[Federal Register Volume 86, Number 137 (Wednesday, July 21, 2021)]
[Notices]
[Pages 38447-38450]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15453]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB249]


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 Letters 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 two Letters of Authorization (LOA) have 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 LOAs are effective from October 1, 2021, through March 31, 
2022, and from August 15, 2021, through December 15, 2021.

ADDRESSES: The LOAs, LOA requests, and supporting documentation are 
available online at: www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico. In case of problems accessing these documents, please call the 
contact listed below (see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Ben Laws, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: Any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).
    On January 19, 2021, we issued a final rule with regulations to 
govern the unintentional taking of marine mammals incidental to 
geophysical survey activities conducted by oil and gas industry 
operators, and those persons authorized to conduct activities on their 
behalf (collectively ``industry operators''), in Federal waters of the 
U.S. Gulf of Mexico (GOM) over the course of 5 years (86 FR 5322; 
January 19, 2021). The rule was based on our findings that the total 
taking from the specified activities over the 5-year period will have a 
negligible impact on the affected species or stock(s) of marine mammals 
and will not have an unmitigable adverse impact on the availability of 
those species or stocks for subsistence uses. The rule became effective 
on April 19, 2021.
    Our regulations at 50 CFR 217.180 et seq. allow for the issuance of 
LOAs to industry operators for the incidental take of marine mammals 
during geophysical survey activities and prescribe the permissible 
methods of taking and other means of effecting the least practicable 
adverse impact on marine mammal species or stocks and their habitat 
(often referred to as mitigation), as well as requirements pertaining 
to the monitoring and reporting of such taking. Under 50 CFR 
217.186(e), issuance of an LOA shall be based on a determination that 
the level of taking will be consistent with the findings made for the 
total taking allowable under these regulations and a determination that 
the amount of take authorized under the LOA is of no more than small 
numbers.

Summary of Request and Analysis

    Shell plans to conduct two separate geophysical surveys, and 
submitted an LOA request for each survey. The first survey is a 4D 
(time lapse) survey of Lease Block WR 508 and portions of the 
surrounding approximately 100 lease blocks in the Stones development 
area (Stones survey). The second survey would also be a 4D (time lapse) 
survey, and would cover Lease Block AC 857 and portions of the 
surrounding approximately 60 lease blocks in the Perdido development 
area (Perdido survey). See Section F of the respective LOA applications 
for maps of these areas.
    For the Stones survey survey, Shell anticipates using an airgun 
array consisting of 32 elements, with a total volume of 5,110 cubic 
inches (in\3\). For the Perdido survey, Shell anticipates using an 
airgun array with a total volume of 2,280 in\3\. Please see Shell's 
applications for additional detail.
    Consistent with the preamble to the final rule, the survey effort 
proposed by Shell in its LOA requests was used to develop LOA-specific 
take estimates based on the acoustic exposure modeling results 
described in the preamble (86 FR 5322, 5398; January 19, 2021). In 
order to generate the appropriate take number for authorization, the 
following information was considered: (1) Survey type; (2) location (by 
modeling zone \1\); (3) number of days; and (4) season.\2\ The acoustic 
exposure modeling performed in support of the rule provides 24-hour 
exposure estimates for each species, specific to each modeled survey 
type in each zone and season.
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    \1\ For purposes of acoustic exposure modeling, the GOM was 
divided into seven zones. Zone 1 is not included in the geographic 
scope of the rule.
    \2\ For purposes of acoustic exposure modeling, seasons include 
Winter (December-March) and Summer (April-November).
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    Summary descriptions of the modeled survey geometries (i.e., 2D, 3D 
NAZ, 3D WAZ, Coil) are available in the preamble to the proposed rule 
(83 FR 29212, 29220; June 22, 2018). 3D NAZ

[[Page 38448]]

was selected as the best available proxy survey type. The Stones survey 
will use a single source vessel with line spacing of 100 m and a shot 
interval of approximately 10.5 seconds. Although the 2D survey was the 
only exposure modeling scenario to use a single source vessel, the line 
spacing and shot interval represented by the 3D NAZ scenario make it 
most representative. The Perdido survey will also use a single source 
vessel, with source line spacing of 87.5 m and a shot interval of 
approximately 6 seconds. 3D NAZ is the most representative survey 
geometry for the same reasons discussed for the Stones survey. Note 
that all available acoustic exposure modeling results assume use of a 
72 element, 8,000 in\3\ array. In this case, take numbers authorized 
through the LOAs are considered conservative (i.e., they likely 
overestimate take) primarily due to differences in the airgun arrays 
planned for use by Shell (most notably the relatively small array 
planned for use in the Perdido survey), as compared to the array 
modeled for the rule.
    The Stones survey will take place over 95 days, including 65 days 
of sound source operation. The Perdido survey will take place over 60 
days, including 50 days of sound source operation. Both surveys will 
occur within Zone 7. For the Stones survey, the seasonal distribution 
of survey days is not known in advance. Therefore, the take estimates 
for each species are based on the winter season, which for all species 
produces the greater value. For the Perdido survey, it is assumed that, 
of the 50 survey days, 35 would occur during summer and 15 would occur 
during winter.
    For some species, take estimates based solely on the modeling 
yielded results that are not realistically likely to occur when 
considered in light of other relevant information available during the 
rulemaking process regarding marine mammal occurrence in the GOM. Thus, 
although the modeling conducted for the rule is a natural starting 
point for estimating take, our rule acknowledged that other information 
could be considered (see, e.g., 86 FR 5322, 5442 (January 19, 2021), 
discussing the need to provide flexibility and make efficient use of 
previous public and agency review of other information and identifying 
that additional public review is not necessary unless the model or 
inputs used differ substantively from those that were previously 
reviewed by NMFS and the public). For this survey, NMFS has other 
relevant information reviewed during the rulemaking that indicates use 
of the acoustic exposure modeling to generate a take estimate for 
certain marine mammal species produces results inconsistent with what 
is known regarding their occurrence in the GOM. Accordingly, we have 
adjusted the calculated take estimates as described below.
    Killer whales are the most rarely encountered species in the GOM, 
typically in deep waters of the central GOM (Roberts et al., 2015; 
Maze-Foley and Mullin, 2006). The approach used in the acoustic 
exposure modeling, in which seven modeling zones were defined over the 
U.S. GOM, necessarily averages fine-scale information about marine 
mammal distribution over the large area of each modeling zone. NMFS has 
determined that the approach results in unrealistic projections 
regarding the likelihood of encountering killer whales.
    As discussed in the final rule, the density models produced by 
Roberts et al. (2016) provide the best available scientific information 
regarding predicted density patterns of cetaceans in the U.S. GOM. The 
predictions represent the output of models derived from multi-year 
observations and associated environmental parameters that incorporate 
corrections for detection bias. However, in the case of killer whales, 
the model is informed by few data, as indicated by the coefficient of 
variation associated with the abundance predicted by the model (0.41, 
the second-highest of any GOM species model; Roberts et al., 2016). The 
model's authors noted the expected non-uniform distribution of this 
rarely-encountered species (as discussed above) and expressed that, due 
to the limited data available to inform the model, it ``should be 
viewed cautiously'' (Roberts et al., 2015).
    NOAA surveys in the GOM from 1992-2009 reported only 16 sightings 
of killer whales, with an additional three 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.
    In summary, killer whales are the most rarely encountered species 
in the GOM and typically occur only in particularly deep water. While 
this information is reflected through the density model informing the 
acoustic exposure modeling results, there is relatively high 
uncertainty associated with the model for this species, and the 
acoustic exposure modeling applies mean distribution data over areas 
where the species is in fact less likely to occur. NMFS' determination 
in reflection of the data discussed above, which informed the final 
rule, is that use of the generic acoustic exposure modeling results for 
killer whales will generally result in estimated take numbers that are 
inconsistent with the assumptions made in the rule regarding expected 
killer whale take (86 FR 5322, 5403; January 19, 2021).
    In past authorizations, NMFS has often addressed situations 
involving the low likelihood of encountering a rare species such as 
killer whales in the GOM through authorization of take of a

[[Page 38449]]

single group of average size (i.e., representing a single potential 
encounter). See 83 FR 63268, December 7, 2018. See also 86 FR 29090, 
May 28, 2021; 85 FR 55645, September 9, 2020. For the reasons expressed 
above, NMFS determined that a single encounter of killer whales is more 
likely than the model-generated estimates and has authorized take 
associated with a single killer whale group encounter (i.e., up to 7 
animals) for each LOA.
    Based on the results of our analysis, NMFS has determined that the 
level of taking expected for these surveys and authorized through the 
LOAs is consistent with the findings made for the total taking 
allowable under the regulations. See Tables 1 and 2 in this notice and 
Table 9 of the rule (86 FR 5322; January 19, 2021).

Small Numbers Determinations

    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 are determined as described 
above. Subsequently, the total incidents of harassment for each species 
may be 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 one day (see 86 FR 5322, 5404; January 19, 2021). 
The output of this scaling, where appropriate, is incorporated into an 
adjusted total take estimate that is the basis for NMFS' small numbers 
determinations, as depicted in Table 1 for Shell's Stones survey and in 
Table 2 for the Perdido survey.
    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 5322, 5391; January 19, 2021). For 
this comparison, NMFS' approach is to use the maximum theoretical 
population, determined through review of current stock abundance 
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., three-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 Tables 1 and 2.

                                       Table 1--Take Analysis, Stones LOA
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                                                    Authorized      Scaled take                       Percent
                     Species                           take             \1\        Abundance \2\     abundance
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Rice's whale \3\................................               0             n/a              51             n/a
Sperm whale.....................................             523           221.2           2,207            10.0
Kogia spp.......................................         \4\ 319           121.3           4,373             2.8
Beaked whales...................................           5,131           518.2           3,768            13.8
Rough-toothed dolphin...........................             712           204.3           4,853             4.2
Bottlenose dolphin..............................              23             6.6         176,108             0.0
Clymene dolphin.................................           2,227           639.1          11,895             5.4
Atlantic spotted dolphin........................               0             n/a          74,785             n/a
Pantropical spotted dolphin.....................          22,112         6,346.1         102,361             6.2
Spinner dolphin.................................             519           149.0          25,114             0.6
Striped dolphin.................................           1,157           332.1           5,229             6.4
Fraser's dolphin................................             399           114.5           1,665             6.9
Risso's dolphin.................................             365           107.7           3,764             2.9
Melon-headed whale..............................           1,572           463.7           7,003             6.6
Pygmy killer whale..............................             589           173.8           2,126             8.2
False killer whale..............................             667           196.8           3,204             6.1
Killer whale....................................               7             n/a             267             2.6
Short-finned pilot whale........................             125            36.9           1,981             1.9
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\1\ Scalar ratios were applied to ``Authorized Take'' values as described at 86 FR 5322, 5404 (January 19, 2021)
  to derive scaled take numbers shown here.
\2\ Best abundance estimate. For most taxa, the best abundance estimate for purposes of comparison with take
  estimates is considered here to be the model-predicted abundance (Roberts et al., 2016). For those taxa where
  a density surface model predicting abundance by month was produced, the maximum mean seasonal abundance was
  used. For those taxa where abundance is not predicted by month, only mean annual abundance is available. For
  the killer whale, the larger estimated SAR abundance estimate is used.
\3\ The final rule refers to the GOM Bryde's whale (Balaenoptera edeni). These whales were subsequently
  described as a new species, Rice's whale (Balaenoptera ricei) (Rosel et al., 2021).
\4\ Includes 11 takes by Level A harassment and 308 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 Level A harassment take.


                                       Table 2--Take Analysis, Perdido LOA
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                                                    Authorized      Scaled take                       Percent
                     Species                           take             \1\        Abundance \2\     abundance
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Rice's whale \3\................................               0             n/a              51             n/a
Sperm whale.....................................             377           159.5           2,207             7.2
Kogia spp.......................................         \4\ 227            88.0           4,373             2.0

[[Page 38450]]

 
Beaked whales...................................           3,793           383.1           3,768            10.2
Rough-toothed dolphin...........................             496           142.4           4,853             2.9
Bottlenose dolphin \5\..........................              21             n/a         176,108             0.0
Clymene dolphin.................................           1,521           436.5          11,895             3.7
Atlantic spotted dolphin........................               0             n/a          74,785             n/a
Pantropical spotted dolphin.....................          15,101         4,334.0         102,361             4.2
Spinner dolphin.................................             354           101.6          25,114             0.4
Striped dolphin.................................             790           226.7           5,229             4.3
Fraser's dolphin................................             281            80.6           1,665             4.8
Risso's dolphin.................................             249            73.5           3,764             2.0
Melon-headed whale..............................           1,109           327.2           7,003             4.7
Pygmy killer whale..............................             410           121.0           2,126             5.7
False killer whale..............................             464           136.9           3,204             4.3
Killer whale....................................               7             n/a             267             2.6
Short-finned pilot whale........................              88            26.0           1,981             1.3
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\1\ Scalar ratios were applied to ``Authorized Take'' values as described at 86 FR 5322, 5404 (January 19, 2021)
  to derive scaled take numbers shown here.
\2\ Best abundance estimate. For most taxa, the best abundance estimate for purposes of comparison with take
  estimates is considered here to be the model-predicted abundance (Roberts et al., 2016). For those taxa where
  a density surface model predicting abundance by month was produced, the maximum mean seasonal abundance was
  used. For those taxa where abundance is not predicted by month, only mean annual abundance is available. For
  the killer whale, the larger estimated SAR abundance estimate is used.
\3\ The final rule refers to the GOM Bryde's whale (Balaenoptera edeni). These whales were subsequently
  described as a new species, Rice's whale (Balaenoptera ricei) (Rosel et al., 2021).
\4\ Includes 9 takes by Level A harassment and 218 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
  Level A harassment take.
\5\ Modeled take of 16 increased to account for potential encounter with group of average size (Maze-Foley and
  Mullin, 2006).

    Based on the analysis contained herein of Shell's proposed survey 
activity described in its LOA applications 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 these LOA requests 
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 LOAs is of no more than small numbers. 
Accordingly, we have issued two LOAs to Shell authorizing the take of 
marine mammals incidental to its geophysical survey activity, as 
described above.

    Dated: July 14, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2021-15453 Filed 7-20-21; 8:45 am]
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