[Federal Register Volume 87, Number 42 (Thursday, March 3, 2022)]
[Notices]
[Pages 12120-12122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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: 
www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico. 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

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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 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; www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and model-predicted abundance 
information (https://seamap.env.duke.edu/models/Duke/GOM/). 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