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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 990901241-9247-01; I.D. 123198B]

RIN 0648-AM09

Taking and Importing Marine Mammals; Taking Marine Mammals

Incidental to Construction and Operation of Offshore Oil and Gas

Platforms in the Beaufort Sea

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS has received a revised application for a Letter of

Authorization (LOA) from BP Exploration (Alaska), 900 East Benson

Boulevard, Anchorage, AK 99519 (BPXA) to take small numbers of marine

mammals incidental to construction and operation of offshore oil and

gas platforms at the Northstar development in the Beaufort Sea in state

and Federal waters and a petition from

[[Page 57011]]

BPXA for regulations governing such take. By this document, NMFS is

proposing regulations to govern that take. In order to implement these

regulations, NMFS must determine that these takings will have a

negligible impact on the affected species and stocks of marine mammals,

and will not have an unmitigable adverse impact on the availability of

the species or stock(s) for subsistence uses. NMFS invites comment on

the petition/application, and the regulations.

DATES: Comments and information must be postmarked no later than

December 21, 1999. Comments on the collection of information

requirement must be received no later than December 21, 1999.

ADDRESSES: Comments should be addressed to Donna Wieting, Chief, Marine

Mammal Conservation Division, Office of Protected Resources, National

Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD

20910-3226. A copy of the updated application, Technical Monitoring

Plan, Biological Opinion and a list of the references used in this

document may be obtained by writing to this address or by telephoning

one of the contacts listed here (see FOR FURTHER INFORMATION CONTACT).

Comments regarding the burden-hour estimate or any other aspect of the

collection of information requirement contained in this rule should be

sent to the preceding individual and to the Office of Information and

Regulatory Affairs, Office of Management and Budget (OMB), Attention:

NOAA Desk Officer, Washington, D.C. 20503.

A copy of the final environmental impact statement (FEIS) for

Northstar may be obtained by contacting the U.S. Army Engineer

District, Alaska, Regulatory Branch, P.O. Box 898, Anchorage, AK 99506-

0898.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead (301) 713-

2055, Brad Smith, (907) 271-5006.

SUPPLEMENTARY INFORMATION:

Background

Section 101(a)(5)(A) of the Marine Mammal Protection Act (16

U.S.C. 1361 et seq.) (MMPA) directs the Secretary of Commerce

(Secretary) to allow, upon request, the incidental, but not intentional

taking of marine mammals by U.S. citizens who engage in a specified

activity (other than commercial fishing) within a specified

geographical region if certain findings are made and regulations are

issued.

Permission may be granted for periods of 5 years or less if the

Secretary finds that the taking will have a negligible impact on the

species or stock(s) of affected marine mammals, will not have an

unmitigable adverse impact on the availability of the species or

stock(s) for subsistence uses, and regulations are prescribed setting

forth the permissible methods of taking and the requirements pertaining

to the monitoring and reporting of such taking.

Summary of Request

On November 30, 1998, NMFS received an application for LOAs

granting an incidental, small take exemption under section 101(a)(5)(A)

of the MMPA from BPXA to take marine mammals incidental to construction

and operation of offshore oil and gas platforms at the Northstar and

Liberty developments in the Beaufort Sea in state and Federal waters.

On March 1, 1999 (64 FR 9965), NMFS published an advance notice of

proposed rulemaking (ANPR) on the application and invited interested

persons to submit comments, information, and suggestions concerning the

application, and the structure and content of regulations if the

application is accepted. Because of delays in construction during 1999,

and in issuing this proposed rule, on October 1, 1999, BPXA updated

their application to NMFS. This application is available upon request

(see ADDRESSES). Following is a brief description of the proposed scope

of work for the Northstar project. For more detailed descriptions

please refer to the BPXA application. Description of the Activity BPXA

proposes to produce oil from two offshore oil developments, Northstar

and Liberty. These two developments will be the first in the Beaufort

Sea that use a subsea pipeline to transport oil to shore and then into

the Trans-Alaska Pipeline System. The Northstar Unit is located between

2 and 8 miles (mi)(3.2 and 12.9 kilometers (km)) offshore from Pt.

Storkersen, AK. This unit is adjacent to the Prudhoe Bay industrial

complex and is approximately 54 mi (87 km) northeast of Nuiqsut, a

Native Alaskan community.

Construction is scheduled to begin in December 1999, with both

island construction and offshore pipeline installation occurring in

2000. The proposed construction activity includes the construction of

several ice roads, one from West Dock and the Pt. McIntyre drill site

to the Northstar gravel mine, one from the Kuparuk River delta mine

site to Seal Island, and one along the pipeline route to Seal Island.

The gravel-haul road will have a parallel alternate road to transport

service equipment, construction materials and alternate gravel hauling

when maintenance or repair of the main ice road is required. In

addition to these main ice roads it is expected that three to four

access roads will be cleared of snow to allow light vehicle traffic

between the pipeline construction activities and the gravel-haul ice

road. These on-ice access roads will have the snow cleared regularly,

with intermittent flooding to maintain safe traffic conditions.

It is estimated that during the winter approximately 16,800 large-

volume haul trips between the onshore mine site and a reload area in

the vicinity of Egg Island, and 28,500 lighter dump truck trips from

Egg Island to Seal Island will be necessary to transport construction

gravel to Seal Island. An additional 300 truck trips will be necessary

to transport concrete-mat slope protection materials to the island.

Construction of a gravel island work surface for drilling and oil

production facilities, and the construction and installation of two 10

in (0.25 m) pipelines, one to transport crude oil and one for gas for

field injection will take place during the winter and into the open

water season of 2000, while the transport and installation of the drill

rig and associated equipment will occur during the summer, ending

around September 1, 2000. The two pipelines will be buried together in

a single trench. During the summer approximately 90 to 100 barge trips

from Prudhoe Bay or Endicott are expected to support construction.

The operational phase will begin with drilling as early as the

4th quarter of 2000, and will continue for 2 years. Power

will be supplied by diesel generators. This phase of drilling will

temporarily cease in mid-August 2001 to allow installation and start-up

of process facilities. Drilling is expected to resume by November 2001.

Drilling will continue until 23 development wells (15 production, 7 gas

injection) are drilled. After drilling is completed, only production-

related site activities will occur. In order to support operations at

Northstar, the proposed operations activity includes the annual

construction of an ice road from Pt. McIntyre to the shore crossing of

the pipeline and along the pipeline route to Seal Island. Ice roads

will be used to resupply needed equipment, parts, foodstuffs, and

products, and for hauling wastes back to existing facilities. During

the summer, barge trips will be required between West Dock or Endicott

and the island for resupply.

Year-round helicopter access to Northstar is planned for movement

of personnel, foodstuffs and emergency movement of supplies and

equipment.

[[Page 57012]]

Helicopters will fly at an altitude of at least 1,000 ft (305 m),

except for takeoffs, landings, and safe-flight operations.

Comments and Responses

On March 1, 1999 (64 FR 9965), NMFS published an ANPR on BPXA's

application and invited interested persons to submit comments,

information, and suggestions concerning the application and the

structure and content of regulations, if the application is accepted.

During the 30-day comment period on that notice, comments were received

from the Marine Mammal Commission (MMC), Greenpeace Alaska, the Alaska

Eskimo Whaling Commission (AEWC), the North Slope Borough (NSB), and

the Inupiat Community of the Arctic Slope (ICAS). These comments are

addressed here.

In addition to the application for regulations, on August 14, 1998,

NMFS received an application from BPXA requesting a 1-year

authorization for the harassment of small numbers of several species of

marine mammals incidental to construction of the Northstar development

in the Alaskan Beaufort Sea. This application was submitted by BPXA to

ensure that, if construction began during the winter of 1998/99, it

would have an authorization to take marine mammals during the lengthy

period of time for developing and promulgating rulemaking. This

application and NMFS' preliminary determination that the incidental

harassment caused by this activity would have no more than a negligible

impact on small numbers of marine mammals and not have an unmitigable

impact on subsistence needs for these species were published on October

26, 1998 (63 FR 57096), and a 30-day comment period was provided. An

Interim Incidental Harassment Authorization (IHA), limited to ice road

construction at Northstar was issued to BPXA on March 15, 1999 (64 FR

13778, March 22, 1999). That document noted that comments received on

the IHA application would be addressed in a future Federal Register

document. Because NMFS was notified by BPXA that they would not be

proceeding with construction at Northstar during the spring and summer

of 1998, NMFS did not issue an IHA to BPXA for the construction of

Northstar during 1999. Therefore, this document contains the comments

and NMFS' responses to those comments submitted in response to the IHA

application (updated where necessary), in addition to those comments

received during the ANPR. Because two separate actions are being

discussed in this section, dates have been provided in order to clarify

which action is under discussion (11/98 refers to comments on the IHA;

3/99 refers to comments on the ANPR).

Liberty Project Concerns

Comment 1: Several commenters noted that because a Draft

Environmental Impact Statement (DEIS) has not been released by the

Minerals Management Service (MMS), it would be premature to consider

proposing regulations to authorize the taking of marine mammals during

the construction and operation of the Liberty oil and gas development

project.

Response: NMFS agrees. While this Federal Register document

contains generic regulations for the taking of marine mammals

incidental to offshore oil and gas development in the U.S. Beaufort

Sea, the only project under consideration in this rulemaking is the

Northstar project. NMFS will not issue proposed regulations regarding

incidental takes for the Liberty project until after a DEIS has been

released by MMS. This document is scheduled to be released either late

this year or early next year.

Northstar Concerns

Comment 2: The AEWC (3/99) believes it is not in a position to

comment on incidental take regulations relative to Northstar because:

(1) the AEWC is unaware of any final determination regarding the

proposed subsea pipeline route for Northstar; (2) the bowhead whale

subsistence whaling community objects to the proposed pipeline route in

Alternative 5 of the FEIS, and that the AEWC will object to the project

as a whole, if Alternative 5 is selected, since that alternative will

place the subsea pipeline at greater risk of damage from ice and

erosion; and (3) the U.S. Army Corps of Engineers (Corps) reports that

for present and reasonably foreseeable oil production in the Beaufort

Sea, the ``cumulative probability of one or more major oil spills

(greater than 1,000 barrels) is 95.2 percent'' over the next 20 years.

Response: While NMFS has preliminarily determined that either

alternative 2 or 5 will result in no more than a negligible impact on

marine mammals and not have an unmitigable impact on subsistence needs

for marine mammals, the Corps chose Alternative 2, not Alternative 5,

as the preferred action. For discussion on oil spill impacts, please

refer to a discussion on that subject later in this document.

MMPA concerns

Comment 3: The AEWC (3/99) believes that a 30-day comment period

is insufficient for proposed regulations on Beaufort Sea oil and gas

development and production. Therefore, the AEWC requests that the

public comment period for the proposed regulations be no less than 60

days.

Response: NMFS agrees and has extended the normal 45-day comment

period for proposed rules for an additional 15 days for these

regulations. However, in order to complete rulemaking in a timely

manner, and because most issues have been addressed already in the FEIS

issued by the Corps under the National Environmental Policy Act (NEPA),

an extension beyond 60 days is unlikely to be available.

Comment 4: Greenpeace (11/98) states that BPXA's reliance on

harassment and ``take itself'' to displace seals from construction

activities violates the spirit and intent of the MMPA. The MMC (3/99)

notes that BPXA's petition for rulemaking suggests that regulations and

LOAs authorize the intentional hazing (harassment) of whales and seals

to reduce the likelihood of their encountering oil if there is an oil

spill. The MMC wants to ensure that BPXA recognizes that intentional

hazing cannot be authorized under section 101(a)(5)(A) of the MMPA.

Response: Section 101(a)(5)(A) requires NMFS to implement

``regulations setting forth * * * permissible methods of taking

pursuant to such activity, and other means of effecting the least

practicable adverse impact on such species or stock and its habitat * *

*.'' Therefore, if there is an authorization for the incidental

harassment of marine mammals, and that incidental harassment takes

place, the fact that the marine mammmals do not return to the area is

not considered by NMFS to be a violation of the MMPA. In fact, because

certain activities (e.g., ice road construction, oil spills) have some

potential for serious injury or mortality for marine mammals that

remain within the area, NMFS believes that early displacement of these

animals would be to the animals' benefit. When mitigation measures that

lower the potential for marine mammals to be seriously injured or

killed have been identified, those measures, including, when necessary,

intentional harassment measures can be authorized under the appropriate

provision of the MMPA.

Comment 5: Greenpeace (11/98) contends that NMFS artificially

segregated the IHA process. Greenpeace states that the MMPA does not

provide for NMFS to issue ``first-year construction'' and later

``construction and operation.''

[[Page 57013]]

Response: NMFS disagrees. While the MMPA does not provide for this

segregation, it also does not prohibit issuing an IHA in 1 year and

then promulgating regulations for a 5-year authorization. Congress

implemented the IHA process as an expedited procedure recognizing the

time necessary in the Federal Government for the promulgation of

regulations. Congress recognized that NMFS must be afforded some

procedural flexibility in order to streamline the review of small take

authorizations when the taking is limited to incidental harassment(see

MMPA Amendments of 1994. H.R. Rep. No. 103-439, at 29-30, 1994). Even

under an ideal schedule, regulations could not be implemented within

the time period between the release of the DEIS and receipt of a small

take application and the proposed time for ice-road construction in

early winter, 1998/99. This prompted BPXA's IHA application.

Comment 6: Greenpeace (11/98) contends that, because NMFS' IHA

review process took 73 days, instead of the statutory 45 days, NMFS

improperly noticed the proposed action in the Federal Register.

Response: While there is a statutory requirement for NMFS to

publish notice of receipt of an application not later than 45 days

after receipt of an application, that process may be delayed due to

either the adequacy of the application or meeting certain requirements

under the NEPA. In this case, because the supporting NEPA documentation

(i.e., the FEIS for this activity would not be released within the

statutory 120 days of receipt of an IHA application, and because NMFS

determined that it could not issue an IHA to BPXA without this

document, NMFS determined that, because of the complexity of the

activity, a more detailed review could be undertaken than statutorily

allowed by the MMPA.

Comment 7: Greenpeace (3/99) believes that NMFS did not fairly

consider Greenpeace's comments on BPXA's application for an interim IHA

for Northstar construction.

Response: NMFS gave full consideration to Greenpeace's comments

contained in their November 24, 1998, letter when it issued an interim

IHA to BPXA on March 15, 1999 (64 FR 13778, March 22, 1999). As

mentioned previously, NMFS' review of comments submitted on the 1998

IHA application are addressed in responses in various parts of this

document.

Scientific evidence concerns

Comment 8: Greenpeace (3/99) believes that there is an overwhelming

lack of scientific evidence supporting the claim that BPXA's

construction and operation of the Northstar and Liberty projects pose a

negligible impact to marine mammals and do not pose an unmitigable

impact on the availability of marine mammals for subsistence uses.

Greenpeace believes that the Northstar DEIS and FEIS are inadequate for

supporting these claims.

Response: NMFS has reviewed both the DEIS and FEIS prepared by the

Corps on the Northstar project and has determined that that document

contains the best scientific information (and Traditional Knowledge)

available for assessing impacts on marine mammals by the construction

and operation of the Northstar project. As noted later in this

document, NMFS has preliminarily determined that the best scientific

information available indicates that construction and operation of

Northstar will have no more than a negligible impact on marine mammals

and not have an unmitigable adverse impact on subsistence uses of

marine mammals. NMFS will continue to evaluate new information during

this rulemaking period and invites reviewers to submit data or

references on the potential impacts on marine mammals from oil

development on the North Slope.

Small Take Concerns-Ringed Seals

Comment 9: For reasons stated in their letter, including the lack

of current reliable figures for ringed seal populations, Greenpeace

(11/98) contends that it is impossible for NMFS to meet the negligible

impact requirement of the MMPA without current information on the

status of the Beaufort Sea ringed seal population.

Response: NMFS uses the best scientific information available when

making determinations that marine mammal takings are small, that

activities are having no more than a negligible impact on the species

or stock(s) of marine mammals and not having an unmitigable adverse

impact on the availability of the species or stock(s) of marine mammals

for subsistence uses. Hill and DeMaster (1998) indicates that there are

no current population estimates available for ringed seals. However,

such estimates are not critical when takings are expected to be limited

to incidental harassment. Provided the activity itself is not having

more than a negligible impact on the population, population

fluctuations due, for example, to increasing polar bear populations,

global warming and persistent organic pollutants are not critical, but

are considered when making determinations on potential biological

removal (PBR) levels. However, while there are no current population

estimates available, crude population estimates have been made: Kelly

(1988) estimated that 1-1.5 million seals occur in Alaskan waters,

Frost and Lowry (1984) extrapolated a winter population of 40,000

ringed seals from a mean density estimate of 0.4 seals/km2

and estimated that the summer population would be 80,000. Amstrup

(1995) estimated a population size of 326,500 (208,000 in the pack ice

and 118,500 in the shorefast ice).

Because NMFS expects that ringed seals may be harassed, but not

killed as a result of industry activities, knowledge of the species'

local density is more important than a reliable estimate of population

abundance. There are numerous studies that have documented the density

of ringed seals in the Northstar area. ADF&G surveys have shown

densities of 0.33 to 0.66 seals/km2 (0.85 to 1.71 seals/

mi2) (Frost et al., 1997; Corps, 1999) and a 1997 survey in

the Northstar area showed an average density of 0.42 ringed seals/

km2 on landfast ice over water depths of 5-20 m (16.4-65.6

ft) (Miller et al., 1998). Virtually no seals were seen where water

depths were less than 3 m (9.8 ft)(Miller et al., 1998). The Northstar

ringed seal surveys included as part of the monitoring plan will

provide up-to-date, site-specific density estimates at Northstar, and

can be compared with past density estimates. Because these surveys

began in 1997, they will provide a baseline against which results of

future seal surveys during and after Northstar construction can be

compared.

Although aerial surveys during spring are the standard method for

documenting densities and distribution of ringed seals, the densities

tend to be underestimated because not all ringed seals are hauled out

on the ice at any one time, and aerial surveys may not see all seals

hauled out on the ice. These underestimates are taken into account when

estimating impacts and levels of take.

Comment 10: Greenpeace (11/98) is concerned about the effects of an

increasing polar bear population and anthropogenic and non-

anthropogenic impacts on ringed seals.

Response: Because the taking of ringed seals incidental to

Northstar activities will be almost exclusively by incidental

harassment and no serious injury or mortality is expected as a result

of Northstar construction and operation, fluctuating population levels

should be of little consequence. Provided the total taking by the

activity itself is having no more than a negligible

[[Page 57014]]

impact on the species or stock(s) and will not have an unmitigable

adverse impact on the availability of the species or stock(s) for

subsistence uses, the authorization can be granted. It should be noted

moreover, that the U.S. Fish and Wildlife Service (USFWS) believes the

polar bear population on the North Slope has reached its carrying

capacity and that its growth rate will slow or stabilize.

NMFS believes that the research and monitoring underway since 1997,

at Northstar and the central Beaufort Sea, including aerial monitoring

surveys conducted by both ADF&G and LGL Limited support the scientific

evidence that the takings incidental to Northstar construction and

operation will be negligible.

Comment 11: Greenpeace (11/98) questions BPXA's statement that

ringed seals give birth in their lairs ``starting in late March and

nurse their pups for 4-6 weeks.'' This, Greenpeace believes,

underestimates the birthing and nursing periods for ringed seals.

Ringed seals continue birthing through April and early May, with

nursing in subnivean lairs continuing through May and early June. As

such, harassment and take of ringed seals will be significantly greater

than that which is set forth by BPXA in its application.

Response: NMFS agrees that the BPXA statement could have included

more complete information on the life history of ringed seals. NMFS

does not agree that the impact will be significantly greater than what

is provided in the application because BPXA has timed its operations to

avoid, to the greatest extent practicable, harassment during the period

when ringed seals are pupping. By constructing the ice roads between

December and February, well prior to the ringed seal pupping season,

and maintaining and operating those roads during the season, it is

unlikely that ringed seals would remain in the vicinity of the ice road

corridor and expose themselves and later, their young, to the noise if

the female was within an area that was annoying to it.

Comment 12: Greenpeace (11/98) questions BPXA's use of March 20 as

the beginning date to require ringed seal surveys in previously

undisturbed areas. Greenpeace believes that this fails to protect seals

occupying lairs prior to March 20.

Response: Due to the instability of the shorefast ice during mid-

to late-March, it is highly unlikely that roads relating to Northstar

construction or operation would be constructed after March 20. NMFS

reviewed the citation provided by BPXA and noted that the late-March

date was for the area of the eastern Beaufort Sea about 60 deg. N, not

in the Beaufort Sea at about 70 deg. 30'N. Smith (1988) noted the

difference in reproductive timing between his data for a mid-April

birthing in the Western Arctic at approximately 72 deg. N and McLaren's

mid-March date. Smith (1988) suggests a latitudinal gradient in the

time of pupping. If so, NMFS notes that the March 20 date should be

conservative. This date was the standard date for operational

constraints on the on-ice seismic industry prior to establishment of

the small take authorizations in 1982 (see 47 FR 21248, May 18, 1982).

If better scientific information is provided that indicates a different

start date should be used or that different methods should be

implemented, NMFS is willing to consider that information.

Comment 13: Greenpeace (11/98) contends that BPXA's 50 m (164 ft)

distance for avoiding any detected ringed seal lairs is insufficient

and unsupported if the intent is to avoid any take. If so, then the

distance would have to be greater than 3 km (1.86 mi).

Response: While NMFS agrees that at present there is no scientific

evidence supporting a distance of 50 m (164 ft) from lairs for avoiding

takes of ringed seal pups, there is also little support for a distance

as great as 3 km (1.86 mi). As ringed seals departed lairs in response

to vibroseis and its associated equipment at a distance up to 644 m

(2,113 ft)(Kelly et al. 1986), and as Burns and Kelly (1982) suggest

that heavy equipment and human activity are the major source of

disturbance, not the vibroseis noise itself, NMFS presumes that ice

road construction is likely to disturb ringed seals about the same

degree as vibroseis. Therefore, ice roads constructed in water (ice and

water combined) deeper than 8 ft (2.4 m) should avoid active seal lairs

by at least 650 m (2,132 ft) unless a small take authorization has been

issued, especially after March 20. However, because ice roads for

gravel hauling and pipeline trenching at Northstar cannot deviate

greatly from a straight line, NMFS retained the requirement under the

Interim IHA issued to BPXA on March 15, 1999, that ice road

construction begun after March 20, 1999 avoid ringed seal lairs by 50 m

(164 ft), and did not increase that distance as recommended. However,

while NMFS believes that it is very unlikely that any new ice roads

would be constructed that late in the season in the Beaufort Sea due to

the condition of the ice in most years, it is inviting further

discussion on this issue during this rulemaking. At this time, NMFS

proposes to require all ice roads, except the gravel road and the

pipeline road, avoid seal lairs by a minimum of 150 m (492 ft), which

is an increase over the 50-m (164 ft) retained in the Interim IHA and

is similar to NMFS' requirements for vibroseis surveys.

Marine Mammal Concerns-Bearded Seals

Comment 14: Greenpeace (11/98) believes that (1) given the lack of

population data for bearded seals, it is not possible for BPXA to

estimate the number of bearded seals that would be taken and (2) given

the lack of baseline data on the population of bearded seals, it is

impossible for NMFS to determine that the take of these marine mammals

would pose a negligible impact.

Response: Using data collected in 1996 and 1997 near Seal Island

(Harris et al., 1997, 1998), BPXA calculated estimates of harassment

takes that might occur as a result of construction and related

activities at Northstar. The calculation method was provided in the

BPXA IHA application. Based on this calculation method, BPXA estimates

that between 9 and 26 bearded seals might be harassed incidental to

Northstar open-water activities. When takes are limited to the

incidental harassment of small numbers of marine mammals, a negligible

impact determination can be made without recent baseline data (see

response to Comment 9).

Marine Mammal Concerns-Spotted Seals

Comment 15: Greenpeace (11/98) states that BPXA's application fails

to include any information on the current use of the area by spotted

seals, or the potential effects of summer construction activities on

the species.

Response: This information was provided in various sections of

BPXA's IHA application (and later in the Northstar/Liberty LOA

application). For example, information on the status and distribution

of spotted seals was provided on page 23 to 25 of the IHA application

and information on potential impacts was provided on pages 51 through

55 of that document. However, because most spotted seals are found in

the Bering and Chukchi seas, fewer than 5 spotted seals are expected to

be exposed to harassment takes during the open water season and none

during the hard water (ice) season.

Marine Mammal Concerns-Bowheads

Comment 16: The MMC (3/99) notes that the petition indicates that

as many as 1,380 bowhead whales could possibly be taken annually by

harassment

[[Page 57015]]

incidental to Northstar construction and operation. Although the

effects of incidental harassment on the bowhead population may well be

negligible, it is not clear why the possible cumulative effects are

expected to be negligible or why taking up to 1,380 bowheads annually

(6,900 over 5 years) is considered to be a ``small'' number.

Response: NMFS cautions that BPXA's estimate that 1,380 bowhead

whales might be harassed incidental to Northstar construction, and

later operations, is a maximum take level, not the best estimated take

level. The expected average level of take by harassment for bowheads is

173 animals annually (based on the best scientific information that

approximately 1.88 percent of the bowhead population will migrate

within 10 km (6.2 mi) of the barrier islands) (BPXA, 1998). Only in

those years (such as the single year (1997) between 1979 and 1997) when

the bowhead migration corridor is close to shore, would BPXA and NMFS

expect up to 52 percent of the bowhead population to incur a take by

incidental harassment. Takings by Northstar during this event may

result in up to 1,380 bowheads being harassed. As takings by harassment

at this level would not be expected every year (and might not occur

during a 5-year authorization), NMFS believes that the takings (by

harassment) should be considered small. Also because most bowheads that

would be encountered would be migrating, it is unlikely that a given

bowhead would be incidentally harassed on more than one date.

Comment 17: Greenpeace (11/98) contends that construction

activities at Northstar pose a significant threat to the migration of

bowhead whales. Any delays in scheduling could result in an even

greater number of industrial activities occurring during the fall

bowhead migration.

Response: NMFS recognizes that delays in construction scheduling

could result in increased harassment takes of bowhead whales. This has

been partially recognized by BPXA in their July 26, 1999 letter to NMFS

wherein they note that movement of the drilling rig is currently

scheduled for September 1, 2000. BPXA has also assured NMFS and the

AEWC/NSB that all construction and operational activities at Northstar

during the bowhead migration period would be conducted safely and would

not interfere with the fall bowhead hunt. As a result, NMFS will need

to base its determinations of negligible impact on marine mammals and

no unmitigable adverse impact on subsistence uses on statements made by

BPXA and analysis of data in the FEIS and BPXA application. If NMFS

cannot make a finding of negligible impact (and no unmitigable adverse

impact on subsistence uses) determination, then the LOA (if issued)

would either not authorize incidental takes during the bowhead

migration, or, in coordination with the AEWC/NSB, identify mitigation

measures that would allow NMFS to make a negligible impact

determination.

Comment 18: Greenpeace (11/98) notes that the DEIS for Northstar

describes impacts from pile driving required for installation of island

slope protection as ``one of the greatest noise impacts to bowhead

whales'' and that data was not presented by BPXA on how far away from

the island this sound source could be heard, and even though bowheads

aren't yet ``in the vicinity'' they still receive sounds transmitted

over long distances. Greenpeace contends that this impact should be

analyzed in detail because even a short delay in the schedule could

result in this massive sound source taking place during bowhead

migration.

Response: BPXA's application describes in detail expected sound

pressure levels (SPLs) from pile driving in the Beaufort Sea. According

to the application (BPXA, 1998), impact hammering measured at

Sandpiper, nearby to Northstar, received sound levels just above the

seabottom 1 km (0.6 mi) from Sandpiper Island ranged from 110 to 135 dB

re 1 PaRMS. These transient signals from impact

hammering were similar in characteristics to seismic pulses, but

considerably weaker; the received levels at 1 km (0.6 mi) range were

similar to those from a seismic vessel more than 10 km (6.2 mi) away.

Vibratory hammering produced even lower noise levels. To mitigate noise

levels from impact hammering, BPXA has adopted NMFS suggestion (found

in the March 4, 1999, Biological Opinion), to install sheet piling

using agitation methods instead of impact hammering. This work is

anticipated to be completed prior to bowhead migration. Therefore, even

if island construction continues after bowhead whales appear, these

noises would not be expected to significantly affect those bowhead

whales in the main bowhead migration corridor.

Comment 19: Greenpeace (11/98) states that industrial noise and

other activities interfere with cow-calf bonding, and causes

displacement from migratory routes. The energetic costs of noise-

related changes in behavior and distribution patterns are potentially

significant and will inevitably constitute harassment and take.

Response: Loud industrial noises, such as seismic surveys, in the

marine environment have been identified as potentially interfering with

cow-calf bonding. However, the best information indicates that this

interference would need to occur around the time of birth or shortly

thereafter (Gentry, R. pers. comm., 1999). Since bowhead whales are

born in the spring in the Bering Sea, and as the spring-time eastern

migration through the Beaufort Sea is well offshore of the Northstar

site, noise from Northstar is unlikely to interfere with bonding.

Changes in marine mammal migration patterns and behavior due to

anthropogenic noise constitute Level B harassment. For that reason,

BPXA has applied for a small take authorization under section

101(a)(5)(A) of the MMPA.

Comment 20: Greenpeace (11/98) contends that given the lack of

studies and information on the effects of construction and heavy

equipment activity on artificial islands on cetaceans, NMFS should take

the precautionary approach and deny BPXA's request for an IHA until

such time as the applicant can present conclusive data that its

activities will not harm, harass, or take cetaceans.

Response: BPXA applied for an IHA on the assumption that it will

take, by harassment, several species of marine mammals incidental to

the construction at Northstar. However, because work on Northstar did

not proceed into the open water season of 1999, an IHA to incidentally

harass bowhead whales during construction of Northstar was not issued

to BPXA in 1999. NMFS believes that both the IHA application and the

LOA application provide detailed information on the anticipated impacts

on marine mammals from construction at Northstar.

Negligible Impact Concerns

Comment 21: Greenpeace (3/99) believes that BPXA fails to consider

the impact of the full array of Northstar and Liberty construction and

operation activities on marine mammals. The proposed LOAs and

regulations seek to include the impacts of oil spills on marine

mammals, and are being proposed at a time when the environmental review

of Northstar is incomplete, a final determination on the project has

not yet been made, and the public environmental review of Liberty has

not progressed beyond the scoping stage. Greenpeace (3/99) believes

that incidental takes would not be negligible given BPXA's request that

the 5-year regulations include lethal takes of marine mammals caused by

oil spills.

[[Page 57016]]

Response: Please see our response to comment 1 regarding the

Liberty project. Since the time that Greenpeace submitted its letter

(3/99), the Corps has completed its environmental review of the

Northstar project.

NMFS believes that a small oil leak or spill at either the oil rig

or the pipeline would affect only a small number of marine mammals and

have no more than a negligible impact on marine mammals and subsistence

uses of those marine mammals. However, a large oil spill, although

unlikely to occur during the 5-year authorization time period under

consideration here, could result in a number of marine mammals being

taken, and, if the spill intersects with the bowhead migration corridor

during the time of the bowhead migration could have more than a

negligible impact on marine mammals and the subsistence uses of that

species. Because the probability of a large oil spill occurring during

the 5-year period of the authorization that will affect marine mammals

is low, NMFS believes that a finding of negligible impact may be

appropriate even though the potential effects could be significant. As

in this case, NMFS will need to balance the probability of occurrence

with the potential severity of harm to the species and stocks of

potentially affected marine mammal(s) to determine negligible impact.

When applying this balancing test, NMFS needs to evaluate as thoroughly

as possible the risks involved and the potential impacts on marine

mammal populations. This determination will be made based on the best

available scientific information and, if determined to be negligible

and an LOA is issued, will be supported or negated later through the

required monitoring program. For information on cumulative impacts

please refer to response to Comment 29 later in this document.

Coordination Concerns

Comment 22: The MMC (3/99) noted that neither the BPXA petition

for regulations nor the Federal Register ANPR recognize the possibility

that road construction, etc. could attract polar bears and cause ringed

seals in the affected areas to be more vulnerable to predation by the

bears. The MMC therefore recommends that NMFS consult with the USFWS to

determine and, if appropriate, cooperatively specify monitoring

requirements for polar bears and ringed seals.

Response: NMFS concurs that coordination with the USFWS on

monitoring is warranted. That coordination begins with the release of

this document. In addition, the USFWS has been invited to attend peer

review workshops wherein NMFS and others review previous monitoring and

upcoming monitoring plans.

Subsistence Concerns

Comment 23: The NSB (3/99) requested that if the petition (for

regulations) is approved, it should be with strong additional

consideration given to tailoring industry operation schedules to

respect the whaling season of Nuiqsut, and its subsistence use of Cross

Island.

Response: BPXA anticipates that they will coordinate the

construction and operation of Northstar with both the AEWC and the NSB,

and will successfully conclude a Conflict and Avoidance Agreement

(C&AA) with the affected villages. NMFS invites additional comment on

its regulations concerning its requirements for making a finding of no

unmitigable adverse impact on subsistence uses in Sec. 216.205.

Comment 24: For several stated reasons, Greenpeace (11/98) believes

that NMFS' deferral of addressing any unmitigable adverse impacts to

the C&AA, a private BPXA-NSB negotiation, results in significant

procedural flaws in the IHA process. Greenpeace concludes that the C&AA

is an essential element in avoidance of unmitigable adverse impacts on

subsistence. The C&AA should be made available for public review prior

to issuance of the IHA.

Response: NMFS does not agree. The C&AA is an agreement between two

(or more) non-Federal organizations that is not subject to either

public or Federal review and is not recognized by the MMPA. As a

courtesy, these parties provide a signed copy of the C&AA to NMFS. In

order for NMFS to determine that there will not be an unmitigable

adverse impact on the availability of marine mammals for taking for

subsistence purposes, the application instructions require that the

information items specified in Sec. 216.104(a)(11) and (a)(12) must be

provided. If commenters, including the NSB, believe the activity will

have an adverse impact on subsistence uses that at present is

unmitigated, they have the opportunity to comment on these statements

in the application. If during the comment period evidence is provided

indicating that an unmitigated adverse impact to subsistence needs will

result from the activity, a small take authorization may be delayed to

resolve this disagreement. If significant comments are not received on

this issue, NMFS will review the information and determine whether or

not there are any unmitigable adverse impacts prior to issuance of the

small take authorization. If, on the other hand, an adverse impact is

identified, which may be mitigated, then NMFS can, as here, make it a

requirement of the small take authorization that parties continue to

meet to resolve these differences. If a C&AA is not signed, NMFS has

the option to review each party's concerns, and may, if warranted and

under proper procedures, amend or suspend an authorization. NMFS

recognizes, however, that receipt of a signed C&AA prior to issuing a

small take authorization supports NMFS preliminary determination that

the activity will not have an unmitigable adverse impact on subsistence

needs.

Comment 25: Greenpeace (11/98) states that BPXA's IHA application

fails to consider the impact of its activities on the communities of

Point Hope, Point Lay, and Wainwright. These communities rely on

migrating subsistence species such as the bowhead whales that pass

through the impact zone of Northstar construction activities.

Response: The three mentioned communities hunt bowhead whales in

the Chuckchi Sea during the spring migration, not during the fall

migration when bowheads might be incidentally harassed by activities at

Northstar. Because no bowheads are expected to be seriously injured or

killed as a result of construction and operation of the Northstar Unit

(thereby depriving those communities of a potential harvest), and

because the spring migratory path of bowheads will not be affected by

Northstar construction or operation, NMFS has been unable to identify

an adverse impact to the subsistence needs of these communities. If

these communities believe that the Northstar project will have an

unmitigable adverse impact on their subsistence needs, they will have

an opportunity by review of this document to express those concerns.

Comment 26: Greenpeace (11/98) supports its opinion (on subsistence

impacts) by quoting from the DEIS that BPXA's Northstar proposal would

result in ``bowhead whale avoidance response to noise generated at Seal

Island and project-related vessel and helicopter noise and activity,''

which the DEIS concludes would be ``significant to subsistence

harvesting'' (DEIS page ES-97).

Response: The DEIS and FEIS identify two sources of noise during

Northstar construction that have the potential to result in a more than

negligible bowhead deflection during the Nuiqsut bowhead subsistence

hunt. These are impact hammering and vessel activity. The DEIS

identified ocean going tugs as having a potential deflection of

[[Page 57017]]

migration patterns at distances ranging from 9.3 mi (15 km) to 25 mi

(40 km). If large ships are active at Northstar during the fall bowhead

migration, deflection behavior could occur at the western border of

Nuiqsut's bowhead harvest area. If bowheads deflected at a distance of

25 mi (40 km), and no bowheads were struck within the eastern range of

the Cross Island whaling area, impacts to the fall whale harvest could

be significant. The DEIS and FEIS also note however, that bowheads near

the western border of Nuiqsut's bowhead harvest area are not expected

to be affected by small vessels operating at Seal Island (i.e.,

Northstar).

Pile driving for the installation of island slope protection would

be one of the greatest noise impacts to bowhead whales, if it were to

occur during the migration period (Corps, 1998. However, impact pile

driving for sheet piling for the island perimeter and docks and for

well conductors are scheduled to be completed by the end of July, prior

to the initiation of the bowhead whaling season. In addition, impact

pile driving has been replaced, where possible, by agitation methods.

Therefore, at this time, significant impacts from construction at

Northstar during the bowhead migration season are not anticipated.

Comment 27: Greenpeace (11/98) notes that the DEIS (page 10-27)

concludes that ``island construction would have a significant effect

(i.e., ``cumulative effects of noise on bowhead whale migration routes

and resulting effects on subsistence whaling activities are considered

significant cumulative impacts'').

Response: It should be noted that this statement has been modified

in the FEIS to note that ``significant long-term displacement of

bowhead whales is not expected to occur as a result of Northstar

operations.''

Cumulative Effects Concerns

Comment 28: Greenpeace (11/98) states that NMFS must consider the

impact of climate change on the Arctic marine ecosystem in a cumulative

assessment of the impacts of seismic activities on ``protected

resources'' in the agency's trust.

Response: NMFS disagrees, noting that long-term cumulative impacts

are an issue for discussion under NEPA, not the MMPA. Section

101(a)(5)(A) of the MMPA requires NMFS to make an assessment of the

total taking by a specified activity (i.e., oil and gas development) in

a specified geographic region during an authorization period. If, among

other things, the total taking will not have more than a negligible

impact on the affected marine mammal stocks, the authorization would

appear to be appropriate. (There is not a similar requirement for

assessing total takings for authorizations under section 101(a)(5)(D)

of the MMPA). It should be noted however, that seismic activities are

the subject of a separate small take authorization process and not a

part of BPXA's application.

Comment 29: Greenpeace (3/99) contends that BPXA fails to consider

the cumulative impacts of Northstar and Liberty construction and

operation that will affect marine mammals, subsistence, and the Arctic

marine environment. These impacts include chronic pipeline leaks, oil

spills, noise, pollution and other forms of industrial disturbance.

Response: Unlike Comment 28, NMFS views this comment on cumulative

impact as meaning the ``total taking'' of marine mammals by the

Northstar and Liberty projects. To evaluate expected impacts and to

determine whether these takings can be considered negligible and not

have an unmitigable adverse impact on subsistence uses, one must first

understand the statutory mandates of section 101(a)(5) of the MMPA, and

Congressional intent as provided in House Reports. Section 101(a)(5)(A)

of the MMPA requires the Secretary to ``find that the total of such

taking during each five-year (or less) period concerned will have a

negligible impact on such species or stock and will not have an

unmitigable adverse impact on the availability of such species or stock

for taking for subsistence uses * * *.'' Current NMFS regulations

require that `` * * * the total taking by the specified activity during

the specified time period will have a negligible impact on the species

of stock of marine mammal(s) * * *''

(Sec. 216.102). NMFS believes that this statement accurately

reflects the statutory meaning of the phrase ``such taking during each

five-year (or less) period.'' The specified activity is defined in NMFS

regulations as ``any activity, other than commercial fishing, that

takes place in a specified geographical region and potentially involves

the taking of small numbers of marine mammals.'' It was the intent of

Congress that ``the specified activity * * * referred to in section

101(a)(5) [should] be narrowly identified so that the anticipated

effects will be substantially similar. Thus, for example, it would not

be appropriate for the Secretary to specify an activity as broad and

diverse as outer continental shelf oil and gas development. Rather, the

particular elements of that activity should be separately specified as,

for example, seismic exploration or core drilling'' (H.R. Rep. No. 97-

228 at p. 19, 1981).

When an applicant requests NMFS promulgate a 5-year set of

regulations, applicants are required to submit the information

requested in Sec. 216.104(a) on their activity as a whole, which

includes, but is not necessarily limited to, an assessment of total

impacts by all persons conducting the activity (Sec. 216.105). NMFS

believes that BPXA provided the required information since they

discussed combined impacts and included incidental take estimates for

both Northstar and Liberty projects, but did not include discussion of

seismic work, moving exploratory drilling equipment, etc.

Mitigation Concerns

Comment 30: The MMC (3/99) notes that if work is required after

March 20 in a previously undisturbed area, a survey will be conducted

to determine the presence of ringed seal lairs prior to commencement of

activities. However, it does not indicate how the presence of an

active, ringed seal lair would influence construction activities, or

what mitigation measures would be undertaken. Would the road be

rerouted to avoid active ringed seal lairs by some specified distance

or will it be routed in the straightest line possible and assume that

any pup in a lair within a certain distance will be abandoned and die?

Response: Due to the instability of shorefast ice during that time

of the year, it is highly unlikely that any roads relating to Northstar

construction or operation would be constructed after March 20. If ice

roads are constructed, they would be secondary roads and not the main

gravel hauling road and pipeline road, which are not flexible and

cannot be rerouted to avoid seal lairs. However, for secondary roads in

previously undisturbed areas, NMFS proposes to require these roads to

avoid seal lairs by a minimum of 150 m (492 ft), similar to NMFS'

requirements on vibroseis surveys.

Comment 31: Greenpeace (11/98) believes that BPXA will not take

even the most basic of mitigation measures in ceasing operations during

the bowhead migration.

Response: Scheduling has been designed to complete as much of the

construction activity prior to the bowhead migration and bowhead

subsistence hunting period as possible. Mitigation measures are

described in the section entitled ``Proposed Mitigation Measures.''

NMFS will be reviewing BPXA's current schedule for potential impacts on

bowhead whales and other

[[Page 57018]]

marine mammals during this rulemaking.

Comment 32: Greenpeace (11/98) states that it is impossible to

place adequate mitigation measures (i.e., safety zones) into place when

there is inadequate knowledge about the impacts of seismic operations

on cetaceans' hearing and behavior. Greenpeace believes the

precautionary principle requires further research before ``potentially

permanent'' damage is incurred.

Response: Seismic operations have not been requested for inclusion

under either the IHA or the 5-year authorization. The application

contains a description of actions BPXA will take to mitigate noise from

construction on bowhead whales. While NMFS believes that sufficient

information is available (see discussions elsewhere in this document)

on the expected impacts of construction and operations at Northstar on

marine mammals to make a preliminary determination that the taking will

be negligible and not have an unmitigable impact on marine mammals,

NMFS agrees that additional information is warranted. This information

will be obtained during construction and operation through a monitoring

program funded by BPXA.

Monitoring and Reporting Concerns

Comment 33: The MMC (3/99) recommends that NMFS initiate the

rulemaking as requested, provided it is satisfied that the planned

marine mammals and related monitoring programs will be adequate to

verify how and over what distances marine mammals may be affected, that

only small numbers of marine mammals are taken, and that the cumulative

impacts on the affected species and stocks are negligible.

Response: On July 1, 1999, NMFS scientists and others met in

Seattle to discuss the open water monitoring program for construction

and operation at Northstar. Based on the recommendations from that peer

review workshop, BPXA has made appropriate amendments to the monitoring

plan found in its application and in the updated monitoring plan

submitted to NMFS on May 6, 1999. A copy of its August, 1999 monitoring

plan is available upon request (see ADDRESSES)).

While BPXA summarized monitoring plans for on-ice monitoring during

that meeting, discussion and evaluation of that portion of BPXA's

monitoring plan was set aside for discussion late this year with

appropriate seal biologists. The recommendations of the MMC will be

provided to reviewers of BPXA's on-ice monitoring plans.

Comment 34: The MMC (3/99) recommends that NMFS specify in the

regulations that proposed monitoring plans and the results of the

monitoring programs be reviewed annually by NMFS and outside experts to

confirm that the monitoring programs are capable of detecting any non-

negligible, cumulative population-level effects and that the

requirements will be revised as necessary if there is uncertainty in

that regard.

Response: NMFS believes that conditions regarding monitoring and

peer-review of monitoring plans, and the results, should be

requirements under LOAs, not regulations. Under LOAs, requirements,

including independent peer review, can be modified more efficiently and

timely than is possible under regulations.

Comment 35: The MMC (3/99) noted that BPXA proposes to use a

comparison of ``before'' and ``after'' aerial survey data to assess the

impact of the offshore developments on ringed seal numbers and

distribution. The MMC suggested how those comparisons should be

undertaken.

Response: This work, now in its second year of data collection, is

discussed in detail in the Technical Plan for Marine Mammal and

Acoustic Monitoring during Construction of BPXA's Northstar Oil

Development for 1999. A copy of this report is available upon request

(see ADDRESSES). The MMC recommendation has been forwarded to marine

mammal scientists for consideration.

Comment 36: The MMC (3/99) questions whether a visual survey alone

will detect even the majority of seal lairs in the vicinity of the

proposed activities and therefore ensure that those activities will

have the least practical adverse impact possible. If NMFS concurs that

the use of dogs puts ringed seals at risk, then alternative methods

should be considered to help ensure that the activities have the least

practical adverse impacts possible.

Response: NMFS believes that by requiring BPXA to construct ice

roads for gravel hauling and pipeline construction as early in the

season as practicable, at a time prior to establishment of lairs,

impacts have been mitigated to the greatest extent practicable. In

addition, NMFS believes that the noise from construction will deter

ringed seals from establishing new breathing holes or lairs in the

vicinity of ice roads. While dogs under experienced handlers are

unlikely to put ringed seals at risk, NMFS recognizes that some

disturbance at seal breathing holes and lairs by approaching dogs and

humans is likely. As a result, NMFS questions the value of using dogs

as a monitoring tool (as opposed to using dogs as a research tool) to

determine impacts caused by ice road construction, operation, and

maintenance. Alternatively, long term monitoring of ringed seal trends

in density have been undertaken by funding under MMS by ADF&G and by

BPXA. NMFS believes that this latter monitoring is preferable for the

Northstar project, but invites additional comments on the subject.

Comment 37: The MMC (3/99) notes that the petition does not

indicate what would be considered a significant difference in the

number of abandoned and active holes between the reference (i.e.,

control) area and the construction area or what would be done if a

significant difference is detected. In addition, while the counting

bias is likely to be constant, the reduced numbers produced by failing

to count inactive sites could affect the ability to show a significant

difference in the ratios. The MMC suggests that this potential problem

could be alleviated by ground truthing the aerial surveys to calculate

a correction factor for abandoned and active holes counted from the

air.

Response: NMFS has determined that the on-ice portion of the BPXA

monitoring program will need to be the subject of a peer review

workshop. This workshop is tentatively scheduled for mid-October. The

issues raised by the MMC in this comment and in previous comments will

be reviewed at this workshop.

Comment 38: Greenpeace (11/98) concludes that BPXA's IHA

application must be denied by NMFS on the basis that it lacks a peer-

reviewed monitoring plan based on sound science.

Response: In accordance with section 101(a)(5)(D)(ii) of the MMPA,

the authorization (i.e., the IHA), where applicable, is to contain

requirements for monitoring and reporting of takings by harassment,

including the requirements for the independent peer-review of proposed

monitoring plans or other research proposals where the proposed

activity may affect the availability of a species or stock for taking

for subsistence uses. Because takings authorized during the winter are

unlikely to affect the availability of a species or stock of marine

mammal for subsistence purposes, the IHA did not need to contain

requirements for independent peer review for ice road construction and

related on-ice activities. Because the open water portion of the

Northstar construction, which has the potential to adversely affect the

availability of subsistence uses

[[Page 57019]]

of bowhead whales, was not conducted, and because an IHA for that

portion of the activity was not issued, peer review of Northstar

construction monitoring was neither needed nor conducted under MMPA

section 101(a)(5)(D) IHA application. It should be noted that while not

required for authorizations issued under section 101(a)(5)(A) of the

MMPA, peer review of monitoring plans has been incorporated into these

regulations in accordance with findings made at a Seattle workshop held

in 1994 with the AEWC, the oil and gas industry and others.

NEPA Concerns

Comment 39: Greenpeace (3/99) contends that the Northstar DEIS and

FEIS fail to provide the environmental analysis required by NEPA for

incidental takes of marine mammals. Quantitative information regarding

estimated harassment and ``take'' provided in BPXA's current petition

for regulations was not provided in the DEIS or FEIS for Northstar.

Greenpeace also believes that the DEIS and FEIS failed to analyze the

environmental impacts of specific activities, such as ice road

construction, gravel hauling, island construction, helicopter

overflights and other forms of noise and industrial disturbance that

are now described in greater detail in BPXA's current petition to NMFS.

Response: NMFS notes that qualitative impacts on marine mammals

from the noise from construction, production and other activities and

from oil spills were each discussed in separate chapters (Chs. 9 and 8,

respectively) of the DEIS and FEIS. Additional discussion on impacts to

marine mammals was provided in Chs. 6.5 and 6.9.1.1 of the DEIS and

FEIS and impacts on subsistence use impacts was discussed in Chs. 7.2.1

and 7.3 of the DEIS and FEIS. In addition, a detailed description of

the activity at Northstar was described in Appendix A. In review, NMFS

agrees that the DEIS and FEIS did not provide sufficient information on

one part of the project, the construction of ice roads. As a result of

that review, an Environmental Assessment (EA) was prepared prior to

issuance of the Interim IHA to BPXA on March 15, 1999. After review of

the information contained in that EA, in addition to information

contained in the DEIS, NMFS determined that neither the proposed action

(i.e., issuance of an IHA for taking marine mammals incidental to ice

road construction), nor the identified alternatives to that proposed

action, would have a significant impact on the human environment.

NMFS believes that these NEPA documents support NMFS' preliminary

determination that construction and oil production at Northstar will

have no more than a negligible impact on affected marine mammal stocks

and will not have an unmitigable adverse impact on the availability of

such stocks for taking for subsistence uses.

Comment 40: Greenpeace (3/99) believes the proposed actions

artificially segment the environmental review of the Northstar and

Liberty projects and their impacts, thereby violating NEPA. Instead of

one comprehensive review and analysis of marine mammal harassment and

``take,'' the process has been segmented into separate reviews for an

interim IHA, an LOA, and the promulgation of 5-year regulations.

Response: The issue of segmenting the MMPA authorizations has been

addressed previously in this document. The concern regarding segmenting

under NEPA should be addressed to either the Corps or MMS.

Comment 41: Greenpeace (11/98) states that NMFS cannot rely on the

Northstar DEIS for its NEPA compliance because this (IHA) authorization

was not identified in the DEIS as one of the agency actions it was

intended to cover.

Response: While notice of NMFS' responsibilities under the MMPA

were not cited in either the notice of availability of the DEIS (63 FR

28375, May 22, 1998, or the Corps' public notice (SPN 98-3, June 1,

1998)), NMFS permitting requirements under the MMPA and Endangered

Species Act (ESA) were cited in tables ES-2 and 1-2 of the DEIS and

FEIS. The lack of a detailed description of each of the permit/

regulatory actions listed for the several Federal, state and local

agencies does not preclude adoption of the Corps'' FEIS for their

action(s). Procedures for adoption by cooperating agencies are

contained in Council on Environmental Quality (CEQ) regulations in 40

CFR 1506.3(c) which will be followed by NMFS.

Comment 42: Greenpeace (11/98) believes (1) the public should have

the benefit of new information and responses to comments contained in

the Northstar FEIS, (2) NMFS has relied on information in the DEIS

which is incorrect and/or under review and subject to change in the

FEIS, and (3) NMFS should deny BPXA's August 12, 1998, request for an

IHA and consider a new request for construction and operation based on

the FEIS.

Response: NMFS does not believe that delaying commencement of the

small take authorization process until completion of NEPA documentation

is warranted. Proper procedures under NOAA's NEPA guidelines are for

proposed actions to accompany a DEIS or Draft EA. Not beginning the IHA

process or the regulatory process until completion of NEPA leads to

unnecessary and potentially extensive delays in processing

applications, a problem previously recognized by Congress when it

amended the MMPA to expedite the small take program. The BPXA IHA

application was submitted to NMFS on August 14, 1998, in coordination

with the release of the DEIS. There is no mandate for an application

from a non-governmental U.S. citizen (as defined in Sec. 216.103) to be

in total agreement with a NEPA document in which it was not an active

participant. NMFS determined that BPXA's application met the

requirements of NMFS' regulations for applications for IHAs. The DEIS

and FEIS provide NMFS with information that supports, or in some cases

refutes, information found in the application. Therefore, to delay the

applicant's activity in order to conduct consecutive public review

instead of concurrent review is neither warranted nor required by law.

Information provided in the FEIS has been analyzed by NMFS, a

cooperating agency in its preparation, to assess impacts of the

activity on marine mammals.

Endangered Species Act (ESA) Concerns

Comment 43: Without clarification, Greenpeace (3/99) contends that

the LOAs and regulations will result in violations of both the intent

and the letter of the ESA. Greenpeace (11/98) believes the requested

IHA would violate the ESA because (1) the ESA requires each agency to

use the best scientific information available, (2) NMFS acknowledges

the conflict between offshore oil and gas development and bowheads, (3)

the uncertainty of western science on the impacts of industrial noise

on bowheads, and (4) research continues on the reactions of whales to

noise created by oil exploration activities.

Response: On March 4, 1999, NMFS completed formal consultation with

the Corps under section 7 of the ESA for the construction and operation

of the Northstar project with the issuance of a Biological Opinion

(BO). The BO, which found that the construction and operation of the

Northstar project activity will not jeopardize the continued existence

of any species under the jurisdiction of NMFS, was based upon the best

scientific and commercial data available. Because issuance of an LOA to

BPXA for the incidental take of bowhead whales is also considered a

Federal action, NMFS

[[Page 57020]]

has begun consultation on this action. If the finding of NMFS is that

the taking of bowhead whales is not likely to adversely affect the

bowhead whale stock, prior to completion of rulemaking and if a small

take authorization is determined to be appropriate, an Incidental Take

Statement will be appended to the BO authorizing the incidental

harassment of bowhead whales under the ESA.

Legal concerns

Comment 44: The ICAS (3/99) note that NMFS has failed to consult

with ICAS over the LOAs for the take of small numbers of marine mammals

by incidental harassment for construction and operation at Northstar

and Liberty. ICAS requests that all regulatory activities regarding

these LOAs halt. ICAS claims that the Northstar project has

demonstrated that insufficient studies have been done to document an

accurate picture of the Arctic ocean marine environment sufficient to

monitor the LOA or loss due to harassment on the interrelations of the

marine environment with subsistence resources in the event of an

incidental construction-related oil spill or a catastrophic spill. ICAS

has not been provided the necessary time, opportunity or resources to

effectively research and comment on regulations pursuant to section

101(a) of the MMPA due to a lack of meaningful contact with NMFS

pursuant to parameters consistent with Presidential Executive Orders

(i.e., E.O. 13084 (May 14, 1998) and E.O. 12898 (February 11, 1994)).

Response: For many years, NMFS has consulted with the federally-

recognized Alaska Native villages of Barrow, Kaktovik and Nuiqsut and

the AEWC on the issuance of authorizations for the taking of bowhead

whales and other marine mammals incidental to oil and gas exploration

in the U.S. Beaufort Sea. In 1978, the ICAS entered into a resolution

with the AEWC that provided the latter organization with the authority

to enter into agreements with the Federal Government on matters

pertaining to the bowhead whale. In turn, the AEWC is responsible for

informing the villages of any actions taken by the Federal Government

which affect subsistence whaling in Alaska. By letter, NMFS has

requested ICAS to update the status of this agreement and has offered

to meet with ICAS at its convenience. In the interim, NMFS intends to

comply fully with E.O. 13084, Consultation and Coordination With Indian

Tribal Governments.

Description of Habitat and Marine Mammal Affected by the Activity

A detailed description of the Beaufort Sea ecosystem and its

associated marine mammals can be found in the DEIS and FEIS prepared

for the Northstar development (Corps, 1998, 1999). This information is

not repeated here but will be considered part of the record of decision

for this rulemaking. A copy of the FEIS is available from the Corps

upon request (see ADDRESSES).

Marine Mammals

The Beaufort/Chukchi Seas support a diverse assemblage of marine

mammals, including bowhead whales (Balaena mysticetus), gray whales

(Eschrichtius robustus), beluga whales (Delphinapterus leucas), ringed

seals (Phoca hispida), spotted seals (Phoca largha) and bearded seals

(Erignathus barbatus). Descriptions of the biology and distribution of

these species and of others can be found in several documents (e.g.,

Hill and DeMaster, 1998) including the BPXA application and the

previously mentioned FEIS. Please refer to those documents for specific

information on these species. By citation, this information is

incorporated into this document and into NMFS' decision-making process.

In addition to the species mentioned in this paragraph, Pacific walrus

(Odobenus rosmarus) and polar bears (Urus maritimus) also have the

potential to be taken. Appropriate applications for taking these

species under the MMPA have been submitted to the USFWS by BPXA.

Potential Effects on Marine Mammals

Noise Impacts

Sounds and non-acoustic stimuli will be generated during

construction by vehicle traffic, ice-cutting, pipeline construction,

offshore trenching, gravel dumping, sheet pile driving, and vessel and

helicopter operations. Sounds and non-acoustic stimuli will be

generated during oil production operations by generators, drilling,

production machinery, gas flaring, camp operations and vessel and

helicopter operations. The sounds generated from construction and

production operations and associated transportation activities will be

detectable underwater and/or in air some distance away from the area of

the activity, depending upon the nature of the sound source, ambient

noise conditions, and the sensitivity of the receptor. At times, some

of these sounds are likely to be strong enough to cause an avoidance or

other behavioral disturbance reaction by small numbers of marine

mammals or to cause masking of signals important to marine mammals. The

type and significance of behavioral reaction is likely to depend on the

species and season, and the behavior of the animal at the time of

reception of the stimulus, as well as the distance and level of the

sound relative to ambient conditions.

In winter and spring, on-ice travel and construction activities

will displace some ringed seals along the ice road and pipeline

construction corridors. BPXA plans to begin winter construction

activities in early December, well in advance of female ringed seals

establishing birthing lairs beginning in late March. The noise and

general human activity will displace female seals away from activity

areas that could negatively affect the female and young, if birth lairs

were constructed there.

During the open-water season, all six species of whales and seals

could potentially be exposed to vessel or construction noise and to

other stimuli associated with the planned operations. Vessel traffic is

known to cause avoidance reactions by whales at certain times

(Richardson et al., 1995). Pile driving, helicopter operations, and

possibly other activities may also lead to disturbance of small numbers

of seals or whales. In addition to disturbance, some limited masking of

whale calls or other low-frequency sounds potentially relevant to

bowhead whales could occur.

A more detailed description of potential impacts from construction

and operational activities on marine mammals can be found in the

application. That information is accepted by NMFS as a summation of the

best scientific information available on the impacts of noise on marine

mammals in this area.

Oil Spill Impacts

For reasons stated in the application, BPXA believes that the

effects of oil on seals and whales in the open waters of the Beaufort

Sea are likely to be negligible, but there could be effects on whales

in areas where both oil and the whales are at least partially confined

in leads or at the ice edge. In the spring, bowhead and beluga whales

migrate through offshore leads in the ice. However, given the probable

alongshore trajectory of oil spilled from Northstar, in relation to the

whale migration route through offshore waters, interactions between oil

and whales are unlikely in the spring. In the summer, bowheads are not

in the central Beaufort Sea, and beluga whales are found far offshore.

As a result, at this time of the year, these species will be unaffected

should a spill occur at this time.

[[Page 57021]]

In the fall, the migration route of bowheads can be close to shore.

If bowheads were moving through leads in the pack ice or were

concentrated in nearshore waters, some bowhead whales might not be able

to avoid oil slicks and could be subject to prolonged contamination.

However, the autumn migration past Northstar extends over several weeks

and most of the whales travel along routes well north of Northstar.

Thus, according to BPXA, only a small minority of the whales are likely

to approach patches of spilled oil.

Ringed seals exposed to oil during the winter or early spring could

die if exposed to heavy doses of oil for prolonged periods of time.

This prolonged exposure could occur if fuel or crude oil was spilled in

or reached nearshore waters, was spilled in a lead used by seals, or

was spilled under the ice when seals have limited mobility. Individual

seals residing in these habitats may not be able to avoid prolonged

contamination and some would die. While impacts on regional

distribution may occur, impacts on regional population size however,

would be expected to be minor.

Estimated Level of Incidental Take

BPXA (1998) estimates that, during the ice-covered period, 62

(maximum 154) ringed seals may be incidentally harassed during

construction activities and 43 (maximum 109) ringed seals may be

incidentally harassed annually during oil production activities.

BPXA estimates ``takes'' during the ice-covered season by assuming

that seals within 3.7 km (2.3 mi) of Seal Island, within 1.85 km (1.1

mi) of the pipeline construction corridor and related work areas, and

within 0.66 km (0.4 mi) of ice roads will be ``taken'' annually. These

anticipated levels of take are estimated using the average density

estimate of 0.42 ringed seals/km2 (Miller et al., 1998).

BPXA (1998) cautions however, that these ``take'' estimates may result

in an overestimate of the actual numbers of seals that will be

``taken'' because not all seals within these disturbance distances will

move from the area.

During the open-water season, BPXA (1998) estimates that 7 (maximum

22) ringed seals, 1 spotted seal, 1-2 bearded seals, 173 (maximum

1,3800) bowhead whales, less than 5 gray whales, and 6 (maximum 45)

beluga whales may be incidentally harassed annually whether from

construction or operations. BPXA assumes that seals and beluga whales

within 1 km (0.6 mi) radius of Seal Island will be harassed incidental

to construction and other activities on the island. Assumed ``take''

radii for bowhead whales are based on the distance at which the

received level of construction noise from the island would diminish

below 115 dB re 1 Pa. This distance has been estimated as 3.2

km (2 mi).

Although the potential impacts to the several marine mammal

species known to occur in these areas is expected to be limited to

harassment, a small number of marine mammals may incur lethal and

serious injury. Most effects however, are expected to be limited to

temporary changes in behavior or displacement from a relatively small

area near the construction site and will involve only small numbers of

animals. However, the inadvertent and unavoidable take by injury or

mortality of small numbers of ringed seal pups may occur during ice

clearing for construction of ice roads. In addition, some injury or

mortality of whales or seals may result in the event that an oil spill

occurs. Therefore, BPXA requests that, because a small number of marine

mammals might be injured or killed, that these takes also be covered by

the regulations. However, BPXA does not indicate the level of

incidental take resulting from an oil spill at Northstar during either

the ice-covered period or the open-water period. Because of the

unpredictable occurrence, nature, seasonal timing, duration and size of

an oil spill occurring during the 5-year authorization period of these

regulations, a specific prediction cannot be made of the estimated

number of takes by an oil spill. According to BPXA, in the unlikely

event of a major oil spill at Northstar or from the associated subsea

pipeline, numbers of marine mammals killed or injured are expected to

be small and the effects on the populations negligible.

Impacts on Subsistence Uses

This section contains a summary on the potential impacts from

construction and operational activities on subsistence needs for marine

mammals. A more detailed description can be found in the application.

This information is accepted by NMFS as a summation of the best

scientific information available on the impacts of noise on marine

mammals in this area.

Noise Impacts

The disturbance and potential displacement of bowhead whales and

other marine mammals by sounds from vessel traffic and/or on-island

construction activities (e.g., impact hammering) are the principle

concerns related to subsistence use of the area. The harvest of marine

mammals is central to the culture and subsistence economies of the

coastal North Slope communities. In particular, if elevated noise

levels are displacing migrating bowhead whales farther offshore, this

could make the harvest of these whales more difficult and dangerous for

hunters. The harvest could also be affected if bowheads become more

skittish when exposed to vessel or impact-hammering noise (BPXA, 1998).

Construction activities and associated vessel and helicopter

support are expected to begin in December 1999, and continue into

September or October 2000, depending upon ice conditions. Few bowhead

whales approach the Northstar area before the end of August, and

subsistence whaling generally does not begin until after September 1

and occurs in areas well east of the construction site. Therefore, a

substantial portion of the Northstar development is expected to be

completed when no bowhead whales are nearby and when no whaling is

underway. Insofar as possible, vessel and aircraft traffic near areas

of particular concern for whaling will be completed by BPXA before the

end of August. No impact hammering is expected to occur during the

period when subsistence hunting of migrating bowhead whales is

underway.

Underwater sounds from drilling and production operations on an

artificial gravel island are not very strong, and are not expected to

travel more than about 10 km (6.2 mi). Even those bowheads traveling

along the southern edge of the migration corridor will not be able to

even hear sounds from Northstar until the whales are well west of the

main hunting area. In addition, for reasons unrelated to mitigation for

subsistence concerns, drilling activities are expected to temporarily

cease during the bowhead whale migration during the first year of

drilling activity.

Nuiqsut is the community closest to the area of the proposed

activity, and it harvests bowhead whales only during the fall whaling

season. In recent years, Nuiqsut whalers typically take zero to four

whales each season (BPXA, 1998). Nuiqsut whalers concentrate their

efforts on areas north and east of Cross Island, generally in water

depths greater than 20 m (65 ft). Cross Island, the principle field

camp location for Nuiqsut whalers, is located approximately 28.2 km

(17.5 mi) east of the Northstar construction activity area.

Whalers from the village of Kaktovik search for whales east, north,

and west of their village. Kaktovik is located approximately 200 km

(124.3 mi) east of Seal Island. The westernmost reported harvest

location was about 21 km (13 mi) west of Kaktovik, near

70o10'N.

[[Page 57022]]

144oW. (Kaleak, 1996). That site is approximately 180 km

(112 mi) east of Seal Island.

Whalers from the village of Barrow search for bowhead whales much

further from the Northstar area, greater than 250 km (>175 mi) west.

While the effects of Northstar construction or production on

migrating bowheads are not expected to extend into the area where

Nuiqsut hunters usually search for bowheads and therefore is not

expected to affect the accessibility of bowhead whales to hunters, it

is recognized that it is difficult to determine the maximum distance at

which reactions occur (Moore and Clark, 1992). As a result, in order to

avoid any unmitigable adverse impact on subsistence needs and to reduce

potential interference with the hunt, the timing of various

construction activities at Northstar as well as barge and aircraft

traffic in the Cross Island area will be addressed in a C&AA between

BPXA and NSB residents. Also, NMFS believes that the monitoring plan

proposed by BPXA will provide information that will help resolve

uncertainties about the effects of construction noise on the

accessibility of bowheads to hunters.

While Northstar activity has some potential to influence

subsistence seal hunting activities, the most important sealing area

for Nuiqsut hunters is off the Colville delta, extending as far west as

Fish Creek and as far east as Pingok Island (BPXA, 1998). Pingok Island

is about 24 km (15 mi) west of Northstar. The peak season for seal

hunting is during the summer months, but some hunting is conducted on

the landfast ice in late spring. In summer, boat crews hunt ringed,

spotted and bearded seals (BPXA, 1998). Thus, it is unlikely that

construction activity will have a significant negative impact on

Nuiqsut seal hunting.

Oil Spill Impacts

Oil spills might affect the hunt for bowheads (BPXA, 1998). While

oil spills from production drilling or pipelines could occur at any

time of the year, only if a significant spill occurred during the

bowhead hunt would a reduction in the availability of bowhead whales

for subsistence uses be possible. While unlikely, oil spills could

extend into the bowhead hunting area under certain wind and current

conditions. Even in the event of a major spill, it is unlikely that

more than a small number of those bowheads encountered by hunters would

be contaminated by oil (BPXA, 1998). Disturbance associated with

reconnaissance and cleanup activities could affect whales and, thus,

accessibility of bowheads to hunters. Therefore, in the unlikely event

that a major spill occurred during the relatively short fall bowhead

whaling season, it is possible that bowhead hunting would be

significantly affected. However, the probability of a large oil spill

(greater than 1,000 barrels) is estimated to be approximately 3

percent.

Impacts on Habitat

Invertebrates and fish, the nutritional basis for those whales and

seals found in the Beaufort Sea, may be affected by construction and

operation of the Northstar project. Fish may react to noise from

Northstar with reactions being quite variable and dependent upon

species, life history stage, behavior, and the sound characteristics of

the water. Invertebrates are not known to be affected by noise. Benthic

invertebrates would be affected by island and pipeline construction and

overburden placement on the seabottom. Fish may be temporarily or

permanently displaced by the island. These local, short-term effects

are unlikely to have an impact on marine mammal feeding.

In the event of a large oil spill, fish and zooplankton in open

offshore waters are unlikely to be seriously affected. Fish and

zooplankton in shallow nearshore waters could sustain heavy mortality

if an oil spill were to remain within an area for several days or

longer. These affected nearshore areas may then be unavailable for use

as feeding habitat for seals and whales. However, because these seals

and whales are mobile, and bowhead feeding is uncommon along the coast

near Northstar, effects would be minor during the open water season. In

winter, effects of an oil spill on ringed seal food supply and habitat

would be locally significant in the shallow nearshore waters in the

immediate vicinity of the spill and oil slick. However, effects overall

would be negligible.

Proposed Mitigation Measures

Several mitigation measures have been proposed by BPXA to reduce

harassment takes to the lowest level practicable. These include:

(1) BPXA will begin winter construction activities in December,

well in advance of female ringed seals establishing the birthing lair

in late March in order to displace seals away from activities that

could negatively affect the female and young.

(2) If construction activities are initiated in previously

undisturbed areas after March 20, BPXA will survey the area(s) to

identify and avoid ringed seal lairs by a minimum of 150 m (492 ft).

(3) BPXA will establish and monitor a 190 dB re 1 Pa

safety range for seals around the island for those construction

activities with SPLs that exceed that level.

(4) While whales are unlikely to approach the island during impact

hammering or other noisy activities, a 180 dB re 1 Pa safety

zone will be established and monitored around the island.

(5) If any marine mammals are observed within their respective

safety range, operations will cease until such time as the observed

marine mammals have left the safety zone.

(6) Project scheduling indicates that impact hammering will not

occur during the period for subsistence hunting of westward migrating

bowhead whale.

(7) Helicopter flights to support Northstar construction will be

limited to a corridor from Seal Island to the mainland, and, except

when limited by weather, will maintain a minimum altitude of 1,000 ft

(305 m).

(8) Drilling activities will temporarily cease during the bowhead

whale migration during the first year of drilling activity (i.e.,

September, 2001).

Proposed Monitoring Measures

Monitoring will employ both marine mammal observations and

acoustics measurements and recordings. During the open-water period,

monitoring will consist of (1) acoustic measurements of sounds produced

by construction activities through hydrophones, seaborne sonobuoys and

bottom recorders, and (2) observations of marine mammals from an

elevated platform on Seal Island which will be made during periods with

and without construction underway.

During the ice-covered season, BPXA proposes to continue an ongoing

(since the spring, 1997) Before-After/Control-Impact Study on the

distribution and abundance of ringed seals in relation to development

of the offshore oil and gas resources in the central Beaufort Sea.

Collection and analysis of data before and after construction is

expected to provide a reliable method for assessing the impact of oil

and gas activities on ringed seal distribution in the Northstar

construction area. Other winter/spring monitoring will include (1) on-

ice searches for ringed seal lairs in areas where construction starts

in the mid-March through April period, (2) assessment of abandonment

rates for seal holes, and (3) acoustic measurements of sounds and

vibrations from construction.

[[Page 57023]]

The monitoring plan will be subject to review by NMFS biologists

and revised appropriately prior to implementation. Independent peer

review on the on-ice portion of the plan will be conducted this fall in

Seattle. The open-water season monitoring plan has been reviewed by

scientists and others attending the annual open-water peer-review

workshop held in Seattle on July 1, 1999. A revised monitoring plan was

submitted to NMFS on August 27, 1999. A copy of the revised monitoring

plan is available upon request (see ADDRESSES).

Proposed Reporting Measures

NMFS proposes to require BPXA to provide two reports annually to

NMFS within 90 days of completion of each phase of the activity. The

first report would be due 90 days after either the ice roads are no

longer usable or spring aerial surveys are completed, whichever is

later. The second report would be required to be forwarded to NMFS 90

days after the formation of ice in the central Alaskan Beaufort Sea

prevents water access to Northstar. These reports will provide

summaries of the dates and locations of construction activities,

details of marine mammal sightings, estimates of the amount and nature

of marine mammal takes, and any apparent effects on accessibility of

marine mammals to subsistence hunters.

A draft final technical report would be submitted to NMFS by April

1 of each year. The final technical report would contain a full

description of the methods, results, and interpretation of all

monitoring tasks. The draft final report will be subject to peer review

before being finalized by BPXA.

Preliminary Conclusions

Northstar Construction

NMFS has preliminarily determined that the impact of construction

and operation of the Northstar project in the U.S. Beaufort Sea will

result in no more than a temporary modification in behavior by certain

species of cetaceans and pinnipeds. During the ice-covered season,

pinnipeds close to the island may be subject to incidental harassment

due to the localized displacement from construction of ice roads, from

transportation activities on those roads, and from construction

activities at Northstar. As cetaceans will not be in the area during

the ice-covered season, they will not be affected.

During the open-water season, the principal construction- and

operations-related noise activities will be impact hammering,

helicopter traffic, vessel traffic, and other general construction

activity on Seal Island. Sheet-pile driving is expected to be completed

prior to whales being present in the area. Sounds from construction

activities on the island are not expected to be detectable more than

about 5-10 km (3.1-6.2 mi) offshore of the island. Disturbance to

bowhead or beluga whales by on-island activities will be limited to an

area substantially less than that distance. Helicopter traffic will be

limited to nearshore areas between the mainland and the island and is

unlikely to approach or disturb whales. Barge traffic will be located

mainly inshore of the whales and will involve vessels moving slowly, in

a straight line, and at constant speed. Little disturbance or

displacement of whales by vessel traffic is expected. While behavioral

modifications may be made by these species to avoid the resultant

noise, this behavioral change is expected to have no more than a

negligible impact on the animals.

While the number of potential incidental harassment takes will

depend on the distribution and abundance of marine mammals (which vary

annually due to variable ice conditions and other factors) in the area

of operations, because the proposed activity is in shallow waters

inshore of the main migration corridor for bowhead whales and far

inshore of the main migration corridor for belugas, the number of

potential harassment takings is estimated to be small. In addition, no

take by injury and/or death is anticipated, and the potential for

temporary or permanent hearing impairment will be avoided through the

incorporation of the mitigation measures mentioned in this document. No

rookeries, areas of concentrated mating or feeding, or other areas of

special significance for marine mammals occur within or near the

planned area of operations during the season of operations.

Because bowhead whales are east of the construction area in the

Canadian Beaufort Sea until late August/early September, activities at

Northstar are not expected to impact subsistence hunting of bowhead

whales prior to that date. Appropriate mitigation measures to avoid an

unmitigable adverse impact on the availability of bowhead whales for

subsistence needs will be the subject of consultation between BPXA and

subsistence users.

Also, while construction at Northstar has some potential to

influence seal hunting activities by residents of Nuiqsut, because (1)

the peak sealing season is during the winter months, (2) the main

summer sealing is off the Colville Delta), and (3) the zone of

influence from Northstar on beluga and seals is fairly small, NMFS

believes that Northstar construction will not have an unmitigable

adverse impact on the availability of these stocks for subsistence

uses.

Endangered Species Act (ESA)

NMFS concluded consultation with the Corps on this activity on

March 4, 1999. If an authorization to incidentally take listed marine

mammals is issued under the MMPA, NMFS will complete consultation under

the ESA on the regulations and the LOA and issue an Incidental Take

Statement under section 7 of the ESA. A copy of the BO resulting from

this consultation is available upon request (see ADDRESSES).

NEPA

On June 12, 1998 (63 FR 32207), the Environmental Protection Agency

(EPA) noted the availability for public review and comment a DEIS

prepared by the Corps under NEPA on Beaufort Sea oil and gas

development at Northstar. Comments on that document were accepted by

the Corps until August 31, 1998 (63 FR 43699, August 14, 1998). On

February 5, 1999 (64 FR 5789), EPA noted the availability for public

review and comment, a FEIS prepared by the Corps under NEPA on Beaufort

Sea oil and gas development at Northstar. Comments on that document

were accepted by the Corps until March 8, 1999. A copy of the FEIS is

available upon request (see ADDRESSES).

NMFS is a cooperating agency, as defined by the CEQ regulations (40

CFR 1501.6), on the preparation of this document. The FEIS on this

activity, which supplements information contained in the BPXA

application, is considered part of NMFS' record of decision on this

matter. Preliminarily, it also meets NOAA's NEPA responsibilities for

determining whether the activity proposed for receiving a small take

authorization is having a negligible impact on affected marine mammal

stocks and not having an unmitigable adverse impact on subsistence

needs. Based upon a review of the FEIS and the comments received during

this rulemaking, NMFS will either (1) adopt the Corps FEIS, (2) amend

the Corps FEIS to incorporate relevant comments, suggestions and

information, or (3) prepare supplemental NEPA documentation.

Classification

This action has been determined by the Office of Management and

Budget to be significant for purposes of E.O. 12866.

[[Page 57024]]

The Chief Counsel for Regulation of the Department of Commerce

certified to the Chief Counsel for Advocacy of the Small Business

Administration that this proposed rule, if adopted, will not have a

significant economic impact on a substantial number of small entities

within the meaning of the Regulatory Flexibility Act. If implemented,

this rule will affect only one or two large oil producing companies

which, by definition, are not small businesses. It will also affect a

small number of contractors providing services related to monitoring

the impact of oil development in the Beaufort Sea on marine mammals.

Some of the affected contractors may be small businesses, but the

number involved would not be substantial. Further, since the monitoring

requirement is what would lead to the need for their services, the

economic impact on them would be beneficial. For all the above reasons,

a regulatory flexibility analysis is not required.

This proposed rule contains collection-of-information requirements

subject to the provisions of the Paperwork Reduction Act (PRA). These

requirements have been approved by OMB under control number 0648-0151,

and include an application for an LOA, an interim report, and a final

report. Other information requirements in the rule are not subject to

the PRA since they apply only to a single entity and therefore are not

contained in a rule of general applicability.

Notwithstanding any other provision of law, no person is required

to respond to nor shall a person be subject to a penalty for failure to

comply with a collection of information subject to the requirements of

the PRA unless that collection of information displays a currently

valid OMB control number.

The reporting burden for the approved collections-of-information

are estimated to be approximately 3 hours for an application for a LOA,

and 80 hours each for interim and final reports. These estimates

include the time for reviewing instructions, searching existing data

sources, gathering an maintaining the data needed, and completing and

reviewing the collection-of-information. Send comments regarding these

burden estimates, or any other aspect of this data collection,

including suggestions for reducing the burden, to NMFS and OMB (see

ADDRESSES).

Information Solicited

NMFS requests interested persons to submit comments, information,

and suggestions concerning the BPXA request and the content of the

proposed regulations to authorize the taking. All commenters are

requested to review the application prior to submitting comments and

not submit comments solely on this Federal Register document.

List of Subjects in 50 CFR Part 216

Exports, Fish, Imports, Indians, Labeling, Marine mammals,

Penalties, Reporting and recordkeeping requirements, Seafood,

Transportation.

Dated: October 15, 1999.

Andrew A. Rosenberg,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For reasons set forth in the preamble, 50 CFR part 216 is proposed

to be amended as follows:

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE

MAMMALS

1. The authority citation for part 216 continues to read as

follows:

Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

2. Subpart R is added to part 216 to read as follows:

Subpart R-Taking of Marine Mammals Incidental to Construction and

Operation of Offshore Oil and Gas Platforms in the U.S. Beaufort

Sea

Sec.

216.200 Specified activity and specified geographical region.

216.201 Effective dates.

216.202 Permissible methods of taking.

216.203 Prohibitions.

216.204 Mitigation.

216.205 Measures to ensure availability of species for subsistence

uses.

216.206 Requirements for monitoring and reporting.

216.207 Applications for Letters of Authorization.

216.208 Letters of Authorization.

216.209 Renewal of Letters of Authorization.

216.210 Modifications to Letters of Authorization.

Subpart R--Taking of Marine Mammals Incidental to Construction and

Operation of Offshore Oil and Gas Platforms in the U.S. Beaufort

Sea

Sec. 216.200 Specified activity and specified geographical region.

Regulations in this subpart apply only to the incidental taking of

those marine mammal species specified in paragraph (b) of this section

by U.S. citizens engaged in oil and gas development activities in areas

within state and/or Federal waters in the U.S. Beaufort Sea specified

in paragraph (a) of this section. The authorized activities as

specified in a Letter of Authorization issued under Secs. 216.106 and

216.208 include, but may not be limited to, site construction,

including ice road and pipeline construction, vessel and helicopter

activity; and oil production activities, including ice road

construction, and vessel and helicopter activity, but excluding seismic

operations.

(a)(1) Northstar Oil and Gas Development Unit on Seal Island; and

(2) [Reserved]

(b) The incidental take by harassment, injury or mortality of

marine mammals under the activity identified in this section is limited

to the following species: bowhead whale (Balaena mysticetus), gray

whale (Eschrichtius robustus), beluga whale (Delphinapterus leucas),

ringed seal (Phoca hispida), spotted seal (Phoca largha) and bearded

seal (Erignathus barbatus).

Sec. 216.201 Effective dates.

Regulations in this subpart are effective from January 1, 2000,

through December 31, 2004.

Sec. 216.202 Permissible methods of taking.

(a) Under Letters of Authorization issued pursuant to Secs. 216.106

and 216.208, the Holder of the Letter of Authorization may

incidentally, but not intentionally, take marine mammals by harassment,

injury, and mortality within the area described in Sec. 216.200(a),

provided the activity is in compliance with all terms, conditions, and

requirements of these regulations and the appropriate Letter of

Authorization.

(b) The activities identified in Sec. 216.200 must be conducted in

a manner that minimizes, to the greatest extent practicable, any

adverse impacts on marine mammals, their habitat, and on the

availability of marine mammals for subsistence uses.

Sec. 216.203 Prohibitions.

Notwithstanding takings authorized by Sec. 216.200 and by a Letter

of Authorization issued under Secs. 216.106 and 216.208, no person in

connection with the activities described in Sec. 216.200 shall:

(a) Take any marine mammal not specified in Sec. 216.200(b);

(b) Take any marine mammal specified in Sec. 216.200(b) other than

by incidental, unintentional harassment, injury or mortality;

(c) Take a marine mammal specified in Sec. 216.200(b) if such

taking results in more than a negligible impact on the species or

stocks of such marine mammal; or

(d) Violate, or fail to comply with, the terms, conditions, and

requirements of

[[Page 57025]]

these regulations or a Letter of Authorization issued under

Sec. 216.106.

Sec. 216.204 Mitigation.

The activity identified in Sec. 216.200(a) must be conducted in a

manner that minimizes, to the greatest extent possible, adverse impacts

on marine mammals and their habitats. When conducting operations

identified in Sec. 216.200, the mitigation measures contained in the

Letter of Authorization issued under Secs. 216.106 and 216.208 must be

utilized.

Sec. 216.205 Measures to ensure availability of species for

subsistence uses.

When applying for a Letter of Authorization pursuant to

Sec. 216.207, or a renewal of a Letter of Authorization pursuant to

Sec. 216.209, the applicant must submit a Plan of Cooperation that

identifies what measures have been taken and/or will be taken to

minimize any adverse effects on the availability of marine mammals for

subsistence uses. A plan must include the following:

(a) A statement that the applicant has notified and met with the

affected subsistence communities to discuss proposed activities and to

resolve potential conflicts regarding timing and methods of operation;

(b) A description of what measures the applicant has taken and/or

will take to ensure that oil development activities will not interfere

with subsistence whaling or sealing;

(c) What plans the applicant has to continue to meet with the

affected communities to notify the communities of any changes in

operation.

Sec. 216.206 Requirements for monitoring and reporting.

(a) Holders of Letters of Authorization issued pursuant to

Secs. 216.106 and 216.208 for activities described in Sec. 216.200 are

required to cooperate with the National Marine Fisheries Service, and

any other Federal, state or local agency monitoring the impacts of the

activity on marine mammals. Unless specified otherwise in the Letter of

Authorization, the Holder of the Letter of Authorization must notify

the Administrator, Alaska Region, National Marine Fisheries Service, or

his/her designee, by letter or telephone, at least 2 weeks prior to

initiating activities possibly involving the taking of marine mammals.

(b) Holders of Letters of Authorization must designate qualified

on-site individuals, approved in advance by the National Marine

Fisheries Service, to conduct the mitigation, monitoring and reporting

activities specified in the Letter of Authorization issued pursuant to

Sec. 216.106 and Sec. 216.208.

(c) Holders of Letters of Authorization must conduct all monitoring

and/or research required under the Letter of Authorization.

(d) The Holder of the Letter of Authorization must submit an

interim report to the Director, Office of Protected Resources, National

Marine Fisheries Service, no later than 180 days prior to expiration of

the Letter of Authorization. This report must contain all information

required by the Letter of Authorization.

(e) A final comprehensive report must be submitted to the National

Marine Fisheries Sevice at least 240 days prior to expiration of these

regulations.

Sec. 216.207 Applications for Letters of Authorization.

(a) To incidentally take bowhead whales and other marine mammals

pursuant to these regulations, the U.S. citizen (see definition at

Sec. 216.103) conducting the activity identified in Sec. 216.200, must

apply for and obtain either a Letter of Authorization in accordance

with Secs. 216.106 and 216.208, or a renewal under Sec. 216.209.

(b) The application for a Letter of Authorization must be submitted

to the National Marine Fisheries Service at least 180 days before the

activity is scheduled to begin.

(c) Applications for Letters of Authorization must include all

information items identified in Sec. 216.104(a).

(d) NMFS will review an application for a Letter of Authorization

in accordance with Sec. 216.104(b) and, if adequate and complete, will

publish a notice of receipt of a request for incidental taking and, in

accordance with Administrative Procedure Act requirements, a proposed

amendment to Sec. 216.200(a). In conjunction with amending

Sec. 216.200(a), the National Marine Fisheries Service will provide a

minimum of 45 days for public comment on the application.

(e) Upon receipt of a complete application, and at its discretion,

the National Marine Fisheries Service may submit the monitoring plan to

members of a peer review panel for review and/or schedule a workshop to

review the plan. Unless specified in the Letter of Authorization, the

applicant must submit a final monitoring plan to the Assistant

Administrator prior to the issuance of a Letter of Authorization.

Sec. 216.208 Letters of Authorization.

(a) A Letter of Authorization, unless suspended, revoked or not

renewed, will be valid for a period of time not to exceed the period of

validity of this subpart, but must be renewed annually subject to

annual renewal conditions in Sec. 216.209.

(b) Each Letter of Authorization will set forth:

(1) Permissible methods of incidental taking;

(2) Means of effecting the least practicable adverse impact on the

species, its habitat, and on the availability of the species for

subsistence uses; and

(3) Requirements for monitoring and reporting, including any

requirements for the independent peer-review of proposed monitoring

plans.

(c) Issuance of each Letter of Authorization will be based on a

determination that the number of marine mammals taken by the activity

will be small, that the total number of marine mammals taken by the

activity as a whole will have no more than a negligible impact on the

species or stock of affected marine mammal(s), and will not have an

unmitigable adverse impact on the availability of species or stocks of

marine mammals for taking for subsistence uses.

(d) Notice of issuance or denial of a Letter of Authorization will

be published in the Federal Register within 30 days of a determination.

Sec. 216.209 Renewal of Letters of Authorization.

(a) A Letter of Authorization issued under Sec. 216.106 and

Sec. 216.208 for the activity identified in Sec. 216.200 will be

renewed annually upon:

(1) Notification to the National Marine Fisheries Service that the

activity described in the application submitted under Sec. 216.207 will

be undertaken and that there will not be a substantial modification to

the described work, mitigation or monitoring undertaken during the

upcoming season;

(2) Timely receipt of the monitoring reports required under

Sec. 216.205, which have been reviewed by the National Marine Fisheries

Service and determined to be acceptable, and the Plan of Cooperation

required under Sec. 216.205; and

(3) A determination by the National Marine Fisheries Service that

the mitigation, monitoring and reporting measures required under

Sec. 216.204 and the Letter of Authorization were undertaken and will

be undertaken during the upcoming annual period of validity of a

renewed Letter of Authorization.

(b) If a request for a renewal of a Letter of Authorization issued

under Secs. 216.106 and 216.208 indicates that a substantial

modification to the described work, mitigation or monitoring undertaken

during the

[[Page 57026]]

upcoming season will occur, the National Marine Fisheries Service will

provide the public a period of 30 days for review and comment on the

request.

(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.

Sec. 216.210 Modifications to Letters of Authorization.

(a) In addition to complying with the provisions of Secs. 216.106

and 216.208, except as provided in paragraph (b) of this section, no

substantive modification (including withdrawal or suspension) to the

Letter of Authorization issued pursuant to Secs. 216.106 and 216.208

and subject to the provisions of this subpart shall be made until after

notification and an opportunity for public comment has been provided.

For purposes of this paragraph, a renewal of a Letter of Authorization

under Sec. 216.209, without modification (except for the period of

validity), is not considered a substantive modification.

(b) If the Assistant Administrator determines that an emergency

exists that poses a significant risk to the well-being of the species

or stocks of marine mammals specified in Sec. 216.200(b), a Letter of

Authorization issued pursuant to Secs. 216.106 and 216.208 may be

substantively modified without prior notification and an opportunity

for public comment. Notification will be published in the Federal

Register within 30 days subsequent to the action.

[FR Doc. 99-27578 Filed 10-21-99; 8:45 am]

BILLING CODE 3510-22-F