Notice2021-21935
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
October 7, 2021
Effective
January 1, 2022
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 three Letters of Authorization (LOA) have been 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 192 (Thursday, October 7, 2021)</title>
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[Federal Register Volume 86, Number 192 (Thursday, October 7, 2021)]
[Notices]
[Pages 55821-55825]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-21935]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XB404]
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 Letters 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 three Letters of Authorization (LOA) have been 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 LOAs are effective from January 1, 2022, through December
31, 2022.
ADDRESSES: The LOAs, LOA requests, 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
[[Page 55822]]
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
Bp plans to conduct three separate geophysical surveys, and
submitted an LOA request for each survey. Each survey is a 3D ocean
bottom node (OBN) survey within a distinct bp prospect area. The
surveys will occur within bp's Atlantis, Mad Dog, and Puma prospect
areas, respectively. See Table 1 and Figure 1 of the respective LOA
applications for more information regarding the location of these
areas.
For each survey, bp anticipates using an airgun array consisting of
32 elements, with a total volume of 5,110 cubic inches (in\3\). Please
see bp's applications for additional detail.
In addition to the previously described conventional airgun source
arrays, bp would also use a proprietary low-frequency source
(``Wolfspar'') to supplement the quantity and quality of data collected
during each survey. The Wolfspar source was not evaluated through the
rule. However, our rule anticipated the possibility of new and unusual
technologies (NUT) and determined they would be evaluated on a case-by
case basis (86 FR 5322, 5442; January 19, 2021). In this case, as
described below, our evaluation of the source leads to a conclusion
that no take of marine mammals is likely to occur as a result of the
source's use and, therefore, no additional review is necessary.
Wolfspar is a variable-frequency marine resonator that was
developed to image subsurface features that are challenging to
penetrate with other seismic sound sources. This source is designed to
produce ultra-low frequency (from 1.4-16 Hz, but typically used to
produce signals at 2-4 Hz) swept (non-impulsive) signals, and is used
in tandem with conventional airgun acoustic sources. The Wolfspar
source is towed at greater depth than conventional airgun sources (30-
60 m compared with approximately 8-12 m). The system was tested in
controlled environments in 2013-14, and an open-water system
integration test was conducted in the GOM in 2014. Field trials were
conducted in 2017-18. The Wolfspar source has since been used
consistently in association with bp's survey operations.
Wolfspar signal duration is tens of seconds, however, the total
output of the Wolfspar source is less compared to the output of a
typical large airgun array (1/1000th peak SPL; Dellinger et al., 2016).
Results of a sound source verification study conducted during the 2017-
18 at-sea trials showed that (1) Wolfspar signals were consistently
lower in amplitude than signals from the airgun array used in
conjunction with Wolfspar, with frequency content mostly outside marine
mammal hearing range, including their most susceptible hearing range
for noise-induced hearing loss, and (2) signal amplitude was low enough
that the Wolfspar source was often not detectable above background
sound levels. Measured 12-second sound exposure level weighted for low-
frequency cetaceans did not exceed 95 dB SEL (source level back-
calculated assuming spherical spreading). The source produces harmonics
(beyond the fundamental frequency of less than 17 Hz) of decreasing
spectral amplitude up to 100 Hz. However, harmonics are at lower
energy, and at higher frequencies (above the fundamental frequency) the
dominant noise source is not the device itself, but the hydraulic power
unit and the ship towing the device (absent concurrent use of
conventional airgun sources). For reference, the hypothesized
generalized hearing range of low-frequency cetaceans starts at 7 Hz,
while those of mid- and high-frequency cetaceans are much higher (150
and 275 Hz, respectively), and the point of greatest sensitivity (i.e.,
greatest susceptibility to noise-induced hearing loss) for these three
groups is 1.7, 24, and 42 kHz, respectively. Therefore, marine mammals
may not even detect the Wolfspar signals, much less suffer any
consequences from exposure.
Because the source levels are lower than those of concurrently used
airgun sources, and the frequency content of the signals is
predominantly outside the hearing range of any marine mammal, NMFS
concludes that use of the Wolfspar source presents no potential for
impacts to marine mammals additional to those caused through use of the
airgun array. Even absent concurrent airgun use, effects to marine
mammals from the Wolfspar source are unlikely. Due to the signal
characteristics of the sound source, i.e., slow rise time and
relatively low source levels, there is no potential for injury of
marine mammals unless they occur at very close distances to the source
(<10 m) for a prolonged continuous time period (i.e., implausible
circumstances). Broadband sounds produced by the vessel towing the
Wolfspar source are expected to dominate the perceived soundscape
(absent concurrent airgun use), masking sounds from Wolfspar at
frequencies audible to marine mammals. NMFS considers impacts to marine
mammals in association with use of the Wolfspar source to be
discountable.
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We also note that Wolfspar was assessed in 2017 as a NUT as part of
BOEM Permit L17-011 Mod 2, and accordingly underwent Endangered Species
Act (ESA) section 7 step-down review at that time. Subsequently,
Wolfspar was again evaluated as a NUT and evaluated through step-down
review under NMFS' 2020 Biological Opinion on the Federally Regulated
Oil and Gas Program Activities in the Gulf of Mexico in association
with BOEM Permit L20-026. As a result of this review, NMFS determined
that use of the source is unlikely to result in additional effects
beyond those previously considered in the 2020 Biological Opinion.
Consistent with the preamble to the final rule, the survey effort
proposed by bp in its LOA requests 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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Summary descriptions of the modeled survey geometries (i.e., 2D, 3D
NAZ, 3D WAZ, Coil) are available in the preamble to the proposed rule
(83 FR 29212, 29220; June 22, 2018). 3D NAZ was selected as the best
available proxy survey type. The OBN surveys will employ bottom-mounted
receivers, or ``nodes,'' used in conjunction with a vessel-towed
seismic source array. For each survey, bp will deploy up to 4,000 nodes
which, when fully deployed, will cover approximately 400 km\2\ of
seafloor for a survey that covers an approximate sea surface area of
1,200 km\2\. Two dual- or triple-source vessels will be used to produce
acoustic pulses at regular spatial intervals across the node grid. The
source vessels will survey along transect lines that extend through,
and 10 km beyond, the node grid on each site. Note that all available
acoustic exposure modeling results assume use of a 72-element, 8,000
in\3\ array. In this case, take numbers authorized through the LOAs are
considered conservative (i.e., they likely overestimate take) primarily
due to differences in the airgun arrays planned for use by bp as
compared to the array modeled for the rule.
Each survey will take place for up to 50 days. Each of the prospect
areas is located in the central GOM, roughly on the boundary of Zones 5
and 7. For each survey, it is assumed that 75 percent would occur in
Zone 5 and 25 percent in Zone 7. The described distribution was
selected based on the location of the prospect areas (the majority of
total prospect area coverage is in Zone 5, with some overlap into Zone
7). The season is not known in advance. 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). Because all three surveys are the
same in terms of location (i.e., within the same zones), duration, and
survey type, the following discussion and resulting take analysis in
Table 1 below apply to each survey.
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. 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 these surveys, 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 as described below.
Rice's whales (formerly known as GOM Bryde's whales) \3\ are
generally found within a small area in the northeastern GOM in waters
between 100-400 meters (m) depth along the continental shelf break
(Rosel et al., 2016). 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), and a NOAA survey reported observation of a Rice's whale in the
western GOM in 2017 (NMFS, 2018). 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 a ``core habitat area''
defined in the northeastern GOM (outside the scope of the rule)
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).
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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 it is possible that Rice's whales may occur outside of
their core habitat, NMFS expects that any such occurrence would be
limited to the narrow band of suitable habitat described above (i.e.,
100-400 m). Bp's planned activity will occur in water depths of
approximately 1,200-2,300 m in the central GOM. Based on that
information, NMFS does not expect there to be the reasonable potential
for take of Rice's whale in association with these surveys and,
accordingly, does not authorize take of Rice's whale through these
LOAs.
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
[[Page 55824]]
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; <a href="http://www.boem.gov/gommapps">www.boem.gov/gommapps</a>). 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. 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. 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 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 the reasons expressed
above, NMFS determined that a single encounter of killer whales is more
likely than the model-generated estimates and has authorized take
associated with a single killer whale group encounter (i.e., up to 7
animals) for each LOA.
Based on the results of our analysis, NMFS has determined that the
level of taking expected for each of these surveys and authorized
through the LOAs is consistent with the findings made for the total
taking allowable under the regulations. See Table 1 in this document
and Table 9 of the final rule (86 FR 5322; January 19, 2021).
Small Numbers Determinations
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 each authorization are determined as described
above. Subsequently, the total incidents of harassment for each species
may be 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 an
adjusted total take estimate that is 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 abundance
reports (SAR; <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and model-predicted abundance
information (<a href="https://seamap.env.duke.edu/models/Duke/GOM/">https://seamap.env.duke.edu/models/Duke/GOM/</a>). For the
latter, for taxa where a density surface model could be produced, we
use the maximum mean seasonal (i.e., three-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. (Note that, because take numbers for each of the
three surveys are the same, the small numbers analysis applies to each
survey).
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Table 1--Take Analysis per Survey/LOA
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Authorized Scaled take Percent
Species take \1\ Abundance \2\ abundance
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Rice's whale.................................... 0 n/a 51 n/a
Sperm whale..................................... 1,712 724.1 2,207 32.8
Kogia spp....................................... \3\ 635 215.4 4,373 4.9
Beaked whales................................... 8,404 848.8 3,768 22.5
Rough-toothed dolphin........................... 1,208 346.8 4,853 7.1
Bottlenose dolphin.............................. 5,689 1,632.9 176,108 0.9
Clymene dolphin................................. 3,823 1,097.3 11,895 9.2
Atlantic spotted dolphin........................ 2,205 632.8 74,785 0.8
Pantropical spotted dolphin..................... 19,751 5,668.4 102,361 5.5
Spinner dolphin................................. 4,211 1,208.6 25,114 4.8
Striped dolphin................................. 1,551 445.0 5,229 8.5
Fraser's dolphin................................ 448 128.5 1,665 7.7
Risso's dolphin................................. 1,089 321.3 3,764 8.5
Melon-headed whale.............................. 2,467 727.8 7,003 10.4
Pygmy killer whale.............................. 582 171.6 2,126 8.1
False killer whale.............................. 871 257.0 3,204 8
Killer whale.................................... 7 n/a 267 2.6
Short-finned pilot whale........................ 648 191.1 1,981 9.6
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\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 the killer whale, the larger estimated SAR abundance estimate is used.
\3\ Includes 17 takes by Level A harassment and 618 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 Level A harassment take.
Based on the analysis contained herein of bp's proposed survey
activity described in its LOA applications and the anticipated take of
marine mammals, NMFS finds that for each issued LOA small numbers of
marine mammals will 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 these LOA requests
is consistent with the findings made for the total taking allowable
under the incidental take regulations and that the amount of take
authorized under each of the LOAs is of no more than small numbers.
Accordingly, we have issued three LOAs to bp authorizing the take of
marine mammals incidental to its geophysical survey activity, as
described above.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2021-21935 Filed 10-6-21; 8:45 am]
BILLING CODE 3510-22-P
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