[Federal Register Volume 86, Number 181 (Wednesday, September 22, 2021)]
[Notices]
[Pages 52638-52641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20465]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB406]


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 Anadarko 
Petroleum Corporation (Anadarko) for the take of marine mammals 
incidental to geophysical survey activity in the Gulf of Mexico.

DATES: The LOA is effective from September 18, 2021 through March 17, 
2022.

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: Kim Corcoran, 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

[[Page 52639]]

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

    Anadarko plans to conduct a zero offset vertical seismic profile 
(VSP) survey after reaching total depth at Lease Block 129 in the 
Mississippi Canyon. (See map in Section F of Anadarko's application.) 
Anadarko plans to use one of four possible airgun arrays for this 
survey: A 12-element array, with a total volume of 2,400 cubic inches 
(in\3\); an array consisting of 6 elements with total volume of 1,500 
in\3\; an array consisting of 6 elements, with a total volume of 1,200 
in\3\; or an array consisting of 8 elements with a total volume of 
1,170 in\3\. Please see Anadarko's application for additional detail.
    Consistent with the preamble to the final rule, the survey effort 
proposed by Anadarko in its LOA request was used to develop LOA-
specific take estimates based on the acoustic exposure modeling results 
described in the preamble (86 FR 5322, 5398; January 19, 2021). In 
order to generate the appropriate take number for authorization, the 
following information was considered: (1) Survey type; (2) location (by 
modeling zone \1\); (3) number of days; and (4) season.\2\ The acoustic 
exposure modeling performed in support of the rule provides 24-hour 
exposure estimates for each species, specific to each modeled survey 
type in each zone and season.
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    \1\ For purposes of acoustic exposure modeling, the GOM was 
divided into seven zones. Zone 1 is not included in the geographic 
scope of the rule.
    \2\ For purposes of acoustic exposure modeling, seasons include 
Winter (December-March) and Summer (April-November).
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    No VSP surveys were included in the modeled survey types, and use 
of existing proxies (i.e., 2D, 3D NAZ, 3D WAZ, Coil) is generally 
conservative for use in evaluation of VSP survey effort. Summary 
descriptions of these modeled survey geometries are available in the 
preamble to the proposed rule (83 FR 29212, 29220; June 22, 2018). Zero 
offset VSP surveys are significantly different from modeled survey 
geometries in that they are conducted from a stationary or near-
stationary deployment very close to an active drilling platform. For 
this survey, the seismic source array will be deployed from a drillship 
at or near the borehole, with the seismic receivers (i.e., geophones) 
deployed in the borehole on wireline at specified depth intervals. Use 
of the 2D proxy for zero offset VSP surveys is expected to be 
significantly conservative. In addition, 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 LOA are 
considered very conservative (i.e., they likely overestimate take) due 
to differences in both the airgun array and the survey geometry planned 
by Anadarko, as compared to those modeled for the rule. The survey is 
planned to occur for 5 days in Zone 5. Although the survey is planned 
to occur in September 2021, the LOA is effective from September 18, 
2021-March 17, 2022 to account for potential delay. Therefore, the take 
estimates for each species are based on the season that has the greater 
value for the species (i.e., winter or summer).
    For some species, take estimates based solely on the modeling 
yielded results that are not realistically likely to occur when 
considered in light of other relevant information available during the 
rulemaking process regarding marine mammal occurrence in the GOM. Thus, 
although the modeling conducted for the rule is a natural starting 
point for estimating take, our rule acknowledged that other information 
could be considered (see, e.g., 86 FR 5322, 5442 (January 19, 2021), 
discussing the need to provide flexibility and make efficient use of 
previous public and agency review of other information and identifying 
that additional public review is not necessary unless the model or 
inputs used differ substantively from those that were previously 
reviewed by NMFS and the public). For this survey, NMFS has other 
relevant information reviewed during the rulemaking that indicates use 
of the acoustic exposure modeling to generate a take estimate for 
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). 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

[[Page 52640]]

(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 meters (m). Similarly, Kvadsheim et al. 
(2012) reported data from a study of four killer whales, noting that 
the whales performed 20 times as many dives 1-30 m in depth than to 
deeper waters, with an average depth during those most common dives of 
approximately 3 m.
    In summary, killer whales are the most rarely encountered species 
in the GOM and typically occur only in particularly deep water. While 
this information is reflected through the density model informing the 
acoustic exposure modeling results, there is relatively high 
uncertainty associated with the model for this species, and the 
acoustic exposure modeling applies mean distribution data over areas 
where the species is in fact less likely to occur. NMFS' determination 
in reflection of the data discussed above, which informed the final 
rule, is that use of the generic acoustic exposure modeling results for 
killer whales will generally result in estimated take numbers that are 
inconsistent with the assumptions made in the rule regarding expected 
killer whale take (86 FR 5322, 5403; January 19, 2021). In this case, 
use of the acoustic exposure modeling produces an estimate of three 
killer whale exposures. Given the foregoing, it is unlikely that even 
one killer whale would be encountered during this 5-day survey, and 
accordingly no take of killer whales is authorized through this LOA.
    Based on the results of our analysis, NMFS has determined that the 
level of taking expected for this survey and authorized through the LOA 
is consistent with the findings made for the total taking allowable 
under the regulations. See Table 1 in this notice and Table 9 of the 
final 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 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., 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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Bryde's whale \3\...............................................               0              51             n/a
Kogia sp........................................................          \4\ 66           4,373             1.5
Beaked whales...................................................             944           3,768            25.1
Bottlenose dolphin..............................................             648         176,108             0.4
Short-finned pilot whale........................................              70           1,981             3.5
Sperm whale.....................................................             178           2,207             8.1
Atlantic spotted dolphin........................................             245          74,785             0.3

[[Page 52641]]

 
Clymene dolphin.................................................             379          11,895             3.2
False killer whale..............................................              78           3,204             2.4
Fraser's dolphin................................................          \5\ 65           1,665             2.5
Killer whale....................................................               0             267             n/a
Melon-headed whale..............................................             243           7,003             3.5
Pantropical spotted dolphin.....................................           1,719         102,361             1.7
Pygmy killer whale..............................................              49           2,126             2.3
Risso's dolphin.................................................             114           3,764             3.0
Rough-toothed dolphin...........................................             113           4,853             2.3
Spinner dolphin.................................................             461          25,114             1.8
Striped dolphin.................................................             148           5,229             2.8
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\1\ Scalar ratios were not applied in this case due to brief survey duration.
\2\ Best abundance estimate. For most taxa, the best abundance estimate for purposes of comparison with take
  estimates is considered here to be the model-predicted abundance (Roberts et al., 2016). For those taxa where
  a density surface model predicting abundance by month was produced, the maximum mean seasonal abundance was
  used. For those taxa where abundance is not predicted by month, only mean annual abundance is available. For
  Rice's whale and killer whale, the larger estimated SAR abundance estimate is used.
\3\ The final rule refers to the GOM Bryde's whale (Balaenoptera edeni). These whales were subsequently
  described as a new species, Rice's whale (Balaenoptera ricei) (Rosel et al., 2021).
\4\ Includes 1 take by Level A harassment and 65 takes by Level B harassment.
\5\ Modeled take of 41 increased to account for potential encounter with group of average size (Maze-Foley and
  Mullin, 2006).

    Based on the analysis contained herein of Anadarko'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 Anadarko authorizing the take of marine 
mammals incidental to its geophysical survey activity, as described 
above.

    Dated: September 16, 2021.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2021-20465 Filed 9-21-21; 8:45 am]
BILLING CODE 3510-22-P