Notice2022-04449
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
March 3, 2022
Effective
August 31, 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 NMFS has modified a Letter of Authorization (LOA) issued to Shell Offshore Inc. (Shell) on December 2, 2021, 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 42 (Thursday, March 3, 2022)</title>
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[Federal Register Volume 87, Number 42 (Thursday, March 3, 2022)]
[Notices]
[Pages 12120-12122]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-04449]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XB819]
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 modified 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 NMFS has modified a Letter of Authorization (LOA) issued to Shell
Offshore Inc. (Shell) on December 2, 2021, for the take of marine
mammals incidental to geophysical survey activity in the Gulf of
Mexico.
DATES: The modified LOA is effective through August 31, 2022.
ADDRESSES: The modified LOA and modification request, original LOA and
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
[[Page 12121]]
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.
Summary of Request and Analysis
NMFS issued an LOA to Shell on December 2, 2021, effective through
August 31, 2022, for the take of marine mammals incidental to a 3D
ocean bottom node (OBN) survey of Mississippi Canyon Lease Block 809
and portions of the surrounding approximately 143 lease blocks in the
Ursa development area (see Section F in Shell's application). Shell
initially anticipated conducting a total of 45 days of sound source
operation over the period of LOA effectiveness (over a total survey
period of 61 days). The survey activity itself is permitted under
Bureau of Ocean Energy Management (BOEM) permit L21-036. Please see the
Federal Register notice of issuance (86 FR 69622; December 8, 2021) for
additional detail regarding the LOA and the survey activity.
Since issuance of the LOA, no survey work has occurred under that
LOA. Shell has been conducting survey activity in the same lease block
areas under its existing BOEM permit L20-029, which was issued during a
litigation settlement agreement prior to NMFS' MMPA rule becoming
effective. As a result of unforeseen delays in survey effort under BOEM
permit L20-029, Shell now expects that it will be necessary to shift
some of that effort to the subsequent period (under BOEM permit L21-
036) addressed through NMFS' December 2, 2021, LOA, and has requested
modification of the LOA accordingly. Thus Shell's revised estimate of
survey effort for the LOA includes 63 days of sound source operation
rather than 45. There are no other changes to Shell's planned activity.
Consistent with the preamble to the final rule, the survey effort
proposed by Shell in its request for a modification to the existing LOA
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. Of the planned 63
days of sound source operation, Shell indicates that 28 days would
occur in winter and 35 days in summer. Previously, the seasonal
distribution of survey days was considered unknown and the take
estimates for each species were based on the season that produced the
greater value. There are no other changes to the information used in
producing the take estimates. NMFS' prior assumptions regarding the
likelihood of encounter for Rice's whales \3\ and killer whales remain
valid and are incorporated by reference here (86 FR 69622; December 8,
2021). Please see the original notice of issuance for the LOA for
additional detail regarding the assumptions made in generating the take
estimates and regarding the aforementioned species.
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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).
\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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Updated take numbers for the modified LOA are indicated below (see
Table 1). 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.
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 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
[[Page 12122]]
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 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 determinations is
provided in Table 1.
Table 1--Take Analysis, Ursa 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..................................... 1,650 698.1 2,207 31.6
Kogia spp....................................... \3\ 611 218.5 4,373 5.0
Beaked whales................................... 7,197 726.9 3,768 19.3
Rough-toothed dolphin........................... 1,237 354.9 4,853 7.3
Bottlenose dolphin.............................. 5,760 1,653.1 176,108 0.9
Clymene dolphin................................. 3,439 987.1 11,895 8.3
Atlantic spotted dolphin........................ 2,339 671.3 74,785 0.9
Pantropical spotted dolphin..................... 15,608 4,479.4 102,361 4.4
Spinner dolphin................................. 4,182 1,200.3 25,114 4.8
Striped dolphin................................. 1,343 385.5 5,229 7.4
Fraser's dolphin................................ 394 113.1 1,665 6.8
Risso's dolphin................................. 1,010 297.9 3,764 7.9
Melon-headed whale.............................. 2,306 680.4 7,003 9.7
Pygmy killer whale.............................. 538 158.7 2,126 7.5
False killer whale.............................. 856 252.5 3,204 7.9
Killer whale.................................... 7 n/a 267 2.6
Short-finned pilot whale........................ 667 196.8 1,981 9.9
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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 33 takes by Level A harassment and 578 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 Shell's proposed survey
activity described in its LOA modification request 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 the LOA
modification 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 modified LOA is of no more than
small numbers. NMFS has modified the LOA to Shell authorizing the take
of marine mammals incidental to its planned survey activity, for the
reasons described above.
Dated: February 25, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2022-04449 Filed 3-2-22; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on March 3, 2022.
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