[Federal Register Volume 87, Number 138 (Wednesday, July 20, 2022)]
[Notices]
[Pages 43243-43246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15476]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC186]


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.

-----------------------------------------------------------------------

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 TGS-NOPEC 
Geophysical Company (TGS) for the take of marine mammals incidental to 
geophysical survey activity in the Gulf of Mexico.

DATES: The LOA is effective from September 15, 2022, through September 
14, 2023.

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; 
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

    TGS plans to conduct a 3D ocean bottom node (OBN) survey in the 
Mississippi Canyon, Atwater Valley, Green Canyon, Ewing Bank, and South 
Timbalier lease areas, with approximate water depths ranging from 130 
to 2,000 meters (m). See Figure 1 of the LOA application for a map of 
the area.
    TGS anticipates using two triple source vessels, towing airgun 
array sources consisting of 28 elements, with a total volume of 5,200 
cubic inches (in\3\). Please see TGS's application for additional 
detail.
    Consistent with the preamble to the final rule, the survey effort 
proposed by TGS 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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    No 3D OBN 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 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 29212, 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 two 
source vessels sailing along survey lines approximately 75 km

[[Page 43244]]

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 TGS is not proposing to perform a survey 
using the coil geometry, its planned 3D OBN survey is expected to cover 
approximately 120-140 km2 per day, meaning that the coil 
proxy is most representative of the effort planned by TGS in terms of 
predicted Level B harassment exposures.
    In addition, all available acoustic exposure modeling results 
assume use of a 72-element, 8,000 in3 array. Thus, estimated 
take numbers for this LOA are considered conservative due to 
differences between the airgun array planned for use (28 elements, 
5,200 in3) and the proxy array modeled for the rule.
    The survey will take place over approximately 119 days, including 
65 days of sound source operation, all 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.
    Additionally, 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 (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 that are 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.
    Rice's whales (formerly known as GOM Bryde's whales) \3\ are mostly 
found in a ``core habitat area'' located in the northeastern GOM in 
waters between 100-400 m depth along the continental shelf break (Rosel 
et al., 2016). (Note that this core habitat area is outside the scope 
of the rule.) 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 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), although the core habitat area contained 
approximately 92 percent of the predicted abundance of Rice's whales. 
See discussion provided at, e.g., 83 FR 29212, 29228, 29280 (June 22, 
2018); 86 FR 5322, 5418 (January 19, 2021).
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    There are few data on Rice's whale occurrence outside of the 
northeastern GOM core habitat area. There were two sightings of 
unidentified large baleen whales (recorded as Balaenoptera sp. or 
Bryde's/sei whale) in 1992 in the western GOM during systematic survey 
effort and, more recently, a NOAA survey reported observation of a 
Rice's whale in the western GOM in 2017 (NMFS, 2018). There were five 
potential sightings of Rice's whales by protected species observers 
(PSOs) aboard industry geophysical survey vessels west of New Orleans 
from 2010-2014, all within the 200-400 m isobaths (Rosel et al., 2021). 
In addition, sporadic, year-round recordings of Rice's whale calls were 
made south of Louisiana within approximately the same depth range 
between 2016 and 2017 (Soldevilla et al., in press).
    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. TGS's 
planned activities will overlap this depth range, with approximately 18 
percent of the area expected to be ensonified by the survey above root-
mean-squared pressure received levels (RMS SPL) of 160 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, 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) 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 
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 less than 20 
occasions during the 1992-2009 NOAA surveys (Fraser's dolphin and false 
killer whale \4\). However,

[[Page 43245]]

observational data collected by 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.
---------------------------------------------------------------------------

    \4\ However, note that these species have been observed over a 
greater range of water depths in the GOM than have killer whales.
---------------------------------------------------------------------------

    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 to 1-30 m 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. 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 for this survey 
would 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 
Rice's whales 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. See also 86 FR 
29090; May 28, 2021 and 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 2 and 7 animals, respectively).
    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 5322, 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 one day (see 
86 FR 5322, 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 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
----------------------------------------------------------------------------------------------------------------
                                                    Authorized      Scaled take                       Percent
                     Species                           take             \1\        Abundance \2\     abundance
----------------------------------------------------------------------------------------------------------------
Rice's whale....................................               2             n/a              51             3.9
Sperm whale.....................................           1,710           723.2           2,207            32.8
Kogia spp.......................................          646\3\           196.5           4,373             5.3
Beaked whales...................................           7,546           762.1           3,768            20.2
Rough-toothed dolphin...........................           1,297           372.4           4,853             7.7
Bottlenose dolphin..............................           6,148         1,764.4         176,108             1.0

[[Page 43246]]

 
Clymene dolphin.................................           3,651         1,047.8          11,895             8.8
Atlantic spotted dolphin........................           2,456           704.8          74,785             0.9
Pantropical spotted dolphin.....................          16,568         4,755.0         102,361             4.6
Spinner dolphin.................................           4,439         1,274.1          25,114             5.1
Striped dolphin.................................           1,426           409.3           5,229             7.8
Fraser's dolphin................................             410           117.7           1,665             7.1
Risso's dolphin.................................           1,073           316.4           3,764             8.4
Melon-headed whale..............................           2,399           707.6           7,003            10.1
Pygmy killer whale..............................             565           166.5           2,126             7.8
False killer whale..............................             898           264.9           3,204             8.3
Killer whale....................................               7             n/a             267             2.6
Short-finned pilot whale........................             694           204.7           1,981            10.3
----------------------------------------------------------------------------------------------------------------
\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
  Rice's whale and killer whale, the larger estimated SAR abundance estimate is used.
\3\ Includes 34 takes by Level A harassment and 612 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 TGS'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 TGS authorizing the take of marine mammals 
incidental to its geophysical survey activity, as described above.

    Dated: July 14, 2022.
Catherine G. Marzin,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2022-15476 Filed 7-19-22; 8:45 am]
BILLING CODE 3510-22-P