[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]



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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