[Federal Register Volume 70, Number 141 (Monday, July 25, 2005)]
[Proposed Rules]
[Pages 42520-42530]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-14620]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 050630175-5175-01; I.D. 083104A]
RIN 0648-AS98
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to Construction and Operation of Offshore Oil and Gas
Facilities in the Beaufort Sea
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments and information.
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SUMMARY: NMFS has received a request from BP Exploration (Alaska), 900
East Benson Boulevard, Anchorage, AK 99519 (BP) for renewal of an
[[Page 42521]]
authorization to take small numbers of marine mammals incidental to
operation of an offshore oil and gas platform at the Northstar facility
in the Beaufort Sea in state waters. By this document, NMFS is
proposing regulations to govern that take. In order to issue the Letter
of Authorization (LOA) and final regulations governing the take, NMFS
must determine that the total taking will have a negligible impact on
the affected species and stocks of marine mammals, will be at the
lowest level practicable, and will not have an unmitigable adverse
impact on the availability of the species or stock(s) for subsistence
uses. NMFS invites comment on the application and the proposed rule.
DATES: Comments and information must be postmarked no later than August
24, 2005.
ADDRESSES: You may submit comments on the application and proposed
rule, using the identifier 083104A, by any of the following methods:
E-mail: [email protected]. Please include the identifier 083104A
in the subject line of the message. Comments sent via e-mail, including
all attachments, must not exceed a 10-megabyte file size.
Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
Hand-delivery or mailing of paper, disk, or CD-ROM comments should
be addressed to: Stephen L. Leathery, Chief, Permits, Conservation and
Education Division, Office of Protected Resources, National Marine
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-
3225.
A copy of the application containing a list of references used in
this document may be obtained by writing to this address, by
telephoning one of the contacts listed under FOR FURTHER INFORMATION
CONTACT, or at: http://www.nmfs.noaa.gov/prot_res/PR2/Small_Take/smalltake_info.htm#applications. Documents cited in this proposed rule
may also be viewed, by appointment, during regular business hours at
this address. To help us process and review comments more efficiently,
please use only one method.
Comments regarding the burden-hour estimate or any other aspect of
the collection of information requirement contained in this proposed
rule should be sent to NMFS via the means stated above, and to the
Office of Information and Regulatory Affairs, Office of Management and
Budget (OMB), Attention: NOAA Desk Officer, Washington, DC 20503,
[email protected].
FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, NMFS, 301-
713-2055, ext 128 or Brad Smith, NMFS, (907) 271-5006.
SUPPLEMENTARY INFORMATION:
Background
Section 101(a)(5)(A) of the Marine Mammal Protection Act (16 U.S.C.
1361 et seq.)(MMPA) directs the Secretary of Commerce (Secretary) 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 regulations are
issued.
An authorization may be granted for periods of 5 years or less if
the Secretary finds that the total 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,
and regulations are prescribed setting forth the permissible methods of
taking and the requirements pertaining to the monitoring and reporting
of such taking.
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 for certain categories of 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].
In 1999, BP petitioned NMFS to issue regulations governing the
taking of small numbers of whales and seals incidental to oil and gas
development and operations in arctic waters of the United States. That
petition was submitted pursuant to section 101(a)(5)(A) of the MMPA.
Regulations were promulgated by NMFS on 25 May 2000 (65 FR 34014).
These regulations authorize the issuance of annual LOAs for the
incidental, but not intentional, taking of small numbers of six species
of marine mammals in the event that such taking occurred during
construction and operation of an oil and gas facility in the Beaufort
Sea offshore from Alaska. The six species are the ringed seal (Phoca
hispida), bearded seal (Erignathus barbatus), spotted seal (Phoca
largha), bowhead whale (Balaena mysticetus), gray whale (Eschrichtius
robustus), and beluga whale (Delphinapterus leucas). To date, LOAs have
been issued on September 18, 2000 (65 FR 58265, September 28, 2000),
December 14, 2001 (66 FR 65923, December 21, 2001), December 9, 2002
(67 FR 77750, December 19, 2002), December 4, 2003 (68 FR 68874,
December 10, 2003) and December 6, 2004 (69 FR 71780, December 10,
2004). The current LOA expired on May 25, 2005, when the current
regulations expired.
On August 30, 2004, BP requested a renewal of its authorization to
take small numbers of marine mammals incidental to operation of an
offshore oil and gas platform at the Northstar facility in the Beaufort
Sea in state waters. This will require new regulations. Although injury
or mortality is unlikely during routine oil production activities, BP
requests that the LOA authorize a small number of incidental, non-
intentional, injurious or lethal takes of ringed seals in the unlikely
event that they might occur. A copy of this application can be found
at: http://www.nmfs.noaa.gov/prot_res/PR2/Small_Take/smalltake_info.htm#applications.
Description of the Activity
BP is currently producing oil from an offshore oil and gas facility
in the Northstar Unit. This development is the first in the Beaufort
Sea that makes use of a subsea pipeline to transport oil to shore and
then into the Trans-Alaska Pipeline System. The Northstar facility was
built in State of Alaska waters approximately 6 statute miles (9.6 km)
north of Point Storkersen and slightly less than 3 nautical miles (nm;
5.5 km) from the closest barrier island. It is located adjacent to
Prudhoe Bay, and is approximately 54 mi (87 km) northeast of Nuiqsut,
an Inupiat community. The main facilities associated with Northstar
include a gravel island work surface for drilling and oil production
facilities, and two pipelines connecting the island to the existing
infrastructure at Prudhoe Bay. One pipeline transports crude oil to
shore, and the second imports gas from Prudhoe Bay for gas injection
and power generation at Northstar. Permanent living quarters and
supporting oil production facilities are also located on the island.
The construction of Northstar began in early 2000, and continued
through 2001. Well drilling began on December 14, 2000 and oil
production commenced on October 31, 2001. The well-drilling
[[Page 42522]]
program ended in May, 2004 and the drill rig is expected to be
demobilized by barge during the 2005 open-water period. Although future
drilling is not specifically planned, additional wells or well work-
over may be required at some time in the future. Oil production will
continue beyond the 5-year period of the requested authorization. A
more detailed description of past, present and future activities at
Northstar can be found in BP's application and in Williams and
Rodrigues (2004). Both documents can be found in the previously
mentioned NMFS web-site (see ADDRESSES).
Comments and Responses
On September 23, 2004 (69 FR 56995), NMFS published a notice of
receipt of BP's application for an incidental take authorization and
requested comments, information and suggestions concerning the request
and the structure and content of regulations to govern the take. During
the 30-day public comment period, NMFS received comments from the
Alaska Eskimo Whaling Commission (AEWC), the Trustees for Alaska
(Trustees, on behalf of themselves, the Sierra Club and the Northern
Alaska Environmental Center), and the Marine Mammal Commission
(Commission).
Marine Mammal Concerns
Comment 1: The AEWC objects to a statement in BP's application that
crew boats and barges supporting Northstar remain well inshore of the
main migration corridor, so bowhead whale deflection is unlikely to
occur in response to these types of Northstar related vessel traffic.
The BP application must acknowledge that vessel traffic has the
potential to push the whales far offshore as they migrate westward.
Response: As noted in BP's application, vessels, (principally crew
boats), tugs and self-propelled barges were the most important sound
sources during all phases of the Northstar operation that were studied
by Blackwell and Greene (2004). The presence of boats considerably
expanded the distances to which Northstar-related sound was detectable.
Propagation loss over distances from a few hundred meters to a few
kilometers for vessel sounds was about 15 dB/tenfold change in
distance. On some occasions, vessels were detectable on recordings made
at the farthest recording station (29 km (18 mi)) from the vessel. On
the other hand, monitoring studies done at Northstar since 2000 have
shown that any disturbance and displacement effects on seals and whales
that do occur are subtle and quite localized (Richardson and Williams
[eds], 2004). These very limited effects would not have biologically
significant consequences for many (if any) individual seals and whales,
and would have a negligible impact on the affected species or stocks.
However, NMFS recognizes that an activity having a negligible impact on
bowhead whales may nevertheless result in an unmitigable adverse impact
on their availability for subsistence uses if it results in a
displacement of those animals during the subsistence hunt and makes
their availability insufficient for a harvest to meet subsistence
needs. For that reason, BP has proposed that all non-essential boat,
hovercraft, barge and air traffic under its management will be
scheduled to avoid periods when bowheads are migrating through the
area. Whether additional monitoring of BP vessels during the bowhead
migration period is needed was addressed during the May 10-12, 2005,
peer-review meeting (see Monitoring).
Comment 2: The Trustees state that NMFS must consider all
regulatory changes applicable to the proposed operations to determine
whether the proposed operations have a negligible impact on species and
stocks of marine mammals. Pursuant to this mandate, NMFS must consider
changes to the State of Alaska oil discharge prevention and contingency
plan regulations that have eliminated certain requirements and will
thus increase the duration and amount of discharge in the event of an
accidental oil spill.
Response: NMFS is unaware of any recent changes to the State of
Alaska's oil discharge prevention and contingency plan that could
potentially affect offshore oil and gas operations in a manner not
addressed previously by NMFS (see especially 66 FR 65923, December 21,
2001). Therefore, NMFS requests information, during this proposed rule
comment period, regarding changes in State of Alaska regulations that
might affect its prior determinations.
Comment 3: The AEWC states that BP's use of the phrase ``migratory
corridor'' dismisses the findings in LGL (2002, Bowhead Whale Feeding
in the Eastern Alaskan Beaufort Sea: Update of Scientific and
Traditional Information) that bowhead whales both feed and travel
during the westward migration.
Response: Lowry and Sheffield (2002) in Richardson and Thomson
[ed]. (2002) concluded that coastal waters of the Alaskan Beaufort Sea
should be considered as part of the bowheads' normal summer-fall
feeding range. They reported that of the 29 bowheads harvested at
Kaktovik between 1986 and 2000 and analyzed for stomach contents, at
least 83 percent had been feeding prior to death. Of the 90 bowheads
analyzed that had been harvested near Barrow during the fall hunt, at
least 75 percent had been feeding prior to death.
Comment 4: The AEWC questions statements made in BP's application
regarding noise propagation and attenuation from the Northstar
facility. The AEWC notes that some industrial noise is audible to
marine mammals far beyond 10 km (6.2 mi) and that bowheads are being
deflected by sounds from Northstar at much greater distances than ``a
few kilometers.''
Response: In making its determinations on whether the taking of
marine mammals is negligible and the activity is not having an
unmitigable adverse impact on the availability of bowheads for
subsistence, NMFS relies in substantial part on the findings in
Richardson and Williams [eds]. (2004). NMFS believes the statements
made by BP in its application regarding noise propagation and
attenuation are based on 4 years of data collection and assessment of
noise impacts on bowhead whales from the Northstar facility and thus
represents the best information available.
Concerns on Subsistence
Comment 5: The AEWC strongly suspects that Northstar noise causes
subtle deflections just to the east or just to the west of Seal Island,
and when combined with other industrial activity in the Beaufort Sea,
including vessel traffic supporting onshore and offshore development,
Northstar contributes cumulatively to push the migration route offshore
and force the whales out of reach of whaling captains.
Response: A description of the monitoring program conducted by BP
since 2000 to assess whether sounds from Northstar might be causing a
deflection in the migratory route of bowheads during the fall migration
(Richardson and Williams [eds], 2004) can be found on NMFS' homepage:
http://www.nmfs.noaa.gov/prot_res/PR2/Small_Take/smalltake_info.htm#applications. As mentioned, monitoring during the upcoming
seasons was addressed at the previously mentioned peer-review
monitoring meeting (see response to comment 7 and Monitoring).
However, NMFS must make a determination that the activity for which
the take authorization is requested, and not the total impact of all
activities taking place in the Beaufort Sea, is not having an
unmitigable adverse impact on the subsistence uses
[[Page 42523]]
of bowhead whales. Information currently available to NMFS indicates
that the AEWC has met its fall bowhead subsistence needs and quota
recently (see Table 7 in BP's application for recent bowhead harvest
levels). In 2004, the village of Barrow landed 15 bowheads while the
villages of Nuiqsut and Kaktovik took 3 each. If this information is
not correct, NMFS requests the AEWC provide information on this subject
during the public comment period for this proposed rule.
Mitigation Concerns
Comment 6: The AEWC believes that the received sound level at which
whales might deflect is completely unrelated to the safety sound level
threshold (i.e., Level A harassment zone) set by NMFS. It is critical
that BP not make associations between safety criteria for whales and
the sound threshold above which whales exhibit avoidance behavior.
Response: BP and NMFS recognize that bowheads react to
anthropogenic noise at significantly greater distances than the safety
zone required to protect all marine mammals from Level A harassment.
During the previous 5-year rule and LOAs, NMFS and BP were
concerned that construction and production sounds from Northstar had
the potential to cause Level A harassment of marine mammals. Monitoring
since 2000 indicated that the loudest noise levels anticipated at the
Northstar facility are from pile driving. The impact pipe driving in
June and July 2000 did not produce received levels as high as 180 dB re
1 microPa (rms) at any location in the water. This was attributable to
attenuation by the gravel and sheetpile walls (Blackwell et al., 2004).
If impact pile driving (or similar activity with loud noise) was
planned for areas outside sheetpile walls where sound levels might
exceed 180 dB (cetaceans) or 190 dB (seals), monitoring and mitigation
(such as shut-down) is proposed to be conducted under the new rule.
NMFS proposes to retain this monitoring requirement to mitigate Level A
harassment to the lowest level practicable in the proposed 5-year rule.
However, this monitoring program is in addition to the acoustic
monitoring program proposed for bowheads during the fall migration,
both of which are described later in this document (see Mitigation/
Monitoring).
Comment 7: Since the Northstar monitoring report shows that
bowheads are deflected by industrial sounds well below NMFS criteria,
the AEWC believes that BP should implement supplemental monitoring and
mitigation whenever sounds from Northstar are expected to exceed 100
dB, not when those sounds exceed 180 dB. The peer-review group should
be convened to develop the appropriate technique to monitor for marine
mammals in the areas that may be affected by high levels of industrial
noise.
Response: During the bowhead westward migration period,
supplemental monitoring and mitigation measures are implemented by BP
to ensure that the effects from Northstar do not have an unmitigable
adverse impact on the subsistence needs of the Inupiat communities for
bowhead whales. These measures are discussed later in this document
(see Monitoring). Implementing additional mitigation and monitoring at
100 dB for species other than bowhead whales is neither warranted nor
practical. While this is a subject for further discussion at peer-
review meetings, NMFS notes that the 180-dB monitoring takes place
year-round for the protection of all marine mammal species from Level A
harassment (injury), not from Level B harassment.
Monitoring Concerns
Comment 8: Noise monitoring of Northstar operations detected a
``mystery'' noise of long duration transmitting a considerable distance
away from the island. NMFS must evaluate the impacts of this noise
source associated with Northstar production.
Response: An ``unknown'' underwater sound was detected by a
recorder on the seafloor about 550 m (1804 ft) north of Northstar
Island. It was not recorded prior to mid-September in 2003, but was
recorded about eight times during the period 18 28 September 2003. It
was not present during September 2004. This sound, as recorded 550 m
(1804 ft) from Northstar, consisted of sustained (40 min to 5.3 hrs)
periods at received levels of approximately 125 dB re 1 uPa. Most of
its energy was below 60 Hz, but it included characteristic broad peaks
at frequencies close to 139, 162, 189, 233 and 285 Hz. The directional
recorders showed that the sound was coming from the vicinity of
Northstar Island. The source was determined not to be a vessel or to be
related to flaring activity or to numerous other activities on
Northstar Island. Despite much effort by BP, it was not possible to
associate this sound with any specific activity on the island.
The unknown sound source was not detectable via similar recorders
6.5 21.5 km (4-13 mi) northeast of the island, except in one instance
when the sound included a 130-Hz tone. That tone was detected by four
instruments at distances of 6.5 14.3 km (4-8.9 mi). The measured rate
of propagation loss of the tone was 32 dB/tenfold change in distance.
Most noise recorded during periods in September 2003, when the
underwater sound emanating from Northstar was strongest, was
attributable to this sound. As with all sounds produced around
Northstar, sounds were monitored for potential impacts to bowheads and
other marine mammals. Results of the bowhead monitoring for 2003 can be
found in Chapters 7, 8, and 9 in Richardson and Williams [eds]. (2004).
Comment 9: BP must continue to monitor effects from Northstar
through 2009 and work with the North Slope Borough (NSB) Science
Advisory Committee (NSB SAC) to develop an appropriate and
comprehensive monitoring program
Response: NMFS agrees. Recently, the NSB SAC reviewed the findings
in Richardson and Williams [eds]. (2004) and has made recommendations
for improving future monitoring and data analyses. Representatives from
these parties discussed the 2005 proposed monitoring plan at the annual
peer-review meeting that was held in Anchorage, AK on May 10-12, 2005.
The participants at this meeting agreed that monitoring would continue
as outlined in BP's application. BP would acoustically monitor the
sound field each September to monitor bowhead whale calls with a larger
effort once every 4 years. In addition, BP intends to launch a long
term monitoring program integrating Northstar monitoring with BP's long
term environmental monitoring program.
Comment 10: The Commission recommends that a rigorous monitoring
program sufficient to detect any non-negligible effects be pursued to
ensure that the activities are not individually or cumulatively having
any population level effects on marine mammals and are not adversely
affecting the availability of marine mammals for subsistence uses by
Alaska natives.
Response: Under section 101(a)(5)(A) of the MMPA, NMFS must
prescribe a monitoring program that the applicant must implement to
provide information on marine mammal takings. Swartz and Hofman (1991)
note that a monitoring program should also be designed to support (or
refute) the finding that the total taking by the activity is not having
more than a negligible impact on affected species and stocks of marine
mammals, during the period of the rulemaking. This 6-year monitoring
program is described in detail in Richardson and Williams [eds] (2004).
The results from this study help NMFS
[[Page 42524]]
ensure that the activity's impacts on marine mammal species or stocks
are, in fact, negligible and are not having an unmitigable adverse
impact on their availability for subsistence uses.
In addition to monitoring required of BP, it should be recognized
that research and monitoring of Beaufort Sea marine mammals are also
conducted by government agencies, or through government agency funding.
This includes, for example, the Minerals Management Service's aerial
bowhead whale surveys, an annual population assessment survey for
bowhead whales, a study on contaminant levels in bowhead whale tissue,
and a bowhead whale health assessment study. These latter three studies
are funded by or through NMFS. Information on these projects has been
provided in the past to the Commission by NMFS. Based on this multi-
faceted monitoring program, NMFS has determined that the current and
proposed monitoring programs for both open-water and wintertime are
adequate to identify impacts on marine mammals, both singly from the
project and cumulatively throughout the industry.
National Environmental Policy Act (NEPA) Concerns
Comment 11: The Trustees believe that NMFS has not evaluated all
activities that have occurred or may occur in the Beaufort Sea during
the effective term of the potential regulations that will add
considerable noise disturbance and oil spill risks, including
additional seismic exploration and drilling activities, barge traffic,
hovercraft traffic, helicopter noise, and other aircraft traffic and
noise. Past noise disturbances that occurred during the fall bowhead
whale migratory season have not been adequately addressed.
Response: The cumulative effects of Northstar construction and
operation (including oil spill risks) along with barge and aircraft
traffic noise were addressed in the Corps' Final EIS for Northstar.
NMFS was a cooperating agency in the preparation of the Northstar EIS
and adopted that EIS as its own on May 18, 2000 (see 65 FR 34014, May
25, 2000) when implementing final regulations for the incidental
harassment of marine mammals during construction and operations at
Northstar. For this rulemaking, NMFS will review the Corps' Final EIS
to ensure that the Corps' document continues to accurately assess the
cumulative impacts from activities in the U.S. Beaufort Sea. If it is
not adequate, NMFS will consider its options under NEPA. In that
regard, NMFS welcomes relevant information and data on any impacts
addressed in the Corps' Final EIS.
Comment 12: The Trustees state that in the future, seismic surveys
may be proposed that are related to lands in upcoming lease sales in
state and federal waters and for additional offshore pipeline routes.
NMFS must assess the cumulative effects of these disturbances.
Response: The impact of seismic surveys on the U.S. Beaufort Sea
environment have been addressed in several lease sale NEPA documents,
in the Corps' Final EIS for Northstar, and in NMFS' Environmental
Assessment (EA) on issuing an Incidental Harassment Authorization (IHA)
for Beaufort Sea seismic (NMFS, 1999). However, no seismic surveys have
taken place in the U.S. Beaufort Sea since 2000 or 2001 (see 66 FR
42515, August 13, 2001). If new seismic surveys are proposed, NMFS will
evaluate these actions as appropriate under the MMPA, NEPA and the
Endangered Species Act (ESA).
Comment 13: The Trustees state that the MMS plans to renew its
permitting of the Liberty offshore oil and gas facility. Accordingly,
cumulative effects of the Northstar and Liberty facilities during the
effective term of the potential regulations must be evaluated.
Response: BP is considering options which could lead to developing
the Liberty prospect in the Beaufort Sea as a satellite supported by
either the existing Endicott or Badami operations. Development of
Liberty was first proposed in 1998 as a stand-alone drilling and
production facility (see MMS, 2003. Final EIS for the Liberty
Development and Production Plan). It was put on hold in 2002 pending
further review of project design and economics. A decision has not been
made to proceed with developing Liberty, but BP is examining the
feasibility of designing and permitting Liberty as a satellite field
(BP, 2005).
Both the Northstar and Liberty Final EISs analyzed cumulative
effects from oil production.
Comment 14: The AEWC recommends that NMFS strongly consider the
available science on the effects of climate change on shorefast ice as
an influence on the location of the bowhead migration from year to
year. Bowhead whales tend to migrate closer to shore in warmer,
thinner-ice years, and therefore, could come much closer to Northstar
than is assumed under recent studies or contemplated in BP's
application. Continued monitoring and analysis must account for the
probability that any nearshore shift would bring a greater number of
migrating bowheads within the noise disturbance range and could
significantly affect the northwesterly heading of the migration (route)
to a greater degree than NMFS previously considered.
Response: The period of validity of these proposed regulations and,
therefore, the period for making MMPA determinations, is 5 years (2005-
2010). Therefore, NMFS believes that the westward migration of bowhead
whales in relation to shore-fast ice conditions are expected to vary in
a similar degree to what has been noted by BP since 2000.
The best scientific data indicates that, between 1979 and 1997, a
period of 18 years of data collection, bowheads came within 10 km (6.2
mi) of the site of the Northstar facility only during 1997 (BPXA,
1999). However, NMFS determined in 2000 (65 FR 34014, May 25, 2000)
that, because this close-approach occurred in a recent year, a more
reliable estimate of take can be made by presuming that the bowhead
take level could occur again once or twice within the next 5 year
period. Therefore, NMFS determined that an average annual take by
harassment, due to noise from construction and operation at Northstar,
as calculated by BP (i.e., 173 (maximum 1,533) per year) would result
in a maximum of 717 bowheads annually or approximately 9 percent of the
revised 1993 estimated population size of 8,200 (95 percent CI, 7,200-
9,400) (Hill and DeMaster, 1999; IWC, 1996). NMFS notes that this
harassment will be limited to a deflection in migration and would be
considered a taking by Level B harassment. Such a taking would result
in small numbers being taken and would have no more than a negligible
impact on bowhead whales.
From 2000-2003 bowhead whales were monitored acoustically to
determine the number of whales that might have been exposed to
Northstar related sounds. Data from 2001-2003 were useable for this
purpose. The results showed that, during the late summer and early
autumn of 2001, a small number of bowheads in the southern part of the
migration corridor (closest to Northstar) were apparently affected by
vessel or Northstar operations. The best estimates of the numbers of
bowheads that were apparently ``deflected'' offshore by [gteqt] 2 km
(1.2 mi) were 19 in 2001, 49 in 2002, and 0 in 2003; these values are
all <=0.5 percent of the bowhead population (BP, 2004; McDonald and
Richardson, 2004). However, 2003 was considered a
[[Page 42525]]
moderate to light ice year, not a heavy ice year.
Scientists believe the relationship through the 1980s is that in
moderate-light ice years the whales are closer to shore and in heavy
ice years they are farther offshore. The best reference is Moore
(2000)(Variability in cetacean distribution and habitat selection in
the Alaskan Arctic, Autumn 1982-91. Arctic 53(4):448-460). Based on the
relationship described by Moore, global warming would result in ``on
average'' light-ice conditions and whales would be more likely to be
closer to shore than farther away. During 2003 and 2004 the bowhead
migration corridor has been exceptionally close to shore and the
shorefast ice could be described as ``light''.
During the eastward (springtime) migration the shore-fast ice
margin is approximately 75 km (46.6 mi) from Northstar and no bowheads
are expected to be harassed during this time period.
Description of Marine Mammals Affected by the Activity
The following six species of seals and cetaceans can be expected to
occur in the region of proposed activity and be affected by the
Nortstar facility: ringed, spotted and bearded seals, and bowhead, gray
and beluga whales. General information on these species can be found in
NMFS Stock Assessment Reports. These documents are available at: http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_Program/sars.html#StockAssessment Reports More detailed information on these
six species can be found in BP's application which is available at:
http://www.nmfs.noaa.gov/prot_res/PR2/Small_Take/smalltake_info.htm#applications.
In addition to these six species for which a incidental take
authorization is sought, other species that may occur rarely in the
Alaskan Beaufort Sea include the harbor porpoise (Phocoena phocoena),
killer whale(Orcinus orca), narwhal (Monodon monoceros), and hooded
seal (Cystophora cristata). Because of the rarity of these species in
the Beaufort Sea, BP and NMFS do not expect individuals of these
species to be exposed to, or affected by, any activities associated
with the planned Northstar activities. As a result, BP has not
requested these species be included under its incidental take
authorization. Two other marine mammal species found in this area, the
Pacific walrus (Odobenus rosmarus) and polar bear (Ursus maritimus),
are managed by the U.S. Fish and Wildlife Service (USFWS). Potential
incidental takes of those two species will be the subject of a separate
application by BP for an LOA from the USFWS.
Potential Effects on Marine Mammals
The potential impacts of the offshore oil development at Northstar
on marine mammals involve both acoustic and non-acoustic effects.
Potential non-acoustic effects could result from the physical presence
of personnel, structures and equipment. The visual presence of
facilities, support vessels, and personnel, and the unlikely occurrence
of an oil spill, are potential sources of non-acoustic effects. There
is a small chance that a seal pup might be injured or killed by on-ice
construction or transportation activities.
Acoustic effects involve sounds produced by activities such as
power generation and oil production on Northstar Island, heavy
equipment operations on ice, impact hammering, drilling, and camp
operations. Some of these sounds were more prevalent during the
construction and drilling periods, and sound levels emanating from
Northstar are expected to be lower during the ongoing production
period. During average ambient conditions, some Northstar-related
activities are expected to be audible to marine mammals at distances up
to 10 km (5.4 nm) away. However, because of the poor transmission of
airborne sounds from the Northstar facility into the water, and their
low effective source levels, sounds from production operations are not
expected to disturb marine mammals at distances beyond a few kilometers
from the Northstar development.
Responses by pinnipeds to noise are highly variable. Responses
observed to date by ringed seals during the ice-covered season are
limited to short-term behavioral changes in close proximity to
activities at Northstar. During the open-water season responses by
ringed seals are expected to be even less than during the ice-covered
season. A major oil spill is unlikely (please see response to comments
2 and 3 in 66 FR 65923 (December 21, 2001)) for a discussion on
potential for an oil spill to affect marine mammals in the Beaufort
Sea), but the impact of an oil spill on seals could be lethal to some
heavily oiled pups or adults. In the unlikely event of a major spill,
the overall impacts to seal populations would be minimal due to the
small fraction of those exposed to recently spilled oil that are likely
to be seriously affected.
Responses to Northstar activities by migrating and feeding bowhead
whales and beluga whales will be short-term and limited in scope due to
the typically small proportion of whales that will migrate near
Northstar and the relatively low levels of underwater sounds
propagating seaward from the island at most times. Limited deflection
effects may occur when vessels are operating for prolonged periods near
Northstar. An oil spill is unlikely and it is even less likely to
disperse into the main migration corridor for either whale species. The
effects of oiling on bowhead and beluga whales are unknown, but could
include fouling of baleen and irritation of the eyes, skin, and
respiratory tract (if heavily oiled).
Impacts to marine mammal food resources or habitat are not expected
from any of the continued drilling or operational activities at
Northstar.
Potential Impacts on Subsistence Use of Marine Mammals
Inupiat hunters emphasize that all marine mammals are sensitive to
noise, and, therefore, they make as little extraneous noise as possible
when hunting. Bowhead whales often show avoidance or other behavioral
reactions to strong underwater noise from industrial activities, but
often tolerate the weaker noise received when the same activities are
occurring farther away. Various studies have provided information about
these sound levels and distances (Richardson and Malme, 1993;
Richardson et al., 1995a,b; Miller et al., 1999). However, scientific
studies done to date have limitations, as discussed in part by Moore
and Clarke (1992) and in Minerals Management Service (MMS, 1997).
Inupiat whalers believe that some migrating bowheads are diverted by
noises at greater distances than have been demonstrated by scientific
studies (e.g., Rexford, 1996; MMS, 1997). The whalers have also
mentioned that bowheads sometimes seem more skittish and more difficult
to approach when industrial activities are underway in the area. There
is also concern about the persistence of any deflection of the bowhead
migration, and the possibility that sustained deflection might
influence subsistence hunting success farther ``downstream'' during the
fall migration.
Underwater sounds associated with drilling and production
operations have lower source levels than do the seismic pulses and
drillship sounds that have been the main concern of the Inupiat
hunters. Sounds from vessels supporting activities at Northstar will
attenuate below ambient noise levels at closer distances than do
seismic or drillship sounds. Thus, reaction/ deflection distances for
bowhead whales approaching Northstar are expected to be considerably
shorter than those for
[[Page 42526]]
whales approaching seismic vessels or drillships (BPXA, 1999).
Recently, there has been concern among Inupiat hunters that barges
and other vessels operating within or near the bowhead migration/
feeding corridor may deflect whales for an extended period (J.C.
George, NSB-DWM, pers. comm to Williams). It has been suggested that,
if the headings of migrating bowheads are altered through avoidance of
vessels, the whales may subsequently maintain the ``affected'' heading
well past the direct zone of influence of the vessel. This might result
in progressively increasing deflection as the whale progresses west.
However, crew boats and barges supporting Northstar remain well inshore
of the main migration corridor. As a result, BP believes this type of
effect is unlikely to occur in response to these types of Northstar-
related vessel traffic.
Potential effects on subsistence could result from direct actions
of oil development upon the biological resources or from associated
changes in human behavior. For example, the perception that marine
mammals might be contaminated or ``tainted'' by an oil spill could
affect subsistence patterns whether or not many mammals are actually
contaminated. The BP application discusses both aspects in greater
detail.
A Conflict Avoidance Agreement/Plan of Cooperation (CAA/Plan) has
been negotiated between BP, the AEWC, and the North Slope Borough in
past years, and discussions regarding future agreements are on-going. A
new Plan will address concerns relating to the subsistence harvest of
marine mammals in the region surrounding Northstar.
Mitigation
Mitigation proposed by BP includes avoidance of seal lairs by 100 m
(328 ft), if new activities occur on the floating sea ice after 20
March. In addition, BP proposes to mitigate potential acoustic effects
that might occur due to exposure of whales or seals to strong pulsed
sounds. If BP needs to conduct an activity capable of producing
underwater sound with levels [gteqt] 180 or [gteqt] 190 dB re 1 microPa
(rms) at locations where whales or seals could be exposed, BP proposes
to monitor safety zones corresponding to those levels. Activities
producing underwater sound levels [gteqt]180 or [gteqt]190 dB re 1
microPa (rms) would be temporarily shut down if whales and seals,
respectively, occur within the relevant radii. The purposes of these
mitigation measures are to minimize potentially harmful impacts to
marine mammals and their habitat, and to ensure the availability of
marine mammals for subsistence purposes.
Monitoring
The monitoring proposed by BP includes some research components to
be implemented annually and others to be implemented on a contingency
basis. Basking and swimming ringed seals will be counted annually by
Northstar personnel in a systematic fashion to document the long-term
stability of ringed seal abundance and habitat use near Northstar. BP
proposes to monitor the bowhead migration in 2005 and subsequent years
using two Directional Autonomous Seafloor Acoustic Recorders (DASARs)
to record near-island sounds and two to record whale calls. If BP needs
to conduct an activity capable of producing underwater sound with
levels [gteqt]180 or [gteqt]190 dB re 1 microPa (rms) at locations
where whales or seals could be exposed, BP proposes to monitor safety
zones defined by those levels. The monitoring proposed would be used in
estimating the numbers of marine mammals that may potentially be
disturbed (i.e., taken by Level B harassment), incidental to operations
of Northstar.
Reporting
BP proposes to submit annual monitoring reports, with the first
report to cover the activities from May (or the effective date of these
regulations) through October 2005 (i.e., the bowhead migration period),
and subsequent reports to cover activities from November of one year
through October of the next year. BP proposes that the 2005 report
would be due on March 31, 2006. For subsequent years, it is proposed
that the annual report (to cover monitoring during a 12-month November-
October period) would be submitted on 31 March of the following year.
The annual reports will provide summaries of BP's Northstar
activities. These summaries will include the following: dates and
locations of ice-road construction, on-ice activities, vessel/
hovercraft operations, oil spills, emergency training, and major repair
or maintenance activities thought to alter the variability or
composition of sounds in a way that might have detectable effects on
ringed seals or bowhead whales. The annual reports will also provide
details of ringed seal and bowhead whale monitoring, the monitoring of
Northstar sound via the nearshore DASAR, estimates of the numbers of
marine mammals exposed to project activities, descriptions of any
observed reactions, and documentation concerning any apparent effects
on accessibility of marine mammals to subsistence hunters.
BP also proposes to submit a single comprehensive report on the
monitoring results from 2005 to mid-2009 no later than 240 days prior
to expiration of the renewed regulations, i.e., by September 2009.
If specific mitigation is required for activities on the sea ice
initiated after 20 March (requiring searches with dogs for lairs), or
during the operation of strong sound sources (requiring visual
observations and shut-down), then a preliminary summary of the
activity, method of monitoring, and preliminary results will be
submitted within 90 days after the cessation of that activity. The
complete description of methods, results and discussion will be
submitted as part of the annual report.
Any observations concerning possible injuries, mortality, or an
unusual marine mammal mortality event will be transmitted to NMFS
within 48 hours.
Preliminary Determinations
NMFS has preliminarily determined that the impact of operation of
the Northstar facility in the U.S. Beaufort Sea will result in no more
than a temporary modification in behavior by certain species of
cetaceans and pinnipeds. During the ice-covered season, pinnipeds close
to the island may be subject to incidental harassment due to the
localized displacement from construction of ice roads, from
transportation activities on those roads, and from oil production-
related activities at Northstar. As cetaceans will not be in the area
during the ice-covered season, they will not be affected.
During the open-water season, the principal operations-related
noise activities will be impact hammering, helicopter traffic, vessel
traffic, and other general production activity on Seal Island. Sounds
from production activities on the island are not expected to be
detectable more than about 5-10 km (3.1-6.2 mi) offshore of the island.
Helicopter traffic will be limited to nearshore areas between the
mainland and the island and is unlikely to approach or disturb whales.
Barge traffic will be located mainly inshore of the whales and will
involve vessels moving slowly, in a straight line, and at constant
speed. Little disturbance or displacement of whales by vessel traffic
is expected. While behavioral modifications may be made by these
species to avoid the resultant noise, this behavioral change is
expected to have no more than a negligible impact on the animals.
The number of potential incidental harassment takes will depend on
the
[[Page 42527]]
distribution and abundance of marine mammals (which vary annually due
to variable ice conditions and other factors) in the area of
operations. However, because the activity is in shallow waters inshore
of the main migration/feeding corridor for bowhead whales and far
inshore of the main migration corridor for belugas, the number of
potential harassment takings of these species and stocks is estimated
to be small. The results of intensive studies and analyses to date
(Williams et al., 2004) suggest that the biological effects of
Northstar on ringed seals are minor (resulting from short distance
displacement of breathing holes and haul-out sites), limited to the
area of physical ice disturbance around the island and small in number.
In addition, no take by injury or death of any marine mammal is
anticipated, and the potential for temporary (or permanent) hearing
impairment will be avoided through the incorporation of the mitigation
measures mentioned in this document. No rookeries, areas of
concentrated mating or feeding, or other areas of special significance
for marine mammals occur within or near the planned area of operations.
Because most of the bowhead whales are east of the Northstar area
in the Canadian Beaufort Sea until late August/early September,
activities at Northstar are not expected to impact subsistence hunting
of bowhead whales prior to that date. Appropriate mitigation measures
to avoid an unmitigable adverse impact on the availability of bowhead
whales for subsistence needs will be the subject of consultation
between BP and subsistence users.
Also, while production at Northstar has some potential to influence
seal hunting activities by residents of Nuiqsut, because (1) the peak
sealing season is during the winter months, (2) the main summer sealing
is off the Colville Delta, and (3) the zone of influence from Northstar
on seals is fairly small, NMFS believes that Northstar oil production
will not have an unmitigable adverse impact on the availability of
these stocks for subsistence uses.
NMFS has preliminarily determined that the potential for an
offshore oil spill occurring is low (less than 10 percent over 20-30
years (Corps, 1999)) and the potential for that oil intercepting whales
or seals is even lower (about 1.2 percent (Corps, 1999)). In addition,
there will be an oil spill response program in effect that will be as
effective as possible in Arctic waters. Accordingly, and because of the
seasonality of bowheads, NMFS has preliminarily determined that the
taking of marine mammals incidental to operations at the Northstar oil
production facility will have no more than a negligible impact on them.
Also, NMFS has preliminarily determined that there will not be an
unmitigable adverse impact on subsistence uses of marine mammals.
ESA
On March 4, 1999, NMFS concluded consultation with the Corps on
permitting the construction and operation at the Northstar site. The
finding of that consultation was that construction and operation at
Northstar is not likely to jeopardize the continued existence of the
bowhead whale stock. No critical habitat has been designated for this
species; therefore, none will be affected. Because issuance of a small
take authorization to BPXA under section 101(a)(5) of the MMPA is a
Federal action, NMFS has section 7 responsibilities for this action.
Preliminarily, NMFS has determined that this rulemaking action is not
different from that analyzed in 1999 in the Biological Opinion. Prior
to issuing the final rule, if NMFS determines that there are no impacts
on listed species different from the analysis in the 1999 Biological
Opinion, NMFS will issue an Incidental Take Statement under section 7
of the ESA at the time it issues an LOA for this activity.
NEPA
On June 12, 1998 (63 FR 32207), the Environmental Protection Agency
(EPA) noted the availability for public review and comment a Draft EIS
prepared by the Corps under NEPA on Beaufort Sea oil and gas
development at Northstar. Comments on that document were accepted by
the Corps until August 31, 1998 (63 FR 43699, August 14, 1998). On
February 5, 1999 (64 FR 5789), EPA noted the availability for public
review and comment of a Final EIS prepared by the Corps under NEPA on
Beaufort Sea oil and gas development at Northstar. Comments on that
document were accepted by the Corps until March 8, 1999. Based upon a
review of the Final EIS, the comments received on the Draft EIS and
Final EIS, and the comments received during the previous rulemaking, on
May 18, 2000, NMFS adopted the Corps Final EIS and determined that it
is not necessary to prepare supplemental NEPA documentation (see 65 FR
34014, May 25, 2000).
Request for Information
NMFS requests interested persons to submit comments, information,
and suggestions concerning BP's application and proposed regulations on
the taking of marine mammals incidental to construction and operation
of an offshore oil and gas facility in the U.S. Beaufort Sea. The
proposed regulations re-promulgate those formerly codified at
Sec. Sec. 216.200 through 216.210 (expired on May 25, 2005), but
contain new effective dates in Sec. 216.201; makes minor changes for
clarity to Sec. 216.204 (the word ``possible'' is removed and the word
``practicable'' is inserted in its place), Sec. 216.207 (the first
sentence of paragraph (d) is revised by removing the superfluous phrase
``, in accordance with Administrative Procedure Act requirements,'')
and Sec. 216.210 (the first sentence of paragraph (a) is revised by
removing the phrase ``In addition to complying with the provisions in
Sec. Sec. 216.106 and 216.208,''); and modifies the monitoring and
reporting requirements in Sec. 216.206 as noted in this document's
preamble.
Prior to submitting comments, NMFS recommends reviewers of this
document read the responses to comments made previously (see 65 FR
34014, May 25, 2000; and 66 FR 65923, December 21, 2001), for the
previous rulemaking and LOAs as NMFS does not intend to address these
issues further without the submission of additional scientific
information or policy considerations.
Classification
This action has been determined to be not significant for purposes
of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce has
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities
since it would have no effect, directly or indirectly, on small
businesses. It may affect a small number of contractors providing
services related to reporting the impact of the activity on marine
mammals, some of whom may be small businesses, but the number involved
would not be substantial. Further, since the monitoring and reporting
requirements are what would lead to the need for their services, the
economic impact on them would be beneficial. Because of this
certification, a regulatory flexibility analysis is not required and
none has been prepared.
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act (PRA) unless that
[[Page 42528]]
collection of information displays a currently valid OMB control
number. This proposed rule contains collection-of-information
requirements subject to the provisions of the PRA. These requirements
have been approved by OMB under control number 0648-0151, and include
applications for LOAs, and reports.
The reporting burden for the approved collections-of-information is
estimated to be approximately 80 hours for the annual applications for
an LOA, a total of 80 hours each for the winter monitoring program
reports and a total of 120-360 hours for the interim and final annual
open-water reports (increasing complexity in the analysis of multi-year
monitoring programs in the latter years of that program requires
additional time to complete). These estimates include the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection-of-information. Send comments regarding these burden
estimates, or any other aspect of this data collection, including
suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES).
List of Subjects in 50 CFR Part 216
Exports, Fish, Imports, Indians, Labeling, Marine mammals,
Penalties, Reporting and recordkeeping requirements, Seafood,
Transportation.
Dated: July 19, 2005.
James W. Balsiger,,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble, 50 CFR part 216 is proposed
to be amended as follows:
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
1. The authority citation for part 216 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq.
2. Subpart R is added to part 216 to read as follows:
Subpart R--Taking of Marine Mammals Incidental to Construction and
Operation of Offshore Oil and Gas Facilities in the U.S. Beaufort
Sea
Sec.
216.200 Specified activity and specified geographical region.
216.201 Effective dates.
216.202 Permissible methods of taking.
216.203 Prohibitions.
216.204 Mitigation.
216.205 Measures to ensure availability of species for subsistence
uses.
216.206 Requirements for monitoring and reporting.
216.207 Applications for Letters of Authorization.
216.208 Letters of Authorization.
216.209 Renewal of Letters of Authorization.
216.210 Modifications to Letters of Authorization.
Subpart R--Taking of Marine Mammals Incidental to Construction and
Operation of Offshore Oil and Gas Facilities in the U.S. Beaufort
Sea
Sec. 216.200 Specified activity and specified geographical region.
Regulations in this subpart apply only to the incidental taking of
those marine mammal species specified in paragraph (b) of this section
by U.S. citizens engaged in oil and gas development activities in areas
within state and/or Federal waters in the U.S. Beaufort Sea specified
in paragraph (a) of this section. The authorized activities as
specified in a Letter of Authorization issued under Sec. Sec. 216.106
and 216.208 include, but may not be limited to, site construction,
including ice road and pipeline construction, vessel and helicopter
activity; and oil production activities, including ice road
construction, and vessel and helicopter activity, but excluding seismic
operations.
(a)(1) Northstar Oil and Gas Development; and
(2) [Reserved]
(b) The incidental take by harassment, injury or mortality of
marine mammals under the activity identified in this section is limited
to the following species: bowhead whale (Balaena mysticetus), gray
whale (Eschrichtius robustus), beluga whale (Delphinapterus leucas),
ringed seal (Phoca hispida), spotted seal (Phoca largha) and bearded
seal (Erignathus barbatus).
Sec. 216.201 Effective dates.
Regulations in this subpart are effective from September 1, 2005
through August 31, 2010.
Sec. 216.202 Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to Sec. Sec.
216.106 and 216.208, the Holder of the Letter of Authorization may
incidentally, but not intentionally, take marine mammals by harassment,
injury, and mortality within the area described in Sec. 216.200(a),
provided the activity is in compliance with all terms, conditions, and
requirements of these regulations and the appropriate Letter of
Authorization.
(b) The activities identified in Sec. 216.200 must be conducted in
a manner that minimizes, to the greatest extent practicable, any
adverse impacts on marine mammals, their habitat, and on the
availability of marine mammals for subsistence uses.
Sec. 216.203 Prohibitions.
Notwithstanding takings authorized by Sec. 216.200 and by a Letter
of Authorization issued under Sec. Sec. 216.106 and 216.208, no person
in connection with the activities described in Sec. 216.200 shall:
(a) Take any marine mammal not specified in Sec. 216.200(b);
(b) Take any marine mammal specified in Sec. 216.200(b) other than
by incidental, unintentional harassment, injury or mortality;
(c) Take a marine mammal specified in Sec. 216.200(b) if such
taking results in more than a negligible impact on the species or
stocks of such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and
requirements of these regulations or a Letter of Authorization issued
under Sec. 216.106.
Sec. 216.204 Mitigation.
The activity identified in Sec. 216.200(a) must be conducted in a
manner that minimizes, to the greatest extent practicable, adverse
impacts on marine mammals and their habitats. When conducting
operations identified in Sec. 216.200, the mitigation measures
contained in the Letter of Authorization issued under Sec. Sec.
216.106 and 216.208 must be utilized.
Sec. 216.205 Measures to ensure availability of species for
subsistence uses.
When applying for a Letter of Authorization pursuant to Sec.
216.207, or a renewal of a Letter of Authorization pursuant to Sec.
216.209, the applicant must submit a Plan of Cooperation that
identifies what measures have been taken and/or will be taken to
minimize any adverse effects on the availability of marine mammals for
subsistence uses. A plan must include the following:
(a) A statement that the applicant has notified and met with the
affected subsistence communities to discuss proposed activities and to
resolve potential conflicts regarding timing and methods of operation;
(b) A description of what measures the applicant has taken and/or
will take to ensure that oil development activities will not interfere
with subsistence whaling or sealing;
(c) What plans the applicant has to continue to meet with the
affected communities to notify the communities of any changes in
operation.
[[Page 42529]]
Sec. 216.206 Requirements for monitoring and reporting.
(a) Holders of Letters of Authorization issued pursuant to
Sec. Sec. 216.106 and 216.208 for activities described in Sec.
216.200 are required to cooperate with the National Marine Fisheries
Service, and any other Federal, state or local agency monitoring the
impacts of the activity on marine mammals. Unless specified otherwise
in the Letter of Authorization, the Holder of the Letter of
Authorization must notify the Administrator, Alaska Region, National
Marine Fisheries Service, or his/her designee, by letter or telephone,
at least 2 weeks prior to initiating new activities potentially
involving the taking of marine mammals.
(b) Holders of Letters of Authorization must designate qualified
on-site individuals, approved in advance by the National Marine
Fisheries Service, to conduct the mitigation, monitoring and reporting
activities specified in the Letter of Authorization issued pursuant to
Sec. 216.106 and Sec. 216.208.
(c) Holders of Letters of Authorization must conduct all monitoring
and/or research required under the Letter of Authorization.
(d) Unless specified otherwise in the Letter of Authorization, the
Holder of that Letter of Authorization must submit an annual report to
the Director, Office of Protected Resources, National Marine Fisheries
Service, no later than March 31 of the year following the conclusion of
the previous open water monitoring season. This report must contain all
information required by the Letter of Authorization.
(e) A final annual comprehensive report must be submitted within
the time period specified in the governing Letter of Authorization.
(f) A final comprehensive report on all marine mammal monitoring
and research conducted during the period of these regulations must be
submitted to the Director, Office of Protected Resources, National
Marine Fisheries Service at least 240 days prior to expiration of these
regulations or 240 days after the expiration of these regulations if
renewal of the regulations will not be requested.
Sec. 216.207 Applications for Letters of Authorization.
(a) To incidentally take bowhead whales and other marine mammals
pursuant to these regulations, the U.S. citizen (see definition at
Sec. 216.103) conducting the activity identified in Sec. 216.200,
must apply for and obtain either an initial Letter of Authorization in
accordance with Sec. Sec. 216.106 and 216.208, or a renewal under
Sec. 216.209.
(b) The application for an initial Letter of Authorization must be
submitted to the National Marine Fisheries Service at least 180 days
before the activity is scheduled to begin.
(c) Applications for initial Letters of Authorization must include
all information items identified in Sec. 216.104(a).
(d) NMFS will review an application for an initial Letter of
Authorization in accordance with Sec. 216.104(b) and, if adequate and
complete, will publish a notice of receipt of a request for incidental
taking and a proposed amendment to Sec. 216.200(a). In conjunction
with amending Sec. 216.200(a), the National Marine Fisheries Service
will provide a minimum of 45 days for public comment on the application
for an initial Letter of Authorization.
(e) Upon receipt of a complete application for an initial Letter of
Authorization, and at its discretion, the National Marine Fisheries
Service may submit the monitoring plan to members of a peer review
panel for review and/or schedule a workshop to review the plan. Unless
specified in the Letter of Authorization, the applicant must submit a
final monitoring plan to the Assistant Administrator prior to the
issuance of an initial Letter of Authorization.
Sec. 216.208 Letters of Authorization.
(a) A Letter of Authorization, unless suspended, revoked or not
renewed, will be valid for a period of time not to exceed the period of
validity of this subpart, but must be renewed annually subject to
annual renewal conditions in Sec. 216.209.
(b) Each Letter of Authorization will set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact on the
species, its habitat, and on the availability of the species for
subsistence uses; and
(3) Requirements for monitoring and reporting, including any
requirements for the independent peer-review of proposed monitoring
plans.
(c) Issuance and renewal of each Letter of Authorization will be
based on a determination that the number of marine mammals taken by the
activity will be small, that the total number of marine mammals taken
by the activity as a whole will have no more than a negligible impact
on the species or stock of affected marine mammal(s), and will not have
an unmitigable adverse impact on the availability of species or stocks
of marine mammals for taking for subsistence uses.
(d) Notice of issuance or denial of a Letter of Authorization will
be published in the Federal Register within 30 days of a determination.
Sec. 216.209 Renewal of Letters of Authorization.
(a) A Letter of Authorization issued under Sec. 216.106 and Sec.
216.208 for the activity identified in Sec. 216.200 will be renewed
annually upon:
(1) Notification to the National Marine Fisheries Service that the
activity described in the application submitted under
Sec. 216.207 will be undertaken and that there will not be a
substantial modification to the described work, mitigation or
monitoring undertaken during the upcoming season;
(2) Timely receipt of the monitoring reports required under Sec.
216.205, and the Letter of Authorization issued under Sec. 216.208,
which have been reviewed by the National Marine Fisheries Service and
determined to be acceptable, and the Plan of Cooperation required under
Sec. 216.205; and
(3) A determination by the National Marine Fisheries Service that
the mitigation, monitoring and reporting measures required under Sec.
216.204 and the Letter of Authorization issued under Sec. Sec. 216.106
and 216.208, were undertaken and will be undertaken during the upcoming
annual period of validity of a renewed Letter of Authorization.
(b) If a request for a renewal of a Letter of Authorization issued
under Sec. Sec. 216.106 and 216.208 indicates that a substantial
modification to the described work, mitigation or monitoring undertaken
during the upcoming season will occur, the National Marine Fisheries
Service will provide the public a minimum of 30 days for review and
comment on the request. Review and comment on renewals of Letters of
Authorization are restricted to
(1) New cited information and data that indicates that the
determinations made in this document are in need of reconsideration,
(2) The Plan of Cooperation, and
(3) The proposed monitoring plan.
(c) A notice of issuance or denial of a Renewal of a Letter of
Authorization will be published in the Federal Register within 30 days
of a determination.
Sec. 216.210 Modifications to Letters of Authorization.
(a) Except as provided in paragraph (b) of this section, no
substantive modification (including withdrawal or
[[Page 42530]]
suspension) to the Letter of Authorization by the National Marine
Fisheries Service, issued pursuant to Sec. Sec. 216.106 and 216.208
and subject to the provisions of this subpart shall be made until after
notification and an opportunity for public comment has been provided.
For purposes of this paragraph, a renewal of a Letter of Authorization
under Sec. 216.209, without modification (except for the period of
validity), is not considered a substantive modification.
(b) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species
or stocks of marine mammals specified in Sec. 216.200(b), a Letter of
Authorization issued pursuant to Sec. Sec. 216.106 and 216.208 may be
substantively modified without prior notification and an opportunity
for public comment. Notification will be published in the Federal
Register within 30 days subsequent to the action.
[FR Doc. 05-14620 Filed 7-22-05; 8:45 am]
BILLING CODE 3510-22-S