Marine mammals: Taking and importation— BP Exploration; Beaufort Sea, AK; offshore oil and gas facilities; construction and operation,


[Federal Register: July 25, 2005 (Volume 70, Number 141)]

[Proposed Rules]

[Page 42520-42530]

From the Federal Register Online via GPO Access []



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.

SUMMARY: NMFS has received a request from BP Exploration (Alaska), 900 East Benson Boulevard, Anchorage, AK 99519 (BP) for renewal of an

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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: 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: 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: 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,

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, NMFS, 301- 713-2055, ext 128 or Brad Smith, NMFS, (907) 271-5006.



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: .

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

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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: 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

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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

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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