[Federal Register Volume 87, Number 245 (Thursday, December 22, 2022)]
[Notices]
[Pages 78652-78655]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27777]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC530]


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 LLOG 
Exploration Offshore, L.L.C. (LLOG) for the take of marine mammals 
incidental to geophysical survey activity in the Gulf of Mexico.

DATES: The LOA is effective from January 1, 2023, through December 31, 
2024.

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:

[[Page 78653]]

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

    LLOG plans to conduct one of the following vertical seismic profile 
(VSP) survey types: Zero Offset, Offset, Walkaway VSP, and/or 
Checkshots within Keathley Canyon Block 736. See Section G of LLOG's 
application for a map. LLOG plans to use either a 12-element, 2,400 
cubic inch (in\3\) airgun array, or a 6-element, 1,500 in\3\ airgun 
array. Please see LLOG's application for additional detail.
    Consistent with the preamble to the final rule, the survey effort 
proposed by LLOG 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 LLOG's VSP 
survey because the spatial coverage of the planned surveys is most 
similar to the coil survey pattern. For the planned survey, the seismic 
source array will be deployed in one of the following forms: Zero 
Offset VSP--deployed from a drilling rig at or near the borehole, with 
the seismic receivers (i.e., geophones) deployed in the borehole on 
wireline at specified depth intervals; Offset VSP--in a fixed position 
deployed from a supply vessel on an offset position; Walkaway VSP--
attached to a line, or a series of lines, towed by a supply vessel; or 
3D VSP--moving along a spiral or line swaths towed by a supply vessel 
or using a source vessel. All possible source assemblages except for 3D 
VSP will be stationary. If 3D VSP is used as the survey design, the 
area that would be covered would be up to three times the total depth 
of the well centered around the well head. The coil survey pattern in 
the model 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. Because LLOG's planned survey is expected to cover 
no additional area as a stationary source, or up to three times the 
total depth of the well centered around the well head, the coil proxy 
is most representative of the effort planned by LLOG in terms of 
predicted Level B harassment.
    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 (12 or 6 elements, 2,400 or 1,500 in\3\), and 
in daily survey area planned by LLOG (as mentioned above), as compared 
to those modeled for the rule.
    The survey is planned to occur for a maximum of 5 days in Zone 7. 
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).
    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

[[Page 78654]]

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 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). 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 3 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 \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 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-in\3\ 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 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 
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; 85 FR 55645, September 9, 2020. For LLOG's survey, use of 
the exposure modeling produces an estimate of four killer whale 
exposures. Given the foregoing discussion, 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 the LLOG 
LOA.
    In addition, in this case, use of the exposure modeling produces 
results that are smaller than average GOM group sizes for multiple 
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 (maximum of 5 days) and 
relatively small Level B harassment isopleths produced through use of 
the (at worst) 12-element, 2,400-in\3\ airgun array (compared with the 
modeled 72-element, 8,000 in\3\ array) mean 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, in this case NMFS has not increased the estimated exposure 
values to assumed average group sizes in authorizing take.

[[Page 78655]]

    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, 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....................................................           \4\ 0              51             n/a
Sperm whale.....................................................              26           2,207             1.2
Kogia spp.......................................................          \3\ 15           4,373             0.3
Beaked whales...................................................             234           3,768             6.2
Rough-toothed dolphin...........................................              43           4,853             0.9
Bottlenose dolphin..............................................           \4\ 1         176,108               0
Clymene dolphin.................................................             115          11,895               1
Atlantic spotted dolphin........................................           \4\ 0          74,785             n/a
Pantropical spotted dolphin.....................................           1,139         102,361             1.1
Spinner dolphin.................................................          \4\ 27          25,114             0.1
Striped dolphin.................................................              60           5,229             1.1
Fraser's dolphin................................................          \4\ 19           1,665             1.1
Risso's dolphin.................................................              18           3,764             0.5
Melon-headed whale..............................................          \4\ 74           7,003             1.1
Pygmy killer whale..............................................              36           2,126             1.7
False killer whale..............................................              41           3,204             1.3
Killer whale....................................................           \4\ 0             267             n/a
Short-finned pilot whale........................................           \4\ 6           1,981             0.3
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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 the killer whale, the larger estimated SAR abundance estimate is used.
\3\ Includes 1 take by Level A harassment and 14 takes by Level B harassment.
\4\ Modeled exposure estimate less than assumed average group size (Maze-Foley and Mullin, 2006).

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

    Dated: December 16, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-27777 Filed 12-21-22; 8:45 am]
BILLING CODE 3510-22-P