[Federal Register Volume 71, Number 44 (Tuesday, March 7, 2006)]
[Rules and Regulations]
[Pages 11314-11324]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2136]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 050630175-6039-02; I.D. 010305B]
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS, upon application from BP Exploration (Alaska), (BP), is
issuing regulations to govern the unintentional takings of 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. Issuance of regulations, and Letters of Authorization (LOAs)
under these regulations, governing the unintentional incidental takes
of marine mammals in connection with particular activities is required
by the Marine Mammal Protection Act (MMPA) when the Secretary of
Commerce (Secretary), after notice and opportunity for comment, finds,
as here, that such takes will have a negligible impact on the species
and stocks of marine mammals and will not have an unmitigable adverse
impact on the availability of them for subsistence uses. These
regulations do not authorize BP's oil development activities as such
authorization is not within the jurisdiction of the Secretary. Rather,
NMFS' regulations together with Letters of Authorization (LOAs)
authorize the unintentional incidental take of marine mammals in
connection with this activity and prescribe methods of taking and other
means of effecting the least practicable adverse impact on marine
mammal species and their habitat, and on the availability of the
species for subsistence uses.
DATES: Effective from April 6, 2006 through April 6, 2011.
ADDRESSES: 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/pr/permits/incidental.htm
Documents cited in this final rule may also be viewed, by
appointment, during regular business hours at this address.
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 other means of effecting the least practicable adverse
impact 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
[[Page 11315]]
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 last LOA expired on May 25, 2005, when
the regulations expired.
On August 30, 2004, BP requested 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. Because the previous regulations have expired, this will
require new regulations to be promulgated. 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/pr/permits/incidental.htm
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 program
ended in May, 2004 and the drill rig either will be demobilized by
barge or kept on the island for potential future well-workover or other
drilling activities (BP, 2005). 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 on the 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 several
organizations. NMFS responded to those comments on July 25, 2005 (70 FR
42420) in conjunction with issuance of proposed rulemaking on this
action. During the 30-day public comment period on the proposed rule,
NMFS received comments from BP, the Marine Mammal Commission
(Commission), the Minerals Management Service (MMS), 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 one citizen. BP comments are not addressed in this section
but are noted elsewhere in this document and referenced as BP (2005).
The AEWC notes its appreciation for the work that BP has put into its
application, that NMFS has put into the preparation of the draft 5-year
regulations and looks forward to continuing its cooperative
relationship with both BP and NMFS.
In that regard, NMFS notes that, in accordance with its regulations
(50 CFR 216.107(a)(3)), it convenes a scientific peer-review meeting
annually to discuss, in addition to other MMPA authorizations, the
results of the Northstar monitoring program and suggested improvements
to that program. The 2005 peer-review meeting was held on May 10-12,
2005 in Anchorage, AK and included discussion on the Alaska North Slope
Borough's (NSB) Science Advisory Committee (SAC) review of the
comprehensive report on monitoring conducted at Northstar under the
previous regulations (Richardson and Williams [eds], 2004), and the
current BP application and monitoring plan, as discussed later in this
document.
MMPA Concerns
Comment 1: The AEWC requested clarification of NMFS using the term
``Northstar Oil and Gas Development'' in 50 CFR 216.200(a)(1). While
the specified geographic region would appear to be ``state and/or
Federal waters of the Beaufort Sea,'' the phrase ``specified in
paragraph (a) of this section'' would seem to indicate a localized area
around Northstar.
Response: The regulations were designed to include all oil and gas
development (but not oil exploration) activities within the U.S.
Beaufort Sea. The ``specified geographic region'' designation required
by section 101(a)(5)(A) of the MMPA is ``state and/or Federal waters of
the Beaufort Sea.'' The applicant that is taking marine mammals in this
case is the Northstar Oil and Gas Development project within that
region.
Comment 2: The Trustees state that the Secretary must consider all
past, present, and future activities that may affect a marine mammal
species or stock to determine whether proposed operations have a
``negligible impact on such species and stock.'' The Trustees state
that NMFS has not evaluated all activities that have occurred and may
occur in the Beaufort Sea during the effective term of 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 (including
seismic or other geological or geophysical surveys related to a
potential ``over-the-top'' offshore pipeline route) that occurred
during the fall bowhead whale migratory season have not been adequately
assessed. In the future, seismic surveys may be proposed related to
lands in upcoming lease sales in state and Federal offshore waters and
[[Page 11316]]
for additional pipeline routes. NMFS must assess the cumulative effects
of these disturbances. Similarly, the AEWC states that NMFS must review
cumulative effects in its review of Incidental Take applications if the
Secretary is to continue to fulfill the statutory requirements of the
MMPA.
Response: MMPA section 101(a)(5)(A) requires the Secretary to issue
an incidental take authorization for a specified activity, provided the
requisite findings (including negligible impact) are made. There is
nothing in the plain language of the provision or in NMFS' implementing
regulations that requires a cumulative effects analysis in connection
with issuing an incidental take authorization. We also note the
legislative history on this section of the MMPA makes no mention of
cumulative effects analyses. To the extent required under the National
Environmental Policy Act (NEPA), NMFS considers cumulative impacts when
it prepares environmental analyses for marine mammal incidental take
applications (see 40 CFR 1508.25(c) and 1508.7). However, while the
MMPA does not require an analysis of the impacts from non-related
activities, such as seismic, the potential for cumulative impacts by
offshore oil development and seismic activity on the subsistence
lifestyle of the North Slope residents remains a concern and is being
addressed, as appropriate, under NEPA.
For most activities mentioned in the Trustees' comment, discussion
was provided in the supporting Final Environmental Impact Statement
(FEIS) (Corps, 1999) for Northstar. Where the Corps' FEIS did not
address a certain activity and an additional NEPA analysis is
warranted, NMFS prepares such documentation. For example, NMFS prepared
an Environmental Assessment (EA) for additional seismic surveys in the
Beaufort Sea (see 65 FR 21720, April 24, 2000); the National Science
Foundation prepared and released for public comment an EA for
scientific seismic activities in the Arctic Ocean (see 70 FR 47792,
August 15, 2005 wherein NMFS issued a Finding of No Significant
Impact); and MMS is currently preparing a Programmatic EA for multiple
seismic surveys in the Beaufort and Chukchi seas in 2006. In compliance
with the NEPA, these EAs all address cumulative impacts. For the
``over-the-top'' pipeline survey, that survey was conducted in 2001
under an Incidental Harassment Authorization (IHA) (see 66 FR 42515,
August 13, 2001). An analysis conducted under NEPA by NMFS concluded
that the activity was Categorically Excluded since it was the only
seismic activity being conducted in the Beaufort Sea that year, that
noise-related impacts were adequately addressed in the 2000 EA, and the
2001 survey would have lower impacts on the environment than those
previously addressed activities. Future over-the-top surveys remain
speculative at this time and do not need to be addressed further.
Although impacts from use of a hovercraft, a recent additional mode of
transportation at Northstar, have not been specifically analyzed, it
replaced other forms of transportation (that were analyzed) that have a
greater potential impact on the marine environment.
Marine Mammal Concerns
Comment 3: The AEWC appreciates NMFS' clarification that the
Alaskan Beaufort Sea is both migratory and feeding habitat. The AEWC
would appreciate a formal acknowledgment, or similar statement, of this
finding in the preamble to the final rule.
Response: As mentioned in response to comment (RTC) 3 in the
proposed rule, 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 (east of the Northstar facility) 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 (west of the Northstar facility) during the fall hunt, at
least 75 percent had been feeding prior to death. Wursig et al. (2002)
(in Richardson and Thomson (2002)) found that bowheads in the eastern
Beaufort Sea between Flaxman Island (146[deg] W lat.) and Herschel
(139[deg] W lat.) Island that feeding was the most common activity in
September/early October in most years studied (34 percent overall),
followed by traveling (31 percent), socializing (18 percent) and other
activities (4 percent). Overall however, the importance of the eastern
Beaufort Sea area for late-summer feeding by bowheads varied
considerably from year to year. The estimated proportion of time spent
feeding during late summer and autumn ranged from 9 to 66 percent in
different years (Lowry and Sheffield, 2002). Overall, Richardson and
Thomson (2002) indicate that bowheads spent too little time in the
eastern Beaufort study area for only a short period in late summer/
fall, averaging about 4 days. That, they state, is too little time to
allow the average bowhead to consume more than a small fraction of its
annual dietary intake. Assuming that the same results would be valid
for the central Beaufort Sea where Northstar is located, NMFS concludes
that bowhead whales will feed opportunistically during the fall
migration but that no areas of concentrated feeding occur on a multi-
year basis within or near the planned area of operations.
Marine Mammal Impact Concerns
Comment 4: The Trustees state that NMFS must evaluate the impacts
of the ``mystery'' noise source associated with Northstar production.
Response: The unknown noise source that occurred only during 2003
was evaluated in Richardson and Williams [eds] (2004). That document is
part of NMFS' Administrative Record on this action. Additional
information can be found in RTC 8 in the proposed rule (70 FR 42520,
July 25, 2005).
Comment 5: The Trustees state that MMS plans to renew its
permitting of the Liberty offshore oil and gas facility. Accordingly,
the cumulative effects of Northstar and Liberty facilities during the
effective term of the potential regulations must be evaluated.
Response: BP is considering its 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. These two documents are part of NMFS'
Administrative Record on this action.
Comment 6: The Trustees state that, in order for the Secretary to
determine that the activity will have a negligible impact on marine
mammal species and stocks, the Secretary must consider changes in the
regulatory regime governing proposed operations. The Secretary must
also use the best scientific information available. In that regard, the
Trustees state that 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
[[Page 11317]]
amount of discharge in the event of an accidental spill.
Response: On December 21, 2001 (66 FR 65923), NMFS published a
notice of issuance of an LOA to BP for oil production activities at
Northstar. This document contained an evaluation of the potential for
an oil spill to occur at Northstar and for that oil spill to affect
bowhead whales and other marine mammals. Based on the information
contained in the Northstar FEIS (Corps, 1999), NMFS concluded, at that
time, that the potential for an oil spill to occur and affect marine
mammals was low. As a result, NMFS determined that the findings of
negligible impact on marine mammals from the Northstar facility that
was made in the final rule (65 FR 34014, May 25, 2000) were
appropriate. NMFS also determined that its finding of no unmitigable
adverse impact on bowhead availability for subsistence hunting was
appropriate. No information has been provided to, or found by, NMFS to
indicate that the earlier decision was not correct and needed
reevaluation. The fact that the State of Alaska modified its statutes
to define oil discharge plans and relevant regulations is not relevant
for the determinations needed to be made by NMFS for this action since
well drilling at Northstar has been completed and BP has incorporated
the best available technology at Northstar to virtually eliminate the
potential for a significant oil spill to occur. This finding is
supported by BP documenting and reporting activities at Northstar.
Subsistence Concerns
Comment 7: The AEWC notes that the Open Water Season Conflict
Avoidance Agreement is entered among the operator, the AEWC, and local
Whaling Captains' Associations. The North Slope Borough is not a party.
Response: NMFS has updated this document accordingly.
Monitoring Concerns
Comment 8: The Commission recommends that NMFS consult with the
applicant, the MMS, and other industry and government entities, as
appropriate, to develop a collaborative long-term Arctic monitoring
program.
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 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. That report has been reviewed by the SAC. Its
findings are discussed later in this document.
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, MMS' 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.
Comment 9: The Commission is ``concerned about the likely effects
of climate change on sea ice in the Arctic and their corresponding
effects, by themselves and in conjunction with activities such as the
Northstar project, on ringed seals and polar bears and availability to
Alaska Natives who depend upon them for subsistence.'' The Commission
recommends that the potential effects of climate change be factored, as
appropriate and practical, into long-term monitoring and mitigation
programs.
Response: NMFS does not believe that the issuance of LOAs to BP for
the incidental taking (by harassment) of marine mammals over the next 5
years is the appropriate venue for the study of long-term climate
change. NMFS understands that studies on Arctic climate change impacts
are being proposed by other federal science agencies.
It should be noted that Northstar and related monitoring includes
the collection of data and information on ringed seal and bowhead whale
distribution and abundance. Correlation of that information with
information on yearly shore-fast ice distribution and thickness
provides some information on short-term climate effects.
Comment 10: The AEWC requests NMFS clarify that the Richardson and
Williams [eds], 2004 monitoring study on which NMFS relies for its
findings is under revision; therefore, NMFS should specify that its
findings are provisional pending the results of the reanalysis. While
NMFS notes the SAC report in the preamble to the proposed rule, NMFS
does not address the SAC's analysis and recommendations. The final rule
should recognize the SAC's recommendation for re-analysis and the Open-
Water Meeting participants' agreement to those recommendations. Meeting
participants also agreed that BP would reduce its survey effort for
2005 so that it could devote resources to the recommended re-analysis.
Response: The SAC reviewed Richardson and Williams [eds] (2004)
between March 7 and 9, 2005. That review was released by the NSB in
April, 2005 and is part of NMFS' Administrative Record for this action.
The SAC's opinion, that the conclusions in the Richardson and Williams
[eds] report are generally supported by the data presented, is
influenced in large part by the general findings that: (1) the impacts
from Northstar have likely been minimal, and (2) the production noise
from the island is relatively low. The sound measurement data suggest
that noise from the island is relatively low, and it appears that the
loudest sources are vessel noise, which is apparently most responsible
for the observed effects. Concerns were raised by the SAC mostly in
regard to data analysis. BP is currently revising the 2004 monitoring
report and will submit its final report shortly.
Comment 11: As the AEWC notes, the SAC report states that the
assumption that bowhead call rates are not influenced by industrial
sounds is not supported. Changes in calling behavior can be an
indicator of disturbance, whether or not displacement occurs, and can
provide important information on potential impacts to subsistence
hunting. From the Northstar perspective, this point is especially
important in the cumulative effects context.
Response: NMFS agrees. The SAC noted that calling behavior within
the analysis area was not analyzed. The SAC recommended that calling
behavior be analyzed as extensively as possible from the data that has
been collected.
Comment 12: The AEWC notes that Northstar could contribute
cumulatively to push the bowhead migration offshore. In that regard,
the AEWC, based on the SAC's recommendations and
[[Page 11318]]
deliberations during recent Open Water (Peer-Review) Meetings, is under
the impression that BP intends to evaluate noise and bowhead behavior
to the east and west of Northstar. This information is essential for an
understanding of the initiation and duration of a response. It is also
essential to NMFS and other permitting agencies when considering the
timing and location of future proposed activities in the vicinity of
Northstar (as pointed out by the Corps in the Northstar EIS). The AEWC
noted that NMFS should note the need to analyze Northstar data for
impacts on bowhead calling behavior.
Response: The SAC believes it is essential to continue monitoring
noise 450 m north of Northstar each year during the autumn bowhead
migration, using one or more DASARs (Directional Autonomous Seafloor
Acoustic Recorder) or other device, providing data in near real-time,
if possible. Regardless of the outcome of the reanalysis of previously
collected data at Northstar, the SAC recommends that a full acoustical
array data collection and analysis (as in 2001 - 2004) should be
conducted once every 4 years, with limited monitoring in interim years.
This full array may or may not provide the same spatio-temporal
coverage as previous years but should be of comparable scope, if not
greater. Alternative DASAR arrays might extend further north or cover
more east-west range. This recommendation was accepted by the
participants at the Beaufort Sea Open Water Peer Review Meeting that
was held in Anchorage, AK on May 10-12, 2005.
Comment 13: The AEWC objects to NMFS statements that, because the
fall subsistence hunts have been successful in recent years, this
demonstrates that there is no impact to the bowhead subsistence hunt
from operations at Northstar. The AEWC notes that there have been many
years in which the fall bowhead whale migration has been subject to
disturbance, in some cases, substantial. The whaling captains have
still succeeded in taking whales because they have looked for ways to
hunt in spite of adverse impacts, by using larger boats and GPS
locators. This increases risks and dollar cost for the subsistence
hunt.
Response: When promulgating incidental take regulations and issuing
LOAs for the Northstar oil production facility, NMFS must determine
that the activity is not having an unmitigable adverse impact on
subsistence uses of marine mammals. Unmitigable adverse impact means an
impact resulting from the specified activity: (1) that is likely to
reduce the availability of the species to a level insufficient for a
harvest to meet subsistence needs by: (i) causing the marine mammals to
abandon or avoid hunting areas; (ii) directly displacing subsistence
users; or (iii) placing physical barriers between the marine mammals
and the subsistence hunters; and (2) that cannot be sufficiently
mitigated by other measures to increase the availability of marine
mammals to allow subsistence needs to be met (50 CFR 216.103). For the
Northstar facility, a Conflict Avoidance Agreement (CAA) has been
negotiated between BP, the AEWC, and the local Whaling Captains'
Associations in past years. A signed CAA indicates to NMFS that, while
there might be impacts to the subsistence hunt by Northstar, they do
not rise to the level of having unmitigable adverse impacts.
Comment 14: The AEWC noted that in the late summer and fall of
2003, tug and barge operations hauled equipment from Camp Lonely to
West Dock for two months prior to the bowhead subsistence hunt at
Barrow and then during the hunt into October. Bowheads harvested in
early September near Cross Island by Nuiqsut hunters were taken
relatively near the island within normal hunting distances. However,
whales harvested one month later by Barrow hunters--west of both
Northstar and the tug and barge operations--appeared to be farther
offshore than normal. Based on the fall 2003 observations, it appears
that the migration could have been deflected somewhere west of Cross
Island and could have remained farther offshore than normal past Pt.
Barrow. As a result, NMFS must take account of the possibility that
seemingly ``small'' disturbances, when spread across the bowhead
migration route, can lead to a deflection or other disturbance of the
bowhead migration.
Response: This information is more relevant to the 2005 tug-and-
barge IHA (see 70 FR 47809, August 15, 2005). This activity was not
associated with the Northstar facility. For this same activity in 2005,
the AEWC signed a CAA with the activity sponsors that indicated this
barging would not have an unmitigable adverse impact on the
availability of bowheads for subsistence hunting. Implementation of a
mitigation measure ceasing barging operations by August 15th and not
resuming until later in the fall was determined by NMFS to be an
appropriate mitigation measure. In regard to the 2003 barging activity,
NMFS did not issue an IHA for this activity and, therefore, does not
have any record of timing of the transits and potential impacts that
could be assessed by marine mammal monitors. Whether this activity
impacted the fall Barrow hunt or whether other factors (such as storms)
played a role is unclear. Without empirical data on distribution of
whales during the bowhead hunt, and locations of the harvest, cause-
and-effect relationships remain speculative.
Mitigation Concerns
Comment 15: The AEWC recommends that NMFS clarify that the 180-dB
monitoring will be required at any time of the year during which
activities emitting these sound levels are proposed.
Response: If an activity at Northstar produces sound pressure
levels (SPLs) at a level such that SPLs equal to or greater than 180 dB
re 1 microPa (rms) extend beyond the island, BP is required to monitor
the potential impacts from that activity during any time of the year.
However, during the winter, when no cetaceans are in the vicinity of
Northstar, monitoring would take place for any activity with an SPL
extending beyond the island perimeter at a level of 190 dB or above,
the Level A criterion for pinnipeds.
Comment 16: The AEWC notes that even with a safety zone shut-down
corresponding to 180 dB, bowhead whales will not be available to
subsistence hunters at distances quite far beyond that noise level.
Therefore, reference to mitigation of impacts on subsistence by
monitoring a safety zone for preventing Level A harassment is
inappropriate and misleading.
Response: NMFS agrees. BP designed, and NMFS approved, Northstar
mitigation measures to: (1) prevent, or mitigate to the greatest extend
practicable, hearing impairment or hearing injury to marine mammals;
and (2) to ensure that Northstar activities are not having an
unmitigable adverse impact on the subsistence harvests of marine
mammals. The first goal is accomplished through monitoring safety zones
to prevent injury, while the second is implemented through a
prohibition on conducting, to the maximum extent practicable,
activities that will result in SPLs exceeding 180 dB beyond the
confines of the Northstar facility.
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
Northstar facility: ringed, spotted and bearded seals, and bowhead,
gray and beluga whales. General information on these species can be
found in the NMFS Stock Assessment Report. The Alaska document is
available at: http://
[[Page 11319]]
www.nmfs.noaa.gov/pr/readingrm/MMSARS/sar2003akfinal.pdf 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 an 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
MMPA Incidental Take application by BP 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 RTCs 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
that would be exposed to recently spilled oil and 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 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 smaller 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 whales approaching seismic vessels or drillships
(BP, 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 Michael 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, and NMFS agrees, that 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 CAA/Plan of Cooperation (CAA/Plan) has been negotiated between
BP, the AEWC, and the local Whaling Captains' Associations in past
years,
[[Page 11320]]
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 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 will 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 respectively could be exposed, BP will 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 this mitigation measure is
to minimize potentially harmful impacts to marine mammals and their
habitat. In addition, BP will prohibit, to the maximum extent
practicable, activities that will result in SPLs exceeding 180 dB
beyond the confines of the Northstar facility during the bowhead
subsistence hunt, in order to ensure the availability of marine mammals
for subsistence purposes.
Monitoring
The monitoring required of 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
will monitor the bowhead migration in 2005 and subsequent years using
two 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 will monitor
safety zones defined by those levels. The monitoring 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.
SAC Review
In accordance with agreements made at NMFS' 2004 scientific peer-
review meeting in Anchorage AK, that the information and data analysis
contained in Richardson and Williams [eds] (2004) should undergo a more
in-depth scientific analysis and review, in March 2005, the SAC
completed its review of this multi-year report on monitoring conducted
at Northstar. They also reviewed this document in the context of the
current BP application and monitoring plan. That review was released by
the NSB in April, 2005 and was the subject of additional discussion at
NMFS' 2005 peer-review meeting. It is also part of NMFS' Administrative
Record for this action. The SAC concluded that while the effect of
Northstar on the distribution of bowheads has not yet been determined,
the overall monitoring was carried out well and the analysis approach
was reasonable.
However, the SAC was unable to conclude that the effect of
Northstar on the distribution of whales has been determined, to the
extent that it could be, until some additional analyses have been
carried out, using the data previously collected. There are no results
that describe how the displacement in the analysis area may affect
distribution outside the analysis area. If the analysis is improved so
as to provide reasonable determination of displacement within the
analysis area, the SAC concludes reasonable predictions of future
displacement can be made in the analysis area given measurements of
future sound propagation remain at or below current levels.
The SAC's opinion, that the conclusions in the cited BP monitoring
report are generally supported by the data presented, is influenced in
large part by the general findings that: (1) the impacts from Northstar
have likely been minimal, and (2) the production noise from the island
is relatively low. The sound measurement data suggest that noise from
the island is relatively low, and it appears that the loudest sources
are vessel noise, which is apparently most responsible for the observed
effects. The SAC's concerns were mostly in regard to the data analysis,
such as use of an Industrial Sound Index, that the quantile regression
analysis be rerun using different predictors; that auto-correlation of
bowhead call distances was not accounted for in fitting the quantile
regression. The SAC also noted that aircraft noise was not adequately
analyzed.
The SAC noted that a key supposition of the Northstar study was
that there was a dose-response relationship underlying the whales'
response to the noise from Northstar. Because of the very low levels of
steady production noise from Northstar during the study period, this
supposition was not demonstrated. Effects on call behavior, a key focus
of the study objectives, were not examined in any depth. The
statistical analysis approach was generally well conceived, but some
revisions and extensions are strongly suggested. It should also be
determined if the statistical approach used is appropriate, if in fact,
no dose-response relationship can be established.
On future monitoring, the SAC believes it is essential to continue
monitoring noise 450 m (1476.4 ft) north of Northstar each year during
the autumn bowhead migration, using one or more DASARs or other device,
providing data in near real-time, if possible. Regardless of the
outcome of the data reanalysis, the SAC recommends that a full
acoustical array data collection and analysis (as in 2001 - 2004)
should be conducted once every 4 years, with limited monitoring in
interim years. This full array may or may not provide the same spatio-
temporal coverage as previous years but should be of comparable scope,
if not greater. (Alternative arrays might extend further north or cover
more east-west range).
Finally, the SAC recommended placement of one nondirectional
hydrophone (plus one or more redundant placements) at a position to be
chosen as follows: (a) the location should be one used in 2001-4, and
(b) the location should be the one that maximizes the proportion of the
migration recorded. This is not a high scientific priority, but may
provide useful information.
In addition to this regular schedule, the SAC recommends a full
field study and subsequent analysis should be carried out immediately
if analysis of the most recent available data indicate it to be
necessary.
BP is currently revising the 2004 monitoring report and will submit
its final report shortly.
Peer-Review Meeting
On May 10, 2005, the Beaufort Sea Open Water Peer-Review Meeting
was held in Anchorage, AK to discuss several activities proposed for
the Beaufort Sea during 2005. One of the actions was a review of the
monitoring plan for the upcoming 5-year period. After presentations by
BP and the SAC, the workshop participants agreed that BP should
undertake a monitoring program as described in the previous section.
[[Page 11321]]
Reporting
BP will submit annual monitoring reports, with the first report to
cover the activities from January, 2006 through October 2006 (i.e., the
end of the bowhead migration period), and subsequent reports to cover
activities from November of one year through October of the next year.
The 2006 report would be due on March 31, 2007. For subsequent years,
the annual report (to cover monitoring during a 12-month November-
October period) would be submitted on 31 March of the following year.
As detailed in the applicable LOA, an annual report 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 report
will also provide details of ringed seal and bowhead whale monitoring,
the monitoring of Northstar sound via either the nearshore DASAR (or
the DASAR array when that larger-scale monitoring program takes place),
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 will also submit a single comprehensive report on the monitoring
results from 2006 to mid-2010 no later than 240 days prior to
expiration of the renewed regulations, i.e., by September 2010.
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.
Determinations
NMFS has 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 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. Mitigation measures to avoid an
unmitigable adverse impact on the availability of bowhead whales for
subsistence needs are determined annually during consultations between
BP and the bowhead subsistence users. When appropriate, these
mitigation measures are incorporated into the annual LOA issued to BP
by NMFS. Mitigation measures required by NMFS include a prohibition on
new drilling into oil-bearing strata during either open water or
spring-time broken ice conditions and limitations on aircraft flights
during the bowhead migration. As a result of these mitigation measures
and conclusion of an annual CAA, NMFS has determined that there will
not be an unmitigable adverse impact on subsistence uses of bowhead
whales.
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 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 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
determined that there will not be an unmitigable adverse impact on the
availability of marine mammals for subsistence uses.
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
[[Page 11322]]
for this species; therefore, none will be affected. NMFS has determined
that this rulemaking action will not have effects beyond what was
analyzed in 1999 in the Biological Opinion.
NEPA
On February 5, 1999 (64 FR 5789), the Environmental Protection
Agency 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). As no
new scientific information has been obtained since publication of that
Final EIS that would change the analyses in that Final EIS, additional
NEPA analyses are not warranted.
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
certified to the Chief Counsel for Advocacy of the Small Business
Administration at the proposed rule stage, that this 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. The factual basis for this certification is found
in the proposed rule. No comments were received on that certification
or the economic impacts of this rule. As a result, no final regulatory
flexibility analysis was 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 collection of information
displays a currently valid OMB control number. This 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: March 1, 2006.
James W. Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, National
Marine Fisheries Service.
0
For reasons set forth in the preamble, 50 CFR part 216 is amended as
follows:
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
0
1. The authority citation for part 216 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq.
0
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 Level A harassment, Level B harassment
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 April 6, 2006
through April 6, 2011.
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 Level A and
Level B harassment 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.
[[Page 11323]]
Sec. 216.203 Prohibitions.
Notwithstanding takings contemplated in Sec. 216.200 and
authorized 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 Level A or Level B harassment 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.
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 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 or revoked, 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.
[[Page 11324]]
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 and accepted by the National Marine Fisheries
Service, and of 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 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. 06-2136 Filed 3-6-06; 8:45 am]
BILLING CODE 3510-22-S