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Title 50Chapter IISubchapter CPart 217 → Subpart Q


Title 50: Wildlife and Fisheries
PART 217—REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS INCIDENTAL TO SPECIFIED ACTIVITIES


Subpart Q—Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Oil and Gas Activities in Cook Inlet, Alaska.


Contents
§217.160   Specified activity and specified geographical region.
§217.161   Effective dates.
§217.162   Permissible methods of taking.
§217.163   Prohibitions.
§217.164   Mitigation requirements.
§217.165   Requirements for monitoring and reporting.
§217.166   Letters of Authorization.
§217.167   Renewals and modifications of Letters of Authorization and adaptive management.
§§217.168--217.169   [Reserved]

Source: 84 FR 37502, July 31, 2019, unless otherwise noted.

Effective Date Note: At 84 FR 37502, July 31, 2019, subpart Q was added, effective from July 30, 2019, to July 30, 2024.

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§217.160   Specified activity and specified geographical region.

(a) Regulations in this subpart apply only to Hilcorp Alaska LLC (Hilcorp) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to the activities described in paragraph (c) of this section.

(b) The taking of marine mammals by Hilcorp may be authorized in Letters of Authorization (LOAs) only if it occurs within the action area defined in Cook Inlet, Alaska.

(c) The taking of marine mammals by Hilcorp is only authorized if it occurs incidental to Hilcorp's oil and gas activities including use of seismic airguns, sub-bottom profiler, vertical seismic profiling, pile driving, conductor pipe driving, and water jets.

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§217.161   Effective dates.

Regulations in this subpart are effective July 30, 2019, through July 30, 2024.

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§217.162   Permissible methods of taking.

Under LOAs issued pursuant to §§216.106 of this chapter and 217.166, the Holder of the LOAs (hereinafter “Hilcorp”) may incidentally, but not intentionally, take marine mammals within the area described in §217.160(b) by Level A harassment and Level B harassment associated with oil and gas activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOAs.

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§217.163   Prohibitions.

Notwithstanding takings contemplated in §217.162 and authorized by LOAs issued under §§216.106 of this chapter and 217.166, no person in connection with the activities described in §217.160 may:

(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§216.106 of this chapter and 217.166;

(b) Take any marine mammal not specified in such LOAs;

(c) Take any marine mammal specified in such LOAs in any manner other than as specified;

(d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or

(e) Take a marine mammal specified in such LOAs if NMFS determines such taking results in an unmitigable adverse impact on the availability of such species or stock of marine mammal for taking for subsistence uses.

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§217.164   Mitigation requirements.

When conducting the activities identified in §217.160(c), the mitigation measures contained in any LOAs issued under §§216.106 of this chapter and 217.166 must be implemented. These mitigation measures must include but are not limited to:

(a) Hilcorp must conduct a sound source verification (SSV) for 3D seismic and sub-bottom profiler use. Results of this SSV must be sent to NMFS and mitigation and monitoring zones may be adjusted based on the results of the SSV.

(b) If any marine mammal species for which take is not authorized are sighted within or entering the relevant zones within which they are be exposed to sound above the 120 dB re 1 µPa (rms) threshold for continuous (e.g., vibratory pile-driving, drilling) sources or the 160 dB re 1 µPa (rms) threshold for non-explosive impulsive (e.g., seismic airguns) or intermittent (e.g., scientific sonar) sources, Hilcorp must take appropriate action to avoid such exposure (e.g., by altering speed or course or by shutdown of the sound source).

(c) If the allowable number of takes in an LOA listed for any marine mammal species is met or exceeded, Hilcorp must immediately cease survey operations involving the use of active sound source(s), record the observation, and notify NMFS Office of Protected Resources.

(d) Hilcorp must notify NMFS Office of Protected Resources at least 48 hours prior to the start of oil and gas activities each year.

(e) Hilcorp must conduct briefings as necessary between vessel crews, marine mammal monitoring team, and other relevant personnel prior to the start of all survey activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.

(f) Hilcorp must establish monitoring and exclusion zones.

(1) For all relevant in-water activity, Hilcorp must implement shutdown zones/exclusion zones (EZs) with radial distances as identified in any LOA issued under §§216.106 of this chapter and 217.166. If a marine mammal is sighted within or entering the EZ, such operations must cease.

(2) For all relevant in-water activity, Hilcorp must designate safety zones for monitoring (SZ) with radial distances as identified in any LOA issued under §§216.106 of this chapter and 217.166 and record and report occurrence of marine mammals within these zones.

(3) For all relevant in-water activity, Hilcorp must implement a minimum EZ of a 10 m radius around the source.

(g) Hilcorp must implement shutdown measures.

(1) Hilcorp must deploy protected species observers (PSO) and PSOs must be posted to monitor marine mammals within the monitoring zones during use of active acoustic sources and pile driving in water.

(2) Monitoring must begin 15 minutes prior to initiation of stationary source activity and 30 minutes prior to initiation of mobile source activity, occur throughout the time required to complete the activity, and continue through 30 minutes post-completion of the activity. Pre-activity monitoring must be conducted to ensure that the EZ is clear of marine mammals, and activities may only commence once observers have declared the EZ clear of marine mammals. In the event of a delay or shutdown of activity resulting from marine mammals in the EZ, the marine mammals' behavior must be monitored and documented.

(3) A determination that the EZ is clear must be made during a period of good visibility (i.e., the entire EZ must be visible to the naked eye).

(4) If a marine mammal is observed within or entering the EZ, Hilcorp must halt all noise producing activities for which take is authorized at that location. If activity is delayed due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily left and been visually confirmed outside the EZ or the required amount of time (15 for porpoises and pinnipeds, 30 minutes for cetaceans) have passed without re-detection of the animal.

(5) Monitoring must be conducted by trained observers, who must have no other assigned tasks during monitoring periods. Trained observers must be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator. Hilcorp must adhere to the following additional observer qualifications:

(i) Hilcorp must use independent, dedicated, trained visual PSOs, meaning that the PSOs must be employed by a third-party observer provider, must not have tasks other than to conduct observational effort, collect data, and communicate with and instruct relevant vessel crew with regard to the presence of protected species and mitigation requirements (including brief alerts regarding maritime hazards), and must have successfully completed an approved PSO training course appropriate for their designated task.

(ii) Hilcorp must submit PSO resumes for NMFS review and approval. Resumes must be accompanied by a relevant training course information packet that includes the name and qualifications (i.e., experience, training completed, or educational background) of the instructor(s), the course outline or syllabus, and course reference material as well as a document stating successful completion of the course. NMFS will approve or disapprove PSOs within one week from the time that the necessary information is received by NMFS, after which PSOs meeting the minimum requirements will automatically be considered approved.

(iii) To the maximum extent practicable, the lead PSO must devise the duty schedule such that experienced PSOs are on duty with those PSOs with appropriate training but who have not yet gained relevant experience.

(6) Operations must shut down completely if a beluga whale is sighted within the relevant Level B harassment isopleth.

(h) Hilcorp must implement soft start techniques for impact pile driving.

(1) Hilcorp must conduct an initial set of three strikes from the impact hammer 30 seconds apart, at 40 percent energy, followed by a 1-minute waiting period, then two subsequent three strike sets.

(2) Soft start is required for any impact driving, including at the beginning of the day, after 30 minutes of pre-activity monitoring, and at any time following a cessation of impact pile driving of 30 minutes or longer.

(i) Hilcorp must implement ramp ups for seismic airgun use.

(1) Ramp up must be used at the start of airgun operations, including after a shutdown, and after any period greater than 30 minutes in duration without airgun operations.

(2) The rate of ramp up must be no more than 6 dB per 5-minute period.

(3) Ramp up must begin with the smallest gun in the array that is being used for all airgun array configurations.

(4) During the ramp up, the EZ for the full airgun array must be implemented.

(5) If the complete EZ has not been visible for at least 30 minutes prior to the start of operations, ramp up must not commence.

(6) Ramp up of the airguns must not be initiated if a marine mammal is sighted within or entering the EZ at any time.

(j) Hilcorp must use aircraft for mitigation.

(1) Hilcorp must use aircraft daily to survey the planned seismic survey area prior to the start of seismic surveying. Surveying must not begin unless the aerial flights confirm the planned survey area for that day is clear of beluga whales. If weather conditions make flying before the start of seismic in daylight unsafe, Hilcorp may delay the aerial survey until weather conditions improve and it is safe to fly.

(2) If beluga whales are sighted during flights, start of seismic surveying must be delayed until it is confirmed the area is free of beluga whales.

(k) Hilcorp must implement exclusion zones for beluga whales.

(1) Hilcorp must not operate with noise producing activity within 10 miles (16 km) of the mean higher high water (MHHW) line of the Susitna Delta (Beluga River to the Little Susitna River) between April 15 and October 15. Hilcorp must not conduct seismic activity within the Level B isopleth distance of the mouth of the Kasilof River between January 1 and May 31.

(m) Hilcorp must abide by all mitigation measures described in the Biological Opinion for Hilcorp Alaska and Harvest Alaska Oil and Gas Activities, Cook Inlet, Alaska.

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§217.165   Requirements for monitoring and reporting.

(a) Marine mammal monitoring protocols. Hilcorp must conduct briefings between construction supervisors and crews and the observer team prior to the start of all pile driving and removal activities, and when new personnel join the work. Trained observers must receive a general environmental awareness briefing conducted by Hilcorp staff. At minimum, training must include identification of marine mammals that may occur in the project vicinity and relevant mitigation and monitoring requirements. All observers must have no other construction-related tasks while conducting monitoring.

(b) Visibility. Activities must only commence when the entire exclusion zone (EZ) is visible to the naked eye and can be adequately monitored. If conditions (e.g., fog) prevent the visual detection of marine mammals, activities must not be initiated. For activities other than seismic surveying, activity must be halted in low visibility but vibratory pile driving or removal will be allowed to continue if started in good visibility.

(c) Monitoring periods. Monitoring must begin 15 minutes prior to initiation of stationary source activity and 30 minutes prior to initiation of mobile source activity, occur throughout the time required to complete the activity, and continue through 30 minutes post-completion of the activity. Pre-activity monitoring must be conducted to ensure that the EZ is clear of marine mammals, and activities may only commence once observers have declared the EZ clear of marine mammals. In the event of a delay or shutdown of activity resulting from marine mammals in the EZ, the animals' behavior must be monitored and documented.

(d) Placement of PSOs. (1) At least one on-duty PSO must be placed on the source vessel (for seismic and geohazard surveys) or drill rig (for pipe driving and VSP).

(2) During seismic surveys a mitigation vessel must be used with at least one on-duty PSO aboard the vessel monitoring for marine mammal occurrence.

(e) Reporting measures—(1) Take limits. Hilcorp must contact NMFS when they have reached the limit of authorized takes of beluga whale within a year.

(2) Monthly reports. Monthly reports must be submitted to NMFS for all months during which in-water seismic activities take place. The monthly report must contain and summarize the following information: Dates, times, locations, heading, speed, weather, sea conditions (including Beaufort sea state and wind force), and associated activities during all seismic operations and marine mammal sightings; Species, number, location, distance from the vessel, and behavior of any sighted marine mammals, as well as associated seismic activity (number of power-downs and shutdowns), observed throughout all monitoring activities; An estimate of the number (by species) exposed to the seismic activity (based on visual observation) at received levels greater than or equal to the NMFS thresholds discussed above with a discussion of any specific behaviors those individuals exhibited; A description of the implementation and effectiveness of the terms and conditions of the Biological Opinion's Incidental Take Statement (ITS) and mitigation measures of the LOA.

(3) Annual reports. (i) Hilcorp must submit an annual report within 90 days after each activity year, starting from the date when the LOA is issued (for the first annual report) or from the date when the previous annual report ended.

(ii) Annual reports will detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed during the period of the report.

(iii) NMFS will provide comments within 30 days after receiving annual reports, and Hilcorp must address the comments and submit revisions within 30 days after receiving NMFS comments. If no comment is received from the NMFS within 30 days, the annual report will be considered completed.

(4) Final report. (i) Hilcorp must submit a comprehensive summary report to NMFS not later than 90 days following the conclusion of marine mammal monitoring efforts described in this subpart.

(ii) The final report must synthesize all data recorded during marine mammal monitoring, and estimate the number of marine mammals that may have been harassed through the entire project.

(iii) NMFS will provide comments within 30 days after receiving this report, and Hilcorp must address the comments and submit revisions within 30 days after receiving NMFS comments. If no comment is received from the NMFS within 30 days, the final report will be considered as final.

(5) Reporting of injured or dead marine mammals. (i) In the event that personnel involved in the survey activities discover an injured or dead marine mammal, Hilcorp must report the incident to the Office of Protected Resources (OPR), NMFS (301-427-8401) and to regional stranding network (877- 925-7773) as soon as feasible. The report must include the following information:

(A) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);

(B) Species identification (if known) or description of the animal(s) involved;

(C) Condition of the animal(s) (including carcass condition if the animal is dead);

(D) Observed behaviors of the animal(s), if alive;

(E) If available, photographs or video footage of the animal(s); and

(F) General circumstances under which the animal was discovered.

(ii) In the event of a ship strike of a marine mammal by any vessel involved in the survey activities, Hilcorp must report the incident to OPR, NMFS and to regional stranding networks as soon as feasible. The report must include the following information:

(A) Time, date, and location (latitude/longitude) of the incident;

(B) Species identification (if known) or description of the animal(s) involved;

(C) Vessel's speed during and leading up to the incident;

(D) Vessel's course/heading and what operations were being conducted (if applicable);

(E) Status of all sound sources in use;

(F) Description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike;

(G) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility) immediately preceding the strike;

(H) Estimated size and length of animal that was struck;

(I) Description of the behavior of the marine mammal immediately preceding and following the strike;

(J) If available, description of the presence and behavior of any other marine mammals immediately preceding the strike;

(K) Estimated fate of the animal (e.g., dead, injured but alive, injured and moving, blood or tissue observed in the water, status unknown, disappeared); and

(L) To the extent practicable, photographs or video footage of the animal(s).

(iii) In the event of a live stranding (or near-shore atypical milling) event within 50 km of the survey operations, where the NMFS stranding network is engaged in herding or other interventions to return animals to the water, the Director of OPR, NMFS (or designee) will advise Hilcorp of the need to implement shutdown procedures for all active acoustic sources operating within 50 km of the stranding. Shutdown procedures for live stranding or milling marine mammals include the following:

(A) If at any time, the marine mammal(s) die or are euthanized, or if herding/intervention efforts are stopped, the Director of OPR, NMFS (or designee) will advise Hilcorp that the shutdown around the animals' location is no longer needed.

(B) Otherwise, shutdown procedures must remain in effect until the Director of OPR, NMFS (or designee) determines and advises Hilcorp that all live animals involved have left the area (either of their own volition or following an intervention).

(C) If further observations of the marine mammals indicate the potential for re-stranding, additional coordination with Hilcorp must occur to determine what measures are necessary to minimize that likelihood (e.g., extending the shutdown or moving operations farther away) and Hilcorp must implement those measures as appropriate.

(iv) If NMFS determines that the circumstances of any marine mammal stranding found in the vicinity of the activity suggest investigation of the association with survey activities is warranted, and an investigation into the stranding is being pursued, NMFS will submit a written request to Hilcorp indicating that the following initial available information must be provided as soon as possible, but no later than 7 business days after the request for information.

(A) Status of all sound source use in the 48 hours preceding the estimated time of stranding and within 50 km of the discovery/notification of the stranding by NMFS; and

(B) If available, description of the behavior of any marine mammal(s) observed preceding (i.e., within 48 hours and 50 km) and immediately after the discovery of the stranding.

(C) In the event that the investigation is still inconclusive, the investigation of the association of the survey activities is still warranted, and the investigation is still being pursued, NMFS may provide additional information requests, in writing, regarding the nature and location of survey operations prior to the time period above.

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§217.166   Letters of Authorization.

(a) To incidentally take marine mammals pursuant to these regulations, Hilcorp must apply for and obtain (LOAs) in accordance with §216.106 of this chapter for conducting the activity identified in §217.160(c).

(b) LOAs, unless suspended or revoked, may be effective for a period of time not to extend beyond the expiration date of these regulations.

(c) An LOA application must be submitted to the Director, Office of Protected Resources, NMFS, by March 1st of the year preceding the desired start date.

(d) An LOA application must include the following information:

(1) \The date(s), duration, and the area(s) where the activity will occur;

(2) The species and/or stock(s) of marine mammals likely to be found within each area;

(3) The estimated number of takes for each marine mammal stock potentially affected in each area for the period of effectiveness of the Letter of Authorization.

(4) An updated Stakeholder Engagement Plan detailing Hilcorp's meetings with stakeholders and any concerns raised that relate to marine mammals or subsistence activities.

(e) In the event of projected changes to the activity or to mitigation, monitoring, reporting (excluding changes made pursuant to the adaptive management provision of §217.97(c)(1)) required by an LOA, Hilcorp must apply for and obtain a modification of LOAs as described in §217.167.

(f) Each LOA must set forth:

(1) Permissible methods of incidental taking;

(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, their habitat, and the availability of the species for subsistence uses; and

(3) Requirements for monitoring and reporting.

(g) Issuance of the LOA(s) must be based on a determination that the level of taking must be consistent with the findings made for the total taking allowable under these regulations.

(h) If NMFS determines that the level of taking is resulting or may result in more than a negligible impact on the species or stocks of such marine mammal, the LOA may be modified or suspended after notice and a public comment period.

(i) Notice of issuance or denial of the LOA(s) must be published in the Federal Register within 30 days of a determination.

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§217.167   Renewals and modifications of Letters of Authorization and adaptive management.

(a) An LOA issued under §§216.106 of this chapter and 217.166 for the activity identified in §217.160(c) may be renewed or modified upon request by the applicant, provided that the following are met:

(1) Notification to NMFS that the activity described in the application submitted under §217.160(a) will be undertaken and that there will not be a substantial modification to the described work, mitigation or monitoring undertaken during the upcoming or remaining LOA period;

(2) Timely receipt (by the dates indicated) of monitoring reports, as required under §217.165(C)(3);

(3) A determination by the NMFS that the mitigation, monitoring and reporting measures required under §217.165(c) and the LOA issued under §§216.106 of this chapter and 217.166, were undertaken and are expected to be undertaken during the period of validity of the LOA.

(b) If a request for a renewal of a Letter of Authorization indicates that a substantial modification, as determined by NMFS, to the described work, mitigation or monitoring undertaken during the upcoming season will occur, NMFS will provide the public a period of 30 days for review and comment on the request as well as the proposed modification to the LOA. Review and comment on renewals of Letters of Authorization are restricted to:

(1) New cited information and data indicating that the original determinations made for the regulations are in need of reconsideration; and

(2) Proposed changes to the mitigation and monitoring requirements contained in these regulations or in the current Letter of Authorization.

(c) A notice of issuance or denial of a renewal of a Letter of Authorization will be published in the Federal Register within 30 days of a determination.

(d) An LOA issued under §§216.16 of this chapter and 217.166 for the activity identified in §217.160 may be modified by NMFS under the following circumstances:

(1) Adaptive management. NMFS, in response to new information and in consultation with Hilcorp, may modify the mitigation or monitoring measures in subsequent LOAs if doing so creates a reasonable likelihood of more effectively accomplishing the goals of mitigation and monitoring set forth in the preamble of these regulations.

(i) Possible sources of new data that could contribute to the decision to modify the mitigation or monitoring measures include:

(A) Results from Hilcorp's monitoring from the previous year(s).

(B) Results from marine mammal and/or sound research or studies.

(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs.

(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of proposed LOA in the Federal Register and solicit public comment.

(2) Withdrawal or suspension. NMFS will withdraw or suspend an LOA if, after notice and opportunity for public comment, NMFS determines these regulations are not being substantially complied with or that the taking allowed is or may be having more than a negligible impact on an affected species or stock specified in §217.162(b) or an unmitigable adverse impact on the availability of the species or stock for subsistence uses. The requirement for notice and comment will not apply if NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals. Notice will be published in the Federal Register within 30 days of such action.

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§§217.168--217.169   [Reserved]

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