Notice2023-16577
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
August 3, 2023
Effective
September 1, 2023
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 Anadarko Petroleum Corporation (Anadarko) 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 88 Issue 148 (Thursday, August 3, 2023)</title>
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[Federal Register Volume 88, Number 148 (Thursday, August 3, 2023)]
[Notices]
[Pages 51302-51305]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-16577]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD192]
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 Anadarko
Petroleum Corporation (Anadarko) for the take of marine mammals
incidental to geophysical survey activity in the Gulf of Mexico.
DATES: The LOA is effective from September 1, 2023, through August 31,
2024.
ADDRESSES: The LOA, LOA request, and supporting documentation are
available online at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico">https://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: 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
Anadarko plans to conduct a 3-Dimensional (3D) ocean bottom node
(OBN) survey in the Green Canyon protraction areas, around lease block
GC 517. Approximate water depths of the survey area range from 1,000 to
1,500 meters (m). See section F of the LOA application for a map of the
area.
Anadarko anticipates using a single source vessel, towing an airgun
array consisting of 32 elements, with a total volume of 5,110 cubic
inches (in\3\). Please see Anadarko's application for additional
detail.
Consistent with the preamble to the final rule, the survey effort
proposed by Anadarko 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 5398, January 19, 2021). In order to
generate the appropriate take numbers for authorization, the following
information was considered: (1) survey type; (2)
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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 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 survey will involve a single source
vessel sailing along survey lines approximately 43 kilometers (km) in
length. 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 Anadarko is not
proposing to perform a survey using the coil geometry, its planned 3D
OBN survey is expected to cover approximately 100 km\2\ per day,
meaning that the coil proxy is most representative of the effort
planned by Anadarko in terms of predicted Level B harassment exposures.
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 the sound
sources planned for use (32 element, 5,110 in\3\ airgun array), as
compared to the source modeled for the rule.
The survey will take place over approximately 42 days, including 40
days of sound source operation, all within Zone 5. The seasonal
distribution of survey days is not known in advance. Therefore, the
take estimates for each species are based on the season that produces
the greater value.
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. 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. Thus, although the modeling conducted for
the rule is a natural starting point for estimating take, the rule
acknowledged that other information could be considered (see, e.g., 86
FR 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.
Anadarko's planned activities will occur in water depths of
approximately 1,000-1,500 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 (> 700 m) 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 3 encounters during more recent
survey effort from 2017-18 (Waring et al., 2013; <a href="https://www.boem.gov/gommapps">https://www.boem.gov/gommapps</a>). Two other species were also observed on fewer than 20
occasions during the 1992-2009 NOAA surveys (Fraser's
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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 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 encounters 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 4 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. This
survey would take place in deep waters that would overlap with depths
in which killer whales typically occur. 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 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; 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 group encounter (i.e., up to 7 animals).
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 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 5404, January 19, 2021). The output of this scaling, where
appropriate, is incorporated into adjusted total take estimates that
are 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 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="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://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
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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..................................... 1,052 445.0 2,207 20.2
Kogia spp....................................... \3\ 398 120.9 4,373 3.2
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Beaked whales................................... 4,644 469.0 3,768 12.4
Rough-toothed dolphin........................... 798 229.2 4,853 4.7
Bottlenose dolphin.............................. 3,783 1,085.8 176,108 0.6
Clymene dolphin................................. 2,247 644.8 11,895 5.4
Atlantic spotted dolphin........................ 1,511 433.7 74,785 0.6
Pantropical spotted dolphin..................... 10,196 2,926.1 102,361 2.9
Spinner dolphin................................. 2,732 784.1 25,114 3.1
Striped dolphin................................. 878 251.9 5,229 4.8
Fraser's dolphin................................ 252 72.4 1,665 4.3
Risso's dolphin................................. 660 194.7 3,764 5.2
Melon-headed whale.............................. 1,476 435.4 7,003 6.2
Pygmy killer whale.............................. 347 102.5 2,126 4.8
False killer whale.............................. 553 163 3,204 5.1
Killer whale.................................... 7 n/a 267 2.6
Short-finned pilot whale........................ 427 126.0 1,981 6.4
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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 21 takes by Level A harassment and 377 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 Anadarko'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 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 Anadarko authorizing the take of marine
mammals incidental to its geophysical survey activity, as described
above.
Dated: July 31, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-16577 Filed 8-2-23; 8:45 am]
BILLING CODE 3510-22-P
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