[Federal Register Volume 69, Number 184 (Thursday, September 23, 2004)]
[Notices]
[Pages 56995-56998]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21400]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 083104A]


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to Operation of an Offshore Oil and Gas Platform in the 
Beaufort Sea

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of receipt of application for an incidental take 
authorization; 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 
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. NMFS is considering whether to 
propose new regulations that would govern the incidental taking of 
small numbers of marine mammals under a Letter of Authorization (LOA) 
issued to BP. In order to promulgate regulations and issue an LOA, NMFS 
must determine that these takings will have a negligible impact on the 
affected species and stocks of marine mammals. NMFS invites comment on 
the application and suggestions on the content of the regulations.

DATES: Comments and information must be postmarked no later than 
October 25, 2004.

ADDRESSES: Comments on the application should be addressed to Steve 
Leathery, Chief, Permits, Conservation and Education Division, Office 
of Protected Resources, National Marine Fisheries Service, 1315 East-
West Highway, Silver Spring, MD 20910-3225, or by telephoning one of 
the contacts listed here. The mailbox address for providing email 
comments is [email protected]. Include in the subject line of the e-
mail comment the following document identifier: 083104A. Please use 
only one method for submitting comments. NMFS is not responsible for e-
mail comments sent to addresses other than the one provided here. 
Comments sent via e-mail, including all attachments, must not exceed a 
10-megabyte file size. A copy of the application containing a list of 
the references used in this document may be obtained by writing to this 
address or by telephoning the contact listed here and is also available 
at:http://www.nmfs.noaa.gov/prot_res/PR2/Small_Take/smalltake_info.htm#applications.

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 
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.
    Permission may be granted for periods of 5 years or less if the 
Secretary finds that the taking will have a negligible impact on the 
species or stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses, 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

[[Page 56996]]

[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].

Summary of Request

    In 1999, BP petitioned NMFS to issue regulations governing the 
potential 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 marine 
mammals of six species 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), and on December 4, 2003 (68 FR 68874, 
December 10, 2003). The current LOA expires on December 3, 2004. A 
fifth LOA will be requested by BP later in 2004 to cover the period 
through May 25, 2005, when the current regulations expire.
    On August 30, 2004, BP requested a renewal of five-year regulations 
governing the take 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. A copy of this application can be 
found at: http://www.nmfs.noaa.gov/prot_res/PR2/Small_Take/smalltake_info.htm#applications. The following sections summarize the 
information contained in the application.

Description of the Activity

    BP is currently producing oil from an offshore development 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 miles (9.6 kilometers (km)) 
north of Point Storkersen and slightly less than 3.5 miles (5.5 km) 
from the closest barrier island. It is located adjacent to Prudhoe Bay, 
and is approximately 54 miles (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 is expected to be demobilized by barge during the 2004 or 
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 period of 
the requested authorization.

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 NMFS Stock Assessment Reports. These documents are available 
at: http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_Program/sars.html#Stock Assessment Reports. More detailed information on these 
6 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 does 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 incidental take 
application by BP to the USFWS.

Potential Effects on Marine Mammals

    The potential impacts of the planned offshore oil development at 
Northstar on marine mammals involve both acoustic and non-acoustic 
effects. The presence of facilities and personnel, and the unlikely 
occurrence of an oil spill, are potential sources of non-acoustic 
effects. 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 reduced during the ongoing production 
period. During average ambient conditions, some activities are expected 
to be audible to marine mammals at distances up to 10 km (5.4 nautical 
miles (nm)) away. However, because of the poor transmission of on-
island sounds into the water, and their low effective source levels, 
sounds from production operations are not expected to disturb marine 
mammals at distances beyond a few kilometers from the Northstar 
development.
    Responses by pinnipeds to noise are highly variable. Responses 
observed to date by ringed seals during the ice-covered season are 
limited to short-term behavioral changes in close proximity to 
activities at Northstar. During the open-water season responses by 
ringed seals are expected to be even less than during the ice-covered 
season. A major oil spill is unlikely (please see response to comments 
2 and 3 in 66 FR 65923 (December 21, 2001) for a discussion on 
potential for an oil spill to affect marine mammals in the Beaufort 
Sea), but the impact of an oil spill on seals could be lethal to some 
heavily oiled pups or adults. However, even in the unlikely event of a 
major spill, the overall impacts to seal populations would be minimal 
due to the small fraction of the population that would be exposed to, 
and seriously affected by, recently spilled oil.
    Responses to Northstar by migrating bowhead and beluga whales would 
be short-term and limited due to the typically small proportion of 
whales

[[Page 56997]]

that migrate near Northstar and the relatively low levels of underwater 
sounds propagating seaward from the island at most times. The limited 
deflection effects that may occur would happen mainly when vessels are 
operating for prolonged periods near Northstar. An oil spill is 
unlikely and, if one occurred, 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, irritation of the eye, skin, and respiratory tract 
(if heavily oiled).

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 noise as possible when 
hunting. Bowhead whales often show avoidance or other behavioral 
reactions to strong underwater noise near industrial activities, but 
often tolerate the weaker noise received when the same activities are 
occurring farther away. Various studies have provided information about 
these sound levels and distances (Richardson and Malme, 1993; 
Richardson et al., 1995a,b; Miller et al., 1999). However, scientific 
studies done to date have limitations, as discussed in part by Moore 
and Clarke (1992) and in Minerals Management Service (MMS, 1997). 
Inupiat whalers believe that some migrating bowheads are diverted by 
noises at greater distances than have been demonstrated by scientific 
studies (e.g., Rexford, 1996; MMS, 1997). The whalers have also 
mentioned that bowheads sometimes seem more skittish and more difficult 
to approach when industrial activities are underway in the area. There 
is also concern about the persistence of any deflection of the bowhead 
migration corridor, and the possibility that sustained deflection might 
influence subsistence farther ``downstream'' during the fall migration.
    Underwater sounds associated with drilling and production 
operations have lower source levels than do the seismic pulses and 
drillship sounds that have been the main concern of the Inupiat 
hunters. Sounds from vessels supporting activities at Northstar will 
attenuate below ambient noise levels at closer distances than do 
seismic or drillship sounds. Thus, reaction distances for whales 
approaching Northstar are expected to be considerably shorter than 
those for whales approaching seismic vessels or drillships (BPXA, 
1999).
    Recently, there has been concern among Inupiat hunters that barges 
and other vessels operating within or near the bowhead migration 
corridor may deflect whales for an extended period (J.C. George, NSB-
DWM, pers. comm to Williams). It has been suggested that, if the 
headings of migrating bowheads are altered through avoidance of 
vessels, the whales may subsequently maintain the ``affected'' heading 
well past the direct zone of influence of the vessel. This might result 
in progressively increasing deflection as the whale progresses west. 
However, crew boats and barges supporting Northstar remain well inshore 
of the main migration corridor, so this type of effect is unlikely to 
occur in response to 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 marine mammals are actually 
contaminated. The BP application discusses both aspects in greater 
detail.
    In past years, a Plan of Cooperation was negotiated between BP, the 
Alaska Eskimo Whaling Commission, and the North Slope Borough, and 
discussions regarding future agreements are on-going. A new Plan will 
address concerns relating to subsistence harvest of marine mammals in 
the region surrounding Northstar.

Mitigation

    Mitigation proposed by BP includes avoidance of seal lairs by 100 m 
(328 ft) if new activities occur on the floating sea ice after 20 March 
or such other date in March specified by NMFS. In addition, BP proposes 
to mitigate potential acoustic effects that might occur due to exposure 
of whales or seals to strong pulsed sounds. If BP needs to conduct an 
activity capable of producing pulsed underwater sound with levels 
[gteqt]180 or [gteqt]190 dB re 1 [micro]Pa (rms) at locations where 
whales or seals could be exposed, BP proposes to monitor safety zones 
defined by those levels. Activities producing underwater sound levels 
[gteqt]180 or [gteqt]190 dB re 1 [micro]Pa (rms) would be temporarily 
shut down if whales and seals, respectively, occur within the relevant 
radii. The purposes of these mitigation measures are to minimize 
impacts to marine mammals and their habitat, and to ensure the 
availability of marine mammals for subsistence purposes.

Monitoring

    The results of intensive studies and analyses to date (Richardson 
and Williams (eds), 2004) suggest that the biological effects of 
Northstar are subtle and equivocal, and small in the context of natural 
variation of the marine ecosystem.
    The monitoring proposed by BP includes some research components to 
be implemented annually and others to be implemented on a contingency 
basis. Basking and swimming ringed seals would be counted annually by 
Northstar personnel in a systematic fashion to document the long-term 
stability of ringed seal abundance and habitat use near Northstar. BP 
proposes to monitor the bowhead migration in 2005 and subsequent years 
using two Directional Autonomous Seafloor Acoustic Recorders (DASARs) 
to record near-island sounds and two to record whale calls. If BP needs 
to conduct an activity capable of producing pulsed underwater sound 
with levels [gteqt]180 or [gteqt]190 dB re 1 [micro]Pa (rms) at 
locations where whales or seals could be exposed, BP proposes to 
monitor safety zones defined by those levels. The monitoring proposed 
would be used in estimating the numbers of marine mammals that may be 
disturbed (i.e., taken by Level B harassment), incidental to operations 
of Northstar.

Reporting

    BP proposes to submit a single annual monitoring report, with the 
first report to cover the activities from May through October 2005, and 
subsequent reports to cover activities from November of one year 
through October of the next year. BP proposes that the first report, 
concerning May-October 2005, would be due on June 1, 2006. For 
subsequent years, it is proposed that the annual report (to cover 
monitoring during a 12-month November-October period) would be 
submitted on June 1st of the following year.
    The annual reports would provide summaries of BP's Northstar 
activities. These summaries would include the following: dates and 
locations of ice-road construction, on-ice activities, vessel/
hovercraft operations, oil spills, emergency training, and major repair 
or maintenance activities thought to alter the variability or 
composition of sounds in a way that might have detectable effects on 
ringed seals or bowhead whales. The annual reports would also provide 
details of ringed seal and bowhead whale monitoring, the monitoring of 
Northstar sound via the nearshore DASAR, estimates of the numbers of 
marine mammals exposed to project activities, descriptions of any

[[Page 56998]]

observed reactions, and documentation of any apparent effects on 
accessibility of marine mammals to subsistence hunters.
    BP also proposes to submit a single comprehensive report on the 
monitoring results from mid-2005 to mid-2009 no later than 240 days 
prior to expiration of the regulations, i.e., by September 2009. That 
date assumes the regulations will become effective in May 2005 and 
expire in May 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 would be 
submitted within 90 days after the cessation of that activity. The 
complete description of methods, results and discussion would be 
submitted as part of the annual report.
    Any observations concerning possible injuries, mortality, or an 
unusual marine mammal mortality event would be transmitted to NMFS 
within 48 hours.

Request for Information

    This notice is being published in conformance with NMFS regulations 
at 50 CFR 104(b)(1)(ii). NMFS requests interested persons to submit 
comments, information, and suggestions concerning the request and the 
structure and content of the regulations to allow the taking. NMFS will 
consider this information in developing proposed regulations. Prior to 
submitting comments, NMFS recommends reviewers of this document first 
read the responses to comments for the current regulations (see 65 FR 
34014, May 25, 2000 and 66 FR 65923, December 21, 2001). If NMFS 
proposes regulations to allow this take, interested parties would be 
provided with a 45-day comment period within which to submit comments 
on the proposed rule.

    Dated: September 17, 2004.
Laurie K. Allen,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 04-21400 Filed 9-22-04; 8:45 am]
BILLING CODE 3510-22-S