[Federal Register Volume 86, Number 186 (Wednesday, September 29, 2021)]
[Notices]
[Pages 53947-53949]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21107]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB427]


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 re-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 re-issued to bp 
Exploration & Production Inc. (bp) for the take of marine mammals 
incidental to geophysical survey activity in the Gulf of Mexico.

DATES: The LOA is effective from September TBD, 2021, through April 19, 
2026.

[[Page 53948]]


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: 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). The 
rule was based on our findings that the total taking from the specified 
activities over the five-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.
    NMFS issued an LOA to bp on July 13, 2021, for the take of marine 
mammals incidental to zero offset vertical seismic profile (VSP) 
geophysical surveys planned to occur over approximately 5 years within 
existing bp prospects and/or fields, including the Mad Dog, Na Kika, 
Thunder Horse, and Atlantis prospects located in the Green Canyon (Mad 
Dog and Atlantis), Mississippi Canyon (Na Kika and Thunder Horse), and 
Atwater Valley (Atlantis) areas of the central GOM (see Figure 1 in 
bp's application). Please see the Federal Register notice of issuance 
(86 FR 38018; July 19, 2021) for additional detail regarding the LOA 
and the survey activity.
    Bp anticipates a total of 10 zero offset VSP surveys over the 
period of LOA effectiveness, with each survey expected to require 2 
days (total of 20 days over the period of effectiveness). Bp 
anticipates that no more than two surveys would occur in any one year. 
However, due to the potential for unforeseen circumstances that would 
require a longer duration to accomplish the survey objectives, bp 
indicated it may conduct up to seven zero offset VSP survey days in any 
one year. Since issuance of the LOA, no survey work has occurred.
    Consistent with the preamble to the final rule, the survey effort 
proposed by bp 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). These results 
provided an estimate of four killer whale Level B harassment events per 
year of zero offset VSP survey effort (based on the maximum seven days 
per year). Consistent with other situations involving the low 
likelihood of encounter for rare species such as killer whales in the 
GOM, NMFS authorized take of a single group of average size, which is 
seven (representing a single potential encounter) (Maze-Foley and 
Mullin, 2006). NMFS has reconsidered the available information and 
determined that no killer whale take is likely, and has re-issued the 
LOA to reflect this.
    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--
a rare GOM species--the model is informed by few data. The model's 
authors noted the expected non-uniform distribution of this rarely-
encountered species and expressed that, due to the limited killer whale 
data available to inform the model (because they are rare), it ``should 
be viewed cautiously'' (Roberts et al., 2015). Moreover, the rarity of 
encounter during seismic surveys is not likely to be the product of 
high bias on the probability of detection (86 FR 5322; January 19, 
2021). In addition, killer whales typically occur only in particularly 
deep water, which is not where the bp survey activity will take place.
    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. Based on this, NMFS 
determined that 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 addition (as 
noted in the notice of issuance for the LOA (86 FR 38018; July 19, 
2021)), differences

[[Page 53949]]

between available modeled survey geometries (i.e., 2D, 3D NAZ, 3D WAZ, 
Coil) and the subject zero offset VSP surveys, and the fact that all 
available acoustic exposure modeling results assume use of a 72 
element, 8,000 in\3\ array (compared with the 6-12 element, 2,400 in\3\ 
array planned for use by bp), mean that take estimate numbers for this 
particular survey based on the model are expected to be significantly 
conservative.
    Taking these considerations together with the fact that the 
estimated annual killer whale take numbers based on the model are low 
(less than the average group size) and that the annual survey effort 
for this LOA is of very brief duration, we conclude that no take of 
killer whales is likely to occur. Therefore, NMFS has re-issued the LOA 
with no authorization for take of killer whales. Authorized take 
numbers represented in the original notice of issuance are unchanged 
for all other species (see Table 1 below), and the determination that 
the taking is of no more than small numbers of marine mammals provided 
in the notice of issuance (86 FR 38018; July 19, 2021) remains valid.

                                   Table 1--Take Analysis, Zero Offset VSP LOA
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                                                         Annual authorized                          Percent
                        Species                               take \1\        Abundance \2\        abundance
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Sperm whale............................................                198              2,207                9.0
Kogia spp..............................................             \3\ 79              4,373                1.8
Beaked whales..........................................              1,120              3,768               29.7
Rough-toothed dolphin..................................                134              4,853                2.8
Bottlenose dolphin.....................................                681            176,108                0.4
Clymene dolphin........................................                449             11,895                3.8
Atlantic spotted dolphin...............................                258             74,785                0.3
Pantropical spotted dolphin............................              2,310            102,361                2.3
Spinner dolphin........................................                496             25,114                2.0
Striped dolphin........................................                182              5,229                3.5
Fraser's dolphin.......................................                 53              1,665                3.2
Risso's dolphin........................................                128              3,764                3.4
Melon-headed whale.....................................                290              7,003                4.1
Pygmy killer whale.....................................                 64              2,126                3.0
False killer whale.....................................                 96              3,204                3.0
Killer whale...........................................                  0                267                n/a
Short-finned pilot whale...............................                 77              1,981                3.9
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\1\ Scalar ratios were not applied in this case due to brief annual 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
  the killer whale, the larger estimated SAR abundance estimate is used.
\3\ Includes 2 annual takes by Level A harassment and 77 annual takes by Level B harassment.

Authorization

    NMFS has determined that the level of taking for the 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. NMFS has re-issued the 
LOA to bp authorizing the take of marine mammals incidental to its zero 
offset VSP geophysical survey activity, for the reasons described 
above.

    Dated: September 23, 2021.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2021-21107 Filed 9-28-21; 8:45 am]
BILLING CODE 3510-22-P