[Federal Register Volume 70, Number 141 (Monday, July 25, 2005)]
[Proposed Rules]
[Pages 42520-42530]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-14620]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 050630175-5175-01; I.D. 083104A]
RIN 0648-AS98


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: Proposed rule; request for comments and information.

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SUMMARY: NMFS has received a request from BP Exploration (Alaska), 900 
East Benson Boulevard, Anchorage, AK 99519 (BP) for renewal of an

[[Page 42521]]

authorization to take small numbers of marine mammals incidental to 
operation of an offshore oil and gas platform at the Northstar facility 
in the Beaufort Sea in state waters. By this document, NMFS is 
proposing regulations to govern that take. In order to issue the Letter 
of Authorization (LOA) and final regulations governing the take, NMFS 
must determine that the total taking will have a negligible impact on 
the affected species and stocks of marine mammals, will be at the 
lowest level practicable, 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 application and the proposed rule.

DATES: Comments and information must be postmarked no later than August 
24, 2005.

ADDRESSES: You may submit comments on the application and proposed 
rule, using the identifier 083104A, by any of the following methods:
    E-mail: [email protected]. Please include the identifier 083104A 
in the subject line of the message. Comments sent via e-mail, including 
all attachments, must not exceed a 10-megabyte file size.
    Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    Hand-delivery or mailing of paper, disk, or CD-ROM comments should 
be addressed to: Stephen L. Leathery, Chief, Permits, Conservation and 
Education Division, Office of Protected Resources, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-
3225.
    A copy of the application containing a list of references used in 
this document may be obtained by writing to this address, by 
telephoning one of the contacts listed under FOR FURTHER INFORMATION 
CONTACT, or at: http://www.nmfs.noaa.gov/prot_res/PR2/Small_Take/smalltake_info.htm#applications. Documents cited in this proposed rule 
may also be viewed, by appointment, during regular business hours at 
this address. To help us process and review comments more efficiently, 
please use only one method.
    Comments regarding the burden-hour estimate or any other aspect of 
the collection of information requirement contained in this proposed 
rule should be sent to NMFS via the means stated above, and to the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget (OMB), Attention: NOAA Desk Officer, Washington, DC 20503, 
[email protected].

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, NMFS, 301-
713-2055, ext 128 or Brad Smith, NMFS, (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 
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 and regulations are 
issued.
    An authorization may be granted for periods of 5 years or less if 
the Secretary finds that the total taking will have a negligible impact 
on the species or stock(s), 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.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ``an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.'' Except for certain categories of activities not pertinent 
here, the MMPA defines ``harassment'' as any act of pursuit, torment, 
or annoyance which
    (i) has the potential to injure a marine mammal or marine mammal 
stock in the wild [Level A harassment]; or (ii) has the potential to 
disturb a marine mammal or marine mammal stock in the wild by 
causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment].
    In 1999, BP petitioned NMFS to issue regulations governing the 
taking of small numbers of whales and seals incidental to oil and gas 
development and operations in arctic waters of the United States. That 
petition was submitted pursuant to section 101(a)(5)(A) of the MMPA. 
Regulations were promulgated by NMFS on 25 May 2000 (65 FR 34014). 
These regulations authorize the issuance of annual LOAs for the 
incidental, but not intentional, taking of small numbers of six species 
of marine mammals in the event that such taking occurred during 
construction and operation of an oil and gas facility in the Beaufort 
Sea offshore from Alaska. The six species are the ringed seal (Phoca 
hispida), bearded seal (Erignathus barbatus), spotted seal (Phoca 
largha), bowhead whale (Balaena mysticetus), gray whale (Eschrichtius 
robustus), and beluga whale (Delphinapterus leucas). To date, LOAs have 
been issued on September 18, 2000 (65 FR 58265, September 28, 2000), 
December 14, 2001 (66 FR 65923, December 21, 2001), December 9, 2002 
(67 FR 77750, December 19, 2002), December 4, 2003 (68 FR 68874, 
December 10, 2003) and December 6, 2004 (69 FR 71780, December 10, 
2004). The current LOA expired on May 25, 2005, when the current 
regulations expired.
    On August 30, 2004, BP requested a renewal of its authorization to 
take small numbers of marine mammals incidental to operation of an 
offshore oil and gas platform at the Northstar facility in the Beaufort 
Sea in state waters. This will require new regulations. Although injury 
or mortality is unlikely during routine oil production activities, BP 
requests that the LOA authorize a small number of incidental, non-
intentional, injurious or lethal takes of ringed seals in the unlikely 
event that they might occur. A copy of this application can be found 
at: http://www.nmfs.noaa.gov/prot_res/PR2/Small_Take/smalltake_info.htm#applications.

Description of the Activity

    BP is currently producing oil from an offshore oil and gas facility 
in the Northstar Unit. This development is the first in the Beaufort 
Sea that makes use of a subsea pipeline to transport oil to shore and 
then into the Trans-Alaska Pipeline System. The Northstar facility was 
built in State of Alaska waters approximately 6 statute miles (9.6 km) 
north of Point Storkersen and slightly less than 3 nautical miles (nm; 
5.5 km) from the closest barrier island. It is located adjacent to 
Prudhoe Bay, and is approximately 54 mi (87 km) northeast of Nuiqsut, 
an Inupiat community. The main facilities associated with Northstar 
include a gravel island work surface for drilling and oil production 
facilities, and two pipelines connecting the island to the existing 
infrastructure at Prudhoe Bay. One pipeline transports crude oil to 
shore, and the second imports gas from Prudhoe Bay for gas injection 
and power generation at Northstar. Permanent living quarters and 
supporting oil production facilities are also located on the island. 
The construction of Northstar began in early 2000, and continued 
through 2001. Well drilling began on December 14, 2000 and oil 
production commenced on October 31, 2001. The well-drilling

[[Page 42522]]

program ended in May, 2004 and the drill rig is expected to be 
demobilized by barge during the 2005 open-water period. Although future 
drilling is not specifically planned, additional wells or well work-
over may be required at some time in the future. Oil production will 
continue beyond the 5-year period of the requested authorization. A 
more detailed description of past, present and future activities at 
Northstar can be found in BP's application and in Williams and 
Rodrigues (2004). Both documents can be found in the previously 
mentioned NMFS web-site (see ADDRESSES).

Comments and Responses

    On September 23, 2004 (69 FR 56995), NMFS published a notice of 
receipt of BP's application for an incidental take authorization and 
requested comments, information and suggestions concerning the request 
and the structure and content of regulations to govern the take. During 
the 30-day public comment period, NMFS received comments from the 
Alaska Eskimo Whaling Commission (AEWC), the Trustees for Alaska 
(Trustees, on behalf of themselves, the Sierra Club and the Northern 
Alaska Environmental Center), and the Marine Mammal Commission 
(Commission).

Marine Mammal Concerns

    Comment 1: The AEWC objects to a statement in BP's application that 
crew boats and barges supporting Northstar remain well inshore of the 
main migration corridor, so bowhead whale deflection is unlikely to 
occur in response to these types of Northstar related vessel traffic. 
The BP application must acknowledge that vessel traffic has the 
potential to push the whales far offshore as they migrate westward.
    Response: As noted in BP's application, vessels, (principally crew 
boats), tugs and self-propelled barges were the most important sound 
sources during all phases of the Northstar operation that were studied 
by Blackwell and Greene (2004). The presence of boats considerably 
expanded the distances to which Northstar-related sound was detectable. 
Propagation loss over distances from a few hundred meters to a few 
kilometers for vessel sounds was about 15 dB/tenfold change in 
distance. On some occasions, vessels were detectable on recordings made 
at the farthest recording station (29 km (18 mi)) from the vessel. On 
the other hand, monitoring studies done at Northstar since 2000 have 
shown that any disturbance and displacement effects on seals and whales 
that do occur are subtle and quite localized (Richardson and Williams 
[eds], 2004). These very limited effects would not have biologically 
significant consequences for many (if any) individual seals and whales, 
and would have a negligible impact on the affected species or stocks. 
However, NMFS recognizes that an activity having a negligible impact on 
bowhead whales may nevertheless result in an unmitigable adverse impact 
on their availability for subsistence uses if it results in a 
displacement of those animals during the subsistence hunt and makes 
their availability insufficient for a harvest to meet subsistence 
needs. For that reason, BP has proposed that all non-essential boat, 
hovercraft, barge and air traffic under its management will be 
scheduled to avoid periods when bowheads are migrating through the 
area. Whether additional monitoring of BP vessels during the bowhead 
migration period is needed was addressed during the May 10-12, 2005, 
peer-review meeting (see Monitoring).
    Comment 2: The Trustees state that NMFS must consider all 
regulatory changes applicable to the proposed operations to determine 
whether the proposed operations have a negligible impact on species and 
stocks of marine mammals. Pursuant to this mandate, NMFS must consider 
changes to the State of Alaska oil discharge prevention and contingency 
plan regulations that have eliminated certain requirements and will 
thus increase the duration and amount of discharge in the event of an 
accidental oil spill.
    Response: NMFS is unaware of any recent changes to the State of 
Alaska's oil discharge prevention and contingency plan that could 
potentially affect offshore oil and gas operations in a manner not 
addressed previously by NMFS (see especially 66 FR 65923, December 21, 
2001). Therefore, NMFS requests information, during this proposed rule 
comment period, regarding changes in State of Alaska regulations that 
might affect its prior determinations.
    Comment 3: The AEWC states that BP's use of the phrase ``migratory 
corridor'' dismisses the findings in LGL (2002, Bowhead Whale Feeding 
in the Eastern Alaskan Beaufort Sea: Update of Scientific and 
Traditional Information) that bowhead whales both feed and travel 
during the westward migration.
    Response: Lowry and Sheffield (2002) in Richardson and Thomson 
[ed]. (2002) concluded that coastal waters of the Alaskan Beaufort Sea 
should be considered as part of the bowheads' normal summer-fall 
feeding range. They reported that of the 29 bowheads harvested at 
Kaktovik between 1986 and 2000 and analyzed for stomach contents, at 
least 83 percent had been feeding prior to death. Of the 90 bowheads 
analyzed that had been harvested near Barrow during the fall hunt, at 
least 75 percent had been feeding prior to death.
    Comment 4: The AEWC questions statements made in BP's application 
regarding noise propagation and attenuation from the Northstar 
facility. The AEWC notes that some industrial noise is audible to 
marine mammals far beyond 10 km (6.2 mi) and that bowheads are being 
deflected by sounds from Northstar at much greater distances than ``a 
few kilometers.''
    Response: In making its determinations on whether the taking of 
marine mammals is negligible and the activity is not having an 
unmitigable adverse impact on the availability of bowheads for 
subsistence, NMFS relies in substantial part on the findings in 
Richardson and Williams [eds]. (2004). NMFS believes the statements 
made by BP in its application regarding noise propagation and 
attenuation are based on 4 years of data collection and assessment of 
noise impacts on bowhead whales from the Northstar facility and thus 
represents the best information available.

Concerns on Subsistence

    Comment 5: The AEWC strongly suspects that Northstar noise causes 
subtle deflections just to the east or just to the west of Seal Island, 
and when combined with other industrial activity in the Beaufort Sea, 
including vessel traffic supporting onshore and offshore development, 
Northstar contributes cumulatively to push the migration route offshore 
and force the whales out of reach of whaling captains.
    Response: A description of the monitoring program conducted by BP 
since 2000 to assess whether sounds from Northstar might be causing a 
deflection in the migratory route of bowheads during the fall migration 
(Richardson and Williams [eds], 2004) can be found on NMFS' homepage:
    http://www.nmfs.noaa.gov/prot_res/PR2/Small_Take/smalltake_info.htm#applications. As mentioned, monitoring during the upcoming 
seasons was addressed at the previously mentioned peer-review 
monitoring meeting (see response to comment 7 and Monitoring).
    However, NMFS must make a determination that the activity for which 
the take authorization is requested, and not the total impact of all 
activities taking place in the Beaufort Sea, is not having an 
unmitigable adverse impact on the subsistence uses

[[Page 42523]]

of bowhead whales. Information currently available to NMFS indicates 
that the AEWC has met its fall bowhead subsistence needs and quota 
recently (see Table 7 in BP's application for recent bowhead harvest 
levels). In 2004, the village of Barrow landed 15 bowheads while the 
villages of Nuiqsut and Kaktovik took 3 each. If this information is 
not correct, NMFS requests the AEWC provide information on this subject 
during the public comment period for this proposed rule.

Mitigation Concerns

    Comment 6: The AEWC believes that the received sound level at which 
whales might deflect is completely unrelated to the safety sound level 
threshold (i.e., Level A harassment zone) set by NMFS. It is critical 
that BP not make associations between safety criteria for whales and 
the sound threshold above which whales exhibit avoidance behavior.
    Response: BP and NMFS recognize that bowheads react to 
anthropogenic noise at significantly greater distances than the safety 
zone required to protect all marine mammals from Level A harassment.
    During the previous 5-year rule and LOAs, NMFS and BP were 
concerned that construction and production sounds from Northstar had 
the potential to cause Level A harassment of marine mammals. Monitoring 
since 2000 indicated that the loudest noise levels anticipated at the 
Northstar facility are from pile driving. The impact pipe driving in 
June and July 2000 did not produce received levels as high as 180 dB re 
1 microPa (rms) at any location in the water. This was attributable to 
attenuation by the gravel and sheetpile walls (Blackwell et al., 2004). 
If impact pile driving (or similar activity with loud noise) was 
planned for areas outside sheetpile walls where sound levels might 
exceed 180 dB (cetaceans) or 190 dB (seals), monitoring and mitigation 
(such as shut-down) is proposed to be conducted under the new rule. 
NMFS proposes to retain this monitoring requirement to mitigate Level A 
harassment to the lowest level practicable in the proposed 5-year rule.
    However, this monitoring program is in addition to the acoustic 
monitoring program proposed for bowheads during the fall migration, 
both of which are described later in this document (see Mitigation/
Monitoring).
    Comment 7: Since the Northstar monitoring report shows that 
bowheads are deflected by industrial sounds well below NMFS criteria, 
the AEWC believes that BP should implement supplemental monitoring and 
mitigation whenever sounds from Northstar are expected to exceed 100 
dB, not when those sounds exceed 180 dB. The peer-review group should 
be convened to develop the appropriate technique to monitor for marine 
mammals in the areas that may be affected by high levels of industrial 
noise.
    Response: During the bowhead westward migration period, 
supplemental monitoring and mitigation measures are implemented by BP 
to ensure that the effects from Northstar do not have an unmitigable 
adverse impact on the subsistence needs of the Inupiat communities for 
bowhead whales. These measures are discussed later in this document 
(see Monitoring). Implementing additional mitigation and monitoring at 
100 dB for species other than bowhead whales is neither warranted nor 
practical. While this is a subject for further discussion at peer-
review meetings, NMFS notes that the 180-dB monitoring takes place 
year-round for the protection of all marine mammal species from Level A 
harassment (injury), not from Level B harassment.

Monitoring Concerns

    Comment 8: Noise monitoring of Northstar operations detected a 
``mystery'' noise of long duration transmitting a considerable distance 
away from the island. NMFS must evaluate the impacts of this noise 
source associated with Northstar production.
    Response: An ``unknown'' underwater sound was detected by a 
recorder on the seafloor about 550 m (1804 ft) north of Northstar 
Island. It was not recorded prior to mid-September in 2003, but was 
recorded about eight times during the period 18 28 September 2003. It 
was not present during September 2004. This sound, as recorded 550 m 
(1804 ft) from Northstar, consisted of sustained (40 min to 5.3 hrs) 
periods at received levels of approximately 125 dB re 1 uPa. Most of 
its energy was below 60 Hz, but it included characteristic broad peaks 
at frequencies close to 139, 162, 189, 233 and 285 Hz. The directional 
recorders showed that the sound was coming from the vicinity of 
Northstar Island. The source was determined not to be a vessel or to be 
related to flaring activity or to numerous other activities on 
Northstar Island. Despite much effort by BP, it was not possible to 
associate this sound with any specific activity on the island.
    The unknown sound source was not detectable via similar recorders 
6.5 21.5 km (4-13 mi) northeast of the island, except in one instance 
when the sound included a 130-Hz tone. That tone was detected by four 
instruments at distances of 6.5 14.3 km (4-8.9 mi). The measured rate 
of propagation loss of the tone was 32 dB/tenfold change in distance. 
Most noise recorded during periods in September 2003, when the 
underwater sound emanating from Northstar was strongest, was 
attributable to this sound. As with all sounds produced around 
Northstar, sounds were monitored for potential impacts to bowheads and 
other marine mammals. Results of the bowhead monitoring for 2003 can be 
found in Chapters 7, 8, and 9 in Richardson and Williams [eds]. (2004).
    Comment 9: BP must continue to monitor effects from Northstar 
through 2009 and work with the North Slope Borough (NSB) Science 
Advisory Committee (NSB SAC) to develop an appropriate and 
comprehensive monitoring program
    Response: NMFS agrees. Recently, the NSB SAC reviewed the findings 
in Richardson and Williams [eds]. (2004) and has made recommendations 
for improving future monitoring and data analyses. Representatives from 
these parties discussed the 2005 proposed monitoring plan at the annual 
peer-review meeting that was held in Anchorage, AK on May 10-12, 2005. 
The participants at this meeting agreed that monitoring would continue 
as outlined in BP's application. BP would acoustically monitor the 
sound field each September to monitor bowhead whale calls with a larger 
effort once every 4 years. In addition, BP intends to launch a long 
term monitoring program integrating Northstar monitoring with BP's long 
term environmental monitoring program.
    Comment 10: The Commission recommends that a rigorous monitoring 
program sufficient to detect any non-negligible effects be pursued to 
ensure that the activities are not individually or cumulatively having 
any population level effects on marine mammals and are not adversely 
affecting the availability of marine mammals for subsistence uses by 
Alaska natives.
    Response: Under section 101(a)(5)(A) of the MMPA, NMFS must 
prescribe a monitoring program that the applicant must implement to 
provide information on marine mammal takings. Swartz and Hofman (1991) 
note that a monitoring program should also be designed to support (or 
refute) the finding that the total taking by the activity is not having 
more than a negligible impact on affected species and stocks of marine 
mammals, during the period of the rulemaking. This 6-year monitoring 
program is described in detail in Richardson and Williams [eds] (2004). 
The results from this study help NMFS

[[Page 42524]]

ensure that the activity's impacts on marine mammal species or stocks 
are, in fact, negligible and are not having an unmitigable adverse 
impact on their availability for subsistence uses.
    In addition to monitoring required of BP, it should be recognized 
that research and monitoring of Beaufort Sea marine mammals are also 
conducted by government agencies, or through government agency funding. 
This includes, for example, the Minerals Management Service's aerial 
bowhead whale surveys, an annual population assessment survey for 
bowhead whales, a study on contaminant levels in bowhead whale tissue, 
and a bowhead whale health assessment study. These latter three studies 
are funded by or through NMFS. Information on these projects has been 
provided in the past to the Commission by NMFS. Based on this multi-
faceted monitoring program, NMFS has determined that the current and 
proposed monitoring programs for both open-water and wintertime are 
adequate to identify impacts on marine mammals, both singly from the 
project and cumulatively throughout the industry.

National Environmental Policy Act (NEPA) Concerns

    Comment 11: The Trustees believe that NMFS has not evaluated all 
activities that have occurred or may occur in the Beaufort Sea during 
the effective term of the potential regulations that will add 
considerable noise disturbance and oil spill risks, including 
additional seismic exploration and drilling activities, barge traffic, 
hovercraft traffic, helicopter noise, and other aircraft traffic and 
noise. Past noise disturbances that occurred during the fall bowhead 
whale migratory season have not been adequately addressed.
    Response: The cumulative effects of Northstar construction and 
operation (including oil spill risks) along with barge and aircraft 
traffic noise were addressed in the Corps' Final EIS for Northstar. 
NMFS was a cooperating agency in the preparation of the Northstar EIS 
and adopted that EIS as its own on May 18, 2000 (see 65 FR 34014, May 
25, 2000) when implementing final regulations for the incidental 
harassment of marine mammals during construction and operations at 
Northstar. For this rulemaking, NMFS will review the Corps' Final EIS 
to ensure that the Corps' document continues to accurately assess the 
cumulative impacts from activities in the U.S. Beaufort Sea. If it is 
not adequate, NMFS will consider its options under NEPA. In that 
regard, NMFS welcomes relevant information and data on any impacts 
addressed in the Corps' Final EIS.
    Comment 12: The Trustees state that in the future, seismic surveys 
may be proposed that are related to lands in upcoming lease sales in 
state and federal waters and for additional offshore pipeline routes. 
NMFS must assess the cumulative effects of these disturbances.
    Response: The impact of seismic surveys on the U.S. Beaufort Sea 
environment have been addressed in several lease sale NEPA documents, 
in the Corps' Final EIS for Northstar, and in NMFS' Environmental 
Assessment (EA) on issuing an Incidental Harassment Authorization (IHA) 
for Beaufort Sea seismic (NMFS, 1999). However, no seismic surveys have 
taken place in the U.S. Beaufort Sea since 2000 or 2001 (see 66 FR 
42515, August 13, 2001). If new seismic surveys are proposed, NMFS will 
evaluate these actions as appropriate under the MMPA, NEPA and the 
Endangered Species Act (ESA).
    Comment 13: The Trustees state that the MMS plans to renew its 
permitting of the Liberty offshore oil and gas facility. Accordingly, 
cumulative effects of the Northstar and Liberty facilities during the 
effective term of the potential regulations must be evaluated.
    Response: BP is considering options which could lead to developing 
the Liberty prospect in the Beaufort Sea as a satellite supported by 
either the existing Endicott or Badami operations. Development of 
Liberty was first proposed in 1998 as a stand-alone drilling and 
production facility (see MMS, 2003. Final EIS for the Liberty 
Development and Production Plan). It was put on hold in 2002 pending 
further review of project design and economics. A decision has not been 
made to proceed with developing Liberty, but BP is examining the 
feasibility of designing and permitting Liberty as a satellite field 
(BP, 2005).
    Both the Northstar and Liberty Final EISs analyzed cumulative 
effects from oil production.
    Comment 14: The AEWC recommends that NMFS strongly consider the 
available science on the effects of climate change on shorefast ice as 
an influence on the location of the bowhead migration from year to 
year. Bowhead whales tend to migrate closer to shore in warmer, 
thinner-ice years, and therefore, could come much closer to Northstar 
than is assumed under recent studies or contemplated in BP's 
application. Continued monitoring and analysis must account for the 
probability that any nearshore shift would bring a greater number of 
migrating bowheads within the noise disturbance range and could 
significantly affect the northwesterly heading of the migration (route) 
to a greater degree than NMFS previously considered.
    Response: The period of validity of these proposed regulations and, 
therefore, the period for making MMPA determinations, is 5 years (2005-
2010). Therefore, NMFS believes that the westward migration of bowhead 
whales in relation to shore-fast ice conditions are expected to vary in 
a similar degree to what has been noted by BP since 2000.
    The best scientific data indicates that, between 1979 and 1997, a 
period of 18 years of data collection, bowheads came within 10 km (6.2 
mi) of the site of the Northstar facility only during 1997 (BPXA, 
1999). However, NMFS determined in 2000 (65 FR 34014, May 25, 2000) 
that, because this close-approach occurred in a recent year, a more 
reliable estimate of take can be made by presuming that the bowhead 
take level could occur again once or twice within the next 5 year 
period. Therefore, NMFS determined that an average annual take by 
harassment, due to noise from construction and operation at Northstar, 
as calculated by BP (i.e., 173 (maximum 1,533) per year) would result 
in a maximum of 717 bowheads annually or approximately 9 percent of the 
revised 1993 estimated population size of 8,200 (95 percent CI, 7,200-
9,400) (Hill and DeMaster, 1999; IWC, 1996). NMFS notes that this 
harassment will be limited to a deflection in migration and would be 
considered a taking by Level B harassment. Such a taking would result 
in small numbers being taken and would have no more than a negligible 
impact on bowhead whales.
    From 2000-2003 bowhead whales were monitored acoustically to 
determine the number of whales that might have been exposed to 
Northstar related sounds. Data from 2001-2003 were useable for this 
purpose. The results showed that, during the late summer and early 
autumn of 2001, a small number of bowheads in the southern part of the 
migration corridor (closest to Northstar) were apparently affected by 
vessel or Northstar operations. The best estimates of the numbers of 
bowheads that were apparently ``deflected'' offshore by [gteqt] 2 km 
(1.2 mi) were 19 in 2001, 49 in 2002, and 0 in 2003; these values are 
all <=0.5 percent of the bowhead population (BP, 2004; McDonald and 
Richardson, 2004). However, 2003 was considered a

[[Page 42525]]

moderate to light ice year, not a heavy ice year.
    Scientists believe the relationship through the 1980s is that in 
moderate-light ice years the whales are closer to shore and in heavy 
ice years they are farther offshore. The best reference is Moore 
(2000)(Variability in cetacean distribution and habitat selection in 
the Alaskan Arctic, Autumn 1982-91. Arctic 53(4):448-460). Based on the 
relationship described by Moore, global warming would result in ``on 
average'' light-ice conditions and whales would be more likely to be 
closer to shore than farther away. During 2003 and 2004 the bowhead 
migration corridor has been exceptionally close to shore and the 
shorefast ice could be described as ``light''.
    During the eastward (springtime) migration the shore-fast ice 
margin is approximately 75 km (46.6 mi) from Northstar and no bowheads 
are expected to be harassed during this time period.

Description of Marine Mammals Affected by the Activity

    The following six species of seals and cetaceans can be expected to 
occur in the region of proposed activity and be affected by the 
Nortstar facility: ringed, spotted and bearded seals, and bowhead, gray 
and beluga whales. General information on these species can be found in 
NMFS Stock Assessment Reports. These documents are available at: http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_Program/sars.html#StockAssessment Reports More detailed information on these 
six species can be found in BP's application which is available at: 
http://www.nmfs.noaa.gov/prot_res/PR2/Small_Take/smalltake_info.htm#applications.
    In addition to these six species for which a incidental take 
authorization is sought, other species that may occur rarely in the 
Alaskan Beaufort Sea include the harbor porpoise (Phocoena phocoena), 
killer whale(Orcinus orca), narwhal (Monodon monoceros), and hooded 
seal (Cystophora cristata). Because of the rarity of these species in 
the Beaufort Sea, BP and NMFS do not expect individuals of these 
species to be exposed to, or affected by, any activities associated 
with the planned Northstar activities. As a result, BP has not 
requested these species be included under its incidental take 
authorization. Two other marine mammal species found in this area, the 
Pacific walrus (Odobenus rosmarus) and polar bear (Ursus maritimus), 
are managed by the U.S. Fish and Wildlife Service (USFWS). Potential 
incidental takes of those two species will be the subject of a separate 
application by BP for an LOA from the USFWS.

Potential Effects on Marine Mammals

    The potential impacts of the offshore oil development at Northstar 
on marine mammals involve both acoustic and non-acoustic effects. 
Potential non-acoustic effects could result from the physical presence 
of personnel, structures and equipment. The visual presence of 
facilities, support vessels, and personnel, and the unlikely occurrence 
of an oil spill, are potential sources of non-acoustic effects. There 
is a small chance that a seal pup might be injured or killed by on-ice 
construction or transportation activities.
    Acoustic effects involve sounds produced by activities such as 
power generation and oil production on Northstar Island, heavy 
equipment operations on ice, impact hammering, drilling, and camp 
operations. Some of these sounds were more prevalent during the 
construction and drilling periods, and sound levels emanating from 
Northstar are expected to be lower during the ongoing production 
period. During average ambient conditions, some Northstar-related 
activities are expected to be audible to marine mammals at distances up 
to 10 km (5.4 nm) away. However, because of the poor transmission of 
airborne sounds from the Northstar facility into the water, and their 
low effective source levels, sounds from production operations are not 
expected to disturb marine mammals at distances beyond a few kilometers 
from the Northstar development.
    Responses by pinnipeds to noise are highly variable. Responses 
observed to date by ringed seals during the ice-covered season are 
limited to short-term behavioral changes in close proximity to 
activities at Northstar. During the open-water season responses by 
ringed seals are expected to be even less than during the ice-covered 
season. A major oil spill is unlikely (please see response to comments 
2 and 3 in 66 FR 65923 (December 21, 2001)) for a discussion on 
potential for an oil spill to affect marine mammals in the Beaufort 
Sea), but the impact of an oil spill on seals could be lethal to some 
heavily oiled pups or adults. In the unlikely event of a major spill, 
the overall impacts to seal populations would be minimal due to the 
small fraction of those exposed to recently spilled oil that are likely 
to be seriously affected.
    Responses to Northstar activities by migrating and feeding bowhead 
whales and beluga whales will be short-term and limited in scope due to 
the typically small proportion of whales that will migrate near 
Northstar and the relatively low levels of underwater sounds 
propagating seaward from the island at most times. Limited deflection 
effects may occur when vessels are operating for prolonged periods near 
Northstar. An oil spill is unlikely and it is even less likely to 
disperse into the main migration corridor for either whale species. The 
effects of oiling on bowhead and beluga whales are unknown, but could 
include fouling of baleen and irritation of the eyes, skin, and 
respiratory tract (if heavily oiled).
    Impacts to marine mammal food resources or habitat are not expected 
from any of the continued drilling or operational activities at 
Northstar.

Potential Impacts on Subsistence Use of Marine Mammals

    Inupiat hunters emphasize that all marine mammals are sensitive to 
noise, and, therefore, they make as little extraneous noise as possible 
when hunting. Bowhead whales often show avoidance or other behavioral 
reactions to strong underwater noise from industrial activities, but 
often tolerate the weaker noise received when the same activities are 
occurring farther away. Various studies have provided information about 
these sound levels and distances (Richardson and Malme, 1993; 
Richardson et al., 1995a,b; Miller et al., 1999). However, scientific 
studies done to date have limitations, as discussed in part by Moore 
and Clarke (1992) and in Minerals Management Service (MMS, 1997). 
Inupiat whalers believe that some migrating bowheads are diverted by 
noises at greater distances than have been demonstrated by scientific 
studies (e.g., Rexford, 1996; MMS, 1997). The whalers have also 
mentioned that bowheads sometimes seem more skittish and more difficult 
to approach when industrial activities are underway in the area. There 
is also concern about the persistence of any deflection of the bowhead 
migration, and the possibility that sustained deflection might 
influence subsistence hunting success farther ``downstream'' during the 
fall migration.
    Underwater sounds associated with drilling and production 
operations have lower source levels than do the seismic pulses and 
drillship sounds that have been the main concern of the Inupiat 
hunters. Sounds from vessels supporting activities at Northstar will 
attenuate below ambient noise levels at closer distances than do 
seismic or drillship sounds. Thus, reaction/ deflection distances for 
bowhead whales approaching Northstar are expected to be considerably 
shorter than those for

[[Page 42526]]

whales approaching seismic vessels or drillships (BPXA, 1999).
    Recently, there has been concern among Inupiat hunters that barges 
and other vessels operating within or near the bowhead migration/
feeding corridor may deflect whales for an extended period (J.C. 
George, NSB-DWM, pers. comm to Williams). It has been suggested that, 
if the headings of migrating bowheads are altered through avoidance of 
vessels, the whales may subsequently maintain the ``affected'' heading 
well past the direct zone of influence of the vessel. This might result 
in progressively increasing deflection as the whale progresses west. 
However, crew boats and barges supporting Northstar remain well inshore 
of the main migration corridor. As a result, BP believes this type of 
effect is unlikely to occur in response to these types of Northstar-
related vessel traffic.
    Potential effects on subsistence could result from direct actions 
of oil development upon the biological resources or from associated 
changes in human behavior. For example, the perception that marine 
mammals might be contaminated or ``tainted'' by an oil spill could 
affect subsistence patterns whether or not many mammals are actually 
contaminated. The BP application discusses both aspects in greater 
detail.
    A Conflict Avoidance Agreement/Plan of Cooperation (CAA/Plan) has 
been negotiated between BP, the AEWC, and the North Slope Borough in 
past years, and discussions regarding future agreements are on-going. A 
new Plan will address concerns relating to the subsistence harvest of 
marine mammals in the region surrounding Northstar.

Mitigation

    Mitigation proposed by BP includes avoidance of seal lairs by 100 m 
(328 ft), if new activities occur on the floating sea ice after 20 
March. In addition, BP proposes to mitigate potential acoustic effects 
that might occur due to exposure of whales or seals to strong pulsed 
sounds. If BP needs to conduct an activity capable of producing 
underwater sound with levels [gteqt] 180 or [gteqt] 190 dB re 1 microPa 
(rms) at locations where whales or seals could be exposed, BP proposes 
to monitor safety zones corresponding to those levels. Activities 
producing underwater sound levels [gteqt]180 or [gteqt]190 dB re 1 
microPa (rms) would be temporarily shut down if whales and seals, 
respectively, occur within the relevant radii. The purposes of these 
mitigation measures are to minimize potentially harmful impacts to 
marine mammals and their habitat, and to ensure the availability of 
marine mammals for subsistence purposes.

Monitoring

    The monitoring proposed by BP includes some research components to 
be implemented annually and others to be implemented on a contingency 
basis. Basking and swimming ringed seals will be counted annually by 
Northstar personnel in a systematic fashion to document the long-term 
stability of ringed seal abundance and habitat use near Northstar. BP 
proposes to monitor the bowhead migration in 2005 and subsequent years 
using two Directional Autonomous Seafloor Acoustic Recorders (DASARs) 
to record near-island sounds and two to record whale calls. If BP needs 
to conduct an activity capable of producing underwater sound with 
levels [gteqt]180 or [gteqt]190 dB re 1 microPa (rms) at locations 
where whales or seals could be exposed, BP proposes to monitor safety 
zones defined by those levels. The monitoring proposed would be used in 
estimating the numbers of marine mammals that may potentially be 
disturbed (i.e., taken by Level B harassment), incidental to operations 
of Northstar.

Reporting

    BP proposes to submit annual monitoring reports, with the first 
report to cover the activities from May (or the effective date of these 
regulations) through October 2005 (i.e., the bowhead migration period), 
and subsequent reports to cover activities from November of one year 
through October of the next year. BP proposes that the 2005 report 
would be due on March 31, 2006. For subsequent years, it is proposed 
that the annual report (to cover monitoring during a 12-month November-
October period) would be submitted on 31 March of the following year.
    The annual reports will provide summaries of BP's Northstar 
activities. These summaries will include the following: dates and 
locations of ice-road construction, on-ice activities, vessel/
hovercraft operations, oil spills, emergency training, and major repair 
or maintenance activities thought to alter the variability or 
composition of sounds in a way that might have detectable effects on 
ringed seals or bowhead whales. The annual reports will also provide 
details of ringed seal and bowhead whale monitoring, the monitoring of 
Northstar sound via the nearshore DASAR, estimates of the numbers of 
marine mammals exposed to project activities, descriptions of any 
observed reactions, and documentation concerning any apparent effects 
on accessibility of marine mammals to subsistence hunters.
    BP also proposes to submit a single comprehensive report on the 
monitoring results from 2005 to mid-2009 no later than 240 days prior 
to expiration of the renewed regulations, i.e., by September 2009.
    If specific mitigation is required for activities on the sea ice 
initiated after 20 March (requiring searches with dogs for lairs), or 
during the operation of strong sound sources (requiring visual 
observations and shut-down), then a preliminary summary of the 
activity, method of monitoring, and preliminary results will be 
submitted within 90 days after the cessation of that activity. The 
complete description of methods, results and discussion will be 
submitted as part of the annual report.
    Any observations concerning possible injuries, mortality, or an 
unusual marine mammal mortality event will be transmitted to NMFS 
within 48 hours.

Preliminary Determinations

    NMFS has preliminarily determined that the impact of operation of 
the Northstar facility 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 oil production-
related 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 impact hammering, helicopter traffic, vessel 
traffic, and other general production activity on Seal Island. Sounds 
from production activities on the island are not expected to be 
detectable more than about 5-10 km (3.1-6.2 mi) offshore of the island. 
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.
    The number of potential incidental harassment takes will depend on 
the

[[Page 42527]]

distribution and abundance of marine mammals (which vary annually due 
to variable ice conditions and other factors) in the area of 
operations. However, because the activity is in shallow waters inshore 
of the main migration/feeding corridor for bowhead whales and far 
inshore of the main migration corridor for belugas, the number of 
potential harassment takings of these species and stocks is estimated 
to be small. The results of intensive studies and analyses to date 
(Williams et al., 2004) suggest that the biological effects of 
Northstar on ringed seals are minor (resulting from short distance 
displacement of breathing holes and haul-out sites), limited to the 
area of physical ice disturbance around the island and small in number. 
In addition, no take by injury or death of any marine mammal is 
anticipated, and the potential for temporary (or permanent) hearing 
impairment will be avoided through the incorporation of the mitigation 
measures mentioned in this document. No rookeries, areas of 
concentrated mating or feeding, or other areas of special significance 
for marine mammals occur within or near the planned area of operations.
    Because most of the bowhead whales are east of the Northstar 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 BP and subsistence users.
    Also, while production at Northstar has some potential to influence 
seal hunting activities by residents of Nuiqsut, because (1) the peak 
sealing season is during the winter months, (2) the main summer sealing 
is off the Colville Delta, and (3) the zone of influence from Northstar 
on seals is fairly small, NMFS believes that Northstar oil production 
will not have an unmitigable adverse impact on the availability of 
these stocks for subsistence uses.
    NMFS has preliminarily 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)). In addition, 
there will be an oil spill response program in effect that will be as 
effective as possible in Arctic waters. Accordingly, and because of the 
seasonality of bowheads, NMFS has preliminarily determined that the 
taking of marine mammals incidental to operations at the Northstar oil 
production facility will have no more than a negligible impact on them. 
Also, NMFS has preliminarily determined that there will not be an 
unmitigable adverse impact on subsistence uses of marine mammals.

ESA

    On March 4, 1999, NMFS concluded consultation with the Corps on 
permitting the construction and operation at the Northstar site. The 
finding of that consultation was that construction and operation at 
Northstar is not likely to jeopardize the continued existence of the 
bowhead whale stock. No critical habitat has been designated for this 
species; therefore, none will be affected. Because issuance of a small 
take authorization to BPXA under section 101(a)(5) of the MMPA is a 
Federal action, NMFS has section 7 responsibilities for this action. 
Preliminarily, NMFS has determined that this rulemaking action is not 
different from that analyzed in 1999 in the Biological Opinion. Prior 
to issuing the final rule, if NMFS determines that there are no impacts 
on listed species different from the analysis in the 1999 Biological 
Opinion, NMFS will issue an Incidental Take Statement under section 7 
of the ESA at the time it issues an LOA for this activity.

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 of 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 previous rulemaking, on 
May 18, 2000, NMFS adopted the Corps Final EIS and determined that it 
is not necessary to prepare supplemental NEPA documentation (see 65 FR 
34014, May 25, 2000).

Request for Information

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning BP's application and proposed regulations on 
the taking of marine mammals incidental to construction and operation 
of an offshore oil and gas facility in the U.S. Beaufort Sea. The 
proposed regulations re-promulgate those formerly codified at 
Sec. Sec.  216.200 through 216.210 (expired on May 25, 2005), but 
contain new effective dates in Sec.  216.201; makes minor changes for 
clarity to Sec.  216.204 (the word ``possible'' is removed and the word 
``practicable'' is inserted in its place), Sec.  216.207 (the first 
sentence of paragraph (d) is revised by removing the superfluous phrase 
``, in accordance with Administrative Procedure Act requirements,'') 
and Sec.  216.210 (the first sentence of paragraph (a) is revised by 
removing the phrase ``In addition to complying with the provisions in 
Sec. Sec.  216.106 and 216.208,''); and modifies the monitoring and 
reporting requirements in Sec.  216.206 as noted in this document's 
preamble.
    Prior to submitting comments, NMFS recommends reviewers of this 
document read the responses to comments made previously (see 65 FR 
34014, May 25, 2000; and 66 FR 65923, December 21, 2001), for the 
previous rulemaking and LOAs as NMFS does not intend to address these 
issues further without the submission of additional scientific 
information or policy considerations.

Classification

    This action has been determined to be not significant for purposes 
of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities 
since it would have no effect, directly or indirectly, on small 
businesses. It may affect a small number of contractors providing 
services related to reporting the impact of the activity on marine 
mammals, some of whom may be small businesses, but the number involved 
would not be substantial. Further, since the monitoring and reporting 
requirements are what would lead to the need for their services, the 
economic impact on them would be beneficial. Because of this 
certification, a regulatory flexibility analysis is not required and 
none has been prepared.
    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 Paperwork Reduction Act (PRA) unless that

[[Page 42528]]

collection of information displays a currently valid OMB control 
number. This proposed rule contains collection-of-information 
requirements subject to the provisions of the PRA. These requirements 
have been approved by OMB under control number 0648-0151, and include 
applications for LOAs, and reports.
    The reporting burden for the approved collections-of-information is 
estimated to be approximately 80 hours for the annual applications for 
an LOA, a total of 80 hours each for the winter monitoring program 
reports and a total of 120-360 hours for the interim and final annual 
open-water reports (increasing complexity in the analysis of multi-year 
monitoring programs in the latter years of that program requires 
additional time to complete). These estimates include the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection-of-information. Send comments regarding these burden 
estimates, or any other aspect of this data collection, including 
suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES).

List of Subjects in 50 CFR Part 216

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

    Dated: July 19, 2005.
James W. Balsiger,,
Deputy Assistant Administrator for Regulatory Programs, 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.

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

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

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

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


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 Sec. Sec.  216.106 
and 216.208 include, but may not be limited to, site construction, 
including ice road and pipeline construction, vessel and helicopter 
activity; and oil production activities, including ice road 
construction, and vessel and helicopter activity, but excluding seismic 
operations.
    (a)(1) Northstar Oil and Gas Development; and
    (2) [Reserved]
    (b) The incidental take by harassment, injury or mortality of 
marine mammals under the activity identified in this section is limited 
to the following species: bowhead whale (Balaena mysticetus), gray 
whale (Eschrichtius robustus), beluga whale (Delphinapterus leucas), 
ringed seal (Phoca hispida), spotted seal (Phoca largha) and bearded 
seal (Erignathus barbatus).


Sec.  216.201  Effective dates.

    Regulations in this subpart are effective from September 1, 2005 
through August 31, 2010.


Sec.  216.202  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec.  
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 Sec. Sec.  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 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 practicable, 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 Sec. Sec.  
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.

[[Page 42529]]

Sec.  216.206  Requirements for monitoring and reporting.

    (a) Holders of Letters of Authorization issued pursuant to 
Sec. Sec.  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 new activities potentially 
involving the taking of marine mammals.
    (b) Holders of Letters of Authorization must designate qualified 
on-site individuals, approved in advance by the National Marine 
Fisheries Service, to conduct the mitigation, monitoring and reporting 
activities specified in the Letter of Authorization issued pursuant to 
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) Unless specified otherwise in the Letter of Authorization, the 
Holder of that Letter of Authorization must submit an annual report to 
the Director, Office of Protected Resources, National Marine Fisheries 
Service, no later than March 31 of the year following the conclusion of 
the previous open water monitoring season. This report must contain all 
information required by the Letter of Authorization.
    (e) A final annual comprehensive report must be submitted within 
the time period specified in the governing Letter of Authorization.
    (f) A final comprehensive report on all marine mammal monitoring 
and research conducted during the period of these regulations must be 
submitted to the Director, Office of Protected Resources, National 
Marine Fisheries Service at least 240 days prior to expiration of these 
regulations or 240 days after the expiration of these regulations if 
renewal of the regulations will not be requested.


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 an initial Letter of Authorization in 
accordance with Sec. Sec.  216.106 and 216.208, or a renewal under 
Sec.  216.209.
    (b) The application for an initial Letter of Authorization must be 
submitted to the National Marine Fisheries Service at least 180 days 
before the activity is scheduled to begin.
    (c) Applications for initial Letters of Authorization must include 
all information items identified in Sec.  216.104(a).
    (d) NMFS will review an application for an initial 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 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 
for an initial Letter of Authorization.
    (e) Upon receipt of a complete application for an initial Letter of 
Authorization, and at its discretion, the National Marine Fisheries 
Service may submit the monitoring plan to members of a peer review 
panel for review and/or schedule a workshop to review the plan. Unless 
specified in the Letter of Authorization, the applicant must submit a 
final monitoring plan to the Assistant Administrator prior to the 
issuance of an initial Letter of Authorization.


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 and renewal of each Letter of Authorization will be 
based on a determination that the number of marine mammals taken by the 
activity will be small, that the total number of marine mammals taken 
by the activity as a whole will have no more than a negligible impact 
on the species or stock of affected marine mammal(s), and will not have 
an unmitigable adverse impact on the availability of species or stocks 
of marine mammals for taking for subsistence uses.
    (d) Notice of issuance or denial of a Letter of Authorization will 
be published in the Federal Register within 30 days of a determination.


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, and the Letter of Authorization issued under Sec.  216.208, 
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 issued under Sec. Sec.  216.106 
and 216.208, were undertaken and will be undertaken during the upcoming 
annual period of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec. Sec.  216.106 and 216.208 indicates that a substantial 
modification to the described work, mitigation or monitoring undertaken 
during the upcoming season will occur, the National Marine Fisheries 
Service will provide the public a minimum of 30 days for review and 
comment on the request. Review and comment on renewals of Letters of 
Authorization are restricted to
    (1) New cited information and data that indicates that the 
determinations made in this document are in need of reconsideration,
    (2) The Plan of Cooperation, and
    (3) The proposed monitoring plan.
    (c) A notice of issuance or denial of a Renewal of a Letter of 
Authorization will be published in the Federal Register within 30 days 
of a determination.


Sec.  216.210  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or

[[Page 42530]]

suspension) to the Letter of Authorization by the National Marine 
Fisheries Service, issued pursuant to Sec. Sec.  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 Sec. Sec.  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. 05-14620 Filed 7-22-05; 8:45 am]
BILLING CODE 3510-22-S