Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico, 17419-17422 [2024-05082]
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Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Notices
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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.
AGENCY:
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Notice of issuance of Letter of
Authorization.
ACTION:
In accordance with the
Marine Mammal Protection Act
(MMPA), as amended, its implementing
regulations, and NMFS’ MMPA
Regulations for Taking Marine
Mammals Incidental to Geophysical
Surveys Related to Oil and Gas
Activities in the Gulf of Mexico,
notification is hereby given that a Letter
of Authorization (LOA) has been issued
to Shell Offshore Inc. (Shell) for the take
of marine mammals incidental to
geophysical survey activity in the Gulf
of Mexico.
DATES: The LOA is effective from July 1,
2024 through June 30, 2025.
ADDRESSES: 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).
FOR FURTHER INFORMATION CONTACT:
Rachel Wachtendonk, Office of
Protected Resources, NMFS, (301) 427–
8401.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Background
Sections 101(a)(5)(A) and (D) of the
MMPA (16 U.S.C. 1361 et seq.) direct
the Secretary of Commerce to allow,
upon request, the incidental, but not
intentional, taking of small numbers of
marine mammals by U.S. citizens who
engage in a specified activity (other than
commercial fishing) within a specified
geographical region if certain findings
are made and either regulations are
issued or, if the taking is limited to
harassment, a notice of a proposed
authorization is provided to the public
for review.
An authorization for incidental
takings shall be granted if NMFS finds
that the taking will have a negligible
impact on the species or stock(s), will
not have an unmitigable adverse impact
on the availability of the species or
stock(s) for subsistence uses (where
relevant), and if the permissible
methods of taking and requirements
pertaining to the mitigation, monitoring
and reporting of such takings are set
forth. NMFS has defined ‘‘negligible
impact’’ in 50 CFR 216.103 as an impact
resulting from the specified activity that
cannot be reasonably expected to, and is
not reasonably likely to, adversely affect
the species or stock through effects on
annual rates of recruitment or survival.
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17419
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 U.S. waters of the Gulf of
Mexico (GOM) over the course of 5
years (86 FR 5322, January 19, 2021).
The rule was based on our findings that
the total taking from the specified
activities over the 5-year period will
have a negligible impact on the affected
species or stock(s) of marine mammals
and will not have an unmitigable
adverse impact on the availability of
those species or stocks for subsistence
uses. The rule became effective on April
19, 2021.
Our regulations at 50 CFR 217.180 et
seq. allow for the issuance of LOAs to
industry operators for the incidental
take of marine mammals during
geophysical survey activities and
prescribe the permissible methods of
taking and other means of effecting the
least practicable adverse impact on
marine mammal species or stocks and
their habitat (often referred to as
mitigation), as well as requirements
pertaining to the monitoring and
reporting of such taking. Under 50 CFR
217.186(e), issuance of an LOA shall be
based on a determination that the level
of taking will be consistent with the
findings made for the total taking
allowable under these regulations and a
determination that the amount of take
authorized under the LOA is of no more
than small numbers.
Summary of Request and Analysis
Shell plans to conduct a fourdimensional (4D) ocean bottom node
(OBN) survey over the Ursa
Development, Mississippi Canyon Lease
Block 809, and the surrounding lease
blocks. (Note that a 4D survey here
refers to a 3D survey that is repeated
over time.) Shell plans to use a 32element, 5,110 cubic inch (in3) airgun
array. Approximate water depths of the
survey area range from 600 to 1800
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meters (m). See section F of the LOA
application for a map of the area.
Consistent with the preamble to the
final rule, the survey effort proposed by
Shell in its LOA request was used to
develop LOA-specific take estimates
based on the acoustic exposure
modeling results described in the
preamble (86 FR 5398, January 19,
2021). In order to generate the
appropriate take numbers for
authorization, the following information
was considered: (1) survey type; (2)
location (by modeling zone 1); (3)
number of days; and (4) season.2 The
acoustic exposure modeling performed
in support of the rule provides 24-hour
exposure estimates for each species,
specific to each modeled survey type in
each zone and season.
No OBN surveys were included in the
modeled survey types, and use of
existing proxies (i.e., two-dimensional
(2D), three-dimensional (3D) narrowazimuth (NAZ), 3D wide-azimuth
(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
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 survey lines approximately 30
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
Shell is not proposing to perform a
survey using the coil geometry, its
planned 3D OBN survey is expected to
cover approximately 15.7 km2 per day,
meaning that the coil proxy is most
representative of the effort planned by
Shell in terms of predicted Level B
harassment exposures. In addition, all
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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available acoustic exposure modeling
results assume use of a 72-element,
8,000 in3 array. Thus, as discussed
above, estimated take numbers for this
LOA are considered conservative due to
differences between the airgun array (32
elements and 5,110 in3), and in daily
survey area planned by Shell (as
mentioned above), as compared to those
modeled for the rule.
The survey will take place over
approximately 80 days, including 63
days of sound source operation within
Zone 5. The seasonal distribution of
survey days is not known in advance.
Therefore, the take estimates for each
species are based on the season that
produces the greater value.
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 (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 Rice’s
whales and killer whales produces
results inconsistent with what is known
regarding their occurrence in the GOM.
Accordingly, we have adjusted the
calculated take estimates for those
species as described below.
NMFS’ final rule described a ‘‘core
habitat area’’ for Rice’s whales (formerly
known as GOM Bryde’s whales) 3
3 The final rule refers to the GOM Bryde’s whale
(Balaenoptera edeni). These whales were
subsequently described as a new species, Rice’s
whale (Balaenoptera ricei) (Rosel et al., 2021).
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located in the northeastern GOM in
waters between 100 and 400 m depth
along the continental shelf break (Rosel
et al., 2016). However, whaling records
suggest that Rice’s whales historically
had a broader distribution within
similar habitat parameters throughout
the GOM (Reeves et al., 2011; Rosel and
Wilcox, 2014). In addition, habitatbased density modeling has identified
similar habitat (i.e., approximately 100–
400 m water depths along the
continental shelf break) as being
potential Rice’s whale habitat (Roberts
et al., 2016; Garrison et al., 2023), and
Rice’s whales have been detected within
this depth band throughout the GOM
(Soldevilla et al., 2022, 2024). See
discussion provided at, e.g., 83 FR
29228, June 22, 2018; 83 FR 29280, June
22, 2018; 86 FR 5418, January 19, 2021.
Although Rice’s whales may occur
outside of the core habitat area, we
expect that any such occurrence would
be limited to the narrow band of
suitable habitat described above (i.e.,
100–400 m) and that, based on the few
available records, these occurrences
would be rare. Shell’s planned activities
will overlap this depth range, with
approximately 0.8 percent of the area
expected to be ensonified by the survey
above root-mean-squared pressure
received levels (RMS SPL) of 160
decibel (dB) (referenced to 1
micropascal (re 1 mPa)) overlapping the
100–400 m isobaths. Therefore, while
we expect take of Rice’s whale to be
unlikely, there is some reasonable
potential for take of Rice’s whale to
occur in association with this survey.
However, 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 Rice’s whales
would result in estimated take numbers
that are inconsistent with the
assumptions made in the rule regarding
expected Rice’s whale take (86 FR 5322,
January 19, 2021; 86 FR 5403, January
19, 2021).
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) represent the
output of models derived from multiyear 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
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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
to 2009 reported only 16 sightings of
killer whales, with an additional 3
encounters during more recent survey
effort from 2017 to 2018 (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).4 However, observational
data collected by protected species
observers (PSOs) on industry
geophysical survey vessels from 2002 to
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 and 86 FR 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 and 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. 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, January
19, 2021; 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 Rice’s or 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; 86 FR 29090, May 28, 2021; 85
FR 55645, September 9, 2020. For the
reasons expressed above, NMFS
determined that a single encounter of
Rice’s whales or killer whales is more
likely than the model-generated
estimates and has authorized take
associated with a single group
encounter (i.e., up to two animals for
Rice’s whale and up to seven animals
for killer whales).
Based on the results of our analysis,
NMFS has determined that the level of
taking authorized through the LOA is
consistent with the findings made for
the total taking allowable under the
regulations for the affected species or
stocks of marine mammals. See table 1
in this notice and table 9 of the rule (86
FR 5322, January 19, 2021).
Small Numbers Determination
Under the GOM rule, NMFS may not
authorize incidental take of marine
mammals in an LOA if it will exceed
‘‘small numbers.’’ In short, when an
acceptable estimate of the individual
marine mammals taken is available, if
the estimated number of individual
animals taken is up to, but not greater
than, one-third of the best available
abundance estimate, NMFS will
determine that the numbers of marine
mammals taken of a species or stock are
small. For more information please see
NMFS’ discussion of the MMPA’s small
numbers requirement provided in the
final rule (86 FR 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
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/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.
4 However, note that these species have been
observed over a greater range of water depths in the
GOM than have killer whales.
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TABLE 1—TAKE ANALYSIS
Authorized
take
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 ...................................................................................
2
1,657
3 626
7,314
1,258
5,959
3,539
2,380
16,058
4,303
1,382
397
1,040
2,325
547
870
7
673
Scaled take 1
n/a
700.9
190.4
738.7
360.9
1,710.1
1,015.6
683.1
4,608.7
1,234.9
396.7
114.0
306.7
685.9
161.4
256.8
n/a
198.4
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
3.9
31.8
5.1
19.6
7.4
1.0
8.5
0.9
4.5
4.9
7.6
6.8
8.1
9.8
7.6
8.0
2.6
10.0
1 Scalar ratios were applied to ‘‘Authorized Take’’ values as described at 86 FR 5322 and 86 FR 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 the killer whale, the larger estimated SAR abundance estimate is used.
3 Includes 33 takes by Level A harassment and 593 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.
Based on the analysis contained
herein of Shell’s proposed survey
activity described in its LOA
application and the anticipated take of
marine mammals, NMFS finds that
small numbers of marine mammals will
be taken relative to the affected species
or stock sizes (i.e., less than one-third of
the best available abundance estimate)
and therefore the taking is of no more
than small numbers.
NMFS has determined that the level
of taking for this LOA request is
consistent with the findings made for
the total taking allowable under the
incidental take regulations and that the
amount of take authorized under the
LOA is of no more than small numbers.
Accordingly, we have issued an LOA to
Shell authorizing the take of marine
mammals incidental to its geophysical
survey activity, as described above.
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Dated: March 5, 2024.
Catherine Marzin,
Deputy Director, Office of Protected
Resources, National Marine Fisheries Service.
[FR Doc. 2024–05082 Filed 3–8–24; 8:45 am]
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National Oceanic and Atmospheric
Administration
Agency Information Collection
Activities; Submission to the Office of
Management and Budget (OMB) for
Review and Approval; Comment
Request; Atlantic Highly Migratory
Species Vessel and Gear Marking
National Oceanic &
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of information collection,
request for comment.
AGENCY:
Authorization
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DEPARTMENT OF COMMERCE
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The Department of
Commerce, in accordance with the
Paperwork Reduction Act of 1995
(PRA), invites the general public and
other Federal agencies to comment on
proposed, and continuing information
collections, which helps us assess the
impact of our information collection
requirements and minimize the public’s
reporting burden. The purpose of this
notice is to allow for 60 days of public
comment preceding submission of the
collection to OMB.
DATES: To ensure consideration,
comments regarding this proposed
information collection must be received
on or before May 10, 2024.
ADDRESSES: Interested persons are
invited to submit written comments to
Adrienne Thomas, NOAA PRA Officer,
at Adrienne.thomas@noaa.gov. Please
SUMMARY:
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reference OMB Control Number 0648–
0373 in the subject line of your
comments. Do not submit Confidential
Business Information or otherwise
sensitive or protected information.
FOR FURTHER INFORMATION CONTACT:
Requests for additional information or
specific questions related to collection
activities should be directed to Clifford
Hutt, Fishery Management Specialist,
NOAA Fisheries Highly Migratory
Species Management Division, 1315
East-West Highway, SSMC3, Silver
Spring, MD 20910; 301–427–8542; or
cliff.hutt@noaa.gov.
SUPPLEMENTARY INFORMATION:
I. Abstract
This request is for an extension of a
current information collection. These
requirements apply to vessel owners in
the Atlantic highly migratory species
(HMS) Fishery. Under current
regulations at 50 CFR 635.6, fishing
vessels permitted for Atlantic HMS
fisheries must display their official
vessel numbers on their vessels.
Flotation devices and high-flyers
attached to certain fishing gears must
also be marked with the vessel’s official
number to identify the vessel to which
the gear belongs. These requirements are
necessary for identification, law
enforcement, and monitoring purposes.
Specifically, all vessel owners that
hold a valid Atlantic HMS permit under
50 CFR 635.4, other than an Atlantic
HMS Angling permit, are required to
E:\FR\FM\11MRN1.SGM
11MRN1
]]>Agencies
[Federal Register Volume 89, Number 48 (Monday, March 11, 2024)]
[Notices]
[Pages 17419-17422]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-05082]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD493]
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to Geophysical Surveys Related to Oil and Gas Activities in
the Gulf of Mexico
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of issuance of Letter of Authorization.
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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA), as
amended, its implementing regulations, and NMFS' MMPA Regulations for
Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil
and Gas Activities in the Gulf of Mexico, notification is hereby given
that a Letter of Authorization (LOA) has been issued to Shell Offshore
Inc. (Shell) for the take of marine mammals incidental to geophysical
survey activity in the Gulf of Mexico.
DATES: The LOA is effective from July 1, 2024 through June 30, 2025.
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: Rachel Wachtendonk, Office of
Protected Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce to allow, upon request, the
incidental, but not intentional, taking of small numbers of marine
mammals by U.S. citizens who engage in a specified activity (other than
commercial fishing) within a specified geographical region if certain
findings are made and either regulations are issued or, if the taking
is limited to harassment, a notice of a proposed authorization is
provided to the public for review.
An authorization for incidental takings shall be granted if NMFS
finds that the taking will have a negligible impact on the species or
stock(s), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (where
relevant), and if the permissible methods of taking and requirements
pertaining to the mitigation, monitoring and reporting of such takings
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103
as an impact resulting from the specified activity that cannot be
reasonably expected to, and is not reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as: any act of pursuit, torment, or
annoyance which: (i) has the potential to injure a marine mammal or
marine mammal stock in the wild (Level A harassment); or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).
On January 19, 2021, we issued a final rule with regulations to
govern the unintentional taking of marine mammals incidental to
geophysical survey activities conducted by oil and gas industry
operators, and those persons authorized to conduct activities on their
behalf (collectively ``industry operators''), in U.S. waters of the
Gulf of Mexico (GOM) over the course of 5 years (86 FR 5322, January
19, 2021). The rule was based on our findings that the total taking
from the specified activities over the 5-year period will have a
negligible impact on the affected species or stock(s) of marine mammals
and will not have an unmitigable adverse impact on the availability of
those species or stocks for subsistence uses. The rule became effective
on April 19, 2021.
Our regulations at 50 CFR 217.180 et seq. allow for the issuance of
LOAs to industry operators for the incidental take of marine mammals
during geophysical survey activities and prescribe the permissible
methods of taking and other means of effecting the least practicable
adverse impact on marine mammal species or stocks and their habitat
(often referred to as mitigation), as well as requirements pertaining
to the monitoring and reporting of such taking. Under 50 CFR
217.186(e), issuance of an LOA shall be based on a determination that
the level of taking will be consistent with the findings made for the
total taking allowable under these regulations and a determination that
the amount of take authorized under the LOA is of no more than small
numbers.
Summary of Request and Analysis
Shell plans to conduct a four-dimensional (4D) ocean bottom node
(OBN) survey over the Ursa Development, Mississippi Canyon Lease Block
809, and the surrounding lease blocks. (Note that a 4D survey here
refers to a 3D survey that is repeated over time.) Shell plans to use a
32-element, 5,110 cubic inch (in\3\) airgun array. Approximate water
depths of the survey area range from 600 to 1800
[[Page 17420]]
meters (m). See section F of the LOA application for a map of the area.
Consistent with the preamble to the final rule, the survey effort
proposed by Shell in its LOA request was used to develop LOA-specific
take estimates based on the acoustic exposure modeling results
described in the preamble (86 FR 5398, January 19, 2021). In order to
generate the appropriate take numbers for authorization, the following
information was considered: (1) survey type; (2) location (by modeling
zone \1\); (3) number of days; and (4) season.\2\ The acoustic exposure
modeling performed in support of the rule provides 24-hour exposure
estimates for each species, specific to each modeled survey type in
each zone and season.
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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 OBN surveys were included in the modeled survey types, and use
of existing proxies (i.e., two-dimensional (2D), three-dimensional (3D)
narrow-azimuth (NAZ), 3D wide-azimuth (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 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 survey lines approximately 30 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 Shell is not proposing
to perform a survey using the coil geometry, its planned 3D OBN survey
is expected to cover approximately 15.7 km\2\ per day, meaning that the
coil proxy is most representative of the effort planned by Shell in
terms of predicted Level B harassment exposures. In addition, all
available acoustic exposure modeling results assume use of a 72-
element, 8,000 in\3\ array. Thus, as discussed above, estimated take
numbers for this LOA are considered conservative due to differences
between the airgun array (32 elements and 5,110 in\3\), and in daily
survey area planned by Shell (as mentioned above), as compared to those
modeled for the rule.
The survey will take place over approximately 80 days, including 63
days of sound source operation within Zone 5. The seasonal distribution
of survey days is not known in advance. Therefore, the take estimates
for each species are based on the season that produces the greater
value.
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 (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 Rice's
whales and killer whales produces results inconsistent with what is
known regarding their occurrence in the GOM. Accordingly, we have
adjusted the calculated take estimates for those species as described
below.
NMFS' final rule described a ``core habitat area'' for Rice's
whales (formerly known as GOM Bryde's whales) \3\ located in the
northeastern GOM in waters between 100 and 400 m depth along the
continental shelf break (Rosel et al., 2016). However, whaling records
suggest that Rice's whales historically had a broader distribution
within similar habitat parameters throughout the GOM (Reeves et al.,
2011; Rosel and Wilcox, 2014). In addition, habitat-based density
modeling has identified similar habitat (i.e., approximately 100-400 m
water depths along the continental shelf break) as being potential
Rice's whale habitat (Roberts et al., 2016; Garrison et al., 2023), and
Rice's whales have been detected within this depth band throughout the
GOM (Soldevilla et al., 2022, 2024). See discussion provided at, e.g.,
83 FR 29228, June 22, 2018; 83 FR 29280, June 22, 2018; 86 FR 5418,
January 19, 2021.
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\3\ The final rule refers to the GOM Bryde's whale (Balaenoptera
edeni). These whales were subsequently described as a new species,
Rice's whale (Balaenoptera ricei) (Rosel et al., 2021).
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Although Rice's whales may occur outside of the core habitat area,
we expect that any such occurrence would be limited to the narrow band
of suitable habitat described above (i.e., 100-400 m) and that, based
on the few available records, these occurrences would be rare. Shell's
planned activities will overlap this depth range, with approximately
0.8 percent of the area expected to be ensonified by the survey above
root-mean-squared pressure received levels (RMS SPL) of 160 decibel
(dB) (referenced to 1 micropascal (re 1 [mu]Pa)) overlapping the 100-
400 m isobaths. Therefore, while we expect take of Rice's whale to be
unlikely, there is some reasonable potential for take of Rice's whale
to occur in association with this survey. However, 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
Rice's whales would result in estimated take numbers that are
inconsistent with the assumptions made in the rule regarding expected
Rice's whale take (86 FR 5322, January 19, 2021; 86 FR 5403, January
19, 2021).
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) 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
[[Page 17421]]
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 to 2009 reported only 16
sightings of killer whales, with an additional 3 encounters during more
recent survey effort from 2017 to 2018 (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).\4\ However, observational data collected by
protected species observers (PSOs) on industry geophysical survey
vessels from 2002 to 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 and 86 FR 5334 (January 19, 2021), and similarly informs
our analysis here.
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\4\ However, note that these species have been observed over a
greater range of water depths in the GOM than have killer whales.
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The rarity of encounter during seismic surveys is not likely to be
the product of high bias on the probability of detection. Unlike
certain cryptic species with high detection bias, such as Kogia spp. or
beaked whales, or deep-diving species with high availability bias, such
as beaked whales or sperm whales, killer whales are typically available
for detection when present and are easily observed. Roberts et al.
(2015) stated that availability is not a major factor affecting
detectability of killer whales from shipboard surveys, as they are not
a particularly long-diving species. Baird et al. (2005) reported that
mean dive durations for 41 fish-eating killer whales for dives greater
than or equal to 1 minute in duration was 2.3-2.4 minutes, and Hooker
et al. (2012) reported that killer whales spent 78 percent of their
time at depths between 0 and 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. 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, January 19, 2021; 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
Rice's or 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; 86 FR 29090, May 28,
2021; 85 FR 55645, September 9, 2020. For the reasons expressed above,
NMFS determined that a single encounter of Rice's whales or killer
whales is more likely than the model-generated estimates and has
authorized take associated with a single group encounter (i.e., up to
two animals for Rice's whale and up to seven animals for killer
whales).
Based on the results of our analysis, NMFS has determined that the
level of taking authorized through the LOA is consistent with the
findings made for the total taking allowable under the regulations for
the affected species or stocks of marine mammals. See table 1 in this
notice and table 9 of the rule (86 FR 5322, January 19, 2021).
Small Numbers Determination
Under the GOM rule, NMFS may not authorize incidental take of
marine mammals in an LOA if it will exceed ``small numbers.'' In short,
when an acceptable estimate of the individual marine mammals taken is
available, if the estimated number of individual animals taken is up
to, but not greater than, one-third of the best available abundance
estimate, NMFS will determine that the numbers of marine mammals taken
of a species or stock are small. For more information please see NMFS'
discussion of the MMPA's small numbers requirement provided in the
final rule (86 FR 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 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.
[[Page 17422]]
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.................................... 2 n/a 51 3.9
Sperm whale..................................... 1,657 700.9 2,207 31.8
Kogia spp....................................... \3\ 626 190.4 4,373 5.1
Beaked whales................................... 7,314 738.7 3,768 19.6
Rough-toothed dolphin........................... 1,258 360.9 4,853 7.4
Bottlenose dolphin.............................. 5,959 1,710.1 176,108 1.0
Clymene dolphin................................. 3,539 1,015.6 11,895 8.5
Atlantic spotted dolphin........................ 2,380 683.1 74,785 0.9
Pantropical spotted dolphin..................... 16,058 4,608.7 102,361 4.5
Spinner dolphin................................. 4,303 1,234.9 25,114 4.9
Striped dolphin................................. 1,382 396.7 5,229 7.6
Fraser's dolphin................................ 397 114.0 1,665 6.8
Risso's dolphin................................. 1,040 306.7 3,764 8.1
Melon-headed whale.............................. 2,325 685.9 7,003 9.8
Pygmy killer whale.............................. 547 161.4 2,126 7.6
False killer whale.............................. 870 256.8 3,204 8.0
Killer whale.................................... 7 n/a 267 2.6
Short-finned pilot whale........................ 673 198.4 1,981 10.0
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\1\ Scalar ratios were applied to ``Authorized Take'' values as described at 86 FR 5322 and 86 FR 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 the killer whale, the larger estimated SAR abundance estimate is used.
\3\ Includes 33 takes by Level A harassment and 593 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.
Based on the analysis contained herein of Shell's proposed survey
activity described in its LOA application and the anticipated take of
marine mammals, NMFS finds that small numbers of marine mammals will be
taken relative to the affected species or stock sizes (i.e., less than
one-third of the best available abundance estimate) and therefore the
taking is of no more than small numbers.
Authorization
NMFS has determined that the level of taking for this LOA request
is consistent with the findings made for the total taking allowable
under the incidental take regulations and that the amount of take
authorized under the LOA is of no more than small numbers. Accordingly,
we have issued an LOA to Shell authorizing the take of marine mammals
incidental to its geophysical survey activity, as described above.
Dated: March 5, 2024.
Catherine Marzin,
Deputy Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2024-05082 Filed 3-8-24; 8:45 am]
BILLING CODE 3510-22-P
