Notice2021-21107
Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 29, 2021
Effective
April 19, 2026
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
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.
Full Text
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<title>Federal Register, Volume 86 Issue 186 (Wednesday, September 29, 2021)</title>
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[Federal Register Volume 86, Number 186 (Wednesday, September 29, 2021)]
[Notices]
[Pages 53947-53949]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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: <a href="http://www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico">www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico</a>. 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
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</html>Indexed from Federal Register on September 29, 2021.
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