[Federal Register Volume 86, Number 135 (Monday, July 19, 2021)]
[Notices]
[Pages 38018-38022]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15241]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB248]


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 two 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 July 13, 2021, through April 19, 
2026.

ADDRESSES: The LOAs, LOA requests, 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 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

[[Page 38019]]

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 vertical seismic profile (VSP) geophysical 
surveys within existing bp prospects and/or fields, including the Mad 
Dog, Na Kika, Thunder Horse, and Atlantis prospects located in the 
Green Canyon (Mad Dog and Atlantis), Mississippi Canyon (Na Kika and 
Thunder Horse), and Atwater Valley (Atlantis) areas of the central GOM 
(see Figure 1 in bp's applications). Bp submitted one LOA request 
related to Distributed Acoustic Sensing (DAS) VSP surveys at these 
areas and a separate LOA request related to zero offset VSP surveys at 
the same areas. The survey activity could occur at any time during the 
effective period of the LOAs, and surveys could occur at any of the 
prospect areas.
    Bp anticipates a total of 10 DAS VSP surveys over the period of LOA 
effectiveness, with each survey expected to require 10 days (total of 
100 days over the period of effectiveness). Bp anticipates that no more 
than two surveys would occur in any one year. However, due to the 
potential for unforeseen circumstances that would require a longer 
duration to accomplish the survey objectives, bp may conduct up to 25 
DAS VSP survey days in any one year.
    Bp anticipates a total of 10 zero offset VSP surveys over the 
period of LOA effectiveness, with each survey expected to require 2 
days (total of 20 days over the period of effectiveness). Bp 
anticipates that no more than two surveys would occur in any one year. 
However, due to the potential for unforeseen circumstances that would 
require a longer duration to accomplish the survey objectives, bp may 
conduct up to 7 zero offset VSP survey days in any one year.
    For DAS VSP surveys, bp anticipates using an airgun array 
consisting of 32 elements, with a total volume of 5,110 cubic inches 
(in\3\). For zero offset VSP surveys, bp anticipates using an airgun 
array consisting of 6-12 elements, with a total volume of 2,400 in\3\. 
Please see bp's applications for additional detail.
    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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    No VSP 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 VSP survey effort. Summary 
descriptions of these modeled survey geometries are available in the 
preamble to the proposed rule (83 FR 29212, 29220; June 22, 2018). 2D 
was selected as the best available proxy survey type. The DAS VSP would 
use one or two source vessels. Each source array on the vessel will be 
separated by at least 40 m with shots being conducted in a ``flip flop 
mode'' such that only 1 array shoots at one time. Because the sources 
are not firing simultaneously, and because the areal coverage of the 
DAS VSP survey is significantly smaller than is assumed for a 3D NAZ 
survey, 2D was selected as the most appropriate proxy. Zero offset VSP 
surveys are significantly different from modeled survey geometries, in 
that they are conducted from a stationary or near-stationary deployment 
very close to an active drilling platform. During zero offset VSP 
surveys, the seismic source array is typically deployed from a drilling 
rig or from one to two source vessels operating at or near the 
borehole, with the seismic receivers (i.e., geophones) deployed in the 
borehole on wireline at specified depth intervals. Use of the 2D proxy 
for zero offset VSP surveys is expected to be significantly 
conservative. In addition, 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) due to differences in both the 
airgun arrays and the survey geometries planned by bp, as compared to 
those modeled for the rule.
    As described above, the maximum annual survey effort is 25 days for 
DAS VSP and 7 days for zero offset VSP. For all survey effort, it is 
assumed that 75 percent would occur in Zone 5 and 25 percent in Zone 7. 
Although the location of individual surveys is not known in advance, 
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).
    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 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

[[Page 38020]]

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. 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 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 three encounters during more 
recent survey effort from 2017-18 (Waring et al., 2013; www.boem.gov/gommapps). 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 
seven animals).
    Based on the results of our analysis, NMFS has determined that the 
level of taking expected for these surveys and authorized through the 
LOA is consistent with the findings made for the total taking allowable 
under the regulations. See Tables 1 and 2 in this notice and Table 9 of 
the 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 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

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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 for Bp's DAS VSP surveys (maximum 25 days 
annually) and in Table 2 for zero offset VSP surveys (maximum 7 days 
annually).
    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; 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 Tables 1 and 2.

                                       Table 1--Take Analysis, DAS VSP LOA
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                                                      Annual
                     Species                        authorized     Scaled annual   Abundance \2\      Percent
                                                       take          take \1\                        abundance
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Sperm whale.....................................             709           299.9           2,207            13.6
Kogia spp.......................................         \3\ 274            72.0           4,373             2.1
Beaked whales...................................           4,001           404.1           3,768            10.7
Rough-toothed dolphin...........................             478           137.2           4,853             2.8
Bottlenose dolphin..............................           2,432           698.0         176,108             0.4
Clymene dolphin.................................           1,603           460.1          11,895             3.9
Atlantic spotted dolphin........................             920           264.0          74,785             0.4
Pantropical spotted dolphin.....................           8,251         2,368.0         102,361             2.3
Spinner dolphin.................................           1,770           508.0          25,114             2.0
Striped dolphin.................................             649           186.3           5,229             3.6
Fraser's dolphin................................             188            54.0           1,665             3.2
Risso's dolphin.................................             457           134.8           3,764             3.6
Melon-headed whale..............................           1,037           305.9           7,003             4.4
Pygmy killer whale..............................             230            67.9           2,126             3.2
False killer whale..............................             344           101.5           3,204             3.2
Killer whale....................................               7             n/a             267             2.6
Short-finned pilot whale........................             273            80.5           1,981             4.1
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\1\ Scalar ratios were applied to ``Annual 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 6 annual takes by Level A harassment and 268 annual takes by Level B harassment. Scalar ratio is
  applied to takes by Level B harassment only; small numbers determination made on basis of scaled annual Level
  B harassment take plus annual Level A harassment take.


                                   Table 2--Take Analysis, Zero Offset VSP LOA
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                                                                      Annual
                             Species                                authorized     Abundance \2\      Percent
                                                                     take \1\                        abundance
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Sperm whale.....................................................             198           2,207             9.0
Kogia spp.......................................................          \3\ 79           4,373             1.8
Beaked whales...................................................           1,120           3,768            29.7
Rough-toothed dolphin...........................................             134           4,853             2.8
Bottlenose dolphin..............................................             681         176,108             0.4
Clymene dolphin.................................................             449          11,895             3.8
Atlantic spotted dolphin........................................             258          74,785             0.3
Pantropical spotted dolphin.....................................           2,310         102,361             2.3
Spinner dolphin.................................................             496          25,114             2.0
Striped dolphin.................................................             182           5,229             3.5
Fraser's dolphin................................................              53           1,665             3.2
Risso's dolphin.................................................             128           3,764             3.4
Melon-headed whale..............................................             290           7,003             4.1
Pygmy killer whale..............................................              64           2,126             3.0
False killer whale..............................................              96           3,204             3.0
Killer whale....................................................               7             267             2.6
Short-finned pilot whale........................................              77           1,981             3.9
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\1\ Scalar ratios were not applied in this case due to brief annual survey duration.

[[Page 38022]]

 
\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 2 annual takes by Level A harassment and 77 annual takes by Level B harassment.

    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 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 the LOAs is of no more than small numbers. 
Accordingly, we have issued two LOAs to bp authorizing the take of 
marine mammals incidental to its geophysical survey activity, as 
described above.

    Dated: July 14, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2021-15241 Filed 7-16-21; 8:45 am]
BILLING CODE 3510-22-P