[Federal Register Volume 84, Number 193 (Friday, October 4, 2019)]
[Notices]
[Pages 53119-53122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21692]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XR036


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Oil and Gas Activities in Cook 
Inlet, Alaska

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

ACTION: Notice; issuance of modified Letter of Authorization.

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SUMMARY: Pursuant to the Marine Mammal Protection Act (MMPA), as 
amended, and implementing regulations, NMFS issued a modified Letter of 
Authorization to Hilcorp Alaska LLC (Hilcorp) to take marine mammals 
incidental to oil and gas activities in Cook Inlet, Alaska.

DATES: Effective until July 31, 2020.

FOR FURTHER INFORMATION CONTACT: Sara Young, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION: 

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce (as delegated to NMFS) to allow, upon 
request, the incidental, but not intentional, taking of small numbers 
of marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographical region 
if certain findings are made and either regulations are issued or, if 
the taking is limited to harassment, a notice of a proposed 
authorization is provided to the public for review.
    An incidental take authorization shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.
    The MMPA states that the term ``take'' means to harass, hunt, 
capture, kill or attempt to harass, hunt, capture, or kill any marine 
mammal.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: Any act of pursuit, torment, or 
annoyance, which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).

Summary of Request

    NMFS issued regulations governing the take of eleven species of 
marine mammal, by Level A and Level B harassment, incidental to 
Hilcorp's oil and gas activities on July 31, 2019 (84 FR 37442). These 
regulations include mitigation, monitoring, and reporting requirements 
for the incidental take of marine mammals during the specified 
activities. As further detailed in the regulations (50 CFR 217.167), 
adaptive management measures allow NMFS to modify or renew Letters of 
Authorization as necessary if doing so creates a reasonable likelihood 
of more effectively accomplishing the goals of mitigation and 
monitoring set forth in those regulations.
    Here, NMFS proposes to modify a mitigation measure pertaining to 3D 
seismic surveying during Year 1 of Hilcorp's activity. NMFS' final 
regulations contain a mitigation measure that mistakenly states that 
the entire exclusion zone (EZ) must be visually cleared by protected 
species observers (PSOs) before ramp up of seismic airguns during the 
3D seismic survey may occur. This measure is correct for operations 
beginning in daylight hours, however, requiring visual clearance of the 
entirety of the EZ to ramp up airgun activity at night was not NMFS' 
intent. The intent was that PSOs should monitor the EZ to the greatest 
extent possible for 30 minutes prior to ramp-up of nighttime 
operations, but with the understanding that it is not possible to 
observe the entirety of the EZ at night and that Hilcorp would still be 
allowed to initiate ramp-up as long as no marine mammals were seen 
during this time. If any marine mammal is observed in the EZ, during 
daylight hours or at night, ramp up would not commence until either the 
animal has voluntarily left and been visually confirmed outside the EZ 
or the required amount of time (15 minutes for porpoises and pinnipeds, 
30 minutes for cetaceans) has passed without re-detection of the 
animal. The analysis and findings contained in the final rule were made 
under the premise that nighttime ramp up of airguns is allowable.
    Ramping up airgun activity at night is essential to Hilcorp's 
survey design and minimizes the amount of days that active acoustic 
sources are emitting sound into the marine environment. As described in 
Hilcorp's application, acquisition of one line of 3D seismic takes 
approximately five hours. At the end of a line while the vessel turns 
to prepare for the next line acquisition, NMFS requires that airguns 
are turned off, to reduce the amount of unnecessary noise emitted into 
the marine environment. Turning the source vessel takes approximately 
one and a half hours, during which no noise is emitted from airguns. By 
allowing ramp up of airguns at night, the total number of 3D seismic 
survey days is notably reduced, which reduces both the total duration 
of impacts on the acoustic habitat of marine mammals, as well as the 
impacts on (and potentially take of) marine mammals themselves.
    Specifically, while there is a somewhat higher probability that a 
marine mammal might go unseen within the clearance zone when the 
airguns are initiated at night, the likelihood of injury is still low 
because of the ramp-up requirement, which ensures that any initial 
injury zone is small and allows animals time to move away from the 
source. In addition, PSOs are on duty monitoring the exclusion zone to 
the degree possible at that time. Further, any potential slight 
increase in the probability of injury (in the form of a small degree of 
permanent threshold shift (PTS), and not considered at all likely, or 
authorized, for beluga whales or other mid-frequency specialists) is 
offset by the reduced behavioral harassment and reduced potential for 
more serious energetic effects expected to result from the significant 
reduction in the overall number of days across which the area will be 
ensonified by the airgun operation.
    Ramp up of airguns at night is also the most practicable survey 
design, which allows the survey to be completed as quickly as possible 
before weather conditions deteriorate and daylight decreases in Cook 
Inlet, and at less cost.
    Of important note, this change in mitigation does not change either 
the

[[Page 53120]]

predicted take numbers or the negligible impact analysis, as the 
predicted Level A harassment (injury) numbers conservatively do not 
include any sort of an adjustment to account for the effectiveness of 
any of the measures. We did not reduce the estimation of take based on 
an assumed level of effectiveness of the required mitigation and 
monitoring. In other words, we have determined that the level of taking 
will be consistent with the findings made for the total taking 
allowable under the specific regulations.

Public Comments and Responses

    A notice of NMFS's proposal to modify a LOA was published in the 
Federal Register on August 16, 2019 (84 FR 41957). That notice 
described the necessity of the modification and affirmed that modifying 
the mitigation measure did not change any of our findings under the 
MMPA made in the rulemaking and issuance of the original LOA. During 
the 30-day public comment period, NMFS received comments from 11,821 
individuals, as well as several groups and societies. Approximately 
11,809 commenters followed one of two generic template formats, in 
which respondents provided comments that were identical or 
substantively the same. Of the two generic letter forms described 
above, one of the templates, used by approximately 11,638 commenters, 
generally referenced oil and gas drilling by Hilcorp and requested that 
NMFS refrain from permitting oil and gas exploration. As NMFS does not 
permit oil and gas exploration activities and these comments are 
outside the scope of our proposed modification (ramp-up of seismic 
airguns at night), NMFS did not address these comments further.
    NMFS has reviewed all public comments received on the proposed 
modification of a LOA issued to Hilcorp. Comments indicating general 
support for or opposition to hydrocarbon exploration but not containing 
relevant recommendations or information are not addressed here. 
Similarly, any comments relating to hydrocarbon development (e.g., 
leasing, drilling)--including numerous comments received that expressed 
concern regarding the risks of oil spills or of potential future 
industrialization of Cook Inlet--are not relevant to the proposed 
actions and therefore were not considered and are not addressed here. 
We also provide no response to specific comments that addressed species 
or statutes not relevant to our proposed actions under section 
101(a)(5)(A) of the MMPA (e.g., comments related to sea otters).
    Comment: The Kachemak Bay Conservation Society, as well as many 
other commenters, commented that if seismic ramp-up will be allowed at 
night, there needs to be ``around the clock'' monitoring.
    Response: NMFS agrees with this assertion. The regulations require 
constant visual monitoring by PSOs during seismic activities, as well 
as the designated pre- and post-activity periods. NMFS acknowledges 
that visibility of PSOs at night is reduced, but Hilcorp is still 
required to use PSOs to observe to the greatest extent possible during 
nighttime hours of seismic operation.
    Comment: The Kachemak Bay Conservation Society also comments that 
NMFS must support their reasoning that nighttime ramp-up of seismic 
airguns will have a lower impact on marine mammals than refraining from 
ramping up at night. The Center for Biological Diversity (CBD) and Cook 
Inletkeeper commented similarly that NMFS' argument that nighttime 
operations minimize the amount of days that active acoustic sources are 
emitting sound into the marine environment and thus minimizes exposure 
is not supported by anything but conclusory statements.
    Response: The requirement to cease operations at night is not only 
impracticable, it would also likely result in greater impacts to marine 
mammals, as such a measure would require operations to continue for 
roughly twice the time. The window of availability in which to conduct 
seismic in Cook Inlet is particularly limited due to the large tidal 
fluctuations. Even under good conditions, it is important to recognize 
the possibility that not all animals will be observed and cryptic 
species may not be observed at all. While visual observation is a 
common sense mitigation measure, its presence should not be 
determinative of when survey effort may occur. Given the lack of proven 
efficacy of visual observation in preventing auditory injury, its 
absence should not imply such potentially detrimental impacts on marine 
mammals. We also believe that the concentration of survey effort in the 
shortest duration of time possible will reduce the number of days on 
which marine mammals may be harassed and ensures that the surrounding 
marine environment can return to ambient noise levels as quickly as 
possible.
    Comment: The Marine Mammal Commission (MMC) recommended that NMFS 
reconsider requiring the use of towed passive acoustic monitoring (PAM) 
and night-vision devices to better assess whether the exclusion zone is 
clear prior to implementing ramp-up procedures at night and consult 
with other seismic operators regarding the standard use of these 
devices in other regions. The CBD and Cook Inletkeeper submitted a 
similar comment suggested NMFS arbitrarily dismissed the use of PAM and 
thermal technologies for nighttime observations. The MMC also commented 
that NMFS should consult with acousticians at the Alaska Fisheries 
Science Center and the University of St. Andrews regarding acoustically 
monitoring for the various species in Cook Inlet.
    Response: NMFS discussed the reasons that PAM was considered but 
not required for Hilcorp's activities in our final rule (84 FR 37442; 
July 31, 2019). These circumstances, including the physical 
environmental characteristics of Cook Inlet and the practicability of 
the measure, have not changed since issuance of the final rule and LOA. 
For previous authorizations, NMFS has worked with the Alaska Fisheries 
Science Center to develop a real-time practicable acoustic monitoring 
plan for implementation during seismic activity. Despite coordination 
with the Science Center, the use of PAM only resulted in two detections 
of beluga whales over the course of the entire survey. The detections 
occurred outside of active seismic activity and therefore did not 
result in any shutdowns. When expanded to all species, the use of PAM 
resulted in only 15 acoustic detections across all nighttime or low 
visibility hours, a detection rate of 0.049 detections per hour, as 
compared to a sighting rate of 0.135 detections per hour from visual 
observations (Kendall et al., 2015). Therefore, when the limited 
effectiveness and value in decreasing impacts to marine mammals is 
considered in combination with the cost and impracticability of 
implementation, NMFS finds that the measure is not warranted, and PAM 
will not be required under this modified LOA.
    However, since the final regulations were issued and in response to 
these comments, Hilcorp has equipped its source vessel with PV14 night 
vision devices and a requirement that they are used for observations at 
night or during other periods of low visibility for 3D seismic 
surveying has been added to this modified LOA. These devices are only 
outfitted on the source vessel and will only be used by PSOs aboard the 
source vessel, not the mitigation vessel.
    Comment: The Commission recommended that NMFS require Hilcorp to 
limit ramp up at night and during low-visibility conditions to

[[Page 53121]]

situations in which operational planning cannot reasonably avoid such 
circumstances.
    Response: NMFS agrees with this recommendation and will include it 
in the modified LOA.
    Comment: The Commission recommended that NMFS specify the radial 
distances of the exclusion and safety zones, as well as the Level A and 
B harassment zones, for all sound sources and remove all references to 
mitigation and monitoring zones in Hilcorp's modified and subsequent 
LOAs.
    Response: NMFS agrees that including the radial distances of 
exclusion and safety zones with the modified LOA would enhance clarity 
regarding the zones and has attached a chart with the relevant zones to 
the modified LOA. These zones may be modified pending results and 
review of sound source verifications as discussed in the final rule.
    Comment: The CBD and Cook Inletkeeper commented that if NMFS plans 
to allow nighttime seismic surveys without clearing the exclusion zone, 
the incidental take regulations and environmental analyses must be 
amended and re-circulated for public comment. The commenters emphasized 
that a nighttime exception to clearing the full extent of the exclusion 
zone does not appear in the incidental take regulations.
    Response: NMFS reminds the commenters that the incidental take 
regulations allowed for the continuation of operation of seismic 
airguns at night, as long as ramp up was conducted during a period of 
good visibility and the exclusion zone was fully cleared. The 
alteration to allow ramp up at night when operationally necessary does 
not change the take estimations, any of our findings under the MMPA in 
the rulemaking, or our finding of no significant impact under the 
National Environmental Policy Act (NEPA). PSO observations are still 
required from pre-activity ramp up through the 30 minute post-activity 
monitoring period and now night vision devices will also be required 
for observations conducted at night or in low visibility conditions. 
NMFS used the adaptive management provision described in the 
regulations and sought public comment on the proposed change to the 
LOA.
    Comment: The CBD and Cook Inletkeeper commented that NMFS failed to 
explain why other measures are not practicable to minimize take and to 
maximize monitoring and enforcement of take limits.
    Response: NMFS discussed in the notice of proposed modification of 
the LOA why the prohibition of nighttime ramp up for seismic surveying 
is not practicable. Cook Inlet tidal fluctuations present already 
limited windows within which seismic surveying can be done and some of 
those limited windows occur at night. By prohibiting nighttime ramp up, 
NMFS would extend the total duration of the survey, increasing the 
number of days that the seismic surveying equipment is on the water and 
increasing the total number of days during which noise is emitted to 
the marine environment. The monitoring data from previous seismic 
surveys in Cook Inlet indicate greatly reduced detections of marine 
mammals by PSOs in the presence of seismic activity and increase in 
detections when the airguns are not in use. This evidence suggests 
there is a potential aversion response by marine mammals to airgun 
noise and potential re-entry when the environment returns to ambient 
levels. Allowing ramp up of seismic at night when operationally 
necessary ensures the seismic work is concentrated in the fewest number 
of days possible, thereby reducing the number of days that marine 
mammals will exhibit aversion responses and temporarily abandon their 
preferred habitat. Prohibiting nighttime ramp up because potentially 
not all animals in the exclusion zone will be observed creates a 
notable increase in total duration and could greatly increase the 
number of separate occasions on which animals may leave their preferred 
habitat and interrupt typical behavioral patterns. An increased number 
of days of overall survey duration could then extend the seismic 
surveying into the cold and dark months of Cook Inlet creating 
increasingly hazardous conditions for the seismic operators and 
decreasing the amount of seismic that can be completed each day with 
increasingly limited daylight hours. Full visibility of the Level A and 
Level B harassment isopleths is not practicable, nor is it required 
based on the rationale included in our comment response below. The size 
of the Level B zones for 3D seismic are prohibitive to monitor at a 
level requiring full visibility, which would increase the number of 
vessels on the water and personnel required to be at sea. To ensure 
that takes are estimated as accurately as possible, the extrapolation 
detailed below is used by Hilcorp to address the assumption that some 
proportion of takes may occur in the unmonitored portions of the 
isopleths.
    Comment: The CBD and Cook Inletkeeper commented that NMFS has not 
provided a sufficient explanation for why a greater monitoring area 
consistent with the harassment isopleth is not required nor why other 
mitigation measures are not employed to monitor the full Level A or 
Level B isopleths. The commenters also questioned how take is recorded 
if the full extent of the Level A and Level B zones are not observed 
and why NMFS does not believe allowing nighttime ramp-up would change 
our estimation of Level B take.
    Response: Through the rulemaking and Letters of Authorization, NMFS 
is authorizing take, by Level A and Level B harassment, of marine 
mammals. Avoiding all take of marine mammals is not a requirement or 
the goal of mitigation and monitoring requirements laid out in the 
rulemaking. In order to issue an LOA under section 101(a)(5)(A) of the 
MMPA, NMFS was required to set forth the permissible methods of taking 
pursuant to such activity, and other means of effecting the least 
practicable impact on such species or stock and its habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stock for 
taking for certain subsistence uses. NMFS considered information about 
the availability and feasibility (economic and technological) of 
equipment, methods, and manner of conducting such activity or other 
means of effecting the least practicable adverse impact upon the 
affected species or stocks and their habitat (50 CFR 216.104(a)(11)). 
In evaluating how mitigation may or may not be appropriate to ensure 
the least practicable adverse impact on species or stocks and their 
habitat, as well as subsistence uses where applicable, NMFS considered 
two primary factors: (1) The manner in which, and the degree to which, 
the successful implementation of the measure(s) is expected to reduce 
impacts to marine mammals, marine mammal species or stocks, and their 
habitat, as well as subsistence uses. This considers the nature of the 
potential adverse impact being mitigated (likelihood, scope, range). It 
further considers the likelihood that the measure will be effective if 
implemented (probability of accomplishing the mitigating result if 
implemented as planned), the likelihood of effective implementation 
(probability implemented as planned); and (2) the practicability of the 
measures for applicant implementation, which may consider such things 
as cost and impact on operations. We have acknowledged that some 
limited occurrence of auditory injury is likely, for low- and high-
frequency cetaceans

[[Page 53122]]

as well as some pinniped species. However, we disagree that a larger 
standard exclusion zone is warranted. As we explained in our 
rulemaking, our intent in prescribing standard exclusion zone distances 
is to: (1) Encompass zones for most species within which auditory 
injury could occur on the basis of instantaneous exposure; (2) provide 
additional protection from the potential for more severe behavioral 
reactions (e.g., panic, antipredator response) for marine mammals at 
relatively close range to the acoustic source; (3) provide consistency 
and ease of implementation for PSOs, who need to monitor and implement 
the exclusion zones; and (4) to define a distance within which 
detection probabilities are reasonably high for most species under 
typical conditions. Our use of 100-m and 500-m zones is not based 
directly on any quantitative understanding of the range at which 
auditory injury would be entirely precluded or any range specifically 
related to disruption of behavioral patterns. Rather, we believe it is 
a reasonable combination of factors. In summary, a practicable 
criterion such as this has the advantage of familiarity and simplicity 
while still providing in most cases a zone larger than relevant 
auditory injury zones, given realistic movement of source and receiver. 
Increased shutdowns, without a firm idea of the outcome the measure 
seeks to avoid, simply displace survey activity in time and increase 
the total duration of acoustic influence as well as total sound energy 
in the water.
    We agree that, when practicable, the exclusion zone should 
encompass distances within which auditory injury is expected to occur 
on the basis of instantaneous exposure. However, potential auditory 
injury is based on the accumulation of energy, and is therefore not a 
straightforward consideration. For example, observation of a whale at 
the distance calculated as being the ``Level A isopleth'' does not 
necessarily mean that the animal has in fact incurred auditory injury. 
Rather, the animal would have to be at the calculated distance (or 
closer) as the mobile source approaches, passes, and recedes from the 
exposed animal, being exposed to and accumulating energy from airgun 
pulses the entire time.
    When evaluating the nighttime ramp up of seismic airguns, NMFS 
determined the data from previous seismic monitoring programs did not 
suggest that there would be a difference in the severity of impacts to 
marine mammals by not fully clearing the exclusion zone during 
nighttime ramp up that was not addressed through the number and type of 
taking authorized for Hilcorp's activities in the rulemaking. Ramp up 
would still be required for use of airguns at night and the use of ramp 
up still allows marine mammals to avoid the area before the full source 
level is realized. The mitigation measure that would be least effective 
due to low visibility conditions at night would be the implementation 
of the full extent of the exclusion zone and as discussed above, it is 
unlikely that animals would remain within the exclusion zone for the 
duration of the seismic activity such that injury is incurred. However, 
in the event that injury is incurred, Level A take was authorized for 
species more likely to occur in the survey area or for species that are 
difficult to detect. Similarly, Level B take is authorized incidental 
to Hilcorp's activities. These allowable takes were not calculated by 
assuming some underlying effectiveness of the mitigation and 
monitoring. No amount of Level B take was discounted from the total 
amount of take authorized because of assumptions of effectiveness of 
daytime monitoring. The amount of Level B take that may occur during 
seismic activity is unchanged, but the number of takes likely to be 
observed and recorded at night is slightly lessened by reduced 
visibility.
    Regarding the counting and tracking of allowable takes, Hilcorp is 
using a methodology similar to that used by many other incidental take 
authorization applicants. Hilcorp will use the number of takes observed 
by PSOs within the monitored distance and will extrapolate those takes 
to estimate a number of unseen takes in the unmonitored area that is 
the rest of the relevant isopleth. Hilcorp will include these 
estimations in their reports to NMFS to ensure take is not exceeded 
during their activity.
    Comment: The CBD and Cook Inletkeeper commented that NMFS' 
estimation of take of Cook Inlet belugas is flawed because ramp-up is 
not considered a take in our analyses.
    Response: It is unclear if the commenters are referencing 
estimation of take pre-activity or accounting for take post-activity. 
NMFS disagrees with the commenters. Any animal sighted at any distance 
from the vessel during pre-clearance, ramp-up, seismic surveying, or 
post-activity monitoring is recorded as an observation and this 
information will be provided to NMFS in Hilcorp's monitoring reports. 
The sighting is not necessarily considered a take as the exclusion zone 
is derived from the energy output of the full seismic airgun array and 
any sound a marine mammal would be exposed to during ramp up is a 
lesser amount of energy than the full airgun array.

Authorization

    NMFS has issued a modified LOA (available at https://www.fisheries.noaa.gov/action/incidental-take-authorization-hilcorp-alaska-llc-oil-and-gas-activities-cook-inlet-alaska) to Hilcorp Alaska 
LLC for the potential harassment of small numbers of four marine mammal 
species incidental to oil and gas activities in Cook Inlet, Alaska, 
provided the mitigation, monitoring and reporting requirements of the 
rulemaking are incorporated.

    Dated: September 30, 2019.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2019-21692 Filed 10-3-19; 8:45 am]
 BILLING CODE 3510-22-P