[Federal Register Volume 66, Number 160 (Friday, August 17, 2001)]
[Notices]
[Pages 43216-43223]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20822]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 071901A]


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

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

ACTION: Notice of receipt of application and proposed issuance of a 
letter of authorization.

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

DATES: Comments and information must be received no later than 
September 17, 2001. Comments will not be accepted if submitted via e-
mail or the Internet.

ADDRESSES: Comments on the application should be addressed to Donna 
Wieting, Chief, Marine Mammal Conservation Division, Office of 
Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 
20910-3225. A copy of the application, and a list of references used in 
this document may be obtained by writing to this address or by 
telephoning one of

[[Page 43217]]

the contacts listed here. Other reports referenced in this document are 
available for review, by appointment during regular business hours, at 
the following offices: Office of Protected Resources, NMFS, 1315 East-
West Highway, Silver Spring, MD 20910, Western Alaska Field Office, 
NMFS, 701 C Street, Anchorage, AK 99513, and the National Marine Mammal 
Laboratory, NMFS, Bldg 4, 7600 Sand Point Way NE, Seattle, WA 98115.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead (301) 713-
2322, ext. 128, or Brad Smith (907) 271-5006.

SUPPLEMENTARY INFORMATION: Section 101 (a)(5)(A) of the MMPA (16 U.S.C. 
1361 et seq.) directs NMFS to allow, on request, the incidental, but 
not intentional, taking of small numbers of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region, if certain findings 
are made by NMFS and regulations are issued. Under the MMPA, the term 
``taking'' means to harass, hunt, capture, or kill or to attempt to 
harass, hunt, capture or kill marine mammals.
    Permission may be granted for periods up to 5 years if NMFS finds, 
after notification and opportunity for public comment, that the taking 
will have a negligible impact on the species or stock(s) of marine 
mammals, will not have an unmitigable adverse impact on the 
availability of the species or stock(s) of marine mammals for 
subsistence uses, and if regulations are prescribed setting forth the 
permissible methods of taking and the requirements pertaining to the 
monitoring and reporting of such taking. Regulations governing the 
taking of marine mammals incidental to construction and operation of 
the offshore oil and gas facility at Northstar in the Beaufort Sea were 
published and made effective on May 25, 2000 (65 FR 34014), and remain 
in effect until May 25, 2005. For a detailed background on the issuance 
of this 5-year set of regulations, please refer to that document.

Summary of Request

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

Description of Activity

    BPXA proposes to produce oil from the Northstar Unit offshore oil 
development facility. This facility will be the first in the Beaufort 
Sea that uses a subsea pipeline to transport oil to shore and then into 
the Trans-Alaska Pipeline System. The Northstar Unit is located on Seal 
Island between 2 and 8 miles (mi)(3.2 and 12.9 kilometers (km)) 
offshore from Pt. Storkersen, AK. This unit is adjacent to the Prudhoe 
Bay industrial complex and is approximately 54 mi (87 km) northeast of 
Nuiqsut, a Native Alaskan community.
    The Northstar island and pipelines were constructed during the 
winter of 1999 and early 2000. Construction of ice-roads began in 
November 1999, and was completed in March, 2000. Construction activity 
included the construction of several ice roads, one from West Dock and 
Pt. McIntyre to the Northstar gravel mine, one from the Kuparuk River 
delta mine site to Seal Island, and one along the pipeline route to 
Seal Island. The gravel-haul road had a parallel alternate road to 
transport service equipment, construction materials and alternate 
gravel hauling when maintenance or repair of the main ice road was 
required. Gravel hauling to the island extended from February to April, 
2000. The pipelines were installed through a trench in the ice from 
March through May, 2000, and buried to a depth of 6 to 8 ft (1.8 to 2.4 
m) below the sea floor. Construction work and installation of 
facilities on the island continued during the spring ice break-up and 
open water season of 2000. Sheet pile installation at Northstar island 
began on March 7, 2000, and continued through May 29, 2000 via 
vibratory and impact pile-driving techniques. Additional work included 
capping the sheet pile retaining wall and installing the well-conductor 
pipes, foundation blocks, concrete slope protection, utility and 
permanent living quarter modules, and the drilling rig with its module. 
Monitoring of marine mammal impacts was conducted during this 
construction period and reported in Richardson and Williams (2000, 
2001a).
    The operational (oil production) phase at the Northstar facility 
during both the ice-covered and open-water seasons will include two 
diesel generators (designated emergency generators), three gas-turbine 
generators for the power plant operating at 50-percent duty cycle 
(i.e., up to two will be operating at any one time), two high pressure 
gas-turbine compressors, one low-pressure flare, and two high-pressure 
flares. All flares will be located on the 215-ft (66 m) flare tower. 
There is no seismic survey work involved with this activity or being 
proposed for authorization under this LOA.
    Drilling began in December, 2000 and is expected to continue for 
about 3 years. The operational phase of Northstar is considered to 
begin with the first oil, likely in October or November, 2001. 
Production will commence while drilling is continuing. Drilling will 
continue until 23 development wells (15 production, 7 gas injection) 
are drilled. After drilling is completed, only production-related site 
activities will occur.
    In order to support operations at Northstar, the proposed 
operations activity includes the annual construction of three ice 
roads, one built parallel to the coast from West Dock and Pt. McIntyre 
to the location of the pipeline shore crossing. A second road will be 
constructed along the pipeline route from the shore crossing to 
Northstar Island. A third road from Pt. McIntyre directly to Northstar 
is also anticipated. Ice road construction will begin sometime during 
the period from late-November through January, depending on ice 
conditions. Ice roads are expected to be completed and ready for 
traffic by mid-February. Ice roads will be used to resupply needed 
equipment, parts, foodstuffs, and products, and for hauling wastes back 
to existing facilities. For a description of planned ice-road 
activities, please refer to BPXA's 2001 application.
    During the summer, barge trips will be required between West Dock 
or Endicott and the island for resupply. Year-round helicopter access 
to Northstar is planned for movement of personnel, foodstuffs and 
emergency movement of supplies and equipment. Helicopters will fly at 
an altitude of at least 1,000 ft (305 m), except for takeoffs, 
landings, and safe-flight operations.

Marine Mammals

    The Beaufort/Chukchi seas support a diverse assemblage of marine 
mammals, including bowhead whales (Balaena mysticetus), gray whales 
(Eschrichtius robustus), beluga whales (Delphinapterus leucas), ringed 
seals (Phoca hispida), spotted seals (Phoca largha) and bearded seals 
(Erignathus barbatus). Descriptions of the biology and distribution of 
these species can be found in Ferraro et al. (2000), U.S. Army

[[Page 43218]]

Corps of Engineers (Corps, 1999), Minerals Management Service (MMS, 
2001) and the BPXA application (BPXA, 1999 and 2001). The latter two 
documents are available upon request (see ADDRESSES). Please refer to 
these documents for specific information on the marine mammal species.
    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 application for taking these 
species under the MMPA has been submitted to the U.S. Fish and Wildlife 
Service by BPXA.

Potential Effects on Marine Mammals

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

Impacts of Noise on Marine Mammals in the Beaufort Sea

    Sounds and non-acoustic stimuli will be generated during oil 
production operations by generators, drilling, production machinery, 
gas flaring, camp operations and vessel and helicopter operations. The 
sounds generated from production operations and associated 
transportation activities will be detectable underwater and/or in air 
some distance away from the area of the activity, depending upon the 
nature of the sound source, ambient noise conditions, and the 
sensitivity of the receptor. At times, some of these sounds are likely 
to be strong enough to cause an avoidance or other behavioral 
disturbance reaction by small numbers of marine mammals or to cause 
masking of signals important to marine mammals. The type and 
significance of behavioral reaction is likely to depend on the species 
and season, and the behavior of the animal at the time of reception of 
the stimulus, as well as the distance and level of the sound relative 
to ambient conditions.
    Responses of seals to acoustic disturbance are highly variable, 
with the most conspicuous changes in behavior occurring when seals are 
hauled out on ice or land when exposed to human activities. Seals in 
open water do not appear to react as strongly. Activities planned for 
the ice-covered seasons during the production phase of Northstar are 
expected to cause no more than limited and localized displacement of 
ringed seals. Results of monitoring during intensive construction 
activities during the ice-covered season in early 2000 showed no change 
in seal density in the areas closest to Northstar (Moulton et al., 
2001). Seals were still occupying holes and lairs well inside the zone 
where disturbance effects had been predicted (Williams et al., 2001a, 
2001b).
    In winter and spring, ice road construction and travel activities 
will displace some small numbers of ringed seals along the ice road 
corridors. The noise and general human activity may displace female 
seals away from activity areas and could negatively affect the female 
and young, if the female remained in the vicinity of the ice road. In 
addition to displacement by harassment, BPXA believes there is a small 
possibility of injury or mortality to a very small number of seal pups 
during ice road construction and transportation activities. However, 
planned timing of road construction (before pups are born) will 
minimize the probability of occurrence.
    During the open-water season, all six species of whales and seals 
could potentially be exposed to noise from vessels, the island and from 
other stimuli associated with the planned operations. Vessel traffic is 
known to cause avoidance reactions by whales at certain times 
(Richardson et al., 1995). Helicopter operations, and possibly other 
production-related activities, may also lead to disturbance of small 
numbers of seals or whales. In addition to disturbance, some limited 
masking of whale calls or other low-frequency sounds potentially 
relevant to bowhead whales could occur (Richardson et al., 1995; BPXA, 
2001).
    During the late summer and autumn, almost all whales are found 
north of the barrier islands, and north of Northstar. In the case of 
belugas, most individuals follow a far-offshore migration corridor at 
or beyond the edge of the continental shelf. In the case of bowheads, 
almost all individuals travel west north of Northstar. A few 
individuals travel west within a few kilometers north of Northstar, but 
most are 10 km (6.2 mi) or more farther offshore. Gray whales are rare 
in the Northstar area.
    In the open-water period, the principal activities on Northstar 
Island will be drilling and production activities, and associated 
helicopter and vessel traffic. Underwater sounds from drilling and 
routine production activities on the islands are not expected to be 
detectable more than about 5-10 km (3.1-6.2 mi) offshore of Northstar 
Island. However, when tugs or self-propelled barges are in use, 
underwater sounds could be faintly detectable as much as 28 km (17.4 
mi) offshore of Northstar (Blackwell and Greene, 2001). Avoidance 
reactions by bowhead, gray and beluga whales will be limited to 
substantially less than that distance. Cetaceans usually do not show 
overt avoidance reactions unless received levels of industrial noise 
are well above natural background noise level (Richardson et al., 
1995). Also, average noise levels from Northstar are expected to be 
lower during production activities in 2002 and beyond than they were 
during construction operations in 2000 (BPXA, 2001). Little disturbance 
or displacement of whales by vessel traffic is expected.

Impacts of Oil on Marine Mammals in the Beaufort Sea

    For reasons stated in the application (BPXA, 1999, 2001), 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 prob able alongshore trajectory of oil spilled from 
Northstar, in relation to the whale migration route through offshore 
waters, interactions between oil and whales are unlikely in the spring. 
In the summer, bowheads are normally found in Canadian waters, and 
beluga whales are found far offshore. As a result, at this time of the 
year, these species would be unaffected should a spill occur. However, 
oil that persists in the Beaufort Sea into the fall or winter and is 
not contained and/or removed may impact bowhead whales.
    In the fall, the migration route of bowheads can be close to shore. 
If bowheads were moving through leads in the pack ice, or were 
concentrated in nearshore waters, or if the oil migrated seaward of the 
barrier islands, some bowhead whales might not be able to avoid oil 
slicks and could be subject to prolonged contamination. However,

[[Page 43219]]

because the autumn migration of bowhead whales past Northstar extends 
over several weeks and because most of the whales travel along routes 
well north of Northstar, according to BPXA (1999), only a small 
minority of the whales are likely to intercept patches of spilled oil. 
The Corps (Corps, 1999) states that considering the limited number of 
days each year that bowhead whales would be migrating through the area, 
the low probability that a spill would occur, and the very low 
probability that oil would move into the migration corridor of the 
bowheads, it is very unlikely that bowhead whales would be contacted by 
oil. The effects of oil on these whales have been described in several 
documents (BPXA, 1999; Corps, 1999; Loughlin et al., 1994; and MMS, 
2001).
    Ringed seals exposed to oil during the winter or early spring could 
die if exposed to heavy doses of oil for prolonged periods of time. 
Prolonged exposure could occur if fuel or crude oil was spilled in or 
reached nearshore waters, was spilled in a lead used by seals, or was 
spilled under the ice when seals have limited mobility. Individual 
seals residing in these habitats may not be able to avoid prolonged 
contamination and some would die. Studies in Prince William Sound 
indicated a long-term decline of 36 percent in numbers of molting 
harbor seals located on those haulouts affected by oil from the EXXON 
VALDEZ spill. In addition, newborn seal pups, if contacted by oil, will 
likely die from oiling through loss of insulation and resulting 
hypothermia (BPXA, 1999). Because the number of ringed and bearded 
seals in the central Beaufort Sea represents a relatively small portion 
of their total populations, and even large oil spills are not expected 
to extend over large areas, relatively few ringed and bearded seals 
would be impacted, and impacts on regional population size would be 
expected to be minor.
    In addition to oil contacting marine mammals, oil spill cleanup 
activities could increase disturbance effects on either whales or 
seals, causing temporary disruption and possible displacement effects 
(MMS, 1996; BPXA, 1999). In the event of a large spill contacting and 
extensively oiling coastal habitats, the presence of response staff, 
equipment, and many low-flying aircraft involved in the cleanup will 
(depending on the time of the spill and cleanup), potentially displace 
seals and other marine mammals. However, the potential effects on 
bowhead and beluga whales are expected to be less than those on seals. 
The whales tend to occur well offshore where cleanup activities (during 
the open water season) are unlikely to be concentrated (BPXA, 1999). 
Also, because bowheads are transient and during the majority of the 
year, absence from the area would lessen the likelihood of impact by 
cleanup activities.

Estimated Level of Incidental Take

    BPXA (2001) estimates that, during the ice-covered period, 53 
(maximum 139) ringed seals and 1 (maximum 5) bearded seals potentially 
may be incidentally harassed annually during oil production activities. 
BPXA estimated these takings by harassment during the ice-covered 
season by assuming that seals within 3.7 km (2.3 mi) of Seal Island, 
and within 0.644 km (0.4 mi) of ice roads will be ``taken'' annually. 
This constitutes a total area of 46.73 km\2\ (18.0 mi\2\). These 
anticipated levels of potential take are estimated based on observed 
densities of seals during recent (1997-2000) aerial surveys in the 
Northstar area during spring (Miller et al., 1998; Link et al., 1999; 
Moulton et al., 2000, 2001) plus correction factors for seals missed by 
aerial surveyors. NMFS however, concurs with BPXA (1999, 2001) that 
these ``take'' estimates could result in an overestimate of the actual 
numbers of seals ``taken,'' if all seals within these disturbance 
distances do not move from the area. It should be noted that NMFS does 
not consider an animal to be ``taken'' if it simply hears a noise, but 
does not make a biologically significant response to avoid that noise.
    For the ice break-up period, BPXA assumes that seals within 1 km 
(3.11 km\2\) (0.62 mi/1.2 mi\2\) of Northstar Island might be affected 
by activities on the island. Based on aerial surveys conducted in 2000 
of hauled-out seals, applying correction factors for seals present on 
the ice but not seen and for seals not hauled out, and assuming a 
complete turnover of seals on a weekly basis, BPXA estimates that the 
total number of ringed seals harassed during the 6 week break-up period 
will be 25 animals.
    During the open-water season, BPXA (2001) estimates that 17 
(maximum 27) ringed seals, 5 spotted seals, 1-5 bearded seals, 215 
(maximum 774) bowhead whales, up to 5 gray whales, and 15 (maximum 91) 
beluga whales may be incidentally harassed annually due to operations 
at Northstar. BPXA assumes that seals and beluga whales within 1 km 
(0.6 mi) radius of Northstar Island will be harassed incidental to 
construction and other activities on the island. Assumed ``take'' radii 
for bowhead whales are based on the distance at which the received 
level of production-related noise from the island would diminish below 
115 dB re 1 micro-Pa. This distance has been conservatively estimated 
at 4 km (2.5 mi), due mostly to noise from tugs and self-propelled 
barges.
    Although the potential impacts to the several marine mammal species 
occurring in these areas is expected to be limited to harassment, a 
small number of ringed seals may incur lethal and serious injury. Most 
effects, however, are expected to be limited to temporary changes in 
behavior or displacement from a relatively small area near the 
Northstar site and will involve only small numbers of animals relative 
to the size of the populations. However, the inadvertent and 
unavoidable take by injury or mortality of small numbers of ringed seal 
pups may occur during ice clearing for construction of ice roads. In 
addition, some injury or mortality of whales or seals may result in the 
event that an oil spill occurs. As a result, BPXA requested that, 
because a small number of marine mammals might be injured or killed, 
that takings by mortality also be covered by the LOA. However, because 
of the unpredictable occurrence, nature, seasonal timing, duration, and 
size of an oil spill occurring, a specific prediction cannot be made of 
the estimated number of takes by an oil spill. According to BPXA, in 
the unlikely event of a major oil spill at Northstar or from the 
associated subsea pipeline, numbers of marine mammals killed or injured 
are expected to be small and the effects on the populations negligible. 
While NMFS agrees that a major oil spill is unlikely, and believes that 
it is even less likely that spilled oil will intercept numbers of 
marine mammals, NMFS cannot necessarily conclude that the effects on 
marine mammal populations will be negligible. Depending upon magnitude 
of the spill, its location and seasonality, an oil spill could have the 
potential to affect ringed and bearded seals, and/or bowhead and beluga 
whales. Because of the large population size of ringed seals and 
bearded seals and the small number of animals in the immediate vicinity 
of the Northstar facility, and because spilled oil is unlikely to 
disperse widely and, therefore, affect large numbers of seals, NMFS has 
determined that the effect on ringed and bearded seals will be 
negligible, even in the unlikely event that a major oil spill occurred.
    Bowhead and beluga whales, however, while potentially less likely 
to come into contact with spilled oil because of their more prevalent 
offshore distribution, and potentially less seriously affected when in 
oiled waters provided their passage is not blocked,

[[Page 43220]]

may be affected more seriously, if impacted, because of their smaller 
population sizes. However, based upon the Corps' analysis that there is 
less than a 10-percent chance of a major oil spill occurring during the 
20-30 year lifespan of Northstar, and because NMFS believes that the 
potential for a major oil spill occurring and intercepting these 
species would be significantly less than 10 percent (approaching 1 
percent), NMFS can make a determination that the taking of these two 
species incidental to operation at the Northstar oil production 
facility will have no more than a negligible impact on them.
    However, regardless of the proposed negligible impact finding, 
because the Clean Water Act (CWA), at 33 USC 1321 (b)(3), prohibits 
discharge in harmful quantities into the water and regulations at 40 
CFR 110.3 define harmful quantities as violating water quality 
standards or causing a sheen (i.e., oil spills are considered a 
violation of CWA), an authorization to take marine mammals, under 
section 101 (a)(5)(A) of the MMPA, incidental to an oil spill cannot be 
issued. Even though NMFS cannot issue incidental takings for oil 
spills, it must continue to ensure that potential takings are reduced 
to the lowest level possible and therefore, provides for mitigation to 
ensure that oil spills do not occur.

Impacts on Habitat

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

Impacts on Subsistence Uses

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

Noise Impacts on Subsistence Harvests

    The disturbance and potential displacement of bowhead whales and 
other marine mammals by sounds from vessel traffic and production 
activities are one of the principle concerns related to subsistence use 
of the area. The harvest of marine mammals is central to the culture 
and subsistence economies of the coastal North Slope communities. In 
particular, if elevated noise levels are displacing migrating bowhead 
whales farther offshore, this could make the harvest of these whales 
more difficult and dangerous for hunters. The harvest could also be 
affected if bowheads become more skittish when exposed to vessel or 
loud noise (BPXA, 1999, 2001).
    Underwater sounds from drilling and production operations on the 
artificial gravel island are not very strong, and are not expected to 
travel more than about 10 km (6.2 mi) from the source. BPXA states that 
even those bowheads traveling along the southern edge of the migration 
corridor are not expected to be able to hear sounds from Northstar 
until the whales are well west of the main hunting area for Nuiqsut.
    Nuiqsut is the community closest to the area of the proposed 
activity, and it harvests bowhead whales only during the fall whaling 
season. In recent years, Nuiqsut whalers typically have taken zero to 
four whales each season (BPXA, 1999). Nuiqsut whalers concentrate their 
efforts on areas north and east of Cross Island, generally in water 
depths greater than 20 m (65 ft). Cross Island, the principle field 
camp location for Nuiqsut whalers, is located approximately 28.2 km 
(17.5 mi) east of the Northstar area.
    Whalers from the village of Kaktovik search for whales east, north, 
and west of their village. Kaktovik is located approximately 200 km 
(124.3 mi) east of Northstar. The westernmost reported harvest location 
was about 21 km (13 mi) west of Kaktovik, near 70 deg.10' N. 144 deg.W. 
(Kaleak, 1996). That site is approximately 180 km (112 mi) east of 
Northstar.
    Whalers from the village of Barrow search for bowhead whales much 
further from the Northstar area, greater than 250 km (>175 mi) to the 
west.
    While the effects on migrating bowheads from noise created by 
Northstar production are not expected to extend into the area where 
Nuiqsut hunters usually search for bowheads and, therefore, are not 
expected to affect the accessibility of bowhead whales to hunters, it 
is recognized that it is difficult to determine the maximum distance at 
which reactions occur (Moore and Clark, 1992). As a result, in order to 
avoid any unmitigable adverse impact on subsistence needs and to reduce 
potential interference with the hunt, the timing of various activities 
at Northstar as well as barge and aircraft traffic in the Cross Island 
area will be addressed in a Conflict Avoidance Agreement between BPXA 
and the AEWC on behalf of its bowhead whale subsistence hunters. 
Information on impacts on subsistence seal hunting can be found in the 
final rule document (65 FR 34014, May 25, 2000).

Oil Spill Impacts on Subsistence Harvests

    Oil spills have the potential to affect the hunt for bowhead 
whales. As a result, the potential for oil spills from Northstar are of 
significant concern to the residents of the NSB. While oil spills from 
production drilling or pipelines, could occur at any time of the year, 
NMFS believes that only if a significant spill occurred just prior to 
or during the subsistence bowhead hunt and spread into offshore waters 
would a reduction in the availability of bowhead whales for subsistence 
uses be possible. While unlikely, oil spills could extend into the 
bowhead hunting area under certain wind and current conditions. BPXA 
(1999, 2001) states that even in the event of a major spill, it is 
unlikely that more than a small number of those bowheads encountered by 
hunters would be contaminated by oil. However, disturbance associated 
with reconnaissance and cleanup activities could affect bowhead whales 
and, thus, accessibility of bowheads to hunters. As a result, in the 
unlikely event that a major oil spill occurred during the relatively 
short fall bowhead

[[Page 43221]]

whaling season, it is possible that bowhead whale hunting could be 
significantly affected. Moreover, even with no more than a negligible 
impact on those marine mammals that would be subject to subsistence 
hunting, individuals and communities as a whole, may perceive that the 
whale or seal meat or products are tainted or somehow unfit to eat or 
use. This could further impact subsistence hunting of these animals. 
However, NMFS believes that because (1) the probability of a large oil 
spill is less than 10 percent over the 20-30 years of Northstar 
operations, (2) bowhead whales in the vicinity of Northstar are hunted 
only in the months of September and October, limiting exposure time, 
(3) only under certain wind and sea conditions would it be likely that 
oil would reach the bowhead subsistence hunting area, (4) there will be 
an oil spill response program in effect that will be as effective as 
possible in Arctic waters, and (5) other mitigation measures have been 
suggested in the event that oil did contact bowheads, NMFS determined 
at the final rule stage (66 FR 34014, May 25, 2000) that the 
construction and operation at Northstar is unlikely to result in an 
unmitigable adverse impact on subsistence uses of marine mammals during 
the period of effectiveness of the regulations. During the period 
between that rulemaking and this document, NMFS has participated in 
several meetings with BPXA, the AEWC and the NSB, in recognition that, 
although unlikely, if an oil spill were to occur and reach the bowhead 
migration corridor, there was a potential for significant impacts on 
the subsistence hunting of bowheads. These meetings resulted in 
identifying several mitigation measures designed to reduce the impact.

Proposed Mitigation

    To minimize the likelihood that impacts will occur to the species 
and stocks of marine mammals and to the subsistence use of marine 
mammals, all activities at Northstar will be conducted in accordance 
with all federal, state and local regulations. BPXA will coordinate all 
activities with relevant federal and state agencies.
    In addition to design for safety and leak prevention (including not 
having any valves, flanges, or fittings in the subsea section to reduce 
the potential for equipment failure), the pipeline (which was installed 
in 2000), includes the following measures to mitigate impacts on the 
marine environment: (1) utilize the best available technology leak 
detection system to monitor for any potential leaks, (2) conduct, at a 
minimum, weekly helicopter aerial surveillance of the offshore (and 
onshore) pipeline corridor; and (3) conduct ice-road surveillance of 
the pipeline, including checking for hydrocarbons under the ice by 
drilling ice holes.
    Although the likelihood of an oil spill occurring at Northstar is 
unlikely, an oil spill contingency plan has been developed and was 
submitted to the Alaska Department of Environmental Conservation, the 
U.S. Department of Transportation, U.S. Coast Guard, and the MMS for 
review and approval in March, 1999. An updated plan will be resubmitted 
by BPXA in August, 2001. Also, emergency response exercises, training 
and evaluation drills will occur at regular scheduled intervals.
    During the ice-covered season, BPXA proposes to use trained dogs to 
locate seal structures in previously undisturbed areas after the 
traditional birthing date for ringed seals of March 20. However, NMFS 
has a condition in current LOAs requiring the use of trained dogs after 
January 1st. NMFS has established this date based on a concern over the 
impacts on timing for seal structures for becoming birthing lairs. As a 
result, NMFS invites reviewers to provide scientific information on the 
costs and benefits of requiring mitigation from January 1 rather than 
from March 20.
    During the open-water season, a minimum flight altitude of 1,000 ft 
(304.8 m) will be maintained by all aircraft unless limited by weather 
conditions or emergencies, and except during takeoff and landing. 
Helicopter flights will primarily be conducted during ice breakup or 
freeze-up and will occur in a specified corridor from Northstar Island 
to the mainland. In addition, all non-essential boat, barge and air 
traffic will be scheduled to avoid periods when bowhead whales are 
migrating through the area. Essential traffic will be closely 
coordinated with the NSB and the AEWC to avoid disrupting subsistence 
hunting. In addition, BPXA this year has installed a dock for barges at 
Northstar. This action, which will allow barges to tie up at Northstar 
instead of using diesel engines to remain in place, and thus, will 
reduce underwater noise levels at Northstar.
    To mitigate the potential for an oil spill interacting with bowhead 
whales and affecting both the species and the subsistence harvest by 
the NSB villagers, BPXA has confirmed to NMFS that they will not drill 
new wells or sidetracks from existing wells into oil-bearing strata 
during the defined period of broken ice or open water conditions which 
is defined as a period from June 13, 2002, and ending with the presence 
of 18 inches of continuous ice cover for one-half mile in all 
directions.
    In addition, to ensure that there will not be an unmitigable 
adverse impact on the subsistence uses of marine mammals, principally 
bowhead whales, from an oil spill (an oil spill in this context means a 
1,000-barrel or greater crude oil spill into the water at Northstar, 
occurring within 6 months of the fall whale hunt, as confirmed by the 
U.S. Coast Guard), this mitigation will include planning and financial 
assistance that will cover the following oil-spill related costs: (a) 
annual transportation to alternative bowhead whale hunting areas for 
whaling crews, (b) annual alternate subsistence food supplies to 
replace subsistence food otherwise provided by a whale, (c) annual 
counseling and cultural assistance for NSB residents and AEWC members 
to handle the disruptions to their lives and culture caused by the oil 
spill, and (d) annual assistance to the NSB and the AEWC to restore the 
International Whaling Commission quota for bowhead whales in the event 
that an oil spill at Northstar results in a reduction or loss of the 
IWC quota (BPXA Good Neighbor Policy, March 14, 2001).

Monitoring

    A detailed description of BPXA's proposed monitoring program for 
implementation during the production phase at Northstar can be found in 
the revised BPXA application (BPXA, 2001). The open-water season 
portion of BPXA's monitoring plan was reviewed by scientists and others 
attending the annual open-water peer-review workshop held in Seattle on 
June 6, 2001. Peer review on the on-ice portion of the application was 
conducted on October 14-15, 1999 and October, 2000. A summary of marine 
mammal monitoring that will be conducted during Northstar production 
this year is provided here; greater detail can be found in BPXA's 
application (BPXA, 2001).
    Under the current LOA, BPXA conducted 6 monitoring tasks. These 
were to conduct: (1) Fixed-wing, systematic, aerial surveys of seals 
hauled out on the ice in spring, 2001; (2) on-ice searches, during 
winter 2000/2001, for ringed seal breathing holes and lairs near 
Northstar and, if needed, follow-up surveys; (3) measurements of 
underwater and in air sounds produced by any construction, drilling, 
and operations to document sounds and vibrations from Northstar 
construction, (4) island-based visual monitoring for marine mammals 
during the open water

[[Page 43222]]

season, and (5) acoustic monitoring of bowhead vocalizations during 
migration. Task 3, a late-winter helicopter survey to assess 
abandonment rates of seal holes, was not conducted in the spring, 2000, 
as such a survey had been attempted in spring, 1999, with limited 
success. The results of this monitoring program are contained in 
Richardson and Williams (2001a and 2001b) and were summarized 
previously in this document.

Monitoring During the Ice-covered Season

    During late May/early June, 2002, BPXA plans to conduct systematic 
aerial surveys, using fixed-wing aircraft, of seals hauled out on the 
ice. This survey will be consistent with BPXA surveys of this type 
conducted from 1997 through 2001 (see Richardson and Williams, 2001a, 
2001b), and will be the last in the planned series. The initial surveys 
(1997-1998) were to provide data on baseline distribution and density 
prior to construction of offshore production facilities. The subsequent 
surveys (1999-2002) provide comparative data during and after 
construction at Northstar. BPXA will also make measurements of 
underwater and in-air sounds, as well as ice vibration, produced by any 
construction, drilling, and operational activities occurring in 2002, 
whose sounds have not been previously measured.
    If construction activities occur in previously undisturbed areas 
after March 19, 2002, on-ice searches using trained dogs will be 
employed to locate seal structures. If needed, a recheck of these 
structures will be conducted in May, 2002 to assess the proportion of 
structures abandoned relative to distance between the disturbance and 
the structure.

Monitoring During the Open-Water Season

    During the open-water period of 2002, monitoring activities will 
include acoustic measurements of sounds produced by operational 
activities and acoustical monitoring of bowhead whales. No visual 
monitoring of marine mammals will be undertaken in 2002 or in 
subsequent years for Northstar operations. This task was undertaken in 
prior years primarily to ensure that no seals or whales would be 
exposed to potentially injurious levels of sounds from impact pipe 
driving, or other loud noise sources during construction. However, even 
during pipe driving, impulse sound levels in the water near the island 
did not exceed 155 dB (re 1 micro-Pa) and levels did not approach the 
established 180 dB (whales) and 190 dB (seals) sound level criteria. As 
BPXA does not plan to conduct impact pipe driving, or other noisy 
activities in 2002 and beyond, there is no need to continue an observer 
monitoring program from Northstar.
    BPXA plans to use an acoustic localization technique in 2002 to 
document the occurrence and locations of calling bowhead whales in the 
southern part of the migration corridor. This work will be a 
continuation of work conducted in 2000 (Greene et al., 2001) and 
planned for 2001 under the current LOA. The primary objective is to 
document the occurrence of calling bowhead whales in the southern part 
of the migration corridor near Northstar and to determine whether their 
distances from the island vary in direct relation to the sound levels 
emanating from the island. This will provide information on whether 
Northstar affected the distribution and/or the calling behavior of the 
whales. For a detailed description of the work being proposed, please 
refer to BPXA's application.

Reporting

    Under its current LOA, BPXA is required to provide two 90-day 
reports annually to NMFS. The first report is due 90 days after either 
the ice roads are no longer usable or spring aerial surveys are 
completed, whichever is later. Under the current LOA, this report was 
submitted to NMFS on September 15, 2000 (Richardson and Williams 
(eds.), 2000). The second 90-day report is required to be forwarded to 
NMFS 90 days after the formation of ice in the central Alaskan Beaufort 
Sea prevents water access to Northstar. Under the current LOA, this 
report was submitted to NMFS on January 31, 2001 (Richardson and 
Williams (eds.), 2001a). These reports included the dates and locations 
of construction activities, details of marine mammal sightings, 
estimates of the amount and nature of marine mammal takes, and any 
apparent effects on accessibility of marine mammals to subsistence 
hunters.
    Under the current LOA, a draft final technical report must be 
submitted to NMFS by April 1 of each year. This report was submitted to 
NMFS on that date (Richardson and Williams (eds.), 2001b). The draft 
final report was subject to peer review in Seattle, WA on June 6, 2001. 
The final technical report will be and will fully describe the methods 
and results of all monitoring tasks and a complete analysis of the 
data. NMFS proposes that the reporting requirements described in these 
paragraphs will be continued under the new LOA.

Endangered Species Act (ESA)

    On May 22, 2001 (66 FR 28141), NMFS announced receipt of a petition 
from the Center for Biological Diversity and the Marine Biodiversity 
Protection Center to designate critical habitat for the Western Arctic 
stock of bowhead whales under the ESA. NMFS is currently reviewing this 
petition to determine whether designation of critical habitat is 
warranted. However, there is no provision under the ESA that activities 
that might impact critical habitat cease while a review is underway. 
However, federally-permitted oil and gas exploration activities require 
consultation under section 7 of the ESA if endangered or threatened 
species are likely to be affected.
    On March 4, 1999, NMFS concluded consultation with the Corps on 
permitting the construction and operation at the Northstar site. The 
finding of that consultation was that construction and operation at 
Northstar is not likely to jeopardize the continued existence of the 
bowhead whale stock. Because issuance of a small take authorization to 
BPXA under section 101 (a)(5) of the MMPA is a Federal action, NMFS has 
completed section 7 consultation on this action. The finding of this 
consultation was that the issuance of the small take authorization was 
unlikely to adversely affect the bowhead whale.

National Environmental Policy Act (NEPA)

    On June 12, 1998 (63 FR 32207), the Environmental Protection Agency 
(EPA) noted the availability for public review and comment a draft EIS 
prepared by the Corps under NEPA on Beaufort Sea oil and gas 
development at Northstar. Comments on that document were accepted by 
the Corps until August 31, 1998 (63 FR 43699, August 14, 1998). On 
February 5, 1999 (64 FR 5789), EPA noted the availability for public 
review and comment, a final EIS prepared by the Corps under NEPA on 
Beaufort Sea oil and gas development at Northstar. Comments on that 
document were accepted by the Corps until March 8, 1999. Based upon a 
review of the final EIS, the comments received on the draft EIS and 
final EIS, and the comments received during the rulemaking, NMFS 
adopted the Corps' final EIS as its own as provided in the Council on 
Environmental Quality regulations (40 CFR 1501.6) and has determined 
that it is not necessary to prepare supplemental NEPA documentation.

[[Page 43223]]

Determinations

    On May 25, 2000 (65 FR 34014), NMFS determined that the impact of 
production operations at the Northstar project in the U.S. Beaufort Sea 
will result in no more than a temporary modification in behavior by 
certain species of cetaceans and pinnipeds. During the ice-covered 
season, pinnipeds close to the island may be subject to incidental 
harassment due to the localized displacement from construction of ice 
roads, from transportation activities on those roads, and from 
production activities at Northstar. 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 operations-related 
noise activities will be helicopter traffic, vessel traffic, and other 
general oil production activities on Seal Island. Sounds from 
production-related activities on the island are not expected to be 
detectable more than about 5-10 km (3.1-6.2 mi) offshore of the island. 
Disturbance to bowhead or beluga whales by on-island activities will be 
limited to an area substantially less than that distance. Helicopter 
traffic will be limited to nearshore areas between the mainland and the 
island and is unlikely to approach or disturb whales. Barge traffic 
will be located mainly inshore of the whales and will involve vessels 
moving slowly, in a straight line, and at constant speed. Little 
disturbance or displacement of whales by vessel traffic is expected. 
While behavioral modifications may be made by these species to avoid 
the resultant noise, this behavioral change is expected to have no more 
than a negligible impact on the animals.
    While the number of potential incidental harassment takes will 
depend on the distribution and abundance of marine mammals (which vary 
annually due to variable ice conditions and other factors) in the area 
of operations, because the activity is in shallow waters inshore of the 
main migration corridor for bowhead whales and far inshore of the main 
migration corridor for belugas, the number of potential harassment 
takings is estimated to be small. In addition, no take by injury and/or 
death is anticipated, except possibly for a small take by mortality 
incidental to ice-road construction. No rookeries, areas of 
concentrated mating or feeding, or other areas of special significance 
for marine mammals occur within or near the planned area of Northstar 
operations.
    Because bowhead whales are east of Seal Island area in the Canadian 
Beaufort Sea until late August/early September, activities at Northstar 
are not expected to impact subsistence hunting of bowhead whales prior 
to that date. Appropriate mitigation measures to avoid an unmitigable 
adverse impact on the availability of bowhead whales for subsistence 
needs is the subject of consultations between BPXA and subsistence 
users.
    Also, while production activities at Northstar have 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 production-related activities will not have an unmitigable 
adverse impact on the availability of these stocks for subsistence 
uses.
    NMFS has determined that the potential for an offshore oil spill 
occurring is low (less than 10 percent over 20-30 years (Corps, 1999)) 
and the potential for that oil intercepting whales or seals is even 
lower (about 1.2 percent (Corps, 1999)). Because of this low potential 
and because of the seasonality of bowheads, and recognizing that NMFS 
cannot authorize the incidental taking for oil spills, NMFS has 
determined that the taking of marine mammals incidental to construction 
and operation at the Northstar oil production facility will have no 
more than a negligible impact on them. In addition, because BPXA has 
certified to NMFS that it will not drill into oil-bearing strata during 
periods of open water or broken ice (the time period between June 13 
and ending with the presence of 18 inches of continuous ice cover for 
one-half mile in all directions), because there will be an oil spill 
response program in effect that will be as effective as possible in 
Arctic waters, and because other mitigation measures have been proposed 
by BPXA in the event that oil did contact bowheads, NMFS has 
preliminarily determined that there will not be an unmitigable adverse 
impact on subsistence uses of marine mammals.

Information Solicited

    NMFS requests interested persons to submit comments, and 
information, concerning this request for an LOA (see ADDRESSES). 
However, in the preamble to the final rule (65 FR 34014, May 25, 2000), 
NMFS clarified that because it had made the determinations required 
under section 101 (a)(5)(A) of the MMPA when it published the final 
rule, that, in order to expedite the LOA renewal process, NMFS would 
open the annual LOA review process to the following issues only: (1) 
New scientific data or information (including Traditional Knowledge) 
that indicates that the determinations made in the final rule document 
(and therefore in this document) are in need of reconsideration, (2) 
comments on the Plan of Cooperation, and (3) comments on the proposed 
monitoring plan. Provided the written comments are specific to the 
issues under consideration in this document, NMFS will give full 
consideration to all comments submitted when making its determination 
on reissuance of an LOA. Comments on issues not relevant to the 
potential impact on marine mammals inhabiting the Beaufort Sea or to 
the subsistence use of marine mammals in this area will not be 
considered by NMFS when making its final determination on this matter.

    Dated: August 10, 2001.
Wanda L. Cain,
Acting Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 01-20822 Filed 8-16-01; 8:45 am]
BILLING CODE 3510-22-S