34014 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Rules and Regulations

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 216

[Docket No. 990901241–0116–02; I.D.

123198B]

RIN 0648–AM09

Taking and Importing Marine

Mammals; Taking Marine Mammals

Incidental to Construction and

Operation of Offshore Oil and Gas

Facilities in the Beaufort Sea

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: NMFS, upon application from

BP Exploration (Alaska), 900 East

Benson Boulevard, Anchorage, AK

99519 (BPXA) issues regulations to

govern the unintentional take of a small

number of marine mammals incidental

to construction and operation of

offshore oil and gas facilities at the

Northstar development in the Beaufort

Sea in state and Federal waters.

Issuance of regulations governing

unintentional incidental takes in

connection with particular activities is

required by the Marine Mammal

Protection Act (MMPA) when the

Secretary of Commerce (Secretary), after

notice and opportunity for comment,

finds, as here, that such takes will have

a negligible impact on the species and

stocks of marine mammals and will not

have an unmitigable adverse impact on

the availability of them for subsistence

uses. These regulations do not authorize

BPXA’s activity as such authorization is

not within the jurisdiction of the

Secretary. Rather, these regulations

authorize the unintentional incidental

take of marine mammals in connection

with such activities and prescribe

methods of taking and other means of

effecting the least practicable adverse

impact on the species and its habitat,

and on the availability of the species for

subsistence uses.

DATES: Effective May 25, 2000, until

May 25, 2005.

ADDRESSES: A copy of the updated

application, Technical Monitoring Plan,

Biological Opinion, Environmental

Assessment (EA), and a list of the

references used in this document may

be obtained by writing 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, 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 Chief, and to the Office of

Information and Regulatory Affairs,

Office of Management and Budget

(OMB), Attention: NOAA Desk Officer,

Washington, DC 20503.

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 MMPA (16

U.S.C. 1361 et seq.) directs the 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 if 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 Letters of

Authorization (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 facilities 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

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

(Greenpeace), the Alaska Eskimo

Whaling Commission (AEWC), the

North Slope Borough (NSB), and the

Inupiat Community of the Arctic Slope.

Those comments were addressed in the

preamble to the proposed rule which

was published on October 22, 1999 (64

FR 57010).

Because of delays in construction

during 1999, and in issuing a proposed

rule on this matter, on October 1, 1999,

BPXA updated their application to

NMFS. Among other things, the revised

application removed from this

rulemaking a request for a take of

marine mammals incidental to

construction and operation at Liberty.

The revised 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

the Northstar Unit offshore oil

development. This development will be

the first in the Beaufort Sea that uses a

subsea pipeline to transport oil to shore

and then into the Trans-Alaska Pipeline

System. The Northstar Unit is located

on Seal Island 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 began in December 1999

with the construction of ice roads. Both

island construction and offshore

pipeline installation is scheduled to

occur in 2000. Construction activity

includes the construction of several ice

roads, one from West Dock and Pt.

McIntyre 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

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Rules and Regulations 34015

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–inch (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 barges are

expected to make approximately 90 to

100 round-trips from Prudhoe Bay or

Endicott to support construction.

The operational phase will begin with

drilling as early as the fourth quarter of

2000, and will continue for about 2

years. Power will be supplied by diesel

generators. This phase of drilling will

temporarily cease in mid-2001 to allow

installation and start-up of process

facilities. Drilling is expected to resume

about 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.

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 October 22, 1999 (64 FR 57010),

NMFS published a notice of proposed

rulemaking on BPXA’s application and

invited interested persons to submit

comments, information, and suggestions

concerning the application and

proposed rule. During the 60-day

comment period on that notice,

comments were received from BPXA,

the MMC, Greenpeace, the NSB, and the

AEWC. Their comments are addressed

here.

Activity Concerns

Comment 1: The NSB believes that

the Northstar Project area analysis

should not be limited to the area

immediately adjacent to Seal Island and

the pipeline corridor, but expanded to

also include the proposed sealift route,

and any other route to be used by oceangoing vessels in support of the project,

aircraft and vessel paths, and any icefree corridors to be maintained to

facilitate oil spill response.

Response: NMFS agrees that a small

number of takings by harassment of

marine mammals could occur as a result

of these activities, which were

addressed in BPXA’s application.

However, it is NMFS policy that, in

most cases, small take authorizations are

unnecessary solely for transiting vessels,

such as those described in BPXA’s

application and those providing

transportation and supplies to NSB

communities, unless the vessel activity

has some potential to result in a

significant biological response in the

marine mammal(s) or affects the

subsistence needs of Alaskan

communities (e.g., conducting, or in

support of seismic, and possibly icebreaking). In most cases, vessels are

presumed not to alter marine mammal

behavior sufficient to constitute a taking

by harassment. Because barges are

expected to travel in inshore waters,

where bowheads are less likely to occur,

and to travel between Northstar, West

Dock, and Barrow and, therefore, have,

at most, minimal impact on subsistence

whaling by Nuiqsut, and because there

is no information that these vessels will

have an adverse impact on bowhead

whaling at Barrow, NMFS has

determined that, based on the record,

there will not be an unmitigable adverse

impact on bowhead whaling from vessel

movement in support of Northstar. If the

AEWC determines otherwise, NMFS

believes they will make vessel

movement a subject of discussion for

the Conflict and Avoidance Agreement

(C&AA). Under that agreement, BPXA

will either agree to cease all vessel

traffic between the beginning and end of

the fall bowhead subsistence harvest, or

limiting vessel traffic during this time

period in accordance with the C&AA.

While BPXA would be responsible for

maintaining the ice-free channel in

order to facilitate oil spill response, the

U.S. Army Corps of Engineers (Corps)

permit prohibits ice breaking until

October 15, meaning that ice-breaking

will not occur until after most, if not all

of the bowhead migration and

subsistence whaling have concluded for

the year. Any ice-breaking occurring

prior to the end of the bowhead

subsistence harvest at Nuiqsut is not

considered part of the request by BPXA

and, therefore, cannot be authorized for

a taking of marine mammals.

An estimate of incidental harassments

by aircraft is not necessary because

helicopters must remain at a minimum

altitude of 1,000 ft (305 m), weather

permitting (except when landing or

taking off). NMFS understands that

other permits require helicopters at

Northstar to maintain an altitude of

1,500 ft (457 m). At 1,000–ft altitude

and higher, takings of marine mammals

are unlikely to occur. At altitudes lower

than 1,000 ft (305 m), while seals may

make minor behavioral changes to the

helicopter noise, these changes are

unlikely to alter seal behavior sufficient

to constitute a take. Further reducing

potential impacts, helicopter traffic will

be between shore and Northstar and

bowhead and beluga whales are

normally found in waters north of

Northstar, outside the area of helicopter

traffic.

NMFS recognizes however, that

helicopter traffic patterns may change in

the future when, and if, additional oil

development structures are sited. NMFS

intends to review the impacts from

structure to structure flights when these

activities apply for an initial LOA under

these regulations. Applicants are

encouraged to address this form of

taking on marine mammals, especially

bowhead whales and the subsistence

hunting of this species, when applying

for an LOA. Failure to adequately

address this issue may result in a delay

in processing applications.

MMPA Concerns

Comment 2: Greenpeace states that

the artificial segmentation of industrial

activities on the North Slope (e.g.,

seismic, oil exploration, oil

development) is not permitted under the

MMPA. Later Greenpeace notes that the

proposed actions artificially segment the

environmental review of Northstar and

its impacts, thereby violating the

National Environmental Policy Act

(NEPA) and the Endangered Species Act

(ESA). As a result, Greenpeace requests

that its March 10, 1999, comments on

the Final Environmental Impact

Statement (FEIS) for Northstar, be

incorporated by reference.

Response: When Congress

implemented the 1981 Amendments to

the MMPA, which authorized the

Secretary to allow specified activities to

obtain an exemption from the MMPA’s

moratorium on taking without a

requirement to waive the moratorium

under section 101(a) of the MMPA, it

34016 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Rules and Regulations

put certain provisions on when and

where the Secretary may grant those

exemptions. One requirement was for

the activity to be as specific as possible.

Congress stated: ‘‘It is the intention of

the Committee that both the specified

activity and the specified region referred

to in section 101(a)(5) 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). To the extent practicable, NMFS

follows this guidance when

promulgating regulations under section

101(a)(5) of the MMPA. As discussed

throughout this document, NMFS does

not believe that its action is in violation

of either NEPA or the ESA.

The Corps’ draft environmental

impact statement (DEIS), FEIS, and the

comments that were submitted to the

Corps on those documents are

considered to be part of NMFS’ Record

of Decision on this matter.

Comment 3: Greenpeace states that

the proposed regulations fail to consider

reasonably foreseeable exploration and

development activities in the Beaufort

Sea on the part of companies other than

BPXA. The NSB expressed similar

concerns regarding BPXA’s application.

Response: NMFS has designed these

regulations so that as new oil

development units are constructed in

the Beaufort Sea, and companies apply

for a LOA for the taking of marine

mammals, NMFS will need to make a

finding that the ‘‘total taking by the

activity’’ will have no more than a

negligible impact on marine mammals

and not have an unmitigable adverse

impact on subsistence uses of these

mammals. NMFS is not required to

make these findings beforehand, when

future activities remain speculative and

impacts on marine mammals have not

been fully assessed under NEPA.

NMFS believes that the Corps’ FEIS

addresses, to the extent possible, the

cumulative impacts of past and future

impacts on marine mammals and

subsistence whaling (see Chapt. 10 of

the FEIS). That document notes that

‘‘[T]he potential for future

developments to cause or contribute to

any deflection of the [bowhead]

migration or impact the harvest will

depend largely upon the proposed

location with respect to the traditional

migratory path and traditional harvest

areas. Accordingly, proposed future

projects will have to be analyzed on a

case-by-case basis to determine whether

and how they may cause or contribute

to any effects on the bowhead migration

or subsistence harvest.’’

Application Concerns

Comment 4: The NSB encourages

NMFS to require BPXA to submit a

modified petition which contains the

level of detail and an organization

which will allow for a meaningful

review of the potential impacts of

proposed Northstar development.

Response: NMFS does not agree that

NMFS should reject BPXA’s

application. On March 1, 1999, NMFS

provided duplicate sets of NMFS’

ANPR, including BPXA’s application,

on this action to the NSB. ANPRs are

provided in order for the public to

provide comments on the adequacy of

an applicant’s application for an

incidental take and on the applicant’s

activity. The NSB did not provide

NMFS with comments during that 30-

day public comment period. In addition,

as discussed within this document,

NMFS believes the NSB does not

provide sufficient justification for

NMFS to determine that the application

did not meet the requirements in

§ 216.104.

Comment 5: The NSB notes that the

application has more the appearance of

a summary document than a completed

document and is lacking in sufficient

detail to allow for a meaningful

assessment of whether the proposed

activities meet the standards that will

permit NMFS to issue the requested

LOA.

Response: The MMPA requires NMFS

to make its findings based on the best

scientific evidence available that the

total taking by the specified activity

during the specified time period will

have a negligible impact on species or

stock of marine mammal(s) and will not

have an unmitigable adverse impact on

the availability of those species or

stocks intended for subsistence

purposes. NMFS is not restricted to the

information provided by an applicant

when making its findings, recognizing

that some biases may be provided in an

application. In those cases where the

applicant provides the majority of the

information for NMFS’ findings, and

supplementary documentation (e.g., a

DEIS or FEIS) is lacking, NMFS holds

applicants to a higher standard for

determining what is an acceptable

application. However, in those cases

where supplementary information is

available, especially when that

information is provided independent of

the applicant, NMFS believes that an

application need not provide extensive

detail that can easily be found

elsewhere. In this case, the

supplementary information was

provided by the Corps in its DEIS and

FEIS on this action. The difficulty for

the applicant in this action was that it

did not have access to the material and

analyses provided in the DEIS prior to

its release. In addition, as is their right,

BPXA is not required to totally agree

with the findings in the DEIS/FEIS. As

a result, there may be certain

distinctions between information

contained in the application and that in

the DEIS/FEIS. It is the responsibility of

NMFS to determine which document, if

either, is correct.

Proposed Rule Concerns

Comment 6: BPXA believes the

proposed regulations are confusing

regarding which portions of the rule

address applications or petitions for

rulemaking and which portions of the

rule address applications for LOAs.

BPXA recommends using specific terms

consistently to contrast the two steps

required to authorize the activity. BPXA

suggests utilizing a petition for

regulations, and a request for an LOA.

Response: These regulations do not

distinguish between applications for

LOAs and petitions for rulemaking.

While an application for an LOA

requires rulemaking, it is a single-step

process under these regulations. NMFS

believes the commenter has confused

these regulations with those in subpart

I, which distinguishes between petitions

for regulations, applications for LOAs

and applications for Incidental

Harassment Authorizations (IHAs).

Because subpart I is not being amended

at this time, BPXA’s recommendation

cannot be accepted. It should be

understood however, that NMFS does

not intend to require a dual process for

issuing future initial LOAs, that is,

rulemaking followed by review of an

application for an LOA. NMFS intends

the two processes to proceed at the same

time.

Comment 7: BPXA presumes that the

term ‘‘platform’’ in the rulemaking title

includes drilling islands. The proposed

activity does not involve an offshore oil

rig platform but rather a permanent

man-made gravel island.

Response: To avoid confusion, NMFS

has replaced the term ‘‘platforms’’ with

‘‘facilities’’ to better describe the various

types of oil and gas development

activities that can obtain a small take

authorization under this rulemaking.

Comment 8: BPXA notes that the term

‘‘Northstar Oil and Gas Development

Unit on Seal Island,’’ found in

§ 216.200(a), appears to limit the

authorization for taking to the island

and not include related activities such

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Rules and Regulations 34017

as the pipelines. BPXA recommends

dropping the words ‘‘Unit on Seal

Island’’ from that paragraph.

Response: NMFS agrees and has made

the change.

Comment 9: BPXA pointed out that

NMFS regulations at § 216.104(a)(12)

regarding a Plan of Cooperation (POC)

differ from those in these regulations

(§ 216.205).

Response: In response to NMFS’

proposed regulations (see 60 FR 28379,

May 31, 1995) one commenter noted

that not all activities required

submission of formal POC. As a result,

NMFS modified the interim rule (see 61

FR 15884, April 10, 1996) from that

originally proposed. However, while in

this rulemaking, a POC is viewed as

essential, there is no requirement that it

be a formal document, separate from the

LOA application.

Comment 10: BPXA noted that a POC

is different from the C&AA.

Response: NMFS agrees. A POC is a

set of information provided to NMFS at

the time an applicant requests an LOA

for activities in the Arctic. The C&AA is

a formal agreement between the

activity’s participants and the AEWC.

NMFS does not play a role in its

development or implementation. As a

courtesy, NMFS often receives a copy of

the C&AA after it is signed.

Comment 11: BPXA recommends that

NMFS consider including in the rule a

time period by which NMFS must

respond to an LOA request with either

approval or denial. The applicant

should be advised of a decision within

a specified time period to avoid ongoing

expectations of an LOA being granted or

missing an entire season because NMFS

approval or denial is not under any time

limit.

Response: While NMFS understands

the concern, rulemakings cannot be held

to specific timelines which may

preclude adequate public review and/or

limit the decision-making process.

Because rulemakings normally will take

8–12 months for completion, NMFS

recommends applicants submit

complete applications as close as

possible to the time that the principal

Federal agency releases its NEPA

document for public review and

comment.

Comment 12: BPXA notes that it

submitted its request for an LOA on

November 30, 1998, and that this

submission fulfills the requirement

under § 216.207(d).

Response: NMFS concurs. BPXA

submitted its application for an LOA

under § 216.104 on November 30, 1998,

and a 30-day public comment period

commenced on March 1, 1999 (64 FR

9965). Based in part on the comments

received by NMFS and delays in both

BPXA’s construction schedule and

NMFS’ processing the application,

BPXA submitted a revised LOA

application on October 1, 1999 (received

on October 15, 1999). A 60-day

comment period on the revised LOA

application began on October 22, 1999

(64 FR 57010). Those review periods

satisfy the requirement of § 216.207(d).

LOA Concerns

Comment 13: The AEWC recommends

that NMFS provide a minimum of 90

days for public review and comment on

any new LOA request for arctic offshore

production-related activities.

Response: NMFS believes that a 90-

day public comment period is excessive

and unnecessary given that new LOAs

under these regulations will have

several comment periods. First, either

the Minerals Management Service or the

Corps will provide for review and

comment on a document under NEPA,

presumably a DEIS, on any oil

development in the Beaufort Sea. Such

comment periods are a minimum of 45

days, and likely 60 days or longer.

Second, NMFS will announce the

availability of an application for a small

take authorization incidental to the

offshore production unit and will offer

the public a minimum of 30 days for

review of the application. Finally, if

NMFS proposes regulations to govern

the incidental taking, the public will be

offered another comment period of 45–

60 days, as was done for the Northstar

authorization. Because NMFS’ two

review periods provide the public with

a total of 75 to 90 days, subsequent to,

or in conjunction with, the review

period for the oil production project

itself under NEPA, NMFS does not

believe the additional time period is

warranted.

It should be recognized however, that

NMFS has already published and

provided for public comment on

BPXA’s application for the Liberty oil

development project (64 FR 9965,

March 1, 1999). Because of a delay in

timing for the start of the Liberty project

due to NEPA, NMFS expects that BPXA

will submit a revised application for

Liberty. Because NMFS has already

provided public notice on BPXA’s

application for a small take for the

Liberty project, NMFS will not

reannounce receipt of the application,

but will proceed immediately to the

proposed rule stage. As a result, and for

this application only, NMFS expects to

provide an extended public comment

period of 90 days to allow the public

adequate time for review both the

application and the proposed rule, in

lieu of providing another review limited

to BPXA’s Liberty application.

Comment 14: BPXA believes that a

public comment period should not be

required for renewal of LOAs under

§ 216.209(a)(2) only during the petition

for regulations. If the activity applied for

does not fall within the scope of the

existing regulations, then the petition

process for new or revised regulations

should be followed which includes a

public comment period. Having

concerns about the adequacy of section

101(a)(5)(A) of the MMPA to provide

mitigation measures from the potential

adverse impact from oil production, the

AEWC and the NSB recommend that

NMFS issue an LOA that is either only

for construction at Northstar, or is

limited to only one year, in order to

provide an opportunity to discuss

mitigation measures and other

protections for oil production activities.

In addition, the AEWC requests that the

public be granted a minimum of 30 days

to review a renewal of an LOA.

Response: NMFS has reviewed the

LOA reissuance concerns and notes that

it has 3 options: (1) Reissue an LOA

annually based upon timely receipt of

reports without public comment prior to

reissuance, (2) reissue an LOA annually

based upon timely reports after a public

comment period, or (3) issue an LOA for

all or a portion of the 5-year period of

validity of the regulations. Because

under implementing interim regulations

(see § 216.106(e)), NMFS would be

required to provide a 30-day public

comment period (except in cases where

there is a significant risk to impacted

marine mammals) prior to withdrawal,

or even temporary suspension of, an

LOA, for failure to meet any of the

requirements of the regulations or the

LOA, issuing LOAs for periods greater

than one year is generally not acceptable

to NMFS. Whether an opportunity for

public comment is provided depends

entirely on whether NMFS determines

that all substantive issues have been

addressed satisfactorily during

rulemaking. If so, then little would be

accomplished by annually revisiting

these issues.

In this action however, several issues

remain unresolved, the principal ones

being the implementation of effective

marine mammal mitigation and

monitoring during oil production, the

peer review of monitoring plans, and

the submission of annual POCs.

Therefore, NMFS has determined that

LOA renewals under this rulemaking

will have a requirement for a 30-day

public review period, at least in the

early years of renewal. However, in

order to expedite the LOA renewal

process, NMFS will open the review

34018 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Rules and Regulations

process to the following issues only: (1)

New citable scientific data or

information (including Traditional

Knowledge) that indicates that the

determinations made in this document

are in need of reconsideration, (2)

comments on the POC, and (3)

comments on a proposed monitoring

plan. NMFS will give full consideration

to all comments submitted within the

authorized comment period when

making its determination on reissuance.

In addition, because of the requirement

to submit timely reports with an LOA

renewal application, it is expected that

there will be only a limited amount of

time between the date a request for an

LOA renewal is submitted, and the date

of expiration of the current LOA. As a

result, NMFS will act on a request for

an LOA renewal in a timely manner, but

is unlikely to extend the public

comment period beyond 30 days, unless

there are compelling circumstances. In

addition, these regulations allow NMFS

to waive the public comment period

once either multi-year mitigation

(including POCs) and monitoring plans

have been submitted to NMFS and

reviewed by the peer review process

described in the LOA and NMFS

determines that no significant issues

remain substantially unresolved.

Since construction work at Northstar

will continue through at least

November, 2000, issuance of an LOA

limited only to construction has been

accepted by NMFS. In the meantime,

discussion on appropriate mitigation

and monitoring during production can

continue. However, to ensure that

takings resulting from uncompleted

construction work late in 2000 or early

2001, if any, are covered, NMFS has

made the LOA valid for a full 12

months, but only for construction.

Comment 15: BPXA suggests that

NMFS clarify that § 216.210(a) is

intended to apply to the case of a

proposed withdrawal of the LOA by

NMFS, not by the applicant.

Response: NMFS agrees and has

amended § 216.210(a) as recommended.

Take Level Concerns

Comment 16: Greenpeace states that

NMFS accepts the applicant’s assertion,

with no scientific or other basis, that the

number of takes of whales during

operation and during construction of

Northstar will be identical. There is no

estimate of take or possible jeopardy

from a variety of oil spill scenarios * * *

and from the resultant cleanup

activities. The NSB believes that it is

unacceptable for the petition not to

provide any estimate of the potential

number of individuals of any subject

species which could potentially be

taken in the event of an oil spill

associated with Northstar.

Response: While not identical, the

estimated take levels by incidental

harassment are similar. Calculations for

incidental take levels by both

construction and production are

described in detail in the original and

revised BPXA applications. NMFS

believes that these calculations are

based upon the best scientific

information available. As a result,

NMFS has accepted these take

estimates. However, NMFS recognizes

that, for reasons explained later in this

document, these estimates do not

include takes by harassment, injury, or

mortality incidental to oil spills.

Comment 17: BPXA noted that the

estimated levels of take provided in the

preamble to the proposed rule were not

updated based upon estimates provided

in the September 30, 1999, revised

application.

Response: Unfortunately, updates

could not be made to the preamble to

the proposed rule because the revised

application was not received in time to

revise the proposed rulemaking without

further delaying the release of the

proposed rule. However, NMFS has

made the appropriate corrections in this

document.

Negligible Impact Concerns

Comment 18: The MMC notes that (1)

the path of the fall bowhead migration

varies substantially from year to year;

(2) that in most years comparatively few

bowhead whales are likely to pass

within 10 km (6.2 mi) of the Northstar

site; and, (3) that any changes in

swimming speed, direction, or other

behavior caused by Northstar activities

are unlikely to affect the size or

productivity of the bowhead population

(or of bowheads to Alaska natives for

subsistence purposes). Because the

available data are insufficient to be

confident that both the population level

effects (and the impacts on Native

subsistence hunting) would be

negligible, the MMC believes it would

be more appropriate to base the

assessment of possible impacts on the

worst case scenario, and considering

possible cumulative impacts over the

full 15–20 years that production is

expected at the Northstar site, rather

than basing the assessment on the best

available estimate of the average take

level over the next 5 years.

Response: NMFS does not agree that

it should make an assessment of take

levels over the 15–20 year lifetime of the

Northstar Unit. Under the MMPA,

NMFS must make a determination that

the ‘‘total of such taking during each 5-

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 purposes * * *.’’

Also, NMFS does not consider it

necessary to make a negligible impact

determination on the worst case

scenario. NMFS believes that using the

worst case estimate does not provide a

realistic estimate of harassment take

levels. NMFS suggests that reviewers

note the detailed explanation in the

application on how BPXA estimated

take levels. The best scientific data

indicates that, between 1979 and 1997,

a period of 18 years of data collection,

bowheads came within 10 km (6.2 mi)

of the site of the future Northstar Unit

only during 1997 (BPXA, 1999). This

being the case, there is simply no need

to presume that this migratory

deflection would occur during each of

the next 5 years. However, NMFS has

determined that, because this closeapproach did occur in a recent year, a

more reliable estimate of take can be

made by presuming that this take level

could occur again once or twice within

the next 5 year period. Therefore, NMFS

has determined that an average annual

take by harassment, due to noise from

construction and operation at Northstar,

as calculated by BPXA (i.e., 173

(maximum 1,533) per year) would result

in a maximum of 717 bowheads

annually or approximately 9 percent of

the revised 1993 estimated population

size of 8,200 (95 percent CI, 7,200–

9,400) (Hill and DeMaster, 1999; IWC,

1996). NMFS notes that this harassment

will be limited to a deflection in

migration and would be considered a

taking by Level B harassment. Such a

taking would result in only small

numbers being taken and having no

more than a negligible impact (both as

defined in § 216.103) on bowhead

whales.

Finally, NMFS disagrees with the

MMC that the available data are

insufficient to be confident that both the

population level effects (and the

impacts on Native subsistence hunting)

would be negligible. The take levels

under discussion here are limited to

harassment due to noise disturbance by

construction and later production at the

Northstar Unit. The level of noise

produced at Northstar is expected to be

substantially less than that produced

during seismic surveys, and, unlike

seismic, Northstar is stationary and

located well inshore of the normal

migratory path of the bowhead whale. In

addition, the bowhead whale

population has increased from

approximately 4,400 (CV 3,500 to 5,300)

(Zeh et al., 1993) in 1978 to

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Rules and Regulations 34019

approximately 8,200 in 1993 (Hill and

DeMaster, 1999). A population increase

of approximately 3.1 percent annually

(Raftery et al. 1995, NMFS, 1999),

coincident with oil exploration and

development activity (including

seismic), provides evidence that takings

due to harassment by noise at Northstar

will not have more than a negligible

impact on bowhead whales.

However, of more concern to NMFS is

the impact, not by Northstar alone, but

the cumulative impact in the future by

several offshore oil developments and

seismic activity on the subsistence

lifestyle of the North Slope residents.

This is discussed in more detail later in

this document.

Comment 19: Greenpeace notes that

NMFS fails (1) to adequately consider

the impact if the maximum number of

bowhead whale takes (1,533 per year for

the 5-year period or a total of 7,665

bowheads actually occurs, and (2) to

justify its conclusion that the takings at

this level would not be expected every

year or would not jeopardize the

species.

Response: Please refer to the response

to previous comment. As noted in the

application and in the preamble to the

proposed rule, the taking of up to 173

(maximum 1,533/year) is limited to

harassment, meaning the taking is for

the short-term incidental harassment by

noise disturbance, resulting in a shortterm behavior change, such as a slight

deflection of its westward migration

route.

While NMFS recognizes that there is

some potential that bowheads (and

other marine mammal species) may be

harassed, injured or killed due to an oil

spill from Northstar, NMFS determined

previously, under section 7 of the ESA,

that oil and gas development at

Northstar would not jeopardize the

continued existence of the bowhead

whale.

Comment 20: The NSB questions the

citation in BPXA’s application (i.e.,

NMFS, 1997), whether NMFS subscribes

to the policy regarding a determination

of negligible impact where the impact

may be more than negligible, but the

likelihood of occurrence is minimal,

and whether NMFS will continue this

policy in regard to future proposed OCS

development projects.

Response: The reference cited in the

BPXA application is NMFS’ Federal

Register notice of issuance of an IHA to

the ARCO Oil Company for oil

exploration in Camden Bay, Alaska (see

62 FR 51637, October 2, 1997). In that

document, NMFS stated that when

making a negligible impact

determination, NMFS can find that a

negligible impact determination may be

appropriate if the probability of

occurrence is low, but the potential

effects may be significant. This

statement has been made by NMFS

previously (see 53 FR 8474, March 15,

1988) and can also be found in NMFS’

Programmatic EA (NMFS, 1995) for

implementation of regulations found at

subpart I of this part. In stating this

policy for this and other activities,

NMFS is following Congressional

direction to balance the potential for a

significant impact with the likelihood of

that event occurring. The specific

Congressional direction that justifies

balancing probabilities with impacts

states: ‘‘If potential effects of a specified

activity are conjectural or speculative, a

finding of negligible impact may be

appropriate. A finding of negligible

impact may also be appropriate if the

probability of occurrence is low but the

potential effects may be significant. In

this case, the probability of occurrence

of impacts must be balanced with the

potential severity of harm to the species

or stock when determining negligible

impact. In applying this balancing test,

the Service will thoroughly evaluate the

risks involved and the potential impacts

on marine mammal populations. Such

determination will be made based on

the best available scientific

information.’’ (132 Cong. Rec. S 16305

(Oct. 15, 1986)).

Comment 21: Greenpeace notes that

the available information shows that if

there is a major oil spill, the impacts

would be severe, and, therefore, NMFS

cannot find negligible impact. The risk

of a long-term chronic leak, a large spill

of 1,000 barrels or more, drill rig

blowout and other occurrences exists.

Because these events are still possible,

BPXA must analyze and incorporate the

marine mammal take that would occur.

Response: Keeping in mind the

response to the previous comment,

NMFS notes that, while a large oil spill,

if it occurred, has the potential to have

impacts on bowhead whales and other

marine mammal species that are more

than negligible, the possibility for a

large oil spill to occur is believed by

NMFS to be minimal. The Corps’ FEIS

describes in detail calculations it made

for the probability for a major oil spill

occurring at Northstar. According to that

document there is a 1.6–5-percent

chance of a major oil spill occurring

along the offshore portion of the

pipeline over the first 15 years of

operation and a 7-percent chance that

there would be a major spill due to

platform operations over the life of the

platform. NMFS accepts these estimates

as the best information available.

Additionally, spilled oil would need

to occur at a time and/or location where

it could intercept bowhead whales or

other marine mammal species. The FEIS

describes the fate and consequences of

having a major oil spill during different

seasons of the year. NMFS also

considers this information to be the best

scientific information available. As a

result, NMFS believes that, because the

likelihood of a major oil spill occurring

and impacting marine mammals is low

for the period of these regulations, it is

both impractical and speculative to

calculate take levels for major oil spills.

The low probability of a major oil spill

impacting marine mammals also allows

NMFS to make a determination that the

taking would have no more than a

negligible impact on marine mammals

in accordance with Congressional

direction mentioned previously.

However, NMFS recognizes that in

the unlikely event that a major oil spill

did occur, the impact has some

potential to be more than negligible. As

a result, NMFS has determined that, in

the event a major oil spill occurs, NMFS

will need to reassess immediately its

determination in this document that the

taking of marine mammals by oil and

gas development activities in the

Beaufort Sea is having no more than a

negligible impact on marine mammals.

If, because the takings are projected to

exceed the levels used in this document

to make a negligible impact finding,

NMFS can no longer make a negligible

impact determination, NMFS will

immediately suspend the LOA issued

for the oil development project causing

the impact. Because the LOA

suspension falls under the emergency

determination for LOA suspension

under these regulations, NMFS will not

provide a 30-day public review period

prior to suspension. However, NMFS

believes the possibility of this situation

occurring is remote.

Comment 22: Greenpeace states that

the NMFS assertion of negligible impact

on endangered species or stock, despite

the fact that no specific prediction will

be made about the potential number of

bowhead whales that would be taken as

a result of an oil spill and cleanup, is

arbitrary and capricious, and fails to

utilize the best scientific and

commercial data available. The

conclusion of negligible impact is not

supported by any assertion of fact.

Response: Please see the response to

the previous two comments. The FEIS

discusses the potential for a large oil

spill, either through a break in the

pipeline or a blowout. As mentioned

previously, NMFS adopts this

documentation as the best scientific

information available. In addition,

mitigation measures in place at

Northstar, including weekly inspection

34020 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Rules and Regulations

overflights of the pipeline (in addition

to possibly more frequent flights

transporting people and supplies), and

incorporation of the LEO spill detection

system reduce the potential for chronic

leaks to go undetected for long periods

of time.

Comment 23: Greenpeace contends

that NMFS only cursorily addresses

impacts from oil spills and cleanup and

fails to analyze the cumulative

exposures or the risk to the entire

bowhead population from a prolonged

disruption of a biologically important

behavior or from injury or take over the

life of the Northstar project, or due to a

catastrophic oil spill.

Response: The MMPA requires NMFS

to make a determination that the total of

such taking during each 5-year (or less)

period concerned will have a negligible

impact on the species or stock of marine

mammal, not whether the takings will

be negligible over the entire 20–30 year

lifespan of Northstar. Also, it is not

necessary for NMFS to fully describe the

impacts and the determinations made in

that regard in the preamble to a

proposed rule. The concerns raised by

Greenpeace were fully addressed by the

Corps in its FEIS. Based upon that

document, NMFS believes the taking

will have no more than a negligible

impact (as defined in § 216.103).

Comment 24: Greenpeace states that

oil spill trajectory modeling has not

been done to support the conclusion of

negligible impact, or the conclusion that

the impact will be limited because the

trajectory will be confined to the

shoreline. Also, Greenpeace states that

there is no consideration being given of

the persistence of oil in the environment

when considering level or numbers of

take. The toxicity of oil can persist in

the environment for more than ten

years.

Response: As mentioned previously,

NMFS believes that the potential for a

large oil spill occurring during the 5-

year period of these regulations is

remote. Therefore, NMFS believes that

the recommended studies or

considerations are unnecessary for it to

make its negligible impact

determination.

Comment 25: Greenpeace states that

NMFS has provided no legal

justification for authorizing incidental

take nor has it utilized the best scientific

and commercial data available for any of

its conclusions. In the draft regulations,

NMFS ignored important scientific

information indicating greater oil spill

and noise impacts and failed to

acknowledge deficiencies in many of

the studies BPXA relied on in its

application, as noted by Albert (1996,

1997).

Response: NMFS uses the best

scientific and commercial information

available when making determinations

of negligible impact on marine mammal

species and no unmitigable adverse

impact on species/stocks for subsistence

purposes. NMFS believes that this

information is contained in the BPXA

application, NMFS’ biological opinion

and the Corps FEIS on Northstar

provides this information. Without

Greenpeace providing a reference for

Albert (1996, 1997) NMFS is unable to

respond further to the statement.

Subsistence Concerns

Comment 26: The AEWC notes that

the BPXA application estimates the

distances from the Northstar Unit to the

traditional hunting areas for 3 fall

bowhead whale subsistence villages.

However, because the bowhead whale

moves in a single westward migration,

this information is of limited relevance

to NMFS’ evaluation of potential

adverse impacts on subsistence.

Adverse impacts to bowhead whales

could affect the subsistence hunting of

any or all 10 of the villages depending

upon the severity and timing of any oil

spill and the perceptions by the various

villages on how the oil affected the

quality of the subsistence product.

Response: While the bowhead whale

moves in a single westward migration in

the fall, except for the unlikely

occurrence of a significant oil spill

(greater than 1,000 barrels), wherein all

10 villages’ bowhead subsistence

harvest may be affected, NMFS believes

that the impact on bowhead whales

from Northstar will be limited to 3

villages, and in particular Nuiqsut.

Nuiqsut has the greatest potential to be

impacted by development at Northstar,

as its whaling customarily takes place in

the vicinity of the island.

In the past, NMFS has requested,

without success, information regarding

the locations where successful bowhead

whale takes occur in the Beaufort Sea.

Considering that whalers are provided

with GPS receivers, this information

should be available. This information

could provide scientists with data to

make assessments on the impacts from

oil and gas production activities on

Beaufort Sea subsistence whaling. In the

interim, NMFS uses the more general

information provided by the applicant.

Based on the information to date,

however, NMFS has determined that the

potential for a major oil spill to occur,

and for that oil to intercept bowhead

whales in the migratory corridor, which

in turn, could affect the subsistence

harvest of all 10 villages, is unlikely.

Comment 27: The NSB notes that one

of their primary concerns is the

potential for planned (oil development)

activities to disrupt fall subsistence

whaling by the village of Nuiqsut. NSB

believes it is difficult to clearly identify

all of the activities associated with

construction and operations which are

expected to occur during this critical

period.

Response: Activities that have some

potential to occur during the same

period as Nuiqsut subsistence whaling

would include any activities scheduled,

but not completed, prior to September.

These are described in BPXA’s

application. However, activities that

may occur during that time period may

be influenced by agreements made

during the C&AA negotiations. Based

upon previous C&AAs, and recent

statements made by BPXA at a

stakeholders meeting in Seattle, NMFS

presumes that any activity that creates

noise, or has the potential to disturb

bowheads, either acoustically or

visually, either will not take place or

will be modified during the fall

subsistence hunt for bowheads.

However, even without an agreement to

curtail activities during this period,

NMFS does not believe these activities

will create sufficient level of noise to

result in an unmitigable adverse affect

on subsistence uses of the bowhead.

Comment 28: The AEWC notes that

the annual C&AA is not entered into

between BPXA and NSB residents, but

by the AEWC on behalf of its bowhead

whale subsistence hunters.

Response: NMFS concurs and has

made the correction in this document.

Mitigation Concerns

Comment 29: The AEWC recommends

that NMFS take this opportunity to

convene a meeting, or a series of

meetings, with the AEWC and other

interested parties to (1) address arctic

offshore oil production-related impacts

to marine mammals and subsistence

hunting, and (2) discuss appropriate

additional mitigation measures during

Northstar oil production.

Response: NMFS concurs that a

meeting, or a series of meetings, to

address mitigation measures that might

be adopted by the industry in the event

that an oil spill occurs is warranted. In

that regard, NMFS hosted a meeting on

February 24, 2000, between the AEWC/

NSB and the oil industry to start a

dialogue to identify monitoring

measures for both noise and oil that

might be initiated to address both shortand long-term, cumulative impacts.

Future meetings are also planned.

However, these meetings should not be

confused with the peer-review meetings

normally held in late spring for the open

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Rules and Regulations 34021

water noise monitoring and early fall for

on-ice noise monitoring in Seattle, WA.

Comment 30: Greenpeace notes that

during the ice covered season, BPXA

proposes no mitigation before midMarch, based on the assumption that

female ringed seals establish their birth

lairs before pupping in late March or

April. Noting that ringed seals begin to

build lairs as soon as the ice is covered

with snow, BPXA must mitigate

harassment of ringed seals prior to

initiation of any construction activities,

regardless of when they commence.

Response: The primary ice roads used

during Northstar construction (and later

during oil production), must be almost

straight-line in order to effectively

transport gravel from the mine site to

Seal Island and for construction of the

pipeline. Once Northstar and the

pipeline are constructed, only a single

primary offshore road will need to be

constructed annually, that one along the

pipeline corridor. As a result, there is

little mitigation that has been identified

that would be practical and effective

during the construction of these primary

roads in the early part of the winter

season. However, secondary ice roads

constructed later in the season, are not

believed to be confined to a set track

and can be constructed to avoid seal

structures. As a result, NMFS has

imposed mitigation measures in the

LOA which requires (1) Using trained

dogs to locate seal structures on all ice

roads, (2) avoiding seal structures by a

minimum of 150 m (492 ft) during

construction of any roads other than the

gravel and pipeline primary roads, and

(3) avoiding, to the greatest extent

practicable, disturbance of any located

seal structure after March 20.

It should be recognized that

mitigation (using trained dogs)

conducted this year during primary ice

road construction was implemented

because BPXA did not have an

authorization for harassment under the

MMPA, and therefore needed to avoid,

to the greatest extent possible, harassing

ringed seals. At a workshop later this

year, NMFS will assess the value and

practicality of using trained dogs as a

mitigation measure to locate seal

structures on the ice and then halting

activity around the structure until either

the animal voluntarily vacates the

structure or biological observers

determine that the structure is

unoccupied. Alternatively, NMFS may

determine that it is preferable for the

ringed seals to be discouraged, by

incidental construction noise, from

converting breathing holes into seal

structures where pups may later be

born, and potentially injured or killed at

some later time.

Section 101(a)(5)(A)(ii)(I) of the

MMPA provides for regulations setting

for the permissible methods of taking

and other means effecting the least

practicable adverse impact on the

affected species or stock and its habitat.

As ringed seals construct several

breathing holes and lairs within its

territory, they do not rely on a single

structure during the year. Ice roads

constructed early in the year will result

in some minor harassment as ringed

seals abandon certain breathing holes, if

the noise is disturbing to them. NMFS

believes this may be preferable to

avoiding all harassment of ringed seals

during ice road construction (how that

would be accomplished has not been

identified) and then having the newborn

pup, who may be more sensitive to

noise than an adult, abandon a birthing

lair prior weaning, and having that pup

succumb to the effects.

Comment 31: Greenpeace notes that

BPXA is proposing to have marine

mammal monitors conduct watches

commencing 30 minutes prior to such

noisy activities as impact hammering

and offloading during the open water

season. Greenpeace states that given

frequent and often extended periods of

impaired visibility in the Beaufort Sea

due to fog and low, or no, light

conditions, BPXA should include work

restrictions during these times.

Response: NMFS does not agree.

BPXA proposed having marine mammal

monitors to conduct observations for 8

hours/day for 2–3 days during each

major type of construction activity, and

during quiet periods before and/or after

these activities occur. Monitors must

conduct observations a minimum of 30

minutes prior to starting noisier

activities. If a marine mammal is

observed within an area that might

cause Level A harassment (180 dB for

cetaceans, 190 dB for pinnipeds), work

cannot start until the marine mammal

has left the safety zone. NMFS has

clarified this requirement in the LOA to

require marine mammal monitor(s) be

on watch during all daylight hours for

any activity that results in a SPL of at

least 180 dB at any distance which

exceeds the island’s land/water

interface. This monitoring must begin in

daylight at least 30 minutes prior to

beginning the activity. Also, the entire

safety zone must be visible during the

entire pre-activity monitoring time

period in order for the activity to begin.

This means that noisy activities cannot

start, or be restarted after a time period

set in the LOA during low visibility and

nighttime periods.

As an extra precaution, work is

required to cease whenever a marine

mammal enters its respective safety

zone as noted by an observer. However,

while certain work must not start-up

until the observer can ensure that the

safety zones are free of marine

mammals, once that work begins it need

not cease simply because weather

precludes adequate observation during

inclement weather or nighttime. NMFS

presumes that anthropogenic noise in

the area around Northstar will

discourage marine mammal presence if

the noise is bothersome to the animals.

Comment 32: Greenpeace was

concerned that BPXA proposes to

intentionally harass marine mammals as

a form of mitigation in the event of an

oil spill. Greenpeace believes that

NMFS should not approve the

intentional use of harassment to reduce

the level of serious injury or mortality.

Greenpeace notes that regardless of

whether this technique constitutes

acceptable mitigation (and Greenpeace

asserts it does not), it is not practical

given the persistence of oil in the

environment. There is no information or

reasoned analysis of how long

intentional harassment will be used as

a mitigation strategy during an oil spill

and just how much reduction in Level

A harassment will be achieved.

Response: The intentional harassment

of marine mammals for the health and

welfare of the animal is under another

provision of the MMPA and not under

this section. In the event that a

significant oil spill occurred, NMFS and

other agencies would determine how

best to protect marine mammals from

oil.

Comment 33: Greenpeace is

concerned that BPXA cites its Oil

Discharge Prevention and Contingency

Plan (ODPCP) as a mitigation measure

for protecting marine mammals.

Mitigation should not be assumed until

BPXA can reasonably prove its ability to

respond and remove oil from the

environment.

Response: While NMFS considers the

ODPCP to be a mitigation measure to

reduce impacts to marine mammals,

NMFS also recognizes the inability to

respond to an oil spill in the waters

surrounding Northstar at certain times

and in certain conditions. These

constraints to respond in all seasons and

weather conditions has been discussed

in detail in Chapter 8 of the Corps FEIS.

Comment 34: The MMC recommends

that NMFS review the ODPCP to assure

that the risk of spills has been estimated

appropriately; require modification of

the contingency plan if everything

feasible has not been done to minimize

the risk of spills occurring and

impacting marine mammals; and

provide for periodic site inspections as

part of the long-term monitoring

34022 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Rules and Regulations

program to assure that the contingency

plan can be implemented as and when

necessary. Finally, the MMC

recommends that an assessment of the

contingency plan and any monitoring

requirements be included in any

Federal Register document published to

promulgate final regulations on this

action.

Response: NMFS believes that it has

neither the expertise to determine the

adequacy of the ODPCP, nor the

authority under the MMPA to require

the ODPCP be modified by BPXA or to

place these requirements on Federal or

state agencies with such authority. As

the MMC noted in its comment, the

ODPCP has been approved by the U.S.

Department of Transportation, the U.S.

Coast Guard, the Minerals Management

Service (MMS), and the State of Alaska

Department of Environmental

Conservation. For its determinations of

negligible impact, NMFS relies on the

information, including estimates of risk

from oil spills, contained in the FEIS.

Monitoring Concerns

Comment 35: The NSB believes that

the proposed marine mammal

monitoring plan in its present form is

inadequate. The plan, and especially the

proposal for passive acoustic monitoring

of fall migrating bowhead whales,

should be revised and made clearer.

Response: BPXA’s technical plan for

marine mammal and acoustic

monitoring during construction of

Northstar was submitted to NMFS in

May, 1999, as a supplement to its

November 1998, petition. That plan was

reviewed at the peer review workshop

held in Seattle, WA on July 1, 1999, and

revised in August 1999, based on the

recommendations made during the

workshop. The NSB participated in that

workshop. NMFS does not believe that

it is necessary at this time to request

BPXA to revise the plan prior to

providing all parties at the workshop an

opportunity to respond. Since this plan

will be reviewed again later this year,

the comments and recommendations

made by the NSB will be placed on this

year’s meeting agenda.

Comment 36: Greenpeace notes that,

although NMFS is proposing regulations

governing the taking of marine

mammals during the construction and

operation of Northstar, the

accompanying marine mammal

monitoring program only applies to

project construction. The monitoring

program fails to outline a program for

monitoring marine mammal takes

during Northstar operation.

Response: BPXA’s revised monitoring

plan as submitted on September 1, 1999,

provides detailed description of

proposed monitoring during

construction. This monitoring had been

amended based on comments received

during the Arctic Peer Review

Workshop held in Seattle, WA on July

1, 1999.

A detailed description of monitoring

during Northstar operations was not

submitted at the time because that

monitoring program would not begin

until oil drilling operations began,

approximately November 2000. BPXA

will submit a monitoring plan for

operations in sufficient time for that

plan to be reviewed by peers and the

general public. NMFS anticipates public

review on the monitoring plan during

the first year of operations will be

conducted during the public comment

period on an application for LOA

renewal, which will be contingent on

submission of an adequate monitoring

plan. In the interim, BPXA will

continue monitoring impacts as

described in the August 20, 1999,

Technical Monitoring Plan. As stated in

BPXA’s application, monitoring during

operations will require evaluation based

on the results of monitoring during

construction and any other information

that becomes available in the interim.

NMFS intends to continue past practice

and have annual submissions of

proposed monitoring plans and to have

those plans peer reviewed prior to

implementation.

Comment 37: Greenpeace believes

that specific monitoring requirements

should be included in the regulations,

not in the LOA.

Response: If specific monitoring

conditions are contained in the

regulations, modifications to the

monitoring would require an

amendment to the regulations prior to

implementation. This would prevent

prompt implementation of revised

monitoring based on the annual review

process, or in response to an unusual

event, as can be done by having specific

monitoring conditions contained in an

LOA. As a result, NMFS has not

adopted this recommendation.

However, it should be noted that BPXA

must comply with the conditions of the

LOA, so it would be responsible for

implementing any monitoring identified

in the LOA.

Comment 38: Greenpeace states that

NMFS cannot assume that the impacts

of the Northstar operations on marine

mammals will be negligible in the

absence of a detailed monitoring

program to back up that assertion.

Response: NMFS believes that the

results from monitoring are useful to

support or refute its determinations that

takings are having a negligible impact

on affected marine mammal stocks and

not having an unmitigable adverse

impact on subsistence uses of marine

mammals. However, a detailed

monitoring program is not a

requirement under the MMPA before

NMFS can make these determinations;

the MMPA requires only that a

monitoring program be required under

regulations authorizing the taking. For

Northstar, NMFS expects that, through

the peer review process, a

comprehensive monitoring program will

be implemented that will provide the

necessary information on impacts on

marine mammals.

Comment 39: Greenpeace states that

BPXA’s proposed plan to establish a

peer review process as outlined in its

monitoring plan is not sufficiently

independent to meet the standards of

the MMPA. The regulations should

require BPXA to submit the monitoring

plans well in advance so that NMFS can

instigate its own independent peer

review, and require that its

recommendations be incorporated into

the final plans.

Response: The peer review process

described in BPXA’s Technical Plan for

Marine Mammal and Acoustic

Monitoring During Construction of BP’s

Northstar Oil Development in the

Alaskan Beaufort Sea, 2000, is the same

as NMFS’ Arctic Peer Review Workshop

held annually in Seattle, WA.

Participants in this workshop, and

similar workshops held to discuss onice monitoring of seals, typically

include representatives from industry,

the NSB, the AEWC, universities,

environmental organizations, and state

and Federal government.

It should be understood that

independent peer review in this context

means a review by other than NMFS,

the oil industry and its contractors, and

the AEWC/NSB. However, independent

peer review is not required for

authorizations issued under section

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

review of monitoring plans has been

incorporated into these regulations in

accordance with findings made at a

workshop held in Seattle in 1994 with

the AEWC, the oil and gas industry and

others, independent peer review is at

the discretion of NMFS. On April 9,

1999 (64 FR 17347), NMFS requested

nominations for the voluntary

participation in the peer review process.

Due to a lack of interest expressed by

the public in response to this notice,

NMFS has decided to reserve use of an

independent peer review to matters of

significant dispute between the AEWC,

NMFS, and/or the Holder of an LOA. In

general, specific requirements for

independent peer review will be

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Rules and Regulations 34023

determined in advance and noted in an

LOA.

Comment 40: Both the MMC and

BPXA note that the preamble to the

proposed rule failed to mention the

acoustic monitoring program for

bowhead whales described in BPXA’s

revised application and monitoring

plan.

Response: NMFS acknowledges the

oversight. BPXA’s technical plan for

marine mammal and acoustic

monitoring during construction at

Northstar proposed seven monitoring

tasks, not six. These tasks are listed

elsewhere in this document.

Comment 41: The MMC recommends

that NMFS review past aerial survey

data to determine whether the surveys

conducted by the MMS are likely to

provide sufficient information to assess

the utility of the proposed acoustic

monitoring and if the MMS’ surveys are

judged unlikely to provide sufficient

data, require that additional surveys be

done during the construction phase to

document the presumed effectiveness of

the acoustic monitoring.

Response: Thank you for this

recommendation. As noted in BPXA’s

application, use of an acoustical

monitoring system is planned to be

tested in 2000. The purpose of the

system is, in part, to assess the

feasibility of its use as an alternative to

aerial surveys. In addition to MMS

surveys, additional aerial surveys for

bowheads are conducted in the region to

assess impacts from seismic work. This

data would also be available for

analysis. As a result, the MMC’s

comments have been forwarded to

NMFS scientists and others for

consideration. However, NMFS

recommends MMC scientists participate

in the peer review workshops so that the

concerns of the MMC can be addressed

more directly.

Comment 42: The MMC, because of

perceived uncertainties in the data

regarding impacts to ringed seals and

polar bears and interactions between

these two species, recommends that

monitoring of polar bears and polar bear

den sites required by regulations and

LOAs issued by the U.S. Fish and

Wildlife Service (USFWS) will be

coordinated with the ringed seal

monitoring required by this set of

regulations and LOAs.

Response: NMFS is unaware of any

evidence that increased interactions

between polar bears and ringed seals

will occur as a result of construction of

ice roads and the reconstruction of Seal

Island. To the extent practicable, on-ice

monitoring of ringed seals and polar

bears has been, and will be,

coordinated. NMFS notes that often the

same biological observers conducting

ringed seal observations are also

conducting polar bear observations. In

addition, the USFWS has attended onice peer review workshops wherein

NMFS and others review previous

monitoring and upcoming monitoring

plans. The MMC concerns expressed

here will be reviewed at the next

meeting. NMFS recommends that, if the

MMC has any suggestions regarding

appropriate study designs to determine

whether oil and gas activity results in

increased interactions between polar

bears and ringed seals, they should

provide that information to NMFS prior

to the next on-ice peer review meeting.

Comment 43: Greenpeace asserts that

BPXA’s monitoring program relies on

ineffective methods for monitoring

ringed seals.

Response: To the extent practicable,

NMFS follows the guidelines in Swartz

and Hofman (1991) when reviewing and

making recommendations on

monitoring oil and gas activities in

Arctic waters. Based on that document,

and the results of a workshop held in

Seattle in October 1999, BPXA has

implemented a monitoring program

using dogs to locate ringed seal

structures in the ice. However, NMFS

notes that using dogs this winter, prior

to issuance of an LOA, does not mean

that dogs will be required each year that

ice roads are constructed. That

determination will be based in part on

the recommendations of scientists and

the value of the information provided by

this method of data collection.

Generally, in cases where ice roads are

constructed early in the year, under an

LOA or IHA to take marine mammals,

NMFS has questioned the need for dogs

to monitor harassment takings.

However, in order to protect newborn

pups, dogs will be required under an

LOA, whenever new, secondary, ice

roads are constructed after March 1.

Following Swartz and Hofman (1991),

NMFS has determined that the BeforeAfter Control-Impact (BACI) study of

ringed seal distribution meets the

monitoring requirements for assessing

impacts on ringed seals during

wintertime construction and operation.

This does not mean however, that

additional or alternative ringed seal

monitoring will not be required in

future years under an LOA. Such

monitoring may be imposed as a result

of future peer review workshops.

Reporting Concerns

Comment 44: The AEWC requests

that, when scheduling review periods,

NMFS give due consideration to the

time of year when that period will

occur. Spring bowhead whale

subsistence hunting generally is most

intense for our communities during

April, May, and June. In addition, the

annual meetings of the International

Whaling Commission, usually are

scheduled sometime between early May

and mid-July. These meetings last a total

of 4 weeks and require intense

preparation.

Response: Considering that the fall

bowhead whaling season begins around

September 1 and continues for several

weeks, wherein the AEWC is also not

available for reviewing documents and

meeting, there is limited time during the

year for an annual review.

As proposed previously, an interim

report was due 180 days prior to

expiration of an LOA. If an LOA expires

early in the year, as is expected with the

Northstar LOA, then the report would

be due 6 months prior to that date, or

in late summer of the previous year.

Because of the timing, this report

obviously could not include an

assessment of the activity’s impact on

bowhead whales and the subsistence

harvest that year since the fall migration

would only be starting at that time.

Therefore, this report would need to

contain an assessment of the previous

year’s impact on bowhead whales,

requiring the use of dated information,

and putting the data out of synchrony

with the actual taking of marine

mammals during that LOA period of

validity. However, this is realistic

considering that it takes 6–7 months to

incorporate MMS aerial survey data on

bowheads into an analysis of impacts

from an oil and gas exploration or

development activity.

As a result, because of the importance

of having a peer review of both

monitoring plans and the results from

previous monitoring, NMFS has

amended the regulations and is

requiring holders of LOAs to provide

two interim reports, the first due 90

days after the end of the on-ice season

(approximately September 15th for the

report), and the second due 90 days

after the end of the fall bowhead

migration in the Beaufort Sea

(approximately February 1st for the

report). NMFS will also require a draft

comprehensive report by May 1st of the

year following the year of validity of the

LOA. NMFS recognizes that this means

that the first year LOA for Northstar will

only have a report on the on-ice

monitoring due to NMFS by the time

NMFS needs to consider a renewal of

the first-year LOA.

Finally, NMFS will require a final

comprehensive report on all marine

mammal monitoring and research

conducted by the holder of its LOAs

during the period of these regulations

34024 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Rules and Regulations

must be submitted at least 240 days

prior to expiration of these regulations

or 240 days after the expiration of these

regulations, if renewal of the regulations

has not been requested.

Comment 45: The NSB believes that

the proposed method for project review

(two reviews/year, one through the

mail) is not adequate. One meeting is

needed to review the draft proposal and

a second meeting is needed to review

the draft report.

Response: NMFS disagrees that a

meeting is necessary solely to review

BPXA’s draft monitoring report(s). For

continuity, this report (which is a report

on the results of previous years’

monitoring programs), is usually

reviewed and critiqued at the same time

the NSB and others are recommending

monitoring measures for the upcoming

season. NMFS believes that discussion

on the results of previous monitoring at

the same time as discussion of the

upcoming monitoring plan, facilitates

recommendations on appropriate

monitoring and/or research.

In addition, recognizing the period of

time when NSB residents are not

available to meet (discussed previously

in this document) and because the NSB,

NMFS, and others are already

sponsoring and/or participating in three

meetings annually on this issue, one for

open water monitoring, a second for

winter (on-ice) monitoring, and a third

to address short- and long-term

monitoring for effects from potential oil

spills on marine mammals, a fourth

meeting limited to discussion on the

results of previous year’s monitoring is

simply not practical at this time.

ESA Concerns

Comment 46: Greenpeace contends

that the proposed rule (64 FR 57010,

October 22, 1999) violates section

7(a)(2) of the ESA because it fails to

insure that actions to approve

regulations are not likely to jeopardize

the continued existence of endangered

species, after required consultation and

using the best scientific and commercial

data available.

Response: With the issuance of a

Biological Opinion (BO) 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.

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 these

regulations and an LOA to BPXA for the

incidental take of bowhead whales is

also considered a Federal action, NMFS

has conducted a consultation under

section 7 with itself on this action. The

finding by NMFS is that an

authorization for the taking of bowhead

whales incidental to construction and

production of the Northstar Unit, under

section 101(a)(5)(A) of the MMPA, while

it may adversely affect bowhead whales,

is not likely to jeopardize its continued

existence. If new information is

obtained which affect bowhead whales

in a manner or to an extent not

previously considered, or if the level of

incidental take is exceeded, reinitiation

of consultation will be undertaken.

Comment 47: Greenpeace also

contends that, by proposing the

regulation, NMFS has made an

irreversible and irretrievable

commitment of resources with respect

to the Northstar project, which has the

effect of foreclosing the formulation or

implementation of reasonable and

prudent alternative measures which

would not violate section 7(a)(2) of the

ESA.

Response: NMFS does not agree that

it has made an irreversible and

irretrievable commitment of resources

in conjunction with proposing

regulations for the project. NMFS

completed its section 7 responsibilities

prior to issuance of this final rule.

Comment 48: Greenpeace believes

that the proposed rule (64 FR 57010,

October 22, 1999) fails to utilize its

authorities in furtherance of the

purposes of section 7(a)(1) of the ESA by

carrying out programs for the

conservation of endangered species.

Response: Conservation

recommendations under section 7(a)(1)

of the ESA were provided by NMFS to

the Corps in the Northstar BO. These

include: (1) Vessel operations should be

scheduled to minimize operations after

August 31 of each year in order to

reduce potential harassment of

migrating bowhead whales, (2) utilize

agitation technique for placement of

sheetpiling and piling instead of piledriving whenever practicable, (3)

develop and conduct an acoustic

monitoring study during construction

and initial operation, and (4) conduct or

support studies to describe the impact

of Northstar on the migrational path of

bowhead whales in the Beaufort Sea.

Additional conservation

recommendations to reduce impacts on

the endangered bowhead whale are

contained in these regulations, the

BPXA LOA, and the Incidental Take

Statement issued to the Corps under

section 7(a)(2) of the ESA.

Comment 49: Greenpeace notes that

the proposed rule (64 FR 57010, October

22, 1999) states that NMFS has begun

consultation under section 7, but that

there has been no public release of

information concerning the scope of

consultation nor of a biological

assessment which adequately assess

these impacts.

Response: While there is no

requirement in the ESA for making that

information public, this document

notifies the public of the completion of

section 7 consultation. Recognizing that

impacts on listed species will result

from the activity itself, not from the

issuance of an authorization for the

incidental taking, NMFS has determined

that the issuance of 5-year regulations

for the Northstar Project, and a 1-year

LOA, may affect bowhead whales, the

action was unlikely to jeopardize the

stock’s continued existence. Because

Biological Assessments are written at

the discretion of the action agency, and

because a BO was written previously on

the major action (i.e., on construction

and operation of Northstar), a new

Biological Assessment is not necessary

for this action and, therefore, one was

not prepared.

Comment 50: There was no incidental

take statement in the Northstar BO.

Response: That is correct. Whenever a

marine mammal species listed as

endangered or threatened under the

ESA is involved, section 7(b)(4)(C) of

the ESA requires that the taking is also

authorized pursuant to section 101(a)(5)

of the MMPA. Until the requirements of

both the MMPA and ESA are met, an

incidental take statement cannot be

issued. The issuance of an LOA to

BPXA for Northstar will meet the

MMPA requirements and an Incidental

Take Statement can be, and will be,

issued shortly.

Comment 51: Greenpeace states that

the proposed rule results in a taking of

a protected species in violation of

section 9 of the ESA.

Response: The taking of endangered

bowhead whales incidental to the

construction and operation of the

Northstar Unit is not expected to be in

violation of section 9 of the ESA. Under

the terms of section 7(b)(4) and section

7(o)(2), taking that is incidental to, and

not intended as part of, the agency

action is not considered to be prohibited

taking under the ESA provided that

such taking is in compliance with the

terms and condition of the Incidental

Take Statement. As mentioned

previously, the incidental taking of

bowhead whales under the ESA will be

authorized through an Incidental Take

Statement issued under section 7 of the

ESA.

Comment 52: The original Northstar

BO did not address the quantitative

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Rules and Regulations 34025

information submitted by BPXA in its

incidental take publication regarding

expected level of takes, such as 173–

1,533 bowheads annually, or sources of

impacts, such as 16,800 large-volume

haul trips, 28,500 dump trucks, etc.

Response: The Biological Assessment

was first submitted to NMFS by the

Corps on May 19, 1998, with

supplemental information provided on

July 10, 1998. This was prior to BPXA

submitting information for an IHA on

August 12, 1998 (63 FR 57096, October

26, 1998), or on November 30, 1998, for

this action. While NMFS could have

included this additional information in

its BO, this information was considered

preliminary at the time and unnecessary

for making a determination on whether

or not the activity could jeopardize the

bowhead whale’s continued existence.

Estimates of bowhead whale takes by

harassment have been evaluated during

this rulemaking and will be

incorporated as appropriate into the

Incidental Take Statement. NMFS notes

however, that the activities mentioned

by the commenter will occur during the

winter and will not affect bowheads.

Comment 53: Greenpeace believes

that NMFS has failed to conduct a North

Slope-wide assessment of the impacts to

bowhead whales from reasonably

foreseeable exploration and

development activities in the Beaufort

Sea.

Response: NMFS’ evaluation of the

cumulative effects on bowhead whales,

by Beaufort Sea activities, were

addressed in part V. of the March 4,

1999, BO.

Description of Habitat and Marine

Mammal Affected by the Activity

The DEIS and FEIS prepared for the

Northstar development (Corps, 1998,

1999) contains a detailed description of

the Beaufort Sea ecosystem and its

associated marine mammals. Those

documents are part of the record of

decision of 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

(BPXA, 1999) and the previously

mentioned FEIS. Please refer to those

documents for specific information on

these species. These documents are part

of this rulemaking. 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 small numbers of ringed seals

along the ice road and pipeline

construction corridors. BPXA began

winter construction activities in midDecember, 1999, well in advance of

female ringed seals establishing birthing

lairs beginning in the latter half of

March. The noise and general human

activity may displace female seals away

from activity areas and could negatively

affect the female and young, if the

female remained in the vicinity of the

ice road.

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

(Richardson et al., 1995; BPXA, 1999).

A more detailed description of

potential impacts from construction and

operational activities on marine

mammals can be found in BPXA’s

application (BPXA, 1999) and the Corps’

FEIS (Corps, 1999). 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. Additional

information used by NMFS in this

determination can be found in

Richardson et al. (1995) and the

references provided in BPXA’s

application.

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

normally found in Canadian waters, 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. However, oil that persists in the

Beaufort Sea into the fall or winter and

is not contained and/or removed may

impact bowhead whales.

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, or if the oil migrated

seaward of the barrier islands, some

bowhead whales might not be able to

avoid oil slicks and could be subject to

prolonged contamination. However,

because the autumn migration of

bowhead whales past Northstar extends

over several weeks and because most of

the whales travel along routes well

north of Northstar, according to BPXA,

only a small minority of the whales are

likely to intercept patches of spilled oil.

The effects of oil on these whales have

been described in several documents

(BPXA, 1999; Corps, 1999; Loughlin et

34026 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Rules and Regulations

al. (1994), which NMFS reviewed

during this rulemaking.

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. 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.

Studies in Prince William Sound

indicated a long-term decline of 36

percent in numbers of molting harbor

seals located on those haulouts affected

by oil from the EXXON VALDEZ spill.

In addition, newborn seal pups, if

contacted by oil, will likely die from

oiling through loss of insulation and

resulting hypothermia (BPXA, 1999).

Because the number of ringed and

bearded seals in the central Beaufort Sea

represents a relatively small portion of

their total populations, and even large

oil spills are not expected to extend over

large areas, relatively few ringed and

bearded seals would be impacted, and

impacts on regional population size

would be expected to be minor.

In addition to oil contacting marine

mammals, oil spill cleanup activities

could increase disturbance effects on

either whales or seals, causing

temporary disruption and possible

displacement effects (MMS, 1996;

BPXA, 1999). In the event of a large spill

contacting and extensively oiling coastal

habitats, the presence of response staff,

equipment, and many low-flying aircraft

involved in the cleanup will (depending

on the time of the spill and cleanup),

potentially displace seals and other

marine mammals. However, the

potential effects on bowhead and beluga

whales are expected to be less than

those on seals. The whales tend to occur

well offshore where cleanup activities

(during the open water season) are

unlikely to be concentrated (BPXA,

1999). Also, because bowheads are

transient and during the majority of the

year, absence from the area would

lessen the likelihood of impact by

cleanup activities.

Estimated Level of Incidental Take

BPXA (1999) estimates that, during

the ice-covered period, 91 (maximum

125) ringed seals and 1 (maximum 5)

bearded seals potentially may be

incidentally harassed during

construction activities and 77

(maximum 105) ringed seals and 1

(maximum 5) bearded seals potentially

may be incidentally harassed annually

during oil production activities. BPXA

estimates these takings by harassment

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

potential take are estimated based on

observed densities of seals during recent

(1997–1999) BPXA/LGL aerial surveys

in the Northstar area during spring

(Miller et al., 1998; Link et al., 1999;

Moulton and Elliott, 1999) plus

correction factors for seals missed by

aerial surveyors. NMFS however,

concurs with BPXA (1999) that these

‘‘take’’ estimates could result in an

overestimate of the actual numbers of

seals ‘‘taken,’’ if all seals within these

disturbance distances do not move from

the area. It should be noted that NMFS

does not consider an animal to be

‘‘taken’’ if it simply hears a noise, but

does not make a biologically significant

response to avoid that noise.

NMFS notes moreover, that BPXA has

recently adopted new methods for onice monitoring of ringed seals which

include the use of dogs to find seal

structures. These new methods may

result in a better estimate of the

numbers of seals actually taken by

different industrial activities.

During the open-water season, BPXA

(1999) estimates that 7 (maximum 22)

ringed seals, 1 spotted seal, 1–5 bearded

seals, 173 (maximum 1,533) 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 μPa.

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

relative to the size of the populations.

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. As a result, BPXA

requested that, because a small number

of marine mammals might be injured or

killed, that takings by mortality 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 icecovered 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.

While NMFS agrees that a major oil spill

is unlikely during the 5-year period of

these regulations, and believes that it is

even less likely that spilled oil will

intercept large numbers of marine

mammals, NMFS cannot necessarily

conclude that the effects on marine

mammal populations will be negligible.

Depending upon magnitude of the spill,

its location and seasonality, an oil spill

could have the potential to affect ringed

and bearded seals, and/or bowhead and

beluga whales. Because of the large

population size of ringed seals and

bearded seals and the small number of

animals in the immediate vicinity of the

Northstar facility, and because spilled

oil is unlikely to disperse widely and,

therefore, affect large numbers of seals,

NMFS has determined that the effect on

ringed and bearded seals will be

negligible, even in the unlikely event

that a major oil spill occurred.

Bowhead and beluga whales,

however, while potentially less likely to

come into contact with spilled oil

because of their more prevalent offshore

distribution, and potentially less

seriously affected when in oiled waters

provided their passage is not blocked,

may be affected more seriously, if

impacted, because of their smaller

population sizes. However, based upon

the Corps’ analysis that there is less

than a 10–percent chance of a major oil

spill occurring during the 20–30 year

lifespan of Northstar, and because

NMFS believes that the potential for a

major oil spill occurring during the 5-

year period of these regulations and

intercepting these species would be

significantly less than 10 percent

(approaching 1 percent), NMFS can

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Rules and Regulations 34027

make a determination that the taking of

these two species incidental to

construction and operation at the

Northstar oil production facility will

have no more than a negligible impact

on them.

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

BPXA’s application. This information,

in conjunction with information

provided by the AEWC and NSB in their

comments, and information provided in

the Corps’ FEIS, is accepted by NMFS

as the best information available to date

on the potential effects on the

availability of marine mammals for

subsistence uses in the Beaufort Sea

area. Should new information on the

impacts to subsistence harvest of

bowhead whales become available that

may be contrary to the determination

made here, NMFS will consider the

information during review of a request

for future LOAs and/or their renewal.

Noise Impacts

The disturbance and potential

displacement of bowhead whales and

other marine mammals by sounds from

vessel traffic, on-island construction

activities (e.g., impact hammering), and

production activities are one of 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, 1999).

Construction activities and associated

vessel and helicopter support began in

December 1999, and are expected to

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, BPXA

expects vessel and aircraft traffic near

areas of particular concern for whaling

will be completed before the end of

August. In addition, BPXA does not

expect impact hammering to occur

during the period when subsistence

hunting of migrating bowhead whales is

underway. NMFS expects that

construction activities that have the

potential to disturb bowheads just prior

to, and during the bowhead subsistence

hunt, would be subject for discussion

and resolution during the C&AA

discussions. However, even without an

agreement to curtail activities during

this period, NMFS does not believe

these activities will create sufficient

level of noise to result in an unmitigable

adverse affect on subsistence uses of the

bowhead.

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) from the source. BPXA

states that even those bowheads

traveling along the southern edge of the

migration corridor are not expected to

be able to even hear sounds from

Northstar until the whales are well west

of the main hunting area.

Drilling will begin in the latter part of

2000 but will temporarily cease in mid2001 to allow installation and start-up

of processing facilities. Drilling is

expected to resume by November 2001,

after the bowhead season, and continue

until approximately November, 2002.

Drilling is, therefore, unlikely to impact

either the bowheads or the subsistence

needs for this species, prior to the 2002

bowhead season.

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, 1999).

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

Northstar. The westernmost reported

harvest location was about 21 km (13

mi) west of Kaktovik, near 70°10’N.

144°W. (Kaleak, 1996). That site is

approximately 180 km (112 mi) east of

Northstar.

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 on migrating

bowheads from noise created by

Northstar construction or production are

not expected to extend into the area

where Nuiqsut hunters usually search

for bowheads and, therefore, are 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 the AEWC on behalf of its bowhead

whale subsistence hunters. Also, NMFS

believes that the September 1999,

Technical Monitoring Plan that will be

implemented 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, 1999). 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, 1999). Thus, it is unlikely that

construction activity will have a

significant negative impact on Nuiqsut

seal hunting.

Oil Spill Impacts

Oil spills have the potential to affect

the hunt for bowhead whales. While oil

spills from production drilling or

pipelines could occur at any time of the

year, NMFS believes that only if a

significant spill occurred just prior to or

during the subsistence bowhead hunt

and spread into offshore waters 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. BPXA (1999) states that

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.

However, disturbance associated with

reconnaissance and cleanup activities

could affect bowhead whales and, thus,

accessibility of bowheads to hunters. As

34028 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Rules and Regulations

a result, in the unlikely event that a

major oil spill occurred during the

relatively short fall bowhead whaling

season, it is possible that bowhead

whale hunting could be significantly

affected. Moreover, even with no more

than a negligible impact on those

marine mammals that would be subject

to subsistence hunting, individuals and

communities as a whole, may perceive

that the whale or seal meat or products

are tainted or somehow unfit to eat or

use. This could further impact

subsistence hunting of these animals.

However, NMFS believes that because

(1) the probability of a large oil spill is

less than 10 percent over the 20–30

years of Northstar operations, (2)

bowhead whales in the vicinity of

Northstar and hunted only in the

months of September and October,

limiting exposure time, (3) only under

certain wind and sea conditions would

it be likely that oil would reach the

bowhead subsistence hunting area, (4)

there will be an oil spill response

program in effect that will be as

effective as possible in Arctic waters,

and (5) other mitigation measures have

been suggested in the event that oil did

contact bowheads, NMFS has

determined that the construction and

operation at Northstar is unlikely to

result in an unmitigable adverse impact

on subsistence uses of marine mammals

during the period of these regulations.

However, NMFS will continue to assess

this determination as monitoring and

mitigation measures are incorporated

and improved through experience and

as additional offshore developments are

proposed. NMFS may revise or clarify

its determinations during these

rulemakings.

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, except on a very local

scale.

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.

Mitigation Measures

Several mitigation measures were

proposed by BPXA to reduce

harassment takes to the lowest level

practicable and have been adopted, with

modification, by NMFS. Additional

measures may be added or modified in

LOAs. Presently identified measures

include:

(1) BPXA will begin winter

construction activities in December.

This will eliminate contact with lairs

that are actively used as birthing lairs.

Because it is still necessary to determine

the number of structures impacted by

winter construction, BPXA will survey

the area(s) using trained dogs, to

identify and avoid ringed seal structures

by a minimum of 150 m (492 ft), if

practicable.

(2) Other than work done on the

primary ice roads, if construction

activities are initiated in undisturbed

areas BPXA will survey the area(s),

using trained dogs, in order to identify

and avoid ringed seal structures by a

minimum of 150 m (492 ft); after March

20, activities should avoid, to the

greatest extent practicable, disturbance

of any located seal structure.

(3) During the open water season,

BPXA will establish and monitor,

during the daytime, a 190 dB re 1 μPa

safety range for seals around the island

for those construction activities with

SPLs that exceed that level. Establishing

the safety range will require the

collection and analysis of sound

attenuation in the waters of the

Northstar site.

(4) While whales are unlikely to

approach the island during impact

hammering or other noisy activities, a

180 dB re 1 μPa safety zone will be

established and monitored during

daylight hours 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).

Monitoring Measures

A detailed description of BPXA’s

proposed monitoring program for

implementation during the construction

phase at Northstar can be found in both

the revised BPXA application (BPXA,

1999) and revised Technical Monitoring

Plan (LGL, LGL and Greeneridge, 1999).

The open-water season portion of

BPXA’s May 6, 1999, monitoring plan

was reviewed by scientists and others

attending the annual open-water peerreview workshop held in Seattle on July

1, 1999. The Technical Monitoring Plan

was revised to incorporate

recommendations made during this

meeting and submitted to NMFS on

September 1, 1999. This document was

provided to the public during the

comment period on the proposed rule.

Peer review on the on-ice portion of the

plan was conducted on October 14–15,

1999. Recommendations from that

workshop were incorporated into work

conducted this past winter and will be

incorporated, as appropriate, into future

monitoring plans. A copy of the

September 1, 1999, revised monitoring

plan is available upon request (see

ADDRESSES). Peer review of technical

plans for monitoring during production

activities will be conducted at future

peer review meetings.

A summary of marine mammal

monitoring that will be conducted

during Northstar construction this year

is provided here.

Monitoring will employ both marine

mammal observations and acoustic

measurements and recordings. During

the open-water period, monitoring will

consist of (1) acoustic measurements of

sounds produced by construction

activities through boat-based

hydrophones, sonobuoys deployed by

boat, and autonomous seafloor acoustic

recorders; (2) observations of marine

mammals (primarily seals) from an

elevated platform on Seal Island, which

will be made during periods with and

without construction underway; and, (3)

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Rules and Regulations 34029

acoustic monitoring of the bowhead

whale migration. Additional monitoring

may be required by NMFS through the

peer review workshops.

During the ice-covered season, BPXA

proposes to continue an ongoing (since

the spring, 1997) Before-After/ControlImpact 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 midMarch through April period, (2)

assessment of abandonment rates for

seal holes, and (3) acoustic

measurements of sounds and vibrations

from construction. Additional

monitoring may be required by NMFS

through the peer review workshops.

NMFS expects that the technical

monitoring plan for production will be

submitted to NMFS later this year and

subject to review by NMFS biologists

and revised appropriately prior to

implementation.

Reporting Measures

BPXA is required to provide two

reports annually to NMFS. The first

report is due 90 days after either the ice

roads are no longer usable or spring

aerial surveys are completed, whichever

is later. The second report is 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 must include

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 must be

submitted to NMFS by April 1 of each

year. The final technical report must

fully describe the methods and results

of all monitoring tasks and a complete

analysis of the data. The draft final

report will be subject to peer review

before being finalized by BPXA.

Determinations

NMFS has 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 and production

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 operationsrelated noise activities will be impact

hammering, helicopter traffic, vessel

traffic, and other general construction/

production activity on Seal Island.

Sheet-pile driving is expected to be

completed prior to whales being present

in the area. Sounds from construction/

production 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 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.

Because bowhead whales are east of

the construction/production 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/production

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/production

will not have an unmitigable adverse

impact on the availability of these

stocks for subsistence uses.

NMFS has determined that the

potential for an offshore oil spill

occurring is low (less than 10 percent

over 20–30 years (Corps, 1999)) and the

potential for that oil intercepting whales

or seals is even lower (about 1.2 percent

(Corps, 1999)). Because of this low

potential and because of the seasonality

of bowheads, NMFS has determined

that the taking of marine mammals

incidental to construction and operation

at the Northstar oil production facility

will have no more than a negligible

impact on them. In addition, because

there will be an oil spill response

program in effect that will be as

effective as possible in Arctic waters,

and because other mitigation measures

have been suggested in the event that oil

did contact bowheads, NMFS has

determined that there will not be an

unmitigable adverse impact on

subsistence uses of marine mammals.

Changes to the Proposed Rule

In addition to the modifications made

to the proposed rule as a result of

comments discussed previously and

corrections of minor typographical

errors, the following amendments have

been made to the document.

Section 216.207 has been amended to

clarify that this paragraph is intended

only for the initial submission of an

application for an LOA, not for

subsequent renewals.

Section 216.209(a)(2) has been

amended to note the time needed for

receipt of the monitoring reports

required under 216.205.

ESA

On March 4, 1999, NMFS concluded

consultation with the Corps on

permitting the construction and

operation at the Northstar site. The

finding of that consultation was that

construction and operation at Northstar

is not likely to jeopardize the continued

existence of the bowhead whale stock.

34030 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Rules and Regulations

No critical habitat has been designated

for this species; therefore, none will be

affected. Because issuance of a small

take authorization to BPXA under

section 101(a)(5) of the MMPA is a

Federal action, NMFS has completed

section 7 consultation on this action.

The finding of this consultation was that

the issuance of the authorization was

unlikely to adversely affect the bowhead

whale.

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. For information on obtaining a

copy of the FEIS, please contact the

Corps (see ADDRESSES). Based upon a

review of the FEIS, the comments

received on the DEIS and FEIS, and the

comments received during this

rulemaking, NMFS has adopted the

Corps FEIS and has determined that it

is not necessary to prepare

supplemental NEPA documentation.

Classification

This action has been determined to be

significant for purposes of Executive

Order 12866.

Until these regulations are effective,

BPXA cannot be issued an LOA

authorizing takings incidental to

construction and operation at Northstar.

Therefore, since these regulations

relieve a restriction on BPXA, the

prohibitions on the issuance of an LOA,

are not subject to a 30-day delay in

effective date under 5 U.S.C. 553(d)(1).

The Chief Counsel for Regulation of

the Department of Commerce certified,

at the proposed rule stage, to the Chief

Counsel for Advocacy of the Small

Business Administration that this final

rule will not have a significant

economic impact on a substantial

number of small entities within the

meaning of the Regulatory Flexibility

Act. This final 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 final rule contains collection-ofinformation 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 and

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).

List of Subjects in 50 CFR Part 216

Exports, Fish, Imports, Indians,

Labeling, Marine mammals, Penalties,

Reporting and recordkeeping

requirements, Seafood, Transportation.

Dated: May 18, 2000.

Penelope D. Dalton,

Assistant Administrator for Fisheries,

National Marine Fisheries Service.

For reasons set forth in the preamble,

50 CFR part 216 is 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.

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

Facilities 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

Facilities in the U.S. Beaufort Sea

§ 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 §§ 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; 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).

§ 216.201 Effective dates.

Regulations in this subpart are

effective from May 25, 2000, until May

25, 2005.

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Rules and Regulations 34031

§ 216.202 Permissible methods of taking.

(a) Under Letters of Authorization

issued pursuant to §§ 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 § 216.200(a),

provided the activity is in compliance

with all terms, conditions, and

requirements of the regulations in this

subpart and the appropriate Letter of

Authorization.

(b) The activities identified in

§ 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.

§ 216.203 Prohibitions.

Notwithstanding takings authorized

by § 216.200 and by a Letter of

Authorization issued under §§ 216.106

and 216.208, no person in connection

with the activities described in

§ 216.200 shall:

(a) Take any marine mammal not

specified in § 216.200(b);

(b) Take any marine mammal

specified in § 216.200(b) other than by

incidental, unintentional harassment,

injury or mortality;

(c) Take a marine mammal specified

in § 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

the regulations in this subpart or a

Letter of Authorization issued under

§ 216.106.

§ 216.204 Mitigation.

The activity identified in § 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

§ 216.200, the mitigation measures

contained in the Letter of Authorization

issued under §§ 216.106 and 216.208

must be utilized.

§ 216.205 Measures to ensure availability

of species for subsistence uses.

When applying for a Letter of

Authorization pursuant to § 216.207, or

a renewal of a Letter of Authorization

pursuant to § 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.

§ 216.206 Requirements for monitoring

and reporting.

(a) Holders of Letters of Authorization

issued pursuant to §§ 216.106 and

216.208 for activities described in

§ 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 new activities

potentially 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 § 216.106 and § 216.208.

(c) Holders of Letters of Authorization

must conduct all monitoring and/or

research required under the Letter of

Authorization.

(d) Unless specified otherwise in the

Letter of Authorization, the Holder of

that Letter of Authorization must submit

interim reports to the Director, Office of

Protected Resources, National Marine

Fisheries Service, no later than 90 days

after completion of the winter

monitoring season (approximately

September 15th), and 90 days after the

open water monitoring season

(approximately February 1st). This

report must contain all information

required by the Letter of Authorization.

(e) A draft annual comprehensive

report must be submitted by May 1st of

the year following the issuance of a

LOA;

(f) A final annual comprehensive

report must be submitted within the

time period specified in the governing

Letter of Authorization.

(g) A final comprehensive report on

all marine mammal monitoring and

research conducted during the effective

period of the regulations in this subpart

must be submitted to the Director,

Office of Protected Resources, National

Marine Fisheries Service at least 240

days prior to expiration of these

regulations or 240 days after the

expiration of these regulations if

renewal of the regulations will not be

requested.

§ 216.207 Applications for Letters of

Authorization.

(a) To incidentally take bowhead

whales and other marine mammals

pursuant to the regulations in this

subpart, the U.S. citizen (see definition

at § 216.103) conducting the activity

identified in § 216.200, must apply for

and obtain either an initial Letter of

Authorization in accordance with

§§ 216.106 and 216.208, or a renewal

under § 216.209.

(b) The application for an initial

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 initial Letters of

Authorization must include all

information items identified in

§ 216.104(a).

(d) NMFS will review an application

for an initial Letter of Authorization in

accordance with § 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

§ 216.200(a). In conjunction with

amending § 216.200(a), the National

Marine Fisheries Service will provide a

minimum of 45 days for public

comment on the application for an

initial Letter of Authorization.

(e) Upon receipt of a complete

application for an initial Letter of

Authorization, 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 an initial Letter of

Authorization.

§ 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

34032 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Rules and Regulations

subject to annual renewal conditions in

§ 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 and renewal 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.

§ 216.209 Renewal of Letters of

Authorization.

(a) A Letter of Authorization issued

under § 216.106 and § 216.208 for the

activity identified in § 216.200 will be

renewed annually upon:

(1) Notification to the National Marine

Fisheries Service that the activity

described in the application submitted

under § 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 § 216.205, and

the Letter of Authorization issued under

§ 216.208, which have been reviewed by

the National Marine Fisheries Service

and determined to be acceptable, and

the Plan of Cooperation required under

§ 216.205; and

(3) A determination by the National

Marine Fisheries Service that the

mitigation, monitoring and reporting

measures required under § 216.204 and

the Letter of Authorization issued under

§§ 216.106 and 216.208, 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

§§ 216.106 and 216.208 indicates that a

substantial modification to the

described work, mitigation or

monitoring undertaken during the

upcoming season will occur, the

National Marine Fisheries Service will

provide the public a minimum of 30

days for review and comment on the

request. Review and comment on

renewals of Letters of Authorization are

restricted to:

(1) New cited information and data

that indicates that the determinations

made in this subpart are in need of

reconsideration,

(2) The Plan of Cooperation, and

(3) The proposed monitoring plan.

(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.

§ 216.210 Modifications to Letters of

Authorization.

(a) In addition to complying with the

provisions of §§ 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 by the

National Marine Fisheries Service,

issued pursuant to §§ 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

§ 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 wellbeing of the species or stocks of marine

mammals specified in § 216.200(b), a

Letter of Authorization issued pursuant

to §§ 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. 00–13184 Filed 5–24–00; 8:45 am]

BILLING CODE 3510–22–F