain valid. Dated: February 8, 2023. Kimberly Damon-Randall, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2023–02997 Filed 2–10–23; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration khammond on DSKJM1Z7X2PROD with NOTICES [RTID 0648–XC673] 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 AGENCY: VerDate Sep<11>2014 17:10 Feb 10, 2023 Jkt 259001 Atmospheric Administration (NOAA), Commerce. ACTION: Notice of issuance of Letter of Authorization. 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 February 7, 2023 through January 31, 2024. 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: Rachel Wachtendonk, Office of Protected Resources, NMFS, (301) 427– 8401. SUPPLEMENTARY INFORMATION: SUMMARY: 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 PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 9249 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 Shell plans to conduct a 3D borehole seismic survey using an airgun array as the sound source, covering portions of approximately 30 lease blocks centered around Lease Block G07962 (Mississippi Canyon 806). The survey is a type of vertical seismic profile (VSP) survey. The array consists of 32 elements, with a total volume of 5,110 cubic inches E:\FR\FM\13FEN1.SGM 13FEN1 khammond on DSKJM1Z7X2PROD with NOTICES 9250 Federal Register / Vol. 88, No. 29 / Monday, February 13, 2023 / Notices (in3). Please see Shell’s application for additional detail. Consistent with the preamble to the final rule, the survey effort proposed by Shell 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. 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 VSP survey effort. 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 because the spatial coverage of the planned survey is most similar to that associated with the coil survey pattern. The planned 3D borehole VSP survey will involve one source vessel sailing a racetrack pattern along survey lines approximately 100 m apart and 15 km in length. 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 Shell is not proposing to perform a survey using the coil geometry, its planned VSP survey is expected to cover approximately 53 km2 per day, meaning that the coil proxy is most representative of the effort planned by Shell in terms of predicted Level B harassment exposures. In addition, all available acoustic exposure modeling results assume use 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 17:10 Feb 10, 2023 Jkt 259001 of a 72 element, 8,000 in3 array. Thus, take numbers authorized through the LOA are considered conservative due to differences in both the airgun array (32 elements, 5,110 in3) and the daily survey area planned by Shell (53 km2), as compared to those modeled for the rule. The survey is planned to occur for 14 days in Zone 5, with airguns being used on 10 of the days. The season is defined as winter; however, the LOA is valid for 1 year meaning that the survey could take place in any 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). For some species, take estimates based solely on the modeling yielded results that are not realistically likely to occur when considered in light of other relevant information available during the rulemaking process regarding marine mammal occurrence in the GOM. Thus, although the modeling conducted for the rule is a natural starting point for estimating take, our rule acknowledged that other information could be considered (see, e.g., 86 FR 5322, 5442 (January 19, 2021), discussing the need to provide flexibility and make efficient use of previous public and agency review of other information and identifying that additional public review is not necessary unless the model or inputs used differ substantively from those that were previously reviewed by NMFS and the public). For this survey, NMFS has other relevant information reviewed during the rulemaking that indicates use of the acoustic exposure modeling to generate a take estimate for certain marine mammal species produces results inconsistent with what is known regarding their occurrence in the GOM. Accordingly, we have adjusted the calculated take estimates for those species as described below. 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 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). PO 00000 Frm 00026 Fmt 4703 Sfmt 4703 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. Shell’s planned activities will occur in water depths of approximately 840–1,207 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 the LOA. Killer whales are the most rarely encountered species in the GOM, typically in deep waters of the central GOM (Roberts et al., 2015; Maze-Foley and Mullin, 2006). The approach used in the acoustic exposure modeling, in which seven modeling zones were defined over the U.S. GOM, necessarily averages fine-scale information about marine mammal distribution over the large area of each modeling zone. NMFS has determined that the approach results in unrealistic projections regarding the likelihood of encountering killer whales. As discussed in the final rule, the density models produced by Roberts et al. (2016) provide the best available scientific information regarding predicted density patterns of cetaceans in the U.S. GOM. The predictions represent the output of models derived from multi-year observations and associated environmental parameters that incorporate corrections for detection bias. However, in the case of killer whales, the model is informed by few data, as indicated by the coefficient of variation associated with the abundance predicted by the model (0.41, the second-highest of any GOM species model; Roberts et al., 2016). The model’s authors noted the expected non-uniform distribution of this rarelyencountered species (as discussed above) and expressed that, due to the limited data available to inform the model, it ‘‘should be viewed cautiously’’ (Roberts et al., 2015). NOAA surveys in the GOM from 1992–2009 reported only 16 sightings of killer whales, with an additional 3 encounters during more recent survey effort from 2017–18 (Waring et al., 2013; E:\FR\FM\13FEN1.SGM 13FEN1 9251 Federal Register / Vol. 88, No. 29 / Monday, February 13, 2023 / Notices www.boem.gov/gommapps). Two other species were also observed on fewer 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. 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 1–30 m in depth than to deeper waters, with an average depth during those most common dives of approximately 3 m. In summary, killer whales are the most rarely encountered species in the GOM and typically occur only in particularly deep water. While this information is reflected through the density model informing the acoustic exposure modeling results, there is relatively high uncertainty associated with the model for this species, and the acoustic exposure modeling applies mean distribution data over areas where the species is in fact less likely to occur. NMFS’ determination in reflection of the data discussed above, which informed the final rule, is that use of the generic acoustic exposure modeling results for killer whales will generally 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 this case, use of the acoustic exposure modeling produces an estimate of four killer whale exposures. Given the foregoing, it is unlikely that any killer whales would be encountered during this 10-day survey, and accordingly no take of killer whales is authorized through this LOA. Based on the results of our analysis, NMFS has determined that the level of taking expected for this survey and authorized through the LOA is consistent with the findings made for the total taking allowable under the regulations. See Table 1 in this notice and Table 9 of the rule (86 FR 5322, January 19, 2021). Small Numbers Determination Under the GOM rule, NMFS may not authorize incidental take of marine mammals in an LOA if it will exceed ‘‘small numbers.’’ In short, when an acceptable estimate of the individual marine mammals taken is available, if the estimated number of individual animals taken is up to, but not greater than, one-third of the best available abundance estimate, NMFS will determine that the numbers of marine mammals taken of a species or stock are small. For more information please see NMFS’ discussion of the MMPA’s small numbers requirement provided in the final rule (86 FR 5322, 5438, January 19, 2021). The take numbers for authorization, 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/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 1 khammond on DSKJM1Z7X2PROD with NOTICES 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 ......................................................................................................... Abundance 2 0 263 3 99 1,161 200 946 562 378 2,549 683 219 4 65 165 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 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 17:10 Feb 10, 2023 Jkt 259001 PO 00000 Frm 00027 Fmt 4703 Sfmt 4703 E:\FR\FM\13FEN1.SGM 13FEN1 Percent abundance n/a 11.9 2.3 30.8 4.1 0.5 4.7 0.5 2.5 2.7 4.2 3.9 4.4 9252 Federal Register / Vol. 88, No. 29 / Monday, February 13, 2023 / Notices TABLE 1—TAKE ANALYSIS—Continued Authorized take 1 Species Melon-headed whale ............................................................................................... Pygmy killer whale ................................................................................................... False killer whale ..................................................................................................... Killer whale .............................................................................................................. Short-finned pilot whale ........................................................................................... Abundance 2 369 87 138 0 107 7,003 2,126 3,204 267 1,981 Percent abundance 5.3 4.1 4.3 n/a 5.4 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. For the killer whale, the larger estimated SAR abundance estimate is used. 3 Includes 5 takes by Level A harassment and 94 takes by Level B harassment. 4 Modeled take of 63 increased to account for potential encounter with group of average size (Maze-Foley and Mullin, 2006). 2 Best Based on the analysis contained herein of Shell’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 (i.e., less than one-third of the best available abundance estimate) and therefore the taking 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 Shell authorizing the take of marine mammals incidental to its geophysical survey activity, as described above. Dated: February 7, 2023. Kimberly Damon-Randall, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2023–02960 Filed 2–10–23; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration khammond on DSKJM1Z7X2PROD with NOTICES Agency Information Collection Activities; Submission to the Office of Management and Budget (OMB) for Review and Approval; Comment Request; Atlantic Large Whale Take Reduction Plan Regulations National Oceanic & Atmospheric Administration (NOAA), Commerce. ACTION: Notice of information collection, request for comment. AGENCY: The Department of Commerce, in accordance with the Paperwork Reduction Act of 1995 SUMMARY: VerDate Sep<11>2014 17:10 Feb 10, 2023 Jkt 259001 (PRA), invites the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public’s reporting burden. The purpose of this notice is to allow for 60 days of public comment preceding submission of the collection to OMB. DATES: To ensure consideration, comments regarding this proposed information collection must be received on or before April 14, 2023. ADDRESSES: Interested persons are invited to submit written comments to Adrienne Thomas, NOAA PRA Officer, at NOAA.PRA@noaa.gov. Please reference OMB Control Number 0648– 0364 in the subject line of your comments. Do not submit Confidential Business Information or otherwise sensitive or protected information. FOR FURTHER INFORMATION CONTACT: Requests for additional information or specific questions related to collection activities should be directed to Dr. Marisa Trego, Atlantic Large Whale Take Reduction Team Coordinator, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01970, (978) 282–8484, marisa.trego@noaa.gov. SUPPLEMENTARY INFORMATION: I. Abstract This request is for extension of a current information collection. In 1996, pursuant to section 118 of the MMPA, the National Marine Fisheries Service (NMFS) established and convened an Atlantic Large Whale Take Reduction Team (Team) to assist in the development of the Atlantic Large Whale Take Reduction Plan (Plan). Throughout this process, the Team has provided NMFS with recommended measures designed to reduce mortality and serious injury to North Atlantic right (Eubalaena glacialis), humpback (Megaptera novaeangliae), minke (Balaenoptera acutorostrata), and fin PO 00000 Frm 00028 Fmt 4703 Sfmt 4703 (Balaenoptera physalus) whales from incidental interactions with commercial fishing gear. To gather information on where entanglements are occurring and what type of gear is involved, the Team developed gear marking requirements. As a result, any person setting trap/pot or gillnet gear to fish commercially in some areas of the Atlantic Ocean are required to paint or otherwise mark their gear with specific color codes, designating the type of gear and area where it is set, in addition to specific buoy marking requirements. NMFS is continuing the gear marking regulations amended in the 2021 rule for the Northeast Region Trap/Pot Management Area (northeast region) commercial trap/pot fisheries because increased gear marking continues to be necessary to improve our understanding of where entanglement incidents occur (RIN 648–BJ09). The gear modifications required by the rule became effective May 1, 2022, which is at the start of the American lobster/Jonah crab fishing year. The continuation of this data collection allows for improved information on entanglement origins that will further enable NMFS to reduce injuries and deaths of large whales, especially North Atlantic right whales, due to incidental entanglement in United States commercial fishing gear. In order to develop fair and effective management measures, the Team requires comprehensive data on when, where, and how fixed gear vessels fish, and where whales become entangled in fishing gear. The 2021 rule modified gear marking requirements by establishing a statespecific color for Maine (purple), New Hampshire (yellow), Massachusetts (red), and Rhode Island (silver/gray) on buoy lines used in the lobster and Jonah crab trap/pot fishery, except those fishing in LMA 3 which retains black as the primary gear mark color. For ropeless fishing operations working under EFPs or state authorizations, gear E:\FR\FM\13FEN1.SGM 13FEN1

Agencies

[Federal Register Volume 88, Number 29 (Monday, February 13, 2023)]
[Notices]
[Pages 9249-9252]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02960]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC673]

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 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 February 7, 2023 through January 31,
2024.

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: Rachel Wachtendonk, 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

Shell plans to conduct a 3D borehole seismic survey using an airgun
array as the sound source, covering portions of approximately 30 lease
blocks centered around Lease Block G07962 (Mississippi Canyon 806). The
survey is a type of vertical seismic profile (VSP) survey. The array
consists of 32 elements, with a total volume of 5,110 cubic inches

[[Page 9250]]

(in\3\). Please see Shell's application for additional detail.
Consistent with the preamble to the final rule, the survey effort
proposed by Shell 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 VSP survey effort. 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 because the
spatial coverage of the planned survey is most similar to that
associated with the coil survey pattern.
The planned 3D borehole VSP survey will involve one source vessel
sailing a racetrack pattern along survey lines approximately 100 m
apart and 15 km in length. 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 Shell is not proposing to perform a survey using the
coil geometry, its planned VSP survey is expected to cover
approximately 53 km\2\ per day, meaning that the coil proxy is most
representative of the effort planned by Shell 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, take numbers
authorized through the LOA are considered conservative due to
differences in both the airgun array (32 elements, 5,110 in\3\) and the
daily survey area planned by Shell (53 km\2\), as compared to those
modeled for the rule.
The survey is planned to occur for 14 days in Zone 5, with airguns
being used on 10 of the days. The season is defined as winter; however,
the LOA is valid for 1 year meaning that the survey could take place in
any 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).
For some species, take estimates based solely on the modeling
yielded results that are not realistically likely to occur when
considered in light of other relevant information available during the
rulemaking process regarding marine mammal occurrence in the GOM. Thus,
although the modeling conducted for the rule is a natural starting
point for estimating take, our rule acknowledged that other information
could be considered (see, e.g., 86 FR 5322, 5442 (January 19, 2021),
discussing the need to provide flexibility and make efficient use of
previous public and agency review of other information and identifying
that additional public review is not necessary unless the model or
inputs used differ substantively from those that were previously
reviewed by NMFS and the public). For this survey, NMFS has other
relevant information reviewed during the rulemaking that indicates use
of the acoustic exposure modeling to generate a take estimate for
certain marine mammal species produces results inconsistent with what
is known regarding their occurrence in the GOM. Accordingly, we have
adjusted the calculated take estimates for those species as described
below.
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).
---------------------------------------------------------------------------

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. Shell's
planned activities will occur in water depths of approximately 840-
1,207 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 the LOA.
Killer whales are the most rarely encountered species in the GOM,
typically in deep waters of the central GOM (Roberts et al., 2015;
Maze-Foley and Mullin, 2006). The approach used in the acoustic
exposure modeling, in which seven modeling zones were defined over the
U.S. GOM, necessarily averages fine-scale information about marine
mammal distribution over the large area of each modeling zone. NMFS has
determined that the approach results in unrealistic projections
regarding the likelihood of encountering killer whales.
As discussed in the final rule, the density models produced by
Roberts et al. (2016) provide the best available scientific information
regarding predicted density patterns of cetaceans in the U.S. GOM. The
predictions represent the output of models derived from multi-year
observations and associated environmental parameters that incorporate
corrections for detection bias. However, in the case of killer whales,
the model is informed by few data, as indicated by the coefficient of
variation associated with the abundance predicted by the model (0.41,
the second-highest of any GOM species model; Roberts et al., 2016). The
model's authors noted the expected non-uniform distribution of this
rarely-encountered species (as discussed above) and expressed that, due
to the limited data available to inform the model, it ``should be
viewed cautiously'' (Roberts et al., 2015).
NOAA surveys in the GOM from 1992-2009 reported only 16 sightings
of killer whales, with an additional 3 encounters during more recent
survey effort from 2017-18 (Waring et al., 2013;

[[Page 9251]]

www.boem.gov/gommapps). Two other species were also observed on fewer
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 1-30 m in depth than to deeper
waters, with an average depth during those most common dives of
approximately 3 m.
In summary, killer whales are the most rarely encountered species
in the GOM and typically occur only in particularly deep water. While
this information is reflected through the density model informing the
acoustic exposure modeling results, there is relatively high
uncertainty associated with the model for this species, and the
acoustic exposure modeling applies mean distribution data over areas
where the species is in fact less likely to occur. NMFS' determination
in reflection of the data discussed above, which informed the final
rule, is that use of the generic acoustic exposure modeling results for
killer whales will generally 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 this case,
use of the acoustic exposure modeling produces an estimate of four
killer whale exposures. Given the foregoing, it is unlikely that any
killer whales would be encountered during this 10-day survey, and
accordingly no take of killer whales is authorized through this LOA.
Based on the results of our analysis, NMFS has determined that the
level of taking expected for this survey and authorized through the LOA
is consistent with the findings made for the total taking allowable
under the regulations. See Table 1 in this notice and Table 9 of the
rule (86 FR 5322, January 19, 2021).

Small Numbers Determination

Under the GOM rule, NMFS may not authorize incidental take of
marine mammals in an LOA if it will exceed ``small numbers.'' In short,
when an acceptable estimate of the individual marine mammals taken is
available, if the estimated number of individual animals taken is up
to, but not greater than, one-third of the best available abundance
estimate, NMFS will determine that the numbers of marine mammals taken
of a species or stock are small. For more information please see NMFS'
discussion of the MMPA's small numbers requirement provided in the
final rule (86 FR 5322, 5438, January 19, 2021).
The take numbers for authorization, 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
----------------------------------------------------------------------------------------------------------------
Species Authorized take \1\ Abundance \2\ Percent abundance
----------------------------------------------------------------------------------------------------------------
Rice's whale.......................................... 0 51 n/a
Sperm whale........................................... 263 2,207 11.9
Kogia spp............................................. \3\ 99 4,373 2.3
Beaked whales......................................... 1,161 3,768 30.8
Rough-toothed dolphin................................. 200 4,853 4.1
Bottlenose dolphin.................................... 946 176,108 0.5
Clymene dolphin....................................... 562 11,895 4.7
Atlantic spotted dolphin.............................. 378 74,785 0.5
Pantropical spotted dolphin........................... 2,549 102,361 2.5
Spinner dolphin....................................... 683 25,114 2.7
Striped dolphin....................................... 219 5,229 4.2
Fraser's dolphin...................................... \4\ 65 1,665 3.9
Risso's dolphin....................................... 165 3,764 4.4

[[Page 9252]]

Melon-headed whale.................................... 369 7,003 5.3
Pygmy killer whale.................................... 87 2,126 4.1
False killer whale.................................... 138 3,204 4.3
Killer whale.......................................... 0 267 n/a
Short-finned pilot whale.............................. 107 1,981 5.4
----------------------------------------------------------------------------------------------------------------
\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
the killer whale, the larger estimated SAR abundance estimate is used.
\3\ Includes 5 takes by Level A harassment and 94 takes by Level B harassment.
\4\ Modeled take of 63 increased to account for potential encounter with group of average size (Maze-Foley and
Mullin, 2006).

Based on the analysis contained herein of Shell'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 (i.e., less than
one-third of the best available abundance estimate) and therefore the
taking 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 Shell authorizing the take of marine mammals
incidental to its geophysical survey activity, as described above.

Dated: February 7, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-02960 Filed 2-10-23; 8:45 am]
BILLING CODE 3510-22-P

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