[Federal Register Volume 88, Number 29 (Monday, February 13, 2023)]
[Notices]
[Pages 9256-9260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03037]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC708]


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

[[Page 9257]]

to CGG Inc. (CGG) for the take of marine mammals incidental to 
geophysical survey activity in the Gulf of Mexico.

DATES: The LOA is effective from February 8, 2023 through November 30, 
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: Rachel Wachtendonk, 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

    CGG plans to conduct a seismic survey with a proprietary test 
acquisition using an airgun as the sound source, covering portions of 
approximately 21 lease blocks. The airgun array consists of 9 elements, 
with a total volume of 1,650 cubic inches (in\3\). Please see CGG's 
application for additional detail.
    Consistent with the preamble to the final rule, the survey effort 
proposed by CGG 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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    The survey proposed by CGG was not included in the modeled survey 
types, however, use of existing proxies (i.e., 2D, 3D NAZ, 3D WAZ, 
Coil) is generally conservative for use in evaluation of 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). Coil was selected as the best available proxy survey type 
because the spatial coverage of the planned survey is most similar to 
that associated with the coil survey pattern.
    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. Although CGG 
is not proposing to perform a survey using the coil geometry, its 
planned survey is expected to cover approximately 4 km\2\ per day, 
meaning that the coil proxy is most representative of the effort 
planned by CGG 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, take numbers 
authorized through the LOA are considered conservative due to 
differences in both the airgun array (9 elements, 1,650 in\3\) and the 
daily survey area planned by CGG (4 km\2\), as compared to those 
modeled for the rule.
    The survey is planned to occur for 10 days in Zone 6, with airguns 
being used on 3 of the days. The season is defined as winter, however 
the period of effectiveness for the LOA covers both seasons, meaning 
that the survey could take place in any 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).
    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

[[Page 9258]]

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 certain marine mammal species 
produces results 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.
    NMFS' final rule described a ``core habitat area'' for Rice's 
whales (formerly known as GOM Bryde's whales) \3\ located in the 
northeastern GOM in waters between 100-400 m depth along the 
continental shelf break (Rosel et al., 2016). 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 29228, 83 FR 
29280 (June 22, 2018); 86 FR 5418 (January 19, 2021).
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    \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).
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    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. CGG's 
planned activities will occur in water depths of approximately 300-
1,000 m in the central GOM. Although there is limited overlap of the 
survey depths with potential Rice's whale habitat, due to the brief 
survey duration, as well as a much smaller airgun array and daily 
survey area planned compared to the model used to calculate possible 
take, the potential for exposure of this rare species is unlikely. 
Thus, although use of the acoustic exposure modeling produces an 
estimate of one Rice's whale exposure, NMFS does not expect there to be 
the reasonable potential for take of Rice's whale in association with 
this survey and, accordingly, does not authorize take of Rice's whale 
through the LOA.
    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 (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).\4\ 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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    \4\ 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 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 (>700 
m). This survey would take place, in part, in deep waters that would 
overlap with the depths that the GOM killer whales typically occur. 
However, due to the short duration of the survey and the relatively 
small geographic area it will cover in relation to suitable deep water 
habitat for killer whales, it is unlikely that killer whales would be 
encountered. 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

[[Page 9259]]

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 one 
killer whale exposure. Given the foregoing, it is unlikely that even 
one killer whale would be encountered during the 3-day seismic portion 
of the 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 
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....................................................               0              51             n/a
Sperm whale.....................................................              72           2,207            3.28
Kogia spp.......................................................          \3\ 16           4,373            0.37
Beaked whales...................................................             273           3,768            7.23
Rough-toothed dolphin...........................................              52           4,853            1.06
Bottlenose dolphin..............................................             152         176,108            0.09
Clymene dolphin.................................................             197          11,895            1.66
Atlantic spotted dolphin........................................              63          74,785            0.08
Pantropical spotted dolphin.....................................             456         102,361            0.45
Spinner dolphin.................................................           \4\ 0          25,114             n/a
Striped dolphin.................................................              51           5,229            0.97
Fraser's dolphin................................................           \5\ 0           1,665             n/a
Risso's dolphin.................................................              38           3,764            1.00
Melon-headed whale..............................................         \6\ 100           7,003            1.43
Pygmy killer whale..............................................              23           2,126            1.08
False killer whale..............................................              38           3,204            1.19
Killer whale....................................................               0             267             n/a
Short-finned pilot whale........................................              57           1,981            1.90
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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\ Includes 1 takes by Level A harassment and 15 takes by Level B harassment.
\4\ Modeled take of 11 decreased to 0. For spinner dolphin, use of the exposure modeling produces results that
  are smaller than the average GOM group size (i.e., estimated exposure value of 11, relative to assumed average
  group size of 152) (Maze-Foley and Mullin, 2006). NMFS' typical practice 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, given the very short survey duration and small estimated
  exposure value NMFS has determined that is unlikely the species would be encountered at all. As a result, in
  this case NMFS has not authorized take for this species.
\5\ Modeled take of 18 decreased to 0. For Fraser's dolphin, use of the exposure modeling produces results that
  are smaller than the average GOM group size (i.e., estimated exposure value of 18, relative to assumed average
  group size of 65) (Maze-Foley and Mullin, 2006). NMFS' typical practice 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, given the very short survey duration and small estimated
  exposure value NMFS has determined that is unlikely the species would be encountered at all. As a result, in
  this case NMFS has not authorized take for this species.
\6\ Modeled take of 98 increased to account for potential encounter with group of average size (Maze-Foley and
  Mullin, 2006).

    Based on the analysis contained herein of CGG'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

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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 CGG authorizing the take of marine mammals 
incidental to its geophysical survey activity, as described above.

    Dated: February 8, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-03037 Filed 2-10-23; 8:45 am]
BILLING CODE 3510-22-P