Notice2022-01918
Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico
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Published
January 31, 2022
Effective
April 20, 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 a Letter of Authorization (LOA) has been issued to TotalEnergies E&P USA, Inc. (TotalEnergies) 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 87 Issue 20 (Monday, January 31, 2022)</title>
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[Federal Register Volume 87, Number 20 (Monday, January 31, 2022)]
[Notices]
[Pages 4866-4869]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-01918]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XB742]
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 TotalEnergies
E&P USA, Inc. (TotalEnergies) for the take of marine mammals incidental
to geophysical survey activity in the Gulf of Mexico.
DATES: The LOA is effective from April 20, 2022, through April 19,
2023.
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).
[[Page 4867]]
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
TotalEnergies plans to conduct a 3D ocean bottom node (OBN) survey
within the North Platte field. The survey area is located in Garden
Banks, Green Canyon, Keathley Canyon, and Walker Ridge lease areas with
approximate water depths ranging from 725 to 2,180 meters (m). See
Figure 1 of the LOA application for a map of the area.
TotalEnergies anticipates using two source vessels, each towing up
to three airgun arrays operating in an alternating manner. Each source
array will consist of up to 28 elements, with a total volume of 5,200
cubic inches (in\3\). Please see TotalEnergies' application for
additional detail.
Consistent with the preamble to the final rule, the survey effort
proposed by TotalEnergies 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 3D OBN surveys were included in the modeled survey types, and
use of existing proxies (i.e., 2D, 3D NAZ, 3D WAZ, Coil) is generally
conservative for use in evaluation of 3D OBN survey effort, largely due
to the greater area covered by the modeled proxies. Summary
descriptions of these modeled survey geometries are available in the
preamble to the proposed rule (83 FR 29212, 29220; June 22, 2018). Coil
was selected as the best available proxy survey type in this case,
because the spatial coverage of the planned survey is most similar to
the coil survey pattern. The planned 3D OBN surveys will each involve
source vessels sailing along closely spaced survey lines approximately
50 km in length, completing 2-3 lines per day. The path taken by the
vessels to cover these lines will mean that consecutive survey lines
sailed will be 1,200 m apart. The coil survey pattern 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 TotalEnergies is not proposing specifically to
perform a survey using the coil geometry, its planned 3D OBN survey is
expected to cover approximately 74 km\2\ per day, meaning that the coil
proxy is most representative of the effort planned by TotalEnergies 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, estimated take
numbers for this LOA are considered conservative due to differences in
both the airgun array (28 elements, 5,200 in\3\) and the daily survey
area planned by TotalEnergies (74 km\2\), as compared to those modeled
for the rule.
The survey will take place over 100 days, including 65 days of
sound source operation. The survey will occur within Zone 5.
TotalEnergies expects that the survey would occur entirely within the
Summer season. However, it is possible that the survey could occur
within Winter and, therefore, the take estimates for each species are
based on the season that produces 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 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.
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 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
[[Page 4868]]
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). TotalEnergies' planned activities will occur in water
depths of approximately 725-2,180 m in the central GOM. Thus, 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 this 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 can result 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; <a href="http://www.boem.gov/gommapps">www.boem.gov/gommapps</a>). Two other species were also observed on less than 20
occasions during the 1992-2009 NOAA surveys (Fraser's dolphin and false
killer whale \4\). However, 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 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. 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 would result in high 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).
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. See
Table 1 in this notice and Table 9 of the rule (86 FR 5322; January 19,
2021).
Small Numbers Determination
Under the GOM rule, NMFS may not authorize incidental take of
marine mammals in an LOA if it will exceed ``small numbers.'' In short,
when an acceptable estimate of the individual marine mammals taken is
available, if the estimated number of individual animals taken is up
to, but not greater than, one-third of the best available abundance
estimate, NMFS will determine that the numbers of marine mammals taken
of a species or stock are small. For more information please see NMFS'
discussion of the MMPA's small numbers requirement provided in the
final rule (86 FR 5322, 5438; January 19, 2021).
The take numbers for authorization are determined as described
above in the Summary of Request and Analysis section. Subsequently, the
total incidents of harassment for each species are multiplied by scalar
ratios to produce a derived product that better reflects the number of
individuals likely to be taken within a survey (as compared to the
total number of instances of take), accounting for the likelihood that
some individual marine mammals may be taken on more than one day (see
86 FR 5322, 5404; January
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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 determination, as depicted in Table 1.
This product is used by NMFS in making the necessary small numbers
determination, 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; <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., 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 determination is provided
in Table 1.
Table 1--Take Analysis
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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..................................... 1,710 723.2 2,207 32.8
Kogia spp....................................... \3\ 646 230.5 4,373 5.3
Beaked whales................................... 7,546 762.1 3,768 20.2
Rough-toothed dolphin........................... 1,297 372.4 4,853 7.7
Bottlenose dolphin.............................. 6,148 1,764.4 176,108 1.0
Clymene dolphin................................. 3,651 1,047.8 11,895 8.8
Atlantic spotted dolphin........................ 2,456 704.8 74,785 0.9
Pantropical spotted dolphin..................... 16,568 4,755.0 102,361 4.6
Spinner dolphin................................. 4,439 1,274.1 25,114 5.1
Striped dolphin................................. 1,426 409.3 5,229 7.8
Fraser's dolphin................................ 410 117.7 1,665 7.1
Risso's dolphin................................. 1,073 316.4 3,764 8.4
Melon-headed whale.............................. 2,399 707.6 7,003 10.1
Pygmy killer whale.............................. 565 166.5 2,126 7.8
False killer whale.............................. 898 264.9 3,204 8.3
Killer whale.................................... 7 n/a 267 2.6
Short-finned pilot whale........................ 694 204.7 1,981 10.3
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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
the killer whale, the larger estimated SAR abundance estimate is used.
\3\ Includes 34 takes by Level A harassment and 612 takes by Level B harassment. Scalar ratio is applied to
takes by Level B harassment only; small numbers determination made on basis of scaled Level B harassment take
plus authorized Level A harassment take.
Based on the analysis contained herein of TotalEnergies' 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 TotalEnergies authorizing the take of marine
mammals incidental to its geophysical survey activity, as described
above.
Dated: January 26, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2022-01918 Filed 1-28-22; 8:45 am]
BILLING CODE 3510-22-P
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