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Federal Register / Vol. 84, No. 148 / Thursday, August 1, 2019 / Rules and Regulations
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 18
[Docket No. FWS–R7–ES–2019–0012;
FXES111607MRG01–190–FF07CAMM00]
RIN 1018–BD63
Marine Mammals; Incidental Take
During Specified Activities: Cook Inlet,
Alaska
Fish and Wildlife Service,
Interior.
ACTION: Final rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service, in response to a
request from Hilcorp Alaska, LLC,
Harvest Alaska, LLC, and the Alaska
Gasline Development Corporation,
finalize regulations authorizing the
nonlethal, incidental take by harassment
of small numbers of northern sea otters
in State and Federal waters (Alaska and
the Outer Continental Shelf) within
Cook Inlet, Alaska, as well as all
adjacent rivers, estuaries, and coastal
lands. Take may result from oil and gas
exploration, development, production,
and transportation activities occurring
for a period of 5 years. This rule
authorizes take by harassment only; no
lethal take is authorized. We will issue
Letters of Authorization, upon request,
for specific proposed activities in
accordance with these regulations.
Additionally, the Office of Management
and Budget has approved a revision of
the existing Information Collection
control number 1018–0070, for
incidental take of marine mammals in
the Beaufort and Chukchi Seas, to
include oil and gas activities in Cook
Inlet.
DATES: This rule is effective August 1,
2019, and remains effective through
August 1, 2024.
ADDRESSES: Document availability: You
may view this rule, the original and
updated application packages,
supporting information, final
environmental assessment and U.S. Fish
and Wildlife Service finding of no
significant impact (FONSI), and the list
of references cited herein at http://
www.regulations.gov under Docket No.
FWS–R7–ES–2019–0012, or these
documents may be requested as
described under FOR FURTHER
INFORMATION CONTACT.
FOR FURTHER INFORMATION CONTACT: Mr.
Christopher Putnam, U.S. Fish and
Wildlife Service, MS 341, 1011 East
Tudor Road, Anchorage, Alaska 99503,
by email at fw7_ak_marine_mammals@
fws.gov, or by telephone at 1–800–362–
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SUMMARY:
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5148. Persons who use a
telecommunications device for the deaf
(TDD) may call the Federal Relay
Service (FRS) at 1–800–877–8339, 24
hours a day, 7 days a week.
For information on Information
Collection control number 1018–0070,
contact the Service Information
Collection Clearance Officer, U.S. Fish
and Wildlife Service, MS: BPHC, 5275
Leesburg Pike, Falls Church, VA 22041–
3803 (mail); 703–358–2503 (telephone),
or [email protected] (email). Please
include ‘‘1018–0070’’ in the subject line
of your email request.
SUPPLEMENTARY INFORMATION:
Immediate Promulgation
In accordance with 5 U.S.C. 553(d)(3),
we find that we have good cause to
make this rule effective less than 30
days after publication. Immediate
promulgation of the rule will ensure
that the applicant will implement
mitigation measures and monitoring
programs in the geographic region that
reduce the risk of any lethal and
nonlethal effects to sea otters by their
activities.
Background
Section 101(a)(5)(A) of the Marine
Mammal Protection Act of 1972 (16
U.S.C. 1361(a)(5)(A)) (MMPA), gives the
Secretary of the Interior (Secretary) the
authority to allow the incidental, but
not intentional, taking of small numbers
of marine mammals in response to
requests by U.S. citizens engaged in a
specified activity in a specified region.
The Secretary has delegated authority
for implementation of the MMPA to the
U.S. Fish and Wildlife Service (Service).
According to the MMPA, the Service
shall allow this incidental taking for a
period of up to 5 years if we make
findings that such taking: (1) Will affect
only small numbers of individuals of
these species or stocks; (2) will have no
more than a negligible impact on these
species or stocks; (3) will not have an
unmitigable adverse impact on the
availability of these species or stocks for
taking for subsistence use by Alaska
Natives; and (4) we issue an incidental
take regulation (ITR) setting forth: (a)
The permissible methods of taking, (b)
the means of effecting the least
practicable adverse impact on the
species, their habitat, and the
availability of the species for
subsistence uses, and (c) the
requirements for monitoring and
reporting. If final regulations allowing
such incidental taking are issued, we
may then subsequently issue a letter of
authorization (LOA), upon request, to
authorize incidental take during the
specified activities.
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The term ‘‘take,’’ as defined by the
MMPA, means to harass, hunt, capture,
or kill, or to attempt to harass, hunt,
capture, or kill any marine mammal (16
U.S.C. 1362(13)). Harassment, as
defined by the MMPA for non-military
readiness activities, means any act of
pursuit, torment, or annoyance that (i)
has the potential to injure a marine
mammal or marine mammal stock in the
wild (the MMPA calls this ‘‘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 (the MMPA calls this ‘‘Level
B harassment’’).
The terms ‘‘negligible impact,’’ ‘‘small
numbers,’’ ‘‘unmitigable adverse
impact,’’ and ‘‘U.S. citizens,’’ among
others, are defined in title 50 of the
Code of Federal Regulations at 50 CFR
18.27, the Service’s regulations
governing take of small numbers of
marine mammals incidental to specified
activities. ‘‘Negligible impact’’ is
defined 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.
‘‘Small numbers’’ is defined as a portion
of a marine mammal species or stock
whose taking would have a negligible
impact on that species or stock.
However, we do not rely on that
definition here, as it conflates the terms
‘‘small numbers’’ and ‘‘negligible
impact,’’ which we recognize as two
separate and distinct requirements.
Instead, in our small numbers
determination, we evaluate whether the
number of marine mammals likely to be
taken is small relative to the size of the
overall stock.
‘‘Unmitigable adverse impact’’ is
defined as 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. The
term ‘‘least practicable adverse impact’’
is not defined in the MMPA or its
enacting regulations. We ensure the
least practicable adverse impact by
requiring mitigation measures that are
effective in reducing the impacts of the
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Federal Register / Vol. 84, No. 148 / Thursday, August 1, 2019 / Rules and Regulations
proposed activities, but are not so
restrictive as to make conducting the
activities unduly burdensome or
impossible to undertake and complete.
Implementation of the ITR will
require information collection activities.
The Office of Management and Budget
has approved a revision of the existing
Information Collection control number
1018–0070, for incidental take of marine
mammals in the Beaufort and Chukchi
Seas, to include oil and gas activities in
Cook Inlet.
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Summary of Request
On May 3, 2018, Hilcorp Alaska, LLC
(Hilcorp), Harvest Alaska, LLC
(Harvest), and the Alaska Gasline
Development Corporation (AGDC),
hereinafter referred to as the
‘‘applicant,’’ petitioned the Service to
promulgate regulations pursuant to
section 101(a)(5)(A) of the MMPA for
the nonlethal, unintentional taking of
small numbers of northern sea otters
(Enhydra lutris kenyoni; hereafter ‘‘sea
otters’’ or ‘‘otters,’’ unless otherwise
indicated) incidental to oil and gas
exploration, development, production,
and transportation activities in Cook
Inlet, Alaska, for a period of 5 years. On
June 28, 2018, the applicant submitted
an amended request providing
additional project details. In March
2019, Hilcorp and Harvest notified the
Service that three-dimensional (3D)
seismic survey activities originally
planned to begin in April 2019 would
be delayed until fall 2019. In June 2019,
AGDC, Hilcorp, and Harvest also
provided an updated application
package at the request of the Service.
The updated application clarified
project details and provided additional
information where necessary to respond
to questions and concerns raised by
comments received during the public
review of the proposed ITR. These
updates and clarifications were minor
and did not significantly change the
analysis of effects or the estimates of
take, and did not alter the conclusions
regarding whether the planned activities
would have a negligible impact on the
stocks, would affect subsistence use, or
would affect more than a small number
of animals.
Summary of Changes From the
Proposed ITR
In preparing this final regulation for
the incidental take of sea otters, we
reviewed and considered comments and
information from the public on our
proposed rule published in the Federal
Register on March 19, 2019 (84 FR
10224), for which the comment period
was extended by notice in the Federal
Register on April 5, 2019 (84 FR 13603).
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We also reviewed and considered
comments and information from the
public for our draft Environmental
Assessment (EA). Based on those
considerations, and the new information
provided by the applicant, we are
finalizing these regulations with the
following changes from our proposed
rule:
• Table 1 and table 3 were updated to
reflect the most recent project details
available from the applicant.
• The Description of Specified
Activities and table 1 were appended to
include redevelopment of existing wells
at Granite Point.
• Mitigation measures were added or
modified in § 18.137(b)(1)(ii), (b)(4)(ii),
(b)(7)(ii), (b)(9), (c)(2), (c)(3), (e)(4), and
§ 18.140(b) of this final rule.
• The total estimated number of Level
B takes was adjusted from 1,663 to 1,684
after the analysis was updated to reflect
updates in the project plans.
• The duration of activities used in
the estimation of take was adjusted to
reflect the maximum number of days
during which underwater work may
generate noise above thresholds for take.
The following adjustments were made:
Vibratory sheet pile driving was
adjusted from 5 to 20 days, Lower Cook
Inlet (LCI) pipe driving was revised
from 3 to 12 days, Trading Bay (TB)
pipe driving was revised from 1.5 to 6
days, vertical seismic profiling (VSP) in
LCI was changed from 2 to 8 days, VSP
in TB was adjusted from 1 to 4 days,
and use of water jets was increased from
10.5 to 21 days.
• The analyses of take tables were
updated to remove tugs towing rigs and
use of hydraulic grinders at the request
of the applicant and after analysis of
take using the updated duration for
these sources indicated that take was
unlikely.
• Field verifications of sound
production during two-dimensional
(2D) and 3D seismic surveys have been
added to the required mitigation
measures.
• A discussion of the alternative
mitigation measures evaluated but not
required has been added.
• Use of a mitigation gun was
changed from required mitigation for 2D
and 3D seismic surveys to a measure
that may be required in LOAs issued
under this ITR.
• Table 9 was added to clarify
allocation of sea otter take by location
of activity relative to the appropriate
stock boundary.
• Total estimated Level A take was
adjusted from three takes from the
southcentral Alaska stock to one take
from the southwest Alaska stock and
two takes from the southcentral Alaska
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37717
stock. This change was made to correct
an error in the proposed ITR.
• A mitigation measure was added
requiring an applicant for an LOA to
evaluate alternatives to pile-supported
facilities and establishing that the
Service may require sound-attenuation
devices or alternatives to pile-supported
designs.
• The Estimated Incidental Take
section was updated to reflect changes
to the analysis due to the updated
project details and to provide additional
clarity in the analysis methods used.
• The evaluation of impacts of the
specified activities was modified
throughout the document to focus on
the total numbers of takes rather than
the numbers of individual sea otters
taken. This change was needed to
ensure the estimates from the analysis
were accurate and did not
underestimate take.
Description of the Regulation
This regulation does not authorize the
specified activities to be conducted by
the applicant. Rather, it authorizes the
nonlethal incidental, unintentional take
of small numbers of sea otters associated
with those planned activities based on
standards set forth in the MMPA. The
ITR includes: Permissible amounts and
methods of nonlethal taking; measures
to ensure the least practicable adverse
impact on sea otters and their habitat;
measures to avoid and reduce impacts
to subsistence uses; and requirements
for monitoring and reporting.
Description of the ITR Geographic Area
The geographic region of the ITR
encompasses Cook Inlet, Alaska, south
of a line from the Susitna River Delta to
Point Possession (approximately
61°15′54″ N, 150°41′07″ W, to 61°02′19″
N, 150°23′48″ W, WGS 1984) and north
of a line from Rocky Cove to Coal Cove
(at approximately 59°25′56″ N,
153°44′25″ W and 59°23′48″ N,
151°54′28″ W WGS 1984), excluding
Ursus Cove, Iniskin Bay, Iliamna Bay,
and Tuxedni Bay (see Regulation
Promulgation, § 18.131 Specified
geographic region where this subpart
applies). The ITR area includes all
Alaska State waters and Outer
Continental Shelf (OCS) Federal waters
within this area as well as all adjacent
rivers, estuaries, and coastal lands
where sea otters may occur, unless
explicitly excluded.
The geographical extent of the Cook
Inlet ITR region is approximately 1.1
million hectares (ha) (2.7 million acres
(ac)). For descriptive purposes, the
specified area is organized into two
marine areas within Cook Inlet: LCI
(south of the Forelands to Homer) and
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middle Cook Inlet (MCI; north of the
Forelands to the Susitna River and Point
Possession). Project sites within these
general areas include TB, Granite Point,
and the North Cook Inlet unit (NCI) in
the MCI, and the Iniskin Peninsula and
the OCS waters of LCI.
Description of Specified Activities
The specified activities (also ‘‘project
activities’’ or ‘‘planned activities’’)
include work related to oil and gas
exploration, development, production,
transport, and the decommissioning of
existing facilities conducted by the
applicant within a 5-year period.
Hilcorp and Harvest jointly plan to
conduct the following activities: 2D and
3D seismic surveys in LCI; routine
operations of, maintenance of,
redevelopment of, and production
drilling from existing oil and gas
facilities in MCI; geophysical and
geohazard surveys in both regions;
drilling of two to four exploration wells
in OCS waters of LCI and one to three
wells in MCI; construction of a dock
facility in Chinitna Bay; and
decommissioning of an existing facility
at the Drift River Terminal in MCI. The
following support activities will be
conducted: Pipe and pile driving using
both vibratory and impact hammers;
VSP; and pipeline and platform
maintenance. AGDC plans to install a
natural gas pipeline from the west side
of MCI to the east side of LCI and to
construct processing and loading
facilities on either side. These include a
product loading facility (PLF) and
temporary and mainline materials
offloading facilities (TMOF, MMOF,
MOF). Support activities for AGDC will
include pile driving, dredging,
geophysical surveys, trenching, fill
placement, and anchor handling.
Hilcorp, Harvest, and AGDC will use
vessels and aircraft to support the
activities. Detailed descriptions of the
planned work are provided in the
applicant’s updated petition for
incidental take regulations for oil and
gas activities in Cook Inlet (June 2019),
the stakeholder engagement plan (April
2018), and the marine mammal
monitoring and mitigation plan (May
2018). These documents can be obtained
from the locations described above in
ADDRESSES. Table 1 summarizes the
planned activities.
TABLE 1—SUMMARY OF PLANNED ACTIVITIES INCLUDED IN INCIDENTAL TAKE REGULATION PETITION
Project component
name & location
Geographic region
Anchor Point 2D seismic survey .....................
LCI, Anchor Point to
Kasilof.
LCI OCS .....................
LCI OCS .....................
LCI OCS .....................
LCI, west side ............
OCS 3D seismic survey ..................................
OCS geohazard survey ...................................
OCS exploratory wells .....................................
Iniskin Peninsula exploration and development.
Platform & pipeline maintenance .....................
NCI subsea well geohazard survey .................
NCI well abandonment activity ........................
TB area geohazard survey ..............................
Granite Point development drilling ..................
Drift River terminal decommissioning ..............
Product loading facility pile driving ..................
Material offloading facilities dredging ..............
Material offloading facilities pile driving ...........
Trenching, pipelay, burial ................................
Pipelay anchor handling ..................................
MCI
MCI
MCI
MCI
MCI
LCI,
MCI
MCI
MCI
MCI
MCI
.............................
.............................
.............................
.............................
.............................
west side ............
.............................
.............................
.............................
.............................
.............................
Year(s)
planned
Total anticipated duration
(2019–2024)
Seasonal timing
2021 or 2022
April–October ....................
30 days (10 days in water seismic).
2019 or 2020
2019–2021
2020–2022
2020–2022
April–October ....................
April–October ....................
February–November .........
April–October ....................
45–60 days.
28 days.
40–60 days per well, 2–4 wells per year.
180 days.
2019–2024
2020
2020
2020
2019
2020–2023
2021–2023
2021–2022
2021–2022
2023–2024
2023–2024
April–October ....................
April–October ....................
April–October ....................
April–October ....................
June–October ...................
April–October ....................
April–October ....................
April–October ....................
April–October ....................
April–October ....................
April–October ....................
180 days per year.
7 days.
90 days.
14 days.
120–150 days.
120 days.
162 days.
360 days.
482 days.
360 days.
76 days.
LCI = Lower Cook Inlet, MCI = Middle Cook Inlet, NCI = North Cook Inlet, TB = Trading Bay.
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Description of Marine Mammals in the
Specified Area
The northern sea otter is the only
marine mammal under the Service’s
jurisdiction that normally occupies
Cook Inlet, Alaska. Sea otters in Alaska
are composed of three stocks. Those in
Cook Inlet belong to either the
southwest Alaska stock or the
southcentral Alaska stock, depending on
whether they occur west or east of the
center of Cook Inlet, respectively. A
third stock occurs in southeast Alaska.
The southwest Alaska stock of the
northern sea otter is the southwest
distinct population segment (DPS),
which was listed as threatened under
the Endangered Species Act of 1973
(ESA; 16 U.S.C. 1531, et seq.) on August
9, 2005 (70 FR 46366). On October 8,
2009 (74 FR 51988), the Service
finalized designation of 15,164 square
kilometers (km2) (or 5,855 square miles
(mi2)) of critical habitat for the
Southwest DPS of sea otters. Critical
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habitat occurs in nearshore marine
waters ranging from the mean high-tide
line seaward for a distance of 100
meters (m), or to a water depth of 20 m.
Detailed information about the biology
and conservation status of the listed
DPS can be found at https://
www.fws.gov/alaska/fisheries/mmm/
seaotters/otters.htm. Stock assessment
reports for each of the three stocks are
available at https://www.fws.gov/alaska/
pages/marine-mammal-management.
Sea otters may occur anywhere within
the specified project area, other than
upland areas, but are not usually found
north of about 60°23′30″ N. The number
of sea otters in Cook Inlet was estimated
from an aerial survey conducted by the
Service in cooperation with the U.S.
Geological Survey (USGS) in May 2017
(Garlich-Miller et al. 2018). The sea otter
survey was conducted in all areas of
Cook Inlet south of approximately
60°16′30″ N within the 40-m (131-feet
(ft)) depth contour, including Kachemak
Bay in southeastern Cook Inlet and
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Kamishak Bay in southwestern Cook
Inlet. This survey was designed to
estimate abundance in Cook Inlet while
accounting for the variable densities and
observability of sea otters in the region.
Total abundance was estimated to be
19,889 sea otters (standard error =
2,988). Within the project area, the
highest densities of sea otters were
found in the outer Kamishak Bay area,
with 3.5 otters per km2, followed by the
eastern shore of Cook Inlet with 1.7
otters per km2.
Sea otters generally occur in shallow
water near the shoreline. They are most
commonly observed within the 40-m
(131-ft) depth contour (USFWS 2014a,
b), although they can be found in areas
with deeper water. Depth is generally
correlated with distance to shore, and
sea otters typically remain within 1 to
2 kilometers (km) or 0.62 to 1.24 miles
(mi) of shore (Riedman and Estes 1990).
They tend to remain closer to shore
during storms, and they venture farther
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out during calm seas (Lensink 1962;
Kenyon 1969).
Sea otters are non-migratory and
generally do not disperse over long
distances (Garshelis and Garshelis
1984). They usually remain within a few
kilometers of their established feeding
grounds (Kenyon 1981). Breeding males
remain for all or part of the year in a
breeding territory covering up to 1 km
(0.62 mi) of coastline. Adult females
have home ranges of approximately 8 to
16 km (5 to 10 mi), which may include
one or more male territories. Juveniles
move greater distances between resting
and foraging areas (Lensink 1962;
Kenyon 1969; Riedman and Estes 1990;
Tinker and Estes 1996).
Although sea otters generally remain
local to an area, they may shift home
ranges seasonally, and are capable of
long-distance travel. Otters in Alaska
have shown daily movement distances
greater than 3 km (1.9 mi) at speeds up
to 5.5 km/hr (3.4 mi per hour) (Garshelis
and Garshelis 1984). In eastern Cook
Inlet, large numbers of sea otters have
been observed riding the incoming tide
northward and returning on the
outgoing tide, especially in August.
They are presumably feeding along the
eastern shoreline of Cook Inlet during
the slack tides when the seas are calm,
and they remain in Kachemak Bay
during periods of less favorable weather
(Gill et al. 2009; BlueCrest 2013). In
western Cook Inlet, otters appear to
move in and out of Kamishak Bay in
response to seasonal changes in the
presence of sea ice (Larned 2006).
Potential Effects of the Activities
Effects of Noise
The operations outlined in the
Description of Specified Activities and
described in the applicant’s updated
petition have the potential to result in
take of sea otters by harassment from
noise. Here we characterize ‘‘noise’’ as
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sound released into the environment
from human activities that exceeds
ambient levels or interferes with normal
sound production or reception by sea
otters. The terms ‘‘acoustic disturbance’’
or ‘‘acoustic harassment’’ are
disturbances or harassment events
resulting from noise exposure. Potential
effects of noise exposure are likely to
depend on the distance of the otter from
the sound source and the level of sound
received by the otter. Project
components most likely to cause
acoustic disturbance are shown in table
2. Temporary disturbance or localized
displacement reactions are the most
likely to occur. With implementation of
the mitigation and monitoring measures
described in § 18.137 Mitigation,
§ 18.138 Monitoring, and § 18.139
Reporting requirements, no lethal take is
anticipated, and take by harassment
(Level A and Level B) is expected to be
minimized to the greatest extent
practicable.
TABLE 2—PROJECT COMPONENTS PLANNED BY HILCORP, HARVEST, AND ALASKA GASLINE DEVELOPMENT CORPORATION
THAT PRODUCE NOISE CAPABLE OF CAUSING INCIDENTAL TAKE BY HARASSMENT OF NORTHERN SEA OTTERS
Project component name & location
Anticipated noise sources
Anchor Point 2D seismic survey ........................
Marine: 1 source vessel with airgun, 1 node vessel; Onshore/Intertidal: Shot holes, tracked vehicles, helicopters.
1 source vessel with airguns, 1 support vessel, 1 or 2 chase vessels to maintain security
around streamers, 1 or 2 mitigation vessels.
1 vessel with echosounders and/or subbottom profilers.
1 jack-up rig, drive pipe installation, support vessels, helicopters.
Construction of causeway, dredging, vessels.
Vessels, water jets, helicopters, and/or sub-bottom profilers.
1 vessel with echosounders and/or subbottom profilers.
1 jack-up rig, support vessel, helicopters.
1 vessel with echosounders and/or subbottom profilers.
1 jack-up rig, drive pipe installation, support vessels, helicopters.
Vessels.
OCS 3D seismic survey .....................................
OCS geohazard survey ......................................
OCS exploratory wells ........................................
Iniskin Peninsula exploration and development
Platform & pipeline maintenance ........................
NCI subsea well geohazard survey ....................
NCI well abandonment activity ...........................
TB area geohazard survey .................................
TB area exploratory wells ...................................
Drift River terminal decommissioning .................
OCS = outer continental shelf, NCI = North Cook Inlet, TB = Trading Bay.
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Noise Levels
Whether a specific noise source will
affect a sea otter depends on several
factors, including the distance between
the animal and the sound source, the
sound intensity, background noise
levels, the noise frequency, the noise
duration, and whether the noise is
pulsed or continuous. The actual noise
level perceived by individual sea otters
will depend on distance to the source,
whether the animal is above or below
water, atmospheric and environmental
conditions, as well as aspects of the
noise emitted.
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Noise levels herein are given in
decibels referenced to 1 mPa (dB re: 1
mPa) for underwater sound. All dB
levels are dBRMS unless otherwise
noted; dBRMS refers to the root-meansquared dB level, the square root of the
average of the squared sound pressure
level (SPL) typically measured over 1
second. Other important metrics include
the sound exposure level (SEL;
represented as dB re: 1 mPa2-s), which
represents the total energy contained
within a pulse and considers both
intensity and duration of exposure, and
the peak sound pressure (also referred to
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as the zero-to-peak sound pressure or 0–
p). Peak sound pressure is the maximum
instantaneous sound pressure
measurable in the water at a specified
distance from the source and is
represented in the same units as the
RMS sound pressure. See Richardson et
al. (1995), Go¨tz et al. (2009), Hopp et al.
(2012), Navy (2014), for descriptions of
acoustical terms and measurement units
in the context of ecological impact
assessment. A summary of the noises
produced by the various components of
the planned activities is provided in
tables 3 and 4.
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TABLE 3—SUMMARY OF SOUND SOURCE LEVELS FOR THE PLANNED OIL AND GAS ACTIVITIES BY HILCORP/HARVEST
ALASKA AND ALASKA GASLINE DEVELOPMENT CORPORATION (AGDC)
Activity
Sound pressure levels
(dB re 1 μPa)
Frequency
Reference
Hilcorp/Harvest Alaska, AGDC
General vessel operations ......
145–175 dB rms at 1 m ..........
10–1,500 Hz ............................
Hilcorp/Harvest Alaska, AGDC
Hilcorp/Harvest Alaska .............
General aircraft operations ......
2D seismic survey (1,945 cui
airgun).
<500 Hz ...................................
<300 Hz ...................................
Hilcorp/Harvest Alaska .............
3D seismic survey (1,945 cui
airgun).
Hilcorp/Harvest Alaska .............
Geohazard surveys .................
100–124 dB rms at 1 m ..........
217 dB peak at 100 m ............
185 dB SEL at 100 m .............
197 dB rms at 100 m ..............
217 dB peak at 100 m ............
185 dB SEL at 100 m .............
197 dB rms at 100 m ..............
210–220 dB rms at 1 m ..........
Richardson et al. 1995;
Blackwell and Greene 2003;
Ireland and Bisson 2016.
Richardson et al. 1995.
Austin and Warner 2013; 81
FR 47240 (July 20, 2016).
Hilcorp/Harvest
Hilcorp/Harvest
Hilcorp/Harvest
Hilcorp/Harvest
Hilcorp/Harvest
Exploratory drilling rig ..............
Drive pipe installation ..............
Vertical seismic profiling ..........
Sub-bottom profiling ................
Rock laying for Iniskin Peninsula causeway.
Vibratory sheet pile driving for
Iniskin Peninsula causeway.
Applicant
Alaska
Alaska
Alaska
Alaska
Alaska
.............
.............
.............
.............
.............
Hilcorp/Harvest Alaska .............
Hilcorp/Harvest Alaska .............
Hilcorp/Harvest Alaska .............
Hilcorp/Harvest Alaska .............
AGDC ........................................
AGDC ........................................
AGDC ........................................
Offshore production platforms
Water jet ..................................
Pingers ....................................
Dredging: Including Clamshell
dredge, Winching in/out,
Dumping into barge, Empty
barge at placement site.
Underwater trenching with
backhoe in shallow water.
Anchor handling ......................
137 dB rms at 1 m ..................
190 dB rms at 55 m ................
227 dB rms at 1 m ..................
212 dB rms at 1 m ..................
136–141 dB rms at 12–19 m ..
<300 Hz ...................................
Austin and Warner 2013; 81
FR 47240 (July 20, 2016).
Echosounders & side scan
sonar: >200 kHz.
High-resolution
sub-bottom
profiler: 2–24 kHz.
Low-resolution sub-bottom profiler: 1–4 kHz.
<200 Hz ...................................
<500 Hz ...................................
<500 Hz ...................................
1–24 kHz .................................
<500 Hz ...................................
Manufacturer specifications.
Marine Acoustics Inc. 2011.
Illingworth & Rodkin 2014.
Illingworth & Rodkin 2014.
Manufacturer specifications.
URS 2007.
175 dB peak at 10 m ..............
160 dB SEL at 10 m ...............
160 dB rms at 10 m ................
97–111 dB rms at 0.3–19 km
176 dB rms at 1 m ..................
192 dB rms at 1 m ..................
107–142.6 dB rms at 10 m .....
<100–2,500 Hz ........................
Illingworth & Rodkin 2007.
<500 Hz ...................................
500 Hz–2 kHz ..........................
4–14 kHz .................................
<2.5 kHz, broadband ...............
Blackwell and Greene 2003.
Austin 2017.
Manufacturer specifications.
Dickerson et al. 2001; URS
2007.
145 dB @10 m ........................
<2.5 kHz, broadband ...............
Greene et al. 2008.
188 dB rms @1 m ...................
<2.5 kHz, broadband ...............
LGL/JASCO/Greeneridge
2014.
SEL = sound exposure level.
TABLE 4—SUMMARY OF SOUND SOURCES OF PILE-DRIVING ACTIVITIES FOR ALASKA GASLINE DEVELOPMENT
CORPORATION (AGDC) FROM ILLINGWORTH & RODKIN (2007).
Sound pressure level
(dB re 1 μPa)
Hammer
type
Representative pile type and size
Peak
24-inch
24-inch
24-inch
60-inch
72-inch
sheet pile .......................................................
sheet pile .......................................................
steel pipe pile ................................................
steel shell pile ................................................
steel pipe piles ...............................................
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Sea Otter Hearing
Sound frequencies produced by the
applicant’s survey and construction
activities will fall within the hearing
range of sea otters and therefore will be
audible to animals. Controlled sound
exposure trials on southern sea otters (E.
l. nereis) indicate that hearing ability
spans frequencies between 125 hertz
(Hz) and 38 kilohertz (kHz) with best
sensitivity between 1.2 and 27 kHz
(Ghoul and Reichmuth 2014). Aerial
and underwater audiograms for a
captive adult male southern sea otter in
the presence of ambient noise suggest
the sea otter’s hearing was less sensitive
to high-frequency (greater than 22 kHz)
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Impact ............
Vibratory ........
Impact ............
Impact ............
Vibratory ........
RMS
205
175
207
210
183
and low-frequency (less than 2 kHz)
sounds than terrestrial mustelids but
similar to that of a sea lion (e.g.,
Zalophus californianus). Dominant
frequencies of southern sea otter
vocalizations are between 3 and 8 kHz,
with some energy extending above 60
kHz (McShane et al. 1995; Ghoul and
Reichmuth 2012a).
Exposure to high levels of sound may
cause changes in behavior, masking of
communications, temporary changes in
hearing sensitivity, discomfort, and
physical or auditory injury. Speciesspecific criteria for preventing harmful
exposures to sound have not been
identified for sea otters. Thresholds
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Project pile type
and size
SEL
190
160
194
195
170
180
160
178
185
170
Sheet pile.
Sheet pile.
18- and 24-inch piles.
48- and 60-inch piles.
All size piles.
have been developed for other marine
mammals, above which exposure is
likely to cause behavioral disturbance
and injuries (Southall et al. 2007;
Finneran and Jenkins 2012; NMFS
2018a). Because sea otter hearing
abilities and sensitivities have not been
fully evaluated, we relied on the closest
related proxy, California sea lions, to
evaluate the potential effects of noise
exposure. The California sea lion, an
otariid pinniped, has a frequency range
of hearing most similar to that of the
southern sea otter (Ghoul and
Reichmuth 2014) and provides the
closest related proxy for which data are
available. Sea otters and pinnipeds
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share a common mammalian aural
physiology (Echteler et al. 1994;
Solntseva 2007). Both are adapted to
amphibious hearing, and both use
sound in the same way (primarily for
communication rather than feeding).
Exposure Criteria
Noise exposure criteria have been
established by the National Marine
Fisheries Service (NMFS) for identifying
underwater noise levels capable of
causing Level A harassment (injury) of
certain marine mammals, including
otariid pinnipeds (NMFS 2018a). Sea
otter-specific criteria have not been
determined; however, because of their
biological similarities, we assume that
noise criteria developed by NMFS for
injury for otariid pinnipeds will be a
suitable surrogate for sea otter impacts
as well. Those criteria are based on
estimated levels of sound exposure
capable of causing a permanent shift in
sensitivity of hearing (e.g., a permanent
threshold shift (PTS) (NMFS 2018a)).
PTS occurs when noise exposure causes
hairs within the inner ear system to die.
NMFS’ (2018a) criteria for sound
exposure incorporate two metrics of
exposure: The peak level of
instantaneous exposure likely to cause
PTS, and the cumulative sound
exposure level during a 24-hour period
(SELcum). They also include weighting
adjustments for the sensitivity of
different species to varying frequencies.
PTS-based injury criteria were
developed from theoretical
extrapolation of observations of
temporary threshold shifts (TTS)
detected in lab settings during sound
exposure trials. Studies were
summarized by Finneran (2015). For
otariid pinnipeds, PTS is predicted to
occur at 232 dB peak or 203 dB SELcum
for impulsive sound, or 219 dB SELcum
for non-impulsive (continuous) sound.
NMFS’ criteria for take by Level A
harassment represents the best available
information for predicting injury from
exposure to underwater sound among
pinnipeds, and in the absence of data
specific to otters, we assume these
criteria also represent appropriate
exposure limits for Level A take of sea
otters.
NMFS (2018a) criteria do not identify
thresholds for avoidance of Level B take.
For pinnipeds, NMFS has adopted a
160-dB threshold for Level B take from
exposure to impulse noise and a 120-dB
threshold for continuous noise (NMFS
1998; HESS 1999; NMFS undated).
These thresholds were developed from
observations of mysticete (baleen)
whales responding to airgun operations
(e.g., Malme et al. 1983a, b; Richardson
et al. 1986, 1995) and from equating
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Level B take with noise levels capable
of causing TTS in lab settings.
We have evaluated these thresholds
and determined that the Level B
threshold of 120 dB for non-impulsive
noise is not applicable to sea otters. The
120-dB threshold is based on studies
conducted by Malme et al. in the 1980s,
during which gray whales were exposed
to experimental playbacks of industrial
noise. Based on the behavioral
responses of gray whales to the playback
of drillship noise during a study at St.
Lawrence Island, Alaska, Malme et al.
(1988) concluded that ‘‘exposure to
levels of 120 dB or more would
probably cause avoidance of the area by
more than one-half of the gray whales.’’
Sea otters do not usually occur at St.
Lawrence Island, Alaska, but similar
playback studies conducted off the coast
of California (Malme 1983a, 1984)
included a southern sea otter
monitoring component (Riedman 1983,
1984). The 1983 and 1984 studies
detected probabilities of avoidance in
gray whales comparable to those
reported in Malme et al. (1988), but
there was no evidence of disturbance
reactions or avoidance in southern sea
otters.
The applicable Level B thresholds
may also depend on the levels of
background noise present and the
frequencies generated. NMFS
acknowledges that the 120-dB threshold
may not be applicable if background
noise levels are high (NMFS undated),
which is the case in Cook Inlet, where
ambient levels can often exceed 120 dB
(Blackwell and Greene 2003).
Thresholds developed for one species
may not be appropriate for another due
to differences in their frequency
sensitivities. Continuous sound sources
associated with the planned activities
include vibratory pile driving, vessel
activities, use of a water jet, dredging,
trenching, and anchor handling. These
are expected to produce low-frequency
broadband noise. For example, vibratory
pile driving will generate sound with
frequencies that are predominantly
lower than 2 kHz, and with the greatest
pressure spectral densities at
frequencies below 1 kHz (Dahl et al.
2015). Sea otters are capable of hearing
down to 125 Hz, but have relatively
poor hearing sensitivity at frequencies
below 2 kHz (Ghoul and Reichmuth
2014). During a project that occurred in
Elkhorn Slough, California, sound levels
ranging from approximately 135 to 165
dB during vibratory pile driving elicited
no clear pattern of disturbance or
avoidance among southern sea otters in
areas exposed to these levels of
underwater sound (ESNERR 2011). In
contrast, gray whales are in the group of
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marine mammals believed to be most
sensitive to low-frequency sounds, with
an estimated audible frequency range of
approximately 10 Hz to 30 kHz
(Finneran 2015). Given the different
range of frequencies to which sea otters
and gray whales are sensitive, the NMFS
120-dB threshold based on gray whale
behavior is not useful for predicting sea
otter behavioral responses to lowfrequency sound.
Although no specific thresholds have
been developed for sea otters, several
alternative behavioral response
thresholds have been developed for
pinnipeds. Southall et al. (2007, 2019)
assessed behavioral response studies,
found considerable variability among
pinnipeds, and determined that
exposures between approximately 90 to
140 dB generally do not appear to
induce strong behavioral responses in
pinnipeds in water, but behavioral
effects, including avoidance, become
more likely in the range between 120 to
160 dB, and most marine mammals
showed some, albeit variable, responses
to sound between 140 to 180 dB. Wood
et al. (2012) later adapted the approach
identified in Southall et al. (2007) to
develop a probabilistic scale for marine
mammal taxa at which 10 percent, 50
percent, and 90 percent of individuals
exposed are assumed to produce a
behavioral response. For many marine
mammals, including pinnipeds, these
response rates were set at sound
pressure levels of 140, 160, and 180 dB
respectively.
Thresholds based on TTS have been
used as a proxy for Level B harassment
(i.e., 70 FR 1871, January 11, 2005; 71
FR 3260, January 20, 2006; and 73 FR
41318, July 18, 2008). Southall et al.
(2007) derived TTS thresholds for
pinnipeds based on 212 dB peak and
171-dB SELcum. Kastak et al. (2005)
found exposures resulting in TTS in
pinnipeds ranging from 152 to 174 dB
(183–206 dB SEL). Kastak et al. (2008)
demonstrated a persistent TTS, if not a
PTS, after 60 seconds of 184 dB SEL.
Kastelein et al. (2012) found small but
statistically significant TTSs at
approximately 170 dB SEL (136 dB, 60
min) and 178 dB SEL (148 dB, 15 min).
Finneran (2015) summarized these and
other studies, and NMFS (2018a) has
used the data to develop TTS threshold
for otariid pinnipeds of 188 dB SELcum
for impulsive sounds and 199 dB SELcum
for non-impulsive sounds.
Based on the lack of a disturbance
response or any other reaction by sea
otters to the 1980s playback studies and
the absence of a clear pattern of
disturbance or avoidance behaviors
attributable to underwater sound levels
up to about 160 dB resulting from
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vibratory pile driving and other sources
of similar low-frequency broadband
noise, we assume 120 dB is not an
appropriate behavioral response
threshold for sea otters exposed to
continuous underwater noise. We
assume, based on the work of NMFS
(2018a), Southall et al. (2007, 2019), and
others described here, that either a 160dB threshold or a 199-dB SELcum
threshold is likely to be the best
predictor of Level B take of sea otters for
continuous noise exposure, using
southern sea otters and pinnipeds as a
proxy, and based on the best available
data. When behavioral observations
during vibratory pile driving (ESNERR
2011) and results of behavioral response
modelling (Wood et al. 2012) are
considered, the application of a 160-dB
rms threshold is most appropriate.
Exposure to impulsive sound levels
greater than 160 dB can elicit behavioral
changes in marine mammals that might
be detrimental to health and long-term
survival where it disrupts normal
behavioral routines. Thus, using
information available for other marine
mammals as a surrogate, and taking into
consideration the best available
information about sea otters, the Service
has set the received sound level under
water of 160 dB as a threshold for Level
B take by disturbance for sea otters for
this ITR based on the work of Ghoul and
Reichmuth (2012a, b), McShane et al.
(1995), NOAA (2005), Riedman (1983),
Richardson et al. (1995), and others.
Exposure to unmitigated in-water noise
levels between 125 Hz and 38 kHz that
are greater than 160 dB—for both
impulsive and non-impulsive sound
sources—will be considered by the
Service as Level B take; thresholds for
potentially injurious Level A take will
be 232 dB peak or 203 dB SEL for
impulsive sounds and 219 dB SEL for
continuous sounds (table 5).
The area in which underwater noise
in the frequency range of sea otter
hearing will exceed thresholds, is
termed the ‘‘area of ensonification’’ or
‘‘zone of ensonification.’’ The
ensonification zone in which noise
levels exceed thresholds for Level A
take is often referred to as the Level A
harassment zone. The Level B
harassment zone likewise includes areas
ensonified to thresholds for Level B take
of sea otters.
TABLE 5—SUMMARY OF THRESHOLDS FOR PREDICTING LEVEL A AND LEVEL B TAKE OF NORTHERN SEA OTTERS FROM
UNDERWATER SOUND EXPOSURE IN THE FREQUENCY RANGE 125
Injury (Level A) threshold
Disturbance (Level B)
threshold
Marine mammals
Sea otters ...........................................
Impulsive 1
Non-impulsive 1
232 dB peak; 203 dB SELCUM .........
219 dB SELCUM ................................
All
160 dB rms.
1 Based
on National Marine Fisheries Service acoustic exposure criteria for take of otariid pinnipeds (NMFS 2018a).
SELCUM = cumulative sound exposure level.
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Noise-Generating Activities
The components of the specified
activities that have the greatest
likelihood of exposing sea otters to
underwater noise capable of causing
Level A or Level B take include
geophysical surveys, pile driving,
drilling activities, and anchor handling
associated with pipeline construction.
Vessel and aircraft operations also have
the ability to expose otters to sound that
may cause disturbance. A brief
description of potential impacts follows.
Geophysical Surveys—Airgun arrays
used in seismic surveys to locate
potential hydrocarbon-bearing geologic
formations typically produce most noise
energy in the 10- to 120-Hertz (Hz)
range, with some energy extending to
1,000 Hz (Richardson et al. 1995). There
is no empirical evidence that exposure
to pulses of airgun sound is likely to
cause serious injury or death in any
marine mammal, even with large arrays
of airguns (Southall et al. 2007). But
high-level noise exposure has been
implicated in mass stranding events
among whales (e.g., see Cox et al. 2006),
and with source levels of up to 260 dB,
the potential of seismic airgun arrays to
acoustically injure marine mammals at
close proximity must be considered.
In addition to seismic surveys for
hydrocarbon-bearing formations,
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geophysical surveys are conducted to
produce imagery of sea-floor surfaces
and substrates on a finer spatial scale.
Sounds produced by the instruments
used for these surveys vary in terms of
frequency bands, source levels,
repetition rates, and beam widths.
Operating frequencies range from
roughly 300 Hz to several hundred kHz
with peak-to-peak source levels ranging
from 170 to 240 dB (Crocker and
Fratantonio 2016).
Pipe/Pile Driving—During the course
of pile driving, a portion of the kinetic
energy from the hammer is lost to the
water column in the form of sound.
Levels of underwater sounds produced
during pile driving are dependent upon
the size and composition of the pile, the
substrate into which the pile is driven,
bathymetry, physical and chemical
characteristics of the surrounding
waters, and pile installation method
(impact versus vibratory hammer)
(Illingworth and Rodkin 2007, 2014;
Denes et al. 2016).
Both impact and vibratory pile
installation produce underwater sounds
of frequencies predominantly lower
than 2.5 kHz, with the highest intensity
of pressure spectral density at or below
1 kHz (Denes et al. 2016; Dahl et al.
2015; Illingworth and Rodkin 2007).
Source levels of underwater sounds
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produced by impact pile driving tend to
be higher than for vibratory pile driving;
however, both methods of installation
can generate underwater sound levels
capable of causing behavioral
disturbance or hearing threshold shift in
marine mammals, and both methods
will be used in Cook Inlet.
Drilling Operations—For drilling
operations, two project components
have the potential to disturb sea otters:
Installing the drive pipe at each well
prior to drilling; and VSP operations
that may occur at the completion of
each well drilling. The types of
underwater sounds generated by these
activities are discussed in ‘‘Pile
Driving’’ and ‘‘Geophysical Surveys,’’
respectively. Drilling and the associated
noise from pumps and generators on the
drill rig is not expected to produce
underwater noise levels that will affect
sea otters (e.g., see Richardson et al.
1995; Spence et al. 2007; Marine
Acoustics, Inc. 2011; Illingworth and
Rodkin 2014).
Aircraft Overflights—Richardson et al.
(1995) presented analyses of recordings
of sounds produced by a Bell 212
helicopter. The estimated source levels
for two of the flights were 149 and 151
dB re 1 mPa-m, and underwater received
levels were 109 dB when the aircraft
flew at an altitude of 152 m (500 ft) and
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107 dB at a flight altitude of 305 m
(1,000 ft). Received sound levels in air
at the water surface would be 81 and 75
dB re 20 mPa for flights at 152 and 305
m (500 and 1,000 ft), respectively.
Anchor Handling—The characteristics
of sounds produced by vessels are a
product of several variables pertaining
to the specifications of the vessel,
including the number and type of
engines, propeller shape and size, and
the mechanical condition of these
components. Operational status of the
vessel, such as towing heavy loads or
using bow thrusters, can significantly
affect the levels of sounds emitted by
the same vessel at different times
(Richardson et al. 1995). Manipulation
of anchors for the laying of the AGDC
pipeline will involve vessel operations
that are likely to be substantially louder
than normal transit. Data from recent
exploratory drilling activities in the
Chukchi and Beaufort Seas indicate that
anchor handling can intermittently
produce sounds likely greater than 190
dB; the source level of the anchorhandling vessel was estimated to be 188
dB (LGL/JASCO/Greeneridge 2014). It is
not known whether anchor handling
will produce similar noise levels in
Cook Inlet, but it will occur in areas
where sea otters are uncommon and
unlikely to be affected.
Airborne Sounds
The NMFS (2018a) guidance neither
addresses thresholds for preventing
injury or disturbance from airborne
noise, nor provides thresholds for
avoidance of Level B take. However, a
review of literature by Southall et al.
(2007) suggested thresholds for PTS and
TTS for sea lions exposed to non-pulsed
airborne noise of 172.5 and 159 dB re
(20 mPa)2-s SEL. Behavioral responses to
overflights are addressed in Responses
to Activities.
Conveyance of underwater noise into
the air is of little concern since the
effects of pressure release and
interference at the water’s surface,
which scatter and reflect sound, reduce
underwater noise transmission into the
air. For activities that create both in-air
and underwater sounds, such as pile
driving, we will estimate take based on
parameters for underwater noise
transmission. Because sound energy
travels more efficiently through water
than through air, this estimation will
also account for exposures to animals at
the surface.
Aircraft are the most significant
source of airborne sounds. Proposed
flights are to be conducted at an altitude
of 305 m (1,000 ft) except during takeoff
and landing. At the surface of the water,
the received sound level from a
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helicopter flown at this altitude is
roughly 75 dB re 20 mPa (see ‘‘NoiseGenerating Activities’’), and so
threshold shift is extremely unlikely.
Loud screams are used to
communicate between pups and
mothers at the surface (McShane et al.
1995), but sea otters do not appear to
communicate vocally under water, and
they do not use sound to detect prey.
Although masking of these crucial
airborne calls is possible, the duration
of sound from aircraft will be brief and
therefore unlikely to result in separation
of females from pups.
Effects on Habitat and Prey
Habitat areas of significance for sea
otters exist in the project area. Sea otter
critical habitat was designated under the
ESA (74 FR 51988, October 8, 2009). In
Cook Inlet, critical habitat occurs along
the western shoreline south of
approximately Redoubt Point. It extends
from mean high-tide line out to 100 m
(328.1 ft) from shore or to the 20-m
(65.6-ft) depth contour. Physical and
biological features of critical habitat
essential to the conservation of sea
otters include the benthic invertebrates
(e.g., red sea urchins (Mesocentrotus
franciscanus), blue mussels (Mytilus
spp.), butter clams (Saxidomus
giganteus), etc.) eaten by otters and the
shallow rocky areas and kelp (e.g., bull
kelp (Nereocystis luetkeana) and dragon
kelp (Eualaria fistulosa)) beds that
provide cover from predators. Other
important habitat in the applicant’s
project area includes outer Kamishak
Bay between Augustine Island and
Iniskin Bay within the 40-m (131-ft)
depth contour where high densities of
otters have been detected.
The applicant’s planned activities
include drilling, dredging, trenching,
pile driving, and dock construction.
These activities would change the
physical characteristics of localized
areas of habitat. Construction would
result in seafloor disturbance. Docks can
increase seafloor shading, which affects
the amount of light penetration on the
seafloor. Water quality may be affected
by drilling-related discharges within
limits permitted by the State of Alaska.
Sampling efforts at borrow and
disposal areas before and after dredging
activity have produced mixed results in
terms of whether dredging causes
significant changes to the productivity
and diversity of infaunal benthic and
epibenthic invertebrate communities
(Fraser et al. 2017; Angonesi et al.
2006). The areas where dredging
activities are proposed include a
materials loading facility at Nikiski and
along the planned AGDC pipeline route
between Nikiski and Beluga; the
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37723
proposed disposal area is just west of
Nikiski. This is beyond the northern
limit of sea otter distribution in Cook
Inlet, so effects of dredging upon
invertebrate communities would not
affect availability of prey to sea otters.
In addition to the disturbances
outlined above to sea otters or their
designated critical habitat, survey and
construction activities could affect sea
otter habitat in the form of impacts to
prey species. The primary prey species
for sea otters are sea urchins, abalone,
clams, mussels, crabs, and squid (Tinker
and Estes 1999). When preferential prey
are scarce, otters will also eat kelp,
turban snails (Tegula spp.), octopuses
(e.g., Octopus spp.), barnacles (Balanus
spp.), sea stars (e.g., Pycnopodia
helianthoides), scallops (e.g.,
Patinopecten caurinus), rock oysters
(Saccostrea spp.), worms (e.g.,
Eudistylia spp.), and chitons (e.g.,
Mopalia spp.) (Riedman and Estes
1990).
Limited research has been conducted
on the effects of noise on invertebrates
(Normandeau Associates, Inc. 2012).
Christian et al. (2003) concluded that
there were no obvious effects from
seismic signals on crab behavior and no
significant effects on the health of adult
crabs. Pearson et al. (1994) had
previously found no effects of seismic
signals upon crab larvae for exposures
as close as 1 m (3.3 ft) from the array,
or for mean sound pressure as high as
231 dB. Pearson et al. (1994) did not
observe any statistically significant
effects on Dungeness crab (Cancer
magister) larvae shot as close as 1 m
from a 231-dB source. Further, Christian
et al. (2004) did not find any behavioral
or significant health impacts to snow
crabs (Chionoecetes opilio) exposed to
seismic noise. The only effect noted was
a reduction in the speed of egg
development after exposure to noise
levels (221 dB at 2 m), far higher than
what bottom-dwelling crabs could be
exposed to by seismic guns.
Invertebrates such as mussels, clams,
and crabs do not have auditory systems
or swim bladders that could be affected
by sound pressure. Squid and other
cephalopod species have complex
statocysts (Nixon and Young 2003) that
resemble the otolith organs of fish that
may allow them to detect sounds
(Budelmann 1992).
Some species of invertebrates have
shown temporary behavioral changes in
the presence of increased sound levels.
Fewtrell and McCauley (2012) reported
increases in alarm behaviors in wildcaught captive reef squid (Sepioteuthis
australis) exposed to seismic airguns at
noise levels between 156–161 dB.
Additionally, captive crustaceans have
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changed behaviors when exposed to
simulated sounds consistent with those
emitted during seismic exploration and
pile-driving activities (Tidau and Briffa
2016).
In general, there is little knowledge
regarding effects of sound in marine
invertebrates or how invertebrates are
affected by high noise levels (Hawkins
and Popper 2012). A review of literature
pertaining to effects of seismic surveys
on fish and invertebrates (Carroll et al.
2016) noted that there is a wide
disparity between results obtained in
field and laboratory settings. Some of
the reviewed studies indicate the
potential for noise-induced
physiological and behavioral changes in
a number of invertebrates. However,
changes were observed only when
animals were housed in enclosed tanks
and many were exposed to prolonged
bouts of continuous, pure tones. We
would not expect similar results in open
marine conditions. Given the short-term
duration of sounds produced by each
component of the proposed work, it is
unlikely that noises generated by survey
and construction activities will have
any lasting effect on sea otter prey.
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Potential Impacts From an Oil Spill or
Unpermitted Discharge
We provided discussion of relevant
impacts to sea otters from oil spills and
unpermitted discharges in our Federal
Register notice of proposed rulemaking
(84 FR 10224, March 19, 2019) and do
not repeat that information here.
Adverse impacts of exposure to oil is
well documented for sea otters (e.g.,
Kooyman et al. 1976; Baker et al. 1981;
Costa and Kooyman 1982, 1984;
Engelhardt 1983; Lipscomb 1996;
Bickham 1998; Monson 2000; Albers
2003; Peterson 2003). An oil spill or
unpermitted discharge is an illegal act,
and ITRs do not authorize take of sea
otters caused by illegal or unpermitted
activities. Typical spills that may result
from the proposed activities are
relatively small in scale and are not
likely to affect otters. A large spill could
affect large numbers of otters, but these
events are rare. We do not anticipate
effects to sea otters as a result of oil
spills from this activity.
Collisions
Vessel collisions with marine
mammals can result in death or serious
injury. Wounds resulting from ship
strike may include massive trauma,
hemorrhaging, broken bones, or
propeller lacerations (Knowlton and
Kraus 2001). An animal at the surface
may be struck directly by a vessel, a
surfacing animal may hit the bottom of
a vessel, or an animal just below the
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surface may be cut by a vessel’s
propeller. Mortality associated with boat
strike has been identified from recovery
of carcasses with lacerations indicative
of propeller injuries (e.g., Wild and
Ames 1974; Morejohn et al. 1975). From
1998 to 2001, boat strike was identified
as the cause of death for 5 of 105
southern sea otter mortalities (Kreuder
et al. 2003). From 2006 through 2010,
evidence indicates that 11 southern sea
otters were likely struck by boats (USGS
and California Department of Fish and
Game, unpublished data cited in 77 FR
59211–59220, September 26, 2012).
From January 2003 to May 2013,
researchers recovered 35 southern sea
otters with trauma consistent with
impact from a boat hull or propeller.
These data suggest a rate of boat-strike
mortality in California of 2.6 otters per
year, or about 0.1 percent of the
population size.
Boat strike has been documented as a
cause of death across all three stocks of
northern sea otters in Alaska. Since
2002, the Service has undertaken a
health and disease study of sea otters in
Alaska in which the Service conducts
necropsies on sea otter carcasses to
determine cause of death, disease
incidence, and status of general health
parameters. Of 1,433 necropsies
conducted during 24 years, boat strike
or blunt trauma was identified as a
definitive or presumptive cause of death
in 64 cases (4 percent) (USFWS
unpublished data). It has been
determined in most of these cases that,
while trauma was the ultimate cause of
death, there was a contributing factor,
such as disease or biotoxin exposure,
which incapacitated the animal and
made it more vulnerable to boat strike
(USFWS 2014).
In Alaska, the annual rate of
documented mortality from boat strike
was similar to that reported for
California: 2.7 otters per year (USFWS
unpublished data). However, compared
to otters in California, Alaska otters
belong to much larger and more
dispersed populations where carcass
recovery is lower. Instances of vessel
collision are likely to be underreported,
and the probability of collision is
unknown.
Likelihood of vessel strikes involving
sea otters appears to be primarily related
to vessel speed. Most collision reports
have come from small, fast-moving
vessels (NMFS 2003). The severity of
injuries to marine mammals during a
boat strike also depends on vessel
speed, with the probability of death or
serious injury increasing as vessel speed
increases (Laist et al. 2001; Vanderlaan
and Taggart 2007). Because sea otters
spend a considerable portion of their
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time at the surface of the water, they are
typically visually aware of approaching
boats and are able to move away if a
vessel is not traveling too quickly.
The probability of the specified
activities in Cook Inlet causing a sea
otter/vessel collision is very low for
three reasons: First, most of the work
will occur in lower-density regions of
Cook Inlet; second, the project work will
involve slow-moving, noisy vessels that
sea otters can more easily avoid; and
third, the specified activities will
constitute only a small fraction of the
total level of vessel traffic in the region,
which increases the likelihood that
otters in the project area are accustomed
to avoiding vessels and will successfully
avoid collisions with project vessels.
The AGDC pipeline work and work by
Hilcorp and Harvest on maintenance of
existing facilities will be conducted in
MCI, in areas that are outside of the
normal range of sea otters. The unusual
occurrence of otters in MCI makes
vessel collisions extremely unlikely.
Hilcorp and Harvest will conduct their
3D seismic work in offshore areas of LCI
where otter densities are also low. They
will conduct 2D seismic work along the
eastern shoreline of LCI where densities
are higher, but vessel speeds during the
specified activities will be slow.
Hilcorp/Harvest’s seismic vessels would
travel at approximately 4 knots (kn) or
7.4 km per hour (km/hr) while towing
seismic survey gear and a maximum of
4.5 kn (8.3 km/hr) while conducting
geophysical surveys. Vessel speed
during rig towing will generally be less
than 5 kn. AGDC’s pipeline construction
operations will proceed at similar slow
speeds. Anchor handling will occur at
about 3 kn. For comparison, freighters
in Cook Inlet travel at 20 to 24 kn (Eley
2006), and small recreational vessels
may travel at 40 kn.
The applicant’s support vessels and
vessels in transit will travel at faster
speeds; for example, Hilcorp/Harvest’s
maintenance activities will require the
use of dive vessels, typically ranging up
to 21 m (70 ft) in length and capable of
approximately 7 kn (13 km/hr). The risk
of collision is thus reduced, but not
eliminated, by the predominance of
slow-moving vessel work in areas of low
density.
Commercial and recreational vessels
are much more common in both space
and time than are geophysical survey
activities, drilling support operations,
and pipeline work. Based on U.S. Coast
Guard records and other local sources of
information compiled by Eley (2006),
704 large vessels, other than fuel barges
in domestic trade, called at Cook Inlet
ports from January 1, 2005, through July
15, 2006. Almost two-thirds (65 percent)
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of the calls were made by container
vessels, cargo, or ferries. Twenty-nine
percent (29 percent) of the vessel traffic
was gas or liquid tankships calling
primarily at Nikiski. Bulk carriers and
general cargo ships represented 6
percent. Tugs and fishing and passenger
vessels combined represented 2 percent
of the Cook Inlet vessel traffic. Tugs
made approximately 150 fuel barge
transits a year, assisted in docking and
undocking ships in Nikiski and
Anchorage, and moved miscellaneous
deck and gravel barges in and out of the
Port of Anchorage. Although small
vessels are less common than larger
ships, they are the most likely source of
collision due to faster speeds and their
presence in shallow water where sea
otters are common. In 2005, there were
570 commercial fishing vessels
registered in the Cook Inlet salmon/
groundfish fleet. Of these, 86 percent
were 31–40 ft in length. Vessels in this
size class typically travel at up to 30 kn
while in transit. The high level of ship
traffic in Cook Inlet allows many sea
otters in Cook Inlet to habituate to
vessels. This will reduce risk of
collision for the project activities when
vessels are in transit.
Although the likelihood of a project
vessel striking a sea otter is low, we
intend to require mitigation measures to
reduce the risk of ship strike in all
LOAs. We anticipate that vessel
collisions involving a seismic-dataacquisition vessel towing gear or vessels
conducting geophysical operations are
unlikely given the rarity of documented
collisions, the low densities of otters in
most of the project areas, the frequent
vessel traffic to which otters have
become accustomed, and the slow
vessel speeds. Vessels in transit and
support vessels travelling at greater rates
of speed are more likely to cause
collisions.
Mitigation measures for reducing the
probability of ship strike include speed
reductions during periods of low
visibility, required separation distances
from observed otters, avoidance of
nearshore travel, and use of navigation
channels, when practicable. We believe
these measures will further reduce the
risk of collision. Given the required
mitigation measures, the relatively slow
speed of most of the project vessels, the
presence of marine mammal observers,
and the short duration of many of the
activities, we believe that the possibility
of ship strike is discountable. No
incidental take resulting from ship
strike is anticipated, and this potential
effect of the specified activity will not
be discussed further in the following
analysis.
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Characterizing Take
In the previous section, we discussed
the components of the project activities
that have the potential to affect sea
otters. Here we describe and categorize
the physiological and behavioral effects
that can be expected based on
documented responses to human
activities observed during sea otter
studies. We also discuss how these
behaviors are characterized under the
MMPA.
An individual sea otter’s reaction to a
human activity will depend on its prior
exposure to the activity, its need to be
in the particular area, its physiological
status, or other intrinsic factors. The
location, timing, frequency, intensity,
and duration of the encounter are
among the external factors that will also
influence the animal’s response.
Relatively minor reactions such as
increased vigilance or a short-term
change in direction of travel are not
likely to disrupt biologically important
behavioral patterns and are not
considered take by harassment. These
types of responses typify the most likely
reactions of the majority of sea otters
that will be exposed to the applicant’s
activities.
Reactions capable of causing injury
are characterized as Level A harassment
events. Examples include separation of
mothers from young or repeatedly
flushing sea otters from a haulout.
Exposure to noise capable of causing
PTS is also considered take by Level A
harassment.
Intermediate reactions that disrupt
biologically significant behaviors are
considered Level B harassment under
the MMPA. The Service has identified
the following sea otter behaviors as
indicating possible Level B take:
• Swimming away at a fast pace on
belly (i.e., porpoising);
• Repeatedly raising the head
vertically above the water to get a better
view (spyhopping) while apparently
agitated or while swimming away;
• In the case of a pup, repeatedly
spyhopping while hiding behind and
holding onto its mother’s head;
• Abandoning prey or feeding area;
• Ceasing to nurse and/or rest
(applies to dependent pups);
• Ceasing to rest (applies to
independent animals);
• Ceasing to use movement corridors
along the shoreline;
• Ceasing mating behaviors;
• Shifting/jostling/agitation in a raft
so that the raft disperses;
• Sudden diving of an entire raft;
• Flushing animals off a haulout.
This list is not meant to encompass all
possible behaviors; other situations may
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also indicate Level B take. It is also
important to note that, depending on the
duration and severity of the abovedescribed behaviors, such responses
could constitute take by Level A
harassment, e.g., repeatedly flushing sea
otters from a haulout versus a single
flushing event.
Direct and Indirect Effects
The reactions of wildlife to
disturbance can range from short-term
behavioral changes to long-term impacts
that affect survival and reproduction.
Most sea otters will respond to human
disturbance with nonlethal reactions
that are similar to antipredator
responses (Frid and Dill 2002). Sea
otters are susceptible to predation,
particularly from killer whales and
eagles, and have a well-developed
antipredator response to perceived
threats. Sea otters will swim away, dive,
or hide among rocks or kelp, and will
sometimes spyhop (vertically raise its
head out of the water, presumably to
look around) or splash when threatened.
Limbaugh (1961) reported that sea otters
were apparently undisturbed by the
presence of a harbor seal (Phoca
vitulina), but they were quite concerned
with the appearance of a California sea
lion. They demonstrated their fear by
actively looking above and beneath the
water when a sea lion was swimming
nearby.
Although an increase in vigilance or
a flight response is nonlethal, a tradeoff
occurs between risk avoidance and
energy conservation (Frid and Dill
2002). For example, southern sea otters
in areas with heavy recreational boat
traffic demonstrated changes in
behavioral time budgeting showing
decreased time resting and changes in
haulout patterns and distribution
(Benham 2006; Maldini et al. 2012). In
an example described by Pavez et al.
(2015), South American sea lions
(Otaria byronia) visited by tourists
exhibited an increase in the state of
alertness and a decrease in maternal
attendance and resting time on land,
thereby potentially reducing population
size. In another example, killer whales
(Orcinus orca) that lost feeding
opportunities due to boat traffic faced a
substantial (18 percent) estimated
decrease in energy intake (Williams et
al. 2006). Such disturbance effects can
have population-level consequences.
Increased disturbance rates have been
associated with a decline in abundance
of bottlenose dolphins (Tursiops sp.)
(Bejder et al. 2006; Lusseau et al. 2006).
These examples illustrate direct
effects on survival and reproductive
success, but disturbances can also have
indirect effects. When disturbed by
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noise, animals may respond
behaviorally (e.g., escape response), as
well as physiologically (e.g., increased
heart rate, hormonal response) (Harms
et al. 1997; Tempel and Gutierrez 2003).
In the absence of an apparent behavioral
response, an animal exposed to noise
disturbance may still experience stress
and direct energy away from fitnessenhancing activities such as feeding and
mating. The energy expense and
physiological effects could ultimately
lead to reduced survival and
reproduction (Gill and Sutherland 2000;
Frid and Dill 2002). Changes in behavior
from anthropogenic disturbance can
also include latent agonistic interactions
between individuals (Barton et al.
1998). Chronic stress can lead to
weakened reflexes, lowered learning
responses (Welch and Welch 1970; van
Polanen Petel et al. 2006), compromised
immune function, decreased body
weight, and abnormal thyroid function
(Selye 1979).
The type and extent of response may
be influenced by intensity of the
disturbance (Cevasco et al. 2001), the
extent of previous exposure to humans
(Holcomb et al. 2009), the type of
disturbance (Andersen et al. 2012), and
the age and/or sex of the individuals
(Shaughnessy et al. 2008; Holcomb et al.
2009). Despite the importance of
understanding the effects of
disturbance, few controlled experiments
or field observations have been
conducted on sea otters to address this
topic.
Responses to Activities
The available studies of sea otter
behavior suggest that sea otters may be
more resistant to the effects of sound
disturbance and other human activities
than some other marine mammals. For
example, at Soberanes Point, California,
Riedman (1983) examined changes in
the behavior, density, and distribution
of southern sea otters that were exposed
to recorded noises associated with oil
and gas activity. The underwater sound
sources were played at a level of 110 dB
and a frequency range of 50 to 20,000
Hz and included production platform
activity, drillship, helicopter, and semisubmersible sounds. Riedman (1983)
also observed the sea otters during
seismic airgun shots fired at decreasing
distances from the nearshore
environment (50, 20, 8, 3.8, 3, 1, and 0.5
nautical miles) at a firing rate of 4 shots
per minute and a maximum air volume
of 4,070 cubic inches (in3). Riedman
(1983) observed no changes in the
presence, density, or behavior of sea
otters as a result of underwater sounds
from recordings or airguns, even at the
closest distance of 0.5 nautical miles (<1
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km or 0.6 mi). However, otters did
display slight reactions to airborne
engine noise. Riedman (1983, 1984) also
monitored the behavior of sea otters
along the California coast while they
were exposed to a single 100-in3 airgun
and a 4,089-in3 airgun array. Sea otters
did not respond noticeably to the single
airgun, and no disturbance reactions
were evident when the airgun array was
as close as 0.9 km (0.6 mi).
Sea otters spend from 30 to 80 percent
of their time each day at the surface of
the water resting and grooming
(Riedman 1983, 1984; Bodkin et al.
2004; Wolt et al. 2012). While at the
surface, turbulence from wind and
waves attenuate noise more quickly
than in deeper water, reducing potential
noise exposure (Greene and Richardson
1988; Richardson et al. 1995).
Additionally, turbulence at the water’s
surface limits the transference of sound
from water to air. A sea otter with its
head above water will be exposed to
only a small fraction of the sound
energy travelling through the water
beneath it. Thus, the amount of total
time spent at the surface may help limit
sea otters’ exposure during noisegenerating operations.
Sea otters do not rely on sound to
orient themselves, locate prey, or
communicate underwater. Sea otters use
sound for communication in air
(especially mothers and pups; McShane
et al. 1995) and may avoid predators by
monitoring underwater sound. Davis et
al. (1987) documented sea otters
retreating from simulated killer whale
vocalizations. Otters are not known to
vocalize underwater and do not
echolocate; therefore, masking of
communications by anthropogenic
sound is less of a concern than for other
marine mammals.
Sea otters generally show a high
degree of tolerance to noise. In another
study using prerecorded sounds, Davis
et al. (1988) exposed both northern sea
otters in Simpson Bay, Alaska, and
southern sea otters in Morro Bay,
California, to a variety of airborne and
underwater sounds, including a warble
tone, sea otter pup calls, killer whale
calls, airhorns, and an underwater noise
harassment system designed to drive
marine mammals away from crude oil
spills. The sounds were projected at a
variety of frequencies, decibel levels,
and intervals. The authors noted that
certain noises could cause a startle
response and result in dispersal.
However, the disturbance effects were
limited in range (no responses were
observed for otters approximately 100–
200 m (328–656 ft) from the source of
the stimuli), and habituation to the
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stimuli was generally very quick (within
hours or, at most, 3 to 4 days).
Southern sea otters in an area with
frequent railroad noise appeared to be
relatively undisturbed by pile-driving
activities, many showing no response
and generally reacting more strongly to
passing vessels than to the sounds of
pile-driving equipment (ESNERR 2011;
ESA 2016). Additionally, many of the
otters who displayed a reaction behavior
during pile driving did so while their
heads were above the surface of the
water, suggesting that airborne noise
was as important as, and possibly more
important than underwater noise in
prompting the animals’ reactions. When
sea otters have displayed behavioral
reactions in response to noise, these
responses were often short-lived; the
otters resumed normal activities soon
after a new sound was introduced
(Davis et al. 1987, 1988).
Stimuli from shoreline construction
activities, aircraft, and vessel traffic,
including noise, are likely to cause some
level of disturbance. Populations of sea
otters in Alaska have been known to
avoid areas with heavy boat traffic but
return to those same areas during
seasons with less traffic (Garshelis and
Garshelis 1984). Sea otters in Alaska
have shown signs of disturbance (escape
behaviors) in response to the presence
and approach of survey vessels,
including: otters diving and/or actively
swimming away from a boat; hauled-out
otters entering the water; and groups of
otters disbanding and swimming in
multiple different directions (Udevitz et
al. 1995).
In Cook Inlet, otters were observed
riding the tides past a new offshore
drilling platform while drilling was
being conducted. Otters drifting on a
trajectory that would have taken them
within 500 m (0.3 mi) of the rig tended
to swim to change their angle of drift to
avoid a close approach, although noise
levels from the work were near the
ambient level of underwater noise
(BlueCrest 2013).
Sea otter behavior is suggestive of a
dynamic response to disturbance,
influenced by the intensity and duration
of the source. Otters initially abandon
areas when disturbed and return when
the disturbance ceases. Groups of sea
otters in two locations in California
showed markedly different responses to
kayakers approaching to within specific
distances, suggesting a different level of
tolerance between the groups
(Gunvalson 2011). Benham (2006) found
evidence that the otters exposed to high
levels of recreational activity may have
become more tolerant than individuals
in less-disturbed areas.
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Some individual otters will habituate
to the presence of project vessels, noise,
and activity. Sea otters often seem quite
tolerant of boats or humans nearby (e.g.,
Calkins 1979). Sea otters off the
California coast showed only mild
interest in boats passing within
hundreds of meters and appeared to
have habituated to boat traffic (Riedman
1983; Curland 1997). Boat traffic,
commercial and recreational, is
common in Cook Inlet. However, there
are seasonal (i.e., temporal) and spatial
components to vessel traffic. Both
recreational and commercial vessel
traffic in Kachemak Bay is much higher
than in western Cook Inlet, and all
traffic is much higher in summer than
in other months. Some sea otters in the
area of activity are likely to have already
become habituated to vessel traffic and
noise caused by vessels, whereas for
others, the specified activities will be a
novel experience and will elicit a more
intense response.
Some degree of disturbance is also
possible from unmitigated aircraft
activities. Individual sea otters in Cook
Inlet will show a range of responses to
noise from low-flying aircraft. Some
may abandon the flightpath area and
return when the disturbance has ceased.
Based on the observed movement
patterns of wild sea otters (i.e., Lensink
1962; Kenyon 1969, 1981; Garshelis and
Garshelis 1984; Riedman and Estes
1990; Tinker and Estes 1996; and
others), we expect that some
individuals, independent juveniles, for
example, will respond to the project
activities by dispersing to areas of
suitable habitat nearby, while others,
especially breeding-age adult males,
will not be displaced by overflights.
Mitigation measures will stipulate a
minimum of 305 m (1,000 ft) flight
altitude to minimize harassment of
otters.
Given the observed responses of sea
otters to sources of disturbance, it is
likely that some degree of take by
harassment will occur due to
underwater noise stimuli associated
with the specified activities. Some otters
will likely show startle responses,
change direction of travel, disperse from
the area, or dive. Sea otters reacting to
project activities may expend energy
and divert time and attention from
biologically important behaviors, such
as feeding. Some effects may be
undetectable in observations of
behavior, especially the physiological
effects of chronic and cumulative noise
exposure. Air and vessel traffic,
commercial and recreational, is routine
in Cook Inlet. Construction activities are
common. Some sea otters in the area of
activity may become habituated to the
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project noise or may already be
habituated to noise due to previous and
ongoing exposure to frequent air traffic
and other activities in the area and will
have little, if any, reaction to project
activities.
Mitigation and Monitoring
When the Service issues an ITR, we
specify means for effecting the least
practicable adverse impact on sea otters
and their habitat, paying particular
attention to habitat areas of significance,
and on the availability of sea otters for
taking for subsistence uses by coastaldwelling Alaska Natives. These
measures are stipulated in § 18.137
Mitigation.
In evaluating what mitigation
measures are appropriate to ensure the
least practicable adverse impact on
species or stocks and their habitat, as
well as subsistence uses, we considered
the manner in which, and the degree to
which, the successful implementation of
the measures are expected to reduce
impacts to sea otters, stocks, and their
habitat, as well as subsistence uses. We
considered the nature of the potential
adverse impact being mitigated
(likelihood, scope, range), the likelihood
the measures will be effective, and the
likelihood the measures will be
implemented. We also considered the
practicability of the measures for
applicant implementation (e.g., cost,
impact on operations).
To reduce the potential for
disturbance from noise associated with
the activities, the following mitigation
measures are required:
• Development of marine mammal
monitoring and mitigation plans;
• Establishment of an exclusion zone
(EZ) and safety zone (SZ) during noisegenerating work;
• Visual mitigation monitoring by
designated protected species observers
(PSOs);
• Site clearance before startup;
• Shutdown procedures;
• Ramp-up procedures; and
• Vessel strike avoidance measures.
This ITR establishes the process for
evaluating specific activities in specific
project areas and determining the
appropriate mitigation measures to be
included in an LOA. A marine mammal
mitigation and monitoring plan (4MP) is
required for all LOAs. The 4MP
identifies the specific avoidance and
minimization measures an applicant
will take to reduce effects to otters. It
describes the project in detail, assesses
the effects, identifies effective means to
avoid effects, and describes specific
methods for limiting effects when they
cannot be avoided.
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During ‘‘noise-generating work’’ (work
that creates underwater sound louder
than 160 dB and within the frequency
hearing range of sea otters), an applicant
will establish and monitor an EZ. The
EZ is defined as the area surrounding a
sound source in which all operations
must be shut down in the event a sea
otter enters or is about to enter this zone
based on distances to Level A
thresholds. Any otter detected within
this zone will be exposed to sound
levels likely to cause take by Level A
harassment. The SZ is an area larger
than the EZ and is defined as the area
in which otters may experience noise
above the Level B exposure threshold.
Sea otters observed inside the SZ are
likely to be disturbed by underwater
noise, and each otter within the SZ will
be counted as one Level B take. In the
event a sea otter is in or about to enter
the zone, operations will be powered
down, when practicable, to minimize
take. Radii of each SZ and EZ will be
specified in each LOA issued under this
ITR. The methodology for calculation of
the radii will be described in each LOA
and is identified in § 18.137 Mitigation.
Sound source levels will be monitored
and evaluated in the field prior to
conducting 2D and 3D seismic surveys.
This on-site sound source verification
(SSV) testing will be used to determine
the size of the SZ and EZ for these
activities. A minimum 10-m (33-ft)
shutdown zone will be observed for all
in-water construction and heavy
machinery.
PSOs will be stationed on the source
vessel or at a suitable vantage point with
maximum view of the SZ and EZ. The
PSOs will determine that the EZ is clear
of sea otters prior to the start of daily
activities or if activities have been
stopped for longer than a 30-minute
period. The PSOs will ensure that no
sea otters are observed in the EZ for a
period of 30 minutes prior to work
commencing.
For the 2D survey, PSOs will be
stationed on the source vessel during all
seismic operations and geohazard
surveys when the sub-bottom profilers
are used. Because of the proximity to
land, PSOs may also be stationed on
land to augment the viewing area. For
the 3D survey, PSOs will be stationed
on at least two of the project vessels:
The source vessel and the chase vessel.
For the vertical seismic profiling, PSOs
will be stationed on the drilling rig. For
geohazard surveys, PSOs will be
stationed on the survey vessel. The
viewing area may be augmented by
placing PSOs on a vessel specifically for
mitigation purposes or using an
unmanned aircraft system (drone). If
drones will be used in areas with sea
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otters, mitigation measures will be
required to ensure drone use does not
disturb otters. These measures may
include maintaining a minimum
altitude and horizontal distance no less
than 100 m away from otters,
conducting continuous visual
monitoring by PSOs, and ceasing
activities in response to sea otter
behaviors indicating any reaction to
drones.
A power-down procedure will be in
place during seismic work. It will
provide the option of reducing the
number of airguns in use, which
reduces the EZ or SZ radius.
Alternatively, a shutdown procedure
may be necessary, during which all
airgun activity is suspended
immediately. During a power-down, a
single airgun (‘‘mitigation gun’’) may be
operated, maintaining a sound source
with a much-reduced EZ. If a sea otter
is detected outside of either the SZ or
EZ but is likely to enter that zone, the
airguns may be powered down before
the animal is within the radius, as an
alternative to a complete shutdown.
Likewise, if a sea otter is already within
the SZ when first detected, the airguns
may be powered down if this is a
reasonable alternative to an immediate
shutdown. If a sea otter is already
within the EZ when first detected, the
airguns will be shut down immediately.
All power-down events will be at the
discretion of the operator in cooperation
with the PSOs. The applicant has
determined that it is not practicable to
power down in response to all sea otters
within the SZ, and that to do so would
incapacitate the 2D and 3D seismic
operations. Because power-down events
will be discretionary, all otters within
the SZ will be assumed to experience
Level B take regardless of whether a
power-down is conducted. Although
there is no calculated reduction of take
estimated for this mitigation measure
due to uncertainty in its application, it
is expected that some unquantified
benefits to sea otters will be realized
whenever the operator powers down to
reduce or avoid sea otter noise
exposures.
A shutdown will occur when all
underwater sound generation that is
louder than 160 dB and within the
frequency hearing range of sea otters is
suspended. The sound source will be
shut down completely if a sea otter
approaches the EZ or appears to be in
distress due to the noise-generating
work. The shutdown procedure will be
accomplished as soon as practicable
upon the determination that a sea otter
is either in or about to enter the EZ, and
generally within several seconds.
Following a shutdown, noise-generating
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work will not resume until the sea otter
has cleared the EZ. Any shutdown due
to a sea otter sighting within the EZ
must be followed by a 30-minute allclear period and then a standard, full
ramp-up. Any shutdown for other
reasons resulting in the cessation of the
sound source for a period greater than
30 minutes must also be followed by
full ramp-up procedures.
A ‘‘ramp-up’’ procedure will be in
place to gradually increase sound
volume at a specified rate. Ramp-up is
used at the start of airgun operations,
including after a power-down,
shutdown, or any period greater than 10
minutes in duration without airgun
operations. The rate of ramp-up will be
no more than 6 dB per 5-minute period.
Ramp-up will begin with the smallest
gun in the array that is being used for
all airgun array configurations. The
ramp-up procedure for pipe/pile driving
involves initially starting with soft
strikes or a reduced level of energy. If
the complete EZ has not been visible for
at least 30 minutes prior to the start of
operations, operation of a mitigation
gun may be required during the
interruption of seismic survey
operations prior to commencing rampup procedures. It will not be permissible
to ramp up the full array from a
complete shutdown in thick fog or at
other times when the outer part of the
Level A EZ is not visible. Ramp-up of
the airguns will not be initiated if a sea
otter is sighted within the EZ at any
time.
A speed or course alteration is
appropriate if a sea otter is detected
outside the EZ and, based on its
position and relative motion, is likely to
enter the EZ, and a vessel’s speed and/
or direct course may, when practical
and safe, be changed. This technique
can be used in coordination with a
power-down procedure. The sea otter
activities and movements relative to the
seismic and support vessels will be
closely monitored to ensure that the sea
otter does not approach within the EZ.
If the sea otter appears likely to enter
the EZ, further mitigative actions will be
taken, i.e., further course alterations,
power-down, or shutdown of the
airguns.
This ITR establishes the stakeholder
engagement process that the applicant is
required to undertake in order to obtain
an LOA for incidental take of sea otters.
This process is an ongoing collaborative
process between the applicant, the
Service, and subsistence users of sea
otters. Stakeholder engagement efforts
for the specified activities have been
ongoing since mid-2018 and have
indicated that a plan of cooperation
(POC) is necessary for the Hilcorp and
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Harvest 3D seismic work. The POC must
include a schedule for meeting with the
affected communities, both prior to and
while conducting the activities, a plan
for resolving any conflicts, suggested
means for resolving conflict, and
process for notifying the communities of
any changes in the operations.
The measures described here and
required in § 18.137 through § 18.140,
Mitigation, Monitoring, Reporting
Requirements, and Measures to Reduce
Impacts to Subsistence Users, are those
determined to achieve the least
practicable adverse impact to northern
sea otters and their availability for
subsistence use. These mitigation
measures were evaluated against a suite
of possible alternatives to determine
whether they would effect the least
practicable adverse impact on the
species, their habitat, and the
availability of the species for
subsistence uses.
Alternative mitigation measures were
evaluated but ultimately rejected as
either not feasible, not practicable, not
likely to be implemented effectively, or
no more likely to be successful in
reducing the impacts of the applicant’s
project. We considered requiring work
to be paused or stopped to prevent
exposure of northern sea otters to levels
of noise exceeding a 160-dB Level B
take threshold. The distances to the 160dB sound isopleths for several of the
specified activities are greater than 1 km
(0.6 mi). Avoiding all northern sea otters
within these distances would require
work to shut down or power down for
prolonged and repeated periods, which
the applicant has determined would
incapacitate the project. Therefore, this
is not a practicable mitigation measure.
The Service considered alternative
mitigation measures based on observing
and interpreting northern sea otter
behaviors for preventing Level B
harassment. Presently, mitigation
protocols use sound exposure to predict
behavioral responses rather than
observing behavior directly. While
direct observation of injury or the
disruption of a behavioral pattern is the
definitive criteria for identifying take
once it has occurred, at present there is
insufficient data to develop observationbased criteria for preventing
harassment. Thus, monitoring of
behavioral responses is useful for
identifying take after it occurs, but not
for preventing or mitigating it. As such,
effectiveness of monitoring protocols
based on behavior cannot be
ascertained. Therefore, behavior-based
mitigation was not a feasible alternative.
We considered requiring the use of
alternative technologies such as marine
vibroseis to reduce or eliminate the
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need for seismic airguns. Hilcorp and
Harvest have requested takes of marine
mammals incidental to the seismic
survey operations described in the
petition, which identified airgun arrays
as the preferred data acquisition tool. It
would be inappropriate for the Service
to require the applicant to change the
specified activity unless it was
necessary to make the findings
established for issuance of incidental
take under the MMPA or necessary for
achieving the least practicable adverse
impact to the marine mammal stock.
Currently, no alternative technology
scaled for industrial use is reliable
enough to meet the environmental
challenges of operating in Cook Inlet.
Many prototypes are currently in
development and may ultimately
become important for achieving the
least practicable level of effect on
marine mammals, but none of these
technologies are currently practicable
for use on a large scale in Cook Inlet.
The option of designating seasonal
exclusion areas within the specified
geographic area was considered.
However, no activities are planned in
areas of Cook Inlet known to provide
important habitat. Kachemak Bay,
Kamishak Bay, and the designated
critical habitat along the western
shoreline of LCI and MCI are known
areas of important habitat, but have not
been identified as the target location of
any planned activity in this rule. There
is some information that suggests that
the east coast of Cook Inlet along the
Kenai Peninsula may be used seasonally
by sea otters in late summer (BlueCrest
2013). Restrictions on seismic survey
operations in this area during this time
period might reduce the probability of
disturbance of sea otters. However, there
is currently insufficient information to
support a seasonal restriction in eastern
Cook Inlet. Little is known about the
extent or duration of the use of the area
by sea otters or what life-history
functions the area supports. The benefit
such a designation might offer is
entirely unknown and, until additional
information is available, remains
speculative.
Compensatory mitigation was
considered. Some environmental laws
allow compensatory mitigation, such as
habitat restoration projects, to be used
by the applicant to offset effects of the
project activities that cannot otherwise
be avoided. The Service is issuing an
authorization for incidental take of sea
otters under the MMPA. The MMPA
requires that impacts be reduced to the
least practicable level, but does not
require offsets. The Service must
consider the practicability of
implementation of measures to reduce
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impacts, as well as proven or likely
effectiveness of those measures. The
impacts to sea otters and their habitat in
Cook Inlet will be primarily acoustic
and temporary in nature. We are not
currently aware of literature
demonstrating the effectiveness of
habitat restoration for mitigating the
effects of underwater noise.
Additionally, we are not aware of any
practicable habitat improvement
projects in Cook Inlet that would have
demonstrable benefits for the affected
stocks.
In order to issue an LOA for an
activity, section 101(a)(5)(A) of the
MMPA states that the Service must set
forth ‘‘requirements pertaining to the
monitoring and reporting of such
taking.’’ The Service’s implementing
regulations at § 18.27(d)(vii) stipulate
that requests for authorizations must
include the suggested means of
accomplishing the necessary monitoring
and reporting. Effective reporting is
critical to compliance as well as
ensuring that the most value is obtained
from the required monitoring. The
applicant will employ PSOs to conduct
visual project monitoring. SSV
monitoring will be conducted to
document sound levels produced by the
work. During 2D and 3D seismic
surveys, Hilcorp and Harvest have
agreed to conduct aerial overflights for
avoidance of other marine mammal
species, which will improve monitoring
of sea otters. Additional monitoring and
reporting requirements are at § 18.138
Monitoring and § 18.139 Reporting
requirements.
Alternative monitoring measures were
considered, but they were not
incorporated in this rule. Passive
acoustic monitoring is appropriate for
some species of marine mammals but is
not indicated for sea otters, which are
not known to vocalize extensively
underwater. Visual monitoring during
all times of day and night was rejected
because limited visibility during periods
of darkness would prevent the detection
of animals. Thermal monitoring or
monitoring of sea otters with unmanned
aircraft systems (drones) has not yet
been fully tested and evaluated for use
in Cook Inlet, but may prove useful in
the future. Requiring visual observation
and PSO monitoring of 100 percent of
all spatial areas within the 160-dB
ensonification area was also considered,
but for 2D and 3D seismic surveys in
particular, this was not expected to be
achievable. We instead accounted for all
sea otter exposures to 160 dB or greater
in our estimation of take, and we did
not reduce this number to attempt to
account for some proportion of the total
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37729
that might be avoided when detected by
PSO monitoring.
Estimated Incidental Take
This section provides the number of
incidental takes estimated to occur
because of the planned activities. The
number of takes were analyzed to make
the required small numbers and
negligible impact determinations.
Estimating Exposure Rates
The Service anticipates that
incidental take of sea otters may occur
during the project activities in Cook
Inlet. Noise, aircraft, vessels, and human
activities could temporarily interrupt
feeding, resting, and movement
patterns. Elevated underwater noise
levels from seismic surveys may cause
short-term, nonlethal, but biologically
significant changes in behavior that the
Service considers harassment. Piledriving and other construction activities
along the shoreline may have similar
effects and could cause behavioral
disturbance leading to take. Harassment
(Level A or B) is the only type of take
expected to result from these activities;
no lethal take is expected.
The number of animals affected will
be determined by the distribution of
animals and their location in proximity
to the project work. Although we cannot
predict the outcome of each encounter,
it is possible to consider the most likely
reactions, given observed responses of
sea otters to various stimuli.
Sound exposure criteria provide the
best available proxy for estimation of
exposure to harassment. The behavioral
response of sea otters to shoreline
construction and vessel activities is
related to the distance between the
activity and the animals. Underwater
sound is generated in tandem with other
airborne visual, olfactory, or auditory
signals from the specified activities, and
travels much farther. Therefore,
estimating exposure to underwater
sound can be used to estimate the take
from project activities.
No separate exposure evaluation was
done for activities that do not generate
underwater sound. Nearly all of the
planned activities that may disturb sea
otters will occur simultaneously with
in-water activities that do generate
sound. For example, operation of heavy
equipment along the shoreline will
facilitate underwater pile driving. The
otters affected by the equipment
operations are the same as those affected
by the pile driving. Sound exposure and
behavioral disturbances are
accumulated over a 24-hour period,
resulting in estimation of one exposure
from all in-water sources rather than
one each from equipment operations
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and pile-driving noise. Aircraft support
activities will be conducted without a
corresponding underwater sound
component, but no take is expected
from this source of disturbance; see
‘‘Airborne Sounds.’’
To estimate the exposure of sea otters
to take, we first calculated the number
of otters in Cook Inlet that occur within
the project area. The number of otters
was calculated from density multiplied
by project area. Density was estimated
according to region in Cook Inlet.
Density data for Kamishak and the
East side of Cook Inlet along the shore
of the Kenai Peninsula was derived from
aerial surveys conducted in May 2017
(Garlich-Miller et al. 2018). Surveys
were not conducted for central Cook
Inlet in 2017, and the 2017 surveys for
western Cook Inlet north of Kamishak
did not yield useful results. Therefore,
the density for those regions was
derived from the 2002 surveys
conducted by Bodkin et al. (2003) and
corrected for population growth
proportional to the growth rate of Cook
Inlet as a whole, as determined from
comparison of the 2002 and 2017
surveys. Density values (in otters per
km2) were 1.7 in East Cook Inlet
(excluding Kachemak Bay and the outer
Coast of Kenai Peninsula south and east
of Seldovia), 3.53 in Kamishak Bay, and
0.026 in West and Central Cook Inlet.
There are no density data for sea otters
in the MCI region north of
approximately 60°14′ N (the latitude of
Clam Gulch), and otters are uncommon
north of about 60°24′ N. Therefore,
densities north of Clam Gulch were
conservatively assumed to equal the
2002 mid-Cook Inlet survey region
density of 0.01 per km2 from Bodkin et
al. (2003).
The geographic area of activity covers
approximately 11,084 km2 (4,280 mi2)
in Cook Inlet. Of this area, 1,572 km2
(607 mi2) is in East Cook Inlet, 725 km2
(280 mi2) in Kamishak Bay, 4,341 km2
(1,676 mi2) in West and Central Cook
Inlet, and 4,445 km2 (1,716 mi2) in Cook
Inlet north of the normal range of sea
otters. The total number of otters within
the project area was calculated to be
5,389 otters ((1,572 × 1.7) + (725 × 3.53)
+ (4,341 × 0.026) + (4,445 × 0.01) ≈
5,389).
Not all otters in the project area will
be exposed to noise levels capable of
causing take from project activities.
Many activities associated with oil and
gas exploration, development,
production, and transportation may
result in underwater sounds that do not
meet Levels A and B acoustic
harassment criteria. The acoustic
characteristics of the different project
activities are described in table 3. Only
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those specific activities with the
likelihood of meeting the acoustic
exposure criteria and occurring in the
normal range of sea otters were
evaluated for estimation of potential
Levels A and B harassment.
Specifically, Hilcorp and Harvest’s
activities include 2D and 3D seismic
surveys, vibratory driving of sheet piles
at the Iniskin Peninsula causeway in
Chinitna Bay, sub-bottom profilers used
in high- and low-resolution geohazard
surveys, drive-pipe installation, vertical
seismic profiling, plug-and-abandon
activities, and use of water jets during
routine maintenance. AGDC’s activities
include pile driving and anchor
handling.
The number of exposures to
underwater sound levels capable of
causing take by Level A harassment
from specific project elements was
estimated using the thresholds
recommended by NMFS (2018a,b) for
otariid pinnipeds (232 dB peak and 203
dB SELcum). For Level B harassment we
used a 160-dB threshold. We multiplied
the estimated area of ensonification
(km2), by the density of sea otters in that
area (number (#) of otters per km2) to
estimate the number of otters in the
ensonified area. This value was then
multiplied by the maximum duration of
the activity (# of days) over the course
of the 5-year regulatory period to get the
total number of exposures to sound
above the thresholds for take.
Predicting Behavioral Response Rates
Although we cannot predict the
outcome of each encounter between a
sea otter and the equipment and vessels
used for the planned activities, it is
possible to consider the most likely
reactions. Sea otters do not appear
highly reactive to underwater sounds,
but the presence of vessels may elicit
stronger behavioral responses (see
Responses to Activities). Whether an
individual animal responds
behaviorally to the presence of vessels
and equipment is dependent upon
several variables, including the activity
of the animal prior to stimulus, whether
the animal is habituated to similar
disturbances, whether the animal is in
a state of heightened awareness due to
recent disturbances or the presence of
predators, group size, the presence of
pups, and the temperament of the
individual animals. We assumed all
animals exposed to underwater sound
levels that meet the acoustic exposure
criteria shown in table 5 would
experience Level A or Level B take.
Calculating Take
The total take of sea otters from these
oil and gas activities in Cook Inlet was
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estimated by calculating the number of
otters in the ensonified area during the
full duration (the maximum number of
days) of each project activity. After
publication of the proposed ITR in the
Federal Register, the applicant provided
updates and minor modifications to
their project plans. Changes included an
increase in the 3D seismic survey line
length from 74 km (46 mi) to 127 km (79
mi), an adjustment to account for the
proportion of line length actively
surveyed with the airgun array each
day, use of a boomer rather than chirper
sub-bottom profiler, and changes to the
total duration (number of days) of pile
driving and vertical seismic profiling in
TB and LCI. The changes are reflected
in the analysis presented here. Details of
the project activities and calculations of
take are included in the applicant’s
updated petition (June 2019) available at
www.regulations.gov under docket
number FWS–R7–ES–2019–0012.
Methods used for calculating take did
not change, but the resulting estimates
have been updated. The total take
increased from 1,666 to 1,687.
Distances to Thresholds
To calculate the ensonified area, we
first estimated the distances that
underwater sound will travel before
attenuating to levels below thresholds
for take by Level A and Level B
harassment. The distances to the Level
A thresholds were calculated using the
NMFS Acoustical Guidance
Spreadsheets (NMFS 2018b) using
thresholds for otariid pinnipeds as a
proxy for sea otters. Distances to the
160-dB Level B threshold were
calculated using a practical spreading
transmission loss model (15 LogR). The
only exceptions to the use of the
practical spreading model were made
when data was available from a sitespecific sound source verification of
substantially similar equipment used
and powered in a similar manner to that
proposed by the applicant.
Model estimates incorporated
operational and environmental
parameters for each activity. For
example, sound levels at the source are
shown in table 3, and characteristics of
the sound produced are shown in table
6. Weighting factor adjustments were
used for SEL (sound exposure level)
calculations based on NMFS Technical
Guidance (2018b). Operational
parameters were estimated from the
updated description of activities.
The distances to the modelled Level
A and Level B thresholds are shown in
table 7. Each estimate represents the
radial distance away from the sound
source within which a sea otter exposed
to the sound of the activity is expected
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to experience take by Level A or Level
B harassment.
TABLE 6—ASSUMPTIONS USED IN CALCULATING DISTANCES TO LEVEL A AND LEVEL B THRESHOLDS
Activity
Type of source
Source level 1
WFA 2
Source
velocity
Pulse
duration
Repetition rate
2D/3D seismic ............
Mobile impulsive .........
1 kHz ..........
2.05 m/s .....
N/A .............
every 6 s ...........
Sub bottom profiler .....
Impact pile driving ......
Pipe driving .................
Vertical seismic
profiling.
Impact sheet piling .....
Vibratory sheet piling ..
Mobile impulsive .........
Stationary impulsive ...
Stationary impulsive ...
Stationary impulsive ...
217 @100 m (185
dBSEL @100 m).
212 @1 m .....................
≤195 @10 m .................
≤195 @55 m .................
227 @1 m .....................
4
2
2
1
..........
..........
..........
..........
2.05 m/s .....
N/A .............
N/A .............
N/A .............
0.02 s .........
N/A .............
0.02 s .........
0.02 s .........
every 0.30 s ......
1,560 strikes/hr ..
≤1,560 strikes/hr
every 6 s ...........
3D: 10 hrs/day.
2D: 2 hrs/day.
N/A.
≤5.5 hrs/day.
≤4.8 hrs/day.
4 hrs/day.
190 @10 m ...................
160 @10 m ...................
2 kHz ..........
2.5 kHz .......
N/A .............
N/A .............
0.02 s .........
N/A .............
1,560 strikes/hr ..
N/A ....................
3 hrs/day.
≤4.8.
176 @1 m .....................
2 kHz ..........
N/A .............
N/A .............
N/A ....................
0.5 hrs/day.
179 @1 m .....................
1.5 kHz .......
1.54 m/s .....
N/A .............
N/A ....................
3 hrs/day.
Water jet .....................
Anchor handling ..........
Stationary impulsive ...
Stationary non-impulsive.
Stationary non-impulsive.
Mobile non-impulsive ..
kHz
kHz
kHz
kHz
Duration per day
1 Source
level is given in dBrms, unless otherwise indicated, as measured at the given distance from the source in meters.
WFA = Weighting Factor Adjustment, SEL = sound exposure level.
TABLE 7—CALCULATED DISTANCE IN METERS (m) TO LEVEL A AND LEVEL B THRESHOLDS
Level A—NMFS otariid
Activity
Impulsive
232 dB peak
2D/3D seismic ..................................................................................................
Sub-bottom profiler ..........................................................................................
Pipe driving, Chinitna Bay ...............................................................................
VSP ..................................................................................................................
Vibratory sheet pile driving ..............................................................................
Water jet ..........................................................................................................
18- and 24-inch pipe, impact ...........................................................................
48- and 60-inch pipe, impact ...........................................................................
all sizes pipe, vibratory ....................................................................................
Sheet pile, impact ............................................................................................
Sheet pile, vibratory .........................................................................................
Anchor handling ...............................................................................................
203 dB SEL
10
0.05
0.19
0.46
N/A
N/A
0.22
0.34
N/A
0.16
N/A
N/A
1.32
1
39.48
284.84
N/A
N/A
50.53
147.99
N/A
68.69
N/A
N/A
Level B
Non-impulsive
Both
219 dB SEL
160 dB rms
N/A
N/A
N/A
N/A
0.46
0.54
N/A
N/A
3.30
NA
0.71
0.00
7,330
2,929
1,630
2,470
10
11.66
1,874.85
2,154.43
46.42
1,000
10
0.00
jspears on DSK3GMQ082PROD with RULES2
SEL = sound exposure level.
Area and Duration
The area of ensonification is the area
in which an animal exposed to
underwater sound is expected to
experience take from Level A or Level
B harassment based on the distance to
the Level A and Level B thresholds. The
area of a circle (A = pr2) where r is the
distance to the Level A or Level B
threshold was used to calculate the area
of ensonification for impulsive
stationary sources (pipe driving, vertical
seismic profiling), non-impulsive
stationary sources (water jets, vibratory
pile driving). For impulsive mobile
sources (2D/3D seismic, sub-bottom
profiler), the radial area was then
multiplied by the distance of the line to
be surveyed each day to get the total
area of ensonification. Otters spend
most of their time at the water’s surface
or below their last surface location, so
a circle with the sound source at its
center is a reasonable representation of
the ensonified area. For shoreline
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activities, the area of the circle is
divided by two to remove the area that
lies above the shoreline. The daily area
of ensonification was then multiplied by
the duration of the activity in number of
days and the density of otters in the
applicable region of Cook Inlet to
estimate the number of otters that might
be taken. In total, 1,687 instances of take
are expected. The total Level A take of
sea otters in Cook Inlet over the 5-year
course of this ITR is anticipated to be 3.
The total number of takes from each
project activity is presented in table 8.
For some projects, like the 3D seismic
survey, the design of the project is well
developed; therefore, the duration is
well defined. However, for other
projects, the duration is not well
developed, such as activities around the
LCI well sites. In each case, the
calculations are based on the applicant’s
best forecast of activities in the 5-year
ITR period. The assumptions regarding
duration of these activities are presented
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in the applicant’s updated petition (June
2019). The durations used for each
activity are provided in table 8. For
Level B take, we assumed one take per
otter per day regardless of duration of
work within a day. The resulting
estimate of the total number of Level B
takes expected from planned oil and gas
activities in Cook Inlet from 2019
through the date 5 years from the
effective date of the final rule is 1,684.
The proposed ITR included
calculation of the numbers of individual
otters taken. Those estimates have been
removed from this ITR because the
methodology used to calculate take of
individuals led to substantial
uncertainty in the accuracy of the
estimates. We here rely instead on the
number of takes to determine the likely
effects to the stock. The total number of
takes is expected to be higher than the
number of otters taken because, for
example, a resident otter may be taken
on each day of noise-generating activity.
E:\FR\FM\01AUR2.SGM
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37732
Federal Register / Vol. 84, No. 148 / Thursday, August 1, 2019 / Rules and Regulations
TABLE 8—ESTIMATE OF TOTAL TAKE FOR EACH ACTIVITY
Level A
Density
(#/km2)
Duration
(days)
Level B
Impulsive
Non-impulsive
Applicant
Activity
232 pk
203 SEL
219 SEL
Hilcorp/Harvest Alaska ..........
2D seismic .............................
3D seismic .............................
Vibratory sheet pile driving ...
Sub-bottom profiler-LCI .........
Sub-bottom profiler-NCI ........
Sub-bottom profiler-TB ..........
Sub-bottom profiler-MCI ........
Pipe driving-LCI .....................
Pipe driving-TB ......................
VSP-LCI ................................
VSP-TB .................................
1.705
0.026
0.026
0.026
0.010
0.010
0.010
0.026
0.010
0.026
0.010
10.000
60
20
28
7
14
3
12
6
8
4
1.023
1.155
........................
0.001
0.000
0.000
0.000
0.000
0.000
0.000
0.000
0.135
0.152
........................
0.014
0.001
0.003
0.000
0.002
0.000
0.040
0.008
........................
........................
0.000
........................
........................
........................
........................
........................
........................
........................
........................
749.859
846.896
0.000
46.291
4.740
9.479
2.031
2.604
0.501
3.987
0.767
AGDC ....................................
Product Loading Facility ........
48-inch impact .......................
60-inch impact .......................
Temporary MOF ....................
18- and 24-inch vibratory ......
18- and 24-inch impact .........
48-inch impact .......................
60-inch vibratory ....................
sheet vibratory .......................
Mainline MOF ........................
sheet vibratory .......................
sheet impact ..........................
Anchor handling ....................
0.010
........................
0.010
0.010
........................
0.010
0.010
0.010
0.010
0.010
........................
0.010
0.010
........................
56
106
........................
301
7
7
11
66
........................
7
7
76
........................
0.000
0.000
........................
........................
0.000
0.000
........................
........................
........................
........................
0.000
........................
........................
0.019
0.036
........................
........................
0.000
0.002
........................
........................
........................
........................
0.001
........................
........................
........................
........................
........................
0.000
........................
........................
0.000
0.000
........................
0.000
........................
0.000
........................
4.083
7.728
........................
0.010
0.510
0.510
0.000
0.000
........................
0.000
0.110
0.000
Total ...............................
................................................
........................
........................
2.18
0.42
0.00
1,683.108
160 rms
SEL = sound exposure level, LCI = Lower Cook Inlet, MCI = Middle Cook Inlet, NCI = North Cook Inlet, TB = Trading Bay, MOF = material offloading facility, VSP
= vertical seismic profiling.
The number of takes from each stock
was estimated by categorizing each
activity by its location relative to sea
otter stock boundaries. Some activities
will occur within both the southcentral
Alaska and southwest Alaska stock
boundaries. For these, take was assigned
in proportion to the area of the activity
within each stock region. Table 9 shows
the activities in relation to the sea otter
stock boundaries as they were assigned
for this analysis. The total number of
takes of sea otters from the southwest
Alaska stock is 418. The take number
from the southcentral Alaska stock is
1,269.
The total number of takes by Level A
harassment is estimated to be 2.6. When
the total take from each activity (table 8)
is multiplied by the proportion of that
activity occurring within each stock
boundary (table 9), the sum of take is 0.6
and 2 within the southwest Alaska and
southcentral Alaska stocks, respectively.
Because the number of takes from the
southwest Alaska stock is 0.6, and take
cannot occur unless it affects an animal,
we rounded the number of takes from
the southwest Alaska stock from 0.6 to
1. The total take is summarized in table
10.
jspears on DSK3GMQ082PROD with RULES2
TABLE 9—PERCENT OF EACH ACTIVITY OCCURRING WITHIN EACH STOCK BOUNDARY
Applicant
Activity
Hilcorp & Harvest Alaska .............................................
2D seismic ....................................................................
3D seismic ....................................................................
Vibratory sheet pile driving ...........................................
Sub-bottom profiler—LCI ..............................................
Sub-bottom profiler—NCI .............................................
Sub-bottom profiler—TB ...............................................
Sub-bottom profiler—MCI .............................................
Pipe driving—LCI ..........................................................
Pipe driving—TB ...........................................................
VSP—LCI .....................................................................
VSP—TB ......................................................................
Hydraulic grinder ..........................................................
Water jet .......................................................................
Product Loading Facility
48-inch impact .......................................................
60-inch impact .......................................................
Temporary MOF:
18-inch vibratory ....................................................
24-inch impact .......................................................
48-inch impact .......................................................
60-inch vibratory ....................................................
AGDC ...........................................................................
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E:\FR\FM\01AUR2.SGM
01AUR2
Southwest
Alaska
stock
(%)
Southcentral
Alaska
stock
(%)
........................
44
100
44
100
100
100
50
100
50
100
100
100
100
56
........................
56
........................
........................
........................
50
........................
50
........................
........................
........................
........................
........................
100
100
........................
........................
........................
........................
100
100
100
100
37733
Federal Register / Vol. 84, No. 148 / Thursday, August 1, 2019 / Rules and Regulations
TABLE 9—PERCENT OF EACH ACTIVITY OCCURRING WITHIN EACH STOCK BOUNDARY—Continued
Applicant
Southwest
Alaska
stock
(%)
Activity
sheet vibratory .......................................................
Mainline MOF:
sheet vibratory .......................................................
sheet impact ..........................................................
Anchor handling ....................................................
Southcentral
Alaska
stock
(%)
........................
100
........................
........................
50
100
100
50
LCI = Lower Cook Inlet, MCI = Middle Cook Inlet, NCI = North Cook Inlet, TB = Trading Bay, MOF = material offloading facility.
TABLE 10—SUMMARY OF ESTIMATES OF SEA OTTER TAKE BY LEVEL A AND LEVEL B HARASSMENT AND STOCK
Southwest
Alaska stock
Southcentral
Alaska stock
Type
Unit of take
Level A ............................................................
Level B ............................................................
Number of takes .............................................
Number of takes .............................................
1
417
2
1,267
3
1,684
Total .........................................................
Number of takes .............................................
418
1,269
1,687
Annual Estimates of Take
The estimates of exposures by activity
and location discussed in the previous
section are not representative of the
estimated exposures per year (i.e.,
annual takes). It is difficult to
characterize each year accurately
because many of the activities are
progressive (i.e., they depend on results
and/or completion of the previous
activity). This results in much
uncertainty in the timing, duration, and
complete scope of work. Each year, each
applicant will submit an application for
an LOA with the specific details of the
planned work for that year and
estimated take numbers. Table 11
summarizes the activities according to a
scenario presented in the applicant’s
updated petition (June 2019). This
scenario combines the most realistic
progression by Hilcorp and Harvest with
an optimistic scenario for AGDC. In the
first season, Hilcorp and Harvest plan to
conduct 3D seismic surveys. In the
second season, in LCI they plan to
conduct activities for one well; in MCI,
they plan to conduct plugging and
abandonment activities in the NCI and
two wells in the TB area. In the third
season, activities include drilling two
wells in LCI. The final well in LCI is
planned for the fourth season.
The timing of AGDC’s activities will
depend on final authorizations and
funding and may begin in 2020 rather
than 2019. Season 1 will be the first year
of project work regardless of year,
Sum
followed by season 2 during the second
year, etc. Work will generally occur
from April through October. Material
offloading facilities will be constructed
in the first and second season, and a
product loading facility will be installed
during seasons 2, 3, and 4. Installation
of the gas pipeline is planned for
seasons 3 and 4 as well.
The number of sea otters takes by year
was then estimated by allocating the
total expected take by proportion of
each project component occurring in
each year. For example, the 2D seismic
surveys are planned for year 3, so all
takes during 2D seismic surveys were
assigned to year 3. The resulting
estimates of total Level B take by year
are shown in table 12.
TABLE 11—NOISE-GENERATING ACTIVITIES BY YEAR. ACTIVITIES ARE THOSE WITH SOURCE LEVELS ABOVE 160 dB rms
WITHIN FREQUENCIES HEARD BY SEA OTTERS
Year
Applicant
Activity
2019: Season 1 ..............
Hilcorp/Harvest ..........
2020: Season 2 ..............
Hilcorp/Harvest ..........
2021: Season 3 ..............
AGDC ........................
Hilcorp/Harvest ..........
3D seismic ..................................................................................................................
NCI geohazard surveys ..............................................................................................
Pipeline maintenance (geohazard, water jet) ............................................................
2D seismic ..................................................................................................................
Drilling activities (geohazard, pipe driving, VSP) at 1 well ........................................
Drilling activities (geohazard, pipe driving, VSP) at 2 wells in TB ............................
Plug and abandon activities (geohazard) at 1 well in the NCI ..................................
Pipeline maintenance (geohazard, water jet) ............................................................
Sheet pile driving at TMOF ........................................................................................
Drilling activities (geohazard, pipe driving, VSP) at 2 wells ......................................
Sheet pile driving in Chinitna Bay ..............................................................................
Pipeline maintenance (geohazard, water jet) ............................................................
Sheet pile driving at MMOF .......................................................................................
Sheet pile driving at MMOF .......................................................................................
Drilling activities (tugs, geohazard, pipe driving, VSP) at 1 well ...............................
Pipeline maintenance (geohazard, water jet) ............................................................
Impact pile driving at PLF: 80 48-inch piles, 63 60-inch piles ...................................
Anchor handling for pipeline installation ....................................................................
Pipeline maintenance (geohazard, water jet) ............................................................
Impact pile driving at PLF: 40 48-inch piles, 80 60-inch piles ...................................
Impact pile driving at PLF: 10 48-inch piles, 48 60-inch piles ...................................
jspears on DSK3GMQ082PROD with RULES2
AGDC ........................
2022: Season 4 ..............
Hilcorp/Harvest ..........
AGDC ........................
2023–2024: Season 5 ....
Hilcorp/Harvest ..........
AGDC ........................
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E:\FR\FM\01AUR2.SGM
Area
01AUR2
LCI
LCI
MCI
LCI
LCI
MCI
MCI
MCI
MCI
LCI
LCI
MCI
MCI
MCI
LCI
MCI
LCI
MCI
MCI
LCI
LCI
37734
Federal Register / Vol. 84, No. 148 / Thursday, August 1, 2019 / Rules and Regulations
TABLE 11—NOISE-GENERATING ACTIVITIES BY YEAR. ACTIVITIES ARE THOSE WITH SOURCE LEVELS ABOVE 160 dB rms
WITHIN FREQUENCIES HEARD BY SEA OTTERS—Continued
Year
Applicant
Activity
Area
Anchor handling for pipeline installation ....................................................................
MCI
LCI = Lower Cook Inlet, MCI = Middle Cook Inlet, NCI = North Cook Inlet, TB = Trading Bay, PLF = product loading facility, TMOF = temporary material offloading facility, MMOF = mainline material offloading facility, VSP = vertical seismic profiling.
TABLE 12—ESTIMATES OF TOTAL NUMBER OF TAKES BY LEVEL B HARASSMENT BY YEAR (OR PROJECT SEASON)
Year
(Project season)
Take
2019
(Season 1)
jspears on DSK3GMQ082PROD with RULES2
Takes by year (season) .......................................................
% takes by year (season) ....................................................
Critical Assumptions
In order to conduct this analysis and
estimate the potential amount of take,
several critical assumptions were made.
Here we discuss these assumptions, the
potential sources of bias or error
inherent in them, and their effects on
the analysis. Take by harassment is
equated herein with exposure to noise
meeting or exceeding the specified
criteria. We assume all otters exposed to
these noise levels will exhibit
behavioral responses that indicate
harassment or disturbance. There are
likely to be a proportion of animals that
respond in ways that indicate some
level of disturbance but do not
experience significant biological
consequences. A correction factor was
not applied. This may result in
overestimation in take calculations from
exposure to underwater noise, while our
separate assumption that sea otters
exposed to noise in the air but not in the
water do not independently experience
harassment may result in
underestimation of take. The net effect
is unknown.
Our estimates do not account for
variable responses by age and sex.
Females with dependent pups and with
pups that have recently weaned are
physiologically the most sensitive
(Thometz et al. 2014) and most likely to
experience take from disturbance. There
is not enough information on
composition of the Cook Inlet sea otter
population in the applicant’s project
area to incorporate individual
variability based on age and sex or to
predict its influence on take estimates.
We therefore assume the response rates
are uniform throughout the population.
The degree of over- or under-estimation
of take is unknown.
The estimates of behavioral response
presented here do not account for the
individual movements of animals away
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2020
(Season 2)
877
52%
800
48%
from the project area due to avoidance
or habituation. Our assessment of
density does not change. There is not
enough information about the
movement of sea otters in response to
specific disturbances to refine these
assumptions. While otters do have
restricted movements and smaller home
ranges than other marine mammals and,
therefore, are likely to be exposed to
sound during multiple days of work, it
is unlikely that all otters will continue
to respond in the same manner. Otters
may remain in the area, depart from the
area and return after activities are
complete, or habituate to the
disturbance and no longer experience
take. However, we have no data to
adjust for the likelihood of departure or
habituation. In general, this situation is
likely to result in overestimation of the
number of takes. However, we also
considered whether it would
underestimate the impact of take
because the same animal may be taken
multiple times. For most animals, the
effects of each repeated disturbance will
be a short-term change in behavior
which will have no lasting effect on the
animal’s survival or reproductive
capacity. For a few animals, there may
be more severe consequences. The net
effect of this assumption is
overestimation of take.
We do not account for an otter’s time
at the water’s surface where sound
attenuates faster than in deeper water.
The average dive time of a northern sea
otter is only 85 to 149 seconds (Bodkin
et al. 2004; Wolt et al. 2012). Wolt et al.
(2012) found Prince William Sound sea
otters average 8.6 dives per feeding
bout, and when multiplied by the
average dive time (149 sec), the average
total time a sea otter spends underwater
during a feeding bout is about 21
minutes. Bodkin et al. (2007) found the
overall average activity budget
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2021
(Season 3)
2
0%
2022
(Season 4)
3
0%
2023
(Season 5)
2
0%
(proportion of 24-hour day) spent
foraging and diving was 0.48 (11.4 hours
per day), and 0.52 nondiving time (12.5
hours per day). Gelatt et al. (2002) found
that the percent time foraging ranged
from 21 percent for females with very
young (less than 3 weeks of age)
dependent pups to 52 percent for
females with old (greater than or equal
to 10 weeks of age) pups. Therefore,
although exposure to underwater sound
during a single dive is limited,
accumulation of exposure over time is
expected. Our assessment may cause
some overestimation in this regard.
We also assume that the mitigation
measures presented will be effective for
avoiding some level of take. However,
additional information is needed to
quantify the effectiveness of mitigation.
The monitoring and reporting in this
ITR will help fill this information need
in the future, but for this suite of
planned activities, no adjustments were
made to estimate the number of takes
that will be avoided by applying
effective mitigation measures. This
scenario leads to overestimation in
calculation of take.
The current project description
represents the applicant’s best
expectation of how, where, and when
work will proceed. We expect that the
current project description is an
accurate depiction of the work that will
be conducted. Details provided in future
applications for LOAs under this
regulation must provide accurate project
details, which may include minor
changes from those described here.
Minor changes to the details of the
specified activities, such as a change of
the specific vessels or a change in the
start date of a specific activity, are not
expected to significantly change the
overall estimates of take or the
conclusions reached in our analysis. In
all cases, the most accurate information
E:\FR\FM\01AUR2.SGM
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Federal Register / Vol. 84, No. 148 / Thursday, August 1, 2019 / Rules and Regulations
about the project and the specific
estimation parameters will be used,
along with methods that are consistent
with those described here, to calculate
the effects of the activities and to ensure
that the effects remain concordant with
the determinations of this rulemaking.
Larger project changes that result in
significantly different effects on sea
otters would be outside of the scope of
this ITR.
jspears on DSK3GMQ082PROD with RULES2
Potential Impacts on Sea Otter Stocks
The estimated number of takes by
Level B harassment is 1,684 instances of
take due to behavioral responses or TTS
associated with noise exposure. Among
otters from the southwest Alaska stock,
417 Level B takes are expected; and
among the southcentral Alaska stock,
1,267 takes from Level B harassment are
expected. The estimated number of
takes by Level A harassment is one from
the southwest Alaska stock and two
instances of take from the southcentral
Alaska stock due to PTS associated with
noise exposure. Combined, the expected
number of Level A and Level B takes is
418 takes from the southwest Alaska
stock and 1,269 takes from the
southcentral Alaska stock.
These levels represent a small
proportion relative to the most recent
stock abundance estimates for sea otters.
The estimated 418 takes is 0.9 percent
of the best available estimate of the
current population size of 45,064
animals in the southwest Alaska stock
(USFWS 2014a) (418 ÷ 45,064 = 0.009).
The estimate of 1,269 takes is about 6.9
percent of the 18,297 animals in the
southcentral Alaska stock (USFWS
2014b) 1,269 ÷ 18,297 = 0.069). For
these analyses, we are emphasizing the
total number of takes rather than the
number of animals taken. At this time,
there are insufficient data regarding the
daily movement patterns of individual
sea otters in Cook Inlet to support an
estimate of the number of animals taken.
Evaluation based on total take in this
situation is certain to be an overestimate
of the actual impact, but it avoids
relying on an estimate of number of
animals taken that is precise, but
possibly incorrect.
Sea otters exposed to sound produced
by the project are likely to respond with
temporary behavioral modification or
displacement. Project activities could
temporarily interrupt the feeding,
resting, and movement of sea otters.
Because activities will occur during a
limited amount of time and in a
localized region, the impacts associated
with the project are likewise temporary
and localized. The anticipated effects
are primarily short-term behavioral
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reactions and displacement of sea otters
near active operations.
Animals that encounter the specified
activities may exert more energy than
they would otherwise due to temporary
cessation of feeding, increased
vigilance, and retreat from the project
area. We expect that affected sea otters
would tolerate this exertion without
measurable effects on health or
reproduction. Most of the anticipated
takes would be due to short-term Level
B harassment in the form of TTS,
startling reactions, or temporary
displacement. Three instances of Level
A take are expected to occur due to PTS.
The effects of PTS in sea otters are
unknown.
With the adoption of the measures
proposed in the applicant’s 4MP and
required by this ITR, the amount and
likelihood of Level A and Level B take
will be reduced. The number of otters
affected will be small relative to the
stocks, and the overall effect on the
stocks is expected to be negligible.
Potential Impacts on Subsistence Uses
The planned oil and gas activities will
occur near marine subsistence harvest
areas used by Alaska Natives from the
villages of Ninilchik, Salamatof,
Tyonek, Nanwalek, Seldovia, and Port
Graham. Between 2013 and 2018,
approximately 491 sea otters were
harvested for subsistence use from Cook
Inlet, averaging 98 per year. The large
majority were taken in Kachemak Bay.
Harvest occurs year-round, but peaks in
April and May, with about 40 percent of
the total taken at that time. February
and March are also high harvest periods,
with about 10 percent of the total
annual harvest occurring in each of
those months. The project area will
avoid Kachemak Bay and therefore
avoid significant overlap with
subsistence harvest areas. The
applicant’s activities will not preclude
access to hunting areas or interfere in
any way with individuals wishing to
hunt. Vessels, aircraft, and project noise
may displace otters, resulting in changes
to availability of otters for subsistence
use during the project period. Otters
may be more vigilant during periods of
disturbance, which could affect hunting
success rates. The applicant will
coordinate with Alaska Native villages
and Tribal organizations to identify and
avoid potential conflicts. If any conflicts
are identified, the applicant will
develop a POC specifying the particular
steps that will be taken to address any
effects the project might have on
subsistence harvest. A POC will be
prepared for 3D surveys planned by
Hilcorp and Harvest.
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37735
Findings
Small Numbers
For small numbers analyses, the
statute and legislative history do not
expressly require a specific type of
numerical analysis, leaving the
determination of ‘‘small’’ to the agency’s
discretion. The statutory definition is
provided at 16 U.S.C. 1362; however,
the Service no longer relies upon or
applies this regulatory definition. The
Court of Appeals for the Ninth Circuit
(Center for Biological Diversity v.
Salazar, 695 F.3d 893, 902–907 [9th Cir.
2012]) has determined that the
regulatory definition conflates ‘‘small
numbers’’ with ‘‘negligible impact,’’
whereas the MMPA establishes these as
separate standards.
Our small numbers analysis evaluates
whether the number of marine
mammals anticipated to be taken is
small relative or proportional to the size
of the overall population. A more
precise formulation of ‘‘small numbers’’
is not possible because the concept is
not capable of being expressed in
absolute numerical limits. The Court of
Appeals for the Ninth Circuit has
expressly approved this type of
analytical approach (Center for
Biological Diversity v. Salazar, 695 F.3d
at 905–907).
To evaluate whether the specified oil
and gas activities in Cook Inlet would
affect small numbers, we calculated the
number of instances of take that are
predicted to result from the specified
activities. We then used the number of
takes as a conservative estimate of the
number of animals taken to determine
whether more than a small number
would be taken when compared with
the size of the stock. We found that the
proposed project may result in
approximately 1,687 takes, of which,
418 takes will be from the southwest
Alaska stock and 1,269 takes will be
from the southcentral Alaska stock.
Based on most recent stock assessments
(USFWS 2014a, b), the number of takes
would equal about 1 percent of the
southwest Alaska stock and 6.9 percent
of the southcentral Alaska stock.
Evaluation based on total take rather
than numbers of animals taken, is
certain to be an overestimate of the
actual impact because some otters are
likely to be taken multiple times during
the work. We determined it was
appropriate to consider total take for
these analyses as the best available data
regarding the daily movement patterns
of sea otters because there was not
sufficient information to support an
accurate estimate of the number of
individual animals affected by the
specific project activities. The available
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information suggests that only a portion
of the estimate of take will be realized.
Based on these numbers, we find that
the applicant’s activities will take, by
harassment, only a small number of
animals relative to the population sizes
of the affected stocks.
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Negligible Impact
We find that any incidental take by
harassment resulting from the proposed
project cannot be reasonably expected
to, and is not reasonably likely to,
adversely affect the sea otter through
effects on annual rates of recruitment or
survival and would, therefore, have no
more than a negligible impact on the
species or stocks. In making this
finding, we considered the best
available scientific information,
including: The biological and behavioral
characteristics of the species, the most
recent information on species
distribution and abundance within the
area of the specified activities, the
potential sources of disturbance caused
by the project, and the potential
responses of animals to this disturbance.
In addition, we reviewed material
supplied by the applicant, other
operators in Alaska, our files and
datasets, published reference materials,
and species experts.
Sea otters are likely to respond to
specified activities with temporary
behavioral modification or
displacement. These reactions are
unlikely to have consequences for the
health, reproduction, or survival of most
affected animals. Most animals will
respond to disturbance by moving away
from the source, which may cause
temporary interruption of foraging,
resting, or other natural behaviors.
Affected animals are expected to resume
normal behaviors soon after exposure,
with no lasting consequences. Some
animals may exhibit more severe
responses typical of Level B harassment,
such as fleeing, ceasing feeding, or
flushing from a haulout. These
responses could have significant
biological impacts for affected
individuals. Three otters may
experience Level A take from PTS. The
effects to these individuals are
unknown, but lasting effects to survival
and reproduction are possible. Thus,
although the specified activities may
result in approximately 418 takes from
the southwest Alaska stock and 1,269
takes from the southcentral Alaska
stock, we do not expect this level of
harassment to affect annual rates of
recruitment or survival or result in
adverse effects on the species or stocks.
The focus on total take, rather than
number of animals taken, for these
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analyses provides an overestimate of the
effects on stocks.
Our finding of negligible impact
applies to incidental take associated
with the specified activities as mitigated
by the avoidance and minimization
measures identified in the applicant’s
4MP. Minimum flight altitudes will
help operators avoid take from exposure
to aircraft noise. Protected species
observers and procedures implemented
by PSOs will limit Level A take during
seismic work and pile driving.
Collision-avoidance measures,
including speed reductions when otters
are present, will ensure that boat strikes
are unlikely. These mitigation measures
are designed to minimize interactions
with and impacts to sea otters and,
together with the monitoring and
reporting procedures, are required for
the validity of our finding and are a
necessary component of the ITR. For
these reasons, we find that the specified
activities will have a negligible impact
on sea otters.
Impact on Subsistence
We find that the anticipated
harassment caused by the applicant’s
activities will not have an unmitigable
adverse impact on the availability of sea
otters for taking for subsistence uses. In
making this finding, we considered the
timing and location of the specified
activities and the timing and location of
subsistence harvest activities in the area
of the proposed project. We considered
the comments received during the
public comment period. We also
considered the applicant’s consultation
with subsistence communities,
proposed measures for avoiding impacts
to subsistence harvest, and commitment
to development of a POC for project
components that could have any
adverse impact on subsistence harvest.
We based our finding on: (1) Initial
results of community outreach
conducted by the applicant and the
Service; (2) the results of aerial surveys
indicating the availability of sea otters
in Cook Inlet; (3) locations of hunting
areas; and (4) the limited potential for
overlap of hunting areas and proposed
projects. The Service’s confirms that
through the coordination process
identified in the ITR, no take of sea
otters will be authorized that will result
in an unmitigable adverse impact on the
availability of sea otters for subsistence
harvest sufficient to meet the needs of
coastal dwelling Alaskan Natives.
Least Practicable Adverse Impacts
We find that the mitigation measures
required by this ITR will effect the least
practicable adverse impacts from any
incidental take likely to occur in
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association with the specified activities.
In making this finding, we considered
the biological characteristics of sea
otters, the nature of the specified
activities, the potential effects of the
activities on sea otters, the documented
impacts of similar activities on sea
otters, and alternative mitigation
measures.
Monitoring and Reporting
The purposes of the monitoring
requirements are: To document and
provide data for assessing the effects of
specified activities on sea otters; to
ensure that take is consistent with that
anticipated in the small numbers,
negligible impact, and subsistence use
analyses; and to detect any
unanticipated effects on the species.
Monitoring plans include steps to
document when and how sea otters are
encountered, and their numbers and
behaviors during these encounters. This
information allows the Service to
measure encounter rates and trends and
to estimate numbers of animals
potentially affected. To the extent
possible, monitors will record group
size, age, sex, reaction, duration of
interaction, and closest approach to the
project activity.
Monitoring activities will be
summarized and reported in a formal
report each year. The applicant must
submit an annual monitoring and
reporting plan at least 90 days prior to
the initiation of the activity, and the
applicant must submit a final
monitoring report to us no later than 90
days after the expiration of the LOA. We
base each year’s monitoring objective on
the previous year’s monitoring results.
We require an approved plan for
monitoring and reporting the effects of
oil and gas industry activities on sea
otters prior to issuance of an LOA. We
require approval of the monitoring
results for continued operation under
the LOA.
We find that this regulation will
establish monitoring and reporting
requirements to evaluate the potential
impacts of planned activities and to
ensure that the effects of the activities
remain consistent with the rest of the
findings.
Summary of and Response to
Comments and Recommendations
During the public comment period,
we requested written comments from
the public on the proposed ITR as well
as the draft EA. The comment period on
the proposed ITR opened on March 19,
2019 (84 FR 10224), and, in response to
requests from the public, was extended
on April 5, 2019 (84 FR 13603). The
comment period closed on April 19,
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2019. We received 20 submissions;
these included comments on the
proposed rule and the draft EA as well
as a number of publications and other
documents submitted in support of
those comments.
The Service received comments from
the Marine Mammal Commission,
industry organizations, environmental
organizations, local government entities,
Tribal organizations, and the public. We
reviewed all comments received for
substantive issues, new information,
and recommendations regarding the
proposed ITR and the draft EA. The
comments are aggregated by subject
matter, summarized and addressed
below, and changes have been
incorporated into the final rule as
appropriate. A summary of the changes
to this final ITR from the proposed ITR
is found in the preamble section
entitled, Summary of Changes from the
Proposed Rule.
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General Comments
Comment 1: Several commenters
opposed the promulgation of the ITR
based on a general opposition to oil and
gas industry activities.
Response 1: Language within section
101(a)(5)(A) of the MMPA requires the
Service to allow the incidental taking of
small numbers of marine mammals
provided the Service has made certain
determinations regarding the specified
activity. Once we make the required
determinations, we must promulgate the
ITR. It is not our role in this process to
approve or deny the specified activities.
Our mandate is to identify and assess
the potential impact of those activities
on marine mammals, and if our analysis
concludes that such impacts are
consistent with the required
determinations, we must promulgate an
ITR.
Comment 2: Allowing any level of
harassment is a threat to the species.
Response 2: We disagree. Based on
our analysis we found that the effects of
the specified activities will have no
more than a negligible impact upon a
small number of northern sea otters in
Cook Inlet.
Comment 3: There is insufficient
information on how sound affects sea
otters to determine the risks to the
species; more research should be done.
Response 3: While we acknowledge
that additional research is needed to
refine the evaluation of the effects of
sound exposure on sea otters, we
disagree with the comment that
available information limits the
Service’s ability to conduct the required
analysis and make the required
determinations, which are based on the
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best scientific information that is
available.
Comment 4: The project actions will
harm beluga whales.
Response 4: The effects to marine
mammals other than sea otters are
outside of the scope of this rule and the
authority of the Service. The NMFS has
jurisdiction over issuance of incidental
take of beluga whales and other
cetacean and pinniped species in Cook
Inlet.
Comment 5: Seismic surveys can
harm fish and invertebrates, thereby
impeding prey availability and foraging
for sea otters.
Response 5: The Service evaluated
effects of the proposed seismic surveys
on sea otter prey availability to
determine whether these effects would
lead to incidental take of otters. See
Potential Effects of the Activities, Effects
on Habitat and Prey. As discussed in
this final rule, the expected effects of
the planned seismic surveys on sea otter
prey will not result in lasting
consequences for prey availability or
additional take of sea otters.
Project Description
Comment 6: The description of
activities considered for the ITR is
ambiguous. The Service should address
these ambiguities and ensure that the
ITR is very specific about what the
applicant can and cannot do to make
sure the LOA process is not open-ended.
Response 6: We disagree. Consistent
with numerous previous ITRs, this ITR
provides an overall ‘‘umbrella’’ set of
requirements which, when followed,
allow the incidental take of small
numbers of sea otters during certain oil
and gas industry activities. The
requirements ensure that there is no
more than a negligible impact on these
species, the activities will have the least
practicable adverse impacts, and that
there will not be unmitigable impacts on
the availability of these species for
subsistence use. The Service believes
we have used the appropriate level of
detail necessary to evaluate the effects
of the specified activities within the 5year period of the ITR consistent with
requirements of the MMPA.
Comment 7: Several commenters
pointed out inconsistencies between the
project descriptions and the description
of activities in the proposed ITR.
Response 7: We verified the project
descriptions with the applicant and
revised the project descriptions as
needed in this final rule.
MMPA Requirements
Comment 8: The public comment
period should be extended; although it
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was extended from 15 to 30 days, it was
still too short.
Response 8: The Service determined
that a 30-day comment period would be
sufficient for this rulemaking.
Comment 9: The Service should
evaluate the harm and harassment of the
proposed action on units smaller than
stocks.
Response 9: The Service believes that
our evaluation of the proposed activities
at the stock level is consistent with
section 101(a)(5) of the MMPA, which
uses the term ‘‘species or stock.’’ We do
not believe an evaluation at a larger or
smaller scale is appropriate.
Comment 10: Several commenters
expressed concern that industry
activities and incidental take
authorization could have an adverse
impact on Alaska Native subsistence use
of sea otters. It was suggested that the
Service should ensure that all
applicants submit, as part of their LOA
requests, a site-specific stakeholder
engagement plan or POC that includes
a summary of input received, a schedule
for ongoing community engagement,
and measures that would be
implemented to mitigate any potential
conflicts with subsistence hunting.
Response 10: This ITR requires an
LOA applicant to coordinate with
Alaska Native villages and Tribal
organizations to identify and avoid
potential conflicts. If any conflicts are
identified, the applicant must develop a
POC specifying the particular steps that
will be taken to address any effects the
project might have on subsistence
harvest. Appropriate mitigation
measures will be developed if conflicts
are identified. The applicant must
conduct stakeholder engagement and
make this information available to the
Service. Revisions have been made to
§§ 18.134(b)(3) and 18.140(b) to
incorporate these suggestions and
provide additional detail and clarity
regarding the required components of
the stakeholder engagement plan and
POC.
Comment 11: Neither the applicant
nor the Service consulted with federally
recognized tribes or tribal organizations
on this proposed activity.
Response 11: We conducted outreach
to all the tribal organizations in the
Cook Inlet region by email and postal
letters. We received one response
requesting further consultation on this
project from the Native Village of
Chickaloon. No other groups expressed
interest. When the Chickaloon Village
Traditional Council (CVTC) and the
Service were not able to schedule a time
and place suitable to both parties to
conduct the consultation, the CVTC
chose to provide written comments to
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the Service expressing their views on
the ITR. See Comment 1 for our
response.
Comment 12: The Service conflates
small numbers and negligible impact
standards required by the MMPA.
Response 12: We disagree. As we
explain in the preamble of this ITR, we
do not rely upon the definition of
‘‘small numbers’’ found in 50 CFR 18.27
as it conflates ‘‘small numbers’’ with
‘‘negligible impacts.’’ We recognize
‘‘small numbers’’ and ‘‘negligible
impacts’’ as two separate and distinct
requirements under the MMPA. The
Service maintains that the proposed oil
and gas activities in Cook Inlet will
affect a small number of animals and
will have a negligible effect on the
stocks, based on separate and discrete
analyses for each of these criteria.
Comment 13: The conclusions in the
proposed ITR that the activities will
have a negligible impact and take only
small numbers are insufficiently
supported.
Response 13: We disagree. The
Service analysis of the specified
activities for this ITR used the best
available information and encapsulated
all of the applicant’s known and
anticipated activities that will occur in
the Cook Inlet ITR Region during the 5year period of this ITR.
Comment 14: Cumulative impacts of
multiple take authorizations in Cook
Inlet must be considered.
Response 14: In our negligible
impacts assessment, we considered the
effects of a suite of human activities on
sea otters in Cook Inlet, including
impacts from noise, vessel activities,
human encounters, oil spills,
cumulative effects of existing and future
development, production, and
exploration activities, and the
likelihood of impacts from these
activities. We incorporated these
impacts into the baseline condition of
the affected stocks to determine whether
the issuance of take would have more
than a negligible effect.
Estimation of Take
Comment 15: The analysis does not
adequately address effects of noise on
mothers with pups.
Response 15: While we acknowledge
that mothers with pups are likely to be
among the most sensitive individuals to
harassment, we believe our analysis
adequately addresses potential impacts
to all life stages as discussed in the
preamble.
Comment 16: The estimates of
numbers of takes and sea otters taken do
not correctly allocate the proportion of
takes between the southcentral and
southwest Alaska stock resulting in
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underestimation of take from the ESAlisted southwest Alaska stock. Methods
used to allocate take between stocks are
insufficiently supported. The
assignment of the Level A take to the
southcentral Alaska stock is arbitrary.
Response 16: We disagree. Take is
calculated according to the location,
duration, and intensity of the specific
component of the work, and the density
of sea otters exposed to work in that
project area. Estimates of the number of
takes was based on the proportion of
each activity occurring within each
stock boundary. For clarity, we have
added a table showing what proportion
of each activity is expected to occur
within each stock boundary.
In response to this comment, we
reevaluated whether the allocation of
Level A take was assigned to the
appropriate stock. We determined that
the appropriate procedures were used to
estimate Level A take according to
location and characteristics of the
activity within each stock boundary.
However, we acknowledge that is it
more appropriate in this case to
consider the total number of takes rather
than the number of animals taken. This
change resulted in revision of the Level
A take estimate from three takes of one
animal in the southcentral Alaska stock,
to two instances of take from the
southwest Alaska stock and one
instance of take from the southcentral
Alaska stock. Although we determined
in this final regulation that it was more
appropriate to use total takes rather than
takes of animals, the proposed
regulation, which presented both
methods for considering take, was not
arbitrary.
Comment 17: Take is underestimated,
and methods of take calculation are not
adequately disclosed.
Response 17: Take was calculated
based on the best information available
at the time of the analysis and was done
in a manner that any necessary
assumptions or estimates in input
parameters would result in
overestimation of take rather than
underestimation. We have added
additional text and an additional table
to Estimated Incidental Take to help
describe how these take estimates were
calculated.
Comment 18: The Service proposed
that a very small number of sea otters
could be taken by Level B harassment
relative to the estimated number of sea
otter takes. The number of individuals
estimated to be taken during the course
of the regulations is unrealistic based on
the types of activities being conducted
and the location and duration of those
activities. Mobile activities, such as
seismic and geohazard surveys, would
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be conducted over a large area and an
extended period of time, resulting in the
exposure of more individuals than
would be exposed for stationary
sources, such as pile driving.
Response 18: We employed a model
for estimating the number of animals
taken based on the estimated number of
takes. This model was based on the
available information at the time of the
analysis. We recognize that a more
sophisticated model can be developed
but, at this time, there are insufficient
data regarding the behaviors and
movement patterns of individual sea
otters in Cook Inlet, and so we cannot
be confident that a more sophisticated
model would accurately translate the
total number of takes into a more
accurate estimate of the number of
animals taken. Therefore, rather than
attempting to recalculate the number of
animals taken using a more
sophisticated model that may be no
more accurate, we instead emphasize
the importance of the total number of
takes in this final rule. We have
evaluated whether the MMPA
determinations can be made based on
the total number of takes rather than
solely on the number of animals taken
in order to ensure that our assessments
do not underestimate the possible
impacts to the stocks. This approach has
been used in previous analyses of
incidental take of marine mammals,
both explicitly and implicitly, when a
suitable estimate of numbers of
individuals could not be derived from
available information (e.g., 81 FR 52276,
August 5, 2016; 81 FR 40902, June 23,
2016). Using total take to evaluate the
effects of the specified activities on sea
otters in Cook Inlet is likely to be an
overestimate of the actual impact, but it
avoids relying on an estimate of number
of animals taken that is precise, but
possibly incorrect.
Comment 19: The proposed piledriving activities will harm and harass
sea otters beyond the minimal estimates
provided by the Service.
Response 19: We have determined
that in the proposed ITR, we
underestimated the duration of piledriving activities, but in cooperation
with the applicant, we have
incorporated more accurate estimates of
the time needed to complete these
activities to ensure the effects are not
underestimated. Further, the effects of
specific pile driving activities will be
evaluated in individual LOAs to ensure
accurate project details are
incorporated.
Comment 20: The Service incorrectly
concludes that harassing the same nine
threatened sea otters 410 times will be
inconsequential.
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Response 20: The comment
misinterprets our analysis in three ways.
As discussed in the response to
Comment 18, the estimate of number of
animals taken was based on a model
derived from the total number of takes.
However, for this suite of projects, the
number of takes is a more accurate
assessment of the total impact of the
activity, and our assessment has been
revised to reflect this. Secondly, for
most animals, the effects of disturbance
will be short-term changes in behavior,
which will have no lasting effect on the
animal’s survival or reproductive
capacity. While there may be more
severe consequences for a few animals,
our evaluation supports a determination
that there will be no significant
consequences on the stocks to which
these animals belong, not that the effects
to individual animals are
inconsequential. Finally, there is an
implied omission of assessment of
repeated exposures. We addressed this
issue in the text of the preamble in
Potential Effects of the Activities and
Characterizing Take.
Comment 21: Airborne noise: The
Service conflates exposures from
underwater sound sources with
disturbing activities that do not generate
underwater sound. The proposed rule
discounts the impacts of noise in the air.
The Service’s conclusion that all take
from aerial surveys will be mitigated is
arbitrary, and instead it must analyze
the potential for take from all sources of
air traffic associated with the activities.
Response 21: We disagree. We
evaluated the full suite of project
activities to determine which are likely
to cause sea otters to react in ways that
indicate take by Level A and Level B
harassment. Take from airborne noise
was considered. We assessed the
likelihood, frequency, and severity of
Level A and Level B take from airborne
noise. Further discussion of this issue
can be found in the section on Airborne
Sounds in Effects of Noise.
Comment 22: The Service relies on
avoidance to reduce sea otter take;
however, this is arbitrary and capricious
because displacement still amounts to
harassment and even harm if it impedes
a sea otter from foraging or resting in its
preferred habitat.
Response 22: The commenter has
misinterpreted how take associated with
displacement is characterized and
estimated in this rule. Displacement
indeed does constitute take if, as the
commenter notes, it impedes a sea otter
from foraging or resting in preferred
habitat and, as we note, the resulting
effort to forage or rest in suboptimal
habitat results in a biologically
significant affect to the animal. Not all
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displacement will cause take. Otters
displaced to other areas of suitable
habitat and otters that are displaced, but
do not experience a biologically
significant interruption in feeding or
resting are not considered taken. The
analysis of take includes all animals
exposed to the specified activities that
are expected to respond with behaviors
that indicate a Level A or Level B take
has occurred, including displacement
leading to biologically significant
interruption in feeding and resting. We
used the best available evidence based
on the biological characteristics and
behaviors of sea otters, or a suitable
proxy, and the characteristics of the
planned activities to identify
appropriate thresholds of exposure that
are likely to result in take. We have
identified and used the same thresholds
for northern and southern sea otters in
previous analyses (e.g., 83 FR 18077,
April 25, 2018; 82 FR 6627, January 19,
2017, 83 FR 18330, April 26, 2018).
Where information was lacking, we
used conservative assumptions to
ensure take, including that associated
with displacement, was not
underestimated. In sum, take from
displacement was incorporated in this
analysis, and the characterization of
take associated with such displacement
was neither arbitrary nor capricious.
Comment 23: Seismic surveys will
likely affect marine mammals in a much
larger area than anticipated by the
application.
Response 23. We disagree. While the
proposed survey may be detectable to
sea otters beyond the thresholds for take
that we identified here, to constitute
take by harassment, the effects of
exposure must rise beyond detectability
to cause a biologically significant
disruption of behavior. Many animals
will have non-significant responses,
including short term increases in
vigilance, momentary startle responses,
or short-term changes in body
orientation or direction of travel. To
distinguish between non-significant
responses and those indicating take, the
Service has used an exposure threshold
of 160 dB for underwater noise. See the
comments regarding use of a 120-dB
threshold versus a 160 dB threshold
(Comment 33) for more discussion on
the suitability of this threshold.
Comment 24: The upper end of the
frequency of hearing for sea otters
should be 38 kHz rather than 32 kHz.
Response 24: We agree. This
correction was made in the ITR.
Comment 25: Two commenters
pointed out that the proposed ITR
evaluated vessel noise from tugs towing
rigs but did not evaluate noise from
transiting vessels and suggested that, if
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37739
general vessel use is discounted as a
source of potential harassment, use of
the tug should be as well.
Response 25: Tugs towing a rig are
using high-powered engines and are
often working in teams, resulting in
higher levels of underwater noise than
is typical of most vessel traffic. Tugs
will be towing rigs to areas in Cook Inlet
where these activities are unusual.
Otters in these areas may show a greater
level of vigilance or avoidance of these
activities than for most vessel traffic due
to the novelty of the activity in that area.
We do not typically consider vessel
traffic to have the potential to result in
take, but the applicant had initially
requested authorization of take that may
occur during tug towing. The Service
evaluated the expected number of takes
associated with tug towing and found
this activity would likely result in less
than one take. Accordingly, the
applicant has since removed this
request from its application and the
Service has removed tug towing from
the activities included in the final rule.
Comment 26: Anchor handling, pipe
cutting, and grinding do not emit sound
levels sufficiently high to cause Level A
or B harassment and should not be
included in the analyses.
Response 26: For activities with
source levels nearing take thresholds,
the possibility of take was analyzed at
the request of the applicant and
included in the overall take estimate in
the proposed rule. Results of our
analyses indicated that take associated
with these activities is negligible. The
applicants have since requested
withdrawal of grinding and pipe cutting
from consideration but have maintained
inclusion of anchor handling. These
changes are reflected in this rule.
Comment 27: Several commenters
expressed that a 160-dB re 1 mPa
threshold is inadequate as it addresses
only acoustic harassment and does not
account for takes resulting from
behavioral changes, particularly for
continuous, non-impulsive sound
sources.
The Marine Mammal Commission
recommended that, until such time that
the 120- and 160-dB re 1 mPa thresholds
are updated, the Service use a 120rather than 160-dB re 1 mPa threshold to
estimate the extents of the Level B
harassment zones and numbers of sea
otter takes when non-impulsive,
continuous sources are proposed for
use. The Commission further
recommended that, if the Service did
not use a 120-dB threshold, then a 141dB Level B harassment threshold should
be used for non-impulsive, continuous
sources based on monitoring data from
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the Elkhorn Slough National Estuarine
Research Reserve (ESNERR) (2011).
Response 27: The highest spectral
densities for noises generated by
vibratory pile driving lie within a range
of frequencies at which sea otters have
poor hearing ability. In contrast, gray
whales, on which the 120-dB threshold
is based, are highly sensitive to sounds
within this frequency range. We do not
dispute that sea otters may hear and
may react to sounds produced by
vibratory pile driving. However, we
maintain that it is unlikely that sea
otters’ reactions will be equivalent to
those of gray whales in terms of the
sound levels that elicit reactions
equivalent to take by harassment. Thus,
it is not appropriate to apply the 120-dB
threshold to sea otters.
The Service disagrees with the
Commission’s conclusions regarding
ESNERR (2011). After considering the
Commission’s comments and reviewing
the monitoring data (ESNERR 2011 and
ESNERR unpublished data 2018), we
reaffirm our statement that ‘‘projectrelated monitoring of sea otter behavior
in areas exposed to underwater sound
levels ranging from approximately 135–
165 dB during vibratory pile driving
(ESNERR 2011) showed no clear pattern
of disturbance or avoidance in relation
to these levels of underwater sound
exposure.’’
As such, we maintain that use of a
160-dB threshold for both impulsive
and non-impulsive sounds is consistent
with the best available information.
Comment 28: The tables summarizing
source levels, repetition rates, pulse
durations, weighting factor adjustments,
and other assumptions for survey
instruments were incorrect or
inappropriate.
Response 28: Discrepancies or errors
of the source levels and other
parameters for sound sources have been
corrected in this rule.
Comment 29: The Commission
recommended that chirps have temporal
and spectral characteristics suggesting
that a lower, more precautionary Level
B harassment threshold of 120 dB
would be more appropriate than the
160-dB threshold. The Commission
further recommended that, until the
behavior thresholds are updated, the
Service requires applicants to use the
120- rather than 160-dB threshold for
intermittent, non-impulsive sources
(such as chirps).
Response 29: The Service considers
sub-bottom profilers, including chirps,
to be impulsive sources. Continuous
sounds are characterized by having a
sound pressure level that consistently
stays above ambient levels and
negligible fluctuations (NIOSH 1998;
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ANSI 2005). Intermittent sounds, with
cyclical periods of lower or no sound
level, can further be classified as either
impulsive or non-impulsive. Impulsive
sounds are brief (less than 1 second) and
transient, with rapid rise time to a high
peak pressure followed by a rapid decay
(ANSI 1986; NIOSH 1998). Nonimpulsive sounds have more gradual
rise times and gradual decays. Sounds
from sub-bottom profilers more closely
resemble impulsive sounds, as opposed
to non-impulsive or continuous sounds,
and the Service treats them as such.
Regardless of how sounds emitted by
chirps are classified, the references cited
by the Commission in support of use of
a 120dB threshold are overwhelmingly
based on cetaceans in the highfrequency and mid-frequency functional
hearing groups (harbor porpoise, killer
whale, beaked whale, sperm whale,
Lagenorhynchus and Stenella dolphins).
These animals have significantly greater
sensitivity to and utilization of high
frequency sounds, therefore the results
of those studies are not applicable to sea
otters.
Comment 30: The Commission
strongly suggested that the Service
consult with NMFS regarding the
appropriateness of the various
thresholds. The Commissions also
recommended that the Service take a
more active role in the development,
review, and implementation of any and
all acoustic and behavior thresholds for
marine mammal species under its
jurisdiction and consult with NMFS on
whether, when, and how NMFS’ current
thresholds should be implemented.
Response 30: The Service responded
to the Commission’s previous letters
and advice consistent with our repeated
response here. The Service continues to
evaluate impacts resulting from
anthropogenic sound on marine
mammals under our jurisdiction using
the best available information. We are
aware of and supportive of the efforts by
NMFS and its Science Centers to
develop their Technical Guidance for
Assessing the Effects of Anthropogenic
Sound on Marine Mammal Hearing
Acoustic Guidelines for those species
under NMFS’ jurisdiction. Although the
Service provided informal comments on
an early version of these guidelines, we
did not provide additional comments
because the guidance is specific to
management of species under the
jurisdiction of the Department of
Commerce. The Service will continue to
work with our partners, including the
U.S. Geological Survey and NMFS, to
obtain the best scientific information
concerning potential effects of
anthropogenic sound on marine
mammal species under our jurisdiction.
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Mitigation and Monitoring Comments
Comment 31: Several commenters
indicated the need for additional
Protected Species Observers to monitor
Level A and B harassment zones.
Response 31: The issuance of an LOA
for the specific activities under this ITR
is contingent upon an applicant
developing and implementing a detailed
monitoring plan to ensure that the
effects of the activities on marine
mammals are documented and reported.
If the monitoring plan is incomplete,
inadequate, or not implemented, the
LOA will not be issued, or if issued,
may be rescinded.
Effective monitoring is a necessary
component of this rule. An applicant for
an LOA must submit, as part of the
application, a detailed marine mammal
monitoring and mitigation plan. It must
include a sufficient number of PSOs to
conduct visual project monitoring of
100 percent of a project’s EZs during all
daytime periods of underwater noisegenerating work. Sea otters in the SZ
must be documented and reported.
These monitoring methods, included in
this rule, were evaluated and found to
be sufficient for detecting responses to
project activities. We considered
alternative monitoring methods and
added a discussion of mitigation
measures considered but not required in
the section on the Mitigation and
Monitoring.
Comment 32: The Service should
clarify that ramp up procedures for
vibratory pile driving differ from those
for impact pile driving.
Response 32: Clarifying text has been
added to § 18.137(b)(4)(ii).
Comment 33: Mitigation requiring
shut downs to be accomplished within
several seconds does not adequately
consider worker health and safety, and
equipment safety and integrity. The
Service should consider modifying this
language from ‘‘within several seconds’’
to ‘‘as soon as is practicable considering
worker safety and equipment integrity’’.
Response 33: The suggested text has
been added to § 18.137(b)(7)(ii).
Comment 34: Mitigation measures
apply to ‘‘in-water work along the
shoreline’’ however, this term is not
defined. The Service should replace the
phrase ‘‘in-water work along the
shoreline’’ with ‘‘work occurring in
intertidal areas.’’
Response 34: The suggested clarifying
change was made to § 18.137(c)(2).
Comment 35: Hilcorp and Harvest’s
4MP states that they plan to perform a
sound source verification (SSV) for the
3D seismic survey in LCI and will work
with the Service to determine if an SSV
is needed for other activities occurring
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in the project area. However, the Service
did not include a requirement in the
proposed rule for any applicant to
conduct an SSV for any seismic or other
activities. The Commission
recommended that the Service require
the applicant to conduct SSVs at the
beginning of noise-generating activities
for any sound sources for which in-situ
measurements have not been made for
similar activities in Cook Inlet and use
those measurements to verify and
adjust, if necessary, the extents of the
Level A and B harassment zones.
Response 35: The omission of the SSV
requirement for the 3D seismic survey
in Cook Inlet is noted and has been
corrected in this rule. We will work
with the applicant to determine whether
additional SSVs for other planned
activities are appropriate and necessary.
Comment 36: The Service has
proposed to use power-down
procedures during seismic survey
activities as an alternative to
implementing a full shutdown when an
animal is detected within or
approaching the Level A harassment
zone, which would necessitate a rampup of the full array. Power-downs also
may be used at the operator’s discretion
to reduce the likelihood of a Level B
harassment take. In a mitigation and
monitoring workshop for seismic
surveys, industry representatives
indicated that power-downs may
ultimately increase sound input to the
marine environment due to the need to
subsequently re-shoot the trackline to
prevent gaps in data acquisition
(unpublished workshop report cited in
82 FR 26255, June 6, 2017). For that
reason and because a power down may
not actually be useful, NMFS has
prohibited the use of power-downs in
its issuance of incidental harassment
authorizations for taking of marine
mammals associated with geophysical
surveys in the Atlantic Ocean (83 FR
63350, December 7, 2018), which the
Commission supported. The
Commission therefore recommends that
the Service prohibit using power-down
procedures as a mitigation measure for
seismic surveys in Cook Inlet.
Response 36: The Service agrees that,
generally, it is best to minimize survey
gaps and re-shoots. We disagree with
the Commission’s assertion that a
voluntary power-down to avoid Level B
take is not potentially useful.
In the instance of avoiding Level A
take, mitigation is not voluntary. Either
a power-down or a shutdown would
interrupt survey activity to a degree that
will create a survey gap requiring reshoot. Regardless of which of the two
options is applied, a duration of longer
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than 10 minutes would require a rampup to restore the array to full power.
Survey gaps are undesirable to
operators as they result in a loss of data
continuity and there are significant
costs associated with reshoots. The
Service thinks it unlikely that an
operator would choose to employ
voluntary shutdowns either frequently
or frivolously. In an encounter with an
unusually large group of animals, a
voluntary power-down may prevent
exposure of a larger number of animals
than would be exposed during infill
shooting at a later time with typical
encounter rates or group sizes. While we
would encourage observers and
operators to use voluntary power-downs
as infrequently as is practicable, we feel
that prohibition of this mitigation
measure may ultimately result in an
increase in exposure of marine
mammals to noise.
Comment 37: The Service also would
allow the use of a 10-in3 mitigation gun
to avoid requiring operators to ramp up
after the full array has not been in use
(e.g., during a line turn, low-visibility
conditions, or other short-term
interruption of seismic survey
activities). In its issuance of incidental
harassment authorizations for taking of
marine mammals associated with
geophysical surveys in the Atlantic
Ocean, NMFS required that the acoustic
source be deactivated when not
acquiring or preparing to acquire data,
except as necessary for testing, and that
unnecessary use of the acoustic source
be avoided (83 FR 63351, December 7,
2018). The Commission supports that
requirement for the reasons previously
stated and recommends that the Service
prohibit the use of a mitigation gun to
avoid implementing ramp-up
procedures.
Response 37: The Commission has
mischaracterized the Service’s proposed
use of a mitigation gun; specifically, the
proposed ITR did not suggest that rampup procedures may be avoided by use of
a mitigation gun. Rather, we proposed
use of a mitigation gun to reduce the
probability of the presence of
undetected animals within the SZ prior
to initiation of ramp-up procedures
during periods of poor visibility.
While it is true that IHAs recently
issued by NMFS for seismic surveys in
the Atlantic prohibited airgun use
during line turns and other short-term
interruptions of survey activities, the
use of Passive Acoustic Monitoring
(PAM) was authorized as an avenue to
clear the SZ of marine mammals and
initiate ramp-up procedures during
times when the SZ would not be visible
(e.g., at nighttime or during periods of
rain or fog). The Service does not
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believe PAM to be an effective
monitoring and mitigation tool for
Hilcorp and Harvest’s proposed survey
because (1) the high levels of ambient
noise in Cook Inlet interfere with
detections of underwater vocalizations;
and (2) sea otters are not known to make
underwater vocalizations. The Service
contends that, within Cook Inlet, the use
of a mitigation gun during line-change
turns remains among the best practices
to reduce the probability of animals
being present within the SZ
immediately prior to and during rampup procedures.
Comment 38: The Service has
proposed that operators notify the
Service or the Alaska Sea Life Center
within 48 hours of an injured, dead, or
distressed sea otter being observed,
irrespective of whether an injury or
death was associated with the specified
activities (§§ 18.136(b) and 18.139(f) of
the proposed rule). Any injury or death
of a sea otter associated with the
specified activities should be reported
immediately to the Service or the Alaska
Sea Life Center. And, in the past, the
Service has specified that notification of
injured or dead otters not associated
with project activities occur within 24
hours to allow for a more timely
response by trained personnel as
warranted. As such, the Commission
recommends that the Service require the
operators to notify the Service or the
Alaska Sea Life Center as follows: (1)
Immediately if a sea otter is injured or
killed during any of the project
activities; and (2) within 24 hours of
observing an injured, dead, or distressed
sea otter that the observer determined is
not associated with project activities.
Response 38: The applicant has
committed to notifying the Alaska Sea
Life Center and the Service as
recommended.
Comment 39: The Service should
employ time or area restrictions to
mitigate acoustic impacts rather than
relying on lookouts aboard vessels
because many disruptions to marine
mammal behavior will be difficult to
detect or avoid through lookouts.
Response 39: We disagree. There is no
information currently available about
daily or seasonal movement patterns of
otters in Cook Inlet on which to base
effective timing restrictions. Ship-based
PSOs are limited in their ability to
monitor sea otter behaviors, but this
remains the most effective way to
ensure the project activities will have
the least practicable adverse impact on
sea otters in Cook Inlet.
Comment 40: The Service cannot, as
it has here, rely on a plan to make a plan
to mitigate the impacts of the specified
activities on sea otters. It also may not
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rubberstamp the mitigation measures
proposed by the applicant, but it must
consider the practicality of other
measures.
Response 40: The mitigation measures
that have been developed for the project
are developed based on the industry
standards for seismic surveys,
geotechnical work, pile driving, and
other oil and gas work. The mitigation
measures presented in the section on
Mitigation and Monitoring and in this
rule under § 18.137 Mitigation include
the mitigation measures required by
regulation and the full suite of marine
mammal monitoring and mitigation
measures for activities proposed by
Hilcorp and Harvest, and are
incorporated here by reference
(Fairweather Science LLC 2018). The
AGDC will be expected to implement
similar measures and meet similar
standards for monitoring. Although sitespecific 4MP will be required for an
applicant to obtain an LOA under this
rule, the expectations for the content of
these plans are well established and
constitute substantially more than ‘‘a
plan to make a plan.’’
Additionally we have added language
to the section on Mitigation and
Monitoring, and have summarized our
assessment under Findings, Least
Practicable Adverse Impacts. That
language describes alternative
mitigation measures that were
considered and demonstrates why we
determined that the selected mitigation
will achieve the least practicable
adverse impact of the proposed actions
on sea otters. We have worked with
Hilcorp, Harvest, and AGDC to
incorporate these measures into their
project plans as much as possible to
ensure that these measures are
practicable and will be implemented as
intended. The mitigation measures
required by this rule are therefore
reflected in the application documents.
Comment 41: The Service should
consider requiring alternative
technologies to seismic surveys.
Response 41: We considered whether
alternative technologies should be
required. We added language to the
section on Mitigation and Monitoring
describing our evaluation.
Comment 42: The Service should
require lowest practicable source levels
for seismic surveys and in-situ sound
source verification for accurate EZs.
Response 42: Hilcorp and Harvest
have determined that the minimum
source level necessary to provide the
target data will be between 1,760 in3
and 2,400 in3. The anticipated seismic
source is a 14-airgun array with a total
volume of 1,945 in3. We evaluated the
possible effects on sea otters of the use
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of a 2,400 ci3 array. We have included
a requirement to use equipment that
generates the lowest practicable source
levels during seismic surveys. Onsite
SSV testing will be conducted prior to
2D and (3D) seismic surveys. Mitigation
measures (D) and (E) have been added
to paragraph (b)(1)(ii) of § 18.137
Mitigation.
Comment 43: The Service should
prescribe compensatory mitigation, such
as habitat restoration, for the adverse
impacts of the permitted activity on
marine mammals and their habitat that
cannot be prevented or mitigated by
modifying the activity.
Response 43: Compensatory
mitigation is not required under the
MMPA. Mitigation measures must be
specified that achieve the least
practicable adverse impact of the action
on sea otters in Cook Inlet. No effective
or practicable compensatory mitigation
efforts have been identified for sea otters
in this area. We added this information
to the discussion of mitigation measures
considered but not required under the
section on Mitigation and Monitoring.
Comment 44: Because sea otters may
be sensitive to seismic surveys at the
160 dB threshold, or Level B take; the
EZ should be extended and
comprehensively monitored.
Response 44: The EZ is the area where
work that generates noise above Level A
thresholds in the frequency range
audible to sea otters must shut down or
power down when sea otters are
present. The EZ is comprehensively
monitored. Work may not begin when
100 percent of the EZ is not visible or
until after a 30-minute observation
period has confirmed no otters are
present in the EZ. Shutting down or
powering down sound sources in
response to the presence of sea otters in
the 160-dB zone (the SZ) would reduce
take. However, the applicant has
determined that shutting down or
powering down sound sources in
response to any sea otter in the 160-dB
SZ would not be practicable for
conducting the planned activities.
Comment 45: Projects should be shut
down during periods of limited
visibility.
Response 45: The applicant has
indicated that it is not practicable to
shut down during periods of low
visibility and still complete the work.
We recognize that this will limit the
effectiveness of visual monitoring by
PSOs and have accounted for this in our
estimation of take.
Comment 46: Bubble curtains or other
noise-reduction technologies should be
explored for use in the proposed project,
as well as non-pile-driven foundation
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types (e.g., gravity-based, or suction
caissons).
Response 46: The Service has
determined that sound-attenuation
devices and alternatives to pilesupported construction may be effective
means for achieving the least practicable
adverse impact of the specified
activities. We have added evaluation of
these tools on a project-by-project basis
to the required mitigation measures of
this rule. Each LOA will specify
whether these tools will be required and
what type will be used.
Comment 47: Vessel speed should be
limited to 10 knots or less.
Response 47: Lowering vessel speed
can reduce the risk of serious injury and
mortality of marine mammals caused by
ship strikes and can reduce ocean noise
that can mask marine mammal
communications. Requirements for
vessels to reduce speed in the vicinity
of sea otters or when visibility is limited
are included in § 18.137, paragraphs
(d)(3) and (d)(5).
National Environmental Policy Act
(NEPA)
Comment 48: The draft EA is
inadequate, and the Service must
prepare a full environmental impact
statement, and the draft EA fails to meet
the requirements of NEPA.
Response 48: Section 1501.4(b) of
NEPA, found at 40 CFR Chapter V, notes
that, in determining whether to prepare
an environmental impact statement
(EIS), a Federal agency may prepare an
EA and, based on the EA document,
make a determination whether to
prepare an EIS. The Department of the
Interior’s policy and procedures for
compliance with NEPA (69 FR 10866,
March 8, 2004) further affirms that the
purpose of an EA is to allow the
responsible official to determine
whether to prepare an EIS or a FONSI.
The Service analyzed the proposed
activity, i.e., issuance of implementing
regulations, in accordance with the
criteria of NEPA, and made a
determination that it does not constitute
a major Federal action significantly
affecting the quality of the human
environment. It should be noted that the
Service does not authorize the actual oil
and gas industry activities, as those
activities are authorized by other State
and Federal agencies. The Service
merely authorizes the incidental take of
sea otters resulting from those activities.
We note that this ITR provides the
Service with a means of interacting with
the applicant through the mitigation,
monitoring, and reporting requirements
for individual projects to ensure that the
impacts to sea otters are minimized. The
ITR will authorize the nonlethal,
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incidental take of only small numbers of
sea otters, will have only a negligible
impact on the species or stocks, and will
not cause an unmitigable adverse
impact on the availability of the species
for subsistence use. As a result, we
determined the regulations will not
significantly affect the quality of the
human environment and, therefore, a
FONSI is appropriate. Accordingly, an
EIS is not required under NEPA.
Comment 49: The EA is overly narrow
in scope, fails to evaluate alternatives,
and does not adequately evaluate the
potential impacts of the action on the
physical and biological environment.
Response 49: The Service believes the
commenters misunderstand the
requirements set forth in NEPA and the
MMPA. The proposed action set forth in
the EA is not activities proposed by
Hilcorp, Harvest, and AGDC, but the
issuance of incidental take authorization
of sea otters. The Service believes we
are in full compliance with both NEPA
and the MMPA. We refer to our
response to Comment 48 for an
explanation of NEPA requirements and
we refer to the Background section of
the preamble of this rule for an
explanation of MMPA requirements.
In addition to the proposed action, we
analyzed the ‘‘no action’’ alternative.
The Service believes the no action
alternative is valid and is in compliance
with relevant court rulings (see, for
example, Center for Biological Diversity
v. Kempthorne, 588 F.3d 701, 9th Cir.
2009). The action being considered is
the issuance of the ITR. Therefore, the
‘‘no action’’ alternative would be not to
issue an ITR. However, Section
101(a)(5)(A) of the MMPA specifies that
the Secretary of the Interior (Secretary),
through the Director of the Service, shall
[emphasis added] allow the incidental,
but not intentional, taking of small
numbers of marine mammals in
response to requests by U.S. citizens
engaged in a specified activity (other
than commercial fishing) in a specified
geographic region if the Secretary finds
that the total of such taking will have a
negligible impact on the species or stock
and will not have an unmitigable
adverse impact on the availability of the
species or stock for subsistence uses.
Therefore, if a citizen petitions the
Service to promulgate regulations, we
are required to initiate the process and
make the appropriate findings. If there
is no request for an ITR, there would be
no need for any analysis, including
alternatives.
Comment 50: The Service’s
cumulative impacts analysis is
deficient. The indirect and cumulative
impacts of greenhouse gas pollution
from operations and downstream
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consumption of fossil fuels must be
analyzed, and effects of ocean warming
and acidification must be considered.
Response 50: The Service has
considered the effects of climate change
in our assessment of cumulative
impacts. We considered the best
available information regarding
potential impacts of climate change and
analyzed all relevant direct, indirect,
and cumulative effects on sea otters, and
their habitat, potentially caused by the
specified activities in the Cook Inlet
region during the 5-year period of this
ITR. The level of analysis the
commenters suggest is beyond the scope
appropriate for this ITR. We do consider
broader questions about climate change
and how it may cause additive stress on
sea otter populations over the long term
generally in the EA. The Service finds
that, while greenhouse gas emissions are
clearly contributing to climate change,
the comprehensive authority to regulate
those emissions is not found in the
statutes that govern the management of
marine mammals. The challenge posed
by climate change and its ultimate
solution is much broader than the scope
and scale of this ITR and EA.
ESA
Comment 51: The Service must
comply with the Endangered Species
Act.
Response 51: As required by section
7 of the ESA the Service has completed
an intra-Service consultation under the
ESA for the listed stock of sea otters and
their critical habitat prior to
promulgating this ITR.
Oil Spill Risks and Effects
Comment 52: The project activities
present an unacceptable risk of oil spills
especially considering Hilcorp’s aging
infrastructure and poor record of safety
and environmental compliance.
Response 52: We acknowledge that an
oil spill is a possible outcome of the
specified activities in Cook Inlet, and for
this reason we have discussed potential
spills and their impacts to sea otters (see
Potential Impacts from an Oil Spill or
Unpermitted Discharge). It is beyond the
authority of the Service and the MMPA
to regulate potential accidental
discharge into the environment. Waste
product discharge into the environment
is regulated under other laws and
permits, such as provisions of the Clean
Water Act (33 U.S.C. 1251 et seq.) and
the Oil Pollution Act (33 U.S.C. 2701 et
seq.), among others. However, we have
considered the likelihood of spills
resulting from the activities in Cook
Inlet, and have determined that there is
a low probability of a major spill. Small
spills are more likely, but we have
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37743
determined that, should they occur,
they will likely affect only a small
number of sea otters, will have a
negligible impact on these stocks, and
will not have an unmitigable adverse
impact on their availability for
subsistence uses.
Required Determinations
National Environmental Policy Act
(NEPA)
We have prepared an EA in
accordance with the NEPA of 1969 (42
U.S.C. 4321 et seq.) and have concluded
that issuance of an ITR for the
nonlethal, incidental, unintentional take
by harassment of small numbers of sea
otters in Alaska during activities
conducted by Hilcorp, Harvest, and
AGDC in 2019 to 2024 is not a major
Federal action significantly affecting the
quality of the human environment
within the meaning of section 102(2)(C)
of the NEPA. A copy of the EA and the
Service’s FONSI can be obtained from
the locations described in ADDRESSES.
Endangered Species Act (ESA)
Under the ESA, all Federal agencies
are required to ensure the actions they
authorize are not likely to jeopardize the
continued existence of any threatened
or endangered species or result in
destruction or adverse modification of
critical habitat. The southwest DPS of
sea otters is listed as threatened under
the ESA at 50 CFR 17.11(h) (70 FR
46366, August 9, 2005). The planned
activities will occur within designated
critical habitat found at 50 CFR 17.95(a).
Prior to issuance of this final ITR, we
completed an intra-Service consultation
under section 7 of the ESA on our
proposed issuance of an ITR. The
evaluations and findings that resulted
from this consultation are available on
the Service’s website and at https://
www.regulations.gov.
Regulatory Planning and Review
Executive Order 12866 provides that
the Office of Information and Regulatory
Affairs (OIRA) in the Office of
Management and Budget (OMB) will
review all significant rules for a
determination of significance. OMB has
designated this rule as not significant.
Executive Order 13563 reaffirms the
principles of Executive Order 12866
while calling for improvements in the
nation’s regulatory system to promote
predictability, to reduce uncertainty,
and to use the best, most innovative,
and least burdensome tools for
achieving regulatory ends. The
executive order directs agencies to
consider regulatory approaches that
reduce burdens and maintain flexibility
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and freedom of choice for the public
where these approaches are relevant,
feasible, and consistent with regulatory
objectives. Executive Order 13563
emphasizes further that regulations
must be based on the best available
science and that the rulemaking process
must allow for public participation and
an open exchange of ideas. We have
developed this rule in a manner
consistent with these requirements.
OIRA bases its determination of
significance upon the following four
criteria: (a) Whether the rule will have
an annual effect of $100 million or more
on the economy or adversely affect an
economic sector, productivity, jobs, the
environment, or other units of the
government; (b) Whether the rule will
create inconsistencies with other
Federal agencies’ actions; (c) Whether
the rule will materially affect
entitlements, grants, user fees, loan
programs, or the rights and obligations
of their recipients; (d) Whether the rule
raises novel legal or policy issues.
Expenses will be related to, but not
necessarily limited to: The development
of applications for LOAs; monitoring,
recordkeeping, and reporting activities
conducted during oil and gas
operations; development of activity- and
species-specific marine mammal
monitoring and mitigation plans; and
coordination with Alaska Natives to
minimize effects of operations on
subsistence hunting. Realistically, costs
of compliance with this rule are
minimal in comparison to those related
to actual oil and gas exploration,
development, production, and transport
operations. The actual costs to develop
the petition for promulgation of
regulations and LOA requests probably
do not exceed $200,000 per year, short
of the ‘‘major rule’’ threshold that would
require preparation of a regulatory
impact analysis. As is presently the
case, profits will accrue to the applicant;
royalties and taxes will accrue to the
Government; and the rule will have
little or no impact on decisions by the
applicant to relinquish tracts and write
off bonus payments.
Small Business Regulatory Enforcement
Fairness Act
We have determined that this rule is
not a major rule under 5 U.S.C. 804(2),
the Small Business Regulatory
Enforcement Fairness Act. The rule is
also not likely to result in a major
increase in costs or prices for
consumers, individual industries, or
government agencies or have significant
adverse effects on competition,
employment, productivity, innovation,
or on the ability of United States-based
enterprises to compete with foreign-
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based enterprises in domestic or export
markets.
Regulatory Flexibility Act
We have determined that this rule
will not have a significant economic
effect on a substantial number of small
entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). Hilcorp,
Harvest, AGDC, and their contractors
conducting exploration, development,
production, and transportation of oil
and gas in Cook Inlet, Alaska, are the
only entities subject to this ITR.
Therefore, neither a Regulatory
Flexibility Analysis nor a Small Entity
Compliance Guide is required.
Takings Implications
This rule does not have takings
implications under Executive Order
12630 because it authorizes the
nonlethal, incidental, but not
intentional, take of sea otters by oil and
gas industry companies and, thereby,
exempts these companies from civil and
criminal liability as long as they operate
in compliance with the terms of their
LOAs. Therefore, a takings implications
assessment is not required.
Federalism Effects
This rule does not contain policies
with Federalism implications sufficient
to warrant preparation of a Federalism
Assessment under Executive Order
13132. The MMPA gives the Service the
authority and responsibility to protect
sea otters.
Unfunded Mandates Reform Act
In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et
seq.), this rule will not ‘‘significantly or
uniquely’’ affect small governments. A
Small Government Agency Plan is not
required. The Service has determined
and certifies pursuant to the Unfunded
Mandates Reform Act that this
rulemaking will not impose a cost of
$100 million or more in any given year
on local or State governments or private
entities. This rule will not produce a
Federal mandate of $100 million or
greater in any year, i.e., it is not a
‘‘significant regulatory action’’ under
the Unfunded Mandates Reform Act.
Government-to-Government
Relationship With Native American
Tribal Governments
It is our responsibility to
communicate and work directly on a
Government-to-Government basis with
federally recognized Alaska Native
tribes and corporations in developing
programs for healthy ecosystems. We
seek their full and meaningful
participation in evaluating and
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addressing conservation concerns for
protected species. It is our goal to
remain sensitive to Alaska Native
culture, and to make information
available to Alaska Natives. Our efforts
are guided by the following policies and
directives: (1) The Native American
Policy of the Service (January 20, 2016);
(2) the Alaska Native Relations Policy
(currently in draft form); (3) Executive
Order 13175 (January 9, 2000); (4)
Department of the Interior Secretarial
Orders 3206 (June 5, 1997), 3225
(January 19, 2001), 3317 (December 1,
2011), and 3342 (October 21, 2016); (5)
the Alaska Government-to-Government
Policy (a departmental memorandum
issued January 18, 2001); and (6) the
Department of the Interior’s policies on
consultation with Alaska Native tribes
and organizations.
We have evaluated possible effects of
the specified activities on federally
recognized Alaska Native Tribes and
corporations. Through the ITR process
identified in the MMPA, the applicant
has presented a communication process,
culminating in a POC if needed, with
the Native organizations and
communities most likely to be affected
by their work. The applicant has
engaged these groups in informational
communications. We invited continued
discussion about the proposed ITR.
We received a request for
Government-to-Government
consultation on this ITR from the
Chickaloon Village Traditional Council
(CVTC). When the CVTC and the
Service were not able to schedule a time
and place suitable to both parties to
conduct the consultation, the CVTC
chose to provide written comments to
the Service expressing their views on
the ITR. We have responded to their
comments under Summary of and
Response to Comments and
Recommendations and will continue to
engage with CVTC to determine whether
further consultation is desired.
Civil Justice Reform
The Departmental Solicitor’s Office
has determined that this regulation does
not unduly burden the judicial system
and meets the applicable standards
provided in sections 3(a) and 3(b)(2) of
Executive Order 12988.
Paperwork Reduction Act
This rule includes a revision to an
existing information collection. All
information collections require approval
under the Paperwork Reduction Act of
1995 (44 U.S.C. 3501 et seq.). We may
not conduct or sponsor, and you are not
required to respond to, a collection of
information unless it displays a
currently valid OMB control number.
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Federal Register / Vol. 84, No. 148 / Thursday, August 1, 2019 / Rules and Regulations
The OMB previously reviewed and
approved the information collection
requirements associated with incidental
take of marine mammals in the Beaufort
and Chukchi Seas and assigned OMB
Control Number 1018–0070 (expires
July 31, 2020).
The revised requirements reporting
and/or recordkeeping requirements
identified below were approved by
OMB:
(1) Remove references to 50 CFR 18
subpart I (expired); and
(2) Add references to 50 CFR 18
subpart K.
Title of Collection: Incidental Take of
Marine Mammals During Specified
Activities, 50 CFR 18.27 and 50 CFR 18,
Subparts J and K.
OMB Control Number: 1018–0070.
Form Numbers: None.
Type of Review: Revision of a
currently approved collection.
Respondents/Affected Public: Oil and
gas industry representatives, including
applicants for ITRs and LOAs,
operations managers, and
environmental compliance personnel.
Total Estimated Number of Annual
Respondents: 84.
Total Estimated Number of Annual
Responses: 356.
Estimated Completion Time per
Response: Varies from 1.5 hours to 150
hours, depending on activity.
Total Estimated Number of Annual
Burden Hours: 1,800.
Respondent’s Obligation: Required to
obtain or retain a benefit.
Frequency of Collection: On occasion.
Total Estimated Annual Non-hour
Burden Cost: $200,000.
You may send comments on any
aspect of this information collection to
the Service Information Collection
Clearance Officer, U.S. Fish and
Wildlife Service, 5275 Leesburg Pike,
MS: JAO/1N, Falls Church, VA 22041–
3803 (mail); or [email protected]
(email). Please reference OMB Control
Number 1018–BD63/0070 in the subject
line of your comments
Energy Effects
jspears on DSK3GMQ082PROD with RULES2
Executive Order 13211 requires
agencies to prepare Statements of
Energy Effects when undertaking certain
actions. This rule provides exceptions
from the taking prohibitions of the
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MMPA for entities engaged in the
exploration of oil and gas in Cook Inlet,
Alaska. By providing certainty regarding
compliance with the MMPA, this rule
will have a positive effect on the oil and
gas industry and its activities. Although
the rule requires an applicant to take a
number of actions, these actions have
been undertaken as part of oil and gas
industry operations for many years as
part of similar past regulations in
Alaska. Therefore, this rule is not
expected to significantly affect energy
supplies, distribution, or use and does
not constitute a significant energy
action. No Statement of Energy Effects is
required.
18.135 How the Service will evaluate a
request for a Letter of Authorization
(LOA).
18.136 Prohibited take under a Letter of
Authorization (LOA).
18.137 Mitigation.
18.138 Monitoring.
18.139 Reporting requirements.
18.140 Measures to reduce impacts to
subsistence users.
18.141 Information collection
requirements.
References
Regulations in this subpart apply to
the nonlethal incidental, but not
intentional, take, as defined in 50 CFR
18.3 and under the Marine Mammal
Protection Act (16 U.S.C. 1362), of small
numbers of northern sea otters (Enhydra
lutris kenyoni; hereafter ‘‘otter,’’
‘‘otters,’’ or ‘‘sea otters’’) by Hilcorp
Alaska, LLC, Harvest Alaska, LLC, and
the Alaska Gasline Development
Corporation while engaged in activities
associated with or in support of oil and
gas exploration, development,
production, and transportation in Cook
Inlet, Alaska.
For a list of the references cited in this
rule, see Docket No. FWS–R7–ES–2019–
0012, available at https://
www.regulations.gov.
List of Subjects in 50 CFR Part 18
Administrative practice and
procedure, Alaska, Imports, Indians,
Marine mammals, Oil and gas
exploration, Reporting and
recordkeeping requirements,
Transportation.
Regulation Promulgation
For the reasons set forth in the
preamble, the Service amends part 18,
subchapter B of chapter 1, title 50 of the
Code of Federal Regulations as set forth
below.
PART 18—MARINE MAMMALS
1. The authority citation of 50 CFR
part 18 continues to read as follows:
■
Authority: 16 U.S.C. 1361 et seq.
■
2. Add subpart K to read as follows:
Subpart K—Nonlethal Taking of Marine
Mammals Incidental to Oil and Gas
Activities in Cook Inlet, Alaska
Sec.
18.130 Specified activities covered by this
subpart.
18.131 Specified geographic region where
this subpart applies.
18.132 Dates this subpart is in effect.
18.133 Authorized take allowed under a
Letter of Authorization (LOA).
18.134 Procedure to obtain a Letter of
Authorization (LOA).
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Subpart K—Nonlethal Taking of Marine
Mammals Incidental to Oil and Gas
Activities in Cook Inlet, Alaska
§ 18.130 Specified activities covered by
this subpart.
§ 18.131 Specified geographic region
where this subpart applies.
(a) The specified geographic region is
Cook Inlet, Alaska, south of a line from
the Susitna River Delta to Point
Possession (approximately 61°15′54″ N,
150°41′07″ W, to 61°02′19″ N,
150°23′48″ W, WGS 1984) and north of
a line from Rocky Cove to Coal Cove
(approximately 59°25′56″ N, 153°44′25″
W and 59°23′48″ N, 151°54′28″ W, WGS
1984), excluding Ursus Cove, Iniskin
Bay, Iliamna Bay, and Tuxedni Bay.
(b) The geographic area of this
incidental take regulation (ITR) includes
all Alaska State waters and Outer
Continental Shelf Federal waters within
this area as well as all adjacent rivers,
estuaries, and coastal lands where sea
otters may occur, except for those areas
explicitly excluded in paragraph (a) of
this section.
(c) Map of the Cook Inlet ITR region
follows:
BILLING CODE 4333–15–P
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BILLING CODE 4333–15–C
§ 18.132
Dates this subpart is in effect.
Regulations in this subpart are
effective from August 1, 2019, to August
1, 2024.
jspears on DSK3GMQ082PROD with RULES2
§ 18.133 Authorized take allowed under a
Letter of Authorization (LOA).
(a) To incidentally take marine
mammals pursuant to the regulations in
this subpart,, Hilcorp Alaska, LLC,
Harvest Alaska, LLC, or the Alaska
Gasline Development Corporation
(hereafter ‘‘the applicant’’) must apply
for and obtain an LOA in accordance
with §§ 18.27(f) and 18.134. The
applicant is a U.S. citizen as defined in
§ 18.27(c).
(b) An LOA allows for the nonlethal,
incidental, but not intentional take by
harassment of sea otters during
activities specified in § 18.130 within
the Cook Inlet ITR region described in
§ 18.131.
(c) Each LOA will set forth:
(1) Permissible methods of incidental
take;
(2) Means of effecting the least
practicable adverse impact (i.e.,
mitigation) on the species, its habitat,
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and the availability of the species for
subsistence uses; and
(3) Requirements for monitoring and
reporting.
(d) Issuance of the LOA(s) must be
based on a determination that the level
of take will be consistent with the
findings made for the total allowable
take under these regulations in this
subpart.
§ 18.134 Procedure to obtain a Letter of
Authorization (LOA).
(a) The applicant must submit the
request for authorization to the U.S.
Fish and Wildlife Service (Service)
Alaska Region Marine Mammals
Management Office (MMM), MS 341,
1011 East Tudor Road, Anchorage,
Alaska, 99503, at least 90 days prior to
the start of the proposed activity.
(b) The request for an LOA must
comply with the requirements set forth
in §§ 18.137 through 18.139 and must
include the following information:
(1) A plan of operations that describes
in detail the proposed activity (type of
project, methods, and types and
numbers of equipment and personnel,
etc.), the dates and duration of the
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activity, and the specific locations of
and areas affected by the activity.
Changes to the proposed project without
prior authorization may invalidate an
LOA.
(2) A site-specific marine mammal
monitoring and mitigation plan to
monitor and mitigate the effects of the
activity on sea otters.
(3) An assessment of potential effects
of the proposed activity on subsistence
hunting of sea otters.
(i) The applicant must communicate
with potentially affected subsistence
communities along the Cook Inlet coast
and appropriate subsistence user
organizations to discuss the location,
timing, and methods of proposed
activities and identify any potential
conflicts with subsistence hunting
activities.
(ii) The applicant must specifically
inquire of relevant communities and
organizations if the proposed activity
will interfere with the availability of sea
otters for the subsistence use of those
groups.
(iii) The applicant must include
documentation of consultations with
potentially affected user groups.
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Federal Register / Vol. 84, No. 148 / Thursday, August 1, 2019 / Rules and Regulations
Documentation must include a list of
persons contacted, a summary of input
received, any concerns identified by
community members and hunter
organizations, and the applicant’s
responses to identified concerns.
(iv) If any concerns regarding effects
of the activity on sea otter subsistence
harvest are identified, the applicant will
provide to the Service a Plan of
Cooperation (POC) with specific steps
for addressing those concerns, including
a schedule for ongoing community
engagement and suggested measures
that will be implemented to mitigate
any potential conflicts with subsistence
hunting.
§ 18.135 How the Service will evaluate a
request for a Letter of Authorization (LOA).
(a) The Service will evaluate each
request for an LOA to determine if the
proposed activity is consistent with the
analysis and findings made for these
regulations. Depending on the results of
the evaluation, we may grant the
authorization, add further conditions, or
deny the authorization.
(b) Once issued, the Service may
withdraw or suspend an LOA if the
project activity is modified in a way that
undermines the results of the previous
evaluation, if the conditions of the
regulations in this subpart are not being
substantially complied with, or if the
taking allowed is or may be having more
than a negligible impact on the affected
stock of sea otters or an unmitigable
adverse impact on the availability of sea
otters for subsistence uses.
(c) The Service will make decisions
concerning withdrawals of an LOA,
either on an individual or class basis,
only after notice and opportunity for
public comment in accordance with
§ 18.27(f)(5). The requirement for notice
and public comment will not apply
should we determine that an emergency
exists that poses a significant risk to the
well-being of the species or stocks of sea
otters.
jspears on DSK3GMQ082PROD with RULES2
§ 18.136 Prohibited take under a Letter of
Authorization (LOA).
(a) Except as otherwise provided in
this subpart, prohibited taking is
described in § 18.11 as well as:
Intentional take, lethal incidental take of
sea otters, and any take that fails to
comply with this subpart or with the
terms and conditions of an LOA.
(b) If project activities cause
unauthorized take, the applicant must
take the following actions:
(1) Cease activities immediately (or
reduce activities to the minimum level
necessary to maintain safety) and report
the details of the incident to the Service
MMM within 48 hours; and
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(2) Suspend further activities until the
Service has reviewed the circumstances,
determined whether additional
mitigation measures are necessary to
avoid further unauthorized taking, and
notified the applicant that it may
resume project activities.
§ 18.137
Mitigation.
(a) Mitigation measures for all LOAs.
The applicant, including all personnel
operating under the applicant’s
authority (or ‘‘operators,’’ including
contractors, subcontractors, and
representatives) must undertake the
following activities to avoid and
minimize take of sea otters by
harassment.
(1) Implement policies and
procedures to avoid interactions with
and minimize to the greatest extent
practicable adverse impacts on sea
otters, their habitat, and the availability
of these marine mammals for
subsistence uses.
(2) Develop avoidance and
minimization policies and procedures,
in cooperation with the Service, that
include temporal or spatial activity
restrictions to be used in response to the
presence of sea otters engaged in a
biologically significant activity (e.g.,
resting, feeding, hauling out, mating, or
nursing).
(3) Cooperate with the Service’s
MMM Office and other designated
Federal, State, and local agencies to
monitor and mitigate the impacts of oil
and gas industry activities on sea otters.
(4) Allow Service personnel or the
Service’s designated representative to
board project vessels or visit project
work sites for the purpose of monitoring
impacts to sea otters and subsistence
uses of sea otters at any time throughout
project activities so long as it is safe to
do so.
(5) Designate trained and qualified
protected species observers (PSOs) to
monitor for the presence of sea otters,
initiate mitigation measures, and
monitor, record, and report the effects of
the activities on sea otters. The
applicant is responsible for providing
training to PSOs to carry out mitigation
and monitoring.
(6) Have an approved mitigation and
monitoring plan on file with the Service
MMM and onsite that includes the
following information:
(i) The type of activity and where and
when the activity will occur (i.e., a
summary of the plan of operation);
(ii) Personnel training policies,
procedures, and materials;
(iii) Site-specific sea otter interaction
risk evaluation and mitigation measures;
(iv) Sea otter avoidance and encounter
procedures; and
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37747
(v) Sea otter observation and reporting
procedures.
(7) Contact affected subsistence
communities and hunter organizations
to identify any potential conflicts that
may be caused by the proposed
activities and provide the Service
documentation of communications as
described in § 18.134.
(b) Mitigation measures for in-water
noise-generating work. The applicant
must carry out the following measures:
(1) Mitigation zones. Establish
mitigation zones for project activities
that generate underwater sound levels
≥160 decibels (dB) between 125 hertz
(Hz) and 38 kilohertz (kHz) (hereafter
‘‘noise-generating work’’).
(i) All dB levels are referenced to 1
mPa for underwater sound. All dB levels
herein are dBRMS unless otherwise
noted; dBRMS refers to the root-meansquared dB level, the square root of the
average of the squared sound pressure
level, typically measured over 1 second.
(ii) Mitigation zones must include all
in-water areas where work-related
sound received by sea otters will match
the levels and frequencies in paragraph
(b)(1) of this section. Mitigation zones
will be designated as follows:
(A) An Exclusion Zone (EZ) will be
established throughout all areas where
sea otters may be exposed to sound
levels capable of causing Level A take
as shown in the table in paragraph
(b)(1)(iii) of this section.
(B) The Safety Zone (SZ) is an area
larger than the EZ and will include all
areas within which sea otters may be
exposed to noise levels that will likely
result in Level B take as shown in the
table in paragraph (b)(1)(iii) of this
section.
(C) Both the EZ and SZ will be
centered on the sound source. The
method of estimation and minimum
radius of each zone will be specified in
any LOA issued under § 18.135 and will
be based on onsite sound source
verification (SSV), if available, or the
best available science.
(D) Onsite SSV testing will be
conducted prior to two-dimensional
(2D) and three-dimensional (3D) seismic
surveys.
(E) Seismic surveys (2D and 3D) must
be conducted using equipment that
generates the lowest practicable levels
of underwater sound within the range of
frequencies audible to sea otters.
(iii) Summary of acoustic exposure
thresholds for take of sea otters from
underwater sound in the frequency
range 125 Hz–38 kHz:
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TABLE 1 TO § 18.137(b)(1)(iii)
Injury (Level A) threshold 1
Disturbance (Level B)
threshold
Marine mammals
Sea otters ...........................................
Impulsive
Non-impulsive
232 dB peak; 203 dB SELCUM .........
219 dB SELCUM ................................
All
160 dBRMS.
1 Based
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on acoustic criteria for otariid pinnipeds from the National Marine Fisheries Service. Sound source types are separated into impulsive
(e.g., seismic, pipe driving, sub-bottom profiler) and non-impulsive (drilling, water jet) and require estimation of the distance to the peak received
sound pressure level (peak) and 24-hr cumulative sound exposure level (SELCUM).
(2) Monitoring. Designate trained and
qualified PSOs or ‘‘observers’’ to
monitor for the presence of sea otters in
mitigation zones, initiate mitigation
measures, and record and report the
effects of project work on otters for all
noise-generating work.
(3) Mitigation measures for sea otters
in mitigation zones. The following
actions will be taken in response to
otters in mitigation zones:
(i) Sea otters that are under no visible
distress within the SZ must be
monitored continuously. Power down,
shut down, or maneuver away from the
sea otter if practicable to reduce sound
received by the animal. Maintain 100-m
(301-ft) separation distance whenever
possible. Exposures in this zone are
counted as one Level B take per animal
per day.
(ii) When sea otters are observed
within or approaching the EZ, noisegenerating work as defined in paragraph
(b)(1) of this section must be
immediately shut down or powered
down to reduce the size of the zone
sufficiently to exclude the animal from
the zone. Vessel speed or course may be
altered to achieve the same task.
Exposures in this zone are counted as
one Level A take per animal per day.
(iii) When sea otters are observed in
visible distress (for example, vocalizing,
repeatedly spy-hopping, or fleeing),
noise-generating work as defined in
paragraph (b)(1) of this section must be
immediately shut down or powered
down to reduce the size of the zone
sufficiently to exclude the animal from
the zone.
(iv) Following a shutdown, the noisegenerating activity will not resume until
the sea otter has cleared the EZ. The
animal will be considered to have
cleared the EZ if it is visually observed
to have left the EZ or has not been seen
within the EZ for 30 minutes or longer.
(4) Ramp-up procedures. Prior to
noise-generating work, a ‘‘ramp-up’’
procedure must be used to increase the
levels of underwater sound from noisegenerating work at a gradual rate.
(i) Seismic surveys: A ramp-up will be
used at the initial start of airgun
operations and prior to restarting after
any period greater than 10 minutes
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without airgun operations, including a
power-down or shutdown event
(described in paragraphs (b)(6) and (7)
of this section). During geophysical
work, the number and total volume of
airguns will be increased incrementally
until the full volume is achieved. The
rate of ramp-up will be no more than 6
dB per 5-minute period. Ramp-up will
begin with the smallest gun in the array
that is being used for all airgun array
configurations. During the ramp-up, the
applicable mitigation zones (based on
type of airgun and sound levels
produced) must be maintained. It will
not be permissible to ramp up the full
array from a complete shutdown in
thick fog or at other times when the
outer part of the EZ is not visible. Rampup of the airguns will not be initiated if
a sea otter is sighted within the EZ at
any time.
(ii) Pile/pipe driving: A ramp-up of
the hammering will precede each day’s
pipe/pile driving activities or if pipe/
pile driving has ceased for more than 1
hour. The EZ will be determined clear
of sea otters 30 minutes prior to a rampup to ensure no sea otters are within or
entering the EZ. Initial hammering starts
will not begin during periods of poor
visibility (e.g., night, fog, wind) when
the entire EZ is not visible. The rampup procedure for impact hammers
involves initially starting with three soft
strikes at 40 percent energy, followed by
a 1-minute waiting period followed by
two subsequent three-strike sets. For
vibratory hammers, initial noise
generation will be limited to 15 seconds
at a reduced energy level, followed by
a 1-minute waiting period. This cycle
will be repeated two additional times.
Monitoring will occur during all
hammering sessions.
(iii) All activities: Any shutdown due
to sea otters sighted within the EZ must
be followed by a 30-minute all-clear
period and then a standard full rampup. Any shutdown for other reasons
resulting in the cessation of the sound
source for a period greater than 30
minutes must also be followed by full
ramp-up procedures. If otters are
observed during a ramp-up effort or
prior to startup, a PSO must record the
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observation and monitor the animal’s
position until it moves out of visual
range. Noise-generating work may
commence if, after a full and gradual
effort to ramp up the underwater sound
level, the otter is outside of the EZ and
does not show signs of visible distress
(for example, vocalizing, repeatedly spyhopping, or fleeing).
(5) Startup procedures. (i) Visual
monitoring must begin at least 30
minutes prior to, and continue
throughout, ramp-up efforts.
(ii) Visual monitoring must continue
during all noise-generating work
occurring in daylight hours.
(6) Power-down procedures. A powerdown procedure involves reducing the
volume of underwater sound generated
to prevent an otter from entering the EZ.
(i) Whenever a sea otter is detected
outside the EZ and, based on its
position and motion relative to the
noise-generating work, appears likely to
enter the EZ but has not yet done so,
operators may reduce power to noisegenerating equipment as an alternative
to a shutdown.
(ii) Whenever a sea otter is detected
in the SZ, an operator may power down
when practicable to reduce Level B take.
(iii) During a power-down of seismic
work, the number of airguns in use may
be reduced, such that the EZ is reduced,
making the sea otters unlikely to enter
the EZ. A mitigation airgun (airgun of
small volume such as the 10-in3 gun)
will be operated continuously during a
power-down of seismic work.
(iv) After a power-down, noisegenerating work will not resume until
the sea otter has cleared the applicable
EZ. The animal will be considered to
have cleared the applicable zone if it is
visually observed to have left the EZ
and has not been seen within the zone
for 30 minutes.
(7) Shutdown procedure. A shutdown
occurs when all noise-generating work
is suspended.
(i) Noise-generating work will be shut
down completely if a sea otter enters the
EZ.
(ii) The shutdown procedure will be
accomplished within several seconds of
the determination that a sea otter is
either in or about to enter the EZ or as
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soon as practicable considering worker
safety and equipment integrity.
(iii) Noise-generating work will not
proceed until all sea otters have cleared
the EZ and the PSOs on duty are
confident that no sea otters remain
within the EZ. An otter will be
considered to have cleared the EZ if it
is visually observed to have left the EZ
or has not been seen within the zone for
30 minutes.
(iv) Visual monitoring must continue
for 30 minutes after use of the acoustic
source ceases or the sun sets, whichever
is later.
(8) Emergency shutdown. If
observations are made or credible
reports are received that one or more sea
otters are within the area of noisegenerating work and are indicating
acute distress associated with the work,
such as any injury due to seismic noise
or persistent vocalizations indicating
separation of mother from pup, the work
will be immediately shut down and the
Service contacted. Work will not be
restarted until review and approval by
the Service.
(9) To ensure the proposed activities
remain consistent with the estimated
take of sea otters, operators may not
conduct 3D seismic surveys where
doing so will generate underwater noise
levels that are likely to exceed acoustic
exposure thresholds within areas of
estimated sea otter densities greater than
0.026 otters per km. Maps of the areas
will be provided to 3D seismic operators
and may be adjusted based on SSV
results. This does not apply to 2D
seismic surveys.
(c) Mitigation for all in-water
construction and demolition activity. (1)
The applicant must implement a
minimum EZ of a 10-m radius around
the in-water construction and
demolition. If a sea otter comes within
or approaches the EZ, such operations
must cease. A larger EZ may be required
for some activities, such as blasting, and
will be specified in the LOA.
(2) All work in intertidal areas shall
be conducted during low tide when the
site is dewatered to the maximum extent
practicable.
(3) The applicant must evaluate
alternatives to pile-supported facilities.
If no practicable alternative exists, the
applicant must then evaluate the use of
sound-attenuation devices such as pile
caps and cushions, bubble curtains, and
dewatered cofferdams during
construction. The Service may require
sound-attenuation devices or
alternatives to pile-supported designs.
(d) Measures for vessel-based
activities. (1) Vessel operators must take
every precaution to avoid harassment of
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sea otters when a vessel is operating
near these animals.
(2) Vessels must remain at least 500
m from rafts of otters unless safety is a
factor.
(3) Vessels must reduce speed and
maintain a distance of 100 m (328 ft)
from all sea otters unless safety is a
factor.
(4) Vessels must not be operated in
such a way as to separate members of
a group of sea otters from other
members of the group.
(5) When weather conditions require,
such as when visibility drops, vessels
must adjust speed accordingly to avoid
the likelihood of injury to sea otters.
(6) Vessels in transit and support
vessels must use established navigation
channels or commonly recognized
vessel traffic corridors, and must avoid
alongshore travel in shallow water (<20
m) whenever practicable.
(7) All vessels must avoid areas of
active or anticipated subsistence
hunting for sea otters as determined
through community consultations.
(8) Vessel operators must be provided
written guidance for avoiding collisions
and minimizing disturbances to sea
otters. Guidance will include measures
identified in paragraphs (d)(1) through
(7) of this section.
(e) Mitigation measures for aircraft
activities. (1) Aircraft must maintain a
minimum altitude of 305 m (1,000 ft) to
avoid unnecessary harassment of sea
otters, except during takeoff and
landing, and when a lower flight
altitude is necessary for safety due to
weather or restricted visibility.
(2) Aircraft must not be operated in
such a way as to separate members of
a group of sea otters from other
members of the group.
(3) All aircraft must avoid areas of
active or anticipated subsistence
hunting for sea otters as determined
through community consultations.
(4) Unmanned aerial systems or
drones must not cause take by
harassment of sea otters. Measures for
avoidance of take may be required in an
LOA, and may include maintaining a
minimum altitude and horizontal
distance no less than 100 m away from
otters, conducting continuous visual
monitoring by PSOs, and ceasing
activities in response to sea otter
behaviors indicating any reaction to
drones.
§ 18.138
Monitoring.
(a) Operators shall work with PSOs to
apply mitigation measures, and shall
recognize the authority of PSOs, up to
and including stopping work, except
where doing so poses a significant safety
risk to personnel.
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37749
(b) Duties of PSOs include watching
for and identifying sea otters, recording
observation details, documenting
presence in any applicable monitoring
zone, identifying and documenting
potential harassment, and working with
operators to implement all appropriate
mitigation measures.
(c) A sufficient number of PSOs will
be available to meet the following
criteria: 100 percent monitoring of EZs
during all daytime periods of
underwater noise-generating work; a
maximum of 4 consecutive hours on
watch per PSO; a maximum of
approximately 12 hours on watch per
day per PSO.
(d) All PSOs will complete a training
course designed to familiarize
individuals with monitoring and data
collection procedures. A field crew
leader with prior experience as a sea
otter observer will supervise the PSO
team. Initially, new or inexperienced
PSOs will be paired with experienced
PSOs so that the quality of marine
mammal observations and data
recording is kept consistent. Resumes
for candidate PSOs will be made
available for the Service to review.
(e) Observers will be provided with
reticule binoculars (10x42), big-eye
binoculars or spotting scopes (30x),
inclinometers, and range finders. Field
guides, instructional handbooks, maps
and a contact list will also be made
available.
(f) Observers will collect data using
the following procedures:
(1) All data will be recorded onto a
field form or database.
(2) Global positioning system data, sea
state, wind force, and weather will be
collected at the beginning and end of a
monitoring period, every hour in
between, at the change of an observer,
and upon sightings of sea otters.
(3) Observation records of sea otters
will include date; time; the observer’s
locations, heading, and speed (if
moving); weather; visibility; number of
animals; group size and composition
(adults/juveniles); and the location of
the animals (or distance and direction
from the observer).
(4) Observation records will also
include initial behaviors of the sea
otters, descriptions of project activities
and underwater sound levels being
generated, the position of sea otters
relative to applicable monitoring and
mitigation zones, any mitigation
measures applied, and any apparent
reactions to the project activities before
and after mitigation.
(5) For all otters in or near a
mitigation zone, observers will record
the distance from the vessel to the sea
otter upon initial observation, the
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duration of the encounter, and the
distance at last observation in order to
monitor cumulative sound exposures.
(6) Observers will note any instances
of animals lingering close to or traveling
with vessels for prolonged periods of
time.
§ 18.139
Reporting requirements.
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(a) Operators must notify the Service
at least 48 hours prior to
commencement of activities.
(b) Weekly reports will be submitted
to the Service during in-water seismic
activities. The reports will summarize
project activities, monitoring efforts
conducted by PSOs, the number of sea
otters detected, the number exposed to
sound levels greater than 160 dB, SSV
results, and descriptions of all
behavioral reactions of sea otters to
project activities.
(c) Monthly reports will be submitted
to the Service MMM for all months
during which noise-generating work
takes place. The monthly report will
contain and summarize the following
information: Dates, times, weather, and
sea conditions (including Cook Inlet
marine state and wind force) when sea
otters were sighted; the number,
location, distance from the sound
source, and behavior of the otters; the
associated project activities; and a
description of the implementation and
effectiveness of mitigation measures
with a discussion of any specific
behaviors the otters exhibited in
response to mitigation.
(d) A final report will be submitted to
the Service within 90 days after the
expiration of each LOA. It will include
the following items:
(1) Summary of monitoring efforts
(hours of monitoring, activities
monitored, number of PSOs, and, if
requested by the Service, the daily
monitoring logs).
(2) All project activities will be
described, along with any additional
work yet to be done. Factors influencing
visibility and detectability of marine
mammals (e.g., sea state, number of
observers, and fog and glare) will be
discussed.
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(3) The report will also address factors
affecting the presence and distribution
of sea otters (e.g., weather, sea state, and
project activities). An estimate will be
included of the number of sea otters
exposed to noise at received levels
greater than or equal to 160 dB (based
on visual observation).
(4) The report will describe changes
in sea otter behavior resulting from
project activities and any specific
behaviors of interest.
(5) It will provide a discussion of the
mitigation measures implemented
during project activities and their
observed effectiveness for minimizing
impacts to sea otters. Sea otter
observation records will be provided to
the Service in the form of electronic
database or spreadsheet files.
(6) The report will also evaluate the
effectiveness of the POC (if applicable)
for preventing impacts to subsistence
users of sea otters, and it will assess any
effects the operations may have had on
the availability of sea otters for
subsistence harvest.
(e) All reports shall be submitted by
email to [email protected].
(f) Injured, dead, or distressed sea
otters that are not associated with
project activities (e.g., animals known to
be from outside the project area,
previously wounded animals, or
carcasses with moderate to advanced
decomposition or scavenger damage)
must be reported to the Service within
24 hours of the discovery to either the
Service MMM (1–800–362–5148,
business hours); or the Alaska SeaLife
Center in Seward (1–888–774–7325, 24
hours a day); or both. Photographs,
video, location information, or any other
available documentation shall be
provided to the Service.
(g) Operators must notify the Service
upon project completion or end of the
work season.
§ 18.140 Measures to reduce impacts to
subsistence users.
(a) Prior to conducting the work, the
applicant will take the following steps
to reduce potential effects on
subsistence harvest of sea otters:
(1) Avoid work in areas of known sea
otter subsistence harvest;
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(2) Discuss the planned activities with
subsistence stakeholders including Cook
Inlet villages, traditional councils, and
the Cook Inlet Regional Citizens
Advisory Council;
(3) Identify and work to resolve
concerns of stakeholders regarding the
project’s effects on subsistence hunting
of sea otters; and
(b) If any unresolved or ongoing
concerns remain, develop a POC in
consultation with the Service and
subsistence stakeholders to address
these concerns. The POC must include
a schedule for ongoing community
engagement and specific measures for
mitigating any potential conflicts with
subsistence hunting.
§ 18.141 Information collection
requirements.
(a) We may not conduct or sponsor,
and a person is not required to respond
to, a collection of information unless it
displays a currently valid Office of
Management and Budget (OMB) control
number. OMB has approved the
collection of information contained in
this subpart and assigned OMB control
number 1018–0070. The applicant must
respond to this information collection
request to obtain a benefit pursuant to
section 101(a)(5) of the Marine Mammal
Protection Act. We will use the
information to:
(1) Evaluate the application and
determine whether or not to issue
specific LOAs; and
(2) Monitor impacts of activities and
effectiveness of mitigation measures
conducted under the LOAs.
(b) Comments regarding the burden
estimate or any other aspect of this
requirement must be submitted to the
Information Collection Clearance
Officer, U.S. Fish and Wildlife Service,
at the address listed in 50 CFR part 2.1.
Dated: July 18, 2019.
Karen Budd-Falen,
Deputy Solicitor for Parks and Wildlife,
Exercising the Authority of the Assistant
Secretary for Fish and Wildlife and Parks.
[FR Doc. 2019–16279 Filed 7–26–19; 4:15 pm]
BILLING CODE 4333–15–P
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| File Type | application/pdf |
| File Modified | 2019-08-01 |
| File Created | 2019-08-01 |