[Federal Register Volume 66, Number 246 (Friday, December 21, 2001)]
[Notices]
[Pages 65923-65935]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-31541]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 071901A]


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: Notice of issuance of a letter of authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA), as 
amended, and implementing regulations, notification is hereby given 
that a letter of authorization (LOA) to take a small number of marine 
mammals incidental to the production of offshore oil and gas at the 
Northstar development in the Beaufort Sea off Alaska has been issued to 
BP Exploration (Alaska), Anchorage, AK (BPXA).

DATES: This LOA is effective from December 14, 2001, until November 30, 
2002.

ADDRESSES: A copy of BPXA's application, the LOA and a list of 
references used in this document may be obtained by writing to the 
Office of Protected Resources, NMFS, 1315 East-West Highway, Silver 
Spring, MD 20910, or by telephoning one of the contacts listed here. 
Other reports referenced in this document are available for review, by 
appointment during regular business hours, at the following offices: 
Office of Protected Resources, NMFS, 1315 East-West Highway, Silver 
Spring, MD 20910, and Western Alaska Field Office, NMFS, 701 C Street, 
Anchorage, AK 99513, and the National Marine Mammal Laboratory, NMFS, 
Bldg 4, 7600 Sand Point Way NE, Seattle, WA 98115.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead (301) 713-
2055, ext. 128, or Brad Smith (907) 271-5006.

SUPPLEMENTARY INFORMATION: Section 101(a)(5)(A) of the MMPA (16 U.S.C. 
1361 et seq.) directs NMFS to allow, on request, the incidental, but 
not intentional, taking of small numbers of

[[Page 65924]]

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 by NMFS and regulations are issued. Under 
the MMPA, the term ``taking'' means to harass, hunt, capture, or kill 
or to attempt to harass, hunt, capture or kill marine mammals.
    Permission may be granted for periods up to 5 years if NMFS finds, 
after notification and opportunity for public comment, that the taking 
will have a negligible impact on the species or stock(s) of marine 
mammals, will not have an unmitigable adverse impact on the 
availability of the species or stock(s) of marine mammals 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. Regulations governing the 
taking of marine mammals incidental to construction and operation of 
the offshore oil and gas facility at Northstar in the Beaufort Sea were 
published and made effective on May 25, 2000 (65 FR 34014), and remain 
in effect until May 25, 2005.

Summary of Request

    On May 15, 2001, NMFS received a request from BPXA for a renewal of 
an LOA issued on September 28, 2000 (65 FR 58265) for the taking of 
marine mammals incidental to production operations of the offshore oil 
and gas facility at Northstar in state and Federal waters, under 
section 101(a)(5)(A) of the MMPA. This request contained information in 
compliance with 50 CFR 216.209 which updated information provided in 
BPXA's original application for takings incidental to construction and 
operations at Northstar. The previous LOA for the taking of marine 
mammals incidental to the construction of the Northstar facility 
expired on November 11, 2001.

Description of Activity

    BPXA proposes to produce oil from the Northstar Unit offshore oil 
development facility. This facility is 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.
    The Northstar island and pipelines were constructed during the 
winter of 1999 and early 2000. Construction of ice roads began in 
November 1999, and was completed in March 2000. Construction activity 
included 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 ice road had a parallel alternate road to 
transport service equipment, construction materials and alternate 
gravel hauling when maintenance or repair of the main ice road was 
required. Gravel hauling to the island extended from February to April, 
2000. The pipelines were installed through a trench in the ice from 
March through May 2000, and buried to a depth of 6 to 8 ft (1.8 to 2.4 
m) below the sea floor. Construction work and installation of 
facilities on the island continued during the spring ice break-up and 
open water season of 2000. Sheet pile installation at Northstar island 
began on March 7, 2000, and continued through May 29, 2000, via 
vibratory and impact pile-driving techniques. Additional work included 
capping the sheet pile retaining wall and installing the well-conductor 
pipes, foundation blocks, concrete slope protection, utility and 
permanent living quarter modules, and the drilling rig with its module. 
Monitoring of marine mammal impacts was conducted during this 
construction period and reported in Richardson and Williams (2000, 
2001a, 2001b).
    The operational (oil production) phase at the Northstar facility 
during both the ice-covered and open-water seasons will include two 
diesel generators (designated emergency generators), three gas-turbine 
generators for the power plant operating at 50-percent duty cycle 
(i.e., up to two will be operating at any one time), two high pressure 
gas-turbine compressors, one low-pressure flare, and two high-pressure 
flares. All flares will be located on the 215 ft (66 m) flare tower. 
There is no seismic survey work involved with this activity or being 
proposed for authorization under this LOA.
    Drilling began in December 2000 and is expected to continue for 
about 3 years. The operational phase of Northstar is considered to 
begin with the first oil, likely in November 2001. Production will 
commence while drilling is continuing. 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 operations 
activity includes the annual construction of three ice roads. One is to 
be built parallel to the coast from West Dock and Pt. McIntyre to the 
location of the pipeline shore crossing. A second road will be 
constructed along the pipeline route from the shore crossing to 
Northstar Island. A third road from Pt. McIntyre directly to Northstar 
is also anticipated. Ice road construction will begin sometime during 
the period from late-November through January, depending on ice 
conditions. Ice roads are expected to be completed and ready for 
traffic by mid-February. Ice roads will be used to resupply needed 
equipment, parts, foodstuffs, and products, and for hauling wastes back 
to existing facilities. For a description of planned ice-road 
activities, please refer to BPXA's 2001 application.
    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 August 17, 2001 (66 FR 43216), NMFS published a notice of 
receipt and a 30-day public comment period was provided on the 
application and proposed authorization. During the public comment 
period, comments were received from the Marine Mammal Commission (MMC), 
the North Slope Borough (NSB), the Alaska Eskimo Whaling Commission 
(AEWC) and BPXA.

MMPA Concerns

    Comment 1: BPXA questions whether sounds generated from ice road 
construction and production activities at Northstar will incidentally 
take ringed seals by harassment during the first several months of the 
ice-covered period. BPXA states that the Court of Appeals for the 9\th\ 
Judicial Circuit has defined ``harass'' as used in the MMPA to mean . . 
. ``direct and serious disruptions of normal marine mammal behavior . . 
..'' (US v. Hayashi, 22 F.3d 859, 865, 9\th\ Cir. 1994). BPXA 
anticipates that sounds from Northstar ice road construction and 
production activities will not cause direct and serious disruptions of 
normal seal behavior during this period.
    Response: The MMPA was amended in 1994, after Hayashi was decided, 
to include a definition of harassment, which did not exist in the 
statute at the

[[Page 65925]]

time of the alleged violation in that case. The court had to determine 
what harassment meant in the context of how ``take'' was defined in the 
statute and the regulations at that time. Harassment as defined in the 
MMPA, as amended, includes any act of annoyance that has the potential 
to injure a marine mammal or cause disruption of behavioral patterns. 
Therefore, NMFS believes that harassment is broader than the Hayashi 
court's definition. Also, while NMFS concurs that, prior to March 1, 
Northstar ice-road construction will not cause a serious disruption of 
normal seal behavior during this time, both BPXA (through its 
application) and NMFS concur that ice road construction-related 
activities may cause limited and localized displacement of ringed seals 
during this time period.
    Comment 2: The AEWC believes that NMFS is required to issue an 
authorization under section 101(a)(5)(A) of the MMPA for takings by oil 
spills. The AEWC believes that the narrow reading provided by NMFS in 
the proposed LOA authorization (66 FR 43216, August 17, 2001) equates 
an authorization of take by an oil spill with an authorization to spill 
oil.
    Response: NMFS believes that the MMPA does not authorize the 
issuance of incidental take authorizations when the taking results from 
an unlawful activity. In that regard, the Clean Water Act (CWA) at 33 
USC 1321(b)(3) prohibits discharge of harmful quantities into the 
water. Regulations at 40 CFR 110.3 define harmful quantities as 
violating water quality standards or causing a sheen (i.e., oil spills 
are considered a violation of the CWA). This is the same approach NMFS 
takes with respect to incidental take authorizations under the 
Endangered Species Act (ESA); the incidental take must result from an 
otherwise lawful activity (50 CFR 402.02).
    Comment 3: The AEWC states that under section 101(a)(5)(A) of the 
MMPA, NMFS must set an upper biological limit that it will allow for 
all takings that might occur incidental to a specified activity. In 
other words, AEWC asserts that NMFS must authorize all the takes that 
may occur incidental to the specified activity so long as NMFS is able 
to make the necessary determinations for a small take LOA (negligible 
impact on species; no unmitigable adverse impact on subsistence), and 
then issue an LOA for that maximum amount. NMFS has not done this with 
respect to incidental taking that might be caused by oil spill or other 
discharge at Northstar. (This comment was made as part of the previous 
comment that the LOA must include authorization for takes that occur 
incidental to an oil spill.)
    Response: Although the LOA does not authorize takes that occur 
incidental to an oil spill (see response to Comment 2), the impacts of 
an oil spill nevertheless were considered in the analysis for the 
impacts of BPXA's activities on the affected species or stocks. When 
evaluating the impacts of an activity on marine mammals, NMFS takes 
into account the probability of occurrence of potential impacts and the 
potential severity of harm to the species or stock. If the potential 
impacts are significant but the probability of occurrence is low, a 
negligible impact determination may be appropriate. The same is true if 
the potential effects of a specified activity are conjectural or 
speculative. For a further explanation of this approach, see the Final 
Rule implementing the regulations governing small takes of marine 
mammals incidental to specified activities, 50 FR 40338, 40343 
(September 29, 1989). These determinations are based on the best 
scientific information available as later supported or negated through 
required monitoring program (NMFS, 1995).
    For the BPXA LOA, NMFS considered both the likelihood and the 
potential impacts of an oil spill and made these determinations in the 
preamble to the Northstar final rule (66 FR 34014; May 25, 2000), NMFS 
determined that while a large oil spill would potentially have more 
than a negligible impact on bowhead whales and other marine mammals, 
the likelihood of such an oil spill and the likelihood of an impact are 
low for the five-year period of these authorizations. This allowed NMFS 
to make a determination that the incidental takings would have a 
negligible impact on marine mammals. Because the likelihood of an oil 
spill and the resulting impacts on marine mammals were low, NMFS deemed 
that any calculation of take would be speculative.
    However, NMFS recognizes that in the unlikely event that a major 
oil spill does 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 and not having an 
unmitigable adverse impact on subsistence uses of marine mammals. If, 
because the takings due to the oil spill are projected to exceed the 
levels used in this document to make the necessary findings, 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.

Marine Mammal Concerns

    Comment 4: The MMC believes that the population-level effects and 
the impacts on Native subsistence hunting may not be negligible in the 
long-term (i.e., over the expected 15-20 years of production and 
related activities).
    Response: The issue of making a negligible impact determination was 
addressed in detail in the preamble to the final rule (see 66 FR 34014, 
May 25, 2000), especially NMFS' response to comments 20 through 23). 
Essentially, NMFS does not agree that it should make a negligible 
impact assessment 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 . . ..'' This is what NMFS did, as 
detailed in the final rule. However, by reviewing its negligible impact 
determinations every 5 years, as mandated by Congress when it limited 
authorizations to no more than 5 years at a time, NMFS has the ability 
to reassess its determinations through new research, monitoring and 
reporting that is required under the current regulations.
    In that regard, it is important to note that NMFS will not continue 
to review the findings made in the preamble to the final rule and in 
this document during future LOA renewals for the Northstar facility. 
For future LOA renewals, NMFS will follow the renewal instructions 
published at 50 CFR 216.209 and will not invite public comment on LOA 
renewals unless NMFS receives significant new information that calls 
into question the findings that have been made previously, or if BPXA 
fails to comply with the terms and conditions of its LOA.
    Comment 5: The MMC notes that while the statement in ``Impacts of 
Noise on Marine Mammals in the Beaufort Sea'' is correct, some relevant 
data shows that when seal structures were reassessed in May 2000, 87 
percent of the structures identified as active in

[[Page 65926]]

December (20 of 23) had been either abandoned or eliminated by 
construction activities (6 eliminated; 14 abandoned, 3 active). Three 
of the structures found in December were still active in May. (This 
compares with an abandonment rate of 4 percent in earlier studies--
albeit over shorter periods of time.) However, during May an additional 
18 structures, 15 of which were active, were found within the portion 
of the construction and monitoring area that was searched again. These 
data show that some individual ringed seals remained near the 
industrial area despite the intensive island and pipeline construction 
activities that occurred between December and May. It is not known 
whether the unexpectedly high number of structures found for the first 
time in May was related to local relocation of seals as a result of 
construction activities, or inadequate survey coverage in December, or 
a combination of the two.
    Response: The information cited in the comment is contained in 
BPXA's reports for activities at Northstar during the winter and 
spring, 1999-2000 (Richardson and Williams, 2000; Williams et al. 
(2001). One additional possible causal relationship for the high number 
of structures identified by the authors is the natural creation of new 
structures as the 9-month ice-covered season progressed. A second year 
of the results of this research was provided to NMFS in September 2001, 
after NMFS had published the notice of proposed LOA authorization 
(August 17, 2001 (66 FR 43216)). A summary of relevant findings from 
this report is provided later in this document.
    Comment 6: The AEWC questions NMFS' statement that interactions 
between oil and whales are unlikely in the spring due to the probable 
alongshore trajectory of oil spilled from Northstar. The AEWC states 
that no data are available to support this assertion. The AEWC 
references the Minerals Management Service (MMS, 2001) to support this 
statement noting the MMS states: ``...it is not possible to predict the 
location of a spill or its path, and therefore it is not possible to 
predict which ecological, social, or economic resources would be 
affected and to what extent.''
    Response: During spring, bowhead whales migrate eastward in 
offshore leads and no bowheads are expected to occur within 75 km (46.6 
mi) of Northstar. Under-ice currents are influenced by coastal storm 
surges and regional circulation patterns (Corp of Engineers (Corps), 
1999). While water mass movement is influenced in open water by the 
Beaufort Sea Undercurrent, there is no indication that significant 
alongshore currents exist while under the ice (current measurements 
vary from 0.7 in/sec (1.8 cm/sec) to 3.6 in/sec (9 cm/sec)(Corps, 
1999)). As a result, while NMFS has removed this statement from this 
document, it continues to adopt the information contained in the Corps' 
final Environmental Impact Statement (final EIS) (Corps, 1999), as the 
best scientific information available that the probability that an oil 
spill from Northstar would reach bowhead whales during the spring 
migration period is very low.
    NMFS believes that the AEWC citation of the MMS' draft proposed 5-
year Outer Continental Shelf (OCS) leasing plan for 2002-2007 to 
support its argument is not the appropriate document for this action as 
it is a projection for future lease sales in all U.S. OCS areas, not 
just the Beaufort Sea. Since the Northstar activity is covered by an 
final EIS prepared by the Corps for oil and gas production at 
Northstar, and since oil spill trajectories have been projected for 
that location, NMFS believes that the Corps document is the appropriate 
supporting documentation for this action.
    Comment 7: The AEWC further states that historically, the spring 
leads in the area of Northstar have tended to be relatively far 
offshore, and the State of Alaska has imposed seasonal drilling 
restrictions on BPXA's Northstar operations to help address the risk of 
oil entering the water during spring break-up or other broken ice 
periods. However, satellite images from the past two winters show the 
formation of large ice leads, perpendicular to the shore, in the 
vicinity of Northstar.
    Response: Thank you for this information. However, with drilling 
restrictions proposed by BPXA (later adopted by the State of Alaska) 
that drilling into oil producing areas will not take place during 
springtime ice break-up (and the open water period), this new 
information does not affect NMFS' determination that Northstar oil and 
gas production would not have more than a negligible impact on bowhead 
whales and other marine mammals, and would not have an unmitigable 
adverse impact on subsistence uses of marine mammals.
    Comment 8: The AEWC also questions NMFS' statement that 
<gr-thn-eq>bowhead feeding is uncommon along the coast near 
Northstar.<gr-thn-eq> In making this statement, NMFS fails to note 
repeated statements by elders and subsistence whaling captains that 
they consider the spring and fall migratory paths of the bowhead whale 
(including the waters shoreward of those paths) to be important feeding 
habitat. This information has been provided to NMFS in the AEWC's 
comments on the petition to designate critical habitat for the western 
stock of bowhead whales and on NMFS' draft Arctic Regional Biological 
Opinion.
    Response: It is recognized both scientifically and by Traditional 
Knowledge that bowhead whales feed during spring and fall migration in 
the Beaufort Sea. However, according to Richardson (pers. comm. October 
19, 2001) bowhead whale feeding during migration appears to be 
opportunistic and probably can occur wherever and whenever bowheads 
encounter a sufficient concentration of prey in the Alaskan Beaufort 
Sea. Current information, according to Richardson, indicates that 
bowheads sometimes feed as they travel even if the prey biomass is only 
moderate, but linger in one area specifically to feed only if prey 
biomass is high at some depth in the water column. However, bowhead 
aerial surveys hint that the Northstar area is not a hotspot for 
feeding. Feeding very likely occurs there to some extent, but less so 
than in some other places like the waters near and east of Kaktovik, or 
the area east of Barrow, AK. In those areas (unlike the Northstar area) 
groups of bowheads are sometimes observed feeding intensively and for 
extended periods (several days). Aerial survey results give the 
impression that bowheads probably feed more in the area between Flaxman 
and Cross Island than they do from Cross Island westward past Northstar 
to Harrison Bay. However, there have been no specific studies of 
feeding between Cross and Flaxman islands and areas west of Camden Bay 
are outside BPXA's feeding study area. It should be noted for future 
reference that, aside from mentioning the Cross Island stomach contents 
in passing, and the Barrow stomach contents in detail, BPXA's feeding 
study report will not deal with the Northstar area or other locations 
west of Camden Bay (Richardson, J. pers. comm. October 19, 2001).

Mitigation Concerns

    Comment 9: The MMC recommends that, if it has not already done so, 
NMFS should review and, if necessary recommend modifications to, the 
updated Oil Discharge Prevention and Contingency Plan (ODPCP) to assure 
that the risk of oil spills has been estimated appropriately, that the 
planned measures for containing and cleaning up oil spills in both the 
open ocean and ice-covered areas are likely to be effective, and that 
everything feasible will be done to minimize the impacts of

[[Page 65927]]

both oil and contaminant/clean-up operations on marine mammals.
    Response: As noted in the preamble to the final rule (66 FR 34014; 
May 25, 2000), NMFS believes that it has neither the expertise to 
determine the adequacy of the ODPCP, nor the authority to require the 
ODPCP be modified by BPXA or to place these requirements on Federal or 
state agencies with such authority. The ODPCP has been approved by the 
U.S. Department of Transportation, the U.S. Coast Guard, the MMS, and 
the State of Alaska Department of Environmental Conservation. For its 
determinations of negligible impact, NMFS relied on the information, 
including estimates of risk from oil spills, contained in the final 
EIS.
    Comment 10: The MMC also recommends that NMFS provide for periodic 
site inspections, as part of the long-term monitoring program, to 
ensure that the contingency plan can be implemented as and when 
necessary.
    Response: NMFS considers the ODPCP as part of the Northstar 
mitigation program, not a part of BPXA's marine mammal monitoring 
program. NMFS does not have the expertise to judge whether or not a 
contingency plan can be implemented and therefore leaves that 
responsibility for other federal and state agency judgements. Oil spill 
drills are scheduled periodically and NMFS will use the other agencies' 
findings, as needed, to make or confirm the necessary determinations 
under the MMPA. However, during previous oil-spill containment 
exercises, it became widely recognized that oil spill cleanup 
activities have not been totally successful during periods of broken 
ice. As a result, BPXA has confirmed to NMFS that it will not drill 
into oil production layers during either broken ice or open water 
season when oil spill impacts would be more difficult to mitigate 
(through containment and clean-up) and would restrict drilling to the 
wintertime. This is discussed in detail later in this document.
    Comment 11: The MMC notes that in ``Proposed Mitigation,'' it is 
unclear what is intended. There is no problem with conducting the 
baseline survey after 20 March in areas which are undisturbed prior to 
that time. However, the baseline survey date cannot be subsequent to 
the first date of any disturbance.
    Response: NMFS agrees, recognizing that surveys using trained dogs 
to locate ringed seal lairs late in the season are considered by NMFS 
as a mitigation measure to prevent, to the greatest extent practicable, 
the death of newborn pups during that critical period of life. 
Accordingly, the March 20 date has been changed to March 1 because a 
ringed seal birth was discovered in early March, 2001 near Northstar. 
Discussion on this survey as a monitoring program is discussed later in 
this document.

Monitoring and Reporting Concerns

    Comment 12: The MMC believes that the ongoing and proposed research 
and monitoring programs may not be sufficient to detect non-negligible 
effects. The MMC remains concerned that long-term effects may still 
occur and that some type of reliable monitoring program should be 
implemented.
    Response: Without a more detailed explanation on the MMC's concern 
that the monitoring program is insufficient, NMFS cannot respond in any 
detail to the comment. BPXA has submitted several reports on the 
results to date on monitoring and has proposed a monitoring program 
that was available for review during this comment period. These 
monitoring plans have been peer-reviewed in at least two workshops (see 
Monitoring later in this document for detail) in the past. Also, NMFS 
has participated in meetings and workshops with industry, other 
government agencies and Native groups to address both short-term and 
cumulative impact monitoring.
    It should be recognized that research and monitoring of Beaufort 
Sea marine mammals are also conducted by government agencies, or 
through government agency funding, that have not been addressed in 
recent documents. This includes, for example, MMS' aerial bowhead whale 
surveys, an annual population assessment survey for bowhead whales, a 
study on contaminant levels in bowhead whale tissue, and a bowhead 
whale health assessment study. These latter three studies are funded 
by, or through, NMFS. Information on these projects has been provided 
to the MMC by NMFS. Based on this multi-faceted monitoring program, 
NMFS has determined that the monitoring program is adequate to identify 
impacts on marine mammals, both singly from the project and 
cumulatively throughout the industry.
    Comment 13: The MMC recommends that visual monitoring during the 
open-water season be resumed in future years if noisy activities, such 
as impact pipe driving, were to take place.
    Response: Even though ``construction'' activities are not planned 
by BPXA in the near future, NMFS has added to the LOA a requirement 
that visual monitoring be conducted whenever activities are planned to 
take place that potentially would result in a sound pressure level 
(SPL) greater than 180 dB beyond the island perimeter.
    Comment 14: The MMC believes that the use of trained dogs to locate 
seal structures beginning in early January is appropriate. The BPXA 
application states that on-ice activities will avoid located structures 
``when practical.'' The MMC believes that an explanation of when such 
avoidance would not be practical should be provided.
    Response: The primary ice roads used during Northstar oil 
production must be almost straight-line in order to effectively 
transport crews and material to Northstar Island. 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. One of the reasons for building the ice 
roads early in the season is that it mitigates to the greatest extent 
practical interference with seals' constructing birthing lairs. 
However, secondary ice roads constructed later in the season are not 
believed to be confined to a set track and, because of the potential 
impact on ringed seal pups, can and should be constructed to avoid seal 
structures. As a result, NMFS has imposed mitigation measures in the 
LOA that require (1) Using trained dogs to locate seal structures on or 
in the vicinity of ice roads, (2) avoiding seal structures by a minimum 
of 150 m (492 ft) during construction of any roads other than the two 
primary roads, and (3) avoiding, to the greatest extent practicable, 
disturbance of any located seal structure after March 1.
    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 their territory, they do not rely on a single structure 
during the year. Ice roads constructed early in the year will have the 
potential to result in some minor harassment as ringed seals abandon 
certain breathing holes, if the noise is disturbing to them. NMFS 
believes this is preferable to avoiding all harassment of ringed seals 
during early-season ice road construction (how that would be 
accomplished has not been identified), allowing seal structures to 
become birthing lairs, having the newborn pup (who may be more 
sensitive to noise than an adult) abandon a birthing lair prior to 
weaning, and then succumb to the effects of the disturbance. However,

[[Page 65928]]

NMFS intends to have the results of recent on-ice monitoring reviewed 
at the next on-ice peer review workshop (tentatively scheduled for 
September 2002 in Seattle) to determine whether it is necessary to 
resume a winter-time ringed seal monitoring program for the Northstar 
project.
    Comment 15: The MMC notes that in Monitoring During the Ice-covered 
Season, it is stated that ``if needed, a recheck of these structures 
will be conducted in May 2002 to assess the proportion of structures 
abandoned relative to distance between the disturbance and the 
structure.'' It seems like such information is exactly the kind 
required for monitoring, and that the recheck in May should be 
mandatory, rather than ``if needed.''
    Response: NMFS agrees that rechecking seal structures in the 
vicinity of Northstar in May is appropriate if road construction, or 
other significant disturbance, has taken place after March 1. The LOA 
has been amended to reflect this condition.
    Comment 16: BPXA requested clarification on the date for delivery 
of the final report to NMFS. The current regulation, under which the 
LOA is authorized, states that the draft comprehensive report is due to 
NMFS on May 1 of each year. However, language in the (current) LOA 
states that the final draft report is due April 1 of each year. BPXA 
requests that the renewed LOA be consistent with the regulation and the 
final draft report will be due to NMFS on May 1 of each year.
    Response: NMFS agrees. Under the LOA, a draft annual comprehensive 
report is due on May 1 of each year, as required by the regulations. 
This report will need to contain information from the just-completed 
on-ice monitoring season, and the previous year's open water monitoring 
period. For background information on this issue, NMFS recommends 
readers refer to NMFS' response to comment 44 in the preamble to the 
Northstar final rule (see 65 FR 34014, May 25, 2000).

Subsistence Concerns

    Comment 17: The AEWC states that NMFS is compelled to provide 
mitigation measures for potential adverse impacts to Alaskan Eskimo 
subsistence hunting as part of the LOA requested by BPXA.
    Response: NMFS agrees, noting that mitigation measures are 
described in the proposed LOA notice published in the Federal Register 
on August 17, 2001 (66 FR 43216) and in this document. This includes 
mitigation for both noise and potential oil spills, for reasons 
explained in both documents.
    Comment 18: The NSB has concerns that NMFS' proposed mitigation 
measures for oil spills are not triggered unless the spill reaches or 
exceeds 1,000 barrels. This, the NSB states, is an artificial limit and 
there is simply no basis, logical or scientific, for this being the 
standard. The appropriate standard should be focused on whether or not 
the spill causes a reduction in the subsistence use of marine mammals. 
The NSB recommends NMFS adopt the definition found in the draft Good 
Neighbor Policy (GNP) condition B.1.
    Response: The GNP is an agreement between BPXA and the NSB that 
outlines mitigation measures that would take place in the event that an 
oil spill occurred at the Northstar facility or its pipeline. On 
September 19, 2001, the AEWC and the Mayor, NSB, informed BPXA 
representatives that, if the outstanding GNP issues could be resolved 
to the satisfaction of the AEWC, the NSB and the Inupiat Community of 
the Arctic Slope would not object to the renewal of BPXA's LOA on the 
basis of the oil spill mitigation. This private agreement, of which 
NMFS is not a party, became effective on October 22, 2001.
    NMFS agrees that the definition proposed in the GNP is more 
appropriate for determining impacts on subsistence hunting than the 
standard industry definition that was provided by BPXA in its 
application. Accordingly, this definition has been added to the LOA for 
Northstar and is provided later in this document.
    Comment 19: The AEWC questions NMFS' statement in the proposed 
notice (66 FR 43216, August 17, 2001) that almost all bowhead whales 
travel north of Northstar during the fall migration. This assertion 
ignores the fact that subsistence hunters have taken bowheads in the 
vicinity of Northstar.
    Response: The comment has been taken out of context. NMFS notes a 
few sentences later that ``[I]n the case of bowheads, almost all 
individuals travel west north of Northstar. A few individuals travel 
west within a few kilometers north of Northstar, but most are 10 km 
(6.2 mi) or more farther offshore.'' In fact, in most years (1979-
1995), less than 2 percent of the westward migrating population are 
within 15 km (9.3 mi) of Northstar (BPXA, 2001). This discussion, which 
is concerned about impacts of noise on marine mammals, does not ignore 
the fact that subsistence hunters have taken bowheads in the vicinity 
of Northstar. This discussion is found later in the referenced proposed 
LOA document (and in this document) under impacts on subsistence uses.

Description of Habitat and Marine Mammals Affected by the Activity

    A detailed description of the Beaufort Sea ecosystem and its 
associated marine mammals can be found in several documents (Corps, 
1999; MMS, 1990, 1992, 1996, 2001; NMFS, 1997).

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 can be found in Ferraro et al. (2000), Corps (1999), MMS 
(2001) and the BPXA application (BPXA, 1999 and 2001). The latter two 
documents are available upon request (see ADDRESSES); Ferraro et al. 
(2000) is available at the following URL: http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_Program/ sars.html. Please refer to 
these documents for specific information on marine mammal species.
    In addition to the species mentioned in this paragraph, Pacific 
walrus (Odobenus rosmarus) and polar bears (Ursus maritimus) also have 
the potential to be taken. LOAs for the taking of these species under 
the MMPA has been issued by the the U.S. Fish and Wildlife Service (see 
66 FR 10314, February 14, 2001).

Potential Effects on Marine Mammals

    Issuance of an LOA for taking marine mammals incidental to 
production at Northstar has been based on findings that the 
determinations made in the preamble to the final rule (66 FR 34014; May 
25, 2000)(that the total takings by Northstar construction and 
operations will result in only small numbers of marine mammals being 
taken: have no more than a negligible impact on marine mammal stocks in 
the Beaufort Sea; and not have an unmitigable adverse impact on the 
availability of the affected marine mammal stocks for subsistence uses) 
remain valid. For that reason, the following discussion of impacts is 
provided. Additional supporting information on noise, and oil impacts 
on marine mammals and on impacts to subsistence needs can be found in 
BPXA, 1999, 2001. Additional information on noise impact assessments 
can be found in Richardson and Williams (eds.)(2000a, 2000b, 2001a, 
2001b).

[[Page 65929]]

Impacts of Noise on Marine Mammals in the Beaufort Sea

    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 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.
    Responses of seals to acoustic disturbance are highly variable, 
with the most conspicuous changes in behavior occurring when seals are 
hauled out on ice or land when exposed to human activities. Seals in 
open water do not appear to react as strongly. Activities planned for 
the ice-covered seasons during the production phase of Northstar are 
expected to cause no more than limited and localized displacement of 
ringed seals. Results of fixed-wing aircraft monitoring of hauled out 
ringed seals during intensive construction activities in early 2000 
showed no significant change in seal density in the areas closest to 
Northstar (Moulton et al., 2001a). In 2001, seal densities in areas 
close to and including the Northstar development were higher than in 
adjacent areas farther away. These results indicate that few, if any, 
seals were displaced far enough to be detectable by aerial surveys, and 
that any displacement that did occur was quite localized (Moulton et 
al., 2001b).
    In winter and spring, ice road construction and travel activities 
will displace some small numbers of ringed seals along the ice road 
corridors. 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 remains in the vicinity of the ice road. 
During the 2000/2001 season, trained dogs were used during three 
surveys to locate and assess the fate of seal structures in the 
vicinity of Northstar. During the third survey in May 2001, a total of 
82 new ringed seal structures were found in the Northstar study area. 
Forty-five of the structures were breathing holes, 36 were lairs, and 
one was unidentified. All 45 breathing holes and 34 of the 36 lairs 
were in active use. The status of all previously located sea structures 
was also determined during the May 2001 survey. Of the 35 structures 
located in the November/December 2000 survey, 71 percent (20 breathing 
holes and 5 lairs) had been abandoned by May 2001. Of the 63 structures 
located in March 2001, 44 percent (20 breathing holes and 8 lairs) had 
been abandoned by May 2001. Additionally, 8 of the 81 (10 percent) 
identified structures first located in May were abandoned by 22 May, 
2001 (2 breathing holes and 6 lairs). Preliminary results suggest a 
high abandonment rate for structures out to 3 km (1.9 mi) from 
Northstar and the associated on-ice activities. Alternatively, the 
continued presence of ringed seals near Northstar throughout the 
winter, and the creation of new structures near Northstar activities 
during the winter, suggest that potential negative effects to seals may 
be minor and highly localized (Williams et al. (2001b).
    In addition to displacement by harassment, BPXA believes there is a 
small possibility of injury or mortality to a very small number of seal 
pups during ice road construction and transportation activities. 
However, planned timing of road construction (before pups are born) 
will minimize the probability of occurrence.
    During the open-water season, all six species of whales and seals 
could potentially be exposed to noise from vessels, the island and from 
other stimuli associated with the planned operations. Vessel traffic is 
known to cause avoidance reactions by whales at certain times 
(Richardson et al., 1995). Helicopter operations, and possibly other 
production-related 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, 
2001).
    During the late summer and autumn, almost all whales are found 
north of the barrier islands, and north of Northstar. In the case of 
belugas, most individuals follow a far-offshore migration corridor at 
or beyond the edge of the continental shelf. In the case of bowheads, 
almost all individuals travel west north of Northstar. A few 
individuals travel west within a few kilometers north of Northstar, but 
most are 10 km (6.2 mi) or more farther offshore. Gray whales are rare 
in the Northstar area.
    In the open-water period, the principal activities on Northstar 
Island will be oil drilling and production activities, and associated 
helicopter and vessel traffic. Underwater sounds from drilling and 
routine production activities on the islands are not expected to be 
detectable more than about 5-10 km (3.1-6.2 mi) offshore of Northstar 
Island. However, when tugs or self-propelled barges are in use, 
underwater sounds could be faintly detectable as much as 28 km (17.4 
mi) offshore of Northstar (Blackwell and Greene, 2001). Avoidance 
reactions by bowhead, gray and beluga whales will be limited to 
substantially less than that distance. Cetaceans usually do not show 
overt avoidance reactions unless received levels of industrial noise 
are well above natural background noise level (Richardson et al., 
1995). Also, average noise levels from Northstar are expected to be 
lower during production activities in 2002 and beyond than they were 
during construction operations in 2000 (BPXA, 2001). Little disturbance 
or displacement of whales by vessel traffic is expected.

Impacts of Oil Spills on Marine Mammals in the Beaufort Sea

    For reasons stated in the application (BPXA, 1999, 2001), BPXA 
believes that the effects of any oil spills 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, at 
a distance of more than 75 km (46.6 mi) from Northstar. As a result, 
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 would 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

[[Page 65930]]

the whales travel along routes well north of Northstar, according to 
BPXA (1999), only a small minority of the whales would be likely to 
intercept patches of spilled oil. The Corps (Corps, 1999) states that 
considering the limited number of days each year that bowhead whales 
would be migrating through the area, the low probability that a spill 
would occur, and the very low probability that oil would move into the 
migration corridor of the bowheads, it is very unlikely that bowhead 
whales would be contacted by oil. The effects of oil on these whales 
have been described in several documents (BPXA, 1999; Corps, 1999; 
Loughlin et al., 1994; and MMS, 2001).
    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 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 absent from the area, this should lessen the likelihood of impact 
by cleanup activities.

Estimated Level of Incidental Take

    BPXA (2001) estimates that, during the ice-covered period, 53 
(maximum 139) ringed seals and 1 (maximum 5) bearded seals potentially 
may be incidentally harassed annually during oil production activities. 
BPXA estimated these takings by harassment during the ice-covered 
season by assuming that seals within 3.7 km (2.3 mi) of Seal Island, 
and within 0.644 km (0.4 mi) of ice roads will be ``taken'' annually. 
This constitutes a total area of 46.73 km\2\ (18.0 mi\2\). These 
anticipated levels of potential take are estimated based on observed 
densities of seals during recent (1997-2000) aerial surveys in the 
Northstar area during spring (Miller et al., 1998; Link et al., 1999; 
Moulton et al., 2000, 2001) plus correction factors for seals missed by 
aerial surveyors. NMFS however, concurs with BPXA (1999, 2001) 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.
    For the ice break-up period, BPXA assumes that seals within 1 km 
(3.11 km\2\) (0.62 mi/1.2 mi\2\) of Northstar Island might be affected 
by activities on the island. Based on aerial surveys conducted in 2000 
of hauled-out seals, applying correction factors for seals present on 
the ice but not seen and for seals not hauled out, and assuming a 
complete turnover of seals on a weekly basis, BPXA estimates that the 
total number of ringed seals harassed during the 6 week break-up period 
will be 25 animals.
    During the open-water season, BPXA (2001) estimates that 17 
(maximum 27) ringed seals, 5 spotted seals, 1-5 bearded seals, 215 
(maximum 774) bowhead whales, up to 5 gray whales, and 15 (maximum 91) 
beluga whales may be incidentally harassed annually due to operations 
at Northstar. BPXA assumes that seals and beluga whales within 1 km 
(0.6 mi) radius of Northstar Island will be harassed incidental to oil 
production activities on the island. Assumed ``take'' radii for bowhead 
whales are based on the distance at which the received level of 
production-related noise from the island would diminish below 115 dB re 
1 <greek-m>Pa. This distance has been conservatively estimated at 4 km 
(2.5 mi), due mostly to noise from tugs and self-propelled barges.
    Although the potential impacts to the several marine mammal species 
occurring in these areas is expected to be limited to harassment, a 
small number of ringed seals 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 
Northstar 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. As a 
result, BPXA requested that takings by mortality also be covered by the 
LOA. In addition, some injury or mortality of whales or seals may 
result in the event that an oil spill occurs. However, because of the 
unpredictable occurrence, nature, seasonal timing, duration, and size 
of an oil spill occurring, 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, and believes that 
it is even less likely that spilled oil will intercept numbers of 
marine mammals, NMFS cannot necessarily conclude that the effects on 
all 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

[[Page 65931]]

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 and intercepting these 
species would be significantly less than 10 percent (approaching 1 
percent), NMFS can make a determination that the taking of these two 
species incidental to operation at the Northstar oil production 
facility will have no more than a negligible impact on them.
    However, regardless of the negligible impact finding, the LOA does 
not authorize any marine mammal takes that occur incidental to an oil 
spill. The reason for this is that authorizations are issued only for 
takes that are incidental to otherwise lawful activities, and an oil 
spill is not a lawful activity, as indicated by the CWA. The CWA, at 33 
USC 1321(b)(3), prohibits discharge in harmful quantities into the 
water, and regulations at 40 CFR 110.3 define harmful quantities as 
violating water quality standards or causing a sheen (i.e., oil spills 
are considered a violation of CWA), an authorization to take marine 
mammals, under section 101(a)(5)(A) of the MMPA, incidental to an oil 
spill cannot be issued. Even though NMFS cannot issue incidental taking 
authorizations for oil spills, it must continue to ensure that 
potential takings are reduced to the lowest level possible. Therefore, 
the LOA requires certain mitigation measures to ensure that oil spills 
do not occur (see Mitigation later in this document).

Impacts on Habitat

    Invertebrates and fish, the nutritional basis for those whales and 
seals found in the Beaufort Sea, may be affected by operations at 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. Fish may have been 
displaced when the island was constructed. These local, short-term 
effects, however, are unlikely to have an impact on marine mammal 
feeding.
    In the event of a large oil spill, fish and zooplankton in open 
offshore waters are unlikely to be seriously affected. Fish and 
zooplankton in shallow nearshore waters could sustain heavy mortality 
if an oil spill were to remain within an area for several days or 
longer. These affected nearshore areas may then be unavailable for use 
as feeding habitat for seals and whales. However, because these seals 
and whales are mobile, and bowhead feeding is uncommon along the coast 
near Northstar, effects would be minor during the open water season. In 
winter, effects of an oil spill on ringed seal food supply and habitat 
would be locally significant in the shallow nearshore waters in the 
immediate vicinity of the spill and oil slick. However, overall effects 
to the species would be negligible.

Impacts on Subsistence Uses

    This section contains a summary on the potential impacts from 
operational activities on subsistence needs for marine mammals. A more 
detailed description can be found in BPXA's applications (BPXA, 1999, 
2001). This information, in addition to information provided by AEWC 
and the NSB in their comments on the final rule, and information 
provided in the Corps' final EIS for Northstar, is believed by NMFS to 
be the best information available to date on the potential effects on 
the availability of marine mammals for subsistence uses in the Beaufort 
Sea area.

Noise Impacts on Subsistence Harvests

    The disturbance and potential displacement of bowhead whales and 
other marine mammals by sounds from vessel traffic 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 
loud noise (BPXA, 1999, 2001).
    Underwater sounds from drilling and production operations on the 
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 hear sounds from Northstar 
until the whales are well west of the main hunting area for Nuiqsut.
    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 have taken 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 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 deg.10'N. 144 deg.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) to the 
west.
    While the effects on migrating bowheads from noise created by 
Northstar 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 activities 
at Northstar as well as barge and aircraft traffic in the Cross Island 
area will be addressed in a Conflict Avoidance Agreement between BPXA 
and the AEWC on behalf of its bowhead whale subsistence hunters. 
Information on impacts on subsistence seal hunting can be found in the 
final rule document (65 FR 34014, May 25, 2000).

Oil Spill Impacts on Subsistence Harvests

    Oil spills have the potential to affect the hunt for bowhead 
whales. As a result, the potential for oil spills from Northstar is of 
significant concern to the residents of the NSB. While oil spills from 
production drilling or pipelines could occur at any time of the year, 
NMFS believes that a reduction in the availability of bowhead whales 
for subsistence uses would be possible only if a significant spill 
occurred just prior to or during the subsistence bowhead hunt and 
spread into offshore waters. While unlikely, oil spills could extend 
into the bowhead hunting area under certain wind and current 
conditions. BPXA (1999, 2001) 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

[[Page 65932]]

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 
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 are 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 considering operating conditions in 
Arctic waters, and (5) other mitigation measures have been suggested by 
the applicant and others (and adopted by NMFS) in the event that oil 
did contact bowheads, NMFS determined in the preamble to the final rule 
for implementation of small takings of marine mammals incidental to oil 
production activities at Northstar (66 FR 34014, May 25, 2000) 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 effectiveness of the regulations. During the period 
between that rulemaking and this document, NMFS has participated in 
several meetings with BPXA, the AEWC and the NSB in recognition that, 
although unlikely, if an oil spill were to occur and reach the bowhead 
migration corridor, there is a potential for significant impacts on the 
subsistence hunting of bowheads. These meetings resulted in identifying 
several mitigation measures designed to reduce the impact.

Mitigation

    To minimize the likelihood that impacts will occur to the species 
and stocks of marine mammals and to the subsistence use of marine 
mammals, all activities at Northstar will be conducted in accordance 
with all federal, state and local regulations. BPXA will coordinate all 
activities with relevant federal and state agencies.
    In addition to design for safety and leak prevention (including not 
having any valves, flanges, or fittings in the subsea section to reduce 
the potential for equipment failure), the pipeline (which was installed 
in 2000), includes the following measures to mitigate impacts on the 
marine environment: (1) utilize the best available technology leak 
detection system to monitor for any potential leaks, (2) conduct, at a 
minimum, weekly helicopter aerial surveillance of the offshore (and 
onshore) pipeline corridor; and (3) conduct ice-road surveillance of 
the pipeline, including checking for hydrocarbons under the ice by 
drilling ice holes.
    An oil spill contingency plan has been developed and was submitted 
to the Alaska Department of Environmental Conservation, the U.S. 
Department of Transportation, U.S. Coast Guard, and the MMS for review 
and approval in March 1999. An updated plan was submitted by BPXA on 
August 8, 2001, to the State of Alaska Department of Environmental 
Conservation. Also, emergency response exercises, training and 
evaluation drills will occur at regular scheduled intervals.
    To mitigate the potential for an oil spill to interact with bowhead 
whales and affect both the species and the subsistence harvest by the 
NSB villagers, BPXA has confirmed to NMFS that they will not drill new 
wells or sidetracks from existing wells into oil-bearing strata during 
the defined period of broken ice or open water conditions which is 
defined as a period beginning on June 13, 2002, and ending with the 
presence of 18 inches of continuous ice cover for one-half mile in all 
directions.
    In addition, to ensure that there will not be an unmitigable 
adverse impact on the subsistence uses of marine mammals, principally 
bowhead whales, from an oil spill, this mitigation will include 
planning and financial assistance that will cover the following oil-
spill related costs: (1) annual transportation to alternative bowhead 
whale hunting areas for whaling crews, (b) annual alternate subsistence 
food supplies to replace subsistence food otherwise provided by a 
whale, (c) annual counseling and cultural assistance for NSB residents 
and AEWC members to handle the disruptions to their lives and culture 
caused by the oil spill, and (d) annual assistance to the NSB and the 
AEWC to restore the International Whaling Commission (IWC) quota for 
bowhead whales in the event that an oil spill at Northstar results in a 
reduction or loss of the IWC quota (BPXA Good Neighbor Policy, March 
14, 2001). An oil spill in this context means any significant discharge 
(as discharge is defined in 33 USC 2701(7)) of liquid hydrocarbons 
(including crude oil and diesel fuel) into the waters of the Beaufort 
Sea, irrespecive of cause, including Acts of God, that: (1) causes oil 
to be present in the water and the impacts defined in (2) to be 
determinable within three years of the oil spill; and (2)(a) has the 
significant potential to adversely affect bowhead whales or other 
species harvested for subsistence use; and (2)(b) is followed by a 
reduction in the availability of these species for subsistence use in 
the area(s) in which they are normally hunted.
    During the ice-covered season, BPXA proposes to use trained dogs to 
locate seal structures in previously undisturbed areas beginning on 
March 1, which, although before the traditional March 20 birthing date 
for ringed seals, is more appropriate based on the findings in a report 
by Williams et al. (2001). With completion of this report, as required 
by the 2000/2001 LOA, and the concern raised in that report of the 
potential negative impact of this monitoring program, NMFS has 
determined that conducting seal structure surveys beginning January 1 
will not be required this year pending a review by a peer-review group 
next year. If that group determines that additional monitoring is 
needed, NMFS will make the necessary modification to the BPXA LOA. 
During the open-water season, a minimum flight altitude of 1,000 ft 
(304.8 m) will be maintained by all aircraft unless limited by weather 
conditions or emergencies, and except during takeoff and landing. 
Helicopter flights will primarily be conducted during ice breakup or 
freeze-up and will occur in a specified corridor from Northstar Island 
to the mainland. In addition, all non-essential boat, barge and air 
traffic will be scheduled to avoid periods when bowhead whales are 
migrating through the area. Essential traffic will be closely 
coordinated with the NSB and the AEWC to avoid disrupting subsistence 
hunting. In addition, BPXA this year has installed a dock for barges at 
Northstar. This action will allow barges to tie up at Northstar instead 
of using diesel engines to remain in place, thereby reducing underwater 
noise levels at Northstar.

Monitoring

    A detailed description of BPXA's proposed monitoring program for 
implementation during the production phase at Northstar can be found in 
BPXA's 2001 application for an LOA incidental to oil production (BPXA, 
2001).
    The open-water season portion of BPXA's monitoring plan was 
reviewed

[[Page 65933]]

by scientists and others attending the annual open-water peer-review 
workshop held in Seattle on June 6, 2001, and will be reviewed again in 
late spring 2002. Peer review on the on-ice portion of the application 
was conducted on October 14-15, 1999, and October 2000. A summary of 
marine mammal monitoring that will be conducted during Northstar 
production this year is provided here; greater detail can be found in 
BPXA's application (BPXA, 2001).
    Under the recently expired LOA, BPXA conducted 6 monitoring tasks. 
These were to conduct: (1) Fixed-wing, systematic, aerial surveys of 
seals hauled out on the ice in the spring 2001; (2) on-ice searches, 
during winter 2000/2001, for ringed seal breathing holes and lairs near 
Northstar and, if needed, follow-up surveys; (3) measurements of 
underwater and in air sounds produced by any construction, drilling, 
and operations to document sounds and vibrations from Northstar 
construction, (4) island-based visual monitoring for marine mammals 
during the open water season, and (5) acoustic monitoring of bowhead 
vocalizations during migration. Task 3, a late-winter helicopter survey 
to assess abandonment rates of seal holes, was not conducted in the 
spring 2000, as such a survey had been attempted in spring 1999 with 
limited success. The results of this monitoring program are contained 
in Richardson and Williams (2001a and 2001b) and were summarized 
previously in this document.
    During 2002, BPXA will conduct the following monitoring activities:

Monitoring During the Ice-covered Season

    During late May/early June, 2002, BPXA plans to conduct systematic 
aerial surveys, using fixed-wing aircraft, of seals hauled out on the 
ice. This survey will be consistent with BPXA surveys of this type 
conducted from 1997 through 2001 (see Richardson and Williams, 2001a, 
2001b), and will be the last in the planned series. The initial surveys 
(1997-1998) were to provide data on baseline distribution and density 
prior to construction of offshore production facilities. The subsequent 
surveys (1999-2002) provide comparative data during and after 
construction at Northstar. BPXA will also make measurements of 
underwater and in-air sounds, as well as ice vibration produced by any 
construction, drilling, and operational activities occurring in 2002, 
whose sounds have not been previously measured.
    If construction activities occur in previously undisturbed areas 
after March 1, 2002, on-ice searches using trained dogs will be 
employed to locate seal structures. If ice road construction took place 
after March 1, 2002, a resurvey of the area surveyed previously will be 
conducted in May 2002 to assess the proportion of structures abandoned 
relative to distance between the disturbance and the structure.

Monitoring During the Open-Water Season

    During the open-water period of 2002, monitoring activities will 
include acoustic measurements of sounds produced by operational 
activities and acoustical monitoring of bowhead whales. No visual 
monitoring of marine mammals are planned for 2002 or in subsequent 
years for Northstar operations. This task was undertaken in prior years 
primarily to ensure that no seals or whales would be exposed to 
potentially injurious levels of sounds from impact pipe driving, or 
other loud noise sources during construction. However, even during pipe 
driving, impulse sound levels in the water near the island did not 
exceed 155 dB (re 1 <greek-m>Pa) and levels did not approach the 
established 180 dB (whales) and 190 dB (seals) sound level criteria. As 
BPXA does not plan to conduct impact pipe driving or other noisy 
activities in 2002 and beyond, there is no need to continue an observer 
monitoring program from Northstar. However, based on a recommendation 
from the MMC, NMFS has a requirement in the 2002 LOA that, if 
activities are conducted that have the potential to result in SPLs 
greater than 190 dB in the waters offshore of Seal Island, then an 
observer monitoring program will need to be instituted prior to 
beginning that activity to ensure that proper mitigation and monitoring 
requirements are carried out.
    BPXA plans to use an acoustic localization technique in 2002 to 
document the occurrence and locations of calling bowhead whales in the 
southern part of the migration corridor. This work will be a 
continuation of work conducted in 2000 (Greene et al., 2001) and 
planned for 2001 under the current LOA. The primary objective is to 
document the occurrence of calling bowhead whales in the southern part 
of the migration corridor near Northstar and to determine whether their 
distances from the island vary in direct relation to the sound levels 
emanating from the island. This will provide information on whether 
Northstar has affected the distribution and/or the calling behavior of 
the whales.

Reporting

    Under the regulations, BPXA is required to provide two 90-day 
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. Under recent Authorizations, this report 
was submitted to NMFS on September 15, 2000 (Richardson and Williams 
(eds.), 2000), and September 14, 2001 ((Richardson and Williams (eds.), 
2001). The second 90-day 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. Under the recently expired LOA, 
this report was submitted to NMFS on January 31, 2001 (Richardson and 
Williams (eds.), 2001a). These reports included 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.
    Under the recently expired LOA, a draft final technical report was 
required to be submitted to NMFS by April 1, 2001. This report was 
submitted to NMFS on that date (Richardson and Williams (eds.), 2001b). 
The draft final report was subject to peer review in Seattle, WA on 
June 6, 2001. The final technical report will fully describe the 
methods and results of all monitoring tasks and a complete analysis of 
the data.
    NMFS is requiring that the reporting requirements described in 
these paragraphs will be continued under the new LOA, except that, in 
conformance with the final rule on this action, the draft final 
technical report will be due on May 1, 2002. Endangered Species Act 
(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 
endangered Western Arctic bowhead whale stock. In addition, issuance of 
a small take authorization to BPXA under section 101(a)(5)(A) of the 
MMPA is a Federal action, NMFS has completed consultation with itself 
under section 7 of the ESA on this action. The finding of this 
consultation was that the issuance of the small take authorization was 
unlikely to adversely affect the bowhead whale.
    On May 22, 2001 (66 FR 28141), NMFS announced receipt of a petition

[[Page 65934]]

from the Center for Biological Diversity and the Marine Biodiversity 
Protection Center to designate critical habitat for the Western Arctic 
stock of bowhead whales under the ESA. NMFS is currently reviewing this 
petition to determine whether designation of critical habitat is 
warranted. However, while there is no provision under the ESA that 
activities that might impact critical habitat cease while a review is 
underway, federally-permitted oil and gas exploration activities 
require consultation under section 7 of the ESA if endangered or 
threatened species are likely to be affected.

National Environmental Policy Act (NEPA)

    On June 12, 1998 (63 FR 32207), the Environmental Protection Agency 
(EPA) noted the availability for public review and comment a draft EIS 
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), the EPA announced the availability for 
public review and comment, a final EIS prepared by the Corps on 
Beaufort Sea oil and gas development at Northstar. Comments on that 
document were accepted by the Corps until March 8, 1999. Based upon a 
review of the final EIS, the comments received on the draft EIS and 
final EIS, and the comments received during the rulemaking, NMFS 
adopted the Corps' final EIS as its own as provided for in the Council 
on Environmental Quality regulations (40 CFR 1501.6) and has determined 
that it is not necessary to prepare supplemental NEPA documentation.

Determinations

    On May 25, 2000 (65 FR 34014), NMFS determined that the impact of 
construction and oil production at 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 production activities at Northstar. Subsequently, this 
determination has been supported by monitoring conducted during 
Northstar construction, including ice road construction, and reported 
in Richardson and Williams (2001a and 2001b). As cetaceans will not be 
in the area during the ice-covered season, they will not be affected.
    While production activities at Northstar have some potential to 
influence seal hunting activities by residents of Nuiqsut, NMFS 
believes that Northstar production-related activities will not have an 
unmitigable adverse impact on the availability of these stocks for 
subsistence uses 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.
    During the open-water season, the principal operations-related 
noise activities will be helicopter traffic, vessel traffic, and other 
general oil production activities on Seal Island. Sounds from 
production-related 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, the number of potential harassment takings is estimated 
to be small. This is 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. In addition, no take by injury 
and/or death is anticipated, except possibly for a small take of ringed 
seals by mortality incidental to ice-road construction. 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 Northstar operations.
    Because bowhead whales are east of Seal Island 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 has been, and continues to be the subject of consultations 
between BPXA and subsistence users. In that regard, on October 22, 
2001, BPXA and the NSB adopted a Good Neighbor Policy that identifies 
measures that BPXA will implement in the event of an oil spill to 
mitigate impacts on subsistence harvests of marine mammals. In 
addition, NMFS expects BPXA and the NSB to finalize its annual Conflict 
Avoidance Agreement in 2002, prior to the commencement of the westward 
bowhead migration in the central and western Beaufort Sea.
    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 operation at the Northstar 
oil production facility will have no more than a negligible impact on 
these species. In addition, because BPXA has certified to NMFS that it 
will not drill into oil-bearing strata during periods of open water or 
broken ice (the time period between June 13 and ending with the 
presence of 18 inches (0.46 m) of continuous ice cover for one-half 
mile (805 m) in all directions), because there will be an oil spill 
response program in effect that will be as effective as possible 
considering operating conditions in Arctic waters, and because other 
mitigation measures have been identified in the event that oil does 
contact bowheads (see previous discussion), NMFS has determined that 
there will not be an unmitigable adverse impact on subsistence uses of 
marine mammals.

Authorization

    Accordingly, an LOA has been issued by NMFS to BPXA on this date 
(see DATES) authorizing the taking of bowhead, beluga, and gray whales 
and ringed, bearded and spotted seals, incidental to oil and gas 
production activities at the Northstar facility in the U.S. Beaufort 
Sea. Issuance of this LOA is based on findings, described in the 
preamble to the final rule, that the total takings by this activity 
will result in only small numbers of marine mammals being taken, have 
no more than a negligible impact on marine mammal stocks in the 
Beaufort Sea, and not will

[[Page 65935]]

have an unmitigable adverse impact on the availability of the affected 
marine mammal stocks for subsistence uses. In addition, NMFS finds 
that, under its previous LOA, BPXA has met the requirements contained 
in the implementing regulations, including monitoring and reporting 
requirements.
    This LOA remains valid until November 30, 2002, provided BPXA is in 
conformance with the conditions of the regulations and the LOA and the 
mitigation, monitoring, and reporting requirements described in this 
document and in the LOA are undertaken.

    Dated: December 14, 2001.
David Cottingham,
Deputy Director Office of Protected Resources National Marine Fisheries 
Service.
[FR Doc. 01-31541 Filed 12-20-01; 8:45 am]
BILLING CODE 3510-22-S