[Federal Register Volume 71, Number 44 (Tuesday, March 7, 2006)]
[Rules and Regulations]
[Pages 11314-11324]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2136]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 050630175-6039-02; I.D. 010305B]
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: Final rule.

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SUMMARY: NMFS, upon application from BP Exploration (Alaska), (BP), is 
issuing regulations to govern the unintentional takings of 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. Issuance of regulations, and Letters of Authorization (LOAs) 
under these regulations, governing the unintentional incidental takes 
of marine mammals in connection with particular activities is required 
by the Marine Mammal Protection Act (MMPA) when the Secretary of 
Commerce (Secretary), after notice and opportunity for comment, finds, 
as here, that such takes will have a negligible impact on the species 
and stocks of marine mammals and will not have an unmitigable adverse 
impact on the availability of them for subsistence uses. These 
regulations do not authorize BP's oil development activities as such 
authorization is not within the jurisdiction of the Secretary. Rather, 
NMFS' regulations together with Letters of Authorization (LOAs) 
authorize the unintentional incidental take of marine mammals in 
connection with this activity and prescribe methods of taking and other 
means of effecting the least practicable adverse impact on marine 
mammal species and their habitat, and on the availability of the 
species for subsistence uses.

DATES: Effective from April 6, 2006 through April 6, 2011.

ADDRESSES: 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/pr/permits/incidental.htm
    Documents cited in this final rule may also be viewed, by 
appointment, during regular business hours at this address.
    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 other means of effecting the least practicable adverse 
impact 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

[[Page 11315]]

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 last LOA expired on May 25, 2005, when 
the regulations expired.
    On August 30, 2004, BP requested 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. Because the previous regulations have expired, this will 
require new regulations to be promulgated. 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/pr/permits/incidental.htm

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 program 
ended in May, 2004 and the drill rig either will be demobilized by 
barge or kept on the island for potential future well-workover or other 
drilling activities (BP, 2005). 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 on the 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 several 
organizations. NMFS responded to those comments on July 25, 2005 (70 FR 
42420) in conjunction with issuance of proposed rulemaking on this 
action. During the 30-day public comment period on the proposed rule, 
NMFS received comments from BP, the Marine Mammal Commission 
(Commission), the Minerals Management Service (MMS), 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 one citizen. BP comments are not addressed in this section 
but are noted elsewhere in this document and referenced as BP (2005). 
The AEWC notes its appreciation for the work that BP has put into its 
application, that NMFS has put into the preparation of the draft 5-year 
regulations and looks forward to continuing its cooperative 
relationship with both BP and NMFS.
    In that regard, NMFS notes that, in accordance with its regulations 
(50 CFR 216.107(a)(3)), it convenes a scientific peer-review meeting 
annually to discuss, in addition to other MMPA authorizations, the 
results of the Northstar monitoring program and suggested improvements 
to that program. The 2005 peer-review meeting was held on May 10-12, 
2005 in Anchorage, AK and included discussion on the Alaska North Slope 
Borough's (NSB) Science Advisory Committee (SAC) review of the 
comprehensive report on monitoring conducted at Northstar under the 
previous regulations (Richardson and Williams [eds], 2004), and the 
current BP application and monitoring plan, as discussed later in this 
document.

MMPA Concerns

    Comment 1: The AEWC requested clarification of NMFS using the term 
``Northstar Oil and Gas Development'' in 50 CFR 216.200(a)(1). While 
the specified geographic region would appear to be ``state and/or 
Federal waters of the Beaufort Sea,'' the phrase ``specified in 
paragraph (a) of this section'' would seem to indicate a localized area 
around Northstar.
    Response: The regulations were designed to include all oil and gas 
development (but not oil exploration) activities within the U.S. 
Beaufort Sea. The ``specified geographic region'' designation required 
by section 101(a)(5)(A) of the MMPA is ``state and/or Federal waters of 
the Beaufort Sea.'' The applicant that is taking marine mammals in this 
case is the Northstar Oil and Gas Development project within that 
region.
    Comment 2: The Trustees state that the Secretary must consider all 
past, present, and future activities that may affect a marine mammal 
species or stock to determine whether proposed operations have a 
``negligible impact on such species and stock.'' The Trustees state 
that NMFS has not evaluated all activities that have occurred and may 
occur in the Beaufort Sea during the effective term of 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 (including 
seismic or other geological or geophysical surveys related to a 
potential ``over-the-top'' offshore pipeline route) that occurred 
during the fall bowhead whale migratory season have not been adequately 
assessed. In the future, seismic surveys may be proposed related to 
lands in upcoming lease sales in state and Federal offshore waters and

[[Page 11316]]

for additional pipeline routes. NMFS must assess the cumulative effects 
of these disturbances. Similarly, the AEWC states that NMFS must review 
cumulative effects in its review of Incidental Take applications if the 
Secretary is to continue to fulfill the statutory requirements of the 
MMPA.
    Response: MMPA section 101(a)(5)(A) requires the Secretary to issue 
an incidental take authorization for a specified activity, provided the 
requisite findings (including negligible impact) are made. There is 
nothing in the plain language of the provision or in NMFS' implementing 
regulations that requires a cumulative effects analysis in connection 
with issuing an incidental take authorization. We also note the 
legislative history on this section of the MMPA makes no mention of 
cumulative effects analyses. To the extent required under the National 
Environmental Policy Act (NEPA), NMFS considers cumulative impacts when 
it prepares environmental analyses for marine mammal incidental take 
applications (see 40 CFR 1508.25(c) and 1508.7). However, while the 
MMPA does not require an analysis of the impacts from non-related 
activities, such as seismic, the potential for cumulative impacts by 
offshore oil development and seismic activity on the subsistence 
lifestyle of the North Slope residents remains a concern and is being 
addressed, as appropriate, under NEPA.
    For most activities mentioned in the Trustees' comment, discussion 
was provided in the supporting Final Environmental Impact Statement 
(FEIS) (Corps, 1999) for Northstar. Where the Corps' FEIS did not 
address a certain activity and an additional NEPA analysis is 
warranted, NMFS prepares such documentation. For example, NMFS prepared 
an Environmental Assessment (EA) for additional seismic surveys in the 
Beaufort Sea (see 65 FR 21720, April 24, 2000); the National Science 
Foundation prepared and released for public comment an EA for 
scientific seismic activities in the Arctic Ocean (see 70 FR 47792, 
August 15, 2005 wherein NMFS issued a Finding of No Significant 
Impact); and MMS is currently preparing a Programmatic EA for multiple 
seismic surveys in the Beaufort and Chukchi seas in 2006. In compliance 
with the NEPA, these EAs all address cumulative impacts. For the 
``over-the-top'' pipeline survey, that survey was conducted in 2001 
under an Incidental Harassment Authorization (IHA) (see 66 FR 42515, 
August 13, 2001). An analysis conducted under NEPA by NMFS concluded 
that the activity was Categorically Excluded since it was the only 
seismic activity being conducted in the Beaufort Sea that year, that 
noise-related impacts were adequately addressed in the 2000 EA, and the 
2001 survey would have lower impacts on the environment than those 
previously addressed activities. Future over-the-top surveys remain 
speculative at this time and do not need to be addressed further. 
Although impacts from use of a hovercraft, a recent additional mode of 
transportation at Northstar, have not been specifically analyzed, it 
replaced other forms of transportation (that were analyzed) that have a 
greater potential impact on the marine environment.

Marine Mammal Concerns

    Comment 3: The AEWC appreciates NMFS' clarification that the 
Alaskan Beaufort Sea is both migratory and feeding habitat. The AEWC 
would appreciate a formal acknowledgment, or similar statement, of this 
finding in the preamble to the final rule.
    Response: As mentioned in response to comment (RTC) 3 in the 
proposed rule, 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 (east of the Northstar facility) 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 (west of the Northstar facility) during the fall hunt, at 
least 75 percent had been feeding prior to death. Wursig et al. (2002) 
(in Richardson and Thomson (2002)) found that bowheads in the eastern 
Beaufort Sea between Flaxman Island (146[deg] W lat.) and Herschel 
(139[deg] W lat.) Island that feeding was the most common activity in 
September/early October in most years studied (34 percent overall), 
followed by traveling (31 percent), socializing (18 percent) and other 
activities (4 percent). Overall however, the importance of the eastern 
Beaufort Sea area for late-summer feeding by bowheads varied 
considerably from year to year. The estimated proportion of time spent 
feeding during late summer and autumn ranged from 9 to 66 percent in 
different years (Lowry and Sheffield, 2002). Overall, Richardson and 
Thomson (2002) indicate that bowheads spent too little time in the 
eastern Beaufort study area for only a short period in late summer/
fall, averaging about 4 days. That, they state, is too little time to 
allow the average bowhead to consume more than a small fraction of its 
annual dietary intake. Assuming that the same results would be valid 
for the central Beaufort Sea where Northstar is located, NMFS concludes 
that bowhead whales will feed opportunistically during the fall 
migration but that no areas of concentrated feeding occur on a multi-
year basis within or near the planned area of operations.

Marine Mammal Impact Concerns

    Comment 4: The Trustees state that NMFS must evaluate the impacts 
of the ``mystery'' noise source associated with Northstar production.
    Response: The unknown noise source that occurred only during 2003 
was evaluated in Richardson and Williams [eds] (2004). That document is 
part of NMFS' Administrative Record on this action. Additional 
information can be found in RTC 8 in the proposed rule (70 FR 42520, 
July 25, 2005).
    Comment 5: The Trustees state that MMS plans to renew its 
permitting of the Liberty offshore oil and gas facility. Accordingly, 
the cumulative effects of Northstar and Liberty facilities during the 
effective term of the potential regulations must be evaluated.
    Response: BP is considering its 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. These two documents are part of NMFS' 
Administrative Record on this action.
    Comment 6: The Trustees state that, in order for the Secretary to 
determine that the activity will have a negligible impact on marine 
mammal species and stocks, the Secretary must consider changes in the 
regulatory regime governing proposed operations. The Secretary must 
also use the best scientific information available. In that regard, the 
Trustees state that 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

[[Page 11317]]

amount of discharge in the event of an accidental spill.
    Response: On December 21, 2001 (66 FR 65923), NMFS published a 
notice of issuance of an LOA to BP for oil production activities at 
Northstar. This document contained an evaluation of the potential for 
an oil spill to occur at Northstar and for that oil spill to affect 
bowhead whales and other marine mammals. Based on the information 
contained in the Northstar FEIS (Corps, 1999), NMFS concluded, at that 
time, that the potential for an oil spill to occur and affect marine 
mammals was low. As a result, NMFS determined that the findings of 
negligible impact on marine mammals from the Northstar facility that 
was made in the final rule (65 FR 34014, May 25, 2000) were 
appropriate. NMFS also determined that its finding of no unmitigable 
adverse impact on bowhead availability for subsistence hunting was 
appropriate. No information has been provided to, or found by, NMFS to 
indicate that the earlier decision was not correct and needed 
reevaluation. The fact that the State of Alaska modified its statutes 
to define oil discharge plans and relevant regulations is not relevant 
for the determinations needed to be made by NMFS for this action since 
well drilling at Northstar has been completed and BP has incorporated 
the best available technology at Northstar to virtually eliminate the 
potential for a significant oil spill to occur. This finding is 
supported by BP documenting and reporting activities at Northstar.

Subsistence Concerns

    Comment 7: The AEWC notes that the Open Water Season Conflict 
Avoidance Agreement is entered among the operator, the AEWC, and local 
Whaling Captains' Associations. The North Slope Borough is not a party.
    Response: NMFS has updated this document accordingly.

Monitoring Concerns

    Comment 8: The Commission recommends that NMFS consult with the 
applicant, the MMS, and other industry and government entities, as 
appropriate, to develop a collaborative long-term Arctic monitoring 
program.
    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 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. That report has been reviewed by the SAC. Its 
findings are discussed later in this document.
    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, MMS' aerial bowhead whale surveys, an 
annual population assessment survey for bowhead whales, a study on 
contaminant levels in bowhead whale tissue, and a bowhead whale health 
assessment study. These latter three studies are funded by or through 
NMFS. Information on these projects has been provided 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.
    Comment 9: The Commission is ``concerned about the likely effects 
of climate change on sea ice in the Arctic and their corresponding 
effects, by themselves and in conjunction with activities such as the 
Northstar project, on ringed seals and polar bears and availability to 
Alaska Natives who depend upon them for subsistence.'' The Commission 
recommends that the potential effects of climate change be factored, as 
appropriate and practical, into long-term monitoring and mitigation 
programs.
    Response: NMFS does not believe that the issuance of LOAs to BP for 
the incidental taking (by harassment) of marine mammals over the next 5 
years is the appropriate venue for the study of long-term climate 
change. NMFS understands that studies on Arctic climate change impacts 
are being proposed by other federal science agencies.
    It should be noted that Northstar and related monitoring includes 
the collection of data and information on ringed seal and bowhead whale 
distribution and abundance. Correlation of that information with 
information on yearly shore-fast ice distribution and thickness 
provides some information on short-term climate effects.
    Comment 10: The AEWC requests NMFS clarify that the Richardson and 
Williams [eds], 2004 monitoring study on which NMFS relies for its 
findings is under revision; therefore, NMFS should specify that its 
findings are provisional pending the results of the reanalysis. While 
NMFS notes the SAC report in the preamble to the proposed rule, NMFS 
does not address the SAC's analysis and recommendations. The final rule 
should recognize the SAC's recommendation for re-analysis and the Open-
Water Meeting participants' agreement to those recommendations. Meeting 
participants also agreed that BP would reduce its survey effort for 
2005 so that it could devote resources to the recommended re-analysis.
    Response: The SAC reviewed Richardson and Williams [eds] (2004) 
between March 7 and 9, 2005. That review was released by the NSB in 
April, 2005 and is part of NMFS' Administrative Record for this action. 
The SAC's opinion, that the conclusions in the Richardson and Williams 
[eds] report are generally supported by the data presented, is 
influenced in large part by the general findings that: (1) the impacts 
from Northstar have likely been minimal, and (2) the production noise 
from the island is relatively low. The sound measurement data suggest 
that noise from the island is relatively low, and it appears that the 
loudest sources are vessel noise, which is apparently most responsible 
for the observed effects. Concerns were raised by the SAC mostly in 
regard to data analysis. BP is currently revising the 2004 monitoring 
report and will submit its final report shortly.
    Comment 11: As the AEWC notes, the SAC report states that the 
assumption that bowhead call rates are not influenced by industrial 
sounds is not supported. Changes in calling behavior can be an 
indicator of disturbance, whether or not displacement occurs, and can 
provide important information on potential impacts to subsistence 
hunting. From the Northstar perspective, this point is especially 
important in the cumulative effects context.
    Response: NMFS agrees. The SAC noted that calling behavior within 
the analysis area was not analyzed. The SAC recommended that calling 
behavior be analyzed as extensively as possible from the data that has 
been collected.
    Comment 12: The AEWC notes that Northstar could contribute 
cumulatively to push the bowhead migration offshore. In that regard, 
the AEWC, based on the SAC's recommendations and

[[Page 11318]]

deliberations during recent Open Water (Peer-Review) Meetings, is under 
the impression that BP intends to evaluate noise and bowhead behavior 
to the east and west of Northstar. This information is essential for an 
understanding of the initiation and duration of a response. It is also 
essential to NMFS and other permitting agencies when considering the 
timing and location of future proposed activities in the vicinity of 
Northstar (as pointed out by the Corps in the Northstar EIS). The AEWC 
noted that NMFS should note the need to analyze Northstar data for 
impacts on bowhead calling behavior.
    Response: The SAC believes it is essential to continue monitoring 
noise 450 m north of Northstar each year during the autumn bowhead 
migration, using one or more DASARs (Directional Autonomous Seafloor 
Acoustic Recorder) or other device, providing data in near real-time, 
if possible. Regardless of the outcome of the reanalysis of previously 
collected data at Northstar, the SAC recommends that a full acoustical 
array data collection and analysis (as in 2001 - 2004) should be 
conducted once every 4 years, with limited monitoring in interim years. 
This full array may or may not provide the same spatio-temporal 
coverage as previous years but should be of comparable scope, if not 
greater. Alternative DASAR arrays might extend further north or cover 
more east-west range. This recommendation was accepted by the 
participants at the Beaufort Sea Open Water Peer Review Meeting that 
was held in Anchorage, AK on May 10-12, 2005.
    Comment 13: The AEWC objects to NMFS statements that, because the 
fall subsistence hunts have been successful in recent years, this 
demonstrates that there is no impact to the bowhead subsistence hunt 
from operations at Northstar. The AEWC notes that there have been many 
years in which the fall bowhead whale migration has been subject to 
disturbance, in some cases, substantial. The whaling captains have 
still succeeded in taking whales because they have looked for ways to 
hunt in spite of adverse impacts, by using larger boats and GPS 
locators. This increases risks and dollar cost for the subsistence 
hunt.
    Response: When promulgating incidental take regulations and issuing 
LOAs for the Northstar oil production facility, NMFS must determine 
that the activity is not having an unmitigable adverse impact on 
subsistence uses of marine mammals. Unmitigable adverse impact means an 
impact resulting from the specified activity: (1) that is likely to 
reduce the availability of the species to a level insufficient for a 
harvest to meet subsistence needs by: (i) causing the marine mammals to 
abandon or avoid hunting areas; (ii) directly displacing subsistence 
users; or (iii) placing physical barriers between the marine mammals 
and the subsistence hunters; and (2) that cannot be sufficiently 
mitigated by other measures to increase the availability of marine 
mammals to allow subsistence needs to be met (50 CFR 216.103). For the 
Northstar facility, a Conflict Avoidance Agreement (CAA) has been 
negotiated between BP, the AEWC, and the local Whaling Captains' 
Associations in past years. A signed CAA indicates to NMFS that, while 
there might be impacts to the subsistence hunt by Northstar, they do 
not rise to the level of having unmitigable adverse impacts.
    Comment 14: The AEWC noted that in the late summer and fall of 
2003, tug and barge operations hauled equipment from Camp Lonely to 
West Dock for two months prior to the bowhead subsistence hunt at 
Barrow and then during the hunt into October. Bowheads harvested in 
early September near Cross Island by Nuiqsut hunters were taken 
relatively near the island within normal hunting distances. However, 
whales harvested one month later by Barrow hunters--west of both 
Northstar and the tug and barge operations--appeared to be farther 
offshore than normal. Based on the fall 2003 observations, it appears 
that the migration could have been deflected somewhere west of Cross 
Island and could have remained farther offshore than normal past Pt. 
Barrow. As a result, NMFS must take account of the possibility that 
seemingly ``small'' disturbances, when spread across the bowhead 
migration route, can lead to a deflection or other disturbance of the 
bowhead migration.
    Response: This information is more relevant to the 2005 tug-and-
barge IHA (see 70 FR 47809, August 15, 2005). This activity was not 
associated with the Northstar facility. For this same activity in 2005, 
the AEWC signed a CAA with the activity sponsors that indicated this 
barging would not have an unmitigable adverse impact on the 
availability of bowheads for subsistence hunting. Implementation of a 
mitigation measure ceasing barging operations by August 15th and not 
resuming until later in the fall was determined by NMFS to be an 
appropriate mitigation measure. In regard to the 2003 barging activity, 
NMFS did not issue an IHA for this activity and, therefore, does not 
have any record of timing of the transits and potential impacts that 
could be assessed by marine mammal monitors. Whether this activity 
impacted the fall Barrow hunt or whether other factors (such as storms) 
played a role is unclear. Without empirical data on distribution of 
whales during the bowhead hunt, and locations of the harvest, cause-
and-effect relationships remain speculative.

Mitigation Concerns

    Comment 15: The AEWC recommends that NMFS clarify that the 180-dB 
monitoring will be required at any time of the year during which 
activities emitting these sound levels are proposed.
    Response: If an activity at Northstar produces sound pressure 
levels (SPLs) at a level such that SPLs equal to or greater than 180 dB 
re 1 microPa (rms) extend beyond the island, BP is required to monitor 
the potential impacts from that activity during any time of the year. 
However, during the winter, when no cetaceans are in the vicinity of 
Northstar, monitoring would take place for any activity with an SPL 
extending beyond the island perimeter at a level of 190 dB or above, 
the Level A criterion for pinnipeds.
    Comment 16: The AEWC notes that even with a safety zone shut-down 
corresponding to 180 dB, bowhead whales will not be available to 
subsistence hunters at distances quite far beyond that noise level. 
Therefore, reference to mitigation of impacts on subsistence by 
monitoring a safety zone for preventing Level A harassment is 
inappropriate and misleading.
    Response: NMFS agrees. BP designed, and NMFS approved, Northstar 
mitigation measures to: (1) prevent, or mitigate to the greatest extend 
practicable, hearing impairment or hearing injury to marine mammals; 
and (2) to ensure that Northstar activities are not having an 
unmitigable adverse impact on the subsistence harvests of marine 
mammals. The first goal is accomplished through monitoring safety zones 
to prevent injury, while the second is implemented through a 
prohibition on conducting, to the maximum extent practicable, 
activities that will result in SPLs exceeding 180 dB beyond the 
confines of the Northstar facility.

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 
Northstar facility: ringed, spotted and bearded seals, and bowhead, 
gray and beluga whales. General information on these species can be 
found in the NMFS Stock Assessment Report. The Alaska document is 
available at: http://

[[Page 11319]]

www.nmfs.noaa.gov/pr/readingrm/MMSARS/sar2003akfinal.pdf 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 an 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 
MMPA Incidental Take application by BP 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 RTCs 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 
that would be exposed to recently spilled oil and 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 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 smaller 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 whales approaching seismic vessels or drillships 
(BP, 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 Michael 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, and NMFS agrees, that 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 CAA/Plan of Cooperation (CAA/Plan) has been negotiated between 
BP, the AEWC, and the local Whaling Captains' Associations in past 
years,

[[Page 11320]]

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 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 will 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 respectively could be exposed, BP will 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 this mitigation measure is 
to minimize potentially harmful impacts to marine mammals and their 
habitat. In addition, BP will prohibit, to the maximum extent 
practicable, activities that will result in SPLs exceeding 180 dB 
beyond the confines of the Northstar facility during the bowhead 
subsistence hunt, in order to ensure the availability of marine mammals 
for subsistence purposes.

Monitoring

    The monitoring required of 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 
will monitor the bowhead migration in 2005 and subsequent years using 
two 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 will monitor 
safety zones defined by those levels. The monitoring 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.

SAC Review

    In accordance with agreements made at NMFS' 2004 scientific peer-
review meeting in Anchorage AK, that the information and data analysis 
contained in Richardson and Williams [eds] (2004) should undergo a more 
in-depth scientific analysis and review, in March 2005, the SAC 
completed its review of this multi-year report on monitoring conducted 
at Northstar. They also reviewed this document in the context of the 
current BP application and monitoring plan. That review was released by 
the NSB in April, 2005 and was the subject of additional discussion at 
NMFS' 2005 peer-review meeting. It is also part of NMFS' Administrative 
Record for this action. The SAC concluded that while the effect of 
Northstar on the distribution of bowheads has not yet been determined, 
the overall monitoring was carried out well and the analysis approach 
was reasonable.
    However, the SAC was unable to conclude that the effect of 
Northstar on the distribution of whales has been determined, to the 
extent that it could be, until some additional analyses have been 
carried out, using the data previously collected. There are no results 
that describe how the displacement in the analysis area may affect 
distribution outside the analysis area. If the analysis is improved so 
as to provide reasonable determination of displacement within the 
analysis area, the SAC concludes reasonable predictions of future 
displacement can be made in the analysis area given measurements of 
future sound propagation remain at or below current levels.
    The SAC's opinion, that the conclusions in the cited BP monitoring 
report are generally supported by the data presented, is influenced in 
large part by the general findings that: (1) the impacts from Northstar 
have likely been minimal, and (2) the production noise from the island 
is relatively low. The sound measurement data suggest that noise from 
the island is relatively low, and it appears that the loudest sources 
are vessel noise, which is apparently most responsible for the observed 
effects. The SAC's concerns were mostly in regard to the data analysis, 
such as use of an Industrial Sound Index, that the quantile regression 
analysis be rerun using different predictors; that auto-correlation of 
bowhead call distances was not accounted for in fitting the quantile 
regression. The SAC also noted that aircraft noise was not adequately 
analyzed.
    The SAC noted that a key supposition of the Northstar study was 
that there was a dose-response relationship underlying the whales' 
response to the noise from Northstar. Because of the very low levels of 
steady production noise from Northstar during the study period, this 
supposition was not demonstrated. Effects on call behavior, a key focus 
of the study objectives, were not examined in any depth. The 
statistical analysis approach was generally well conceived, but some 
revisions and extensions are strongly suggested. It should also be 
determined if the statistical approach used is appropriate, if in fact, 
no dose-response relationship can be established.
    On future monitoring, the SAC believes it is essential to continue 
monitoring noise 450 m (1476.4 ft) north of Northstar each year during 
the autumn bowhead migration, using one or more DASARs or other device, 
providing data in near real-time, if possible. Regardless of the 
outcome of the data reanalysis, the SAC recommends that a full 
acoustical array data collection and analysis (as in 2001 - 2004) 
should be conducted once every 4 years, with limited monitoring in 
interim years. This full array may or may not provide the same spatio-
temporal coverage as previous years but should be of comparable scope, 
if not greater. (Alternative arrays might extend further north or cover 
more east-west range).
    Finally, the SAC recommended placement of one nondirectional 
hydrophone (plus one or more redundant placements) at a position to be 
chosen as follows: (a) the location should be one used in 2001-4, and 
(b) the location should be the one that maximizes the proportion of the 
migration recorded. This is not a high scientific priority, but may 
provide useful information.
    In addition to this regular schedule, the SAC recommends a full 
field study and subsequent analysis should be carried out immediately 
if analysis of the most recent available data indicate it to be 
necessary.
    BP is currently revising the 2004 monitoring report and will submit 
its final report shortly.

Peer-Review Meeting

    On May 10, 2005, the Beaufort Sea Open Water Peer-Review Meeting 
was held in Anchorage, AK to discuss several activities proposed for 
the Beaufort Sea during 2005. One of the actions was a review of the 
monitoring plan for the upcoming 5-year period. After presentations by 
BP and the SAC, the workshop participants agreed that BP should 
undertake a monitoring program as described in the previous section.

[[Page 11321]]

Reporting

    BP will submit annual monitoring reports, with the first report to 
cover the activities from January, 2006 through October 2006 (i.e., the 
end of the bowhead migration period), and subsequent reports to cover 
activities from November of one year through October of the next year. 
The 2006 report would be due on March 31, 2007. For subsequent years, 
the annual report (to cover monitoring during a 12-month November-
October period) would be submitted on 31 March of the following year.
    As detailed in the applicable LOA, an annual report 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 report 
will also provide details of ringed seal and bowhead whale monitoring, 
the monitoring of Northstar sound via either the nearshore DASAR (or 
the DASAR array when that larger-scale monitoring program takes place), 
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 will also submit a single comprehensive report on the monitoring 
results from 2006 to mid-2010 no later than 240 days prior to 
expiration of the renewed regulations, i.e., by September 2010.
    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.

Determinations

    NMFS has 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 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. Mitigation measures to avoid an 
unmitigable adverse impact on the availability of bowhead whales for 
subsistence needs are determined annually during consultations between 
BP and the bowhead subsistence users. When appropriate, these 
mitigation measures are incorporated into the annual LOA issued to BP 
by NMFS. Mitigation measures required by NMFS include a prohibition on 
new drilling into oil-bearing strata during either open water or 
spring-time broken ice conditions and limitations on aircraft flights 
during the bowhead migration. As a result of these mitigation measures 
and conclusion of an annual CAA, NMFS has determined that there will 
not be an unmitigable adverse impact on subsistence uses of bowhead 
whales.
    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 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 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 
determined that there will not be an unmitigable adverse impact on the 
availability of marine mammals for subsistence uses.

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

[[Page 11322]]

for this species; therefore, none will be affected. NMFS has determined 
that this rulemaking action will not have effects beyond what was 
analyzed in 1999 in the Biological Opinion.

NEPA

    On February 5, 1999 (64 FR 5789), the Environmental Protection 
Agency 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). As no 
new scientific information has been obtained since publication of that 
Final EIS that would change the analyses in that Final EIS, additional 
NEPA analyses are not warranted.

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 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration at the proposed rule stage, that this 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. The factual basis for this certification is found 
in the proposed rule. No comments were received on that certification 
or the economic impacts of this rule. As a result, no final regulatory 
flexibility analysis was 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 collection of information 
displays a currently valid OMB control number. This 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: March 1, 2006.
James W. Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

0
For reasons set forth in the preamble, 50 CFR part 216 is amended as 
follows:

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

0
1. The authority citation for part 216 continues to read as follows:

    Authority: 16 U.S.C. 1361 et seq.

0
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 Level A harassment, Level B harassment 
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 April 6, 2006 
through April 6, 2011.


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 Level A and 
Level B harassment 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.

[[Page 11323]]

Sec.  216.203  Prohibitions.

    Notwithstanding takings contemplated in Sec.  216.200 and 
authorized 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 Level A or Level B harassment 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.


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 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 or revoked, 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.

[[Page 11324]]

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 and accepted by the National Marine Fisheries 
Service, and of 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 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. 06-2136 Filed 3-6-06; 8:45 am]
BILLING CODE 3510-22-S