Federal Register / Vol. 86, No. 137 / Wednesday, July 21, 2021 / Notices 38447 

1For purposes of acoustic exposure modeling, the 

GOM was divided into seven zones. Zone 1 is not 

included in the geographic scope of the rule. 

2For purposes of acoustic exposure modeling, 

seasons include Winter (December–March) and 

Summer (April–November). 

entering either the title of the collection 

or the OMB Control Number 0694–0021. 

Sheleen Dumas, 

Department PRA Clearance Officer, Office of 

the Chief Information Officer, Commerce 

Department. 

[FR Doc. 2021–15489 Filed 7–20–21; 8:45 am] 

BILLING CODE 3510–33–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[RTID 0648–XB249] 

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. 

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 Shell Offshore Inc. 

(Shell) for the take of marine mammals 

incidental to geophysical survey activity 

in the Gulf of Mexico. 

DATES: The LOAs are effective from 

October 1, 2021, through March 31, 

2022, and from August 15, 2021, 

through December 15, 2021. 

ADDRESSES: The LOAs, LOA requests, 

and supporting documentation are 

available online at: 

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-oil-andgas-industry-geophysical-surveyactivity-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 

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 

Shell plans to conduct two separate 

geophysical surveys, and submitted an 

LOA request for each survey. The first 

survey is a 4D (time lapse) survey of 

Lease Block WR 508 and portions of the 

surrounding approximately 100 lease 

blocks in the Stones development area 

(Stones survey). The second survey 

would also be a 4D (time lapse) survey, 

and would cover Lease Block AC 857 

and portions of the surrounding 

approximately 60 lease blocks in the 

Perdido development area (Perdido 

survey). See Section F of the respective 

LOA applications for maps of these 

areas. 

For the Stones survey survey, Shell 

anticipates using an airgun array 

consisting of 32 elements, with a total 

volume of 5,110 cubic inches (in3). For 

the Perdido survey, Shell anticipates 

using an airgun array with a total 

volume of 2,280 in3. Please see Shell’s 

applications for additional detail. 

Consistent with the preamble to the 

final rule, the survey effort proposed by 

Shell 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. 

Summary descriptions of the modeled 

survey geometries (i.e., 2D, 3D NAZ, 3D 

WAZ, Coil) are available in the 

preamble to the proposed rule (83 FR 

29212, 29220; June 22, 2018). 3D NAZ 


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38448 Federal Register / Vol. 86, No. 137 / Wednesday, July 21, 2021 / Notices 

3However, note that these species have been 

observed over a greater range of water depths in the 

GOM than have killer whales. 

was selected as the best available proxy 

survey type. The Stones survey will use 

a single source vessel with line spacing 

of 100 m and a shot interval of 

approximately 10.5 seconds. Although 

the 2D survey was the only exposure 

modeling scenario to use a single source 

vessel, the line spacing and shot interval 

represented by the 3D NAZ scenario 

make it most representative. The 

Perdido survey will also use a single 

source vessel, with source line spacing 

of 87.5 m and a shot interval of 

approximately 6 seconds. 3D NAZ is the 

most representative survey geometry for 

the same reasons discussed for the 

Stones survey. Note that all available 

acoustic exposure modeling results 

assume use of a 72 element, 8,000 in3

array. In this case, take numbers 

authorized through the LOAs are 

considered conservative (i.e., they likely 

overestimate take) primarily due to 

differences in the airgun arrays planned 

for use by Shell (most notably the 

relatively small array planned for use in 

the Perdido survey), as compared to the 

array modeled for the rule. 

The Stones survey will take place 

over 95 days, including 65 days of 

sound source operation. The Perdido 

survey will take place over 60 days, 

including 50 days of sound source 

operation. Both surveys will occur 

within Zone 7. For the Stones survey, 

the seasonal distribution of survey days 

is not known in advance. Therefore, the 

take estimates for each species are based 

on the winter season, which for all 

species produces the greater value. For 

the Perdido survey, it is assumed that, 

of the 50 survey days, 35 would occur 

during summer and 15 would occur 

during winter. 

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 as described 

below. 

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 rarelyencountered 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 3). 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. 

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 


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Federal Register / Vol. 86, No. 137 / Wednesday, July 21, 2021 / Notices 38449 

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) for each LOA. 

Based on the results of our analysis, 

NMFS has determined that the level of 

taking expected for these surveys and 

authorized through the LOAs 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 

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 Shell’s Stones survey and in Table 

2 for the Perdido survey. 

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/marinemammal-stock-assessments) and modelpredicted 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., three-month) abundance 

prediction for purposes of comparison 

as a precautionary smoothing of monthto-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, STONES LOA 

Species Authorized 

take Scaled take 1 Abundance 2 Percent abundance 

Rice’s whale 3 ................................................................................................... 0 n/a 51 n/a 

Sperm whale .................................................................................................... 523 221.2 2,207 10.0 

Kogia spp ......................................................................................................... 4 319 121.3 4,373 2.8 

Beaked whales ................................................................................................ 5,131 518.2 3,768 13.8 

Rough-toothed dolphin .................................................................................... 712 204.3 4,853 4.2 

Bottlenose dolphin ........................................................................................... 23 6.6 176,108 0.0

Clymene dolphin .............................................................................................. 2,227 639.1 11,895 5.4 

Atlantic spotted dolphin ................................................................................... 0 n/a 74,785 n/a 

Pantropical spotted dolphin ............................................................................. 22,112 6,346.1 102,361 6.2 

Spinner dolphin ................................................................................................ 519 149.0 25,114 0.6 

Striped dolphin ................................................................................................. 1,157 332.1 5,229 6.4 

Fraser’s dolphin ............................................................................................... 399 114.5 1,665 6.9 

Risso’s dolphin ................................................................................................. 365 107.7 3,764 2.9 

Melon-headed whale ....................................................................................... 1,572 463.7 7,003 6.6 

Pygmy killer whale ........................................................................................... 589 173.8 2,126 8.2 

False killer whale ............................................................................................. 667 196.8 3,204 6.1 

Killer whale ...................................................................................................... 7 n/a 267 2.6

Short-finned pilot whale ................................................................................... 125 36.9 1,981 1.9 

1Scalar ratios were applied to ‘‘Authorized Take’’ values as described at 86 FR 5322, 5404 (January 19, 2021) to derive scaled take numbers 

shown here. 2Best 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. 3The 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). 4 Includes 11 takes by Level A harassment and 308 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 Level A harassment take. 

TABLE 2—TAKE ANALYSIS, PERDIDO LOA 

Species Authorized 

take Scaled take 1 Abundance 2 Percent abundance 

Rice’s whale 3 ................................................................................................... 0 n/a 51 n/a 

Sperm whale .................................................................................................... 377 159.5 2,207 7.2 

Kogia spp ......................................................................................................... 4 227 88.0 4,373 2.0 


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38450 Federal Register / Vol. 86, No. 137 / Wednesday, July 21, 2021 / Notices 

TABLE 2—TAKE ANALYSIS, PERDIDO LOA—Continued 

Species Authorized 

take Scaled take 1 Abundance 2 Percent abundance 

Beaked whales ................................................................................................ 3,793 383.1 3,768 10.2 

Rough-toothed dolphin .................................................................................... 496 142.4 4,853 2.9 

Bottlenose dolphin 5 ......................................................................................... 21 n/a 176,108 0.0 

Clymene dolphin .............................................................................................. 1,521 436.5 11,895 3.7 

Atlantic spotted dolphin ................................................................................... 0 n/a 74,785 n/a 

Pantropical spotted dolphin ............................................................................. 15,101 4,334.0 102,361 4.2 

Spinner dolphin ................................................................................................ 354 101.6 25,114 0.4 

Striped dolphin ................................................................................................. 790 226.7 5,229 4.3 

Fraser’s dolphin ............................................................................................... 281 80.6 1,665 4.8 

Risso’s dolphin ................................................................................................. 249 73.5 3,764 2.0 

Melon-headed whale ....................................................................................... 1,109 327.2 7,003 4.7 

Pygmy killer whale ........................................................................................... 410 121.0 2,126 5.7 

False killer whale ............................................................................................. 464 136.9 3,204 4.3 

Killer whale ...................................................................................................... 7 n/a 267 2.6

Short-finned pilot whale ................................................................................... 88 26.0 1,981 1.3 

1Scalar ratios were applied to ‘‘Authorized Take’’ values as described at 86 FR 5322, 5404 (January 19, 2021) to derive scaled take numbers 

shown here. 2Best 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. 3The 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). 4 Includes 9 takes by Level A harassment and 218 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 Level A harassment take. 5 Modeled take of 16 increased to account for potential encounter with group of average size (Maze-Foley and Mullin, 2006). 

Based on the analysis contained 

herein of Shell’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 Shell 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. 2021–15453 Filed 7–20–21; 8:45 am] 

BILLING CODE 3510–22–P 

CONSUMER PRODUCT SAFETY 

COMMISSION 

[CPSC Docket No. 21–2] 

Amazon.Com, Inc. 

AGENCY: Consumer Product Safety 

Commission. 

ACTION: Publication of a Complaint 

under the Consumer Product Safety Act. 

SUMMARY: Under provisions of its Rules 

of Practice for Adjudicative Proceeding, 

the Consumer Product Safety 

Commission must publish in the 

Federal Register Complaints which it 

issues. Published below is a Complaint: 

In the matter of Amazon.com. 

FOR FURTHER INFORMATION CONTACT: 

Alberta E. Mills, Secretary, Division of 

the Secretariat, Office of the General 

Counsel, U.S. Consumer Product Safety 

Commission, 4330 East-West Highway, 

Bethesda, MD 20814, (301) 504–7479 

(Office) or 240–863–8938 (cell). 

SUPPLEMENTARY INFORMATION: The 

Commission voted 3–1 to authorize 

issuance of this Complaint. Acting 

Chairman Adler, Commissioners Kaye 

and Feldman voted to authorize 

issuance of the Complaint. 

Commissioner Baiocco voted to not 

authorize issuance of the Complaint. 

The text of the Complaint appears 

below. 

Dated: July 15, 2021. 

Alberta E. Mills, 

Secretary, Consumer Product Safety 

Commission. 

BILLING CODE 6355–01–P 


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