[Federal Register Volume 65, Number 102 (Thursday, May 25, 2000)]
[Rules and Regulations]
[Pages 34014-34032]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 00-13184]
[[Page 34013]]
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Part IX
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 216
Taking and Importing Marine Mammals; Taking Marine Mammals lncidental
to Construction and Operation of Offshore Oil and Gas Facilities in the
Beaufort Sea; Final Rule
Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Rules
and Regulations
[[Page 34014]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 990901241-0116-02; I.D. 123198B]
RIN 0648-AM09
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), 900 East
Benson Boulevard, Anchorage, AK 99519 (BPXA) issues regulations to
govern the unintentional take of a small number of marine mammals
incidental to construction and operation of offshore oil and gas
facilities at the Northstar development in the Beaufort Sea in state
and Federal waters. Issuance of regulations governing unintentional
incidental takes 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 BPXA's activity as such authorization is
not within the jurisdiction of the Secretary. Rather, these regulations
authorize the unintentional incidental take of marine mammals in
connection with such activities and prescribe methods of taking and
other means of effecting the least practicable adverse impact on the
species and its habitat, and on the availability of the species for
subsistence uses.
DATES: Effective May 25, 2000, until May 25, 2005.
ADDRESSES: A copy of the updated application, Technical Monitoring
Plan, Biological Opinion, Environmental Assessment (EA), and a list of
the references used in this document may be obtained by writing to
Donna Wieting, Chief, Marine Mammal Conservation Division, Office of
Protected Resources, National Marine Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910-3226, or by telephoning one of the
contacts listed here (see FOR FURTHER INFORMATION CONTACT).
Comments regarding the burden-hour estimate or any other aspect of
the collection of information requirement contained in this rule should
be sent to the Chief, and to the Office of Information and Regulatory
Affairs, Office of Management and Budget (OMB), Attention: NOAA Desk
Officer, Washington, DC 20503.
FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead (301) 713-
2055, Brad Smith, (907) 271-5006.
SUPPLEMENTARY INFORMATION:
Background
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs
the Secretary to allow, upon request, the incidental, but not
intentional taking of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and regulations are
issued.
Permission may be granted for periods of 5 years or less if the
Secretary finds that the taking will have a negligible impact on the
species or stock(s) of affected marine mammals, will not have an
unmitigable adverse impact on the availability of the species or
stock(s) for subsistence uses, and if regulations are prescribed
setting forth the permissible methods of taking and the requirements
pertaining to the monitoring and reporting of such taking.
Summary of Request
On November 30, 1998, NMFS received an application for Letters of
Authorization (LOAs) granting an incidental, small take exemption under
section 101(a)(5)(A) of the MMPA from BPXA to take marine mammals
incidental to construction and operation of offshore oil and gas
facilities at the Northstar and Liberty developments in the Beaufort
Sea in state and Federal waters. On March 1, 1999 (64 FR 9965), NMFS
published an advance notice of proposed rulemaking (ANPR) on BPXA's
application and invited interested persons to submit comments,
information, and suggestions concerning the application, and the
structure and content of regulations if the application is accepted.
During the 30-day comment period on that notice, comments were received
from the Marine Mammal Commission (MMC), Greenpeace Alaska
(Greenpeace), the Alaska Eskimo Whaling Commission (AEWC), the North
Slope Borough (NSB), and the Inupiat Community of the Arctic Slope.
Those comments were addressed in the preamble to the proposed rule
which was published on October 22, 1999 (64 FR 57010).
Because of delays in construction during 1999, and in issuing a
proposed rule on this matter, on October 1, 1999, BPXA updated their
application to NMFS. Among other things, the revised application
removed from this rulemaking a request for a take of marine mammals
incidental to construction and operation at Liberty. The revised
application is available upon request (see ADDRESSES). Following is a
brief description of the proposed scope of work for the Northstar
project. For more detailed descriptions please refer to the BPXA
application.
Description of the Activity
BPXA proposes to produce oil from the Northstar Unit offshore oil
development. This development will be the first in the Beaufort Sea
that uses a subsea pipeline to transport oil to shore and then into the
Trans-Alaska Pipeline System. The Northstar Unit is located on Seal
Island between 2 and 8 miles (mi)(3.2 and 12.9 kilometers (km))
offshore from Pt. Storkersen, AK. This unit is adjacent to the Prudhoe
Bay industrial complex and is approximately 54 mi (87 km) northeast of
Nuiqsut, a Native Alaskan community.
Construction began in December 1999 with the construction of ice
roads. Both island construction and offshore pipeline installation is
scheduled to occur in 2000. Construction activity includes the
construction of several ice roads, one from West Dock and Pt. McIntyre
to the Northstar gravel mine, one from the Kuparuk River delta mine
site to Seal Island, and one along the pipeline route to Seal Island.
The gravel-haul road will have a parallel alternate road to transport
service equipment, construction materials and alternate gravel hauling
when maintenance or repair of the main ice road is required. In
addition to these main ice roads it is expected that three to four
access roads will be cleared of snow to allow light vehicle traffic
between the pipeline construction activities and the gravel-haul ice
road. These on-ice access roads will have the snow cleared regularly,
with intermittent flooding to maintain safe traffic conditions.
It is estimated that during the winter approximately 16,800 large-
volume haul trips between the onshore mine site and a reload area in
the vicinity of Egg Island, and 28,500 lighter dump truck trips from
Egg Island to Seal Island will be necessary to transport construction
[[Page 34015]]
gravel to Seal Island. An additional 300 truck trips will be necessary
to transport concrete-mat slope protection materials to the island.
Construction of a gravel island work surface for drilling and oil
production facilities, and the construction and installation of two 10-
inch (0.25-m) pipelines, one to transport crude oil and one for gas for
field injection, will take place during the winter and into the open
water season of 2000, while the transport and installation of the drill
rig and associated equipment will occur during the summer, ending
around September 1, 2000. The two pipelines will be buried together in
a single trench. During the summer barges are expected to make
approximately 90 to 100 round-trips from Prudhoe Bay or Endicott to
support construction.
The operational phase will begin with drilling as early as the
fourth quarter of 2000, and will continue for about 2 years. Power will
be supplied by diesel generators. This phase of drilling will
temporarily cease in mid-2001 to allow installation and start-up of
process facilities. Drilling is expected to resume about November 2001.
Drilling will continue until 23 development wells (15 production, 7 gas
injection) are drilled. After drilling is completed, only production-
related site activities will occur. In order to support operations at
Northstar, the proposed operations activity includes the annual
construction of an ice road from Pt. McIntyre to the shore crossing of
the pipeline and along the pipeline route to Seal Island. Ice roads
will be used to resupply needed equipment, parts, foodstuffs, and
products, and for hauling wastes back to existing facilities. During
the summer, barge trips will be required between West Dock or Endicott
and the island for resupply.
Year-round helicopter access to Northstar is planned for movement
of personnel, foodstuffs and emergency movement of supplies and
equipment. Helicopters will fly at an altitude of at least 1,000 ft
(305 m), except for takeoffs, landings, and safe-flight operations.
Comments and Responses
On October 22, 1999 (64 FR 57010), NMFS published a notice of
proposed rulemaking on BPXA's application and invited interested
persons to submit comments, information, and suggestions concerning the
application and proposed rule. During the 60-day comment period on that
notice, comments were received from BPXA, the MMC, Greenpeace, the NSB,
and the AEWC. Their comments are addressed here.
Activity Concerns
Comment 1: The NSB believes that the Northstar Project area
analysis should not be limited to the area immediately adjacent to Seal
Island and the pipeline corridor, but expanded to also include the
proposed sealift route, and any other route to be used by ocean-going
vessels in support of the project, aircraft and vessel paths, and any
ice-free corridors to be maintained to facilitate oil spill response.
Response: NMFS agrees that a small number of takings by harassment
of marine mammals could occur as a result of these activities, which
were addressed in BPXA's application. However, it is NMFS policy that,
in most cases, small take authorizations are unnecessary solely for
transiting vessels, such as those described in BPXA's application and
those providing transportation and supplies to NSB communities, unless
the vessel activity has some potential to result in a significant
biological response in the marine mammal(s) or affects the subsistence
needs of Alaskan communities (e.g., conducting, or in support of
seismic, and possibly ice-breaking). In most cases, vessels are
presumed not to alter marine mammal behavior sufficient to constitute a
taking by harassment. Because barges are expected to travel in inshore
waters, where bowheads are less likely to occur, and to travel between
Northstar, West Dock, and Barrow and, therefore, have, at most, minimal
impact on subsistence whaling by Nuiqsut, and because there is no
information that these vessels will have an adverse impact on bowhead
whaling at Barrow, NMFS has determined that, based on the record, there
will not be an unmitigable adverse impact on bowhead whaling from
vessel movement in support of Northstar. If the AEWC determines
otherwise, NMFS believes they will make vessel movement a subject of
discussion for the Conflict and Avoidance Agreement (C&AA). Under that
agreement, BPXA will either agree to cease all vessel traffic between
the beginning and end of the fall bowhead subsistence harvest, or
limiting vessel traffic during this time period in accordance with the
C&AA.
While BPXA would be responsible for maintaining the ice-free
channel in order to facilitate oil spill response, the U.S. Army Corps
of Engineers (Corps) permit prohibits ice breaking until October 15,
meaning that ice-breaking will not occur until after most, if not all
of the bowhead migration and subsistence whaling have concluded for the
year. Any ice-breaking occurring prior to the end of the bowhead
subsistence harvest at Nuiqsut is not considered part of the request by
BPXA and, therefore, cannot be authorized for a taking of marine
mammals.
An estimate of incidental harassments by aircraft is not necessary
because helicopters must remain at a minimum altitude of 1,000 ft (305
m), weather permitting (except when landing or taking off). NMFS
understands that other permits require helicopters at Northstar to
maintain an altitude of 1,500 ft (457 m). At 1,000-ft altitude and
higher, takings of marine mammals are unlikely to occur. At altitudes
lower than 1,000 ft (305 m), while seals may make minor behavioral
changes to the helicopter noise, these changes are unlikely to alter
seal behavior sufficient to constitute a take. Further reducing
potential impacts, helicopter traffic will be between shore and
Northstar and bowhead and beluga whales are normally found in waters
north of Northstar, outside the area of helicopter traffic.
NMFS recognizes however, that helicopter traffic patterns may
change in the future when, and if, additional oil development
structures are sited. NMFS intends to review the impacts from structure
to structure flights when these activities apply for an initial LOA
under these regulations. Applicants are encouraged to address this form
of taking on marine mammals, especially bowhead whales and the
subsistence hunting of this species, when applying for an LOA. Failure
to adequately address this issue may result in a delay in processing
applications.
MMPA Concerns
Comment 2: Greenpeace states that the artificial segmentation of
industrial activities on the North Slope (e.g., seismic, oil
exploration, oil development) is not permitted under the MMPA. Later
Greenpeace notes that the proposed actions artificially segment the
environmental review of Northstar and its impacts, thereby violating
the National Environmental Policy Act (NEPA) and the Endangered Species
Act (ESA). As a result, Greenpeace requests that its March 10, 1999,
comments on the Final Environmental Impact Statement (FEIS) for
Northstar, be incorporated by reference.
Response: When Congress implemented the 1981 Amendments to the
MMPA, which authorized the Secretary to allow specified activities to
obtain an exemption from the MMPA's moratorium on taking without a
requirement to waive the moratorium under section 101(a) of the MMPA,
it
[[Page 34016]]
put certain provisions on when and where the Secretary may grant those
exemptions. One requirement was for the activity to be as specific as
possible. Congress stated: ``It is the intention of the Committee that
both the specified activity and the specified region referred to in
section 101(a)(5) be narrowly identified so that the anticipated
effects will be substantially similar. Thus, for example, it would not
be appropriate for the Secretary to specify an activity as broad and
diverse as outer continental shelf oil and gas development. Rather, the
particular elements of that activity should be separately specified,
as, for example, seismic exploration, or core drilling.'' (H.R. Rep.
No. 97-228 at p. 19, 1981). To the extent practicable, NMFS follows
this guidance when promulgating regulations under section 101(a)(5) of
the MMPA. As discussed throughout this document, NMFS does not believe
that its action is in violation of either NEPA or the ESA.
The Corps' draft environmental impact statement (DEIS), FEIS, and
the comments that were submitted to the Corps on those documents are
considered to be part of NMFS' Record of Decision on this matter.
Comment 3: Greenpeace states that the proposed regulations fail to
consider reasonably foreseeable exploration and development activities
in the Beaufort Sea on the part of companies other than BPXA. The NSB
expressed similar concerns regarding BPXA's application.
Response: NMFS has designed these regulations so that as new oil
development units are constructed in the Beaufort Sea, and companies
apply for a LOA for the taking of marine mammals, NMFS will need to
make a finding that the ``total taking by the activity'' will have no
more than a negligible impact on marine mammals and not have an
unmitigable adverse impact on subsistence uses of these mammals. NMFS
is not required to make these findings beforehand, when future
activities remain speculative and impacts on marine mammals have not
been fully assessed under NEPA.
NMFS believes that the Corps' FEIS addresses, to the extent
possible, the cumulative impacts of past and future impacts on marine
mammals and subsistence whaling (see Chapt. 10 of the FEIS). That
document notes that ``[T]he potential for future developments to cause
or contribute to any deflection of the [bowhead] migration or impact
the harvest will depend largely upon the proposed location with respect
to the traditional migratory path and traditional harvest areas.
Accordingly, proposed future projects will have to be analyzed on a
case-by-case basis to determine whether and how they may cause or
contribute to any effects on the bowhead migration or subsistence
harvest.''
Application Concerns
Comment 4: The NSB encourages NMFS to require BPXA to submit a
modified petition which contains the level of detail and an
organization which will allow for a meaningful review of the potential
impacts of proposed Northstar development.
Response: NMFS does not agree that NMFS should reject BPXA's
application. On March 1, 1999, NMFS provided duplicate sets of NMFS'
ANPR, including BPXA's application, on this action to the NSB. ANPRs
are provided in order for the public to provide comments on the
adequacy of an applicant's application for an incidental take and on
the applicant's activity. The NSB did not provide NMFS with comments
during that 30-day public comment period. In addition, as discussed
within this document, NMFS believes the NSB does not provide sufficient
justification for NMFS to determine that the application did not meet
the requirements in Sec. 216.104.
Comment 5: The NSB notes that the application has more the
appearance of a summary document than a completed document and is
lacking in sufficient detail to allow for a meaningful assessment of
whether the proposed activities meet the standards that will permit
NMFS to issue the requested LOA.
Response: The MMPA requires NMFS to make its findings based on the
best scientific evidence available that the total taking by the
specified activity during the specified time period will have a
negligible impact on species or stock of marine mammal(s) and will not
have an unmitigable adverse impact on the availability of those species
or stocks intended for subsistence purposes. NMFS is not restricted to
the information provided by an applicant when making its findings,
recognizing that some biases may be provided in an application. In
those cases where the applicant provides the majority of the
information for NMFS' findings, and supplementary documentation (e.g.,
a DEIS or FEIS) is lacking, NMFS holds applicants to a higher standard
for determining what is an acceptable application. However, in those
cases where supplementary information is available, especially when
that information is provided independent of the applicant, NMFS
believes that an application need not provide extensive detail that can
easily be found elsewhere. In this case, the supplementary information
was provided by the Corps in its DEIS and FEIS on this action. The
difficulty for the applicant in this action was that it did not have
access to the material and analyses provided in the DEIS prior to its
release. In addition, as is their right, BPXA is not required to
totally agree with the findings in the DEIS/FEIS. As a result, there
may be certain distinctions between information contained in the
application and that in the DEIS/FEIS. It is the responsibility of NMFS
to determine which document, if either, is correct.
Proposed Rule Concerns
Comment 6: BPXA believes the proposed regulations are confusing
regarding which portions of the rule address applications or petitions
for rulemaking and which portions of the rule address applications for
LOAs. BPXA recommends using specific terms consistently to contrast the
two steps required to authorize the activity. BPXA suggests utilizing a
petition for regulations, and a request for an LOA.
Response: These regulations do not distinguish between applications
for LOAs and petitions for rulemaking. While an application for an LOA
requires rulemaking, it is a single-step process under these
regulations. NMFS believes the commenter has confused these regulations
with those in subpart I, which distinguishes between petitions for
regulations, applications for LOAs and applications for Incidental
Harassment Authorizations (IHAs). Because subpart I is not being
amended at this time, BPXA's recommendation cannot be accepted. It
should be understood however, that NMFS does not intend to require a
dual process for issuing future initial LOAs, that is, rulemaking
followed by review of an application for an LOA. NMFS intends the two
processes to proceed at the same time.
Comment 7: BPXA presumes that the term ``platform'' in the
rulemaking title includes drilling islands. The proposed activity does
not involve an offshore oil rig platform but rather a permanent man-
made gravel island.
Response: To avoid confusion, NMFS has replaced the term
``platforms'' with ``facilities'' to better describe the various types
of oil and gas development activities that can obtain a small take
authorization under this rulemaking.
Comment 8: BPXA notes that the term ``Northstar Oil and Gas
Development Unit on Seal Island,'' found in Sec. 216.200(a), appears to
limit the authorization for taking to the island and not include
related activities such
[[Page 34017]]
as the pipelines. BPXA recommends dropping the words ``Unit on Seal
Island'' from that paragraph.
Response: NMFS agrees and has made the change.
Comment 9: BPXA pointed out that NMFS regulations at
Sec. 216.104(a)(12) regarding a Plan of Cooperation (POC) differ from
those in these regulations (Sec. 216.205).
Response: In response to NMFS' proposed regulations (see 60 FR
28379, May 31, 1995) one commenter noted that not all activities
required submission of formal POC. As a result, NMFS modified the
interim rule (see 61 FR 15884, April 10, 1996) from that originally
proposed. However, while in this rulemaking, a POC is viewed as
essential, there is no requirement that it be a formal document,
separate from the LOA application.
Comment 10: BPXA noted that a POC is different from the C&AA.
Response: NMFS agrees. A POC is a set of information provided to
NMFS at the time an applicant requests an LOA for activities in the
Arctic. The C&AA is a formal agreement between the activity's
participants and the AEWC. NMFS does not play a role in its development
or implementation. As a courtesy, NMFS often receives a copy of the
C&AA after it is signed.
Comment 11: BPXA recommends that NMFS consider including in the
rule a time period by which NMFS must respond to an LOA request with
either approval or denial. The applicant should be advised of a
decision within a specified time period to avoid ongoing expectations
of an LOA being granted or missing an entire season because NMFS
approval or denial is not under any time limit.
Response: While NMFS understands the concern, rulemakings cannot be
held to specific timelines which may preclude adequate public review
and/or limit the decision-making process. Because rulemakings normally
will take 8-12 months for completion, NMFS recommends applicants submit
complete applications as close as possible to the time that the
principal Federal agency releases its NEPA document for public review
and comment.
Comment 12: BPXA notes that it submitted its request for an LOA on
November 30, 1998, and that this submission fulfills the requirement
under Sec. 216.207(d).
Response: NMFS concurs. BPXA submitted its application for an LOA
under Sec. 216.104 on November 30, 1998, and a 30-day public comment
period commenced on March 1, 1999 (64 FR 9965). Based in part on the
comments received by NMFS and delays in both BPXA's construction
schedule and NMFS' processing the application, BPXA submitted a revised
LOA application on October 1, 1999 (received on October 15, 1999). A
60-day comment period on the revised LOA application began on October
22, 1999 (64 FR 57010). Those review periods satisfy the requirement of
Sec. 216.207(d).
LOA Concerns
Comment 13: The AEWC recommends that NMFS provide a minimum of 90
days for public review and comment on any new LOA request for arctic
offshore production-related activities.
Response: NMFS believes that a 90-day public comment period is
excessive and unnecessary given that new LOAs under these regulations
will have several comment periods. First, either the Minerals
Management Service or the Corps will provide for review and comment on
a document under NEPA, presumably a DEIS, on any oil development in the
Beaufort Sea. Such comment periods are a minimum of 45 days, and likely
60 days or longer. Second, NMFS will announce the availability of an
application for a small take authorization incidental to the offshore
production unit and will offer the public a minimum of 30 days for
review of the application. Finally, if NMFS proposes regulations to
govern the incidental taking, the public will be offered another
comment period of 45-60 days, as was done for the Northstar
authorization. Because NMFS' two review periods provide the public with
a total of 75 to 90 days, subsequent to, or in conjunction with, the
review period for the oil production project itself under NEPA, NMFS
does not believe the additional time period is warranted.
It should be recognized however, that NMFS has already published
and provided for public comment on BPXA's application for the Liberty
oil development project (64 FR 9965, March 1, 1999). Because of a delay
in timing for the start of the Liberty project due to NEPA, NMFS
expects that BPXA will submit a revised application for Liberty.
Because NMFS has already provided public notice on BPXA's application
for a small take for the Liberty project, NMFS will not reannounce
receipt of the application, but will proceed immediately to the
proposed rule stage. As a result, and for this application only, NMFS
expects to provide an extended public comment period of 90 days to
allow the public adequate time for review both the application and the
proposed rule, in lieu of providing another review limited to BPXA's
Liberty application.
Comment 14: BPXA believes that a public comment period should not
be required for renewal of LOAs under Sec. 216.209(a)(2) only during
the petition for regulations. If the activity applied for does not fall
within the scope of the existing regulations, then the petition process
for new or revised regulations should be followed which includes a
public comment period. Having concerns about the adequacy of section
101(a)(5)(A) of the MMPA to provide mitigation measures from the
potential adverse impact from oil production, the AEWC and the NSB
recommend that NMFS issue an LOA that is either only for construction
at Northstar, or is limited to only one year, in order to provide an
opportunity to discuss mitigation measures and other protections for
oil production activities. In addition, the AEWC requests that the
public be granted a minimum of 30 days to review a renewal of an LOA.
Response: NMFS has reviewed the LOA reissuance concerns and notes
that it has 3 options: (1) Reissue an LOA annually based upon timely
receipt of reports without public comment prior to reissuance, (2)
reissue an LOA annually based upon timely reports after a public
comment period, or (3) issue an LOA for all or a portion of the 5-year
period of validity of the regulations. Because under implementing
interim regulations (see Sec. 216.106(e)), NMFS would be required to
provide a 30-day public comment period (except in cases where there is
a significant risk to impacted marine mammals) prior to withdrawal, or
even temporary suspension of, an LOA, for failure to meet any of the
requirements of the regulations or the LOA, issuing LOAs for periods
greater than one year is generally not acceptable to NMFS. Whether an
opportunity for public comment is provided depends entirely on whether
NMFS determines that all substantive issues have been addressed
satisfactorily during rulemaking. If so, then little would be
accomplished by annually revisiting these issues.
In this action however, several issues remain unresolved, the
principal ones being the implementation of effective marine mammal
mitigation and monitoring during oil production, the peer review of
monitoring plans, and the submission of annual POCs. Therefore, NMFS
has determined that LOA renewals under this rulemaking will have a
requirement for a 30-day public review period, at least in the early
years of renewal. However, in order to expedite the LOA renewal
process, NMFS will open the review
[[Page 34018]]
process to the following issues only: (1) New citable scientific data
or information (including Traditional Knowledge) that indicates that
the determinations made in this document are in need of
reconsideration, (2) comments on the POC, and (3) comments on a
proposed monitoring plan. NMFS will give full consideration to all
comments submitted within the authorized comment period when making its
determination on reissuance. In addition, because of the requirement to
submit timely reports with an LOA renewal application, it is expected
that there will be only a limited amount of time between the date a
request for an LOA renewal is submitted, and the date of expiration of
the current LOA. As a result, NMFS will act on a request for an LOA
renewal in a timely manner, but is unlikely to extend the public
comment period beyond 30 days, unless there are compelling
circumstances. In addition, these regulations allow NMFS to waive the
public comment period once either multi-year mitigation (including
POCs) and monitoring plans have been submitted to NMFS and reviewed by
the peer review process described in the LOA and NMFS determines that
no significant issues remain substantially unresolved.
Since construction work at Northstar will continue through at least
November, 2000, issuance of an LOA limited only to construction has
been accepted by NMFS. In the meantime, discussion on appropriate
mitigation and monitoring during production can continue. However, to
ensure that takings resulting from uncompleted construction work late
in 2000 or early 2001, if any, are covered, NMFS has made the LOA valid
for a full 12 months, but only for construction.
Comment 15: BPXA suggests that NMFS clarify that Sec. 216.210(a) is
intended to apply to the case of a proposed withdrawal of the LOA by
NMFS, not by the applicant.
Response: NMFS agrees and has amended Sec. 216.210(a) as
recommended.
Take Level Concerns
Comment 16: Greenpeace states that NMFS accepts the applicant's
assertion, with no scientific or other basis, that the number of takes
of whales during operation and during construction of Northstar will be
identical. There is no estimate of take or possible jeopardy from a
variety of oil spill scenarios * * * and from the resultant cleanup
activities. The NSB believes that it is unacceptable for the petition
not to provide any estimate of the potential number of individuals of
any subject species which could potentially be taken in the event of an
oil spill associated with Northstar.
Response: While not identical, the estimated take levels by
incidental harassment are similar. Calculations for incidental take
levels by both construction and production are described in detail in
the original and revised BPXA applications. NMFS believes that these
calculations are based upon the best scientific information available.
As a result, NMFS has accepted these take estimates. However, NMFS
recognizes that, for reasons explained later in this document, these
estimates do not include takes by harassment, injury, or mortality
incidental to oil spills.
Comment 17: BPXA noted that the estimated levels of take provided
in the preamble to the proposed rule were not updated based upon
estimates provided in the September 30, 1999, revised application.
Response: Unfortunately, updates could not be made to the preamble
to the proposed rule because the revised application was not received
in time to revise the proposed rulemaking without further delaying the
release of the proposed rule. However, NMFS has made the appropriate
corrections in this document.
Negligible Impact Concerns
Comment 18: The MMC notes that (1) the path of the fall bowhead
migration varies substantially from year to year; (2) that in most
years comparatively few bowhead whales are likely to pass within 10 km
(6.2 mi) of the Northstar site; and, (3) that any changes in swimming
speed, direction, or other behavior caused by Northstar activities are
unlikely to affect the size or productivity of the bowhead population
(or of bowheads to Alaska natives for subsistence purposes). Because
the available data are insufficient to be confident that both the
population level effects (and the impacts on Native subsistence
hunting) would be negligible, the MMC believes it would be more
appropriate to base the assessment of possible impacts on the worst
case scenario, and considering possible cumulative impacts over the
full 15-20 years that production is expected at the Northstar site,
rather than basing the assessment on the best available estimate of the
average take level over the next 5 years.
Response: NMFS does not agree that it should make an assessment of
take levels over the 15-20 year lifetime of the Northstar Unit. Under
the MMPA, NMFS must make a determination that the ``total of such
taking during each 5-year (or less) period concerned will have a
negligible impact on such species or stock and will not have an
unmitigable adverse impact on the availability of such species or stock
for taking for subsistence purposes * * *.''
Also, NMFS does not consider it necessary to make a negligible
impact determination on the worst case scenario. NMFS believes that
using the worst case estimate does not provide a realistic estimate of
harassment take levels. NMFS suggests that reviewers note the detailed
explanation in the application on how BPXA estimated take levels. 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 future Northstar Unit only during 1997 (BPXA, 1999). This
being the case, there is simply no need to presume that this migratory
deflection would occur during each of the next 5 years. However, NMFS
has determined that, because this close-approach did occur in a recent
year, a more reliable estimate of take can be made by presuming that
this take level could occur again once or twice within the next 5 year
period. Therefore, NMFS has determined that an average annual take by
harassment, due to noise from construction and operation at Northstar,
as calculated by BPXA (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 only small numbers being taken and having no more than a negligible
impact (both as defined in Sec. 216.103) on bowhead whales.
Finally, NMFS disagrees with the MMC that the available data are
insufficient to be confident that both the population level effects
(and the impacts on Native subsistence hunting) would be negligible.
The take levels under discussion here are limited to harassment due to
noise disturbance by construction and later production at the Northstar
Unit. The level of noise produced at Northstar is expected to be
substantially less than that produced during seismic surveys, and,
unlike seismic, Northstar is stationary and located well inshore of the
normal migratory path of the bowhead whale. In addition, the bowhead
whale population has increased from approximately 4,400 (CV 3,500 to
5,300) (Zeh et al., 1993) in 1978 to
[[Page 34019]]
approximately 8,200 in 1993 (Hill and DeMaster, 1999). A population
increase of approximately 3.1 percent annually (Raftery et al. 1995,
NMFS, 1999), coincident with oil exploration and development activity
(including seismic), provides evidence that takings due to harassment
by noise at Northstar will not have more than a negligible impact on
bowhead whales.
However, of more concern to NMFS is the impact, not by Northstar
alone, but the cumulative impact in the future by several offshore oil
developments and seismic activity on the subsistence lifestyle of the
North Slope residents. This is discussed in more detail later in this
document.
Comment 19: Greenpeace notes that NMFS fails (1) to adequately
consider the impact if the maximum number of bowhead whale takes (1,533
per year for the 5-year period or a total of 7,665 bowheads actually
occurs, and (2) to justify its conclusion that the takings at this
level would not be expected every year or would not jeopardize the
species.
Response: Please refer to the response to previous comment. As
noted in the application and in the preamble to the proposed rule, the
taking of up to 173 (maximum 1,533/year) is limited to harassment,
meaning the taking is for the short-term incidental harassment by noise
disturbance, resulting in a short-term behavior change, such as a
slight deflection of its westward migration route.
While NMFS recognizes that there is some potential that bowheads
(and other marine mammal species) may be harassed, injured or killed
due to an oil spill from Northstar, NMFS determined previously, under
section 7 of the ESA, that oil and gas development at Northstar would
not jeopardize the continued existence of the bowhead whale.
Comment 20: The NSB questions the citation in BPXA's application
(i.e., NMFS, 1997), whether NMFS subscribes to the policy regarding a
determination of negligible impact where the impact may be more than
negligible, but the likelihood of occurrence is minimal, and whether
NMFS will continue this policy in regard to future proposed OCS
development projects.
Response: The reference cited in the BPXA application is NMFS'
Federal Register notice of issuance of an IHA to the ARCO Oil Company
for oil exploration in Camden Bay, Alaska (see 62 FR 51637, October 2,
1997). In that document, NMFS stated that when making a negligible
impact determination, NMFS can find that a negligible impact
determination may be appropriate if the probability of occurrence is
low, but the potential effects may be significant. This statement has
been made by NMFS previously (see 53 FR 8474, March 15, 1988) and can
also be found in NMFS' Programmatic EA (NMFS, 1995) for implementation
of regulations found at subpart I of this part. In stating this policy
for this and other activities, NMFS is following Congressional
direction to balance the potential for a significant impact with the
likelihood of that event occurring. The specific Congressional
direction that justifies balancing probabilities with impacts states:
``If potential effects of a specified activity are conjectural or
speculative, a finding of negligible impact may be appropriate. A
finding of negligible impact may also be appropriate if the probability
of occurrence is low but the potential effects may be significant. In
this case, the probability of occurrence of impacts must be balanced
with the potential severity of harm to the species or stock when
determining negligible impact. In applying this balancing test, the
Service will thoroughly evaluate the risks involved and the potential
impacts on marine mammal populations. Such determination will be made
based on the best available scientific information.'' (132 Cong. Rec. S
16305 (Oct. 15, 1986)).
Comment 21: Greenpeace notes that the available information shows
that if there is a major oil spill, the impacts would be severe, and,
therefore, NMFS cannot find negligible impact. The risk of a long-term
chronic leak, a large spill of 1,000 barrels or more, drill rig blowout
and other occurrences exists. Because these events are still possible,
BPXA must analyze and incorporate the marine mammal take that would
occur.
Response: Keeping in mind the response to the previous comment,
NMFS notes that, while a large oil spill, if it occurred, has the
potential to have impacts on bowhead whales and other marine mammal
species that are more than negligible, the possibility for a large oil
spill to occur is believed by NMFS to be minimal. The Corps' FEIS
describes in detail calculations it made for the probability for a
major oil spill occurring at Northstar. According to that document
there is a 1.6-5-percent chance of a major oil spill occurring along
the offshore portion of the pipeline over the first 15 years of
operation and a 7-percent chance that there would be a major spill due
to platform operations over the life of the platform. NMFS accepts
these estimates as the best information available.
Additionally, spilled oil would need to occur at a time and/or
location where it could intercept bowhead whales or other marine mammal
species. The FEIS describes the fate and consequences of having a major
oil spill during different seasons of the year. NMFS also considers
this information to be the best scientific information available. As a
result, NMFS believes that, because the likelihood of a major oil spill
occurring and impacting marine mammals is low for the period of these
regulations, it is both impractical and speculative to calculate take
levels for major oil spills. The low probability of a major oil spill
impacting marine mammals also allows NMFS to make a determination that
the taking would have no more than a negligible impact on marine
mammals in accordance with Congressional direction mentioned
previously.
However, NMFS recognizes that in the unlikely event that a major
oil spill did occur, the impact has some potential to be more than
negligible. As a result, NMFS has determined that, in the event a major
oil spill occurs, NMFS will need to reassess immediately its
determination in this document that the taking of marine mammals by oil
and gas development activities in the Beaufort Sea is having no more
than a negligible impact on marine mammals. If, because the takings are
projected to exceed the levels used in this document to make a
negligible impact finding, NMFS can no longer make a negligible impact
determination, NMFS will immediately suspend the LOA issued for the oil
development project causing the impact. Because the LOA suspension
falls under the emergency determination for LOA suspension under these
regulations, NMFS will not provide a 30-day public review period prior
to suspension. However, NMFS believes the possibility of this situation
occurring is remote.
Comment 22: Greenpeace states that the NMFS assertion of negligible
impact on endangered species or stock, despite the fact that no
specific prediction will be made about the potential number of bowhead
whales that would be taken as a result of an oil spill and cleanup, is
arbitrary and capricious, and fails to utilize the best scientific and
commercial data available. The conclusion of negligible impact is not
supported by any assertion of fact.
Response: Please see the response to the previous two comments. The
FEIS discusses the potential for a large oil spill, either through a
break in the pipeline or a blowout. As mentioned previously, NMFS
adopts this documentation as the best scientific information available.
In addition, mitigation measures in place at Northstar, including
weekly inspection
[[Page 34020]]
overflights of the pipeline (in addition to possibly more frequent
flights transporting people and supplies), and incorporation of the LEO
spill detection system reduce the potential for chronic leaks to go
undetected for long periods of time.
Comment 23: Greenpeace contends that NMFS only cursorily addresses
impacts from oil spills and cleanup and fails to analyze the cumulative
exposures or the risk to the entire bowhead population from a prolonged
disruption of a biologically important behavior or from injury or take
over the life of the Northstar project, or due to a catastrophic oil
spill.
Response: The MMPA requires NMFS to make a determination that the
total of such taking during each 5-year (or less) period concerned will
have a negligible impact on the species or stock of marine mammal, not
whether the takings will be negligible over the entire 20-30 year
lifespan of Northstar. Also, it is not necessary for NMFS to fully
describe the impacts and the determinations made in that regard in the
preamble to a proposed rule. The concerns raised by Greenpeace were
fully addressed by the Corps in its FEIS. Based upon that document,
NMFS believes the taking will have no more than a negligible impact (as
defined in Sec. 216.103).
Comment 24: Greenpeace states that oil spill trajectory modeling
has not been done to support the conclusion of negligible impact, or
the conclusion that the impact will be limited because the trajectory
will be confined to the shoreline. Also, Greenpeace states that there
is no consideration being given of the persistence of oil in the
environment when considering level or numbers of take. The toxicity of
oil can persist in the environment for more than ten years.
Response: As mentioned previously, NMFS believes that the potential
for a large oil spill occurring during the 5-year period of these
regulations is remote. Therefore, NMFS believes that the recommended
studies or considerations are unnecessary for it to make its negligible
impact determination.
Comment 25: Greenpeace states that NMFS has provided no legal
justification for authorizing incidental take nor has it utilized the
best scientific and commercial data available for any of its
conclusions. In the draft regulations, NMFS ignored important
scientific information indicating greater oil spill and noise impacts
and failed to acknowledge deficiencies in many of the studies BPXA
relied on in its application, as noted by Albert (1996, 1997).
Response: NMFS uses the best scientific and commercial information
available when making determinations of negligible impact on marine
mammal species and no unmitigable adverse impact on species/stocks for
subsistence purposes. NMFS believes that this information is contained
in the BPXA application, NMFS' biological opinion and the Corps FEIS on
Northstar provides this information. Without Greenpeace providing a
reference for Albert (1996, 1997) NMFS is unable to respond further to
the statement.
Subsistence Concerns
Comment 26: The AEWC notes that the BPXA application estimates the
distances from the Northstar Unit to the traditional hunting areas for
3 fall bowhead whale subsistence villages. However, because the bowhead
whale moves in a single westward migration, this information is of
limited relevance to NMFS' evaluation of potential adverse impacts on
subsistence. Adverse impacts to bowhead whales could affect the
subsistence hunting of any or all 10 of the villages depending upon the
severity and timing of any oil spill and the perceptions by the various
villages on how the oil affected the quality of the subsistence
product.
Response: While the bowhead whale moves in a single westward
migration in the fall, except for the unlikely occurrence of a
significant oil spill (greater than 1,000 barrels), wherein all 10
villages' bowhead subsistence harvest may be affected, NMFS believes
that the impact on bowhead whales from Northstar will be limited to 3
villages, and in particular Nuiqsut. Nuiqsut has the greatest potential
to be impacted by development at Northstar, as its whaling customarily
takes place in the vicinity of the island.
In the past, NMFS has requested, without success, information
regarding the locations where successful bowhead whale takes occur in
the Beaufort Sea. Considering that whalers are provided with GPS
receivers, this information should be available. This information could
provide scientists with data to make assessments on the impacts from
oil and gas production activities on Beaufort Sea subsistence whaling.
In the interim, NMFS uses the more general information provided by the
applicant.
Based on the information to date, however, NMFS has determined that
the potential for a major oil spill to occur, and for that oil to
intercept bowhead whales in the migratory corridor, which in turn,
could affect the subsistence harvest of all 10 villages, is unlikely.
Comment 27: The NSB notes that one of their primary concerns is the
potential for planned (oil development) activities to disrupt fall
subsistence whaling by the village of Nuiqsut. NSB believes it is
difficult to clearly identify all of the activities associated with
construction and operations which are expected to occur during this
critical period.
Response: Activities that have some potential to occur during the
same period as Nuiqsut subsistence whaling would include any activities
scheduled, but not completed, prior to September. These are described
in BPXA's application. However, activities that may occur during that
time period may be influenced by agreements made during the C&AA
negotiations. Based upon previous C&AAs, and recent statements made by
BPXA at a stakeholders meeting in Seattle, NMFS presumes that any
activity that creates noise, or has the potential to disturb bowheads,
either acoustically or visually, either will not take place or will be
modified during the fall subsistence hunt for bowheads. However, even
without an agreement to curtail activities during this period, NMFS
does not believe these activities will create sufficient level of noise
to result in an unmitigable adverse affect on subsistence uses of the
bowhead.
Comment 28: The AEWC notes that the annual C&AA is not entered into
between BPXA and NSB residents, but by the AEWC on behalf of its
bowhead whale subsistence hunters.
Response: NMFS concurs and has made the correction in this
document.
Mitigation Concerns
Comment 29: The AEWC recommends that NMFS take this opportunity to
convene a meeting, or a series of meetings, with the AEWC and other
interested parties to (1) address arctic offshore oil production-
related impacts to marine mammals and subsistence hunting, and (2)
discuss appropriate additional mitigation measures during Northstar oil
production.
Response: NMFS concurs that a meeting, or a series of meetings, to
address mitigation measures that might be adopted by the industry in
the event that an oil spill occurs is warranted. In that regard, NMFS
hosted a meeting on February 24, 2000, between the AEWC/NSB and the oil
industry to start a dialogue to identify monitoring measures for both
noise and oil that might be initiated to address both short- and long-
term, cumulative impacts. Future meetings are also planned. However,
these meetings should not be confused with the peer-review meetings
normally held in late spring for the open
[[Page 34021]]
water noise monitoring and early fall for on-ice noise monitoring in
Seattle, WA.
Comment 30: Greenpeace notes that during the ice covered season,
BPXA proposes no mitigation before mid-March, based on the assumption
that female ringed seals establish their birth lairs before pupping in
late March or April. Noting that ringed seals begin to build lairs as
soon as the ice is covered with snow, BPXA must mitigate harassment of
ringed seals prior to initiation of any construction activities,
regardless of when they commence.
Response: The primary ice roads used during Northstar construction
(and later during oil production), must be almost straight-line in
order to effectively transport gravel from the mine site to Seal Island
and for construction of the pipeline. Once Northstar and the pipeline
are constructed, only a single primary offshore road will need to be
constructed annually, that one along the pipeline corridor. As a
result, there is little mitigation that has been identified that would
be practical and effective during the construction of these primary
roads in the early part of the winter season. However, secondary ice
roads constructed later in the season, are not believed to be confined
to a set track and can be constructed to avoid seal structures. As a
result, NMFS has imposed mitigation measures in the LOA which requires
(1) Using trained dogs to locate seal structures on all ice roads, (2)
avoiding seal structures by a minimum of 150 m (492 ft) during
construction of any roads other than the gravel and pipeline primary
roads, and (3) avoiding, to the greatest extent practicable,
disturbance of any located seal structure after March 20.
It should be recognized that mitigation (using trained dogs)
conducted this year during primary ice road construction was
implemented because BPXA did not have an authorization for harassment
under the MMPA, and therefore needed to avoid, to the greatest extent
possible, harassing ringed seals. At a workshop later this year, NMFS
will assess the value and practicality of using trained dogs as a
mitigation measure to locate seal structures on the ice and then
halting activity around the structure until either the animal
voluntarily vacates the structure or biological observers determine
that the structure is unoccupied. Alternatively, NMFS may determine
that it is preferable for the ringed seals to be discouraged, by
incidental construction noise, from converting breathing holes into
seal structures where pups may later be born, and potentially injured
or killed at some later time.
Section 101(a)(5)(A)(ii)(I) of the MMPA provides for regulations
setting for the permissible methods of taking and other means effecting
the least practicable adverse impact on the affected species or stock
and its habitat. As ringed seals construct several breathing holes and
lairs within its territory, they do not rely on a single structure
during the year. Ice roads constructed early in the year will result in
some minor harassment as ringed seals abandon certain breathing holes,
if the noise is disturbing to them. NMFS believes this may be
preferable to avoiding all harassment of ringed seals during ice road
construction (how that would be accomplished has not been identified)
and then having the newborn pup, who may be more sensitive to noise
than an adult, abandon a birthing lair prior weaning, and having that
pup succumb to the effects.
Comment 31: Greenpeace notes that BPXA is proposing to have marine
mammal monitors conduct watches commencing 30 minutes prior to such
noisy activities as impact hammering and offloading during the open
water season. Greenpeace states that given frequent and often extended
periods of impaired visibility in the Beaufort Sea due to fog and low,
or no, light conditions, BPXA should include work restrictions during
these times.
Response: NMFS does not agree. BPXA proposed having marine mammal
monitors to conduct observations for 8 hours/day for 2-3 days during
each major type of construction activity, and during quiet periods
before and/or after these activities occur. Monitors must conduct
observations a minimum of 30 minutes prior to starting noisier
activities. If a marine mammal is observed within an area that might
cause Level A harassment (180 dB for cetaceans, 190 dB for pinnipeds),
work cannot start until the marine mammal has left the safety zone.
NMFS has clarified this requirement in the LOA to require marine mammal
monitor(s) be on watch during all daylight hours for any activity that
results in a SPL of at least 180 dB at any distance which exceeds the
island's land/water interface. This monitoring must begin in daylight
at least 30 minutes prior to beginning the activity. Also, the entire
safety zone must be visible during the entire pre-activity monitoring
time period in order for the activity to begin. This means that noisy
activities cannot start, or be restarted after a time period set in the
LOA during low visibility and nighttime periods.
As an extra precaution, work is required to cease whenever a marine
mammal enters its respective safety zone as noted by an observer.
However, while certain work must not start-up until the observer can
ensure that the safety zones are free of marine mammals, once that work
begins it need not cease simply because weather precludes adequate
observation during inclement weather or nighttime. NMFS presumes that
anthropogenic noise in the area around Northstar will discourage marine
mammal presence if the noise is bothersome to the animals.
Comment 32: Greenpeace was concerned that BPXA proposes to
intentionally harass marine mammals as a form of mitigation in the
event of an oil spill. Greenpeace believes that NMFS should not approve
the intentional use of harassment to reduce the level of serious injury
or mortality. Greenpeace notes that regardless of whether this
technique constitutes acceptable mitigation (and Greenpeace asserts it
does not), it is not practical given the persistence of oil in the
environment. There is no information or reasoned analysis of how long
intentional harassment will be used as a mitigation strategy during an
oil spill and just how much reduction in Level A harassment will be
achieved.
Response: The intentional harassment of marine mammals for the
health and welfare of the animal is under another provision of the MMPA
and not under this section. In the event that a significant oil spill
occurred, NMFS and other agencies would determine how best to protect
marine mammals from oil.
Comment 33: Greenpeace is concerned that BPXA cites its Oil
Discharge Prevention and Contingency Plan (ODPCP) as a mitigation
measure for protecting marine mammals. Mitigation should not be assumed
until BPXA can reasonably prove its ability to respond and remove oil
from the environment.
Response: While NMFS considers the ODPCP to be a mitigation measure
to reduce impacts to marine mammals, NMFS also recognizes the inability
to respond to an oil spill in the waters surrounding Northstar at
certain times and in certain conditions. These constraints to respond
in all seasons and weather conditions has been discussed in detail in
Chapter 8 of the Corps FEIS.
Comment 34: The MMC recommends that NMFS review the ODPCP to assure
that the risk of spills has been estimated appropriately; require
modification of the contingency plan if everything feasible has not
been done to minimize the risk of spills occurring and impacting marine
mammals; and provide for periodic site inspections as part of the long-
term monitoring
[[Page 34022]]
program to assure that the contingency plan can be implemented as and
when necessary. Finally, the MMC recommends that an assessment of the
contingency plan and any monitoring requirements be included in any
Federal Register document published to promulgate final regulations on
this action.
Response: NMFS believes that it has neither the expertise to
determine the adequacy of the ODPCP, nor the authority under the MMPA
to require the ODPCP be modified by BPXA or to place these requirements
on Federal or state agencies with such authority. As the MMC noted in
its comment, the ODPCP has been approved by the U.S. Department of
Transportation, the U.S. Coast Guard, the Minerals Management Service
(MMS), and the State of Alaska Department of Environmental
Conservation. For its determinations of negligible impact, NMFS relies
on the information, including estimates of risk from oil spills,
contained in the FEIS.
Monitoring Concerns
Comment 35: The NSB believes that the proposed marine mammal
monitoring plan in its present form is inadequate. The plan, and
especially the proposal for passive acoustic monitoring of fall
migrating bowhead whales, should be revised and made clearer.
Response: BPXA's technical plan for marine mammal and acoustic
monitoring during construction of Northstar was submitted to NMFS in
May, 1999, as a supplement to its November 1998, petition. That plan
was reviewed at the peer review workshop held in Seattle, WA on July 1,
1999, and revised in August 1999, based on the recommendations made
during the workshop. The NSB participated in that workshop. NMFS does
not believe that it is necessary at this time to request BPXA to revise
the plan prior to providing all parties at the workshop an opportunity
to respond. Since this plan will be reviewed again later this year, the
comments and recommendations made by the NSB will be placed on this
year's meeting agenda.
Comment 36: Greenpeace notes that, although NMFS is proposing
regulations governing the taking of marine mammals during the
construction and operation of Northstar, the accompanying marine mammal
monitoring program only applies to project construction. The monitoring
program fails to outline a program for monitoring marine mammal takes
during Northstar operation.
Response: BPXA's revised monitoring plan as submitted on September
1, 1999, provides detailed description of proposed monitoring during
construction. This monitoring had been amended based on comments
received during the Arctic Peer Review Workshop held in Seattle, WA on
July 1, 1999.
A detailed description of monitoring during Northstar operations
was not submitted at the time because that monitoring program would not
begin until oil drilling operations began, approximately November 2000.
BPXA will submit a monitoring plan for operations in sufficient time
for that plan to be reviewed by peers and the general public. NMFS
anticipates public review on the monitoring plan during the first year
of operations will be conducted during the public comment period on an
application for LOA renewal, which will be contingent on submission of
an adequate monitoring plan. In the interim, BPXA will continue
monitoring impacts as described in the August 20, 1999, Technical
Monitoring Plan. As stated in BPXA's application, monitoring during
operations will require evaluation based on the results of monitoring
during construction and any other information that becomes available in
the interim. NMFS intends to continue past practice and have annual
submissions of proposed monitoring plans and to have those plans peer
reviewed prior to implementation.
Comment 37: Greenpeace believes that specific monitoring
requirements should be included in the regulations, not in the LOA.
Response: If specific monitoring conditions are contained in the
regulations, modifications to the monitoring would require an amendment
to the regulations prior to implementation. This would prevent prompt
implementation of revised monitoring based on the annual review
process, or in response to an unusual event, as can be done by having
specific monitoring conditions contained in an LOA. As a result, NMFS
has not adopted this recommendation. However, it should be noted that
BPXA must comply with the conditions of the LOA, so it would be
responsible for implementing any monitoring identified in the LOA.
Comment 38: Greenpeace states that NMFS cannot assume that the
impacts of the Northstar operations on marine mammals will be
negligible in the absence of a detailed monitoring program to back up
that assertion.
Response: NMFS believes that the results from monitoring are useful
to support or refute its determinations that takings are having a
negligible impact on affected marine mammal stocks and not having an
unmitigable adverse impact on subsistence uses of marine mammals.
However, a detailed monitoring program is not a requirement under the
MMPA before NMFS can make these determinations; the MMPA requires only
that a monitoring program be required under regulations authorizing the
taking. For Northstar, NMFS expects that, through the peer review
process, a comprehensive monitoring program will be implemented that
will provide the necessary information on impacts on marine mammals.
Comment 39: Greenpeace states that BPXA's proposed plan to
establish a peer review process as outlined in its monitoring plan is
not sufficiently independent to meet the standards of the MMPA. The
regulations should require BPXA to submit the monitoring plans well in
advance so that NMFS can instigate its own independent peer review, and
require that its recommendations be incorporated into the final plans.
Response: The peer review process described in BPXA's Technical
Plan for Marine Mammal and Acoustic Monitoring During Construction of
BP's Northstar Oil Development in the Alaskan Beaufort Sea, 2000, is
the same as NMFS' Arctic Peer Review Workshop held annually in Seattle,
WA. Participants in this workshop, and similar workshops held to
discuss on-ice monitoring of seals, typically include representatives
from industry, the NSB, the AEWC, universities, environmental
organizations, and state and Federal government.
It should be understood that independent peer review in this
context means a review by other than NMFS, the oil industry and its
contractors, and the AEWC/NSB. However, independent peer review is not
required for authorizations issued under section 101(a)(5)(A) of the
MMPA. While peer review of monitoring plans has been incorporated into
these regulations in accordance with findings made at a workshop held
in Seattle in 1994 with the AEWC, the oil and gas industry and others,
independent peer review is at the discretion of NMFS. On April 9, 1999
(64 FR 17347), NMFS requested nominations for the voluntary
participation in the peer review process. Due to a lack of interest
expressed by the public in response to this notice, NMFS has decided to
reserve use of an independent peer review to matters of significant
dispute between the AEWC, NMFS, and/or the Holder of an LOA. In
general, specific requirements for independent peer review will be
[[Page 34023]]
determined in advance and noted in an LOA.
Comment 40: Both the MMC and BPXA note that the preamble to the
proposed rule failed to mention the acoustic monitoring program for
bowhead whales described in BPXA's revised application and monitoring
plan.
Response: NMFS acknowledges the oversight. BPXA's technical plan
for marine mammal and acoustic monitoring during construction at
Northstar proposed seven monitoring tasks, not six. These tasks are
listed elsewhere in this document.
Comment 41: The MMC recommends that NMFS review past aerial survey
data to determine whether the surveys conducted by the MMS are likely
to provide sufficient information to assess the utility of the proposed
acoustic monitoring and if the MMS' surveys are judged unlikely to
provide sufficient data, require that additional surveys be done during
the construction phase to document the presumed effectiveness of the
acoustic monitoring.
Response: Thank you for this recommendation. As noted in BPXA's
application, use of an acoustical monitoring system is planned to be
tested in 2000. The purpose of the system is, in part, to assess the
feasibility of its use as an alternative to aerial surveys. In addition
to MMS surveys, additional aerial surveys for bowheads are conducted in
the region to assess impacts from seismic work. This data would also be
available for analysis. As a result, the MMC's comments have been
forwarded to NMFS scientists and others for consideration. However,
NMFS recommends MMC scientists participate in the peer review workshops
so that the concerns of the MMC can be addressed more directly.
Comment 42: The MMC, because of perceived uncertainties in the data
regarding impacts to ringed seals and polar bears and interactions
between these two species, recommends that monitoring of polar bears
and polar bear den sites required by regulations and LOAs issued by the
U.S. Fish and Wildlife Service (USFWS) will be coordinated with the
ringed seal monitoring required by this set of regulations and LOAs.
Response: NMFS is unaware of any evidence that increased
interactions between polar bears and ringed seals will occur as a
result of construction of ice roads and the reconstruction of Seal
Island. To the extent practicable, on-ice monitoring of ringed seals
and polar bears has been, and will be, coordinated. NMFS notes that
often the same biological observers conducting ringed seal observations
are also conducting polar bear observations. In addition, the USFWS has
attended on-ice peer review workshops wherein NMFS and others review
previous monitoring and upcoming monitoring plans. The MMC concerns
expressed here will be reviewed at the next meeting. NMFS recommends
that, if the MMC has any suggestions regarding appropriate study
designs to determine whether oil and gas activity results in increased
interactions between polar bears and ringed seals, they should provide
that information to NMFS prior to the next on-ice peer review meeting.
Comment 43: Greenpeace asserts that BPXA's monitoring program
relies on ineffective methods for monitoring ringed seals.
Response: To the extent practicable, NMFS follows the guidelines in
Swartz and Hofman (1991) when reviewing and making recommendations on
monitoring oil and gas activities in Arctic waters. Based on that
document, and the results of a workshop held in Seattle in October
1999, BPXA has implemented a monitoring program using dogs to locate
ringed seal structures in the ice. However, NMFS notes that using dogs
this winter, prior to issuance of an LOA, does not mean that dogs will
be required each year that ice roads are constructed. That
determination will be based in part on the recommendations of
scientists and the value of the information provided by this method of
data collection. Generally, in cases where ice roads are constructed
early in the year, under an LOA or IHA to take marine mammals, NMFS has
questioned the need for dogs to monitor harassment takings. However, in
order to protect newborn pups, dogs will be required under an LOA,
whenever new, secondary, ice roads are constructed after March 1.
Following Swartz and Hofman (1991), NMFS has determined that the
Before-After Control-Impact (BACI) study of ringed seal distribution
meets the monitoring requirements for assessing impacts on ringed seals
during wintertime construction and operation. This does not mean
however, that additional or alternative ringed seal monitoring will not
be required in future years under an LOA. Such monitoring may be
imposed as a result of future peer review workshops.
Reporting Concerns
Comment 44: The AEWC requests that, when scheduling review periods,
NMFS give due consideration to the time of year when that period will
occur. Spring bowhead whale subsistence hunting generally is most
intense for our communities during April, May, and June. In addition,
the annual meetings of the International Whaling Commission, usually
are scheduled sometime between early May and mid-July. These meetings
last a total of 4 weeks and require intense preparation.
Response: Considering that the fall bowhead whaling season begins
around September 1 and continues for several weeks, wherein the AEWC is
also not available for reviewing documents and meeting, there is
limited time during the year for an annual review.
As proposed previously, an interim report was due 180 days prior to
expiration of an LOA. If an LOA expires early in the year, as is
expected with the Northstar LOA, then the report would be due 6 months
prior to that date, or in late summer of the previous year. Because of
the timing, this report obviously could not include an assessment of
the activity's impact on bowhead whales and the subsistence harvest
that year since the fall migration would only be starting at that time.
Therefore, this report would need to contain an assessment of the
previous year's impact on bowhead whales, requiring the use of dated
information, and putting the data out of synchrony with the actual
taking of marine mammals during that LOA period of validity. However,
this is realistic considering that it takes 6-7 months to incorporate
MMS aerial survey data on bowheads into an analysis of impacts from an
oil and gas exploration or development activity.
As a result, because of the importance of having a peer review of
both monitoring plans and the results from previous monitoring, NMFS
has amended the regulations and is requiring holders of LOAs to provide
two interim reports, the first due 90 days after the end of the on-ice
season (approximately September 15th for the report), and
the second due 90 days after the end of the fall bowhead migration in
the Beaufort Sea (approximately February 1st for the
report). NMFS will also require a draft comprehensive report by May
1st of the year following the year of validity of the LOA.
NMFS recognizes that this means that the first year LOA for Northstar
will only have a report on the on-ice monitoring due to NMFS by the
time NMFS needs to consider a renewal of the first-year LOA.
Finally, NMFS will require a final comprehensive report on all
marine mammal monitoring and research conducted by the holder of its
LOAs during the period of these regulations
[[Page 34024]]
must be submitted at least 240 days prior to expiration of these
regulations or 240 days after the expiration of these regulations, if
renewal of the regulations has not been requested.
Comment 45: The NSB believes that the proposed method for project
review (two reviews/year, one through the mail) is not adequate. One
meeting is needed to review the draft proposal and a second meeting is
needed to review the draft report.
Response: NMFS disagrees that a meeting is necessary solely to
review BPXA's draft monitoring report(s). For continuity, this report
(which is a report on the results of previous years' monitoring
programs), is usually reviewed and critiqued at the same time the NSB
and others are recommending monitoring measures for the upcoming
season. NMFS believes that discussion on the results of previous
monitoring at the same time as discussion of the upcoming monitoring
plan, facilitates recommendations on appropriate monitoring and/or
research.
In addition, recognizing the period of time when NSB residents are
not available to meet (discussed previously in this document) and
because the NSB, NMFS, and others are already sponsoring and/or
participating in three meetings annually on this issue, one for open
water monitoring, a second for winter (on-ice) monitoring, and a third
to address short- and long-term monitoring for effects from potential
oil spills on marine mammals, a fourth meeting limited to discussion on
the results of previous year's monitoring is simply not practical at
this time.
ESA Concerns
Comment 46: Greenpeace contends that the proposed rule (64 FR
57010, October 22, 1999) violates section 7(a)(2) of the ESA because it
fails to insure that actions to approve regulations are not likely to
jeopardize the continued existence of endangered species, after
required consultation and using the best scientific and commercial data
available.
Response: With the issuance of a Biological Opinion (BO) on March
4, 1999, NMFS completed formal consultation with the Corps under
section 7 of the ESA for the construction and operation of the
Northstar project. The BO, which found that the construction and
operation of the Northstar project activity will not jeopardize the
continued existence of any species under the jurisdiction of NMFS, was
based upon the best scientific and commercial data available. Because
issuance of these regulations and an LOA to BPXA for the incidental
take of bowhead whales is also considered a Federal action, NMFS has
conducted a consultation under section 7 with itself on this action.
The finding by NMFS is that an authorization for the taking of bowhead
whales incidental to construction and production of the Northstar Unit,
under section 101(a)(5)(A) of the MMPA, while it may adversely affect
bowhead whales, is not likely to jeopardize its continued existence. If
new information is obtained which affect bowhead whales in a manner or
to an extent not previously considered, or if the level of incidental
take is exceeded, reinitiation of consultation will be undertaken.
Comment 47: Greenpeace also contends that, by proposing the
regulation, NMFS has made an irreversible and irretrievable commitment
of resources with respect to the Northstar project, which has the
effect of foreclosing the formulation or implementation of reasonable
and prudent alternative measures which would not violate section
7(a)(2) of the ESA.
Response: NMFS does not agree that it has made an irreversible and
irretrievable commitment of resources in conjunction with proposing
regulations for the project. NMFS completed its section 7
responsibilities prior to issuance of this final rule.
Comment 48: Greenpeace believes that the proposed rule (64 FR
57010, October 22, 1999) fails to utilize its authorities in
furtherance of the purposes of section 7(a)(1) of the ESA by carrying
out programs for the conservation of endangered species.
Response: Conservation recommendations under section 7(a)(1) of the
ESA were provided by NMFS to the Corps in the Northstar BO. These
include: (1) Vessel operations should be scheduled to minimize
operations after August 31 of each year in order to reduce potential
harassment of migrating bowhead whales, (2) utilize agitation technique
for placement of sheetpiling and piling instead of pile-driving
whenever practicable, (3) develop and conduct an acoustic monitoring
study during construction and initial operation, and (4) conduct or
support studies to describe the impact of Northstar on the migrational
path of bowhead whales in the Beaufort Sea.
Additional conservation recommendations to reduce impacts on the
endangered bowhead whale are contained in these regulations, the BPXA
LOA, and the Incidental Take Statement issued to the Corps under
section 7(a)(2) of the ESA.
Comment 49: Greenpeace notes that the proposed rule (64 FR 57010,
October 22, 1999) states that NMFS has begun consultation under section
7, but that there has been no public release of information concerning
the scope of consultation nor of a biological assessment which
adequately assess these impacts.
Response: While there is no requirement in the ESA for making that
information public, this document notifies the public of the completion
of section 7 consultation. Recognizing that impacts on listed species
will result from the activity itself, not from the issuance of an
authorization for the incidental taking, NMFS has determined that the
issuance of 5-year regulations for the Northstar Project, and a 1-year
LOA, may affect bowhead whales, the action was unlikely to jeopardize
the stock's continued existence. Because Biological Assessments are
written at the discretion of the action agency, and because a BO was
written previously on the major action (i.e., on construction and
operation of Northstar), a new Biological Assessment is not necessary
for this action and, therefore, one was not prepared.
Comment 50: There was no incidental take statement in the Northstar
BO.
Response: That is correct. Whenever a marine mammal species listed
as endangered or threatened under the ESA is involved, section
7(b)(4)(C) of the ESA requires that the taking is also authorized
pursuant to section 101(a)(5) of the MMPA. Until the requirements of
both the MMPA and ESA are met, an incidental take statement cannot be
issued. The issuance of an LOA to BPXA for Northstar will meet the MMPA
requirements and an Incidental Take Statement can be, and will be,
issued shortly.
Comment 51: Greenpeace states that the proposed rule results in a
taking of a protected species in violation of section 9 of the ESA.
Response: The taking of endangered bowhead whales incidental to the
construction and operation of the Northstar Unit is not expected to be
in violation of section 9 of the ESA. Under the terms of section
7(b)(4) and section 7(o)(2), taking that is incidental to, and not
intended as part of, the agency action is not considered to be
prohibited taking under the ESA provided that such taking is in
compliance with the terms and condition of the Incidental Take
Statement. As mentioned previously, the incidental taking of bowhead
whales under the ESA will be authorized through an Incidental Take
Statement issued under section 7 of the ESA.
Comment 52: The original Northstar BO did not address the
quantitative
[[Page 34025]]
information submitted by BPXA in its incidental take publication
regarding expected level of takes, such as 173-1,533 bowheads annually,
or sources of impacts, such as 16,800 large-volume haul trips, 28,500
dump trucks, etc.
Response: The Biological Assessment was first submitted to NMFS by
the Corps on May 19, 1998, with supplemental information provided on
July 10, 1998. This was prior to BPXA submitting information for an IHA
on August 12, 1998 (63 FR 57096, October 26, 1998), or on November 30,
1998, for this action. While NMFS could have included this additional
information in its BO, this information was considered preliminary at
the time and unnecessary for making a determination on whether or not
the activity could jeopardize the bowhead whale's continued existence.
Estimates of bowhead whale takes by harassment have been evaluated
during this rulemaking and will be incorporated as appropriate into the
Incidental Take Statement. NMFS notes however, that the activities
mentioned by the commenter will occur during the winter and will not
affect bowheads.
Comment 53: Greenpeace believes that NMFS has failed to conduct a
North Slope-wide assessment of the impacts to bowhead whales from
reasonably foreseeable exploration and development activities in the
Beaufort Sea.
Response: NMFS' evaluation of the cumulative effects on bowhead
whales, by Beaufort Sea activities, were addressed in part V. of the
March 4, 1999, BO.
Description of Habitat and Marine Mammal Affected by the Activity
The DEIS and FEIS prepared for the Northstar development (Corps,
1998, 1999) contains a detailed description of the Beaufort Sea
ecosystem and its associated marine mammals. Those documents are part
of the record of decision of this rulemaking. A copy of the FEIS is
available from the Corps upon request (see ADDRESSES).
Marine Mammals
The Beaufort/Chukchi Seas support a diverse assemblage of marine
mammals, including bowhead whales (Balaena mysticetus), gray whales
(Eschrichtius robustus), beluga whales (Delphinapterus leucas), ringed
seals (Phoca hispida), spotted seals (Phoca largha) and bearded seals
(Erignathus barbatus). Descriptions of the biology and distribution of
these species and of others can be found in several documents (e.g.,
Hill and DeMaster, 1998) including the BPXA application (BPXA, 1999)
and the previously mentioned FEIS. Please refer to those documents for
specific information on these species. These documents are part of this
rulemaking. In addition to the species mentioned in this paragraph,
Pacific walrus (Odobenus rosmarus) and polar bears (Urus maritimus)
also have the potential to be taken. Appropriate applications for
taking these species under the MMPA have been submitted to the USFWS by
BPXA.
Potential Effects on Marine Mammals
Noise Impacts
Sounds and non-acoustic stimuli will be generated during
construction by vehicle traffic, ice-cutting, pipeline construction,
offshore trenching, gravel dumping, sheet pile driving, and vessel and
helicopter operations. Sounds and non-acoustic stimuli will be
generated during oil production operations by generators, drilling,
production machinery, gas flaring, camp operations and vessel and
helicopter operations. The sounds generated from construction and
production operations and associated transportation activities will be
detectable underwater and/or in air some distance away from the area of
the activity, depending upon the nature of the sound source, ambient
noise conditions, and the sensitivity of the receptor. At times, some
of these sounds are likely to be strong enough to cause an avoidance or
other behavioral disturbance reaction by small numbers of marine
mammals or to cause masking of signals important to marine mammals. The
type and significance of behavioral reaction is likely to depend on the
species and season, and the behavior of the animal at the time of
reception of the stimulus, as well as the distance and level of the
sound relative to ambient conditions.
In winter and spring, on-ice travel and construction activities
will displace some small numbers of ringed seals along the ice road and
pipeline construction corridors. BPXA began winter construction
activities in mid-December, 1999, well in advance of female ringed
seals establishing birthing lairs beginning in the latter half of
March. The noise and general human activity may displace female seals
away from activity areas and could negatively affect the female and
young, if the female remained in the vicinity of the ice road.
During the open-water season, all six species of whales and seals
could potentially be exposed to vessel or construction noise and to
other stimuli associated with the planned operations. Vessel traffic is
known to cause avoidance reactions by whales at certain times
(Richardson et al., 1995). Pile driving, helicopter operations, and
possibly other activities may also lead to disturbance of small numbers
of seals or whales. In addition to disturbance, some limited masking of
whale calls or other low-frequency sounds potentially relevant to
bowhead whales could occur (Richardson et al., 1995; BPXA, 1999).
A more detailed description of potential impacts from construction
and operational activities on marine mammals can be found in BPXA's
application (BPXA, 1999) and the Corps' FEIS (Corps, 1999). That
information is accepted by NMFS as a summation of the best scientific
information available on the impacts of noise on marine mammals in this
area. Additional information used by NMFS in this determination can be
found in Richardson et al. (1995) and the references provided in BPXA's
application.
Oil Spill Impacts
For reasons stated in the application, BPXA believes that the
effects of oil on seals and whales in the open waters of the Beaufort
Sea are likely to be negligible, but there could be effects on whales
in areas where both oil and the whales are at least partially confined
in leads or at the ice edge. In the spring, bowhead and beluga whales
migrate through offshore leads in the ice. However, given the probable
alongshore trajectory of oil spilled from Northstar, in relation to the
whale migration route through offshore waters, interactions between oil
and whales are unlikely in the spring. In the summer, bowheads are
normally found in Canadian waters, and beluga whales are found far
offshore. As a result, at this time of the year, these species will be
unaffected should a spill occur. However, oil that persists in the
Beaufort Sea into the fall or winter and is not contained and/or
removed may impact bowhead whales.
In the fall, the migration route of bowheads can be close to shore.
If bowheads were moving through leads in the pack ice, or were
concentrated in nearshore waters, or if the oil migrated seaward of the
barrier islands, some bowhead whales might not be able to avoid oil
slicks and could be subject to prolonged contamination. However,
because the autumn migration of bowhead whales past Northstar extends
over several weeks and because most of the whales travel along routes
well north of Northstar, according to BPXA, only a small minority of
the whales are likely to intercept patches of spilled oil. The effects
of oil on these whales have been described in several documents (BPXA,
1999; Corps, 1999; Loughlin et
[[Page 34026]]
al. (1994), which NMFS reviewed during this rulemaking.
Ringed seals exposed to oil during the winter or early spring could
die if exposed to heavy doses of oil for prolonged periods of time.
Prolonged exposure could occur if fuel or crude oil was spilled in or
reached nearshore waters, was spilled in a lead used by seals, or was
spilled under the ice when seals have limited mobility. Individual
seals residing in these habitats may not be able to avoid prolonged
contamination and some would die. Studies in Prince William Sound
indicated a long-term decline of 36 percent in numbers of molting
harbor seals located on those haulouts affected by oil from the EXXON
VALDEZ spill. In addition, newborn seal pups, if contacted by oil, will
likely die from oiling through loss of insulation and resulting
hypothermia (BPXA, 1999). Because the number of ringed and bearded
seals in the central Beaufort Sea represents a relatively small portion
of their total populations, and even large oil spills are not expected
to extend over large areas, relatively few ringed and bearded seals
would be impacted, and impacts on regional population size would be
expected to be minor.
In addition to oil contacting marine mammals, oil spill cleanup
activities could increase disturbance effects on either whales or
seals, causing temporary disruption and possible displacement effects
(MMS, 1996; BPXA, 1999). In the event of a large spill contacting and
extensively oiling coastal habitats, the presence of response staff,
equipment, and many low-flying aircraft involved in the cleanup will
(depending on the time of the spill and cleanup), potentially displace
seals and other marine mammals. However, the potential effects on
bowhead and beluga whales are expected to be less than those on seals.
The whales tend to occur well offshore where cleanup activities (during
the open water season) are unlikely to be concentrated (BPXA, 1999).
Also, because bowheads are transient and during the majority of the
year, absence from the area would lessen the likelihood of impact by
cleanup activities.
Estimated Level of Incidental Take
BPXA (1999) estimates that, during the ice-covered period, 91
(maximum 125) ringed seals and 1 (maximum 5) bearded seals potentially
may be incidentally harassed during construction activities and 77
(maximum 105) ringed seals and 1 (maximum 5) bearded seals potentially
may be incidentally harassed annually during oil production activities.
BPXA estimates these takings by harassment during the ice-covered
season by assuming that seals within 3.7 km (2.3 mi) of Seal Island,
within 1.85 km (1.1 mi) of the pipeline construction corridor and
related work areas, and within 0.66 km (0.4 mi) of ice roads will be
``taken'' annually. These anticipated levels of potential take are
estimated based on observed densities of seals during recent (1997-
1999) BPXA/LGL aerial surveys in the Northstar area during spring
(Miller et al., 1998; Link et al., 1999; Moulton and Elliott, 1999)
plus correction factors for seals missed by aerial surveyors. NMFS
however, concurs with BPXA (1999) that these ``take'' estimates could
result in an overestimate of the actual numbers of seals ``taken,'' if
all seals within these disturbance distances do not move from the area.
It should be noted that NMFS does not consider an animal to be
``taken'' if it simply hears a noise, but does not make a biologically
significant response to avoid that noise.
NMFS notes moreover, that BPXA has recently adopted new methods for
on-ice monitoring of ringed seals which include the use of dogs to find
seal structures. These new methods may result in a better estimate of
the numbers of seals actually taken by different industrial activities.
During the open-water season, BPXA (1999) estimates that 7 (maximum
22) ringed seals, 1 spotted seal, 1-5 bearded seals, 173 (maximum
1,533) bowhead whales, less than 5 gray whales, and 6 (maximum 45)
beluga whales may be incidentally harassed annually whether from
construction or operations. BPXA assumes that seals and beluga whales
within 1 km (0.6 mi) radius of Seal Island will be harassed incidental
to construction and other activities on the island. Assumed ``take''
radii for bowhead whales are based on the distance at which the
received level of construction noise from the island would diminish
below 115 dB re 1 Pa. This distance has been estimated as 3.2
km (2 mi).
Although the potential impacts to the several marine mammal species
known to occur in these areas is expected to be limited to harassment,
a small number of marine mammals may incur lethal and serious injury.
Most effects, however, are expected to be limited to temporary changes
in behavior or displacement from a relatively small area near the
construction site and will involve only small numbers of animals
relative to the size of the populations. However, the inadvertent and
unavoidable take by injury or mortality of small numbers of ringed seal
pups may occur during ice clearing for construction of ice roads. In
addition, some injury or mortality of whales or seals may result in the
event that an oil spill occurs. As a result, BPXA requested that,
because a small number of marine mammals might be injured or killed,
that takings by mortality also be covered by the regulations. However,
BPXA does not indicate the level of incidental take resulting from an
oil spill at Northstar during either the ice-covered period or the
open-water period. Because of the unpredictable occurrence, nature,
seasonal timing, duration, and size of an oil spill occurring during
the 5-year authorization period of these regulations, a specific
prediction cannot be made of the estimated number of takes by an oil
spill.
According to BPXA, in the unlikely event of a major oil spill at
Northstar or from the associated subsea pipeline, numbers of marine
mammals killed or injured are expected to be small and the effects on
the populations negligible. While NMFS agrees that a major oil spill is
unlikely during the 5-year period of these regulations, and believes
that it is even less likely that spilled oil will intercept large
numbers of marine mammals, NMFS cannot necessarily conclude that the
effects on marine mammal populations will be negligible. Depending upon
magnitude of the spill, its location and seasonality, an oil spill
could have the potential to affect ringed and bearded seals, and/or
bowhead and beluga whales. Because of the large population size of
ringed seals and bearded seals and the small number of animals in the
immediate vicinity of the Northstar facility, and because spilled oil
is unlikely to disperse widely and, therefore, affect large numbers of
seals, NMFS has determined that the effect on ringed and bearded seals
will be negligible, even in the unlikely event that a major oil spill
occurred.
Bowhead and beluga whales, however, while potentially less likely
to come into contact with spilled oil because of their more prevalent
offshore distribution, and potentially less seriously affected when in
oiled waters provided their passage is not blocked, may be affected
more seriously, if impacted, because of their smaller population sizes.
However, based upon the Corps' analysis that there is less than a 10-
percent chance of a major oil spill occurring during the 20-30 year
lifespan of Northstar, and because NMFS believes that the potential for
a major oil spill occurring during the 5-year period of these
regulations and intercepting these species would be significantly less
than 10 percent (approaching 1 percent), NMFS can
[[Page 34027]]
make a determination that the taking of these two species incidental to
construction and operation at the Northstar oil production facility
will have no more than a negligible impact on them.
Impacts on Subsistence Uses
This section contains a summary on the potential impacts from
construction and operational activities on subsistence needs for marine
mammals. A more detailed description can be found in BPXA's
application. This information, in conjunction with information provided
by the AEWC and NSB in their comments, and information provided in the
Corps' FEIS, is accepted by NMFS as the best information available to
date on the potential effects on the availability of marine mammals for
subsistence uses in the Beaufort Sea area. Should new information on
the impacts to subsistence harvest of bowhead whales become available
that may be contrary to the determination made here, NMFS will consider
the information during review of a request for future LOAs and/or their
renewal.
Noise Impacts
The disturbance and potential displacement of bowhead whales and
other marine mammals by sounds from vessel traffic, on-island
construction activities (e.g., impact hammering), and production
activities are one of the principle concerns related to subsistence use
of the area. The harvest of marine mammals is central to the culture
and subsistence economies of the coastal North Slope communities. In
particular, if elevated noise levels are displacing migrating bowhead
whales farther offshore, this could make the harvest of these whales
more difficult and dangerous for hunters. The harvest could also be
affected if bowheads become more skittish when exposed to vessel or
impact-hammering noise (BPXA, 1999).
Construction activities and associated vessel and helicopter
support began in December 1999, and are expected to continue into
September or October 2000, depending upon ice conditions. Few bowhead
whales approach the Northstar area before the end of August, and
subsistence whaling generally does not begin until after September 1
and occurs in areas well east of the construction site. Therefore, a
substantial portion of the Northstar development is expected to be
completed when no bowhead whales are nearby and when no whaling is
underway. Insofar as possible, BPXA expects vessel and aircraft traffic
near areas of particular concern for whaling will be completed before
the end of August. In addition, BPXA does not expect impact hammering
to occur during the period when subsistence hunting of migrating
bowhead whales is underway. NMFS expects that construction activities
that have the potential to disturb bowheads just prior to, and during
the bowhead subsistence hunt, would be subject for discussion and
resolution during the C&AA discussions. However, even without an
agreement to curtail activities during this period, NMFS does not
believe these activities will create sufficient level of noise to
result in an unmitigable adverse affect on subsistence uses of the
bowhead.
Underwater sounds from drilling and production operations on an
artificial gravel island are not very strong, and are not expected to
travel more than about 10 km (6.2 mi) from the source. BPXA states that
even those bowheads traveling along the southern edge of the migration
corridor are not expected to be able to even hear sounds from Northstar
until the whales are well west of the main hunting area.
Drilling will begin in the latter part of 2000 but will temporarily
cease in mid-2001 to allow installation and start-up of processing
facilities. Drilling is expected to resume by November 2001, after the
bowhead season, and continue until approximately November, 2002.
Drilling is, therefore, unlikely to impact either the bowheads or the
subsistence needs for this species, prior to the 2002 bowhead season.
Nuiqsut is the community closest to the area of the proposed
activity, and it harvests bowhead whales only during the fall whaling
season. In recent years, Nuiqsut whalers typically take zero to four
whales each season (BPXA, 1999). Nuiqsut whalers concentrate their
efforts on areas north and east of Cross Island, generally in water
depths greater than 20 m (65 ft). Cross Island, the principle field
camp location for Nuiqsut whalers, is located approximately 28.2 km
(17.5 mi) east of the Northstar construction activity area.
Whalers from the village of Kaktovik search for whales east, north,
and west of their village. Kaktovik is located approximately 200 km
(124.3 mi) east of Northstar. The westernmost reported harvest location
was about 21 km (13 mi) west of Kaktovik, near 70 deg.10'N. 144 deg.W.
(Kaleak, 1996). That site is approximately 180 km (112 mi) east of
Northstar.
Whalers from the village of Barrow search for bowhead whales much
further from the Northstar area, greater than 250 km (>175 mi) west.
While the effects on migrating bowheads from noise created by
Northstar construction or production are not expected to extend into
the area where Nuiqsut hunters usually search for bowheads and,
therefore, are not expected to affect the accessibility of bowhead
whales to hunters, it is recognized that it is difficult to determine
the maximum distance at which reactions occur (Moore and Clark, 1992).
As a result, in order to avoid any unmitigable adverse impact on
subsistence needs and to reduce potential interference with the hunt,
the timing of various construction activities at Northstar as well as
barge and aircraft traffic in the Cross Island area will be addressed
in a C&AA between BPXA and the AEWC on behalf of its bowhead whale
subsistence hunters. Also, NMFS believes that the September 1999,
Technical Monitoring Plan that will be implemented by BPXA will provide
information that will help resolve uncertainties about the effects of
construction noise on the accessibility of bowheads to hunters.
While Northstar activity has some potential to influence
subsistence seal hunting activities, the most important sealing area
for Nuiqsut hunters is off the Colville delta, extending as far west as
Fish Creek and as far east as Pingok Island (BPXA, 1999). Pingok Island
is about 24 km (15 mi) west of Northstar. The peak season for seal
hunting is during the summer months, but some hunting is conducted on
the landfast ice in late spring. In summer, boat crews hunt ringed,
spotted and bearded seals (BPXA, 1999). Thus, it is unlikely that
construction activity will have a significant negative impact on
Nuiqsut seal hunting.
Oil Spill Impacts
Oil spills have the potential to affect the hunt for bowhead
whales. While oil spills from production drilling or pipelines could
occur at any time of the year, NMFS believes that only if a significant
spill occurred just prior to or during the subsistence bowhead hunt and
spread into offshore waters would a reduction in the availability of
bowhead whales for subsistence uses be possible. While unlikely, oil
spills could extend into the bowhead hunting area under certain wind
and current conditions. BPXA (1999) states that even in the event of a
major spill, it is unlikely that more than a small number of those
bowheads encountered by hunters would be contaminated by oil. However,
disturbance associated with reconnaissance and cleanup activities could
affect bowhead whales and, thus, accessibility of bowheads to hunters.
As
[[Page 34028]]
a result, in the unlikely event that a major oil spill occurred during
the relatively short fall bowhead whaling season, it is possible that
bowhead whale hunting could be significantly affected. Moreover, even
with no more than a negligible impact on those marine mammals that
would be subject to subsistence hunting, individuals and communities as
a whole, may perceive that the whale or seal meat or products are
tainted or somehow unfit to eat or use. This could further impact
subsistence hunting of these animals. However, NMFS believes that
because (1) the probability of a large oil spill is less than 10
percent over the 20-30 years of Northstar operations, (2) bowhead
whales in the vicinity of Northstar and hunted only in the months of
September and October, limiting exposure time, (3) only under certain
wind and sea conditions would it be likely that oil would reach the
bowhead subsistence hunting area, (4) there will be an oil spill
response program in effect that will be as effective as possible in
Arctic waters, and (5) other mitigation measures have been suggested in
the event that oil did contact bowheads, NMFS has determined that the
construction and operation at Northstar is unlikely to result in an
unmitigable adverse impact on subsistence uses of marine mammals during
the period of these regulations. However, NMFS will continue to assess
this determination as monitoring and mitigation measures are
incorporated and improved through experience and as additional offshore
developments are proposed. NMFS may revise or clarify its
determinations during these rulemakings.
Impacts on Habitat
Invertebrates and fish, the nutritional basis for those whales and
seals found in the Beaufort Sea, may be affected by construction and
operation of the Northstar project. Fish may react to noise from
Northstar with reactions being quite variable and dependent upon
species, life history stage, behavior, and the sound characteristics of
the water. Invertebrates are not known to be affected by noise. Benthic
invertebrates would be affected by island and pipeline construction and
overburden placement on the seabottom. Fish may be temporarily or
permanently displaced by the island. These local, short-term effects
are unlikely to have an impact on marine mammal feeding, except on a
very local scale.
In the event of a large oil spill, fish and zooplankton in open
offshore waters are unlikely to be seriously affected. Fish and
zooplankton in shallow nearshore waters could sustain heavy mortality
if an oil spill were to remain within an area for several days or
longer. These affected nearshore areas may then be unavailable for use
as feeding habitat for seals and whales. However, because these seals
and whales are mobile, and bowhead feeding is uncommon along the coast
near Northstar, effects would be minor during the open water season. In
winter, effects of an oil spill on ringed seal food supply and habitat
would be locally significant in the shallow nearshore waters in the
immediate vicinity of the spill and oil slick. However, effects overall
would be negligible.
Mitigation Measures
Several mitigation measures were proposed by BPXA to reduce
harassment takes to the lowest level practicable and have been adopted,
with modification, by NMFS. Additional measures may be added or
modified in LOAs. Presently identified measures include:
(1) BPXA will begin winter construction activities in December.
This will eliminate contact with lairs that are actively used as
birthing lairs. Because it is still necessary to determine the number
of structures impacted by winter construction, BPXA will survey the
area(s) using trained dogs, to identify and avoid ringed seal
structures by a minimum of 150 m (492 ft), if practicable.
(2) Other than work done on the primary ice roads, if construction
activities are initiated in undisturbed areas BPXA will survey the
area(s), using trained dogs, in order to identify and avoid ringed seal
structures by a minimum of 150 m (492 ft); after March 20, activities
should avoid, to the greatest extent practicable, disturbance of any
located seal structure.
(3) During the open water season, BPXA will establish and monitor,
during the daytime, a 190 dB re 1 Pa safety range for seals
around the island for those construction activities with SPLs that
exceed that level. Establishing the safety range will require the
collection and analysis of sound attenuation in the waters of the
Northstar site.
(4) While whales are unlikely to approach the island during impact
hammering or other noisy activities, a 180 dB re 1 Pa safety
zone will be established and monitored during daylight hours around the
island.
(5) If any marine mammals are observed within their respective
safety range, operations will cease until such time as the observed
marine mammals have left the safety zone.
(6) Project scheduling indicates that impact hammering will not
occur during the period for subsistence hunting of westward migrating
bowhead whale.
(7) Helicopter flights to support Northstar construction will be
limited to a corridor from Seal Island to the mainland, and, except
when limited by weather, will maintain a minimum altitude of 1,000 ft
(305 m).
(8) Drilling activities will temporarily cease during the bowhead
whale migration during the first year of drilling activity (i.e.,
September, 2001).
Monitoring Measures
A detailed description of BPXA's proposed monitoring program for
implementation during the construction phase at Northstar can be found
in both the revised BPXA application (BPXA, 1999) and revised Technical
Monitoring Plan (LGL, LGL and Greeneridge, 1999). The open-water season
portion of BPXA's May 6, 1999, monitoring plan was reviewed by
scientists and others attending the annual open-water peer-review
workshop held in Seattle on July 1, 1999. The Technical Monitoring Plan
was revised to incorporate recommendations made during this meeting and
submitted to NMFS on September 1, 1999. This document was provided to
the public during the comment period on the proposed rule. Peer review
on the on-ice portion of the plan was conducted on October 14-15, 1999.
Recommendations from that workshop were incorporated into work
conducted this past winter and will be incorporated, as appropriate,
into future monitoring plans. A copy of the September 1, 1999, revised
monitoring plan is available upon request (see ADDRESSES). Peer review
of technical plans for monitoring during production activities will be
conducted at future peer review meetings.
A summary of marine mammal monitoring that will be conducted during
Northstar construction this year is provided here.
Monitoring will employ both marine mammal observations and acoustic
measurements and recordings. During the open-water period, monitoring
will consist of (1) acoustic measurements of sounds produced by
construction activities through boat-based hydrophones, sonobuoys
deployed by boat, and autonomous seafloor acoustic recorders; (2)
observations of marine mammals (primarily seals) from an elevated
platform on Seal Island, which will be made during periods with and
without construction underway; and, (3)
[[Page 34029]]
acoustic monitoring of the bowhead whale migration. Additional
monitoring may be required by NMFS through the peer review workshops.
During the ice-covered season, BPXA proposes to continue an ongoing
(since the spring, 1997) Before-After/Control-Impact Study on the
distribution and abundance of ringed seals in relation to development
of the offshore oil and gas resources in the central Beaufort Sea.
Collection and analysis of data before and after construction is
expected to provide a reliable method for assessing the impact of oil
and gas activities on ringed seal distribution in the Northstar
construction area. Other winter/spring monitoring will include (1) on-
ice searches for ringed seal lairs in areas where construction starts
in the mid-March through April period, (2) assessment of abandonment
rates for seal holes, and (3) acoustic measurements of sounds and
vibrations from construction. Additional monitoring may be required by
NMFS through the peer review workshops.
NMFS expects that the technical monitoring plan for production will
be submitted to NMFS later this year and subject to review by NMFS
biologists and revised appropriately prior to implementation.
Reporting Measures
BPXA is required to provide two reports annually to NMFS. The first
report is due 90 days after either the ice roads are no longer usable
or spring aerial surveys are completed, whichever is later. The second
report is required to be forwarded to NMFS 90 days after the formation
of ice in the central Alaskan Beaufort Sea prevents water access to
Northstar. These reports must include the dates and locations of
construction activities, details of marine mammal sightings, estimates
of the amount and nature of marine mammal takes, and any apparent
effects on accessibility of marine mammals to subsistence hunters.
A draft final technical report must be submitted to NMFS by April 1
of each year. The final technical report must fully describe the
methods and results of all monitoring tasks and a complete analysis of
the data. The draft final report will be subject to peer review before
being finalized by BPXA.
Determinations
NMFS has determined that the impact of construction and operation
of the Northstar project in the U.S. Beaufort Sea will result in no
more than a temporary modification in behavior by certain species of
cetaceans and pinnipeds. During the ice-covered season, pinnipeds close
to the island may be subject to incidental harassment due to the
localized displacement from construction of ice roads, from
transportation activities on those roads, and from construction and
production activities at Northstar. As cetaceans will not be in the
area during the ice-covered season, they will not be affected.
During the open-water season, the principal construction- and
operations-related noise activities will be impact hammering,
helicopter traffic, vessel traffic, and other general construction/
production activity on Seal Island. Sheet-pile driving is expected to
be completed prior to whales being present in the area. Sounds from
construction/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.
Disturbance to bowhead or beluga whales by on-island activities will be
limited to an area substantially less than that distance. Helicopter
traffic will be limited to nearshore areas between the mainland and the
island and is unlikely to approach or disturb whales. Barge traffic
will be located mainly inshore of the whales and will involve vessels
moving slowly, in a straight line, and at constant speed. Little
disturbance or displacement of whales by vessel traffic is expected.
While behavioral modifications may be made by these species to avoid
the resultant noise, this behavioral change is expected to have no more
than a negligible impact on the animals.
While the number of potential incidental harassment takes will
depend on the distribution and abundance of marine mammals (which vary
annually due to variable ice conditions and other factors) in the area
of operations, because the activity is in shallow waters inshore of the
main migration corridor for bowhead whales and far inshore of the main
migration corridor for belugas, the number of potential harassment
takings is estimated to be small. In addition, no take by injury and/or
death is anticipated, 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 bowhead whales are east of the construction/production area
in the Canadian Beaufort Sea until late August/early September,
activities at Northstar are not expected to impact subsistence hunting
of bowhead whales prior to that date. Appropriate mitigation measures
to avoid an unmitigable adverse impact on the availability of bowhead
whales for subsistence needs will be the subject of consultation
between BPXA and subsistence users.
Also, while construction/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 beluga and seals is fairly small, NMFS believes that
Northstar construction/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)). Because of this low potential
and because of the seasonality of bowheads, NMFS has determined that
the taking of marine mammals incidental to construction and operation
at the Northstar oil production facility will have no more than a
negligible impact on them. In addition, because there will be an oil
spill response program in effect that will be as effective as possible
in Arctic waters, and because other mitigation measures have been
suggested in the event that oil did contact bowheads, NMFS has
determined that there will not be an unmitigable adverse impact on
subsistence uses of marine mammals.
Changes to the Proposed Rule
In addition to the modifications made to the proposed rule as a
result of comments discussed previously and corrections of minor
typographical errors, the following amendments have been made to the
document.
Section 216.207 has been amended to clarify that this paragraph is
intended only for the initial submission of an application for an LOA,
not for subsequent renewals.
Section 216.209(a)(2) has been amended to note the time needed for
receipt of the monitoring reports required under 216.205.
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.
[[Page 34030]]
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 completed section 7 consultation on this action. The finding of
this consultation was that the issuance of the authorization was
unlikely to adversely affect the bowhead whale.
NEPA
On June 12, 1998 (63 FR 32207), the Environmental Protection Agency
(EPA) noted the availability for public review and comment a DEIS
prepared by the Corps under NEPA on Beaufort Sea oil and gas
development at Northstar. Comments on that document were accepted by
the Corps until August 31, 1998 (63 FR 43699, August 14, 1998). On
February 5, 1999 (64 FR 5789), EPA noted the availability for public
review and comment, a FEIS prepared by the Corps under NEPA on Beaufort
Sea oil and gas development at Northstar. Comments on that document
were accepted by the Corps until March 8, 1999. For information on
obtaining a copy of the FEIS, please contact the Corps (see ADDRESSES).
Based upon a review of the FEIS, the comments received on the DEIS and
FEIS, and the comments received during this rulemaking, NMFS has
adopted the Corps FEIS and has determined that it is not necessary to
prepare supplemental NEPA documentation.
Classification
This action has been determined to be significant for purposes of
Executive Order 12866.
Until these regulations are effective, BPXA cannot be issued an LOA
authorizing takings incidental to construction and operation at
Northstar. Therefore, since these regulations relieve a restriction on
BPXA, the prohibitions on the issuance of an LOA, are not subject to a
30-day delay in effective date under 5 U.S.C. 553(d)(1).
The Chief Counsel for Regulation of the Department of Commerce
certified, at the proposed rule stage, to the Chief Counsel for
Advocacy of the Small Business Administration that this final rule will
not have a significant economic impact on a substantial number of small
entities within the meaning of the Regulatory Flexibility Act. This
final rule will affect only one or two large oil producing companies
which, by definition, are not small businesses. It will also affect a
small number of contractors providing services related to monitoring
the impact of oil development in the Beaufort Sea on marine mammals.
Some of the affected contractors may be small businesses, but the
number involved would not be substantial. Further, since the monitoring
requirement is what would lead to the need for their services, the
economic impact on them would be beneficial. For all the above reasons,
a regulatory flexibility analysis is not required.
This final rule contains collection-of-information requirements
subject to the provisions of the Paperwork Reduction Act (PRA). These
requirements have been approved by OMB under control number 0648-0151,
and include an application for an LOA, an interim report, and a final
report. Other information requirements in the rule are not subject to
the PRA since they apply only to a single entity and, therefore, are
not contained in a rule of general applicability.
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the PRA unless that collection of information displays a currently
valid OMB control number.
The reporting burden for the approved collections-of-information
are estimated to be approximately 3 hours for an application for a LOA,
and 80 hours each for interim and final reports. These estimates
include the time for reviewing instructions, searching existing data
sources, gathering 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: May 18, 2000.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
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
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 Secs. 216.106 and
216.208 include, but may not be limited to, site construction,
including ice road and pipeline construction, vessel and helicopter
activity; and oil production activities, including ice road
construction, and vessel and helicopter activity, but excluding seismic
operations.
(a)(1) Northstar Oil and Gas Development; 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 May 25, 2000, until
May 25, 2005.
[[Page 34031]]
Sec. 216.202 Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to Secs. 216.106
and 216.208, the Holder of the Letter of Authorization may
incidentally, but not intentionally, take marine mammals by harassment,
injury, and mortality within the area described in Sec. 216.200(a),
provided the activity is in compliance with all terms, conditions, and
requirements of the regulations in this subpart and the appropriate
Letter of Authorization.
(b) The activities identified in Sec. 216.200 must be conducted in
a manner that minimizes, to the greatest extent practicable, any
adverse impacts on marine mammals, their habitat, and on the
availability of marine mammals for subsistence uses.
Sec. 216.203 Prohibitions.
Notwithstanding takings authorized by Sec. 216.200 and by a Letter
of Authorization issued under Secs. 216.106 and 216.208, no person in
connection with the activities described in Sec. 216.200 shall:
(a) Take any marine mammal not specified in Sec. 216.200(b);
(b) Take any marine mammal specified in Sec. 216.200(b) other than
by incidental, unintentional harassment, injury or mortality;
(c) Take a marine mammal specified in Sec. 216.200(b) if such
taking results in more than a negligible impact on the species or
stocks of such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and
requirements of the regulations in this subpart or a Letter of
Authorization issued under Sec. 216.106.
Sec. 216.204 Mitigation.
The activity identified in Sec. 216.200(a) must be conducted in a
manner that minimizes, to the greatest extent possible, adverse impacts
on marine mammals and their habitats. When conducting operations
identified in Sec. 216.200, the mitigation measures contained in the
Letter of Authorization issued under Secs. 216.106 and 216.208 must be
utilized.
Sec. 216.205 Measures to ensure availability of species for
subsistence uses.
When applying for a Letter of Authorization pursuant to
Sec. 216.207, or a renewal of a Letter of Authorization pursuant to
Sec. 216.209, the applicant must submit a Plan of Cooperation that
identifies what measures have been taken and/or will be taken to
minimize any adverse effects on the availability of marine mammals for
subsistence uses. A plan must include the following:
(a) A statement that the applicant has notified and met with the
affected subsistence communities to discuss proposed activities and to
resolve potential conflicts regarding timing and methods of operation;
(b) A description of what measures the applicant has taken and/or
will take to ensure that oil development activities will not interfere
with subsistence whaling or sealing;
(c) What plans the applicant has to continue to meet with the
affected communities to notify the communities of any changes in
operation.
Sec. 216.206 Requirements for monitoring and reporting.
(a) Holders of Letters of Authorization issued pursuant to
Secs. 216.106 and 216.208 for activities described in Sec. 216.200 are
required to cooperate with the National Marine Fisheries Service, and
any other Federal, state or local agency monitoring the impacts of the
activity on marine mammals. Unless specified otherwise in the Letter of
Authorization, the Holder of the Letter of Authorization must notify
the Administrator, Alaska Region, National Marine Fisheries Service, or
his/her designee, by letter or telephone, at least 2 weeks prior to
initiating 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 interim reports to
the Director, Office of Protected Resources, National Marine Fisheries
Service, no later than 90 days after completion of the winter
monitoring season (approximately September 15th), and 90 days after the
open water monitoring season (approximately February 1st).
This report must contain all information required by the Letter of
Authorization.
(e) A draft annual comprehensive report must be submitted by May
1st of the year following the issuance of a LOA;
(f) A final annual comprehensive report must be submitted within
the time period specified in the governing Letter of Authorization.
(g) A final comprehensive report on all marine mammal monitoring
and research conducted during the effective period of the regulations
in this subpart 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 the regulations in this subpart, 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 Secs. 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, in accordance with Administrative Procedure Act
requirements, a proposed amendment to Sec. 216.200(a). In conjunction
with amending Sec. 216.200(a), the National Marine Fisheries Service
will provide a minimum of 45 days for public comment on the application
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
[[Page 34032]]
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 Secs. 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 Secs. 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 subpart 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) In addition to complying with the provisions of Secs. 216.106
and 216.208, except as provided in paragraph (b) of this section, no
substantive modification (including withdrawal or suspension) to the
Letter of Authorization by the National Marine Fisheries Service,
issued pursuant to Secs. 216.106 and 216.208 and subject to the
provisions of this subpart shall be made until after notification and
an opportunity for public comment has been provided. For purposes of
this paragraph, a renewal of a Letter of Authorization under
Sec. 216.209, without modification (except for the period of validity),
is not considered a substantive modification.
(b) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species
or stocks of marine mammals specified in Sec. 216.200(b), a Letter of
Authorization issued pursuant to Secs. 216.106 and 216.208 may be
substantively modified without prior notification and an opportunity
for public comment. Notification will be published in the Federal
Register within 30 days subsequent to the action.
[FR Doc. 00-13184 Filed 5-24-00; 8:45 am]
BILLING CODE 3510-22-F