[Federal Register Volume 64, Number 204 (Friday, October 22, 1999)]
[Proposed Rules]
[Pages 57010-57026]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27578]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 990901241-9247-01; I.D. 123198B]
RIN 0648-AM09


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

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS has received a revised application for a Letter of 
Authorization (LOA) from BP Exploration (Alaska), 900 East Benson 
Boulevard, Anchorage, AK 99519 (BPXA) to take small numbers of marine 
mammals incidental to construction and operation of offshore oil and 
gas platforms at the Northstar development in the Beaufort Sea in state 
and Federal waters and a petition from

[[Page 57011]]

BPXA for regulations governing such take. By this document, NMFS is 
proposing regulations to govern that take. In order to implement these 
regulations, NMFS must determine that these takings will have a 
negligible impact on the affected species and stocks of marine mammals, 
and will not have an unmitigable adverse impact on the availability of 
the species or stock(s) for subsistence uses. NMFS invites comment on 
the petition/application, and the regulations.

DATES: Comments and information must be postmarked no later than 
December 21, 1999. Comments on the collection of information 
requirement must be received no later than December 21, 1999.

ADDRESSES: Comments should be addressed to Donna Wieting, Chief, Marine 
Mammal Conservation Division, Office of Protected Resources, National 
Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 
20910-3226. A copy of the updated application, Technical Monitoring 
Plan, Biological Opinion and a list of the references used in this 
document may be obtained by writing to this address or by telephoning 
one of the contacts listed here (see FOR FURTHER INFORMATION CONTACT). 
Comments regarding the burden-hour estimate or any other aspect of the 
collection of information requirement contained in this rule should be 
sent to the preceding individual and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget (OMB), Attention: 
NOAA Desk Officer, Washington, D.C. 20503.
    A copy of the final environmental impact statement (FEIS) for 
Northstar may be obtained by contacting the U.S. Army Engineer 
District, Alaska, Regulatory Branch, P.O. Box 898, Anchorage, AK 99506-
0898.

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

SUPPLEMENTARY INFORMATION:

Background

     Section 101(a)(5)(A) of the Marine Mammal Protection Act (16 
U.S.C. 1361 et seq.) (MMPA) directs the Secretary of Commerce 
(Secretary) to allow, upon request, the incidental, but not intentional 
taking of marine mammals by U.S. citizens who engage in a specified 
activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and regulations are 
issued.
    Permission may be granted for periods of 5 years or less if the 
Secretary finds that the taking will have a negligible impact on the 
species or stock(s) of affected marine mammals, will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses, and regulations are prescribed setting 
forth the permissible methods of taking and the requirements pertaining 
to the monitoring and reporting of such taking.

Summary of Request

    On November 30, 1998, NMFS received an application for LOAs 
granting an incidental, small take exemption under section 101(a)(5)(A) 
of the MMPA from BPXA to take marine mammals incidental to construction 
and operation of offshore oil and gas platforms at the Northstar and 
Liberty developments in the Beaufort Sea in state and Federal waters. 
On March 1, 1999 (64 FR 9965), NMFS published an advance notice of 
proposed rulemaking (ANPR) on the application and invited interested 
persons to submit comments, information, and suggestions concerning the 
application, and the structure and content of regulations if the 
application is accepted. Because of delays in construction during 1999, 
and in issuing this proposed rule, on October 1, 1999, BPXA updated 
their application to NMFS. This application is available upon request 
(see ADDRESSES). Following is a brief description of the proposed scope 
of work for the Northstar project. For more detailed descriptions 
please refer to the BPXA application. Description of the Activity BPXA 
proposes to produce oil from two offshore oil developments, Northstar 
and Liberty. These two developments will be the first in the Beaufort 
Sea that use a subsea pipeline to transport oil to shore and then into 
the Trans-Alaska Pipeline System. The Northstar Unit is located between 
2 and 8 miles (mi)(3.2 and 12.9 kilometers (km)) offshore from Pt. 
Storkersen, AK. This unit is adjacent to the Prudhoe Bay industrial 
complex and is approximately 54 mi (87 km) northeast of Nuiqsut, a 
Native Alaskan community.
    Construction is scheduled to begin in December 1999, with both 
island construction and offshore pipeline installation occurring in 
2000. The proposed construction activity includes the construction of 
several ice roads, one from West Dock and the Pt. McIntyre drill site 
to the Northstar gravel mine, one from the Kuparuk River delta mine 
site to Seal Island, and one along the pipeline route to Seal Island. 
The gravel-haul road will have a parallel alternate road to transport 
service equipment, construction materials and alternate gravel hauling 
when maintenance or repair of the main ice road is required. In 
addition to these main ice roads it is expected that three to four 
access roads will be cleared of snow to allow light vehicle traffic 
between the pipeline construction activities and the gravel-haul ice 
road. These on-ice access roads will have the snow cleared regularly, 
with intermittent flooding to maintain safe traffic conditions.
    It is estimated that during the winter approximately 16,800 large-
volume haul trips between the onshore mine site and a reload area in 
the vicinity of Egg Island, and 28,500 lighter dump truck trips from 
Egg Island to Seal Island will be necessary to transport construction 
gravel to Seal Island. An additional 300 truck trips will be necessary 
to transport concrete-mat slope protection materials to the island.
    Construction of a gravel island work surface for drilling and oil 
production facilities, and the construction and installation of two 10 
in (0.25 m) pipelines, one to transport crude oil and one for gas for 
field injection will take place during the winter and into the open 
water season of 2000, while the transport and installation of the drill 
rig and associated equipment will occur during the summer, ending 
around September 1, 2000. The two pipelines will be buried together in 
a single trench. During the summer approximately 90 to 100 barge trips 
from Prudhoe Bay or Endicott are expected to support construction.
    The operational phase will begin with drilling as early as the 
4th quarter of 2000, and will continue for 2 years. Power 
will be supplied by diesel generators. This phase of drilling will 
temporarily cease in mid-August 2001 to allow installation and start-up 
of process facilities. Drilling is expected to resume by November 2001. 
Drilling will continue until 23 development wells (15 production, 7 gas 
injection) are drilled. After drilling is completed, only production-
related site activities will occur. In order to support operations at 
Northstar, the proposed operations activity includes the annual 
construction of an ice road from Pt. McIntyre to the shore crossing of 
the pipeline and along the pipeline route to Seal Island. Ice roads 
will be used to resupply needed equipment, parts, foodstuffs, and 
products, and for hauling wastes back to existing facilities. During 
the summer, barge trips will be required between West Dock or Endicott 
and the island for resupply.
    Year-round helicopter access to Northstar is planned for movement 
of personnel, foodstuffs and emergency movement of supplies and 
equipment.

[[Page 57012]]

Helicopters will fly at an altitude of at least 1,000 ft (305 m), 
except for takeoffs, landings, and safe-flight operations.

Comments and Responses

    On March 1, 1999 (64 FR 9965), NMFS published an ANPR on BPXA's 
application and invited interested persons to submit comments, 
information, and suggestions concerning the application and the 
structure and content of regulations, if the application is accepted. 
During the 30-day comment period on that notice, comments were received 
from the Marine Mammal Commission (MMC), Greenpeace Alaska, the Alaska 
Eskimo Whaling Commission (AEWC), the North Slope Borough (NSB), and 
the Inupiat Community of the Arctic Slope (ICAS). These comments are 
addressed here.
    In addition to the application for regulations, on August 14, 1998, 
NMFS received an application from BPXA requesting a 1-year 
authorization for the harassment of small numbers of several species of 
marine mammals incidental to construction of the Northstar development 
in the Alaskan Beaufort Sea. This application was submitted by BPXA to 
ensure that, if construction began during the winter of 1998/99, it 
would have an authorization to take marine mammals during the lengthy 
period of time for developing and promulgating rulemaking. This 
application and NMFS' preliminary determination that the incidental 
harassment caused by this activity would have no more than a negligible 
impact on small numbers of marine mammals and not have an unmitigable 
impact on subsistence needs for these species were published on October 
26, 1998 (63 FR 57096), and a 30-day comment period was provided. An 
Interim Incidental Harassment Authorization (IHA), limited to ice road 
construction at Northstar was issued to BPXA on March 15, 1999 (64 FR 
13778, March 22, 1999). That document noted that comments received on 
the IHA application would be addressed in a future Federal Register 
document. Because NMFS was notified by BPXA that they would not be 
proceeding with construction at Northstar during the spring and summer 
of 1998, NMFS did not issue an IHA to BPXA for the construction of 
Northstar during 1999. Therefore, this document contains the comments 
and NMFS' responses to those comments submitted in response to the IHA 
application (updated where necessary), in addition to those comments 
received during the ANPR. Because two separate actions are being 
discussed in this section, dates have been provided in order to clarify 
which action is under discussion (11/98 refers to comments on the IHA; 
3/99 refers to comments on the ANPR).

Liberty Project Concerns

     Comment 1: Several commenters noted that because a Draft 
Environmental Impact Statement (DEIS) has not been released by the 
Minerals Management Service (MMS), it would be premature to consider 
proposing regulations to authorize the taking of marine mammals during 
the construction and operation of the Liberty oil and gas development 
project.
     Response: NMFS agrees. While this Federal Register document 
contains generic regulations for the taking of marine mammals 
incidental to offshore oil and gas development in the U.S. Beaufort 
Sea, the only project under consideration in this rulemaking is the 
Northstar project. NMFS will not issue proposed regulations regarding 
incidental takes for the Liberty project until after a DEIS has been 
released by MMS. This document is scheduled to be released either late 
this year or early next year.

Northstar Concerns

     Comment 2: The AEWC (3/99) believes it is not in a position to 
comment on incidental take regulations relative to Northstar because: 
(1) the AEWC is unaware of any final determination regarding the 
proposed subsea pipeline route for Northstar; (2) the bowhead whale 
subsistence whaling community objects to the proposed pipeline route in 
Alternative 5 of the FEIS, and that the AEWC will object to the project 
as a whole, if Alternative 5 is selected, since that alternative will 
place the subsea pipeline at greater risk of damage from ice and 
erosion; and (3) the U.S. Army Corps of Engineers (Corps) reports that 
for present and reasonably foreseeable oil production in the Beaufort 
Sea, the ``cumulative probability of one or more major oil spills 
(greater than 1,000 barrels) is 95.2 percent'' over the next 20 years.
     Response: While NMFS has preliminarily determined that either 
alternative 2 or 5 will result in no more than a negligible impact on 
marine mammals and not have an unmitigable impact on subsistence needs 
for marine mammals, the Corps chose Alternative 2, not Alternative 5, 
as the preferred action. For discussion on oil spill impacts, please 
refer to a discussion on that subject later in this document.

MMPA concerns

     Comment 3: The AEWC (3/99) believes that a 30-day comment period 
is insufficient for proposed regulations on Beaufort Sea oil and gas 
development and production. Therefore, the AEWC requests that the 
public comment period for the proposed regulations be no less than 60 
days.
     Response: NMFS agrees and has extended the normal 45-day comment 
period for proposed rules for an additional 15 days for these 
regulations. However, in order to complete rulemaking in a timely 
manner, and because most issues have been addressed already in the FEIS 
issued by the Corps under the National Environmental Policy Act (NEPA), 
an extension beyond 60 days is unlikely to be available.
    Comment 4: Greenpeace (11/98) states that BPXA's reliance on 
harassment and ``take itself'' to displace seals from construction 
activities violates the spirit and intent of the MMPA. The MMC (3/99) 
notes that BPXA's petition for rulemaking suggests that regulations and 
LOAs authorize the intentional hazing (harassment) of whales and seals 
to reduce the likelihood of their encountering oil if there is an oil 
spill. The MMC wants to ensure that BPXA recognizes that intentional 
hazing cannot be authorized under section 101(a)(5)(A) of the MMPA.
     Response: Section 101(a)(5)(A) requires NMFS to implement 
``regulations setting forth * * * permissible methods of taking 
pursuant to such activity, and other means of effecting the least 
practicable adverse impact on such species or stock and its habitat * * 
*.'' Therefore, if there is an authorization for the incidental 
harassment of marine mammals, and that incidental harassment takes 
place, the fact that the marine mammmals do not return to the area is 
not considered by NMFS to be a violation of the MMPA. In fact, because 
certain activities (e.g., ice road construction, oil spills) have some 
potential for serious injury or mortality for marine mammals that 
remain within the area, NMFS believes that early displacement of these 
animals would be to the animals' benefit. When mitigation measures that 
lower the potential for marine mammals to be seriously injured or 
killed have been identified, those measures, including, when necessary, 
intentional harassment measures can be authorized under the appropriate 
provision of the MMPA.
    Comment 5: Greenpeace (11/98) contends that NMFS artificially 
segregated the IHA process. Greenpeace states that the MMPA does not 
provide for NMFS to issue ``first-year construction'' and later 
``construction and operation.''

[[Page 57013]]

     Response: NMFS disagrees. While the MMPA does not provide for this 
segregation, it also does not prohibit issuing an IHA in 1 year and 
then promulgating regulations for a 5-year authorization. Congress 
implemented the IHA process as an expedited procedure recognizing the 
time necessary in the Federal Government for the promulgation of 
regulations. Congress recognized that NMFS must be afforded some 
procedural flexibility in order to streamline the review of small take 
authorizations when the taking is limited to incidental harassment(see 
MMPA Amendments of 1994. H.R. Rep. No. 103-439, at 29-30, 1994). Even 
under an ideal schedule, regulations could not be implemented within 
the time period between the release of the DEIS and receipt of a small 
take application and the proposed time for ice-road construction in 
early winter, 1998/99. This prompted BPXA's IHA application.
    Comment 6: Greenpeace (11/98) contends that, because NMFS' IHA 
review process took 73 days, instead of the statutory 45 days, NMFS 
improperly noticed the proposed action in the Federal Register.
    Response: While there is a statutory requirement for NMFS to 
publish notice of receipt of an application not later than 45 days 
after receipt of an application, that process may be delayed due to 
either the adequacy of the application or meeting certain requirements 
under the NEPA. In this case, because the supporting NEPA documentation 
(i.e., the FEIS for this activity would not be released within the 
statutory 120 days of receipt of an IHA application, and because NMFS 
determined that it could not issue an IHA to BPXA without this 
document, NMFS determined that, because of the complexity of the 
activity, a more detailed review could be undertaken than statutorily 
allowed by the MMPA.
    Comment 7: Greenpeace (3/99) believes that NMFS did not fairly 
consider Greenpeace's comments on BPXA's application for an interim IHA 
for Northstar construction.
     Response: NMFS gave full consideration to Greenpeace's comments 
contained in their November 24, 1998, letter when it issued an interim 
IHA to BPXA on March 15, 1999 (64 FR 13778, March 22, 1999). As 
mentioned previously, NMFS' review of comments submitted on the 1998 
IHA application are addressed in responses in various parts of this 
document.

Scientific evidence concerns

    Comment 8: Greenpeace (3/99) believes that there is an overwhelming 
lack of scientific evidence supporting the claim that BPXA's 
construction and operation of the Northstar and Liberty projects pose a 
negligible impact to marine mammals and do not pose an unmitigable 
impact on the availability of marine mammals for subsistence uses. 
Greenpeace believes that the Northstar DEIS and FEIS are inadequate for 
supporting these claims.
     Response: NMFS has reviewed both the DEIS and FEIS prepared by the 
Corps on the Northstar project and has determined that that document 
contains the best scientific information (and Traditional Knowledge) 
available for assessing impacts on marine mammals by the construction 
and operation of the Northstar project. As noted later in this 
document, NMFS has preliminarily determined that the best scientific 
information available indicates that construction and operation of 
Northstar will have no more than a negligible impact on marine mammals 
and not have an unmitigable adverse impact on subsistence uses of 
marine mammals. NMFS will continue to evaluate new information during 
this rulemaking period and invites reviewers to submit data or 
references on the potential impacts on marine mammals from oil 
development on the North Slope.

Small Take Concerns-Ringed Seals

    Comment 9: For reasons stated in their letter, including the lack 
of current reliable figures for ringed seal populations, Greenpeace 
(11/98) contends that it is impossible for NMFS to meet the negligible 
impact requirement of the MMPA without current information on the 
status of the Beaufort Sea ringed seal population.
     Response: NMFS uses the best scientific information available when 
making determinations that marine mammal takings are small, that 
activities are having no more than a negligible impact on the species 
or stock(s) of marine mammals and not having an unmitigable adverse 
impact on the availability of the species or stock(s) of marine mammals 
for subsistence uses. Hill and DeMaster (1998) indicates that there are 
no current population estimates available for ringed seals. However, 
such estimates are not critical when takings are expected to be limited 
to incidental harassment. Provided the activity itself is not having 
more than a negligible impact on the population, population 
fluctuations due, for example, to increasing polar bear populations, 
global warming and persistent organic pollutants are not critical, but 
are considered when making determinations on potential biological 
removal (PBR) levels. However, while there are no current population 
estimates available, crude population estimates have been made: Kelly 
(1988) estimated that 1-1.5 million seals occur in Alaskan waters, 
Frost and Lowry (1984) extrapolated a winter population of 40,000 
ringed seals from a mean density estimate of 0.4 seals/km2 
and estimated that the summer population would be 80,000. Amstrup 
(1995) estimated a population size of 326,500 (208,000 in the pack ice 
and 118,500 in the shorefast ice).
    Because NMFS expects that ringed seals may be harassed, but not 
killed as a result of industry activities, knowledge of the species' 
local density is more important than a reliable estimate of population 
abundance. There are numerous studies that have documented the density 
of ringed seals in the Northstar area. ADF&G surveys have shown 
densities of 0.33 to 0.66 seals/km2 (0.85 to 1.71 seals/
mi2) (Frost et al., 1997; Corps, 1999) and a 1997 survey in 
the Northstar area showed an average density of 0.42 ringed seals/
km2 on landfast ice over water depths of 5-20 m (16.4-65.6 
ft) (Miller et al., 1998). Virtually no seals were seen where water 
depths were less than 3 m (9.8 ft)(Miller et al., 1998). The Northstar 
ringed seal surveys included as part of the monitoring plan will 
provide up-to-date, site-specific density estimates at Northstar, and 
can be compared with past density estimates. Because these surveys 
began in 1997, they will provide a baseline against which results of 
future seal surveys during and after Northstar construction can be 
compared.
    Although aerial surveys during spring are the standard method for 
documenting densities and distribution of ringed seals, the densities 
tend to be underestimated because not all ringed seals are hauled out 
on the ice at any one time, and aerial surveys may not see all seals 
hauled out on the ice. These underestimates are taken into account when 
estimating impacts and levels of take.
    Comment 10: Greenpeace (11/98) is concerned about the effects of an 
increasing polar bear population and anthropogenic and non-
anthropogenic impacts on ringed seals.
    Response: Because the taking of ringed seals incidental to 
Northstar activities will be almost exclusively by incidental 
harassment and no serious injury or mortality is expected as a result 
of Northstar construction and operation, fluctuating population levels 
should be of little consequence. Provided the total taking by the 
activity itself is having no more than a negligible

[[Page 57014]]

impact on the species or stock(s) and will not have an unmitigable 
adverse impact on the availability of the species or stock(s) for 
subsistence uses, the authorization can be granted. It should be noted 
moreover, that the U.S. Fish and Wildlife Service (USFWS) believes the 
polar bear population on the North Slope has reached its carrying 
capacity and that its growth rate will slow or stabilize.
    NMFS believes that the research and monitoring underway since 1997, 
at Northstar and the central Beaufort Sea, including aerial monitoring 
surveys conducted by both ADF&G and LGL Limited support the scientific 
evidence that the takings incidental to Northstar construction and 
operation will be negligible.
    Comment 11: Greenpeace (11/98) questions BPXA's statement that 
ringed seals give birth in their lairs ``starting in late March and 
nurse their pups for 4-6 weeks.'' This, Greenpeace believes, 
underestimates the birthing and nursing periods for ringed seals. 
Ringed seals continue birthing through April and early May, with 
nursing in subnivean lairs continuing through May and early June. As 
such, harassment and take of ringed seals will be significantly greater 
than that which is set forth by BPXA in its application.
    Response: NMFS agrees that the BPXA statement could have included 
more complete information on the life history of ringed seals. NMFS 
does not agree that the impact will be significantly greater than what 
is provided in the application because BPXA has timed its operations to 
avoid, to the greatest extent practicable, harassment during the period 
when ringed seals are pupping. By constructing the ice roads between 
December and February, well prior to the ringed seal pupping season, 
and maintaining and operating those roads during the season, it is 
unlikely that ringed seals would remain in the vicinity of the ice road 
corridor and expose themselves and later, their young, to the noise if 
the female was within an area that was annoying to it.
    Comment 12: Greenpeace (11/98) questions BPXA's use of March 20 as 
the beginning date to require ringed seal surveys in previously 
undisturbed areas. Greenpeace believes that this fails to protect seals 
occupying lairs prior to March 20.
    Response: Due to the instability of the shorefast ice during mid- 
to late-March, it is highly unlikely that roads relating to Northstar 
construction or operation would be constructed after March 20. NMFS 
reviewed the citation provided by BPXA and noted that the late-March 
date was for the area of the eastern Beaufort Sea about 60 deg. N, not 
in the Beaufort Sea at about 70 deg. 30'N. Smith (1988) noted the 
difference in reproductive timing between his data for a mid-April 
birthing in the Western Arctic at approximately 72 deg. N and McLaren's 
mid-March date. Smith (1988) suggests a latitudinal gradient in the 
time of pupping. If so, NMFS notes that the March 20 date should be 
conservative. This date was the standard date for operational 
constraints on the on-ice seismic industry prior to establishment of 
the small take authorizations in 1982 (see 47 FR 21248, May 18, 1982). 
If better scientific information is provided that indicates a different 
start date should be used or that different methods should be 
implemented, NMFS is willing to consider that information.
    Comment 13: Greenpeace (11/98) contends that BPXA's 50 m (164 ft) 
distance for avoiding any detected ringed seal lairs is insufficient 
and unsupported if the intent is to avoid any take. If so, then the 
distance would have to be greater than 3 km (1.86 mi).
    Response: While NMFS agrees that at present there is no scientific 
evidence supporting a distance of 50 m (164 ft) from lairs for avoiding 
takes of ringed seal pups, there is also little support for a distance 
as great as 3 km (1.86 mi). As ringed seals departed lairs in response 
to vibroseis and its associated equipment at a distance up to 644 m 
(2,113 ft)(Kelly et al. 1986), and as Burns and Kelly (1982) suggest 
that heavy equipment and human activity are the major source of 
disturbance, not the vibroseis noise itself, NMFS presumes that ice 
road construction is likely to disturb ringed seals about the same 
degree as vibroseis. Therefore, ice roads constructed in water (ice and 
water combined) deeper than 8 ft (2.4 m) should avoid active seal lairs 
by at least 650 m (2,132 ft) unless a small take authorization has been 
issued, especially after March 20. However, because ice roads for 
gravel hauling and pipeline trenching at Northstar cannot deviate 
greatly from a straight line, NMFS retained the requirement under the 
Interim IHA issued to BPXA on March 15, 1999, that ice road 
construction begun after March 20, 1999 avoid ringed seal lairs by 50 m 
(164 ft), and did not increase that distance as recommended. However, 
while NMFS believes that it is very unlikely that any new ice roads 
would be constructed that late in the season in the Beaufort Sea due to 
the condition of the ice in most years, it is inviting further 
discussion on this issue during this rulemaking. At this time, NMFS 
proposes to require all ice roads, except the gravel road and the 
pipeline road, avoid seal lairs by a minimum of 150 m (492 ft), which 
is an increase over the 50-m (164 ft) retained in the Interim IHA and 
is similar to NMFS' requirements for vibroseis surveys.

Marine Mammal Concerns-Bearded Seals

    Comment 14: Greenpeace (11/98) believes that (1) given the lack of 
population data for bearded seals, it is not possible for BPXA to 
estimate the number of bearded seals that would be taken and (2) given 
the lack of baseline data on the population of bearded seals, it is 
impossible for NMFS to determine that the take of these marine mammals 
would pose a negligible impact.
    Response: Using data collected in 1996 and 1997 near Seal Island 
(Harris et al., 1997, 1998), BPXA calculated estimates of harassment 
takes that might occur as a result of construction and related 
activities at Northstar. The calculation method was provided in the 
BPXA IHA application. Based on this calculation method, BPXA estimates 
that between 9 and 26 bearded seals might be harassed incidental to 
Northstar open-water activities. When takes are limited to the 
incidental harassment of small numbers of marine mammals, a negligible 
impact determination can be made without recent baseline data (see 
response to Comment 9).

Marine Mammal Concerns-Spotted Seals

    Comment 15: Greenpeace (11/98) states that BPXA's application fails 
to include any information on the current use of the area by spotted 
seals, or the potential effects of summer construction activities on 
the species.
    Response: This information was provided in various sections of 
BPXA's IHA application (and later in the Northstar/Liberty LOA 
application). For example, information on the status and distribution 
of spotted seals was provided on page 23 to 25 of the IHA application 
and information on potential impacts was provided on pages 51 through 
55 of that document. However, because most spotted seals are found in 
the Bering and Chukchi seas, fewer than 5 spotted seals are expected to 
be exposed to harassment takes during the open water season and none 
during the hard water (ice) season.

Marine Mammal Concerns-Bowheads

    Comment 16: The MMC (3/99) notes that the petition indicates that 
as many as 1,380 bowhead whales could possibly be taken annually by 
harassment

[[Page 57015]]

incidental to Northstar construction and operation. Although the 
effects of incidental harassment on the bowhead population may well be 
negligible, it is not clear why the possible cumulative effects are 
expected to be negligible or why taking up to 1,380 bowheads annually 
(6,900 over 5 years) is considered to be a ``small'' number.
    Response: NMFS cautions that BPXA's estimate that 1,380 bowhead 
whales might be harassed incidental to Northstar construction, and 
later operations, is a maximum take level, not the best estimated take 
level. The expected average level of take by harassment for bowheads is 
173 animals annually (based on the best scientific information that 
approximately 1.88 percent of the bowhead population will migrate 
within 10 km (6.2 mi) of the barrier islands) (BPXA, 1998). Only in 
those years (such as the single year (1997) between 1979 and 1997) when 
the bowhead migration corridor is close to shore, would BPXA and NMFS 
expect up to 52 percent of the bowhead population to incur a take by 
incidental harassment. Takings by Northstar during this event may 
result in up to 1,380 bowheads being harassed. As takings by harassment 
at this level would not be expected every year (and might not occur 
during a 5-year authorization), NMFS believes that the takings (by 
harassment) should be considered small. Also because most bowheads that 
would be encountered would be migrating, it is unlikely that a given 
bowhead would be incidentally harassed on more than one date.
    Comment 17: Greenpeace (11/98) contends that construction 
activities at Northstar pose a significant threat to the migration of 
bowhead whales. Any delays in scheduling could result in an even 
greater number of industrial activities occurring during the fall 
bowhead migration.
    Response: NMFS recognizes that delays in construction scheduling 
could result in increased harassment takes of bowhead whales. This has 
been partially recognized by BPXA in their July 26, 1999 letter to NMFS 
wherein they note that movement of the drilling rig is currently 
scheduled for September 1, 2000. BPXA has also assured NMFS and the 
AEWC/NSB that all construction and operational activities at Northstar 
during the bowhead migration period would be conducted safely and would 
not interfere with the fall bowhead hunt. As a result, NMFS will need 
to base its determinations of negligible impact on marine mammals and 
no unmitigable adverse impact on subsistence uses on statements made by 
BPXA and analysis of data in the FEIS and BPXA application. If NMFS 
cannot make a finding of negligible impact (and no unmitigable adverse 
impact on subsistence uses) determination, then the LOA (if issued) 
would either not authorize incidental takes during the bowhead 
migration, or, in coordination with the AEWC/NSB, identify mitigation 
measures that would allow NMFS to make a negligible impact 
determination.
    Comment 18: Greenpeace (11/98) notes that the DEIS for Northstar 
describes impacts from pile driving required for installation of island 
slope protection as ``one of the greatest noise impacts to bowhead 
whales'' and that data was not presented by BPXA on how far away from 
the island this sound source could be heard, and even though bowheads 
aren't yet ``in the vicinity'' they still receive sounds transmitted 
over long distances. Greenpeace contends that this impact should be 
analyzed in detail because even a short delay in the schedule could 
result in this massive sound source taking place during bowhead 
migration.
    Response: BPXA's application describes in detail expected sound 
pressure levels (SPLs) from pile driving in the Beaufort Sea. According 
to the application (BPXA, 1998), impact hammering measured at 
Sandpiper, nearby to Northstar, received sound levels just above the 
seabottom 1 km (0.6 mi) from Sandpiper Island ranged from 110 to 135 dB 
re 1 PaRMS. These transient signals from impact 
hammering were similar in characteristics to seismic pulses, but 
considerably weaker; the received levels at 1 km (0.6 mi) range were 
similar to those from a seismic vessel more than 10 km (6.2 mi) away. 
Vibratory hammering produced even lower noise levels. To mitigate noise 
levels from impact hammering, BPXA has adopted NMFS suggestion (found 
in the March 4, 1999, Biological Opinion), to install sheet piling 
using agitation methods instead of impact hammering. This work is 
anticipated to be completed prior to bowhead migration. Therefore, even 
if island construction continues after bowhead whales appear, these 
noises would not be expected to significantly affect those bowhead 
whales in the main bowhead migration corridor.
    Comment 19: Greenpeace (11/98) states that industrial noise and 
other activities interfere with cow-calf bonding, and causes 
displacement from migratory routes. The energetic costs of noise-
related changes in behavior and distribution patterns are potentially 
significant and will inevitably constitute harassment and take.
    Response: Loud industrial noises, such as seismic surveys, in the 
marine environment have been identified as potentially interfering with 
cow-calf bonding. However, the best information indicates that this 
interference would need to occur around the time of birth or shortly 
thereafter (Gentry, R. pers. comm., 1999). Since bowhead whales are 
born in the spring in the Bering Sea, and as the spring-time eastern 
migration through the Beaufort Sea is well offshore of the Northstar 
site, noise from Northstar is unlikely to interfere with bonding. 
Changes in marine mammal migration patterns and behavior due to 
anthropogenic noise constitute Level B harassment. For that reason, 
BPXA has applied for a small take authorization under section 
101(a)(5)(A) of the MMPA.
    Comment 20: Greenpeace (11/98) contends that given the lack of 
studies and information on the effects of construction and heavy 
equipment activity on artificial islands on cetaceans, NMFS should take 
the precautionary approach and deny BPXA's request for an IHA until 
such time as the applicant can present conclusive data that its 
activities will not harm, harass, or take cetaceans.
    Response: BPXA applied for an IHA on the assumption that it will 
take, by harassment, several species of marine mammals incidental to 
the construction at Northstar. However, because work on Northstar did 
not proceed into the open water season of 1999, an IHA to incidentally 
harass bowhead whales during construction of Northstar was not issued 
to BPXA in 1999. NMFS believes that both the IHA application and the 
LOA application provide detailed information on the anticipated impacts 
on marine mammals from construction at Northstar.

Negligible Impact Concerns

    Comment 21: Greenpeace (3/99) believes that BPXA fails to consider 
the impact of the full array of Northstar and Liberty construction and 
operation activities on marine mammals. The proposed LOAs and 
regulations seek to include the impacts of oil spills on marine 
mammals, and are being proposed at a time when the environmental review 
of Northstar is incomplete, a final determination on the project has 
not yet been made, and the public environmental review of Liberty has 
not progressed beyond the scoping stage.  Greenpeace (3/99) believes 
that incidental takes would not be negligible given BPXA's request that 
the 5-year regulations include lethal takes of marine mammals caused by 
oil spills.  

[[Page 57016]]

    Response: Please see our response to comment 1 regarding the 
Liberty project. Since the time that Greenpeace submitted its letter 
(3/99), the Corps has completed its environmental review of the 
Northstar project.
    NMFS believes that a small oil leak or spill at either the oil rig 
or the pipeline would affect only a small number of marine mammals and 
have no more than a negligible impact on marine mammals and subsistence 
uses of those marine mammals. However, a large oil spill, although 
unlikely to occur during the 5-year authorization time period under 
consideration here, could result in a number of marine mammals being 
taken, and, if the spill intersects with the bowhead migration corridor 
during the time of the bowhead migration could have more than a 
negligible impact on marine mammals and the subsistence uses of that 
species. Because the probability of a large oil spill occurring during 
the 5-year period of the authorization that will affect marine mammals 
is low, NMFS believes that a finding of negligible impact may be 
appropriate even though the potential effects could be significant. As 
in this case, NMFS will need to balance the probability of occurrence 
with the potential severity of harm to the species and stocks of 
potentially affected marine mammal(s) to determine negligible impact. 
When applying this balancing test, NMFS needs to evaluate as thoroughly 
as possible the risks involved and the potential impacts on marine 
mammal populations. This determination will be made based on the best 
available scientific information and, if determined to be negligible 
and an LOA is issued, will be supported or negated later through the 
required monitoring program. For information on cumulative impacts 
please refer to response to Comment 29 later in this document.

Coordination Concerns

     Comment 22: The MMC (3/99) noted that neither the BPXA petition 
for regulations nor the Federal Register ANPR recognize the possibility 
that road construction, etc. could attract polar bears and cause ringed 
seals in the affected areas to be more vulnerable to predation by the 
bears. The MMC therefore recommends that NMFS consult with the USFWS to 
determine and, if appropriate, cooperatively specify monitoring 
requirements for polar bears and ringed seals.
     Response: NMFS concurs that coordination with the USFWS on 
monitoring is warranted. That coordination begins with the release of 
this document. In addition, the USFWS has been invited to attend peer 
review workshops wherein NMFS and others review previous monitoring and 
upcoming monitoring plans.

Subsistence Concerns

    Comment 23: The NSB (3/99) requested that if the petition (for 
regulations) is approved, it should be with strong additional 
consideration given to tailoring industry operation schedules to 
respect the whaling season of Nuiqsut, and its subsistence use of Cross 
Island.
    Response: BPXA anticipates that they will coordinate the 
construction and operation of Northstar with both the AEWC and the NSB, 
and will successfully conclude a Conflict and Avoidance Agreement 
(C&AA) with the affected villages. NMFS invites additional comment on 
its regulations concerning its requirements for making a finding of no 
unmitigable adverse impact on subsistence uses in Sec. 216.205.
    Comment 24: For several stated reasons, Greenpeace (11/98) believes 
that NMFS' deferral of addressing any unmitigable adverse impacts to 
the C&AA, a private BPXA-NSB negotiation, results in significant 
procedural flaws in the IHA process. Greenpeace concludes that the C&AA 
is an essential element in avoidance of unmitigable adverse impacts on 
subsistence. The C&AA should be made available for public review prior 
to issuance of the IHA.
    Response: NMFS does not agree. The C&AA is an agreement between two 
(or more) non-Federal organizations that is not subject to either 
public or Federal review and is not recognized by the MMPA. As a 
courtesy, these parties provide a signed copy of the C&AA to NMFS. In 
order for NMFS to determine that there will not be an unmitigable 
adverse impact on the availability of marine mammals for taking for 
subsistence purposes, the application instructions require that the 
information items specified in Sec. 216.104(a)(11) and (a)(12) must be 
provided. If commenters, including the NSB, believe the activity will 
have an adverse impact on subsistence uses that at present is 
unmitigated, they have the opportunity to comment on these statements 
in the application. If during the comment period evidence is provided 
indicating that an unmitigated adverse impact to subsistence needs will 
result from the activity, a small take authorization may be delayed to 
resolve this disagreement. If significant comments are not received on 
this issue, NMFS will review the information and determine whether or 
not there are any unmitigable adverse impacts prior to issuance of the 
small take authorization. If, on the other hand, an adverse impact is 
identified, which may be mitigated, then NMFS can, as here, make it a 
requirement of the small take authorization that parties continue to 
meet to resolve these differences. If a C&AA is not signed, NMFS has 
the option to review each party's concerns, and may, if warranted and 
under proper procedures, amend or suspend an authorization. NMFS 
recognizes, however, that receipt of a signed C&AA prior to issuing a 
small take authorization supports NMFS preliminary determination that 
the activity will not have an unmitigable adverse impact on subsistence 
needs.
    Comment 25: Greenpeace (11/98) states that BPXA's IHA application 
fails to consider the impact of its activities on the communities of 
Point Hope, Point Lay, and Wainwright. These communities rely on 
migrating subsistence species such as the bowhead whales that pass 
through the impact zone of Northstar construction activities.
    Response: The three mentioned communities hunt bowhead whales in 
the Chuckchi Sea during the spring migration, not during the fall 
migration when bowheads might be incidentally harassed by activities at 
Northstar. Because no bowheads are expected to be seriously injured or 
killed as a result of construction and operation of the Northstar Unit 
(thereby depriving those communities of a potential harvest), and 
because the spring migratory path of bowheads will not be affected by 
Northstar construction or operation, NMFS has been unable to identify 
an adverse impact to the subsistence needs of these communities. If 
these communities believe that the Northstar project will have an 
unmitigable adverse impact on their subsistence needs, they will have 
an opportunity by review of this document to express those concerns.
    Comment 26: Greenpeace (11/98) supports its opinion (on subsistence 
impacts) by quoting from the DEIS that BPXA's Northstar proposal would 
result in ``bowhead whale avoidance response to noise generated at Seal 
Island and project-related vessel and helicopter noise and activity,'' 
which the DEIS concludes would be ``significant to subsistence 
harvesting'' (DEIS page ES-97).
    Response: The DEIS and FEIS identify two sources of noise during 
Northstar construction that have the potential to result in a more than 
negligible bowhead deflection during the Nuiqsut bowhead subsistence 
hunt. These are impact hammering and vessel activity. The DEIS 
identified ocean going tugs as having a potential deflection of

[[Page 57017]]

migration patterns at distances ranging from 9.3 mi (15 km) to 25 mi 
(40 km). If large ships are active at Northstar during the fall bowhead 
migration, deflection behavior could occur at the western border of 
Nuiqsut's bowhead harvest area. If bowheads deflected at a distance of 
25 mi (40 km), and no bowheads were struck within the eastern range of 
the Cross Island whaling area, impacts to the fall whale harvest could 
be significant. The DEIS and FEIS also note however, that bowheads near 
the western border of Nuiqsut's bowhead harvest area are not expected 
to be affected by small vessels operating at Seal Island (i.e., 
Northstar).
    Pile driving for the installation of island slope protection would 
be one of the greatest noise impacts to bowhead whales, if it were to 
occur during the migration period (Corps, 1998. However, impact pile 
driving for sheet piling for the island perimeter and docks and for 
well conductors are scheduled to be completed by the end of July, prior 
to the initiation of the bowhead whaling season. In addition, impact 
pile driving has been replaced, where possible, by agitation methods. 
Therefore, at this time, significant impacts from construction at 
Northstar during the bowhead migration season are not anticipated.
    Comment 27: Greenpeace (11/98) notes that the DEIS (page 10-27) 
concludes that ``island construction would have a significant effect 
(i.e., ``cumulative effects of noise on bowhead whale migration routes 
and resulting effects on subsistence whaling activities are considered 
significant cumulative impacts'').
    Response: It should be noted that this statement has been modified 
in the FEIS to note that ``significant long-term displacement of 
bowhead whales is not expected to occur as a result of Northstar 
operations.''

Cumulative Effects Concerns

    Comment 28: Greenpeace (11/98) states that NMFS must consider the 
impact of climate change on the Arctic marine ecosystem in a cumulative 
assessment of the impacts of seismic activities on ``protected 
resources'' in the agency's trust.
     Response: NMFS disagrees, noting that long-term cumulative impacts 
are an issue for discussion under NEPA, not the MMPA. Section 
101(a)(5)(A) of the MMPA requires NMFS to make an assessment of the 
total taking by a specified activity (i.e., oil and gas development) in 
a specified geographic region during an authorization period. If, among 
other things, the total taking will not have more than a negligible 
impact on the affected marine mammal stocks, the authorization would 
appear to be appropriate. (There is not a similar requirement for 
assessing total takings for authorizations under section 101(a)(5)(D) 
of the MMPA). It should be noted however, that seismic activities are 
the subject of a separate small take authorization process and not a 
part of BPXA's application.
     Comment 29: Greenpeace (3/99) contends that BPXA fails to consider 
the cumulative impacts of Northstar and Liberty construction and 
operation that will affect marine mammals, subsistence, and the Arctic 
marine environment. These impacts include chronic pipeline leaks, oil 
spills, noise, pollution and other forms of industrial disturbance.
    Response: Unlike Comment 28, NMFS views this comment on cumulative 
impact as meaning the ``total taking'' of marine mammals by the 
Northstar and Liberty projects. To evaluate expected impacts and to 
determine whether these takings can be considered negligible and not 
have an unmitigable adverse impact on subsistence uses, one must first 
understand the statutory mandates of section 101(a)(5) of the MMPA, and 
Congressional intent as provided in House Reports. Section 101(a)(5)(A) 
of the MMPA requires the Secretary to ``find that the total of such 
taking during each five-year (or less) period concerned will have a 
negligible impact on such species or stock and will not have an 
unmitigable adverse impact on the availability of such species or stock 
for taking for subsistence uses * * *.'' Current NMFS regulations 
require that `` * * * the total taking by the specified activity during 
the specified time period will have a negligible impact on the species 
of stock of marine mammal(s) * * *''
    (Sec. 216.102). NMFS believes that this statement accurately 
reflects the statutory meaning of the phrase ``such taking during each 
five-year (or less) period.'' The specified activity is defined in NMFS 
regulations as ``any activity, other than commercial fishing, that 
takes place in a specified geographical region and potentially involves 
the taking of small numbers of marine mammals.'' It was the intent of 
Congress that ``the specified activity * * * referred to in section 
101(a)(5) [should] be narrowly identified so that the anticipated 
effects will be substantially similar. Thus, for example, it would not 
be appropriate for the Secretary to specify an activity as broad and 
diverse as outer continental shelf oil and gas development. Rather, the 
particular elements of that activity should be separately specified as, 
for example, seismic exploration or core drilling'' (H.R. Rep. No. 97-
228 at p. 19, 1981).
    When an applicant requests NMFS promulgate a 5-year set of 
regulations, applicants are required to submit the information 
requested in Sec. 216.104(a) on their activity as a whole, which 
includes, but is not necessarily limited to, an assessment of total 
impacts by all persons conducting the activity (Sec. 216.105). NMFS 
believes that BPXA provided the required information since they 
discussed combined impacts and included incidental take estimates for 
both Northstar and Liberty projects, but did not include discussion of 
seismic work, moving exploratory drilling equipment, etc.

Mitigation Concerns

    Comment 30: The MMC (3/99) notes that if work is required after 
March 20 in a previously undisturbed area, a survey will be conducted 
to determine the presence of ringed seal lairs prior to commencement of 
activities. However, it does not indicate how the presence of an 
active, ringed seal lair would influence construction activities, or 
what mitigation measures would be undertaken. Would the road be 
rerouted to avoid active ringed seal lairs by some specified distance 
or will it be routed in the straightest line possible and assume that 
any pup in a lair within a certain distance will be abandoned and die?
     Response: Due to the instability of shorefast ice during that time 
of the year, it is highly unlikely that any roads relating to Northstar 
construction or operation would be constructed after March 20. If ice 
roads are constructed, they would be secondary roads and not the main 
gravel hauling road and pipeline road, which are not flexible and 
cannot be rerouted to avoid seal lairs. However, for secondary roads in 
previously undisturbed areas, NMFS proposes to require these roads to 
avoid seal lairs by a minimum of 150 m (492 ft), similar to NMFS' 
requirements on vibroseis surveys.
     Comment 31: Greenpeace (11/98) believes that BPXA will not take 
even the most basic of mitigation measures in ceasing operations during 
the bowhead migration.
     Response: Scheduling has been designed to complete as much of the 
construction activity prior to the bowhead migration and bowhead 
subsistence hunting period as possible. Mitigation measures are 
described in the section entitled ``Proposed Mitigation Measures.'' 
NMFS will be reviewing BPXA's current schedule for potential impacts on 
bowhead whales and other

[[Page 57018]]

marine mammals during this rulemaking.
     Comment 32: Greenpeace (11/98) states that it is impossible to 
place adequate mitigation measures (i.e., safety zones) into place when 
there is inadequate knowledge about the impacts of seismic operations 
on cetaceans' hearing and behavior. Greenpeace believes the 
precautionary principle requires further research before ``potentially 
permanent'' damage is incurred.
     Response: Seismic operations have not been requested for inclusion 
under either the IHA or the 5-year authorization. The application 
contains a description of actions BPXA will take to mitigate noise from 
construction on bowhead whales. While NMFS believes that sufficient 
information is available (see discussions elsewhere in this document) 
on the expected impacts of construction and operations at Northstar on 
marine mammals to make a preliminary determination that the taking will 
be negligible and not have an unmitigable impact on marine mammals, 
NMFS agrees that additional information is warranted. This information 
will be obtained during construction and operation through a monitoring 
program funded by BPXA.

Monitoring and Reporting Concerns

     Comment 33: The MMC (3/99) recommends that NMFS initiate the 
rulemaking as requested, provided it is satisfied that the planned 
marine mammals and related monitoring programs will be adequate to 
verify how and over what distances marine mammals may be affected, that 
only small numbers of marine mammals are taken, and that the cumulative 
impacts on the affected species and stocks are negligible.
     Response: On July 1, 1999, NMFS scientists and others met in 
Seattle to discuss the open water monitoring program for construction 
and operation at Northstar. Based on the recommendations from that peer 
review workshop, BPXA has made appropriate amendments to the monitoring 
plan found in its application and in the updated monitoring plan 
submitted to NMFS on May 6, 1999. A copy of its August, 1999 monitoring 
plan is available upon request (see ADDRESSES)).
    While BPXA summarized monitoring plans for on-ice monitoring during 
that meeting, discussion and evaluation of that portion of BPXA's 
monitoring plan was set aside for discussion late this year with 
appropriate seal biologists. The recommendations of the MMC will be 
provided to reviewers of BPXA's on-ice monitoring plans.
     Comment 34: The MMC (3/99) recommends that NMFS specify in the 
regulations that proposed monitoring plans and the results of the 
monitoring programs be reviewed annually by NMFS and outside experts to 
confirm that the monitoring programs are capable of detecting any non-
negligible, cumulative population-level effects and that the 
requirements will be revised as necessary if there is uncertainty in 
that regard.
     Response: NMFS believes that conditions regarding monitoring and 
peer-review of monitoring plans, and the results, should be 
requirements under LOAs, not regulations. Under LOAs, requirements, 
including independent peer review, can be modified more efficiently and 
timely than is possible under regulations.
     Comment 35: The MMC (3/99) noted that BPXA proposes to use a 
comparison of ``before'' and ``after'' aerial survey data to assess the 
impact of the offshore developments on ringed seal numbers and 
distribution. The MMC suggested how those comparisons should be 
undertaken.
     Response: This work, now in its second year of data collection, is 
discussed in detail in the Technical Plan for Marine Mammal and 
Acoustic Monitoring during Construction of BPXA's Northstar Oil 
Development for 1999. A copy of this report is available upon request 
(see ADDRESSES). The MMC recommendation has been forwarded to marine 
mammal scientists for consideration.
     Comment 36: The MMC (3/99) questions whether a visual survey alone 
will detect even the majority of seal lairs in the vicinity of the 
proposed activities and therefore ensure that those activities will 
have the least practical adverse impact possible. If NMFS concurs that 
the use of dogs puts ringed seals at risk, then alternative methods 
should be considered to help ensure that the activities have the least 
practical adverse impacts possible.
     Response: NMFS believes that by requiring BPXA to construct ice 
roads for gravel hauling and pipeline construction as early in the 
season as practicable, at a time prior to establishment of lairs, 
impacts have been mitigated to the greatest extent practicable. In 
addition, NMFS believes that the noise from construction will deter 
ringed seals from establishing new breathing holes or lairs in the 
vicinity of ice roads. While dogs under experienced handlers are 
unlikely to put ringed seals at risk, NMFS recognizes that some 
disturbance at seal breathing holes and lairs by approaching dogs and 
humans is likely. As a result, NMFS questions the value of using dogs 
as a monitoring tool (as opposed to using dogs as a research tool) to 
determine impacts caused by ice road construction, operation, and 
maintenance. Alternatively, long term monitoring of ringed seal trends 
in density have been undertaken by funding under MMS by ADF&G and by 
BPXA. NMFS believes that this latter monitoring is preferable for the 
Northstar project, but invites additional comments on the subject.
     Comment 37: The MMC (3/99) notes that the petition does not 
indicate what would be considered a significant difference in the 
number of abandoned and active holes between the reference (i.e., 
control) area and the construction area or what would be done if a 
significant difference is detected. In addition, while the counting 
bias is likely to be constant, the reduced numbers produced by failing 
to count inactive sites could affect the ability to show a significant 
difference in the ratios. The MMC suggests that this potential problem 
could be alleviated by ground truthing the aerial surveys to calculate 
a correction factor for abandoned and active holes counted from the 
air.
    Response: NMFS has determined that the on-ice portion of the BPXA 
monitoring program will need to be the subject of a peer review 
workshop. This workshop is tentatively scheduled for mid-October. The 
issues raised by the MMC in this comment and in previous comments will 
be reviewed at this workshop.
    Comment 38: Greenpeace (11/98) concludes that BPXA's IHA 
application must be denied by NMFS on the basis that it lacks a peer-
reviewed monitoring plan based on sound science.
    Response: In accordance with section 101(a)(5)(D)(ii) of the MMPA, 
the authorization (i.e., the IHA), where applicable, is to contain 
requirements for monitoring and reporting of takings by harassment, 
including the requirements for the independent peer-review of proposed 
monitoring plans or other research proposals where the proposed 
activity may affect the availability of a species or stock for taking 
for subsistence uses. Because takings authorized during the winter are 
unlikely to affect the availability of a species or stock of marine 
mammal for subsistence purposes, the IHA did not need to contain 
requirements for independent peer review for ice road construction and 
related on-ice activities. Because the open water portion of the 
Northstar construction, which has the potential to adversely affect the 
availability of subsistence uses

[[Page 57019]]

of bowhead whales, was not conducted, and because an IHA for that 
portion of the activity was not issued, peer review of Northstar 
construction monitoring was neither needed nor conducted under MMPA 
section 101(a)(5)(D) IHA application. It should be noted that while not 
required for authorizations issued under section 101(a)(5)(A) of the 
MMPA, peer review of monitoring plans has been incorporated into these 
regulations in accordance with findings made at a Seattle workshop held 
in 1994 with the AEWC, the oil and gas industry and others.

NEPA Concerns

    Comment 39: Greenpeace (3/99) contends that the Northstar DEIS and 
FEIS fail to provide the environmental analysis required by NEPA for 
incidental takes of marine mammals. Quantitative information regarding 
estimated harassment and ``take'' provided in BPXA's current petition 
for regulations was not provided in the DEIS or FEIS for Northstar. 
Greenpeace also believes that the DEIS and FEIS failed to analyze the 
environmental impacts of specific activities, such as ice road 
construction, gravel hauling, island construction, helicopter 
overflights and other forms of noise and industrial disturbance that 
are now described in greater detail in BPXA's current petition to NMFS.
    Response: NMFS notes that qualitative impacts on marine mammals 
from the noise from construction, production and other activities and 
from oil spills were each discussed in separate chapters (Chs. 9 and 8, 
respectively) of the DEIS and FEIS. Additional discussion on impacts to 
marine mammals was provided in Chs. 6.5 and 6.9.1.1 of the DEIS and 
FEIS and impacts on subsistence use impacts was discussed in Chs. 7.2.1 
and 7.3 of the DEIS and FEIS. In addition, a detailed description of 
the activity at Northstar was described in Appendix A. In review, NMFS 
agrees that the DEIS and FEIS did not provide sufficient information on 
one part of the project, the construction of ice roads. As a result of 
that review, an Environmental Assessment (EA) was prepared prior to 
issuance of the Interim IHA to BPXA on March 15, 1999. After review of 
the information contained in that EA, in addition to information 
contained in the DEIS, NMFS determined that neither the proposed action 
(i.e., issuance of an IHA for taking marine mammals incidental to ice 
road construction), nor the identified alternatives to that proposed 
action, would have a significant impact on the human environment.
     NMFS believes that these NEPA documents support NMFS' preliminary 
determination that construction and oil production at Northstar will 
have no more than a negligible impact on affected marine mammal stocks 
and will not have an unmitigable adverse impact on the availability of 
such stocks for taking for subsistence uses.
    Comment 40: Greenpeace (3/99) believes the proposed actions 
artificially segment the environmental review of the Northstar and 
Liberty projects and their impacts, thereby violating NEPA. Instead of 
one comprehensive review and analysis of marine mammal harassment and 
``take,'' the process has been segmented into separate reviews for an 
interim IHA, an LOA, and the promulgation of 5-year regulations.
    Response: The issue of segmenting the MMPA authorizations has been 
addressed previously in this document. The concern regarding segmenting 
under NEPA should be addressed to either the Corps or MMS.
    Comment 41: Greenpeace (11/98) states that NMFS cannot rely on the 
Northstar DEIS for its NEPA compliance because this (IHA) authorization 
was not identified in the DEIS as one of the agency actions it was 
intended to cover.
    Response: While notice of NMFS' responsibilities under the MMPA 
were not cited in either the notice of availability of the DEIS (63 FR 
28375, May 22, 1998, or the Corps' public notice (SPN 98-3, June 1, 
1998)), NMFS permitting requirements under the MMPA and Endangered 
Species Act (ESA) were cited in tables ES-2 and 1-2 of the DEIS and 
FEIS. The lack of a detailed description of each of the permit/
regulatory actions listed for the several Federal, state and local 
agencies does not preclude adoption of the Corps'' FEIS for their 
action(s). Procedures for adoption by cooperating agencies are 
contained in Council on Environmental Quality (CEQ) regulations in 40 
CFR 1506.3(c) which will be followed by NMFS.
     Comment 42: Greenpeace (11/98) believes (1) the public should have 
the benefit of new information and responses to comments contained in 
the Northstar FEIS, (2) NMFS has relied on information in the DEIS 
which is incorrect and/or under review and subject to change in the 
FEIS, and (3) NMFS should deny BPXA's August 12, 1998, request for an 
IHA and consider a new request for construction and operation based on 
the FEIS.
    Response: NMFS does not believe that delaying commencement of the 
small take authorization process until completion of NEPA documentation 
is warranted. Proper procedures under NOAA's NEPA guidelines are for 
proposed actions to accompany a DEIS or Draft EA. Not beginning the IHA 
process or the regulatory process until completion of NEPA leads to 
unnecessary and potentially extensive delays in processing 
applications, a problem previously recognized by Congress when it 
amended the MMPA to expedite the small take program. The BPXA IHA 
application was submitted to NMFS on August 14, 1998, in coordination 
with the release of the DEIS. There is no mandate for an application 
from a non-governmental U.S. citizen (as defined in Sec. 216.103) to be 
in total agreement with a NEPA document in which it was not an active 
participant. NMFS determined that BPXA's application met the 
requirements of NMFS' regulations for applications for IHAs. The DEIS 
and FEIS provide NMFS with information that supports, or in some cases 
refutes, information found in the application. Therefore, to delay the 
applicant's activity in order to conduct consecutive public review 
instead of concurrent review is neither warranted nor required by law. 
Information provided in the FEIS has been analyzed by NMFS, a 
cooperating agency in its preparation, to assess impacts of the 
activity on marine mammals.

Endangered Species Act (ESA) Concerns

    Comment 43: Without clarification, Greenpeace (3/99) contends that 
the LOAs and regulations will result in violations of both the intent 
and the letter of the ESA. Greenpeace (11/98) believes the requested 
IHA would violate the ESA because (1) the ESA requires each agency to 
use the best scientific information available, (2) NMFS acknowledges 
the conflict between offshore oil and gas development and bowheads, (3) 
the uncertainty of western science on the impacts of industrial noise 
on bowheads, and (4) research continues on the reactions of whales to 
noise created by oil exploration activities.
    Response: On March 4, 1999, NMFS completed formal consultation with 
the Corps under section 7 of the ESA for the construction and operation 
of the Northstar project with the issuance of a Biological Opinion 
(BO). The BO, which found that the construction and operation of the 
Northstar project activity will not jeopardize the continued existence 
of any species under the jurisdiction of NMFS, was based upon the best 
scientific and commercial data available. Because issuance of an LOA to 
BPXA for the incidental take of bowhead whales is also considered a 
Federal action, NMFS

[[Page 57020]]

has begun consultation on this action. If the finding of NMFS is that 
the taking of bowhead whales is not likely to adversely affect the 
bowhead whale stock, prior to completion of rulemaking and if a small 
take authorization is determined to be appropriate, an Incidental Take 
Statement will be appended to the BO authorizing the incidental 
harassment of bowhead whales under the ESA.

Legal concerns

    Comment 44: The ICAS (3/99) note that NMFS has failed to consult 
with ICAS over the LOAs for the take of small numbers of marine mammals 
by incidental harassment for construction and operation at Northstar 
and Liberty. ICAS requests that all regulatory activities regarding 
these LOAs halt. ICAS claims that the Northstar project has 
demonstrated that insufficient studies have been done to document an 
accurate picture of the Arctic ocean marine environment sufficient to 
monitor the LOA or loss due to harassment on the interrelations of the 
marine environment with subsistence resources in the event of an 
incidental construction-related oil spill or a catastrophic spill. ICAS 
has not been provided the necessary time, opportunity or resources to 
effectively research and comment on regulations pursuant to section 
101(a) of the MMPA due to a lack of meaningful contact with NMFS 
pursuant to parameters consistent with Presidential Executive Orders 
(i.e., E.O. 13084 (May 14, 1998) and E.O. 12898 (February 11, 1994)).
    Response: For many years, NMFS has consulted with the federally-
recognized Alaska Native villages of Barrow, Kaktovik and Nuiqsut and 
the AEWC on the issuance of authorizations for the taking of bowhead 
whales and other marine mammals incidental to oil and gas exploration 
in the U.S. Beaufort Sea. In 1978, the ICAS entered into a resolution 
with the AEWC that provided the latter organization with the authority 
to enter into agreements with the Federal Government on matters 
pertaining to the bowhead whale. In turn, the AEWC is responsible for 
informing the villages of any actions taken by the Federal Government 
which affect subsistence whaling in Alaska. By letter, NMFS has 
requested ICAS to update the status of this agreement and has offered 
to meet with ICAS at its convenience. In the interim, NMFS intends to 
comply fully with E.O. 13084, Consultation and Coordination With Indian 
Tribal Governments.

Description of Habitat and Marine Mammal Affected by the Activity

    A detailed description of the Beaufort Sea ecosystem and its 
associated marine mammals can be found in the DEIS and FEIS prepared 
for the Northstar development (Corps, 1998, 1999). This information is 
not repeated here but will be considered part of the record of decision 
for this rulemaking. A copy of the FEIS is available from the Corps 
upon request (see ADDRESSES).

Marine Mammals

    The Beaufort/Chukchi Seas support a diverse assemblage of marine 
mammals, including bowhead whales (Balaena mysticetus), gray whales 
(Eschrichtius robustus), beluga whales (Delphinapterus leucas), ringed 
seals (Phoca hispida), spotted seals (Phoca largha) and bearded seals 
(Erignathus barbatus). Descriptions of the biology and distribution of 
these species and of others can be found in several documents (e.g., 
Hill and DeMaster, 1998) including the BPXA application and the 
previously mentioned FEIS. Please refer to those documents for specific 
information on these species. By citation, this information is 
incorporated into this document and into NMFS' decision-making process. 
In addition to the species mentioned in this paragraph, Pacific walrus 
(Odobenus rosmarus) and polar bears (Urus maritimus) also have the 
potential to be taken. Appropriate applications for taking these 
species under the MMPA have been submitted to the USFWS by BPXA.

Potential Effects on Marine Mammals

Noise Impacts

    Sounds and non-acoustic stimuli will be generated during 
construction by vehicle traffic, ice-cutting, pipeline construction, 
offshore trenching, gravel dumping, sheet pile driving, and vessel and 
helicopter operations. Sounds and non-acoustic stimuli will be 
generated during oil production operations by generators, drilling, 
production machinery, gas flaring, camp operations and vessel and 
helicopter operations. The sounds generated from construction and 
production operations and associated transportation activities will be 
detectable underwater and/or in air some distance away from the area of 
the activity, depending upon the nature of the sound source, ambient 
noise conditions, and the sensitivity of the receptor. At times, some 
of these sounds are likely to be strong enough to cause an avoidance or 
other behavioral disturbance reaction by small numbers of marine 
mammals or to cause masking of signals important to marine mammals. The 
type and significance of behavioral reaction is likely to depend on the 
species and season, and the behavior of the animal at the time of 
reception of the stimulus, as well as the distance and level of the 
sound relative to ambient conditions.
    In winter and spring, on-ice travel and construction activities 
will displace some ringed seals along the ice road and pipeline 
construction corridors. BPXA plans to begin winter construction 
activities in early December, well in advance of female ringed seals 
establishing birthing lairs beginning in late March. The noise and 
general human activity will displace female seals away from activity 
areas that could negatively affect the female and young, if birth lairs 
were constructed there.
    During the open-water season, all six species of whales and seals 
could potentially be exposed to vessel or construction noise and to 
other stimuli associated with the planned operations. Vessel traffic is 
known to cause avoidance reactions by whales at certain times 
(Richardson et al., 1995). Pile driving, helicopter operations, and 
possibly other activities may also lead to disturbance of small numbers 
of seals or whales. In addition to disturbance, some limited masking of 
whale calls or other low-frequency sounds potentially relevant to 
bowhead whales could occur.
    A more detailed description of potential impacts from construction 
and operational activities on marine mammals can be found in the 
application. That information is accepted by NMFS as a summation of the 
best scientific information available on the impacts of noise on marine 
mammals in this area.

Oil Spill Impacts

    For reasons stated in the application, BPXA believes that the 
effects of oil on seals and whales in the open waters of the Beaufort 
Sea are likely to be negligible, but there could be effects on whales 
in areas where both oil and the whales are at least partially confined 
in leads or at the ice edge. In the spring, bowhead and beluga whales 
migrate through offshore leads in the ice. However, given the probable 
alongshore trajectory of oil spilled from Northstar, in relation to the 
whale migration route through offshore waters, interactions between oil 
and whales are unlikely in the spring. In the summer, bowheads are not 
in the central Beaufort Sea, and beluga whales are found far offshore. 
As a result, at this time of the year, these species will be unaffected 
should a spill occur at this time.

[[Page 57021]]

    In the fall, the migration route of bowheads can be close to shore. 
If bowheads were moving through leads in the pack ice or were 
concentrated in nearshore waters, some bowhead whales might not be able 
to avoid oil slicks and could be subject to prolonged contamination. 
However, the autumn migration past Northstar extends over several weeks 
and most of the whales travel along routes well north of Northstar. 
Thus, according to BPXA, only a small minority of the whales are likely 
to approach patches of spilled oil.
    Ringed seals exposed to oil during the winter or early spring could 
die if exposed to heavy doses of oil for prolonged periods of time. 
This prolonged exposure could occur if fuel or crude oil was spilled in 
or reached nearshore waters, was spilled in a lead used by seals, or 
was spilled under the ice when seals have limited mobility. Individual 
seals residing in these habitats may not be able to avoid prolonged 
contamination and some would die. While impacts on regional 
distribution may occur, impacts on regional population size however, 
would be expected to be minor.

Estimated Level of Incidental Take

    BPXA (1998) estimates that, during the ice-covered period, 62 
(maximum 154) ringed seals may be incidentally harassed during 
construction activities and 43 (maximum 109) ringed seals may be 
incidentally harassed annually during oil production activities.
    BPXA estimates ``takes'' during the ice-covered season by assuming 
that seals within 3.7 km (2.3 mi) of Seal Island, within 1.85 km (1.1 
mi) of the pipeline construction corridor and related work areas, and 
within 0.66 km (0.4 mi) of ice roads will be ``taken'' annually. These 
anticipated levels of take are estimated using the average density 
estimate of 0.42 ringed seals/km2 (Miller et al., 1998). 
BPXA (1998) cautions however, that these ``take'' estimates may result 
in an overestimate of the actual numbers of seals that will be 
``taken'' because not all seals within these disturbance distances will 
move from the area.
    During the open-water season, BPXA (1998) estimates that 7 (maximum 
22) ringed seals, 1 spotted seal, 1-2 bearded seals, 173 (maximum 
1,3800) bowhead whales, less than 5 gray whales, and 6 (maximum 45) 
beluga whales may be incidentally harassed annually whether from 
construction or operations. BPXA assumes that seals and beluga whales 
within 1 km (0.6 mi) radius of Seal Island will be harassed incidental 
to construction and other activities on the island. Assumed ``take'' 
radii for bowhead whales are based on the distance at which the 
received level of construction noise from the island would diminish 
below 115 dB re 1 Pa. This distance has been estimated as 3.2 
km (2 mi).
     Although the potential impacts to the several marine mammal 
species known to occur in these areas is expected to be limited to 
harassment, a small number of marine mammals may incur lethal and 
serious injury. Most effects however, are expected to be limited to 
temporary changes in behavior or displacement from a relatively small 
area near the construction site and will involve only small numbers of 
animals. However, the inadvertent and unavoidable take by injury or 
mortality of small numbers of ringed seal pups may occur during ice 
clearing for construction of ice roads. In addition, some injury or 
mortality of whales or seals may result in the event that an oil spill 
occurs. Therefore, BPXA requests that, because a small number of marine 
mammals might be injured or killed, that these takes also be covered by 
the regulations. However, BPXA does not indicate the level of 
incidental take resulting from an oil spill at Northstar during either 
the ice-covered period or the open-water period. Because of the 
unpredictable occurrence, nature, seasonal timing, duration and size of 
an oil spill occurring during the 5-year authorization period of these 
regulations, a specific prediction cannot be made of the estimated 
number of takes by an oil spill. According to BPXA, in the unlikely 
event of a major oil spill at Northstar or from the associated subsea 
pipeline, numbers of marine mammals killed or injured are expected to 
be small and the effects on the populations negligible.

Impacts on Subsistence Uses

    This section contains a summary on the potential impacts from 
construction and operational activities on subsistence needs for marine 
mammals. A more detailed description can be found in the application. 
This information is accepted by NMFS as a summation of the best 
scientific information available on the impacts of noise on marine 
mammals in this area.

Noise Impacts

     The disturbance and potential displacement of bowhead whales and 
other marine mammals by sounds from vessel traffic and/or on-island 
construction activities (e.g., impact hammering) are the principle 
concerns related to subsistence use of the area. The harvest of marine 
mammals is central to the culture and subsistence economies of the 
coastal North Slope communities. In particular, if elevated noise 
levels are displacing migrating bowhead whales farther offshore, this 
could make the harvest of these whales more difficult and dangerous for 
hunters. The harvest could also be affected if bowheads become more 
skittish when exposed to vessel or impact-hammering noise (BPXA, 1998).
    Construction activities and associated vessel and helicopter 
support are expected to begin in December 1999, and continue into 
September or October 2000, depending upon ice conditions. Few bowhead 
whales approach the Northstar area before the end of August, and 
subsistence whaling generally does not begin until after September 1 
and occurs in areas well east of the construction site. Therefore, a 
substantial portion of the Northstar development is expected to be 
completed when no bowhead whales are nearby and when no whaling is 
underway. Insofar as possible, vessel and aircraft traffic near areas 
of particular concern for whaling will be completed by BPXA before the 
end of August. No impact hammering is expected to occur during the 
period when subsistence hunting of migrating bowhead whales is 
underway.
    Underwater sounds from drilling and production operations on an 
artificial gravel island are not very strong, and are not expected to 
travel more than about 10 km (6.2 mi). Even those bowheads traveling 
along the southern edge of the migration corridor will not be able to 
even hear sounds from Northstar until the whales are well west of the 
main hunting area. In addition, for reasons unrelated to mitigation for 
subsistence concerns, drilling activities are expected to temporarily 
cease during the bowhead whale migration during the first year of 
drilling activity.
    Nuiqsut is the community closest to the area of the proposed 
activity, and it harvests bowhead whales only during the fall whaling 
season. In recent years, Nuiqsut whalers typically take zero to four 
whales each season (BPXA, 1998). Nuiqsut whalers concentrate their 
efforts on areas north and east of Cross Island, generally in water 
depths greater than 20 m (65 ft). Cross Island, the principle field 
camp location for Nuiqsut whalers, is located approximately 28.2 km 
(17.5 mi) east of the Northstar construction activity area.
    Whalers from the village of Kaktovik search for whales east, north, 
and west of their village. Kaktovik is located approximately 200 km 
(124.3 mi) east of Seal Island. The westernmost reported harvest 
location was about 21 km (13 mi) west of Kaktovik, near 
70o10'N.

[[Page 57022]]

144oW. (Kaleak, 1996). That site is approximately 180 km 
(112 mi) east of Seal Island.
    Whalers from the village of Barrow search for bowhead whales much 
further from the Northstar area, greater than 250 km (>175 mi) west.
    While the effects of Northstar construction or production on 
migrating bowheads are not expected to extend into the area where 
Nuiqsut hunters usually search for bowheads and therefore is not 
expected to affect the accessibility of bowhead whales to hunters, it 
is recognized that it is difficult to determine the maximum distance at 
which reactions occur (Moore and Clark, 1992). As a result, in order to 
avoid any unmitigable adverse impact on subsistence needs and to reduce 
potential interference with the hunt, the timing of various 
construction activities at Northstar as well as barge and aircraft 
traffic in the Cross Island area will be addressed in a C&AA between 
BPXA and NSB residents. Also, NMFS believes that the monitoring plan 
proposed by BPXA will provide information that will help resolve 
uncertainties about the effects of construction noise on the 
accessibility of bowheads to hunters.
    While Northstar activity has some potential to influence 
subsistence seal hunting activities, the most important sealing area 
for Nuiqsut hunters is off the Colville delta, extending as far west as 
Fish Creek and as far east as Pingok Island (BPXA, 1998). Pingok Island 
is about 24 km (15 mi) west of Northstar. The peak season for seal 
hunting is during the summer months, but some hunting is conducted on 
the landfast ice in late spring. In summer, boat crews hunt ringed, 
spotted and bearded seals (BPXA, 1998). Thus, it is unlikely that 
construction activity will have a significant negative impact on 
Nuiqsut seal hunting.

Oil Spill Impacts

    Oil spills might affect the hunt for bowheads (BPXA, 1998). While 
oil spills from production drilling or pipelines could occur at any 
time of the year, only if a significant spill occurred during the 
bowhead hunt would a reduction in the availability of bowhead whales 
for subsistence uses be possible. While unlikely, oil spills could 
extend into the bowhead hunting area under certain wind and current 
conditions. Even in the event of a major spill, it is unlikely that 
more than a small number of those bowheads encountered by hunters would 
be contaminated by oil (BPXA, 1998). Disturbance associated with 
reconnaissance and cleanup activities could affect whales and, thus, 
accessibility of bowheads to hunters. Therefore, in the unlikely event 
that a major spill occurred during the relatively short fall bowhead 
whaling season, it is possible that bowhead hunting would be 
significantly affected. However, the probability of a large oil spill 
(greater than 1,000 barrels) is estimated to be approximately 3 
percent.

Impacts on Habitat

    Invertebrates and fish, the nutritional basis for those whales and 
seals found in the Beaufort Sea, may be affected by construction and 
operation of the Northstar project. Fish may react to noise from 
Northstar with reactions being quite variable and dependent upon 
species, life history stage, behavior, and the sound characteristics of 
the water. Invertebrates are not known to be affected by noise. Benthic 
invertebrates would be affected by island and pipeline construction and 
overburden placement on the seabottom. Fish may be temporarily or 
permanently displaced by the island. These local, short-term effects 
are unlikely to have an impact on marine mammal feeding.
    In the event of a large oil spill, fish and zooplankton in open 
offshore waters are unlikely to be seriously affected. Fish and 
zooplankton in shallow nearshore waters could sustain heavy mortality 
if an oil spill were to remain within an area for several days or 
longer. These affected nearshore areas may then be unavailable for use 
as feeding habitat for seals and whales. However, because these seals 
and whales are mobile, and bowhead feeding is uncommon along the coast 
near Northstar, effects would be minor during the open water season. In 
winter, effects of an oil spill on ringed seal food supply and habitat 
would be locally significant in the shallow nearshore waters in the 
immediate vicinity of the spill and oil slick. However, effects overall 
would be negligible.

Proposed Mitigation Measures

    Several mitigation measures have been proposed by BPXA to reduce 
harassment takes to the lowest level practicable. These include:
    (1) BPXA will begin winter construction activities in December, 
well in advance of female ringed seals establishing the birthing lair 
in late March in order to displace seals away from activities that 
could negatively affect the female and young.
    (2) If construction activities are initiated in previously 
undisturbed areas after March 20, BPXA will survey the area(s) to 
identify and avoid ringed seal lairs by a minimum of 150 m (492 ft).
    (3) BPXA will establish and monitor a 190 dB re 1 Pa 
safety range for seals around the island for those construction 
activities with SPLs that exceed that level.
    (4) While whales are unlikely to approach the island during impact 
hammering or other noisy activities, a 180 dB re 1 Pa safety 
zone will be established and monitored around the island.
    (5) If any marine mammals are observed within their respective 
safety range, operations will cease until such time as the observed 
marine mammals have left the safety zone.
    (6) Project scheduling indicates that impact hammering will not 
occur during the period for subsistence hunting of westward migrating 
bowhead whale.
    (7) Helicopter flights to support Northstar construction will be 
limited to a corridor from Seal Island to the mainland, and, except 
when limited by weather, will maintain a minimum altitude of 1,000 ft 
(305 m).
    (8) Drilling activities will temporarily cease during the bowhead 
whale migration during the first year of drilling activity (i.e., 
September, 2001).

Proposed Monitoring Measures

    Monitoring will employ both marine mammal observations and 
acoustics measurements and recordings. During the open-water period, 
monitoring will consist of (1) acoustic measurements of sounds produced 
by construction activities through hydrophones, seaborne sonobuoys and 
bottom recorders, and (2) observations of marine mammals from an 
elevated platform on Seal Island which will be made during periods with 
and without construction underway.
    During the ice-covered season, BPXA proposes to continue an ongoing 
(since the spring, 1997) Before-After/Control-Impact Study on the 
distribution and abundance of ringed seals in relation to development 
of the offshore oil and gas resources in the central Beaufort Sea. 
Collection and analysis of data before and after construction is 
expected to provide a reliable method for assessing the impact of oil 
and gas activities on ringed seal distribution in the Northstar 
construction area. Other winter/spring monitoring will include (1) on-
ice searches for ringed seal lairs in areas where construction starts 
in the mid-March through April period, (2) assessment of abandonment 
rates for seal holes, and (3) acoustic measurements of sounds and 
vibrations from construction.

[[Page 57023]]

    The monitoring plan will be subject to review by NMFS biologists 
and revised appropriately prior to implementation. Independent peer 
review on the on-ice portion of the plan will be conducted this fall in 
Seattle. The open-water season monitoring plan has been reviewed by 
scientists and others attending the annual open-water peer-review 
workshop held in Seattle on July 1, 1999. A revised monitoring plan was 
submitted to NMFS on August 27, 1999. A copy of the revised monitoring 
plan is available upon request (see ADDRESSES).

Proposed Reporting Measures

    NMFS proposes to require BPXA to provide two reports annually to 
NMFS within 90 days of completion of each phase of the activity. The 
first report would be due 90 days after either the ice roads are no 
longer usable or spring aerial surveys are completed, whichever is 
later. The second report would be required to be forwarded to NMFS 90 
days after the formation of ice in the central Alaskan Beaufort Sea 
prevents water access to Northstar. These reports will provide 
summaries of the dates and locations of construction activities, 
details of marine mammal sightings, estimates of the amount and nature 
of marine mammal takes, and any apparent effects on accessibility of 
marine mammals to subsistence hunters.
    A draft final technical report would be submitted to NMFS by April 
1 of each year. The final technical report would contain a full 
description of the methods, results, and interpretation of all 
monitoring tasks. The draft final report will be subject to peer review 
before being finalized by BPXA.

Preliminary Conclusions

Northstar Construction

    NMFS has preliminarily determined that the impact of construction 
and operation of the Northstar project in the U.S. Beaufort Sea will 
result in no more than a temporary modification in behavior by certain 
species of cetaceans and pinnipeds. During the ice-covered season, 
pinnipeds close to the island may be subject to incidental harassment 
due to the localized displacement from construction of ice roads, from 
transportation activities on those roads, and from construction 
activities at Northstar. As cetaceans will not be in the area during 
the ice-covered season, they will not be affected.
    During the open-water season, the principal construction- and 
operations-related noise activities will be impact hammering, 
helicopter traffic, vessel traffic, and other general construction 
activity on Seal Island. Sheet-pile driving is expected to be completed 
prior to whales being present in the area. Sounds from construction 
activities on the island are not expected to be detectable more than 
about 5-10 km (3.1-6.2 mi) offshore of the island. Disturbance to 
bowhead or beluga whales by on-island activities will be limited to an 
area substantially less than that distance. Helicopter traffic will be 
limited to nearshore areas between the mainland and the island and is 
unlikely to approach or disturb whales. Barge traffic will be located 
mainly inshore of the whales and will involve vessels moving slowly, in 
a straight line, and at constant speed. Little disturbance or 
displacement of whales by vessel traffic is expected. While behavioral 
modifications may be made by these species to avoid the resultant 
noise, this behavioral change is expected to have no more than a 
negligible impact on the animals.
    While the number of potential incidental harassment takes will 
depend on the distribution and abundance of marine mammals (which vary 
annually due to variable ice conditions and other factors) in the area 
of operations, because the proposed activity is in shallow waters 
inshore of the main migration corridor for bowhead whales and far 
inshore of the main migration corridor for belugas, the number of 
potential harassment takings is estimated to be small. In addition, no 
take by injury and/or death is anticipated, and the potential for 
temporary or permanent hearing impairment will be avoided through the 
incorporation of the mitigation measures mentioned in this document. No 
rookeries, areas of concentrated mating or feeding, or other areas of 
special significance for marine mammals occur within or near the 
planned area of operations during the season of operations.
    Because bowhead whales are east of the construction area in the 
Canadian Beaufort Sea until late August/early September, activities at 
Northstar are not expected to impact subsistence hunting of bowhead 
whales prior to that date. Appropriate mitigation measures to avoid an 
unmitigable adverse impact on the availability of bowhead whales for 
subsistence needs will be the subject of consultation between BPXA and 
subsistence users.
    Also, while construction at Northstar has some potential to 
influence seal hunting activities by residents of Nuiqsut, because (1) 
the peak sealing season is during the winter months, (2) the main 
summer sealing is off the Colville Delta), and (3) the zone of 
influence from Northstar on beluga and seals is fairly small, NMFS 
believes that Northstar construction will not have an unmitigable 
adverse impact on the availability of these stocks for subsistence 
uses.

Endangered Species Act (ESA)

    NMFS concluded consultation with the Corps on this activity on 
March 4, 1999. If an authorization to incidentally take listed marine 
mammals is issued under the MMPA, NMFS will complete consultation under 
the ESA on the regulations and the LOA and issue an Incidental Take 
Statement under section 7 of the ESA. A copy of the BO resulting from 
this consultation is available upon request (see ADDRESSES).

NEPA

    On June 12, 1998 (63 FR 32207), the Environmental Protection Agency 
(EPA) noted the availability for public review and comment a DEIS 
prepared by the Corps under NEPA on Beaufort Sea oil and gas 
development at Northstar. Comments on that document were accepted by 
the Corps until August 31, 1998 (63 FR 43699, August 14, 1998). On 
February 5, 1999 (64 FR 5789), EPA noted the availability for public 
review and comment, a FEIS prepared by the Corps under NEPA on Beaufort 
Sea oil and gas development at Northstar. Comments on that document 
were accepted by the Corps until March 8, 1999. A copy of the FEIS is 
available upon request (see ADDRESSES).
    NMFS is a cooperating agency, as defined by the CEQ regulations (40 
CFR 1501.6), on the preparation of this document. The FEIS on this 
activity, which supplements information contained in the BPXA 
application, is considered part of NMFS' record of decision on this 
matter. Preliminarily, it also meets NOAA's NEPA responsibilities for 
determining whether the activity proposed for receiving a small take 
authorization is having a negligible impact on affected marine mammal 
stocks and not having an unmitigable adverse impact on subsistence 
needs. Based upon a review of the FEIS and the comments received during 
this rulemaking, NMFS will either (1) adopt the Corps FEIS, (2) amend 
the Corps FEIS to incorporate relevant comments, suggestions and 
information, or (3) prepare supplemental NEPA documentation.

Classification

    This action has been determined by the Office of Management and 
Budget to be significant for purposes of E.O. 12866.

[[Page 57024]]

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, will not have a 
significant economic impact on a substantial number of small entities 
within the meaning of the Regulatory Flexibility Act. If implemented, 
this rule will affect only one or two large oil producing companies 
which, by definition, are not small businesses. It will also affect a 
small number of contractors providing services related to monitoring 
the impact of oil development in the Beaufort Sea on marine mammals. 
Some of the affected contractors may be small businesses, but the 
number involved would not be substantial. Further, since the monitoring 
requirement is what would lead to the need for their services, the 
economic impact on them would be beneficial. For all the above reasons, 
a regulatory flexibility analysis is not required.
    This proposed rule contains collection-of-information requirements 
subject to the provisions of the Paperwork Reduction Act (PRA). These 
requirements have been approved by OMB under control number 0648-0151, 
and include an application for an LOA, an interim report, and a final 
report. Other information requirements in the rule are not subject to 
the PRA since they apply only to a single entity and therefore are not 
contained in a rule of general applicability.
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the PRA unless that collection of information displays a currently 
valid OMB control number.
    The reporting burden for the approved collections-of-information 
are estimated to be approximately 3 hours for an application for a LOA, 
and 80 hours each for interim and final reports. These estimates 
include the time for reviewing instructions, searching existing data 
sources, gathering an maintaining the data needed, and completing and 
reviewing the collection-of-information. Send comments regarding these 
burden estimates, or any other aspect of this data collection, 
including suggestions for reducing the burden, to NMFS and OMB (see 
ADDRESSES).

Information Solicited

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning the BPXA request and the content of the 
proposed regulations to authorize the taking. All commenters are 
requested to review the application prior to submitting comments and 
not submit comments solely on this Federal Register document.

List of Subjects in 50 CFR Part 216

    Exports, Fish, Imports, Indians, Labeling, Marine mammals, 
Penalties, Reporting and recordkeeping requirements, Seafood, 
Transportation.

    Dated: October 15, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For reasons set forth in the preamble, 50 CFR part 216 is proposed 
to be amended as follows:

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

    1. The authority citation for part 216 continues to read as 
follows:

    Authority: 16 U.S.C. 1361 et seq., unless otherwise noted. 

    2. Subpart R is added to part 216 to read as follows:

Subpart R-Taking of Marine Mammals Incidental to Construction and 
Operation of Offshore Oil and Gas Platforms in the U.S. Beaufort 
Sea

Sec.  
216.200  Specified activity and specified geographical region.
216.201  Effective dates.
216.202  Permissible methods of taking.
216.203  Prohibitions.
216.204  Mitigation.
216.205  Measures to ensure availability of species for subsistence 
uses.
216.206  Requirements for monitoring and reporting.
216.207  Applications for Letters of Authorization.
216.208  Letters of Authorization.
216.209  Renewal of Letters of Authorization.
216.210  Modifications to Letters of Authorization.

Subpart R--Taking of Marine Mammals Incidental to Construction and 
Operation of Offshore Oil and Gas Platforms in the U.S. Beaufort 
Sea


Sec. 216.200  Specified activity and specified geographical region.

    Regulations in this subpart apply only to the incidental taking of 
those marine mammal species specified in paragraph (b) of this section 
by U.S. citizens engaged in oil and gas development activities in areas 
within state and/or Federal waters in the U.S. Beaufort Sea specified 
in paragraph (a) of this section. The authorized activities as 
specified in a Letter of Authorization issued under Secs. 216.106 and 
216.208 include, but may not be limited to, site construction, 
including ice road and pipeline construction, vessel and helicopter 
activity; and oil production activities, including ice road 
construction, and vessel and helicopter activity, but excluding seismic 
operations.
    (a)(1) Northstar Oil and Gas Development Unit on Seal Island; and
    (2) [Reserved]
    (b) The incidental take by harassment, injury or mortality of 
marine mammals under the activity identified in this section is limited 
to the following species: bowhead whale (Balaena mysticetus), gray 
whale (Eschrichtius robustus), beluga whale (Delphinapterus leucas), 
ringed seal (Phoca hispida), spotted seal (Phoca largha) and bearded 
seal (Erignathus barbatus).


Sec. 216.201  Effective dates.

    Regulations in this subpart are effective from January 1, 2000, 
through December 31, 2004.


Sec. 216.202  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Secs. 216.106 
and 216.208, the Holder of the Letter of Authorization may 
incidentally, but not intentionally, take marine mammals by harassment, 
injury, and mortality within the area described in Sec. 216.200(a), 
provided the activity is in compliance with all terms, conditions, and 
requirements of these regulations and the appropriate Letter of 
Authorization.
    (b) The activities identified in Sec. 216.200 must be conducted in 
a manner that minimizes, to the greatest extent practicable, any 
adverse impacts on marine mammals, their habitat, and on the 
availability of marine mammals for subsistence uses.


Sec. 216.203  Prohibitions.

    Notwithstanding takings authorized by Sec. 216.200 and by a Letter 
of Authorization issued under Secs. 216.106 and 216.208, no person in 
connection with the activities described in Sec. 216.200 shall:
    (a) Take any marine mammal not specified in Sec. 216.200(b);
    (b) Take any marine mammal specified in Sec. 216.200(b) other than 
by incidental, unintentional harassment, injury or mortality;
    (c) Take a marine mammal specified in Sec. 216.200(b) if such 
taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of

[[Page 57025]]

these regulations or a Letter of Authorization issued under 
Sec. 216.106.


Sec. 216.204  Mitigation.

    The activity identified in Sec. 216.200(a) must be conducted in a 
manner that minimizes, to the greatest extent possible, adverse impacts 
on marine mammals and their habitats. When conducting operations 
identified in Sec. 216.200, the mitigation measures contained in the 
Letter of Authorization issued under Secs. 216.106 and 216.208 must be 
utilized.


Sec. 216.205  Measures to ensure availability of species for 
subsistence uses.

    When applying for a Letter of Authorization pursuant to 
Sec. 216.207, or a renewal of a Letter of Authorization pursuant to 
Sec. 216.209, the applicant must submit a Plan of Cooperation that 
identifies what measures have been taken and/or will be taken to 
minimize any adverse effects on the availability of marine mammals for 
subsistence uses. A plan must include the following:
    (a) A statement that the applicant has notified and met with the 
affected subsistence communities to discuss proposed activities and to 
resolve potential conflicts regarding timing and methods of operation;
    (b) A description of what measures the applicant has taken and/or 
will take to ensure that oil development activities will not interfere 
with subsistence whaling or sealing;
    (c) What plans the applicant has to continue to meet with the 
affected communities to notify the communities of any changes in 
operation.


Sec. 216.206  Requirements for monitoring and reporting.

    (a) Holders of Letters of Authorization issued pursuant to 
Secs. 216.106 and 216.208 for activities described in Sec. 216.200 are 
required to cooperate with the National Marine Fisheries Service, and 
any other Federal, state or local agency monitoring the impacts of the 
activity on marine mammals. Unless specified otherwise in the Letter of 
Authorization, the Holder of the Letter of Authorization must notify 
the Administrator, Alaska Region, National Marine Fisheries Service, or 
his/her designee, by letter or telephone, at least 2 weeks prior to 
initiating activities possibly involving the taking of marine mammals.
    (b) Holders of Letters of Authorization must designate qualified 
on-site individuals, approved in advance by the National Marine 
Fisheries Service, to conduct the mitigation, monitoring and reporting 
activities specified in the Letter of Authorization issued pursuant to 
Sec. 216.106 and Sec. 216.208.
    (c) Holders of Letters of Authorization must conduct all monitoring 
and/or research required under the Letter of Authorization.
    (d) The Holder of the Letter of Authorization must submit an 
interim report to the Director, Office of Protected Resources, National 
Marine Fisheries Service, no later than 180 days prior to expiration of 
the Letter of Authorization. This report must contain all information 
required by the Letter of Authorization.
    (e) A final comprehensive report must be submitted to the National 
Marine Fisheries Sevice at least 240 days prior to expiration of these 
regulations.


Sec. 216.207  Applications for Letters of Authorization.

    (a) To incidentally take bowhead whales and other marine mammals 
pursuant to these regulations, the U.S. citizen (see definition at 
Sec. 216.103) conducting the activity identified in Sec. 216.200, must 
apply for and obtain either a Letter of Authorization in accordance 
with Secs. 216.106 and 216.208, or a renewal under Sec. 216.209.
    (b) The application for a Letter of Authorization must be submitted 
to the National Marine Fisheries Service at least 180 days before the 
activity is scheduled to begin.
    (c) Applications for Letters of Authorization must include all 
information items identified in Sec. 216.104(a).
    (d) NMFS will review an application for a Letter of Authorization 
in accordance with Sec. 216.104(b) and, if adequate and complete, will 
publish a notice of receipt of a request for incidental taking and, in 
accordance with Administrative Procedure Act requirements, a proposed 
amendment to Sec. 216.200(a). In conjunction with amending 
Sec. 216.200(a), the National Marine Fisheries Service will provide a 
minimum of 45 days for public comment on the application.
    (e) Upon receipt of a complete application, and at its discretion, 
the National Marine Fisheries Service may submit the monitoring plan to 
members of a peer review panel for review and/or schedule a workshop to 
review the plan. Unless specified in the Letter of Authorization, the 
applicant must submit a final monitoring plan to the Assistant 
Administrator prior to the issuance of a Letter of Authorization.


Sec. 216.208  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended, revoked or not 
renewed, will be valid for a period of time not to exceed the period of 
validity of this subpart, but must be renewed annually subject to 
annual renewal conditions in Sec. 216.209.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact on the 
species, its habitat, and on the availability of the species for 
subsistence uses; and
    (3) Requirements for monitoring and reporting, including any 
requirements for the independent peer-review of proposed monitoring 
plans.
    (c) Issuance of each Letter of Authorization will be based on a 
determination that the number of marine mammals taken by the activity 
will be small, that the total number of marine mammals taken by the 
activity as a whole will have no more than a negligible impact on the 
species or stock of affected marine mammal(s), and will not have an 
unmitigable adverse impact on the availability of species or stocks of 
marine mammals for taking for subsistence uses.
    (d) Notice of issuance or denial of a Letter of Authorization will 
be published in the Federal Register within 30 days of a determination.


Sec. 216.209  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. 216.106 and 
Sec. 216.208 for the activity identified in Sec. 216.200 will be 
renewed annually upon:
    (1) Notification to the National Marine Fisheries Service that the 
activity described in the application submitted under Sec. 216.207 will 
be undertaken and that there will not be a substantial modification to 
the described work, mitigation or monitoring undertaken during the 
upcoming season;
    (2) Timely receipt of the monitoring reports required under 
Sec. 216.205, which have been reviewed by the National Marine Fisheries 
Service and determined to be acceptable, and the Plan of Cooperation 
required under Sec. 216.205; and
    (3) A determination by the National Marine Fisheries Service that 
the mitigation, monitoring and reporting measures required under 
Sec. 216.204 and the Letter of Authorization were undertaken and will 
be undertaken during the upcoming annual period of validity of a 
renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Secs. 216.106 and 216.208 indicates that a substantial 
modification to the described work, mitigation or monitoring undertaken 
during the

[[Page 57026]]

upcoming season will occur, the National Marine Fisheries Service will 
provide the public a period of 30 days for review and comment on the 
request.
    (c) A notice of issuance or denial of a Renewal of a Letter of 
Authorization will be published in the Federal Register within 30 days 
of a determination.


Sec. 216.210  Modifications to Letters of Authorization.

    (a) In addition to complying with the provisions of Secs. 216.106 
and 216.208, except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization issued pursuant to Secs. 216.106 and 216.208 
and subject to the provisions of this subpart shall be made until after 
notification and an opportunity for public comment has been provided. 
For purposes of this paragraph, a renewal of a Letter of Authorization 
under Sec. 216.209, without modification (except for the period of 
validity), is not considered a substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species 
or stocks of marine mammals specified in Sec. 216.200(b), a Letter of 
Authorization issued pursuant to Secs. 216.106 and 216.208 may be 
substantively modified without prior notification and an opportunity 
for public comment. Notification will be published in the Federal 
Register within 30 days subsequent to the action.
[FR Doc. 99-27578 Filed 10-21-99; 8:45 am]
BILLING CODE 3510-22-F