Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico, 40209-40212 [2023-13195]
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Federal Register / Vol. 88, No. 118 / Wednesday, June 21, 2023 / Notices
Commerce will calculate importerspecific antidumping duty assessment
rates when a respondent’s weightedaverage dumping margin is not zero or
de minimis (i.e., less than 0.5 percent).
Pursuant to 19 CFR 351.212(b)(1), where
the respondent reported the entered
value of its U.S. sales, we will calculate
importer-specific ad valorem
antidumping duty assessment rates
based on the ratio of the total amount of
dumping calculated for the examined
sales to each importer to the total
entered value of those sales. Where the
respondent did not report entered value,
we will calculate importer-specific
assessment rates on the basis of the ratio
of the total amount of dumping
calculated for the examined sales to
each importer to the total quantity of
those sales.12 We will also calculate an
estimated ad valorem importer-specific
assessment rate with which to assess
whether the per-unit assessment rate is
de minimis. We will instruct CBP to
assess antidumping duties on all
appropriate entries covered by this
review when the importer-specific ad
valorem assessment rate calculated in
the final results of this review is not
zero or de minimis. Where either the
respondent’s ad valorem weightedaverage dumping margin is zero or de
minimis, or an importer-specific ad
valorem assessment rate is zero or de
minimis,13 we will instruct CBP to
liquidate the appropriate entries
without regard to antidumping duties.
Commerce’s ‘‘reseller policy’’ will
apply to entries of subject merchandise
during the POR produced by the POSCO
single entity for which the POSCO
single entity did not know that the
merchandise it sold to the intermediary
(e.g., a reseller, trading company, or
exporter) was destined for the United
States. In such instances, we will
instruct CBP to liquidate unreviewed
entries at the all-others rate if there is no
rate for the intermediate company(ies)
involved in the transaction.14
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Cash Deposit Requirements
The following deposit requirements
will be effective upon publication of the
notice of final results of administrative
review for all shipments of the subject
merchandise entered, or withdrawn
12 In these preliminary results, Commerce applied
the assessment rate calculation method adopted in
Antidumping Proceedings: Calculation of the
Weighted-Average Dumping Margin and
Assessment Rate in Certain Antidumping
Proceedings: Final Modification, 77 FR 8101
(February 14, 2012).
13 See 19 CFR 351.106(c)(2).
14 For a full discussion of this clarification, see
Antidumping and Countervailing Duty Proceedings:
Assessment of Antidumping Duties, 68 FR 23954
(May 6, 2003).
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from warehouse, for consumption on or
after the publication date, as provided
by section 751(a)(2)(C) of the Act: (1) the
cash deposit rate for the POSCO single
entity will be equal to the weightedaverage dumping margin established in
the final results of this review, except if
the rate is de minimis within the
meaning of 19 CFR 351.106(c)(1) (i.e.,
less than 0.50 percent), in which case
the cash deposit rate will be zero; (2) for
merchandise exported by a company not
covered in this review but covered in a
prior completed segment of the
proceeding, the cash deposit rate will
continue to be the company-specific rate
published for the most recentlycompleted segment; (3) if the exporter is
not a firm covered in this review, a prior
review, or the less-than-fair-value
investigation, but the producer is, the
cash deposit rate will be the rate
established for the most recentlycompleted segment for the producer of
the merchandise; and (4) the cash
deposit rate for all other producers and
exporters will continue to be 7.10
percent, the all-others rate established
in the less-than-fair-value
investigation.15
These cash deposit requirements,
when imposed, shall remain in effect
until further notice.
Notification to Importers
This notice also serves as a
preliminary reminder to importers of
their responsibility under 19 CFR
351.402(f)(2) to file a certificate
regarding the reimbursement of
antidumping and/or countervailing
duties prior to liquidation of the
relevant entries during this review
period. Failure to comply with this
requirement could result in the
Secretary’s presumption that
reimbursement of antidumping and/or
countervailing duties occurred and the
subsequent assessment of double
antidumping duties, and/or an increase
in the amount of the antidumping duties
by the amount of the countervailing
duties.
Notification to Interested Parties
We are issuing and publishing these
results in accordance with sections
751(a)(1) and 777(i)(1) of the Act, and 19
CFR 351.221(b)(4).
Dated: May 31, 2023.
Lisa W. Wang,
Assistant Secretary for Enforcement and
Compliance.
Appendix—List of Topics Discussed in
the Preliminary Decision Memorandum
I. Summary
15 See
PO 00000
Order.
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II. Background
III. Scope of the Order
IV. Discussion of the Methodology
V. Currency Conversion
VI. Recommendation
[FR Doc. 2023–13128 Filed 6–20–23; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[RTID 0648–XD091]
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 Chevron U.S.A. Inc. (Chevron) for the
take of marine mammals incidental to
geophysical survey activity in the Gulf
of Mexico.
DATES: The LOA is effective from
August 10, 2023, through January 2,
2024.
SUMMARY:
The LOA, LOA request, and
supporting documentation are available
online at: https://www.fisheries.
noaa.gov/action/incidental-takeauthorization-oil-and-gas-industrygeophysical-survey-activity-gulf-mexico.
In case of problems accessing these
documents, please call the contact listed
below (see FOR FURTHER INFORMATION
CONTACT).
ADDRESSES:
Ben
Laws, Office of Protected Resources,
NMFS, (301) 427–8401.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
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
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Federal Register / Vol. 88, No. 118 / Wednesday, June 21, 2023 / Notices
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
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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
Chevron plans to conduct a 3D ocean
bottom node (OBN) survey over Walker
Ridge Lease Blocks 758, 759, and 802,
and the surrounding approximately 90
lease blocks, with approximate water
depths ranging from approximately
2,000 to 2,400 meters (m). See Chevron’s
LOA application for a map of the area.
Chevron anticipates using a single dual
source vessel, towing airgun array
sources consisting of 42 elements, with
a total volume of 5,380 cubic inches
(in3). Please see Chevron’s application
for additional detail.
Consistent with the preamble to the
final rule, the survey effort proposed by
Chevron in its LOA request was used to
develop LOA-specific take estimates
based on the acoustic exposure
modeling results described in the
preamble (86 FR 5398, January 19,
2021). In order to generate the
appropriate take number for
authorization, the following information
was considered: (1) survey type; (2)
location (by modeling zone); 1 (3)
number of days; and (4) season.2 The
acoustic exposure modeling performed
in support of the rule provides 24-hour
exposure estimates for each species,
specific to each modeled survey type in
each zone and season.
No 3D OBN surveys were included in
the modeled survey types, and use of
existing proxies (i.e., 2D, 3D NAZ, 3D
WAZ, Coil) is generally conservative for
use in evaluation of 3D OBN survey
effort, largely due to the greater area
covered by the modeled proxies.
Summary descriptions of these modeled
survey geometries are available in the
preamble to the proposed rule (83 FR
29212, 29220, June 22, 2018). Coil was
selected as the best available proxy
survey type in this case because the
spatial coverage of the planned survey
is most similar to the coil survey
pattern. The planned 3D OBN survey
will involve a single source vessel
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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sailing along closely spaced survey lines
that are approximately 100–150 m apart
and approximately 40 kilometers (km)
in length. The coil survey pattern was
assumed to cover approximately 144
kilometers squared (km2) per day
(compared with approximately 795 km2,
199 km2, and 845 km2 per day for the
2D, 3D NAZ, and 3D WAZ survey
patterns, respectively). Among the
different parameters of the modeled
survey patterns (e.g., area covered, line
spacing, number of sources, shot
interval, total simulated pulses), NMFS
considers area covered per day to be
most influential on daily modeled
exposures exceeding Level B
harassment criteria. Although Chevron
is not proposing to perform a survey
using the coil geometry, its planned 3D
OBN survey is expected to cover
approximately 10 km2 per day, meaning
that the coil proxy is most
representative of the effort planned by
Chevron in terms of predicted Level B
harassment exposures.
All available acoustic exposure
modeling results assume use of a 72element, 8,000 in3 array. Thus, take
numbers authorized through the LOA
are considered conservative due to
differences in the airgun array (43
elements, 5,380 in3), as compared to the
source modeled for the rule.
The survey will take place over
approximately 90 days, including 75
days of sound source operation. The
entire survey would occur within Zone
7. Chevron plans to conduct 25 survey
days in the ‘‘Summer’’ season and 50
days in the ‘‘Winter’’ season.
For some species, take estimates
based solely on the modeling yielded
results that are not realistically likely to
occur when considered in light of other
relevant information available during
the rulemaking process regarding
marine mammal occurrence in the
GOM. The approach used in the
acoustic exposure modeling, in which
seven modeling zones were defined over
the U.S. GOM, necessarily averages finescale information about marine mammal
distribution over the large area of each
modeling zone. Thus, although the
modeling conducted for the rule is a
natural starting point for estimating
take, the rule acknowledged that other
information could be considered (see,
e.g., 86 FR 5442, January 19, 2021),
discussing the need to provide
flexibility and make efficient use of
previous public and agency review of
other information and identifying that
additional public review is not
necessary unless the model or inputs
used differ substantively from those that
were previously reviewed by NMFS and
the public. For this survey, NMFS has
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other relevant information reviewed
during the rulemaking that indicates use
of the acoustic exposure modeling to
generate a take estimate for one marine
mammal species produces results
inconsistent with what is known
regarding its occurrence in the GOM.
Accordingly, we have adjusted the
calculated take estimates for the species
as described below.
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;
https://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).3
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
3 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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on only 10 occasions, whereas the next
most rarely encountered species
(Fraser’s dolphin) was recorded on 69
occasions (Barkaszi and Kelly, 2019).
The false killer whale and pygmy killer
whale were the next most rarely
encountered species, with 110 records
each. The killer whale was the species
with the lowest detection frequency
during each period over which PSO data
were synthesized (2002–2008 and 2009–
2015). This information qualitatively
informed our rulemaking process, as
discussed at 86 FR 5334 (January 19,
2021), and similarly informs our
analysis here.
The rarity of encounters 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 deepdiving 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 4
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 (>700 m). This
survey would take place in deep waters
that would overlap with depths in
which killer whales typically occur.
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
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40211
whale take (86 FR 5403, January 19,
2021).
In past authorizations, NMFS has
often addressed situations involving the
low likelihood of encountering a rare
species, such as killer whales in the
GOM, through authorization of take of a
single group of average size (i.e.,
representing a single potential
encounter). See 83 FR 63268, December
7, 2018. See also 86 FR 29090, May 28,
2021 and 85 FR 55645, September 9,
2020. For the reasons expressed above,
NMFS determined that a single
encounter of killer whales is more likely
than the model-generated estimates and
has authorized take associated with a
single group encounter (i.e., up to seven
animals).
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 5438, January 19,
2021).
The take numbers for authorization
are determined as described above in
the Summary of Request and Analysis
section. Subsequently, the total
incidents of harassment for each species
are multiplied by scalar ratios to
produce a derived product that better
reflects the number of individuals likely
to be taken within a survey (as
compared to the total number of
instances of take), accounting for the
likelihood that some individual marine
mammals may be taken on more than 1
day (see 86 FR 5404, January 19, 2021).
The output of this scaling, where
appropriate, is incorporated into
adjusted total take estimates that are the
basis for NMFS’ small numbers
determinations, as depicted in Table 1.
This product is used by NMFS in
making the necessary small numbers
determinations through comparison
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with the best available abundance
estimates (see discussion at 86 FR 5391,
January 19, 2021). For this comparison,
NMFS’ approach is to use the maximum
theoretical population, determined
through review of current stock
assessment reports (SAR; https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/marine-
mammal-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 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
take
Species
Rice’s whale 3 ...................................................................................................
Sperm whale ....................................................................................................
Kogia spp. ........................................................................................................
Beaked whales ................................................................................................
Rough-toothed dolphin ....................................................................................
Bottlenose dolphin ...........................................................................................
Clymene dolphin ..............................................................................................
Atlantic spotted dolphin ...................................................................................
Pantropical spotted dolphin .............................................................................
Spinner dolphin ................................................................................................
Striped dolphin .................................................................................................
Fraser’s dolphin ...............................................................................................
Risso’s dolphin .................................................................................................
Melon-headed whale .......................................................................................
Pygmy killer whale ...........................................................................................
False killer whale .............................................................................................
Killer whale ......................................................................................................
Short-finned pilot whale ...................................................................................
0
371
4 206
3,338
590
5 21
1,533
0
15,216
357
796
257
252
1,014
488
553
7
80
Scaled take 1
n/a
156.9
60.0
337.2
169.3
6.0
439.9
n/a
4,366.9
102.5
228.5
73.8
74.3
299.3
144.0
163.0
n/a
23.7
Abundance 2
51
2,207
4,373
3,768
4,853
176,108
11,895
74,785
102,361
25,114
5,229
1,665
3,764
7,003
2,126
3,204
267
1,981
Percent
abundance
n/a
7.1
1.8
8.9
3.5
0.0
3.7
n/a
4.3
0.4
4.4
4.4
2.0
4.3
6.8
5.1
2.6
1.2
1 Scalar ratios were applied to ‘‘Authorized Take’’ values as described at 86 FR 5322, 5404 (January 19, 2021) to derive scaled take numbers
shown here.
2 Best abundance estimate. For most taxa, the best abundance estimate for purposes of comparison with take estimates is considered here to
be the model-predicted abundance (Roberts et al., 2016). For those taxa where a density surface model predicting abundance by month was
produced, the maximum mean seasonal abundance was used. For those taxa where abundance is not predicted by month, only mean annual
abundance is available. For Rice’s whale and killer whale, the larger estimated SAR abundance estimate is used.
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).
4 Includes 19 takes by Level A harassment and 187 takes by Level B harassment. Scalar ratio is applied to takes by Level B harassment only;
small numbers determination made on basis of scaled Level B harassment take plus authorized Level A harassment take.
5 Modeled take of 16 increased to account for potential encounter with group of average size (Maze-Foley and Mullin, 2006).
Based on the analysis contained
herein of Chevron’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.
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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
Chevron authorizing the take of marine
mammals incidental to its geophysical
survey activity, as described above.
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Dated: June 15, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. 2023–13195 Filed 6–20–23; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[RTID 0648–XD032]
Takes of Marine Mammals Incidental to
Specified Activities; Taking Marine
Mammals Incidental to Site
Characterization Surveys Offshore
From Massachusetts to New Jersey for
Vineyard Northeast, LLC
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
AGENCY:
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Notice; proposed incidental
harassment authorization (IHA); request
for comments on proposed
authorization and possible renewal.
ACTION:
NMFS has received a request
from Vineyard Northeast, LLC (Vineyard
Northeast) for authorization to take
marine mammals incidental to marine
site characterization surveys offshore
from Massachusetts to New Jersey in the
Bureau of Ocean Energy Management
(BOEM) Commercial Lease of
Submerged Lands for Renewable Energy
Development on the Outer Continental
Shelf Lease Areas OCS–A 0522 and
OCS–A 0544 (Lease Areas) and
associated offshore export cable corridor
(OECC) routes.
DATES: Comments and information must
be received no later than July 21, 2023.
ADDRESSES: Comments should be
addressed to Jolie Harrison, Chief,
Permits and Conservation Division,
Office of Protected Resources, National
Marine Fisheries Service. Written
SUMMARY:
E:\FR\FM\21JNN1.SGM
21JNN1
]]>Agencies
[Federal Register Volume 88, Number 118 (Wednesday, June 21, 2023)]
[Notices]
[Pages 40209-40212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13195]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD091]
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 Chevron U.S.A.
Inc. (Chevron) for the take of marine mammals incidental to geophysical
survey activity in the Gulf of Mexico.
DATES: The LOA is effective from August 10, 2023, through January 2,
2024.
ADDRESSES: The LOA, LOA request, and supporting documentation are
available online at: https://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
[[Page 40210]]
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
Chevron plans to conduct a 3D ocean bottom node (OBN) survey over
Walker Ridge Lease Blocks 758, 759, and 802, and the surrounding
approximately 90 lease blocks, with approximate water depths ranging
from approximately 2,000 to 2,400 meters (m). See Chevron's LOA
application for a map of the area. Chevron anticipates using a single
dual source vessel, towing airgun array sources consisting of 42
elements, with a total volume of 5,380 cubic inches (in\3\). Please see
Chevron's application for additional detail.
Consistent with the preamble to the final rule, the survey effort
proposed by Chevron in its LOA request was used to develop LOA-specific
take estimates based on the acoustic exposure modeling results
described in the preamble (86 FR 5398, January 19, 2021). In order to
generate the appropriate take number for authorization, the following
information was considered: (1) survey type; (2) location (by modeling
zone); \1\ (3) number of days; and (4) season.\2\ The acoustic exposure
modeling performed in support of the rule provides 24-hour exposure
estimates for each species, specific to each modeled survey type in
each zone and season.
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\1\ For purposes of acoustic exposure modeling, the GOM was
divided into seven zones. Zone 1 is not included in the geographic
scope of the rule.
\2\ For purposes of acoustic exposure modeling, seasons include
Winter (December-March) and Summer (April-November).
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No 3D OBN surveys were included in the modeled survey types, and
use of existing proxies (i.e., 2D, 3D NAZ, 3D WAZ, Coil) is generally
conservative for use in evaluation of 3D OBN survey effort, largely due
to the greater area covered by the modeled proxies. Summary
descriptions of these modeled survey geometries are available in the
preamble to the proposed rule (83 FR 29212, 29220, June 22, 2018). Coil
was selected as the best available proxy survey type in this case
because the spatial coverage of the planned survey is most similar to
the coil survey pattern. The planned 3D OBN survey will involve a
single source vessel sailing along closely spaced survey lines that are
approximately 100-150 m apart and approximately 40 kilometers (km) in
length. The coil survey pattern was assumed to cover approximately 144
kilometers squared (km\2\) per day (compared with approximately 795
km\2\, 199 km\2\, and 845 km\2\ per day for the 2D, 3D NAZ, and 3D WAZ
survey patterns, respectively). Among the different parameters of the
modeled survey patterns (e.g., area covered, line spacing, number of
sources, shot interval, total simulated pulses), NMFS considers area
covered per day to be most influential on daily modeled exposures
exceeding Level B harassment criteria. Although Chevron is not
proposing to perform a survey using the coil geometry, its planned 3D
OBN survey is expected to cover approximately 10 km\2\ per day, meaning
that the coil proxy is most representative of the effort planned by
Chevron in terms of predicted Level B harassment exposures.
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 the airgun
array (43 elements, 5,380 in\3\), as compared to the source modeled for
the rule.
The survey will take place over approximately 90 days, including 75
days of sound source operation. The entire survey would occur within
Zone 7. Chevron plans to conduct 25 survey days in the ``Summer''
season and 50 days in the ``Winter'' season.
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. Thus, although the modeling conducted for
the rule is a natural starting point for estimating take, the rule
acknowledged that other information could be considered (see, e.g., 86
FR 5442, January 19, 2021), discussing the need to provide flexibility
and make efficient use of previous public and agency review of other
information and identifying that additional public review is not
necessary unless the model or inputs used differ substantively from
those that were previously reviewed by NMFS and the public. For this
survey, NMFS has
[[Page 40211]]
other relevant information reviewed during the rulemaking that
indicates use of the acoustic exposure modeling to generate a take
estimate for one marine mammal species produces results inconsistent
with what is known regarding its occurrence in the GOM. Accordingly, we
have adjusted the calculated take estimates for the species as
described below.
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; https://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).\3\ 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
5334 (January 19, 2021), and similarly informs our analysis here.
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\3\ 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 encounters 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 4 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 (>700
m). This survey would take place in deep waters that would overlap with
depths in which killer whales typically occur. 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 5403, January 19, 2021).
In past authorizations, NMFS has often addressed situations
involving the low likelihood of encountering a rare species, such as
killer whales in the GOM, through authorization of take of a single
group of average size (i.e., representing a single potential
encounter). See 83 FR 63268, December 7, 2018. See also 86 FR 29090,
May 28, 2021 and 85 FR 55645, September 9, 2020. For the reasons
expressed above, NMFS determined that a single encounter of killer
whales is more likely than the model-generated estimates and has
authorized take associated with a single group encounter (i.e., up to
seven animals).
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 5438, January 19, 2021).
The take numbers for authorization are determined as described
above in the Summary of Request and Analysis section. Subsequently, the
total incidents of harassment for each species are multiplied by scalar
ratios to produce a derived product that better reflects the number of
individuals likely to be taken within a survey (as compared to the
total number of instances of take), accounting for the likelihood that
some individual marine mammals may be taken on more than 1 day (see 86
FR 5404, January 19, 2021). The output of this scaling, where
appropriate, is incorporated into adjusted total take estimates that
are the basis for NMFS' small numbers determinations, as depicted in
Table 1.
This product is used by NMFS in making the necessary small numbers
determinations through comparison
[[Page 40212]]
with the best available abundance estimates (see discussion at 86 FR
5391, January 19, 2021). For this comparison, NMFS' approach is to use
the maximum theoretical population, determined through review of
current stock assessment reports (SAR; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and
model-predicted abundance information (https://seamap.env.duke.edu/models/Duke/GOM/). For the latter, for taxa where a density surface
model could be produced, we use the maximum mean seasonal (i.e., 3-
month) abundance prediction for purposes of comparison as a
precautionary smoothing of month-to-month fluctuations and in
consideration of a corresponding lack of data in the literature
regarding seasonal distribution of marine mammals in the GOM.
Information supporting the small numbers determinations is provided in
Table 1.
Table 1--Take Analysis
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Authorized Scaled take Percent
Species take \1\ Abundance \2\ abundance
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Rice's whale \3\................................ 0 n/a 51 n/a
Sperm whale..................................... 371 156.9 2,207 7.1
Kogia spp....................................... \4\ 206 60.0 4,373 1.8
Beaked whales................................... 3,338 337.2 3,768 8.9
Rough-toothed dolphin........................... 590 169.3 4,853 3.5
Bottlenose dolphin.............................. \5\ 21 6.0 176,108 0.0
Clymene dolphin................................. 1,533 439.9 11,895 3.7
Atlantic spotted dolphin........................ 0 n/a 74,785 n/a
Pantropical spotted dolphin..................... 15,216 4,366.9 102,361 4.3
Spinner dolphin................................. 357 102.5 25,114 0.4
Striped dolphin................................. 796 228.5 5,229 4.4
Fraser's dolphin................................ 257 73.8 1,665 4.4
Risso's dolphin................................. 252 74.3 3,764 2.0
Melon-headed whale.............................. 1,014 299.3 7,003 4.3
Pygmy killer whale.............................. 488 144.0 2,126 6.8
False killer whale.............................. 553 163.0 3,204 5.1
Killer whale.................................... 7 n/a 267 2.6
Short-finned pilot whale........................ 80 23.7 1,981 1.2
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\1\ Scalar ratios were applied to ``Authorized Take'' values as described at 86 FR 5322, 5404 (January 19, 2021)
to derive scaled take numbers shown here.
\2\ Best abundance estimate. For most taxa, the best abundance estimate for purposes of comparison with take
estimates is considered here to be the model-predicted abundance (Roberts et al., 2016). For those taxa where
a density surface model predicting abundance by month was produced, the maximum mean seasonal abundance was
used. For those taxa where abundance is not predicted by month, only mean annual abundance is available. For
Rice's whale and killer whale, the larger estimated SAR abundance estimate is used.
\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).
\4\ Includes 19 takes by Level A harassment and 187 takes by Level B harassment. Scalar ratio is applied to
takes by Level B harassment only; small numbers determination made on basis of scaled Level B harassment take
plus authorized Level A harassment take.
\5\ Modeled take of 16 increased to account for potential encounter with group of average size (Maze-Foley and
Mullin, 2006).
Based on the analysis contained herein of Chevron'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 Chevron authorizing the take of marine mammals
incidental to its geophysical survey activity, as described above.
Dated: June 15, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-13195 Filed 6-20-23; 8:45 am]
BILLING CODE 3510-22-P
