Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico, 41077-41080 [2023-13376]
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Federal Register / Vol. 88, No. 120 / Friday, June 23, 2023 / Notices
information will be available at
www.mafmc.org/council-events.
Council address: Mid-Atlantic Fishery
Management Council, 800 N. State
Street, Suite 201, Dover, DE 19901;
telephone: (302) 674–2331;
www.mafmc.org.
FOR FURTHER INFORMATION CONTACT:
Christopher M. Moore, Ph.D., Executive
Director, Mid-Atlantic Fishery
Management Council, telephone: (302)
526–5255.
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Highly Migratory Species (HMS)
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the meeting date.
Authority: 16 U.S.C. 1801 et seq.
Dated: June 20, 2023.
Rey Israel Marquez,
Acting Deputy Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. 2023–13413 Filed 6–22–23; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[RTID 0648–XD064]
Taking and Importing Marine
Mammals; Taking Marine Mammals
Incidental to Geophysical Surveys
Related to Oil and Gas Activities in the
Gulf of Mexico
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of issuance of Letter of
Authorization.
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AGENCY:
In accordance with the
Marine Mammal Protection Act
(MMPA), as amended, its implementing
regulations, and NMFS’ MMPA
SUMMARY:
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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 Murphy Exploration and Production
Company (Murphy) for the take of
marine mammals incidental to
geophysical survey activity in the Gulf
of Mexico.
DATES: The LOA is effective from July
14, 2023, through September 13, 2023.
ADDRESSES: The LOA, LOA request, and
supporting documentation are available
online at: www.fisheries.noaa.gov/
action/incidental-take-authorization-oiland-gas-industry-geophysical-surveyactivity-gulf-mexico. In case of problems
accessing these documents, please call
the contact listed below (see FOR
FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT:
Jenna Harlacher, 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
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41077
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
Murphy plans to conduct a zero offset
vertical seismic profile (VSP) survey
within Walker Ridge Block 425 in
approximately 2,700 m water depth.
Murphy plans to use a 6-element, 1,350
in3 airgun array. Please see Murphy’s
application for additional detail.
Consistent with the preamble to the
final rule, the survey effort proposed by
Murphy 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, January 19,
2021). In order to generate the
appropriate take number for
authorization, the following information
was considered: (1) survey type; (2)
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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, 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.
For the planned survey, the seismic
source array will be deployed from a
stationary drilling rig at or near the
borehole, with the seismic receivers
(i.e., geophones) deployed in the
borehole on wireline at specified depth
intervals. The coil survey pattern in the
model was assumed to cover
approximately 144 kilometers squared
(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. Because
Murphy’s planned survey would not
cover any additional area beyond that
ensonified by the stationary source, the
coil proxy is most representative of the
effort planned by Murphy in terms of
predicted Level B harassment.
In addition, all available acoustic
exposure modeling results assume use
of a 72 element, 8,000 in3 array. Thus,
estimated take numbers for this LOA are
considered conservative due to the
differences in the airgun array (6
elements; 1,350 in3), and in daily survey
area planned by Murphy (as mentioned
above), as compared to those modeled
for the rule.
The survey is planned to occur for 2
days during summer in Zone 7.
Therefore, the take estimates for each
species are based on the summer values
for the species.
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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Additionally, for some species, take
estimates based solely on the modeling
yielded results that are not realistically
likely to occur when considered in light
of other relevant information available
during the rulemaking process regarding
marine mammal occurrence in the
GOM. The approach used in the
acoustic exposure modeling, in which
seven modeling zones were defined over
the U.S. GOM, necessarily averages finescale information about marine mammal
distribution over the large area of each
modeling zone. This can result in
unrealistic projections regarding the
likelihood of encountering particularly
rare species and/or species not expected
to occur outside particular habitats.
Thus, although the modeling conducted
for the rule is a natural starting point for
estimating take, our rule acknowledged
that other information could be
considered (see, e.g., 86 FR 5322,
(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 killer whales
produces results inconsistent with what
is known regarding their occurrence in
the GOM. Accordingly, we have
adjusted the calculated take estimates
for that 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). 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
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limited data available to inform the
model, it ‘‘should be viewed cautiously’’
(Roberts et al., 2015).
NOAA surveys in the GOM from
1992–2009 reported only 16 sightings of
killer whales, with an additional 3
encounters during more recent survey
effort from 2017–18 (Waring et al., 2013;
www.boem.gov/gommapps). Two other
species were also observed on 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 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.
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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In summary, killer whales are the
most rarely encountered species in the
GOM and typically occur only in
particularly deep water. 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.
In addition, as noted above in relation
to the general take estimation
methodology, the assumed proxy source
(72-element, 8,000-in3 array) results in a
significant overestimate of the actual
potential for take to occur. NMFS’
determination in reflection of the
information discussed above, which
informed the final rule, is that use of the
generic acoustic exposure modeling
results for killer whales 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 one killer whale
exposure. Given the foregoing, it is
unlikely that any killer whales would be
encountered during this 2-day survey,
and accordingly no take of killer whales
is authorized through this LOA.
In addition, in this case, use of the
exposure modeling produces results that
are smaller than average GOM group
sizes for multiple species (Maze-Foley
and Mullin, 2006). NMFS’ typical
practice in such a situation is to
increase exposure estimates to the
assumed average group size for a species
in order to ensure that, if the species is
encountered, exposures will not exceed
the authorized take number. However,
other relevant considerations here lead
to a determination that increasing the
estimated exposures to average group
sizes would likely lead to an
overestimate of actual potential take. In
this circumstance, the very short survey
duration (maximum of 2 days) and
relatively small Level B harassment
isopleths likely to actually be produced
through use of the 6-element, 1,350-in3
airgun array (compared with the
modeled 72-element, 8,000 in3 array)
mean that it is unlikely that certain
species would be encountered at all,
much less that the encounter would
result in exposure of a greater number
of individuals than is estimated through
use of the exposure modeling results. As
a result, in this case NMFS has not
increased the estimated exposure values
to assumed average group sizes in
authorizing take.
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 for the affected species or
stocks of marine mammals. See Table 1
in this notice and Table 9 of the rule (86
FR 5322, January 19, 2021).
Small Numbers Determination
Under the GOM rule, NMFS may not
authorize incidental take of marine
mammals in an LOA if it will exceed
‘‘small numbers.’’ In short, when an
acceptable estimate of the individual
marine mammals taken is available, if
the estimated number of individual
animals taken is up to, but not greater
than, one-third of the best available
abundance estimate, NMFS will
determine that the numbers of marine
mammals taken of a species or stock are
small. For more information please see
NMFS’ discussion of the MMPA’s small
numbers requirement provided in the
final rule (86 FR 5322, 5438, January 19,
2021).
The take numbers for authorization,
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
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Species
Rice’s whale .................................................................................................................................
Sperm whale ................................................................................................................................
Kogia spp .....................................................................................................................................
Beaked whales ............................................................................................................................
Rough-toothed dolphin ................................................................................................................
Bottlenose dolphin .......................................................................................................................
Clymene dolphin ..........................................................................................................................
Atlantic spotted dolphin ...............................................................................................................
Pantropical spotted dolphin .........................................................................................................
Spinner dolphin ............................................................................................................................
Striped dolphin .............................................................................................................................
Fraser’s dolphin ...........................................................................................................................
Risso’s dolphin .............................................................................................................................
Melon-headed whale ...................................................................................................................
Pygmy killer whale .......................................................................................................................
False killer whale .........................................................................................................................
Killer whale ..................................................................................................................................
Short-finned pilot whale ...............................................................................................................
1 Scalar
0
10
5
87
15
0
3 38
0
381
39
3 20
37
36
3 26
3 12
3 14
0
32
ratios were not applied in this case due to brief survey duration.
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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
0.4
0.1
2.3
0.3
n/a
0.3
n/a
0.4
0.0
0.4
0.4
0.2
0.4
0.6
0.4
n/a
0.1
41080
Federal Register / Vol. 88, No. 120 / Friday, June 23, 2023 / Notices
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 Modeled exposure estimate less than assumed average group size (Maze-Foley and Mullin, 2006).
Based on the analysis contained
herein of Murphy’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
Murphy authorizing the take of marine
mammals incidental to its geophysical
survey activity, as described above.
Dated: June 20, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. 2023–13376 Filed 6–22–23; 8:45 am]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
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Agency Information Collection
Activities; Submission to the Office of
Management and Budget (OMB) for
Review and Approval; Comment
Request; Type-Approval Requirements
for Vessel Monitoring Systems
The Department of Commerce will
submit the following information
collection request to the Office of
Management and Budget (OMB) for
review and clearance in accordance
with the Paperwork Reduction Act of
1995, on or after the date of publication
of this notice. We invite 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. Public
comments were previously requested
via the Federal Register on February 13,
2023 (88 FR 9255) during a 60-day
comment period. This notice allows for
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an additional 30 days for public
comments.
Agency: National Oceanic &
Atmospheric Administration (NOAA),
Commerce.
Title: Type-Approval Requirements
for Vessel Monitoring Systems (VMS)
OMB Control Number: 0648–0789.
Form Number(s): None.
Type of Request: Regular submission
(extension of currently approved
collection).
Number of Respondents: 9.
Average Hours per Response: Initial
application: 80 hours; Changes to
existing type-approval: 24 hours;
Response to a type-approval revocation:
24 hours; Diagnostic and
troubleshooting support: 1,066 hours.
Total Annual Burden Hours: 8,680
hours.
Needs and Uses: This request is for
extension of a currently approved
information collection. The current
Code of Federal Regulations (CFR) at
title 50, part 600, subpart Q, sets forth
the requirements for Enhanced Mobile
Transceiver Units (EMTUs) to be typeapproved by NMFS for use in federal
fisheries programs. These EMTUs can
either be satellite-linked systems or
cellular-based hardware and software.
Respondents for type-approval of vessel
monitoring system (VMS) satellite- or
cellular-based systems must submit a
written type-approval request and
electronic copies of supporting
materials that include certain required
information. The National Marine
Fisheries Service (NMFS) Office of Law
Enforcement (OLE) uses the information
submitted to assess whether an EMTU
or EMTU–C meets minimum technical
specifications and can be approved for
use in the NMFS VMS program. The
information currently required to
accompany an application for typeapproval of VMS satellite-based systems
is set forth at 50 CFR 600.1502 through
600.1507. The information required for
type-approval of VMS cellular-based
systems will be substantially similar
and identical except where specifically
indicated (e.g., EMTU–Cs will not be
required to report the at-sea loss of
communications signals, as proposed in
50 CFR 600.1503(e)(5)).
Information requested in the typeapproval application for EMTU–Cs and
EMTUs includes the information
identified in 50 CFR 600, subpart Q,
more specifically, 50 CFR 600.1501
through 600.1509. This identified
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information is also embodied in the
Type-Approval Matrix form (available
from NMFS OLE) that can be used by a
respondent to more easily organize and
submit the required information in their
type-approval request to NMFS. The
information will include information
regarding: Characteristics of the EMTU–
C or EMTU, Associated entities
including manufacturer and sellers,
Communication functionalities, Data
formats, Data transmission details,
Latency requirements, Messaging
formats and transmission details,
Electronic forms, Data security,
Customer service, Durability, and
Applicant’s data handling requirements.
Affected Public: Business or other forprofit organizations.
Frequency: Variable. Estimated at
once every 5 years.
Respondent’s Obligation: Required to
obtain or retain benefits.
Legal Authority: The MagnusonStevens Fishery Conservation and
Management Act (Magnuson-Stevens
Act) requires that the National Marine
Fisheries Service (NMFS) and regional
fishery management councils prevent
overfishing and requires the collection
of reliable data essential to the effective
conservation, management, and
scientific understanding of the nation’s
fishery resources, including vessel
monitoring systems.
This information collection request
may be viewed at www.reginfo.gov.
Follow the instructions to view the
Department of Commerce collections
currently under review by OMB.
Written comments and
recommendations for the proposed
information collection should be
submitted within 30 days of the
publication of this notice on the
following website www.reginfo.gov/
public/do/PRAMain. Find this
particular information collection by
selecting ‘‘Currently under 30-day
Review—Open for Public Comments’’ or
by using the search function and
entering either the title of the collection
or the OMB Control Number 0648–0789.
Sheleen Dumas,
Department PRA Clearance Officer, Office of
the Under Secretary for Economic Affairs,
Commerce Department.
[FR Doc. 2023–13371 Filed 6–22–23; 8:45 am]
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]]>Agencies
[Federal Register Volume 88, Number 120 (Friday, June 23, 2023)]
[Notices]
[Pages 41077-41080]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13376]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD064]
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 Murphy
Exploration and Production Company (Murphy) for the take of marine
mammals incidental to geophysical survey activity in the Gulf of
Mexico.
DATES: The LOA is effective from July 14, 2023, through September 13,
2023.
ADDRESSES: The LOA, LOA request, and supporting documentation are
available online at: www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico. In case of problems accessing these documents, please call the
contact listed below (see FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Jenna Harlacher, 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
Murphy plans to conduct a zero offset vertical seismic profile
(VSP) survey within Walker Ridge Block 425 in approximately 2,700 m
water depth. Murphy plans to use a 6-element, 1,350 in\3\ airgun array.
Please see Murphy's application for additional detail.
Consistent with the preamble to the final rule, the survey effort
proposed by Murphy 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, January 19, 2021). In order to
generate the appropriate take number for authorization, the following
information was considered: (1) survey type; (2)
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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, 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.
For the planned survey, the seismic source array will be deployed
from a stationary drilling rig at or near the borehole, with the
seismic receivers (i.e., geophones) deployed in the borehole on
wireline at specified depth intervals. The coil survey pattern in the
model was assumed to cover approximately 144 kilometers squared (km\2\)
per day (compared with approximately 795 km\2\, 199 km\2\, and 845
km\2\ per day for the 2D, 3D NAZ, and 3D WAZ survey patterns,
respectively). Among the different parameters of the modeled survey
patterns (e.g., area covered, line spacing, number of sources, shot
interval, total simulated pulses), NMFS considers area covered per day
to be most influential on daily modeled exposures exceeding Level B
harassment criteria. Because Murphy's planned survey would not cover
any additional area beyond that ensonified by the stationary source,
the coil proxy is most representative of the effort planned by Murphy
in terms of predicted Level B harassment.
In addition, all available acoustic exposure modeling results
assume use of a 72 element, 8,000 in\3\ array. Thus, estimated take
numbers for this LOA are considered conservative due to the differences
in the airgun array (6 elements; 1,350 in\3\), and in daily survey area
planned by Murphy (as mentioned above), as compared to those modeled
for the rule.
The survey is planned to occur for 2 days during summer in Zone 7.
Therefore, the take estimates for each species are based on the summer
values for the species.
Additionally, for some species, take estimates based solely on the
modeling yielded results that are not realistically likely to occur
when considered in light of other relevant information available during
the rulemaking process regarding marine mammal occurrence in the GOM.
The approach used in the acoustic exposure modeling, in which seven
modeling zones were defined over the U.S. GOM, necessarily averages
fine-scale information about marine mammal distribution over the large
area of each modeling zone. This can result in unrealistic projections
regarding the likelihood of encountering particularly rare species and/
or species not expected to occur outside particular habitats. Thus,
although the modeling conducted for the rule is a natural starting
point for estimating take, our rule acknowledged that other information
could be considered (see, e.g., 86 FR 5322, (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
killer whales produces results inconsistent with what is known
regarding their occurrence in the GOM. Accordingly, we have adjusted
the calculated take estimates for that 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). As discussed in the final rule, the
density models produced by Roberts et al. (2016) provide the best
available scientific information regarding predicted density patterns
of cetaceans in the U.S. GOM. The predictions represent the output of
models derived from multi-year observations and associated
environmental parameters that incorporate corrections for detection
bias. However, in the case of killer whales, the model is informed by
few data, as indicated by the coefficient of variation associated with
the abundance predicted by the model (0.41, the second-highest of any
GOM species model; Roberts et al., 2016). The model's authors noted the
expected non-uniform distribution of this rarely-encountered species
(as discussed above) and expressed that, due to the limited data
available to inform the model, it ``should be viewed cautiously''
(Roberts et al., 2015).
NOAA surveys in the GOM from 1992-2009 reported only 16 sightings
of killer whales, with an additional 3 encounters during more recent
survey effort from 2017-18 (Waring et al., 2013; www.boem.gov/gommapps). Two other species were also observed on 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
5322, 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 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.
[[Page 41079]]
In summary, killer whales are the most rarely encountered species
in the GOM and typically occur only in particularly deep water. 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. In addition, as noted above in relation to the general
take estimation methodology, the assumed proxy source (72-element,
8,000-in\3\ array) results in a significant overestimate of the actual
potential for take to occur. NMFS' determination in reflection of the
information discussed above, which informed the final rule, is that use
of the generic acoustic exposure modeling results for killer whales
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 one killer whale
exposure. Given the foregoing, it is unlikely that any killer whales
would be encountered during this 2-day survey, and accordingly no take
of killer whales is authorized through this LOA.
In addition, in this case, use of the exposure modeling produces
results that are smaller than average GOM group sizes for multiple
species (Maze-Foley and Mullin, 2006). NMFS' typical practice in such a
situation is to increase exposure estimates to the assumed average
group size for a species in order to ensure that, if the species is
encountered, exposures will not exceed the authorized take number.
However, other relevant considerations here lead to a determination
that increasing the estimated exposures to average group sizes would
likely lead to an overestimate of actual potential take. In this
circumstance, the very short survey duration (maximum of 2 days) and
relatively small Level B harassment isopleths likely to actually be
produced through use of the 6-element, 1,350-in\3\ airgun array
(compared with the modeled 72-element, 8,000 in\3\ array) mean that it
is unlikely that certain species would be encountered at all, much less
that the encounter would result in exposure of a greater number of
individuals than is estimated through use of the exposure modeling
results. As a result, in this case NMFS has not increased the estimated
exposure values to assumed average group sizes in authorizing take.
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 for the affected species or stocks of marine
mammals. See Table 1 in this notice and Table 9 of the rule (86 FR
5322, January 19, 2021).
Small Numbers Determination
Under the GOM rule, NMFS may not authorize incidental take of
marine mammals in an LOA if it will exceed ``small numbers.'' In short,
when an acceptable estimate of the individual marine mammals taken is
available, if the estimated number of individual animals taken is up
to, but not greater than, one-third of the best available abundance
estimate, NMFS will determine that the numbers of marine mammals taken
of a species or stock are small. For more information please see NMFS'
discussion of the MMPA's small numbers requirement provided in the
final rule (86 FR 5322, 5438, January 19, 2021).
The take numbers for authorization, which are determined as
described above, are used by NMFS in making the necessary small numbers
determinations through comparison with the best available abundance
estimates (see discussion at 86 FR 5322, 5391, January 19, 2021). For
this comparison, NMFS' approach is to use the maximum theoretical
population, determined through review of current stock assessment
reports (SAR; www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and model-predicted abundance
information (https://seamap.env.duke.edu/models/Duke/GOM/). For the
latter, for taxa where a density surface model could be produced, we
use the maximum mean seasonal (i.e., 3-month) abundance prediction for
purposes of comparison as a precautionary smoothing of month-to-month
fluctuations and in consideration of a corresponding lack of data in
the literature regarding seasonal distribution of marine mammals in the
GOM. Information supporting the small numbers determinations is
provided in Table 1.
Table 1--Take Analysis
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Authorized Percent
Species take \1\ Abundance \2\ abundance
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Rice's whale.................................................... 0 51 n/a
Sperm whale..................................................... 10 2,207 0.4
Kogia spp....................................................... 5 4,373 0.1
Beaked whales................................................... 87 3,768 2.3
Rough-toothed dolphin........................................... 15 4,853 0.3
Bottlenose dolphin.............................................. 0 176,108 n/a
Clymene dolphin................................................. \3\ 38 11,895 0.3
Atlantic spotted dolphin........................................ 0 74,785 n/a
Pantropical spotted dolphin..................................... 381 102,361 0.4
Spinner dolphin................................................. \3\ 9 25,114 0.0
Striped dolphin................................................. \3\ 20 5,229 0.4
Fraser's dolphin................................................ \3\ 7 1,665 0.4
Risso's dolphin................................................. \3\ 6 3,764 0.2
Melon-headed whale.............................................. \3\ 26 7,003 0.4
Pygmy killer whale.............................................. \3\ 12 2,126 0.6
False killer whale.............................................. \3\ 14 3,204 0.4
Killer whale.................................................... 0 267 n/a
Short-finned pilot whale........................................ \3\ 2 1,981 0.1
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\1\ Scalar ratios were not applied in this case due to brief survey duration.
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\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\ Modeled exposure estimate less than assumed average group size (Maze-Foley and Mullin, 2006).
Based on the analysis contained herein of Murphy'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 Murphy authorizing the take of marine mammals
incidental to its geophysical survey activity, as described above.
Dated: June 20, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-13376 Filed 6-22-23; 8:45 am]
BILLING CODE 3510-22-P
