[Federal Register Volume 87, Number 47 (Thursday, March 10, 2022)]
[Notices]
[Pages 13717-13719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05104]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB813]


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 BHP Billiton 
Petroleum (Deepwater) Inc. for the take of marine mammals incidental to 
geophysical survey activity in the Gulf of Mexico.

DATES: The LOA is effective from March 7, 2022 through September 7, 
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 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

    BHP Billiton Petroleum (Deepwater) Inc. (BHP) plans to conduct a 
zero offset vertical seismic profile (VSP) survey and borehole seismic 
survey within the Green Canyon Block 124, Well number 002. See 
attachment 5 of BHP's application for a map. BHP plans to use a 6-
element, 2,400 cubic inch (in\3\) airgun array. Please see BHP's 
application for additional detail.
    Consistent with the preamble to the final rule, the survey effort 
proposed by BHP 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 these survey types. Summary 
descriptions of these modeled survey geometries are available in the 
preamble to the proposed rule (83 FR 29212, 29220; June 22, 2018). Coil 
was selected as the best available proxy survey type for BHP's survey 
because the spatial coverage of the planned

[[Page 13718]]

survey is most similar to the coil survey pattern. For the planned zero 
offset VSP survey, the source will be hung off of the drilling rig with 
a crane at a depth of 10 feet (3.05 meters) underwater, with seismic 
receivers (i.e., geophones) being deployed within the borehole on 
wireline at specified depth intervals. The offset source will be 
deployed from the vessel in a fixed position and will alternate firing 
with the zero offset source. Both sources will be stationary and thus 
cover no area. 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. BHP's planned 
survey will utilize a stationary source and, therefore, the coil proxy 
is most representative of the effort planned by BHP 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, estimated take 
numbers for this LOA are considered conservative due to the differences 
in both the airgun array (6 elements, 2,400 in\3\), and in daily survey 
area planned by BHP (as mentioned above), as compared to those modeled 
for the rule.
    The survey is planned to occur for 2 days in Zone 5. The survey may 
occur in either season. 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).
    In this case, use of exposure modeling produces results that are 
substantially smaller than average GOM group sizes for multiple species 
\3\ (i.e., estimated exposure values are less than 10 percent of 
assumed average group size for the majority of species) (Maze-Foley and 
Mullin, 2006). NMFS' typical practice in such a situation is to 
increase exposure estimates to the assumed average group size for a 
species in order to ensure that, if the species is encountered, 
exposures will not exceed the authorized take number. However, other 
relevant considerations here lead to a determination that increasing 
the estimated exposures to average group sizes would likely lead to an 
overestimate of actual potential take. In this circumstance, the very 
short survey duration and relatively small Level B harassment isopleths 
produced through use of the VSP and borehole survey means that it is 
unlikely that certain species would be encountered at all, much less 
that the encounter would result in exposure of a greater number of 
individuals than is estimated through use of the exposure modeling 
results. As a result, NMFS has not increased the estimated exposure 
values to assumed group sizes in authorizing take in this case.
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    \3\ Species include: Short-finned pilot whale, sperm whale, 
Clymene dolphin, melon-headed whale, pantropical spotted dolphin, 
spinner dolphin and striped dolphin.
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    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. See 
Table 1 in this notice and Table 9 of the rule (86 FR 5322; January 19, 
2021).

Small Numbers Determination

    Under the GOM rule, NMFS may not authorize incidental take of 
marine mammals in an LOA if it will exceed ``small numbers.'' In short, 
when an acceptable estimate of the individual marine mammals taken is 
available, if the estimated number of individual animals taken is up 
to, but not greater than, one-third of the best available abundance 
estimate, NMFS will determine that the numbers of marine mammals taken 
of a species or stock are small. For more information please see NMFS' 
discussion of the MMPA's small numbers requirement provided in the 
final rule (86 FR 5322, 5438; January 19, 2021).
    The take numbers for authorization, which are determined as 
described above, are used by NMFS in making the necessary small numbers 
determinations, through comparison with the best available abundance 
estimates (see discussion at 86 FR 5322, 5391; January 19, 2021). For 
this comparison, NMFS' approach is to use the maximum theoretical 
population, determined through review of current stock assessment 
reports (SAR; www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and model-predicted abundance 
information (https://seamap.env.duke.edu/models/Duke/GOM/). For the 
latter, for taxa where a density surface model could be produced, we 
use the maximum mean seasonal (i.e., 3-month) abundance prediction for 
purposes of comparison as a precautionary smoothing of month-to-month 
fluctuations and in consideration of a corresponding lack of data in 
the literature regarding seasonal distribution of marine mammals in the 
GOM. Information supporting the small numbers determinations is 
provided in Table 1.

                                             Table 1--Take Analysis
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                                                                    Authorized                        Percent
                             Species                                 take \1\      Abundance \2\     abundance
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Rice's whale \3\................................................               0              51             n/a
Sperm whale.....................................................               2           2,207             0.1
Kogia spp.......................................................           \4\ 0           4,373             n/a
Beaked whales...................................................              32           3,768             0.8
Rough-toothed dolphin...........................................           \4\ 0           4,853             n/a
Bottlenose dolphin..............................................               3         176,108             0.0
Clymene dolphin.................................................               2          11,895             0.0
Atlantic spotted dolphin........................................               1          74,785             0.0
Pantropical spotted dolphin.....................................               7         102,361             0.0
Spinner dolphin.................................................               2          25,114             0.0
Striped dolphin.................................................               1           5,229             0.0
Fraser's dolphin................................................           \4\ 0           1,665             n/a
Risso's dolphin.................................................           \4\ 0           3,764             n/a
Melon-headed whale..............................................               1           7,003             0.0
Pygmy killer whale..............................................           \4\ 0           2,126             n/a

[[Page 13719]]

 
False killer whale..............................................           \4\ 0           3,204             n/a
Killer whale....................................................           \4\ 0             267             n/a
Short-finned pilot whale........................................           \4\ 0           1,981             n/a
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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
  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\ Modeled take produced a non-zero number which was rounded down to zero.

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

    Dated: March 7, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-05104 Filed 3-9-22; 8:45 am]
BILLING CODE 3510-22-P