[Federal Register Volume 78, Number 239 (Thursday, December 12, 2013)]
[Rules and Regulations]
[Pages 75488-75510]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-29553]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 100217096-1059-02]
RIN 0648-AY63


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to Operation of Offshore Oil and Gas Facilities in the U.S. 
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) Inc. (BP), 
is issuing regulations pursuant to the Marine Mammal Protection Act 
(MMPA) to govern the unintentional taking of marine mammals incidental 
to operation of offshore oil and gas facilities in the U.S. Beaufort 
Sea, Alaska, for the period January 2014-January 2019. These 
regulations, which allow for the issuance of Letters of Authorization 
(LOAs) for the incidental take of marine mammals during the described 
activities and specified timeframes, prescribe the permissible methods 
of taking and other means of effecting the least practicable adverse 
impact on marine mammal species or stocks and their habitat, as well as 
requirements pertaining to the monitoring and reporting of such taking.

DATES: Effective from January 13, 2014 through January 14, 2019.

ADDRESSES: A copy of BP's application and NMFS' Environmental 
Assessment (EA) and Finding of No Significant Impact (FONSI) may be 
obtained by writing to Michael Payne, Chief, Permits and Conservation 
Division, Office of Protected Resources, NMFS, 1315 East West Highway, 
Silver Spring, MD 20910, calling the contact listed under FOR FURTHER 
INFORMATION CONTACT, or visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this 
final rule may also be viewed, by appointment, during regular business 
hours at the above address.

FOR FURTHER INFORMATION CONTACT: Candace Nachman, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce (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) during periods of not more than five consecutive years each if 
certain findings are made and regulations are issued or, if the taking 
is limited to harassment, notice of a proposed authorization is 
provided to the public for review.
    Authorization shall be granted if NMFS finds that the taking will 
have a negligible impact on the species or stock(s), will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses, and if the permissible methods of taking 
and requirements pertaining to the mitigation, monitoring and reporting 
of such taking are set forth. NMFS has defined ``negligible impact'' in 
50 CFR 216.103 as: ``. . . an impact resulting from the specified 
activity that cannot be reasonably expected to, and is not reasonably 
likely to, adversely affect the species or stock through effects on 
annual rates of recruitment or survival.''
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment].

Summary of Request

    On November 6, 2009, NMFS received an application from BP 
requesting authorization for the take of six marine mammal species 
incidental to operation of the Northstar development in the Beaufort 
Sea, Alaska, over the course of 5 years, which would necessitate the 
promulgation of new five-year regulations. Construction of Northstar 
was completed in 2001. The proposed activities for 2014-2019 include a 
continuation of drilling operations (although likely in a very limited 
manner), production, and emergency training operations but no 
construction or activities of similar intensity to those conducted 
between 1999 and 2001. The likely or possible impacts of the planned 
continuing operations at Northstar on marine mammals involve both non-
acoustic and acoustic effects. Potential non-acoustic effects could 
result from the physical presence of personnel, structures and 
equipment, construction or maintenance activities, and the occurrence 
of oil spills. Petroleum development and associated activities in 
marine waters introduce sound into the environment, produced by island 
construction, maintenance, and drilling, as well as vehicles operating 
on the ice, vessels, aircraft, generators, production machinery, gas 
flaring, and camp operations. BP requested authorization to take 
individuals of three cetacean and three pinniped species by Level B 
Harassment. They are: bowhead, gray, and beluga whales and ringed, 
bearded, and spotted seals. Further, BP requested authorization to take 
five individual ringed seals by injury or mortality annually over the 
course of the 5-year rule. In this final rule, NMFS has authorized the 
take by Level B harassment of all six species listed here and the take 
by injury or mortality of ringed seals.

Description of the Specified Activity

Background on the Northstar Development Facility

    BP is currently producing oil from an offshore development in the 
Northstar Unit (see Figure 1 in BP's application). This development is 
the first in the Beaufort Sea that makes use of a subsea pipeline to 
transport oil to shore and then into the Trans-Alaska Pipeline System. 
The Northstar facility was built in State of Alaska waters on the 
remnants of Seal Island approximately 6 mi (9.5 km) offshore from Point 
Storkersen, northwest of the Prudhoe Bay industrial complex, and 3 mi 
(5 km) seaward of the closest barrier island. It is located 
approximately 54 mi (87 km) northeast of Nuiqsut, an Inupiat community.
    The main facilities associated with Northstar include a gravel 
island work surface for drilling and oil production facilities and two 
pipelines connecting the island to the existing infrastructure at 
Prudhoe Bay. One pipeline transports crude oil to shore, and the second 
imports gas from Prudhoe Bay for gas injection at Northstar. Permanent 
living quarters and supporting oil production facilities are also 
located on the island.

[[Page 75489]]

    The construction of Northstar began in early 2000 and continued 
through 2001. BP states that activities with similar intensity to those 
that occurred during the construction phase between 2000 and 2001 are 
not planned or expected for any date within the 5-year period that 
would be governed by these regulations. Well drilling began on December 
14, 2000, and oil production commenced on October 31, 2001. Additional 
background was contained in the proposed rule (76 FR 39706, July 6, 
2011) and can also be found in BP's application (see ADDRESSES).

Expected Activities in 2014-2019

    During the 5-year period from January 2014-January 2019, BP intends 
to continue production and emergency training operations. As mentioned 
previously, drilling is not specifically planned for the 2014-2019 time 
period but may be required at some point in the future. The activities 
described in the proposed rule could occur at any time during the 5-
year period. Table 2 in BP's application (see ADDRESSES) summarizes the 
vehicles and machinery used during BP's Northstar activities since the 
development of Northstar Island. Although not all of these activities 
are planned to take place during the January 2014-January 2019 
operational phase, some of the equipment may be required to repair or 
replace existing structures or infrastructure on Northstar in the 
future. A detailed overview of all potential activities, such as 
transportation, production and drilling operations, repair and 
maintenance activities, and emergency and oil spill response training, 
was provided in the proposed rule (76 FR 39706, July 6, 2011). No 
changes have been made to any of the proposed activities.

Northstar Sound Characteristics

    During continuing production activities at Northstar, sounds and 
non-acoustic stimuli will be generated by vehicle traffic, vessel 
operations, helicopter operations, drilling, and general operations of 
oil and gas facilities (e.g., generator sounds and gas flaring). The 
sounds generated from transportation activities will be detectable 
underwater and/or in air some distance away from the area of activity. 
The distance will depend on the nature of the sound source, ambient 
noise conditions, and the sensitivity of the receptor. Take of marine 
mammals by Level B harassment incidental to the activities mentioned in 
this document could occur for the duration of these regulations. The 
type and significance of the harassment is likely to depend on the 
species and activity of the animal at the time of reception of the 
stimulus, as well as the distance from the sound source and the level 
of the sound relative to ambient conditions. The proposed rule (76 FR 
39706, July 6, 2011) contained a detailed description of construction, 
operational, and transportation sounds that could be introduced into 
the marine and in-air environments. No changes have been made to that 
information.

Description of Marine Mammals in the Area of the Specified Activity

    The Beaufort Sea supports a diverse assemblage of marine mammals, 
including: bowhead, gray, beluga, killer, minke, and humpback whales; 
harbor porpoises; ringed, ribbon, spotted, and bearded seals; narwhals; 
polar bears; and walruses. The bowhead and humpback whales and polar 
bear are listed as ``endangered'' under the Endangered Species Act 
(ESA) and as depleted under the MMPA. The ringed and bearded seals are 
listed as ``threatened'' under the ESA. Certain stocks or populations 
of gray, beluga, and killer whales and spotted seals are listed as 
endangered; however, none of those stocks or populations occur in the 
activity area. Additionally, the ribbon seal is considered a ``species 
of concern'' under the ESA. Both the walrus and the polar bear are 
managed by the U.S. Fish and Wildlife Service (USFWS) and are not 
considered further in this final rule.
    Of the species mentioned here, the ones that are most likely to 
occur near the Northstar facility include: bowhead, gray, and beluga 
whales and ringed, bearded, and spotted seals. Ringed seals are year-
round residents in the Beaufort Sea and are anticipated to be the most 
frequently encountered species in the project area. Bowhead whales are 
anticipated to be the most frequently encountered cetacean species in 
the project area; however, their occurrence is not anticipated to be 
year-round. The most common time for bowheads to occur near Northstar 
is during the fall migration westward through the Beaufort Sea, which 
typically occurs from late August through October each year.
    The proposed rule contains a discussion of six species that are not 
considered further in the analysis because of their rarity in the 
project area. The ``Description of Marine Mammals in the Area of the 
Specified Activity'' has not changed from the proposed rule. Please 
refer to the proposed rule (76 FR 39706, July 6, 2011) for the complete 
discussion. BP's application contains information on the status, 
distribution, seasonal distribution, abundance, and life history 
functions of each of the six species under NMFS jurisdiction likely to 
be impacted by the proposed activities. When reviewing the application, 
NMFS determined that the species descriptions provided by BP correctly 
characterized the status, distribution, seasonal distribution, and 
abundance of each species. Please refer to the application for that 
information (see ADDRESSES). Additional information can also be found 
in the NMFS Stock Assessment Reports (SAR). The Alaska 2012 SAR is 
available at: http://www.nmfs.noaa.gov/pr/sars/pdf/ak2012.pdf.

Brief Background on Marine Mammal Hearing

    When considering the influence of various kinds of sound on the 
marine environment, it is necessary to understand that different kinds 
of marine life are sensitive to different frequencies of sound. Based 
on available behavioral data, audiograms have been derived using 
auditory evoked potentials, anatomical modeling, and other data. 
Southall et al. (2007) designate ``functional hearing groups'' for 
marine mammals and estimate the lower and upper frequencies of 
functional hearing of the groups. The functional groups and the 
associated frequencies are indicated below (though animals are less 
sensitive to sounds at the outer edge of their functional range and 
most sensitive to sounds of frequencies within a smaller range 
somewhere in the middle of their functional hearing range):
     Low frequency cetaceans (13 species of mysticetes): 
functional hearing is estimated to occur between approximately 7 Hz and 
22 kHz (however, a study by Au et al. (2006) of humpback whale songs 
indicate that the range may extend to at least 24 kHz);
     Mid-frequency cetaceans (32 species of dolphins, six 
species of larger toothed whales, and 19 species of beaked and 
bottlenose whales): functional hearing is estimated to occur between 
approximately 150 Hz and 160 kHz;
     High frequency cetaceans (eight species of true porpoises, 
six species of river dolphins, Kogia, the franciscana, and four species 
of cephalorhynchids): functional hearing is estimated to occur between 
approximately 200 Hz and 180 kHz;
     Pinnipeds in Water: functional hearing is estimated to 
occur between approximately 75 Hz and 75 kHz, with the greatest 
sensitivity between approximately 700 Hz and 20 kHz; and

[[Page 75490]]

     Pinnipeds in Air: functional hearing is estimated to occur 
between approximately 75 Hz and 30 kHz.
    As mentioned previously in this document, six marine mammal species 
(three cetacean and three pinniped species) are likely to occur in the 
Northstar facility area. Of the three cetacean species likely to occur 
in BP's project area, two are classified as low frequency cetaceans 
(i.e., bowhead and gray whales) and one is classified as a mid-
frequency cetacean (i.e., beluga whales) (Southall et al., 2007). The 
proposed rule (76 FR 39706, July 6, 2011) contains a detailed 
discussion regarding available information on underwater audiograms and 
vocalizations of some of the marine mammals in the area. That 
information has not changed and is not repeated here.

Potential Effects of the Specified Activity on Marine Mammals

    With respect to the MMPA, NMFS' effects assessment serves four 
primary purposes: (1) To prescribe the permissible methods of taking 
(i.e., Level B Harassment or mortality, including an identification of 
the number and types of take that could occur by Level B harassment or 
mortality) and to prescribe other means of effecting the least 
practicable adverse impact on such species or stock and its habitat 
(i.e., mitigation); (2) to determine whether the specified activity 
will have a negligible impact on the affected species or stocks of 
marine mammals (based on the likelihood that the activity will 
adversely affect the species or stock through effects on annual rates 
of recruitment or survival); (3) to determine whether the specified 
activity will have an unmitigable adverse impact on the availability of 
the species or stock(s) for subsistence uses; and (4) to prescribe 
requirements pertaining to monitoring and reporting.
    The likely or possible impacts of the planned offshore oil 
developments at Northstar on marine mammals involve both non-acoustic 
and acoustic effects. Potential non-acoustic effects could result from 
the physical presence of personnel, structures and equipment, 
construction or maintenance activities, and the occurrence of oil 
spills. In winter, during ice road construction, and in spring, 
flooding on the sea ice may displace some ringed seals along the ice 
road corridor. There is a small chance that a seal pup might be injured 
or killed by on-ice construction or transportation activities. A major 
oil spill is unlikely and, if it occurred, its effects are difficult to 
predict.
    Petroleum development and associated activities in marine waters 
introduce sound into the environment, produced by island construction, 
maintenance, and drilling, as well as vehicles operating on the ice, 
vessels, aircraft, generators, production machinery, gas flaring, and 
camp operations. The potential effects of sound from the activities 
might include one or more of the following: masking of natural sounds; 
behavioral disturbance and associated habituation effects; and, at 
least in theory, temporary or permanent hearing impairment (Richardson 
et al., 1995b). However, for reasons discussed in the proposed rule, it 
is unlikely that there would be any cases of temporary, or especially 
permanent, hearing impairment resulting from these activities.
    In the ``Potential Effects of Specified Activities on Marine 
Mammals'' section of the proposed rule, NMFS included a qualitative 
discussion of the different ways that activities at Northstar may 
potentially affect marine mammals, which included detailed discussions 
regarding the potential effects of sound and oil on cetaceans and 
pinnipeds. Marine mammals may experience masking and behavioral 
disturbance. However, some of the effects are expected to be less for 
cetaceans, as the higher sound levels are found close to shore, usually 
further inshore than the migration paths of cetaceans. Additionally, 
cetaceans are not found in the Northstar area during the ice-covered 
season; therefore, they would only be potentially impacted during 
certain times of the year. The information contained in the ``Potential 
Effects of Specified Activities on Marine Mammals'' section from the 
proposed rule has not changed. Please refer to the proposed rule for 
the full discussion (76 FR 39706, July 6, 2011).

Anticipated Effects on Marine Mammal Habitat

    Potential impacts to marine mammals and their habitat as a result 
of operation of the Northstar facility are mainly associated with 
elevated sound levels. These underwater sound levels will likely cause 
some fish and invertebrate species to either exhibit a behavioral 
reaction or temporarily disperse from or avoid areas close to Northstar 
for a limited time. There is also the potential for impacts to marine 
mammal habitat from ice road construction and an oil spill (should one 
occur). Ringed seals build subnivean lairs in the Beaufort Sea in the 
spring months. The amount of habitat altered by Northstar ice road 
construction is minimal compared to the overall habitat available in 
the region. In the unlikely event of a large or very large oil spill, 
marine mammal prey species could be oiled, or the marine mammals 
themselves could be oiled. BP integrated several design features and 
conducts regular inspections and maintenance to reduce the potential 
for oil spills on the island or in the marine environment. The proposed 
rule contained a full discussion of the potential impacts to marine 
mammal habitat and prey species in the project area. No changes have 
been made to that discussion. Please refer to the proposed rule for the 
full discussion of potential impacts to marine mammal habitat (76 FR 
39706, July 6, 2011), which includes a discussion of common marine 
mammal prey species in the area. In conclusion, NMFS has determined 
that BP's operation of the Northstar Development area is not expected 
to have any habitat-related effects that could cause significant or 
long-term consequences for individual marine mammals or on the food 
sources that they utilize.

Mitigation

    In order to issue an incidental take authorization (ITA) under 
section 101(a)(5)(A) of the MMPA, NMFS must, where applicable, set 
forth the permissible methods of taking pursuant to such activity, and 
other means of effecting the least practicable adverse impact on such 
species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of such species or stock for taking for subsistence 
uses (where relevant).
    As part of its application, BP proposed several mitigation measures 
in order to ensure the least practicable adverse impact on marine 
mammal species that may occur in the project area. BP proposed 
different mitigation measures for the ice-covered season and for the 
open-water season. The proposed mitigation measures are described fully 
in BP's application (see ADDRESSES) and summarized here. After a review 
of these measures and comments from the peer review panel and public 
(see the ``Monitoring Plan Peer Review'' and ``Comments and Responses'' 
sections later in this document), NMFS determined that some measures 
should be modified or added in order to effect the least practicable 
adverse impact on the species or stock and its habitat. Those additions 
are summarized here and described in more detail later in this 
document.

[[Page 75491]]

Ice-Covered Season Mitigation Measures

    In order to reduce impacts to ringed seal construction of birth 
lairs, BP must begin winter construction activities (e.g., ice road 
construction) on the sea ice as early as possible once weather and ice 
conditions permit such activities. Any ice road or other construction 
activities that are initiated after March 1 in previously undisturbed 
areas in waters deeper than 10 ft (3 m) must be surveyed, using trained 
dogs, in order to identify and avoid ringed seal structures by a 
minimum of 492 ft (150 m). If dog surveys are conducted, trained dogs 
shall search all floating sea ice for any ringed seal structures. Those 
surveys shall be done prior to the new proposed activity on the 
floating sea ice to provide information needed to prevent injury or 
mortality of young seals. Additionally, after March 1 of each year, 
activities should avoid, to the greatest extent practicable, 
disturbance of any located seal structure. It should be noted that 
since 2001, none of BP's activities took place after March 1 in 
previously undisturbed areas, so no on-ice searches were conducted.

Open-Water Season Mitigation Measures

    All non-essential boat, hovercraft, barge, and air traffic shall be 
scheduled to avoid periods when whales (especially bowhead whales) are 
migrating through the area. Helicopter flights to support Northstar 
activities shall be limited to a corridor from Seal Island to the 
mainland, and, except when limited by weather or personnel safety, 
shall maintain a minimum altitude of 1,000 ft (305 m), except during 
takeoff and landing.
    Impact hammering activities may occur at any time of year to repair 
sheet pile or dock damage due to ice impingement. Impact hammering is 
most likely to occur during the ice-covered season or break-up period 
and would not be scheduled during the fall bowhead migration. However, 
if such activities were to occur during the open-water or broken ice 
season, certain mitigation measures described here are required to be 
implemented. Based on studies by Blackwell et al. (2004a), it is 
predicted that only impact driving of sheet piles or pipes that are in 
the water (i.e., those on the dock) could produce received levels of 
190 dB re 1 [micro]Pa (rms) and then only in immediate proximity to the 
pile. The impact pipe driving in June and July 2000 did not produce 
received levels as high as 180 dB re 1 [micro]Pa (rms) at any location 
in the water. This was attributable to attenuation by the gravel and 
sheet pile walls (Blackwell et al., 2004a). BP anticipates that 
received levels for any pile driving that might occur within the sheet 
pile walls of the island in the future would also be less than 180 dB 
(rms) at all locations in the water around the island. If impact pile 
driving were planned in areas outside the sheet pile walls, it is 
possible that received levels underwater might exceed the 180 dB re 1 
[micro]Pa (rms) level.
    NMFS has established acoustic thresholds that identify the received 
sound levels above which hearing impairment or other injury could 
potentially occur, which are 180 and 190 dB re 1 [micro]Pa (rms) for 
cetaceans and pinnipeds, respectively (NMFS, 1995, 2000). To prevent or 
at least minimize exposure to sound levels that might cause hearing 
impairment, an exclusion zone shall be established and monitored for 
the presence of seals and whales. Establishment of the exclusion zone 
of any source predicted to result in received levels underwater above 
180 dB (rms) will be analyzed using existing data collected in the 
waters of the Northstar facility (see the ``Monitoring and Reporting'' 
section later in this document or BP's application).
    If observations and mitigation are required, a protected species 
observer stationed at an appropriate viewing location on the island 
will conduct watches commencing 30 minutes prior to the onset of impact 
hammering or other identified activity and will continue throughout the 
activity and for 30 minutes after the activity ends. The ``Monitoring 
and Reporting'' section later in this document contains a description 
of the observer program. If pinnipeds are seen within the 190 dB re 1 
[micro]Pa radius (the ``exclusion zone''), then operations shall shut 
down or reduce SPLs sufficiently to ensure that received SPLs do not 
exceed those prescribed here (i.e., power down). If whales are observed 
within the 180 dB re 1 [micro]Pa (rms) radius (the ``exclusion zone''), 
operations shall shut down or reduce SPLs sufficiently to ensure that 
received SPLs do not exceed those prescribed here (i.e., power down). 
The shutdown or reduced SPL shall be maintained until such time as the 
observed marine mammal(s) has been seen to have left the applicable 
exclusion zone or until 15 minutes have elapsed in the case of a 
pinniped or odontocete or 30 minutes in the case of a mysticete without 
resighting, whichever occurs sooner.
    In response to a recommendation from the public, a ramp-up 
technique shall be used at the beginning of each day's in-water pile 
driving activities and if pile driving resumes after it has ceased for 
more than 1 hour. If a vibratory driver is used, BP is required to 
initiate sound from vibratory hammers for 15 seconds at reduced energy 
followed by a 1-minute waiting period. The procedure shall be repeated 
two additional times before full energy may be achieved. If a non-
diesel impact hammer is used, BP is required to provide an initial set 
of strikes from the impact hammer at reduced energy, followed by a 1-
minute waiting period, then two subsequent sets. If a diesel impact 
hammer is used, BP is required to turn on the sound attenuation device 
for 15 seconds prior to initiating pile driving.
    Should any new drilling into oil-bearing strata be required during 
the effective period of these regulations, the drilling shall not take 
place during either open-water or spring-time broken ice conditions.

Oil Spill Contingency Plan

    The taking by harassment, injury, or mortality of any marine mammal 
species incidental to an oil spill is prohibited. However, in the 
unlikely event of an oil spill, BP expects to be able to contain oil 
through its oil spill response and cleanup protocols. An oil spill 
prevention and contingency response plan was developed and approved by 
the Alaska Department of Environmental Conservation, U.S. Department of 
Transportation, U.S. Coast Guard, and Bureau of Safety and 
Environmental Enforcement (BSEE; formerly MMS). The plan is reviewed 
annually and revised and updated when changes occur. BP's plan has been 
amended several times since its initial approval, with the last 
revision occurring in March 2012. Major changes since 1999 include the 
following: Seasonal drilling restrictions from June 1 to July 20 and 
from October 1 until ice becomes 18 in (46 cm) thick; changes to the 
response planning standard for a well blowout as a result of reductions 
in well production rates; and deletion of ice auguring for monitoring 
potential sub-sea oil pipeline leaks during winter following 
demonstration of the LEOS leak detection system. Many of the most 
recent changes were made in response to new BSEE regulations relating 
to updated safety standards and practices. Future changes to the 
response planning standards may be expected in response to declines in 
well production rates and pipeline throughput. The proposed rule (76 FR 
39706, July 6, 2011) contained a summary of the plan's components. 
Please refer to that document. Additionally, the March 2012 version of 
BP's oil spill contingency plan can be viewed on the Internet at: 
http://

[[Page 75492]]

www.nmfs.noaa.gov/pr/permits/incidental.htm.

Mitigation Conclusions

    NMFS has carefully evaluated the applicant's proposed mitigation 
measures and considered a range of other measures in the context of 
ensuring that NMFS prescribes the means of effecting the least 
practicable adverse impact on the affected marine mammal species and 
stocks and their habitat. Our evaluation of potential measures included 
consideration of the following factors in relation to one another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals;
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
     The practicability of the measure for applicant 
implementation.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures recommended by the public, NMFS has determined 
that the mitigation measures described above provide the means of 
effecting the least practicable adverse impact on marine mammal species 
or stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance. Measures to ensure 
availability of such species or stock for taking for certain 
subsistence uses are discussed later in this document (see ``Impact on 
Availability of Affected Species or Stock for Taking for Subsistence 
Uses'' section).

Monitoring and Reporting

    In order to issue an ITA for an activity, section 101(a)(5)(A) of 
the MMPA states that NMFS must, where applicable, set forth 
``requirements pertaining to the monitoring and reporting of such 
taking''. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) 
indicate that requests for ITAs must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present in the action area.
    The monitoring program proposed by BP in its application and 
described here is based on the continuation of previous monitoring 
conducted at Northstar. Information on previous monitoring can be found 
in the ``Previous Activities and Monitoring'' section found later in 
this document. The monitoring program has been modified based on 
comments received from the public and the peer review panel (see the 
``Monitoring Plan Peer Review'' and ``Comments and Responses'' sections 
later in this document).
    BP's monitoring focuses on ringed seals and bowhead whales, as they 
are the most prevalent species found in the Northstar Development area. 
No monitoring is proposed specifically for bearded or spotted seals or 
for gray or beluga whales, as their occurrence near Northstar is 
limited. However, opportunistic data may be collected for these species 
should they occur in the area (e.g., vocalizations may be recorded on 
the acoustic array). Few, if any, observations of these species were 
made during the intensive monitoring from 1999 to 2004. If sightings of 
these (or other) species are made, those observations will be included 
in the monitoring reports (described later in this document) that will 
be prepared.

Annual Monitoring Plans

    BP will continue the long-term observer program, conducted by 
island personnel, of ringed seals during the spring and summer. This 
program is intended to assess the continued long-term stability of 
ringed seal abundance and habitat use near Northstar as indexed by 
counts obtained on a regular and long-term basis. Northstar staff will 
count seals at Northstar from May 15-July 15 each year from the 108 ft 
(33 m) high process module following a standardized protocol since 
2005. Counts are made on a daily basis (weather permitting), between 
11:00-19:00, in an area of approximately 3,117 ft (950 m) around the 
island, for a duration of approximately 15 minutes. Counts will only be 
made during periods with visibility of 0.62 mi (1 km) or more and with 
a cloud ceiling of more than 295 ft (90 m). This year, BP will also 
begin to record the date of the first appearance of basking seals and 
the peak date of haul out. Also, BP will begin to attempt conducting 
seal counts in autumn using the same general approach as noted here for 
the May 15-July 15 timeframe. However, these counts will be limited by 
the amount of available daylight.
    BP will continue monitoring the bowhead migration in 2014 and 
subsequent years for approximately 30 days each September through the 
recording of bowhead calls. BP will deploy a Directional Autonomous 
Seafloor Acoustic Recorder (DASAR; Greene et al., 2004) or similar 
recorder about 9.3 mi (15 km) north of Northstar, consistent with a 
location used in past years (as far as conditions allow). The data of 
the offshore recorder can provide information on the total number of 
calls detected, the temporal pattern of calling during the recording 
period, possibly the bearing to calls, and call types. These data can 
be compared with corresponding data from the same site in previous 
years. If substantially higher or lower numbers of calls are recorded 
than were recorded at that site in previous years, further analyses and 
additional monitoring will be considered in consultation with NMFS and 
North Slope Borough (NSB) representatives. A second DASAR, or similar 
recorder, will be deployed at the same location to provide a reasonable 
level of redundancy.
    In addition to the DASAR already mentioned, BP will install an 
acoustic recorder about 1,476 ft (450 m) north of Northstar, in the 
same area where sounds have been recorded since 2001. This recorder 
will be installed for approximately 30 days each September, 
corresponding with the deployment of the offshore DASAR (or similar 
recorder). The near-island recorder will be used to record and quantify 
sound levels emanating from Northstar. If island sounds are found to be 
significantly stronger or more variable than in the past, and if it is 
expected that the stronger sounds will continue in subsequent years, 
then further consultation with NMFS and NSB representatives will occur 
to determine if more analyses or changes in monitoring strategy are 
appropriate. A second acoustic recorder will be deployed to provide a 
reasonable level of redundancy.
    Based on recommendations from the peer review panel, BP will hold 
an annual meeting with representatives from NMFS and NSB (likely in the 
late winter/early spring period) to discuss whether or not data 
collected in the previous year regarding seal counts and bowhead whale 
call rates should trigger additional or revised monitoring 
requirements. Additional information regarding this meeting can be 
found later in this document.

Contingency Monitoring Plans

    If BP needs to conduct an activity (i.e., pile driving) capable of 
producing pulsed underwater sound with levels >=180 or >=190 dB re 1 
[micro]Pa (rms) at locations where whales or seals could be exposed, BP 
will monitor exclusion zones defined by those levels. [The exclusion 
zones were described in the ``Mitigation'' section earlier in this 
document.] One or more on-island observers, as necessary to scan the 
area of concern, will be stationed at location(s) providing an 
unobstructed

[[Page 75493]]

view of the predicted exclusion zone. The observer(s) will scan the 
exclusion zone continuously for marine mammals for 30 minutes prior to 
the operation of the sound source. Observations will continue during 
all periods of operation and for 30 minutes after the activity has 
ended. If whales and seals are detected within the (respective) 180 or 
190 dB distances, a shutdown or other appropriate mitigation measure 
(as described earlier in this document) shall be implemented. The sound 
source will be allowed to operate again when the marine mammals are 
observed to leave the safety zone or until 15 minutes have elapsed in 
the case of a pinniped or odontocete or 30 minutes in the case of a 
mysticete without resighting, whichever occurs sooner. The observer 
will record the: (1) Species and numbers of marine mammals seen within 
the 180 or 190 dB zones; (2) bearing and distance of the marine mammals 
from the observation point; and (3) behavior of marine mammals and any 
indication of disturbance reactions to the monitored activity.
    If BP initiates significant on-ice activities (e.g., construction 
of new ice roads, trenching for pipeline repair, or projects of similar 
magnitude) in previously undisturbed areas after March 1, trained dogs, 
or a comparable method, will be used to search for seal structures. If 
such activities do occur after March 1, a follow-up assessment must be 
conducted in May of that year to determine the fate of all seal 
structures located during the March monitoring. This monitoring must be 
conducted by a qualified biological researcher approved in advance by 
NMFS after a review of the observer's qualifications.
    BP will conduct acoustic measurements to document sound levels, 
characteristics, and transmissions of airborne sounds with expected 
source levels of 90 dBA or greater created by on-ice activity at 
Northstar that have not been measured in previous years. In addition, 
BP will conduct acoustic measurements to document sound levels, 
characteristics, and transmissions of airborne sounds for sources on 
Northstar Island with expected received levels at the water's edge that 
exceed 90 dBA that have not been measured in previous years. These data 
will be collected in order to assist in the development of future 
monitoring and mitigation measures.

Monitoring Plan Peer Review

    The MMPA requires that monitoring plans be independently peer 
reviewed ``where the proposed activity may affect the availability of a 
species or stock for taking for subsistence uses'' (16 U.S.C. 
1371(a)(5)(D)(ii)(III)). Regarding this requirement, NMFS' implementing 
regulations state, ``Upon receipt of a complete monitoring plan, and at 
its discretion, [NMFS] will either submit the plan to members of a peer 
review panel for review or within 60 days of receipt of the proposed 
monitoring plan, schedule a workshop to review the plan'' (50 CFR 
216.108(d)).
    NMFS convened an independent peer review panel, comprised of 
experts in the fields of marine mammal ecology and underwater 
acoustics, to review BP's proposed monitoring plan associated with the 
MMPA application for these regulations. The panel met on March 10, 
2011, and provided their final report to NMFS on June 17, 2011. The 
panel's final report can be found on the Internet at: http://www.nmfs.noaa.gov/pr/pdfs/permits/bp_northstar_peer_review.pdf.
    NMFS provided the panel with BP's monitoring plan and asked the 
panel to answer the following questions regarding the plan:
    (1) Are the applicant's stated objectives the most useful for 
understanding impacts on marine mammals and otherwise accomplishing the 
goals of: Documenting the effects of the activity (including acoustic) 
on marine mammals; documenting or estimating the actual level of take 
as a result of the activity (in this case, operation of an oil 
production facility); increasing the knowledge of the affected species; 
or increasing knowledge of the anticipated impacts on marine mammal 
populations?
    (2) Are the applicant's stated objectives able to be achieved based 
on the methods described in the plan?
    (3) Are there techniques not proposed by the applicant, or 
modifications to the techniques proposed by the applicant, that should 
be considered for inclusion in the applicant's monitoring program to 
better accomplish the goals stated above?
    (4) What is the best way for an applicant to present their data and 
results (formatting, metrics, graphics, etc.) in the required reports 
that are to be submitted to NMFS?
    NMFS has reviewed the report and evaluated all recommendations made 
by the panel and has determined that there are several measures that BP 
can incorporate into its marine mammal monitoring plan to improve it. 
NMFS reviewed the panel's recommendations and determined that several 
are appropriate for BP to carry out during the effective period of 
these regulations. Those recommendations have been discussed with BP 
and are included in the final rule, as appropriate. A summary of the 
recommendations that have been incorporated into BP's monitoring plan 
and how they are being addressed is provided in Table 1 of this 
document.

Table 1--Recommendations From the 2011 BP Peer Review Panel That Will Be
Carried Out and/or Incorporated Into BP's Monitoring Plan for This Final
                                  Rule
------------------------------------------------------------------------
        Panel recommendation                BP Response/commitment
------------------------------------------------------------------------
BP should attempt to assess the      Because of the relatively low sound
 duration of deflection (i.e., the    levels emanating from Northstar
 amount of time or distance before    into the bowhead whale migration
 deflected whales returned to their   corridor and the subtle responses
 normal migratory path) of bowheads   of the whales, detecting
 away from Northstar Island, if       deflection immediately north of
 possible. Other data sets (i.e.,     Northstar was challenging, but
 Bowhead Whale Aerial Survey          statistically significant
 Program [BWASP], Shell acoustic      deflection was detected in 2001-
 data) might prove useful for         2004. Shell's arrays west of
 addressing this question.            Northstar were not in the water in
                                      2001-2004, when BP documented
                                      statistically significant
                                      deflection north of the island.
                                      BWASP lacks the resolution needed
                                      for meaningful assessment of
                                      deflection duration. BP has
                                      initiated a scoping project to
                                      better understand alternative
                                      methods of call tracking in the
                                      context of Northstar. If this
                                      scoping exercise yields promising
                                      results, BP will consider
                                      reanalysis of existing data from
                                      2001-2004 with the hope of better
                                      understanding deflection duration
                                      west of Northstar.

[[Page 75494]]

 
BP should continue to use their      BP will continue seal monitoring.
 proposed approach for counting       If Northstar undertakes
 seals. Additional data should be     substantial work during the
 collected to help interpret the      basking season, it might make
 counts, including: recording on-     sense to undertake a behavioral
 island activities and correlate      study using island-based observers
 them with seal numbers. (It is       before, during, and after the
 likely that counts of seals will     work. BP suggests further
 be influenced mostly by onset of     discussions of this option during
 spring, however, numbers should      annual planning meetings
 also be assessed relative to         (described below) if substantial
 island activity to investigate       work is planned during the basking
 whether those activities impact      season.
 the numbers of seals counted from
 the island.).
Previously collected seal data       BP agrees to begin reporting dates
 should be analyzed for the date      of the first appearance of basking
 when seals are first seen and the    seals and peak basking dates
 peak date of haul out.               beginning in 2014.
Counts of seals hauled out on ice    Limited daylight will make this
 in the late autumn or early winter   challenging, but BP agrees to
 would help assess seal use of the    attempt autumn observations for
 area near Northstar at times other   basking seals using the same
 than the spring and early summer.    general approach that is used
                                      during breakup and will include
                                      results in the 2014 annual report
                                      if these results are available
                                      before the report is finalized
                                      (otherwise, results will be
                                      reported for the 2011 autumn
                                      counts in the 2015 annual report).
Counts of seals are intended as a    Due to the large range in seal
 broad measure of use of the area     counts from year to year, BP
 around the island. One component     prefers not to set a priori
 of the counts is to determine        thresholds but rather to formalize
 whether additional monitoring is     annual discussions about planned
 needed, yet no specific thresholds   monitoring. These discussions
 have been identified that might      should be based not only on
 trigger additional monitoring.       specific numbers of seals observed
 Thresholds should be established     but also on circumstances
 for the initiation of discussions    surrounding those observations and
 about additional monitoring.         other information. These
                                      discussions would also allow for
                                      consensus building regarding
                                      design of additional monitoring.
                                      BP suggests that a formal
                                      discussion to specifically address
                                      monitoring requirements (for
                                      seals, whales, and acoustical
                                      measurements) should be held
                                      annually with representatives from
                                      BP, NMFS, and the North Slope
                                      Borough (NSB). Results of these
                                      discussions would be summarized in
                                      a section of the required annual
                                      report.
Thresholds should also be            See the response to the previous
 established related to calling       recommendation. This would be part
 rates for initiation of              of the annual monitoring
 discussions about additional         discussions between BP, NMFS, and
 monitoring of bowheads.              the NSB.
BP should incorporate environmental  Because of the inherent
 factors (i.e., sea ice extent,       difficulties in adding multiple
 wind, etc.) in addition to           variables to such analyses, BP
 anthropogenic activities, as a       suggests that this be discussed at
 covariate in analyses of impacts     the annual monitoring meeting
 from Northstar Island on bowheads.   between BP, NMFS, and the NSB.
BP should continue to deploy one     BP will continue this practice
 hydrophone (and one back-up unit)    under this final rule.
 1,476 ft (450 m) north of
 Northstar to monitor anthropogenic
 sounds from activities associated
 with the island.
BP should continue to record the     BP will continue this practice
 amount and type of activities at     under this final rule. Should
 the island (i.e., crew boat trips,   additional monitoring be
 hovercraft trips, activities on      warranted, this would be discussed
 the island, etc.). If activity       at the annual monitoring meeting
 levels change substantially,         between BP, NMFS, and the NSB.
 discussions of additional
 monitoring might be warranted.
Determine if additional monitoring   This recommendation repeats several
 (e.g., full acoustic array) might    previous recommendations. This
 be needed if levels and types of     topic would be included in the
 activities at the island increase    annual discussions between BP,
 or whether BP's lower level of       NMFS, and the NSB.
 monitoring (or other data sets)
 suggests a change in whale
 behavior or distribution. If any
 of those events occur, BP should
 determine through discussions with
 NMFS and stake holders whether the
 full array should be deployed or
 some other monitoring technique
 implemented.
Investigate the possibility of       Beginning with the 2011 data set,
 using existing acoustic data to      BP can document calls from species
 monitor species other than bowhead   other than bowheads, but many
 whales. Also consider configuring    other species do not call in the
 hydrophones that would be deployed   vicinity so the vocalizations
 in the future to record at the       would not be picked up by the
 higher frequencies and monitor       array. BP will assess the
 other marine mammals in addition     possibility of recording at higher
 to bowheads.                         frequencies, but their ability to
                                      do so is limited by existing
                                      hardware.
Establish protocols for additional   Should additional monitoring be
 monitoring during autumn migratory   warranted, this would be discussed
 seasons for bowheads when ``loud''   at the annual monitoring meeting
 sounds are expected to be produced   between BP, NMFS, and the NSB.
 by Northstar activities. These
 protocols should be triggered when
 sounds might be produced and
 propagated to the migration
 corridor that are quieter than 180/
 190 dB (i.e., 160 or even 120 dB).
Develop an archive of (1) library    BP has provided archived data to
 of industrial sound sources with     the NSB and others in the past and
 associated metadata, (2) raw         will continue to do so.
 acoustic recordings file, (3)
 summarized data (i.e., call
 counts, call types, etc.) from
 recordings, and (4) other
 monitoring data. Archived data
 will be especially important in
 the event of a large oil spill or
 other major impact. This archive
 should probably be maintained by a
 university or some other
 institution not associated with a
 government agency. The panel
 acknowledges BP's willingness to
 share data.
Assess Northstar's impacts from a    Although not specifically linked to
 cumulative perspective. Each         this monitoring plan, BP has
 company's monitoring efforts,        undertaken cumulative effects
 including BP's, should fit into a    methods development using an
 larger more comprehensive            expert panel approach. The method
 monitoring program with the          is currently being ``truthed''
 objective of assessing cumulative    using data collected in 2008,
 impacts. This is one of the          including Northstar data.
 reasons that monitoring data
 should be archived.

[[Page 75495]]

 
Develop a plan for the periodic      BP will discuss this possibility at
 redeployment of a full array.        the annual monitoring planning
                                      meetings with NMFS and the NSB.
------------------------------------------------------------------------

Reporting Measures

    An annual report on marine mammal monitoring and mitigation will be 
submitted to NMFS, Office of Protected Resources, and NMFS, Alaska 
Regional Office, on June 1 of each year. The first report will cover 
the period from the effective date of the LOA through October 31, 2014. 
Subsequent reports will cover activities from November 1 of one year 
through October 31 of the following year. Ending each annual report on 
October 31 coincides with the end of the fall bowhead whale migration 
westward through the Beaufort Sea.
    The annual reports will provide summaries of BP's Northstar 
activities. These summaries will include the following: (1) Dates and 
locations of ice-road construction; (2) on-ice activities; (3) vessel/
hovercraft operations; (4) oil spills; (5) emergency training; and (6) 
major repair or maintenance activities that might alter the ambient 
sounds in a way that might have detectable effects on marine mammals, 
principally ringed seals and bowhead whales. The annual reports will 
also provide details of ringed seal and bowhead whale monitoring, the 
monitoring of Northstar sound via the nearshore DASAR (or similar 
recording device), descriptions of any observed reactions, and 
documentation concerning any apparent effects on accessibility of 
marine mammals to subsistence hunters. Based on a recommendation from 
the peer review panel, the annual reports should also include recorded 
calls of species other than bowhead whales (e.g., gray whales, bearded 
seals, etc.).
    If specific mitigation and monitoring are required for activities 
on the sea ice initiated after March 1 (requiring searches with dogs 
for lairs), during the operation of strong sound sources (requiring 
visual observations and shutdown procedures), or for the use of new 
sound sources that have not previously been measured, then a 
preliminary summary of the activity, method of monitoring, and 
preliminary results will be submitted within 90 days after the 
cessation of that activity. The complete description of methods, 
results, and discussion will be submitted as part of the annual report.
    In addition to annual reports, BP will submit a draft comprehensive 
report to NMFS, Office of Protected Resources, and NMFS, Alaska 
Regional Office, no later than 240 days prior to the expiration of 
these regulations. This comprehensive technical report will provide 
full documentation of methods, results, and interpretation of all 
monitoring during the first four and a quarter years of the LOA. Before 
acceptance by NMFS as a final comprehensive report, the draft 
comprehensive report will be subject to review and modification by NMFS 
scientists.
    BP will notify NMFS within 24 hours if more than five ringed seals 
are killed annually as a result of the specified activity or if any 
other marine mammal species is injured, seriously injured or killed as 
a direct result of the specified activity at Northstar. Information 
that must be contained in the incident report submitted to NMFS 
includes: (1) Time, date, and location (latitude/longitude) of the 
incident; (2) the type of equipment involved in the incident; (3) 
description of the incident; (4) water depth, if relevant; (5) 
environmental conditions (e.g., wind speed and direction, Beaufort sea 
state, cloud cover, and visibility); (6) species identification or 
description of the animal(s) involved; (7) the fate of the animal(s); 
and (8) photographs or video footage of the animal (if equipment is 
available). Activities shall not resume until NMFS is able to review 
the circumstances of the prohibited take. NMFS shall work with BP to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. BP may not resume their 
activities until notified by NMFS via letter, email, or telephone.
    In the event that BP discovers a dead or injured marine mammal and 
it is determined that the cause of the injury or death is either 
unknown or unrelated to the specified activities at Northstar, BP will 
provide documentation as noted in the previous paragraph to NMFS within 
24 hours of the discovery. In these two instances, BP may continue to 
operate while NMFS reviews the circumstances of the incident. In 
addition to notifying the NMFS Office of Protected Resources and NMFS 
Alaska Regional Office, BP will also be required to contact the Alaska 
Regional Stranding Coordinators or the NMFS Alaska Stranding Hotline so 
that they can come and recover the animal if they choose to do so.

Adaptive Management

    NMFS has included an adaptive management component in the 
regulations governing the take of marine mammals incidental to 
operation of the Northstar facility in the U.S. Beaufort Sea. In 
accordance with 50 CFR 216.105(c), regulations for the proposed 
activity must be based on the best available information. As new 
information is developed, through monitoring, reporting, or research, 
the regulations may be modified, in whole or in part, after notice and 
opportunity for public review. The use of adaptive management will 
allow NMFS to consider new information from different sources to 
determine if mitigation or monitoring measures should be modified 
(including additions or deletions) if new data suggest that such 
modifications are appropriate for subsequent LOAs.
    The following are some of the possible sources of applicable data:
     Results from BP's monitoring from the previous year;
     Results from general marine mammal and sound research; or
     Any information which reveals that marine mammals may have 
been taken in a manner, extent or number not authorized by these 
regulations or subsequent LOAs.
    In addition, LOAs shall be withdrawn or suspended if, after notice 
and opportunity for public comment, the Assistant Administrator finds, 
among other things, the regulations are not being substantially 
complied with or the taking allowed is having more than a negligible 
impact on the species or stock or an unmitigable adverse impact on the 
availability of marine mammal species or stocks for taking for 
subsistence uses, as allowed for in 50 CFR 216.106(e). That is, should 
monitoring and reporting show that operation of the Northstar facility 
is having more than a negligible impact on marine mammals or an 
unmitigable adverse impact on the availability of marine mammal species 
or stocks for taking for subsistence uses, then NMFS reserves the right 
to modify the regulations and/or withdraw or suspend an LOA after 
public review.

[[Page 75496]]

Previous Activities and Monitoring

    The ``Background on the Northstar Development Facility'' section 
earlier in this document and in the proposed rule (76 FR 39706, July 6, 
2011) discussed activities that have occurred at Northstar since 
construction began in the winter of 1999/2000. Activities that occurred 
at Northstar since 2006 include transportation (e.g., helicopter, 
hovercraft, tracked vehicles, and vessels), production activities 
(e.g., power generation, pipe driving, etc.), construction and 
maintenance activities, and monitoring programs.
    Under previous MMPA ITAs, BP has been conducting marine mammal 
monitoring within the action area to satisfy monitoring requirements 
set forth in those authorizations. The monitoring programs have focused 
mainly on bowhead whales and ringed seals, as they are the two most 
common marine mammal species found in the Northstar Development area. 
Monitoring conducted by BP includes: (1) Underwater and in-air noise 
measurements; (2) monitoring of ringed seal lairs; (3) monitoring of 
hauled out ringed seals in the spring and summer months; and (4) 
acoustic monitoring of the bowhead whale migration. Additionally, 
although it was not a requirement of the regulations or associated 
LOAs, BP has also incorporated work done by Michael Galginaitis. Since 
2001, Galginaitis has observed and characterized the fall bowhead whale 
hunts at Cross Island.
    As required by the regulations and annual LOAs, BP has submitted 
annual reports, which describe the activities and monitoring that 
occurred at Northstar. BP also submitted a comprehensive report, 
covering the period 2005-2009. The comprehensive report concentrates on 
BP's Northstar activities and associated marine mammal and acoustic 
monitoring projects from 2005-2009. However, monitoring work prior to 
2004 is summarized in that report, and activities in 2010 at Northstar 
were described as well. The annual and comprehensive reports are 
available on the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. A summary of the monitoring was provided 
in the ``Previous Activities and Monitoring'' section of the proposed 
rule (76 FR 39706, July 6, 2011). That information has not changed and 
is not repeated here. NMFS has determined that BP complied with the 
mitigation and monitoring requirements set forth in regulations and 
annual LOAs. In addition, NMFS has determined that the impacts on 
marine mammals and on the availability of marine mammals for 
subsistence uses from the activity fell within the nature and scope of 
those anticipated and authorized in the previous authorization 
(supporting the analysis in the current authorization).

Comments and Responses

    On July 6, 2011 (76 FR 39706), NMFS published a proposed rule in 
response to BP's request to take marine mammals incidental to operation 
of offshore oil and gas facilities in the U.S. Beaufort Sea, Alaska, 
and requested comments, information, and suggestions concerning the 
request. During the 30-day public comment period, NMFS received 
comments from one private individual and the Marine Mammal Commission 
(MMC). NMFS has responded to these comments here.
    Comment 1: The private citizen letter supported issuance of the 
authorization.
    Response: NMFS has issued the requested authorization.
    Comment 2: Regarding the estimated take of beluga whales, the MMC 
notes that some of the assumptions used to estimate take were based on 
data from peer-reviewed literature while other assumptions had no 
reasoned explanation. As such, the MMC does not believe that the 
information used to calculate the estimated number of takes of beluga 
whales was explained sufficiently or was scientifically sound. 
Additionally, the estimated number of takes of beluga whales included 
in Table 4 of the proposed rule preamble is inconsistent with the 
number in section 217.142 of the proposed rule. To address both of 
these concerns, the MMC recommends that NMFS require BP to provide a 
reasoned justification for the requested number of takes of beluga 
whales during the open-water season and ensure that the resulting take 
estimate is reflected accurately in section 217.142 of the regulations.
    Response: In developing the estimated take of beluga whales, BP 
used monitoring data collected before construction of Northstar 
commenced. BP used Bowhead Whale Aerial Survey Program (BWASP, now 
referred to as the Aerial Surveys of Arctic Marine Mammals Project 
[ASAMM]) aerial survey data from 1979-2000 and LGL Limited aerial 
survey data from 1996-2000. Data from these two aerial survey programs 
note sightings throughout the Beaufort Sea. Therefore, assumptions 
needed to be made based on how many beluga whales might occur within 
the Level B harassment ensonified area around Northstar. Using data 
from BWASP and LGL surveys, it was noted that the majority of the 
beluga migration occurred far offshore of the Northstar development and 
that only 20% (and likely less) of the beluga population migrated 
closer into shore. The proposed rule used the 1992 estimate of the 
Beaufort Sea stock of beluga whales of 39,258 individuals. However, it 
is estimated that the stock has been increasing at a maximum annual 
rate of 4% (Hill and DeMaster, 1998; Angliss and Allen, 2011). Assuming 
a continued 4% annual growth rate, the population size could be 
approximately 89,457 beluga whales in 2013. This estimate is a maximum 
value and does not include loss of animals due to subsistence harvest 
or natural mortality factors. Angliss and Allen (2011) consider the 
current annual rate of increase to be unknown, and thus, the population 
size in 2013 may be less than the estimated value. Therefore, the 1992 
population estimate was used to derive the take estimate.
    Because some of the assumptions about percentage of individuals 
likely to be present in the area were not based on peer-reviewed 
literature and instead were based on scientific conjecture, it has been 
determined that it is more reasonable to estimate take of beluga whales 
based on the aerial survey data regarding sightings of belugas in the 
area. BWASP data from 2006-2009 note very few sightings of belugas in 
the survey block that encompasses Northstar (Clarke et al., 2011a,b). 
Only six individuals were sighted in Block 1 in 2006, and groups of 1-
20 individuals were sighted closer to shore in September 2007 with 
sightings in Block 1 occurring east of Northstar (Clarke et al., 
2011a). In 2010 and 2011, there were no sightings of belugas in the 
survey block closest to Northstar (Block 1; Clarke et al., 2011c, 
2012). However, some sightings occurred in Block 2, which is the next 
block offshore from Northstar. The 2012 ASAMM report indicates a small 
number of beluga whale sightings in Block 1 (maximum of three 
individuals in one sighting) with more sightings occurring in Block 2 
(Clarke et al., 2013). Based on this information, the sighting rates 
noted prior to Northstar construction, and average group size, it is 
estimated that 20 beluga whales would be taken by Level B harassment 
annually during the open-water season. The inconsistency in take 
estimates between the preamble and regulatory text has been corrected.
    Comment 3: The MMC notes that BP's application did not specify 
Level A and B harassment zones for each of its proposed activities. 
Instead, it indicated that it would (1) shut down activities if a 
marine mammal was within the respective in-water Level A harassment

[[Page 75497]]

zone for impulsive sources and (2) conduct acoustic measurements for 
any novel sound sources that produce in-air sounds of 90 dB re 20 
[micro]Pa (rms) or greater. The MMC notes their appreciation for BP's 
measurements of in-water and in-air sound sources to date. However, it 
is not clear that all sound sources have been identified and that BP 
has in place reasonable plans to monitor their impacts. To ensure that 
sound propagation from all important sources is measured and 
appropriate harassment zones are established, the MMC recommends that 
NMFS: (1) require BP to identify all untested or novel impulsive and 
continuous sound sources; (2) work with BP to determine activity- and 
site-specific in-air and in-water Level A and B harassment zones for 
all those sources (including using the 120-dB re 1 [micro]Pa (rms) 
threshold for continuous sources); and (3) require BP to monitor those 
zones during all operations of the various sound sources and report its 
findings.
    Response: As noted earlier in this document, activities anticipated 
to occur during the period of this final rule (i.e., January 2014-
January 2019) are a continuation of activities that have been occurring 
for several years. Therefore, acoustic measurements have been made for 
the majority of sound sources to be used during activities occurring 
under these regulations. In its MMPA authorization request, BP noted 
all sound sources that are reasonably likely to be used during the 
course of the next 5 years of operation. However, there could be an 
unforeseen repair that may require use of a device not previously 
anticipated. At such time that the sound source is identified, BP is 
required (by these regulations) to conduct acoustic measurements on 
that source.
    NMFS has established in-water acoustic thresholds that identify the 
received sound levels above which hearing impairment or other injury 
could potentially occur, which are 180 and 190 dB re 1 [micro]Pa (rms) 
for cetaceans and pinnipeds, respectively (NMFS, 1995, 2000). As 
identified in BP's monitoring plan and required in these final 
regulations, to prevent or at least minimize exposure to sound levels 
that might cause hearing impairment, exclusion zones will be 
established and monitored for the presence of seals and whales for 
activities that will produce impulsive sounds above these levels.
    NMFS has not established in-air acoustic thresholds identifying 
received sound levels above which hearing impairment or other injury 
could potentially occur. Southall et al. (2007) propose that devices 
producing single or multiple pulse or nonpulse sounds may cause injury 
at SPLs at or above 149 dB re 20 [micro]Pa (rms). Table 5 in BP's 
application identifies sound levels of several commonly used devices on 
Northstar Island. In-air broadband sounds were found to be between 
approximately 65 and 81 dB re 20 [micro]Pa. Southall et al. (2007) 
reference Blackwell et al. (2004b) where reactions of ringed seals to 
pipe-driving were noted. The authors noted that there were no 
observable responses or brief orientation responses to in-air received 
levels of 60-80 dB re 20 [micro]Pa. Based on this information, only 
minor Level B behavioral harassment responses are anticipated from any 
of the in-air sounds produced on the island.
    For more than a decade, BP has implemented an extensive acoustic 
monitoring program to measure sounds produced by the island's 
activities and to record calls of bowhead whales migrating westward 
through the Beaufort Sea in the fall. In-water sound levels from 
continuous sources often fell to 120-140 dB re 1 [micro]Pa (rms) within 
1.2-2.5 mi (2-4 km) of the island. Because most cetaceans migrate 
farther offshore, many of them will occur outside the area ensonified 
to Level B harassment thresholds. BP will continue to conduct an 
acoustic monitoring program under these final regulations, as well as 
its summer visual monitoring program of hauled out seals. In the case 
of activities that will introduce impulsive sounds into the marine 
environment above 180 dB re 1 [micro]Pa (rms), BP is required to employ 
trained biological visual observers to watch for marine mammals. NMFS 
has determined that the protocols BP currently has in place and as 
required by these final regulations are sufficient to accurately record 
sounds produced by island activities and for implementing appropriate 
mitigation and monitoring procedures.
    Comment 4: The MMC recommends that NMFS require BP to use ramp-up, 
shutdown, and power-down procedures with all activities that require 
establishment of harassment zones based on either impulsive or 
continuous noise, whether in-air or in-water.
    Response: Currently, the only types of activities that would likely 
require the establishment of 180- and 190-dB re 1 [micro]Pa (rms) 
exclusion zones are impact hammering activities. BP proposed in their 
application (and NMFS has required in these final regulations) the 
implementation of shutdown and power-down procedures if marine mammals 
enter into the respective exclusion zones. The wording in the proposed 
rule (i.e., ``. . . reduce its SPL sufficiently to ensure that received 
SPLs do not exceed those prescribed SPL intensities at the affected 
marine mammal'') may have led to some confusion about whether or not a 
power-down would be required. This language was meant to convey the 
same requirement included in other authorizations that require an 
operator to reduce the sound output from a source to ensure that a 
marine mammal would not enter into the exclusion zone. If a power-down 
is insufficient to reduce the SPL to a level where the animal would not 
be ensonified to those levels, then a full shutdown is required.
    Per the MMC's recommendation, NMFS has added the requirement for a 
ramp-up technique in the case of impact hammering activities to this 
final rule. A ramp-up technique shall be used at the beginning of each 
day's in-water pile driving activities and if pile driving resumes 
after it has ceased for more than 1 hour. If a vibratory driver is 
used, BP is required to initiate sound from vibratory hammers for 15 
seconds at reduced energy followed by a 1-minute waiting period. The 
procedure shall be repeated two additional times before full energy may 
be achieved. If a non-diesel impact hammer is used, BP is required to 
provide an initial set of strikes from the impact hammer at reduced 
energy, followed by a 1-minute waiting period, then two subsequent 
sets. If a diesel impact hammer is used, BP is required to turn on the 
sound attenuation device for 15 seconds prior to initiating pile 
driving.
    None of BP's activities would require implementation of ramp-up, 
shutdown, or power-down procedures based on in-air thresholds; 
therefore, none are required in the final rule.
    Comment 5: The MMC recommends that NMFS require BP to conduct 
monitoring for 30 minutes before, during, and after all in-water 
activities that use impulsive or continuous sources (e.g., pile 
driving, pile removal, drilling, etc.). Such monitoring should 
contribute to a dataset that can be used to inform decisions regarding 
similar activities in the future.
    Response: As noted in the MMC letter, monitoring for 30 minutes 
prior to initiation of the activity and during the activity was 
contained in BP's application and the proposed rule. This protocol is 
contained in this final rule. However, there was no mention of 
monitoring for up to 30 minutes after the cessation of such activities 
in BP's application or the proposed rule. NMFS has added such a 
requirement to the final rule. Therefore, under this final rule, BP is 
required to conduct monitoring for 30 minutes before, during, and after 
all in-water activities

[[Page 75498]]

that use impulsive or continuous sources (e.g., pile driving, pile 
removal, drilling, etc.). The data collected by BP during these 
monitoring efforts will be used by NMFS to inform future decisions 
regarding similar activities.
    Comment 6: The MMC commends BP for its commitment to conducting 
nearshore and offshore passive acoustic monitoring to assess bowhead 
whale calls during migration and recommends that NMFS work with BP to 
continue its monitoring, analysis, and reporting of the acoustic data 
BP collects on the occurrence, abundance, distribution, and movement of 
bowhead whales for periods before, during, and after all of the 
proposed activities (especially the use of vibratory or impact hammers 
and transiting of the vessels). The MMC also encourages BP to report 
data collected from any other vocalizing cetacean.
    Response: As noted in BP's application and in the proposed rule, BP 
attempts to limit repairs requiring the use of vibratory or impact 
hammers during the ice-covered season or break-up period when cetaceans 
are not present in the area. Acoustic recorders are only deployed for 
approximately 30 days each year during the fall bowhead whale migration 
westward through the Beaufort Sea. It is logistically impracticable to 
deploy acoustic recorders during the ice-covered season. Therefore, the 
recorders are deployed at times when cetaceans most commonly occur in 
the area, which is during the open-water season and sometimes during 
the break-up period. If vibratory or impact hammering activities or 
vessel transits occur during this time period, then the acoustic 
monitoring will be in place. BP has agreed to begin reporting recorded 
vocalizations of other cetacean species (see Table 1 in the 
``Monitoring Plan Peer Review'' section earlier in this document). 
However, it is unlikely that many gray or beluga whale calls will be 
detected. Gray whales are infrequent callers and are not commonly 
encountered near Northstar. Belugas tend to occur well to the north of 
Northstar and call at frequencies that are unlikely to carry to the 
location of the array or to be detectable within the current recording 
bandwidth of BP's recorders. BP will assess the possibility of 
recording at higher frequencies, but their ability to do so is limited 
by existing hardware.
    Comment 7: The peer-review panel at the 2011 Open-Water meeting 
suggested that the oil and gas industry investigate methods of far-
field monitoring that do not require visual observers (i.e., unmanned 
aircraft). The panel also noted that other new technologies (i.e., 
unmanned underwater vehicles) could be used to provide far-field 
monitoring. The MMC believes that those technologies offer feasible 
monitoring techniques for future industry activities, but that legal 
constraints on using them (e.g., Federal Aviation Administration [FAA] 
requirements) have yet to be addressed. To further improve mitigation 
and monitoring methods, the MMC recommends that NMFS work with BP and 
other industry operators to: (1) evaluate the potential for using new 
technologies for mitigation and monitoring purposes; and (2) when and 
as appropriate, consult with the FAA and other responsible agencies to 
(a) clarify existing constraints on the use of such technology and (b) 
devise methods to implement the new technologies within those 
constraints.
    Response: NMFS concurs that monitoring techniques are constantly 
evolving, especially in the Arctic. As appropriate, NMFS will work with 
BP and other industry operators to evaluate the potential for using new 
technologies for mitigation and monitoring purposes. If after those 
discussions it is determined that certain techniques should be pursued 
further, NMFS will consult with the FAA and other responsible agencies 
to clarify existing constraints on the use of such technology and 
devise methods to implement the new technologies within those 
constraints.
    Comment 8: The MMC states that BP and NMFS are too dismissive of 
the probability of a major oil spill occurring and the risks to marine 
mammals. The MMC notes that the risk of an oil spill is not simply a 
function of its probability of occurrence; it also must take into 
account the consequences if such a spill occurs. Those consequences 
are, in part, a function of the spill's characteristics and the ability 
of the industry and government to mount an effective response. The MMC 
states: ``The assertion that BP would be able to respond adequately to 
any kind of major spill is simply unsupported by all the available 
evidence.''
    Response: The proposed rule (76 FR 39706, July 6, 2011) described 
design features, as well as routine inspections and maintenance 
conducted by BP to minimize the likelihood of a major oil spill 
occurring at Northstar Island. Additionally, emergency and oil spill 
response training occurs at various times throughout the year at 
Northstar. The proposed rule also contained an extensive discussion on 
the potential effects of oil to cetaceans and pinnipeds in the area and 
their habitat (see 76 FR 39722-39726 and 39728-39730, July 6, 2011). 
That discussion noted that in the unlikely event of an oil spill from 
the Northstar pipeline itself, flow through the line can be stopped, 
thus reducing the amount of oil that would be spilled into the marine 
environment, thus making the situation different from the April 2010 
incident in the Gulf of Mexico. NMFS' EA for this action also contains 
an analysis of the potential effects of an oil spill on marine mammals, 
their habitats, and subsistence activities.
    BP has produced oil from Northstar since October 2001. There have 
been no major oil spills at Northstar or in the marine environment 
since production began. BP's annual reports note all spills that occur 
on a yearly basis as a result of conducting oil production operations. 
Only small spill events have been noted. While spills of basic 
materials, such as hydraulic fluids and motor oil, occur annually, NMFS 
has no reason to believe that there will be a major spill from the 
Northstar facility. For example, the five reports noting activity and 
incidents at the facility from November 1, 2005, through October 31, 
2010, all indicate that there were 91 reportable small spills (such as 
0.25 gallons of hydraulic fluid, 3 gallons of power steering fluid, or 
other relatively small amounts of sewage, motor oil, hydraulic oil, 
sulfuric acid, etc.), three of which reached Beaufort water or ice. All 
material (for example, 0.03 gallons of hydraulic fluid) from these 
three spills was completely recovered, with no resulting impacts to 
marine mammals, their habitats, or subsistence uses of marine mammals. 
Based on BP's ability to clean up past material spills, NMFS believes 
that any future material spills will be quickly contained and cleaned 
up completely.
    Comment 9: The MMC states that BP's current Oil Discharge 
Prevention and Contingency Plan (ODPCP) outlines several measures for 
preventing and responding to a spill, as summarized in the application. 
As a result of the Gulf of Mexico Deepwater Horizon oil spill, the 
Bureau of Ocean Energy Management (BOEM) recently issued revised 
requirements for new or previously submitted development and production 
plans. In accordance with those revised requirements, operators must 
demonstrate adequate planning and preparation to ensure that oil and 
gas activity on the Outer Continental Shelf conforms with all 
applicable federal laws and regulations, is safe, conforms to sound 
conservation practices and does not cause undue or serious harm or 
damage to the human, marine or coastal environment (30 CFR 250.202). It 
also requires operators to revise blowout and worst-case discharge 
scenarios (Notice to Lessees NTL 2010-

[[Page 75499]]

N06) and to obtain additional resources and capabilities to help them 
avoid a major oil spill or respond if such a spill occurs. To clarify 
its existing response capabilities, BP should provide a realistic 
review and demonstration of its response capabilities (e.g., in-situ 
burning and mechanical recovery) and update its response plans based on 
lessons learned from the Deepwater Horizon oil spill and the conditions 
likely to be encountered in the Beaufort Sea.
    The MMC understands that BP has submitted a revised ODPCP to the 
BOEM and that it has yet to be approved. For such purposes, NMFS should 
work closely with BOEM to ensure that oil and gas operations are safe. 
Given that BOEM, the state of Alaska, and the U.S. Coast Guard have yet 
to approve the plan, it is not clear how NMFS can decide that the plan 
is adequate. For that reason, the MMC recommends that NMFS review BP's 
revised ODPCP to determine whether the plan is adequate for preventing 
and responding to a major oil spill, convey the findings of this 
determination to BOEM, include a full description of response 
capabilities in the final rule, and incorporate sufficient mitigation 
measures into that rule to address response capabilities, thereby 
minimizing the likelihood of spill-related serious injury to or 
mortality of marine mammals and other wildlife and prevent serious 
degradation of the marine environment.
    Response: At the proposed rule stage, staff from NOAA's Office of 
Response and Restoration reviewed BP's oil spill prevention and 
response measures and capabilities and determined that the likelihood 
of a major uncontrolled well blow-out incident is small. Moreover, that 
review indicated that BP continues to implement appropriate prevention 
protocols and utilize the best available technology in the event of a 
major well blow-out incident. BP's revised plan was again submitted to 
NOAA's Office of Response and Restoration. Based on that review, Office 
of Response and Restoration staff determined that BP understands and 
addresses the complexity involved in responding to potential oil spills 
at Northstar and that BP has adequately accounted for different 
scenarios in order to deal successfully with the various types of 
spills that could occur. While the review revealed some areas of the 
application that would warrant revised trajectory analysis, the 
reviewers determined that BP's ODPCP sufficiently and accurately 
analyzes the scope and oil spill response strategies for the Northstar 
oil production facility.
    Department of the Interior's BSEE is the Federal agency with 
jurisdiction over determining the sufficiency of pollution prevention 
measures relating to offshore oil and gas operations. BSEE reviews the 
plan to ensure that identified measures are in keeping with applicable 
Federal regulations found in 30 CFR 250 Subpart C and industry 
standards. Federal agencies are able to provide input regarding 
mitigation measures through updates of the North Slope Subarea 
Contingency Plan, which is part of the Alaska Federal/State 
Preparedness Plan for Response to Oil and Hazardous Substance 
Discharges/Releases (May 2012). By regulation, industry is required to 
comply with the applicable standards established in these Area 
Contingency Plans. As a member of the Alaska Regional Response Team, 
NMFS was given a full opportunity to submit input to this document 
establishing requirements for mitigation for all offshore operators. BP 
has revised their plans to incorporate the lessons learned from the 
Deep Water Horizon event as well as the requirements contained in the 
relevant Notices to Lessees for calculating the worst-case discharge 
volume for the Northstar facility. BP's plan was also revised recently 
to respond to BSEE regulations relating to updated safety standards and 
practices. The Northstar ODPCP was made available for public and 
government comment during the State of Alaska renewal process which 
resulted in an approved plan by the State on February 10, 2012. BSEE's 
Oil Spill Response Division is in the process of completing its review 
of this plan and will ensure that all applicable regulations have been 
followed.
    As noted earlier in this response to comment, experts in NOAA's 
Office of Response and Restoration reviewed the updated ODPCP. NOAA's 
comments and suggestions were shared with BSEE, as requested by the 
MMC. Those comments were considered by BSEE in its review of BP's 
ODPCP. BP's response capabilities were summarized in the proposed rule 
(76 FR 39706, July 6, 2011) and are described in greater detail in the 
ODPCP (available on the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm). NMFS assessed whether additional mitigation 
measures addressing response capabilities should be added to this final 
rule and determined that none were appropriate. Moreover, BP will 
conduct any needed oil spill response activities that occur in the 
vicinity of marine mammals in accordance with NOAA's Marine Mammal Oil 
Spill Response Guidelines, to the extent practicable.
    Comment 10: The MMC recommends that NMFS condition the final rule 
to require BP to suspend its activities if more than five ringed seals 
are killed in any year, or any other marine mammal is seriously injured 
or killed and the injury or death could have been caused by those 
activities (e.g., a fresh carcass is found). NMFS should investigate 
any such incident to assess the cause and full impact (e.g., the types 
of injuries, the number of animals involved) and to determine what 
modifications in BP's activities are needed to avoid additional 
injuries or deaths. This will require that the appropriate 
investigators have timely access to the carcass(es), which will require 
that BP take steps to provide such access (e.g., by securing the 
carcass(es) and providing transport for investigators to the site). 
Full investigation of such incidents is necessary to provide 
information regarding the potential impact of Northstar's activities on 
marine mammals and to devise the means for avoiding such occurrences in 
the future.
    Response: NMFS has added language to Sec.  217.146 of this final 
rule requiring BP to notify NMFS within 24 hours if more than five 
ringed seals are killed annually as a result of the specified activity 
or if any other marine mammal species is injured, seriously injured or 
killed as a direct result of the specified activity at Northstar. The 
specific activity that resulted in the injury or death of the marine 
mammal will be halted until NMFS can review the circumstance of the 
incident and work with BP to modify operations, if it is deemed 
necessary. Information that must be contained in the incident report 
submitted to NMFS includes: (1) time, date, and location (latitude/
longitude) of the incident; (2) the type of equipment involved in the 
incident; (3) description of the incident; (4) water depth, if 
relevant; (5) environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility); (6) species 
identification or description of the animal(s) involved; (7) the fate 
of the animal(s); and (8) photographs or video footage of the animal 
(if equipment is available). Activities shall not resume until NMFS is 
able to review the circumstances causing the exceedance of the 
authorized take. NMFS will work with BP to identify additional measures 
to minimize the likelihood that more than five ringed seals will not be 
killed each year (or other marine mammal species that may have been 
injured, seriously injured, or killed) from BP's activities. BP may not 
resume their activities until notified by NMFS via letter, email, or 
telephone.

[[Page 75500]]

    In the event that BP discovers a dead or injured marine mammal and 
it is determined that the cause of the injury or death is either 
unknown or unrelated to the specified activities at Northstar, BP will 
provide documentation as noted in the previous paragraph to NMFS within 
24 hours of the discovery. In these two instances, BP may continue to 
operate while NMFS reviews the circumstances of the incident. In 
addition to notifying the NMFS Office of Protected Resources and NMFS 
Alaska Regional Office, BP will also be required to contact the Alaska 
Regional Stranding Coordinators or the NMFS Alaska Stranding Hotline so 
that they can come and recover the animal if they choose to do so.

Estimated Take of Marine Mammals

    One of the main purposes of NMFS' effects assessments is to 
identify the permissible methods of taking, which involves an 
assessment of the following criteria: the nature of the take (e.g., 
resulting from anthropogenic noise vs. from ice road construction, 
etc.); the regulatory level of take (i.e., mortality vs. Level A or 
Level B harassment); and the amount of take. In the ``Potential Effects 
of the Specified Activity on Marine Mammals'' section of the proposed 
rule (76 FR 39706, July 6, 2011), NMFS identified the different types 
of effects that could potentially result from activities at BP's 
Northstar facility.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: ``any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment].'' Take by Level B harassment is 
anticipated from operational sounds extending into the open-water 
migration paths of cetaceans and open-water areas where pinnipeds might 
be present, from the physical presence of personnel on the island, 
vehicle traffic, and by helicopter overflights. Take of hauled out 
pinnipeds, by harassment, could also occur as a result of in-air sound 
sources. Certain species may have a behavioral reaction to the sound 
emitted during the activities; however, hearing impairment as a result 
of these activities is not anticipated because of the low source levels 
for much of the equipment that is used. There is also a potential for 
take by injury or mortality of ringed seals from ice road construction 
activities. Because of the slow speed of hovercraft and vessels used 
for Northstar operations, it is highly unlikely that there would be any 
take from these activities.
    Because BP operates the Northstar facility year-round, take of 
marine mammals could occur at any time of year. However, take of all 
marine mammal species that could potentially occur in the area is not 
anticipated during all seasons. This is because of the distribution and 
habitat preferences of certain species during certain times of the 
year. BP provided a full description of the methodology used to 
estimate takes in its application (see ADDRESSES), which is also 
provided in the proposed rule (76 FR 39706, July 6, 2011). Please refer 
to those documents for the full explanation, as only a short summary is 
provided here. As noted earlier in this document, there was a slight 
change to the method for calculating the take of beluga whales during 
the open-water season. That is explained further in this section.

Estimated Takes in the Ice-Covered Season

    Potential sources of disturbance to marine mammals from the 
Northstar project during the ice-covered period consist primarily of 
vehicle traffic along the ice-road, helicopter traffic, and the ongoing 
production and drilling operations on the island. During the ice-
covered season, the ringed seal is the only marine mammal that occurs 
regularly in the area of landfast ice surrounding Northstar. Spotted 
seals do not occur in the Beaufort Sea in the ice-covered season. Small 
numbers of bearded seals occur occasionally in the landfast ice in some 
years. Bowhead and beluga whales are absent from the Beaufort Sea in 
winter (or at least from the landfast ice portions of the Beaufort 
Sea), and in spring their eastward migrations are through offshore 
areas north of the landfast ice, which excludes whales from areas close 
to Northstar. Gray whales are also absent from this part of the 
Beaufort Sea during the ice-covered season. Therefore, takes of marine 
mammals during the ice-covered season were only estimated for ringed 
and bearded seals.
    Potential displacement of ringed seals was more closely related to 
physical alteration of sea ice by industry than to exposure to 
detectable levels of low-frequency industrial sound during winter and 
spring (Williams et al., 2006; Richardson et al., 2008b; Moulton et 
al., MS). The distance within which displacement of ringed seals might 
occur near a development like Northstar was defined as the physically 
affected area plus a 328 ft (100 m) buffer zone. A study from a drill 
site in the Canadian Beaufort Sea provided similar results (Harwood et 
al., 2007). The Northstar ice road is typically flooded and thickened 
and/or cleared of snow. The physically affected ice road area is about 
1,312 ft (400 m) wide, and this is extended with 328 ft (100 m) on 
either side to a total width of 1,969 ft (600 m) to derive the zone of 
displacement. This zone of displacement (or impact zone) around 
physically affected areas such as the ice road, work areas on the ice, 
and Northstar Island itself, is used to calculate the number of seals 
potentially affected (Richardson et al., 2008b).
(1) Bearded Seal
    The few bearded seals that remain in the area during winter and 
spring are generally found north of Northstar in association with the 
pack ice or the edge of the landfast ice. Based on available data, and 
the ecology of bearded seals, it is unlikely that more than a few 
bearded seals (and most likely none) will be present in close proximity 
(<328 ft [100 m]) to the ice road and Northstar itself during the ice-
covered season. The most probable number of bearded seals predicted to 
be potentially impacted by Northstar activities during the ice-covered 
season in any one year is zero. However, to allow for unexpected 
circumstances that might lead to take of bearded seals when they are 
present, BP requested take of two bearded seals per year during the 
ice-covered period by Level B harassment.
(2) Ringed Seal
    Individual ringed seals in the Northstar area during the ice-
covered season may be displaced a short distance away from the ice road 
corridors connecting the production islands to the mainland. Seal 
monitoring each spring since 2005, based on visual observations from 
the Northstar module in the May 15-July 15 period, has shown continued 
occurrence of ringed seals near Northstar facilities, though with large 
variations within and between years (Aerts, 2009). During most of the 
year, all age and sex classes, except for newborn pups, could occur in 
the Northstar area. Ringed seals give birth in late March and April; 
therefore, at that time of year young pups may also be encountered.
    Detailed monitoring of ringed seals near Northstar was done during 
spring and (in some years) winter of 1997 to 2002, including three 
years of Northstar construction and initial oil production

[[Page 75501]]

(2000-2002). BP estimated annual takes of ringed seal based on data 
collected from the intensive aerial monitoring program conducted in 
1997-2002, using a series of steps outlined in BP's MMPA application 
and the proposed rule. Those results indicate that 3-8 seals could be 
present in the potential impact zone (Table 3 in BP's application). To 
allow for unexpected circumstances that might lead to take of ringed 
seals, BP requested take of eight ringed seals per year during the ice-
covered period by Level B harassment. In the unlikely event that a 
ringed seal lair is crushed or flooded, BP also requested take of up to 
five ringed seals (including pups) by injury or mortality per year.

Estimated Takes in the Break-up Season

    Potential sources of disturbance to marine mammals from the 
Northstar project during the break-up period consist primarily of 
hovercraft and helicopter traffic, as well as the ongoing production 
and drilling operations on the island. Spotted seals and bowhead, gray, 
and beluga whales are expected to be absent from the Northstar project 
area during the break-up period. Therefore, take of those species 
during the break-up period was not estimated.
    Similar to the ice-covered season, BP predicts that only very few 
bearded seals (and most likely none) could be present within the 
potential impact zone around the ice road and Northstar facilities 
during the break-up period. The most probable number of bearded seals 
predicted to be potentially impacted by Northstar activities during 
break-up in any one year is zero. However, to account for the possible 
presence of low numbers of bearded seals during this time, NMFS has 
authorized the take of two bearded seals per year during the break-up 
season.
    Impacts to ringed seals from Northstar activities during the break-
up period are anticipated to be similar to those predicted during the 
ice-covered period. Additionally, the number of ringed seals present 
within the potential impact zone during the break-up period is expected 
to be similar to the number present during the ice-covered season. It 
is possible that some of these seals are the same individuals already 
counted as present during the latter stages of the ice-covered season 
(B. Kelly, pers. comm.). Thus, if any seals were affected during break-
up, it is probable that some of these would be the same individuals. BP 
states that the requested Level B take of eight ringed seals per year 
during the ice-covered periods of 2014-2019 is expected to also cover 
potentially affected seals during break-up. However, in case the same 
seals are taken during both periods, NMFS has authorized the take of 
eight ringed seals per year by Level B harassment during the break-up 
period.

Estimated Takes in the Open-Water Season

    Potential sources of disturbance to marine mammals from the 
Northstar project during the open-water period consist primarily of 
hovercraft and ACS vessels used for transfers of crew and supplies, 
barge and tugboat traffic, helicopter traffic, and the ongoing 
production and drilling operations on the island. During the open-water 
season, all six species can potentially be present in the Northstar 
area. Estimated annual numbers of potential open-water takes for each 
of these six species are summarized next.
(1) Spotted Seal
    Pupping and mating occur in the spring when spotted seals are not 
in the Beaufort Sea. Hence, young pups would not be encountered in the 
Northstar Development area. All other sex and age classes may be 
encountered in small numbers during late summer/autumn. Spotted seals 
are most often found in waters adjacent to river deltas during the 
open-water season in the Beaufort Sea, and major haul-out 
concentrations are absent close to the project area. A small number of 
spotted seal haul-outs are (or were) located in the central Beaufort 
Sea in the deltas of the Colville River (which is more than 50 mi [80 
km] from Northstar) and, previously, the Sagavanirktok River. No 
spotted seals were positively identified during BP's Northstar marine 
mammal monitoring activities, although a few spotted seals might have 
been present. A total of 12 spotted seals were positively identified 
near the source vessel during open-water seismic programs in the 
central Alaskan Beaufort Sea generally near Northstar from 1996 to 2001 
(Moulton and Lawson, 2002). Numbers seen per year ranged from zero (in 
1998 and 2000) to four (in 1999). To account for the possibility that 
spotted seals could occur in small numbers in the proximity of 
Northstar, NMFS has authorized the take of five spotted seals per year 
during the open-water period by Level B harassment.
(2) Bearded Seal
    During the open-water season, bearded seals are widely and sparsely 
distributed in areas of pack ice and open water, including some 
individuals in relatively shallow water as far south as Northstar. 
Studies indicate that pups and other young bearded seals up to 3 years 
of age comprise 40-45% of the population (Nelson et al., n.d.), and 
that younger animals tend to occur closer to shore. Therefore, although 
all age and sex classes could be encountered, bearded seals encountered 
in the Northstar project area during the open-water period are likely 
to be young, non-reproductive animals. Bearded seals, if present, may 
be exposed to noise and other stimuli from production activities and 
vessel and aircraft traffic on and around the island. To allow for 
unexpected circumstances, BP requested the take of one bearded seal per 
year during the open-water period.
(3) Ringed Seal
    Because ringed seals are resident in the Beaufort Sea, they are the 
most abundant and most frequently encountered seal species in the 
Northstar area. During the open-water period, all sex and age classes 
(except neonates) could potentially be encountered. BP used a series of 
steps and assumptions to estimate the number of seals that potentially 
might be harassed by noise from Northstar production activities or from 
vessel and aircraft traffic, which is explained in BP's MMPA 
application and the proposed rule. Based on those assumptions, BP 
estimated that 15 ringed seals might be present and potentially 
affected during the open-water season.
(4) Bowhead Whale
    Bowhead whales are not resident in the region of activity. During 
the open-water season, relatively few westward migrating bowheads occur 
within 6.2 mi (10 km) of Northstar during most years. However, in some 
years (especially years with relatively low ice cover) a larger 
percentage of the bowhead population migrates within 6.2-9.3 mi (10-15 
km) of Northstar (Treacy, 1998; Blackwell et al., 2007, 2009). The 
bowhead whale population in the Bering-Chukchi-Beaufort area was 
estimated to include approximately 10,545 animals (CV=0.128) in 2001. 
To estimate the 2013 population size for purposes of calculating 
potential ``takes'', the annual rate of increase was assumed to be 
steady at 3.4% (George et al., 2004). Based on these figures, the 2013 
population size could be approximately 15,750 bowhead whales.
    There are few data on the age and sex composition of bowhead whales 
that have been sighted near the Prudhoe Bay area. The little available 
data from the area and more extensive data from more easterly parts of 
the Alaskan Beaufort Sea in late summer/autumn (Koski and Johnson, 
1987; Koski and Miller, 2002, 2009) suggest that almost all age and sex

[[Page 75502]]

categories of bowheads could be encountered, i.e., males, non-pregnant 
females, pregnant females, and calves (mostly 3-6 months old). Newly 
born calves (<1 month old) are not likely to be encountered during the 
fall (Nerini et al., 1984; Koski et al., 1993). The potential take of 
bowhead whales from Northstar activities would be limited to Level B 
harassment (including avoidance reactions and other behavioral 
changes). Most bowheads that could be encountered would be migrating, 
so it is unlikely that an individual bowhead would be harassed more 
than once.
    Based on the amount of time bowhead whales are expected to be 
present in the general vicinity of the Northstar Development area and 
the fact that most of the whales migrate past the area beyond the 120-
dB sound isopleths (NMFS' threshold for Level B harassment from 
continuous sound sources), which typically extend out less than 1.24-
2.5 mi (2-4 km) from the island, it is estimated that only a small 
number of bowhead whales will be taken by harassment each year as a 
result of BP's activities. Therefore, BP requested take of 15 bowhead 
whales per year during the open-water season by Level B harassment.
(5) Gray Whale
    Gray whales are uncommon in the Prudhoe Bay area, with no more than 
a few sightings in summer or early autumn in any one year, and usually 
no sightings (Miller et al., 1999; Treacy, 2000, 2002a,b). Small 
numbers of gray whales were sighted on several occasions in the central 
Alaskan Beaufort, e.g., in the Harrison Bay area (Miller et al., 1999; 
Treacy, 2000), in the Camden Bay area (Christie et al., 2009) and one 
single sighting near Northstar production island (Williams and 
Coltrane, 2002). Several single gray whales have been seen farther east 
in the Canadian Beaufort Sea (Rugh and Fraker, 1981; LGL Ltd., unpubl. 
data), indicating that small numbers must travel through the Alaskan 
Beaufort during some summers. No specific data on age or sex 
composition are available for the few gray whales that move east into 
the Beaufort Sea. All sex and age classes (including pregnant females) 
could be found, with the exception of calves less than 6 months of age.
    Gray whales typically do not show avoidance of sources of 
continuous industrial sound unless the received broadband level exceeds 
approximately 120 dB re 1 [mu]Pa (Malme et al., 1984, 1988; Richardson 
et al., 1995b; Southall et al., 2007). The broadband received level 
approximately 1,476 ft (450 m) seaward from Northstar did not exceeded 
120 dB 1 [mu]Pa in the operational period 2004-2008 (95th percentiles), 
except when a vessel was passing close to Northstar or the acoustic 
recorders (maximum levels). To account for the possibility that a low 
number of gray whales could occur near Northstar, BP requested take of 
two gray whales per year during the open-water period by Level B 
harassment.
(6) Beluga Whale
    The Beaufort Sea beluga population was estimated at 39,258 
individuals in 1992, with a maximum annual rate of increase of 4% (Hill 
and DeMaster, 1998; Angliss and Allen, 2009). Assuming a continued 4% 
annual growth rate, the population size could be approximately 89,457 
beluga whales in 2013. However, the 4% estimate is a maximum value and 
does not include loss of animals due to subsistence harvest or natural 
mortality factors. Angliss and Allen (2009) consider the current annual 
rate of increase to be unknown. Thus, the population size in 2013 may 
be less than the estimated value. Additionally, the southern edge of 
the main fall migration corridor is approximately 62 mi (100 km) north 
of the Northstar region. A few migrating belugas were observed in 
nearshore waters of the central Alaskan Beaufort Sea by aerial and 
vessel-based surveyors during seismic monitoring programs from 1996-
2001 (LGL and Greeneridge, 1996a; Miller et al., 1997, 1998b, 1999). 
Results from aerial surveys conducted in 2006-2008 during seismic and 
shallow hazard surveys in the Harrison Bay and Camden Bay area also 
show that the majority of belugas occur along the shelf break, although 
there were some observations in nearshore areas (Christie et al., 
2009). Vessel-based surveyors observed a group of three belugas in 
Foggy Island Bay in July 2008, during BP's Liberty seismic survey 
(Aerts et al., 2008) and small groups of westward traveling belugas 
have occasionally been sighted around Northstar and Endicott, mostly in 
late July to early/mid-August (John K. Dorsett, Todd Winkel, BP, pers. 
comm.). Any potential take of these beluga whales in nearshore waters 
is expected to be limited to Level B harassment. Belugas from the 
Chukchi stock occur in the Alaskan Beaufort Sea in summer but are even 
less likely than the Beaufort stock to be encountered in the nearshore 
areas where sounds from Northstar will be audible.
    The few animals involved could include all age and sex classes. 
Most of the few belugas that could be encountered would be engaged in 
migration, so it is unlikely that a given beluga would be repeatedly 
``taken by harassment''.
    As noted in the response to comments found earlier in this document 
(Comment 2), take of beluga whales has not been estimated the same way 
it was in the proposed rule. The new explanation is provided here. 
BWASP data from 2006-2009 note very few sightings of belugas in the 
survey block that encompasses Northstar (Clarke et al., 2011a,b). Only 
six individuals were sighted in Block 1 in 2006, and groups of 1-20 
individuals were sighted closer to shore in September 2007 with 
sightings in Block 1 occurring east of Northstar (Clarke et al., 
2011a). In 2010 and 2011, there were no sightings of belugas in the 
survey block closest to Northstar (Block 1; Clarke et al., 2011c, 
2012). However, some sightings occurred in Block 2, which is the next 
block offshore from Northstar. The 2012 ASAMM report indicates a small 
number of beluga whale sightings in Block 1 (maximum of three 
individuals in one sighting) with more sightings occurring in Block 2 
(Clarke et al., 2013). Based on this information, the sighting rates 
noted prior to Northstar construction, and average group size, it is 
estimated that 20 beluga whales would be taken by Level B harassment 
annually during the open-water season.

Summary of Authorized Take

    BP requested and NMFS has authorized the take of six marine mammal 
species incidental to operational activities at the Northstar facility. 
However, because some of these species only occur in the Beaufort Sea 
on a seasonal basis, take of all six species has not been authorized 
for an entire year. BP broke out its take requests into three seasons: 
ice-covered season; break-up period; and open-water season. Ringed and 
bearded seals are the only species for which take was requested (and 
has been authorized) in all three seasons. Take of all six species was 
only requested and authorized for the open-water season. With the 
exception of the request for five ringed seal (including pups) takes by 
injury or mortality per year, all requested takes are by Level B 
harassment. Table 2 in this document summarizes the abundance, take 
estimates, and percent of population for the six species for which NMFS 
has authorized take.

[[Page 75503]]



    Table 2--Population Abundance Estimates, Total Annual Authorized Take (When Combining Takes From the Ice-
 Covered, Break-Up, and Open-Water Seasons), and Percentage of Population That May Be Taken for the Potentially
                                                Affected Species
----------------------------------------------------------------------------------------------------------------
                                                                                    Total annual
                                                                    Total annual     authorized    Percentage of
                     Species                          Abundance      authorized       injury or       stock or
                                                                    Level B take      mortality      population
                                                                                        take
----------------------------------------------------------------------------------------------------------------
Ringed Seal......................................     \1\~250,000              31               5           0.01
Bearded Seal.....................................     \1\ 155,000               5               0          <0.01
Spotted Seal.....................................     \1\ 141,479               5               0          <0.01
Bowhead Whale....................................      \2\ 15,750              15               0           0.1
Beluga Whale.....................................      \1\ 39,258              20               0           0.05
Gray Whale.......................................      \1\ 19,126               2               0           0.01
----------------------------------------------------------------------------------------------------------------
\1\ Abundance estimates in NMFS 2011 Alaska SAR (Allen and Angliss, 2012).
\2\ Estimate from George et al. (2004) with an annual growth rate of 3.4%.

    Because Prudhoe Bay (and the U.S. Beaufort Sea as a whole) 
represents only a small fraction of the Arctic basin where these 
animals occur, NMFS has determined that only small numbers of the 
marine mammal species or stocks in the area would be potentially 
affected by operation of the Northstar facility. The take estimates 
presented here do not take into consideration the mitigation and 
monitoring measures contained in the regulations and required in 
subsequent LOAs.

Negligible Impact and Small Numbers Analysis and Determination

    NMFS typically includes our negligible impact and small numbers 
analyses and determinations under the same section heading of our 
Federal Register notices. Despite co-locating these terms, we 
acknowledge that negligible impact and small numbers are distinct 
standards under the MMPA and treat them as such. The analyses presented 
below do not conflate the two standards; instead, each standard has 
been considered independently and we have applied the relevant factors 
to inform our negligible impact and small numbers determinations.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ``. . . 
an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.'' In making a negligible impact determination, 
NMFS considers a variety of factors, including but not limited to: (1) 
the number of anticipated mortalities; (2) the number and nature of 
anticipated injuries; (3) the number, nature, intensity, and duration 
of Level B harassment; and (4) the context in which the takes occur.
    No injuries or mortalities are anticipated for bearded and spotted 
seals or for bowhead, beluga, and gray whales. There is the potential 
for a small number of injuries or mortalities to ringed seals (no more 
than five per year) as a result of ice road construction activities 
during the ice-covered season. These injuries or mortalities could 
occur if a ringed seal lair is crushed or flooded. Additionally, 
animals in the area are not anticipated to incur any hearing impairment 
(i.e., TTS, a Level B harassment, or permanent threshold shift, a Level 
A [injury] harassment), as acoustic measurements indicate source levels 
below 180 dB and 190 dB, which are the thresholds used by NMFS for 
acoustic injury to marine mammals. All other takes are anticipated to 
be by Level B behavioral harassment only. Certain species may have a 
behavioral reaction (e.g., increased swim speed, avoidance of the area, 
etc.) to the sound emitted during the operational activities. Table 2 
in this document outlines the number of takes that are anticipated as a 
result of BP's activities. These takes are anticipated to be of low 
intensity due to the low level of sound emitted by the majority of the 
activities themselves. Activities occur at Northstar year-round, but 
the majority of these activities produce low-level continuous sounds. 
Only on rare occasions are more high-intensity pulsed sounds emitted 
into the surrounding environment. The ringed seal (and possibly the 
bearded seal) are the only species that occur in the area year-round.
    Even though activities occur throughout the year, none of the 
cetacean species occur near Northstar all year. Cetaceans are most 
likely to occur in the late summer and autumn seasons. However, even 
during that time, much of the populations of those species migrate past 
the area farther offshore than the area where Northstar sounds can be 
heard. Spotted seals also tend to only be present in the open-water 
season. Moreover, they are more common in the Colville River Delta 
area, which is more than 50 mi (80 km) west of the Northstar 
Development area, than in the waters surrounding Northstar. Ringed and 
bearded seals could be found in the area year-round. However, many of 
them remain far enough from the facility, outside of areas where 
harassment is possible. Additionally, ringed seals have been observed 
in the area every year since the beginning of construction and into the 
subsequent operational years.
    Many animals perform vital functions, such as feeding, resting, 
traveling, and socializing, on a diel cycle (24-hr cycle). Behavioral 
reactions to noise exposure (such as disruption of critical life 
functions, displacement, or avoidance of important habitat) are more 
likely to be significant if they last more than one diel cycle or recur 
on subsequent days (Southall et al., 2007). Consequently, a behavioral 
response lasting less than one day and not recurring on subsequent days 
is not considered particularly severe unless it could directly affect 
reproduction or survival (Southall et al., 2007). Even though 
activities occur on successive days at Northstar, none of the cetacean 
species (i.e., beluga, bowhead, and gray whales) are anticipated to 
incur impacts on successive days. In the vicinity of Northstar, 
bowheads and belugas are migrating through the area. Therefore, it is 
unlikely that the same animals are impacted on successive days. 
Acoustic data that have been collected off Northstar Island for more 
than a decade do not indicate that operations at the island are 
affecting the bowhead whale migrations through the Beaufort Sea. 
Although bowhead whales have been observed feeding in several locations 
throughout the central Beaufort Sea, most sightings have occurred more 
than 62 mi (100 km) from Northstar. Belugas that migrate through the 
U.S. Beaufort Sea typically do so farther offshore (more than 37 mi [60 
km]) and in deeper

[[Page 75504]]

waters (more than 656 ft [200 m]) than where Northstar activities 
occur. Gray whales are rarely sighted this far east in the U.S. 
Beaufort Sea. Additionally, there are no known feeding grounds for gray 
whales in the Prudhoe Bay area. The most northern feeding sites known 
for this species are located in the Chukchi Sea near Hanna Shoal and 
Point Barrow. Based on these factors, exposures of gray whales to 
industrial sounds are not expected to last for prolonged periods (i.e., 
several days or weeks) since they are not known to remain in the area 
for extended periods of time.
    The same individual bearded and spotted seals are also not likely 
to occur in the project area on successive days. Individual ringed 
seals may occur in the project area on successive days. Ringed seals 
construct lairs for pupping in the Beaufort Sea in late winter/early 
spring on the landfast ice. As noted earlier in this document, BP is 
required to implement mitigation measures to avoid disturbing lairs and 
potentially crushing lairs occupied by ringed seals. Bearded seals 
breed in the Bering and Chukchi Seas, as the Beaufort Sea provides less 
suitable habitat for the species. Spotted seals are even less common in 
the Prudhoe Bay area, and the species does not breed in the Beaufort 
Sea. Monitoring results (which were discussed in the proposed rule) 
indicate that operation of the Northstar facility has not affected 
activities such as ice seal resting and pupping in the area. 
Additionally, pinnipeds appear to be more tolerant of anthropogenic 
sound, especially at lower received levels, than other marine mammals, 
such as mysticetes.
    Of the six marine mammal species for which take is authorized, one 
is listed as endangered under the ESA--the bowhead whale--and two are 
listed as threatened--ringed and bearded seals. All three species are 
also considered depleted under the MMPA. As stated previously in this 
document, the affected bowhead whale stock has been increasing at a 
rate of 3.4% per year since 2001 (Allen and Angliss, 2012). There are 
currently no reliable data on trends of the ringed and bearded seal 
stocks in Alaska. Certain stocks or populations of gray and beluga 
whales and spotted seals are listed as endangered or are proposed for 
listing under the ESA; however, none of those stocks or populations 
occur in the activity area. There is currently no established critical 
habitat in the project area for any of these six species.
    The population estimates for the species that may potentially be 
taken as a result of BP's activities were presented earlier in this 
document. For reasons described earlier in this document, the maximum 
calculated number of individual marine mammals for each species that 
could potentially be taken annually is small relative to the overall 
population sizes (less than 1% of each of the six populations or 
stocks).
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, NMFS has determined that operation of the BP Northstar 
facility will result in the incidental take of small numbers of marine 
mammals and that the total taking from BP's activities will have a 
negligible impact on the affected species or stocks.
Impact on Availability of Affected Species or Stock for Taking for 
Subsistence Uses

Relevant Subsistence Uses

    The disturbance and potential displacement of marine mammals by 
sounds from island production activities are the principal concerns 
related to subsistence use of the area. However, contamination of 
animals and traditional hunting areas by oil (in the unlikely event 
that a major oil spill did occur) is also a concern. Subsistence 
remains the basis for Alaska Native culture and community. Marine 
mammals are legally hunted in Alaskan waters by coastal Alaska Natives. 
In rural Alaska, subsistence activities are often central to many 
aspects of human existence, including patterns of family life, artistic 
expression, and community religious and celebratory activities. 
Additionally, the animals taken for subsistence provide a significant 
portion of the food that will last the community throughout the year. 
The main species that are hunted include bowhead and beluga whales, 
ringed, spotted, and bearded seals, walruses, and polar bears. (As 
mentioned previously in this document, both the walrus and the polar 
bear are under the USFWS' jurisdiction.) The importance of each of 
these species varies among the communities and is largely based on 
availability.
    Residents of the village of Nuiqsut are the primary subsistence 
users in the project area. The communities of Barrow and Kaktovik also 
harvest resources that pass through the area of interest but do not 
hunt in or near the Northstar area. Subsistence hunters from all three 
communities conduct an annual hunt for autumn-migrating bowhead whales. 
Barrow also conducts a bowhead hunt in spring. Residents of all three 
communities hunt seals. Other subsistence activities include fishing, 
waterfowl and seaduck harvests, and hunting for walrus, beluga whales, 
polar bears, caribou, and moose. Relevant harvest data are summarized 
in Tables 8 and 9 in BP's application (see ADDRESSES).
    Nuiqsut is the community closest to the Northstar development 
(approximately 54 mi [87 km] southwest from Northstar). Nuiqsut hunters 
harvest bowhead whales only during the fall whaling season (Long, 
1996). In recent years, Nuiqsut whalers have typically landed three or 
four whales per year (see Table 9 in BP's application). Nuiqsut whalers 
concentrate their efforts on areas north and east of Cross Island, 
generally in water depths greater than 66 ft (20 m; Galginaitis, 2009). 
Cross Island is the principal base for Nuiqsut whalers while they are 
hunting bowheads (Long, 1996). Cross Island is located approximately 
16.8 mi (27 km) east of Northstar.
    Kaktovik whalers search for whales east, north, and occasionally 
west of Kaktovik. Kaktovik is located approximately 124 mi (200 km) 
east of Northstar Island. The western most reported harvest location 
was about 13 mi (21 km) west of Kaktovik, near 70[ordm]10' N., 
144[ordm]11' W. (Kaleak, 1996). That site is about 112 mi (180 km) east 
of Northstar Island.
    Barrow whalers search for whales much farther from the Northstar 
area--about 155+ mi (250+ km) to the west. However, given the westward 
migration of bowheads in autumn, Barrow (unlike Kaktovik) is 
``downstream'' from the Northstar region during that season. Barrow 
hunters have expressed concern about the possibility that bowheads 
might be deflected offshore by Northstar and then remain offshore as 
they pass Barrow.
    Beluga whales are not a prevailing subsistence resource in the 
communities of Kaktovik and Nuiqsut. Kaktovik hunters may harvest one 
beluga whale in conjunction with the bowhead hunt; however, it appears 
that most households obtain beluga through exchanges with other 
communities. Although Nuiqsut hunters have not hunted belugas for many 
years while on Cross Island for the fall hunt, this does not mean that 
they may not return to this practice in the future. Data presented by 
Braund and Kruse (2009) indicate that only one percent of Barrow's 
total harvest between 1962 and 1982 was of beluga whales and that it 
did not account for any of the harvested animals between 1987 and 1989.

[[Page 75505]]

    Ringed seals are available to subsistence users in the Beaufort Sea 
year-round, but they are primarily hunted in the winter or spring due 
to the rich availability of other mammals in the summer. Bearded seals 
are primarily hunted during July in the Beaufort Sea; however, in 2007, 
bearded seals were harvested in the months of August and September at 
the mouth of the Colville River Delta, which is more than 50 mi (80 km) 
from Northstar. However, this sealing area can reach as far east as 
Pingok Island, which is approximately 17 mi (27 km) west of Northstar. 
An annual bearded seal harvest occurs in the vicinity of Thetis Island 
(which is a considerable distance from Northstar) in July through 
August. Approximately 20 bearded seals are harvested annually through 
this hunt. Spotted seals are harvested by some of the villages in the 
summer months. Nuiqsut hunters typically hunt spotted seals in the 
nearshore waters off the Colville River Delta. The majority of the more 
established seal hunts that occur in the Beaufort Sea, such as the 
Colville delta area hunts, are located a significant distance (in some 
instances 50 mi [80 km] or more) from the project area.

Potential Impacts to Subsistence Uses

    NMFS has defined ``unmitigable adverse impact'' in 50 CFR 216.103 
as: ``. . . an impact resulting from the specified activity: (1) That 
is likely to reduce the availability of the species to a level 
insufficient for a harvest to meet subsistence needs by: (i) Causing 
the marine mammals to abandon or avoid hunting areas; (ii) Directly 
displacing subsistence users; or (iii) Placing physical barriers 
between the marine mammals and the subsistence hunters; and (2) That 
cannot be sufficiently mitigated by other measures to increase the 
availability of marine mammals to allow subsistence needs to be met.''
    Noise and general activity during BP's Northstar operations have 
the potential to impact marine mammals hunted by Native Alaskans. 
Additionally, if a major oil spill occurred (even though it is 
unlikely), there could be impacts to marine mammals hunted by Native 
Alaskans and to the hunts themselves. Although small spills happen 
annually, those spills are typically contained to the island and do not 
reach Beaufort Sea ice or water, thus there are no impacts to marine 
mammals or marine mammal hunts. In the case of cetaceans, the most 
common reaction to anthropogenic sounds (as noted in the proposed rule) 
is avoidance of the ensonified area. In the case of bowhead whales, 
this often means that the animals divert from their normal migratory 
path by several kilometers. Helicopter activity also has the potential 
to disturb cetaceans and pinnipeds by causing them to vacate the area. 
Additionally, general vessel presence in the vicinity of traditional 
hunting areas could negatively impact a hunt. Native knowledge 
indicates that bowhead whales become increasingly ``skittish'' in the 
presence of seismic noise. Whales are more wary around the hunters and 
tend to expose a much smaller portion of their back when surfacing 
(which makes harvesting more difficult). Additionally, natives report 
that bowheads exhibit angry behaviors in the presence of seismic, such 
as tail-slapping, which translate to danger for nearby subsistence 
harvesters.
    In the case of subsistence hunts for bowhead whales in the Beaufort 
Sea, there could be an adverse impact on the hunt if the whales were 
deflected seaward (further from shore) in traditional hunting areas. 
The impact would be that whaling crews would have to travel greater 
distances to intercept westward migrating whales, thereby creating a 
safety hazard for whaling crews and/or limiting chances of successfully 
striking and landing bowheads.
    Oil spills might affect the hunt for bowhead whales. The harvest 
period for bowhead whales is probably the time of greatest risk that a 
relatively large-scale spill would reduce the availability of bowhead 
whales for subsistence uses. Pipeline spills are possible for the total 
production period of Northstar. Spills could occur at any time of the 
year. However, spills at most times of year would not affect bowheads, 
as bowheads are present near Northstar for only several weeks during 
late summer and early autumn. Bowheads travel along migration corridors 
that are far offshore of the planned production islands and pipelines 
during spring and somewhat offshore of those facilities during autumn. 
Under the prevailing east-wind conditions, oil spills from Northstar 
would not move directly into the main hunting area east and north of 
Cross Island. However, large oil spills could extend into the hunting 
area under certain wind and current regimes (Anderson et al., 1999). 
Small spills of items such as hydraulic fluid or diesel fuel are 
typically relegated to the island or ice roads and are successfully 
cleaned up before the material reaches areas where marine mammals could 
be present.
    Even in the case of a major spill, it is unlikely that more than a 
small minority of the bowheads encountered by hunters would be 
contaminated by oil. However, disturbance associated with 
reconnaissance and cleanup activities could affect whales and thus 
accessibility of whales to hunters. In the very unlikely event that a 
major spill incident occurred during the relatively short fall whaling 
season, it is possible that hunting would be affected significantly.
    Ringed seals are more likely than bowheads to be affected by spill 
incidents because they occur in the development areas throughout the 
year and are more likely than whales to occur close to Northstar. Small 
numbers of bearded seals could also be affected, especially by a spill 
during the open-water season. Potential effects on subsistence use of 
seals will still be relatively low, as the areas most likely to be 
affected are not areas heavily used for seal hunting. However, wind and 
currents could carry spilled oil west from Northstar to areas where 
seal hunting occurs. It is possible that oil-contaminated seals could 
be harvested.
    Oil spill cleanup activity could exacerbate and increase 
disturbance effects on subsistence species, cause localized 
displacement of subsistence species, and alter or reduce access to 
those species by hunters. On the other hand, the displacement of marine 
mammals away from oil-contaminated areas by cleanup activities would 
reduce the likelihood of direct contact with oil and thus reduce the 
likelihood of tainting or other impacts on the mammals.
    One of the most persistent effects of the Exxon Valdez oil spill 
(EVOS) was the reduced harvest and consumption of subsistence resources 
due to the local perception that they had been tainted by oil (Fall and 
Utermohle, 1995). The concentrations of petroleum-related aromatic 
compound (AC) metabolites in the bile of harbor seals were greatly 
elevated from oiled areas of Prince William Sound (PWS). Mean 
concentrations of phenanthrene equivalents for oiled seals from PWS 
were over 70 times greater than for control areas and over 20 times 
higher than for presumably unoiled areas of PWS (Frost et al., 1994b). 
Concentrations of hydrocarbons in harbor seal tissues collected in PWS 
1 year after EVOS were not significantly different from seals collected 
in non-oiled areas; however, average concentrations of AC metabolites 
in bile were still significantly higher than those observed in un-oiled 
areas (Frost et al., 1994b). The pattern of reduced consumption of 
marine subsistence resources by the local population persisted for at 
least 1 year. Most affected communities had returned to documented pre-
spill harvest levels by

[[Page 75506]]

the third year after the spill. Even then, some households in these 
communities still reported that subsistence resources had not recovered 
to pre-spill levels. Harvest levels of subsistence resources for the 
three communities most affected by the spill still were below pre-spill 
averages even after 3 years. By then, the concern was mainly about 
smaller numbers of animals rather than contamination. However, 
contamination remained an important concern for some households (Fall 
and Utermohle, 1995). As an example, an elder stopped eating local 
salmon after the spill, even though salmon is the most important 
subsistence resource, and he ate it every day up to that point. Similar 
effects could be expected after a spill on the North Slope, with the 
extent of the decline in harvest and use, and the temporal duration of 
the effect, dependent upon the size and location of the spill. This 
analysis reflects the local perception that oil spills pose the 
greatest potential danger associated with offshore oil production.

Plan of Cooperation (POC)

    Regulations at 50 CFR 216.104(a)(12) require MMPA authorization 
applicants for activities that take place in Arctic waters to provide a 
POC or information that identifies what measures have been taken and/or 
will be taken to minimize adverse effects on the availability of marine 
mammals for subsistence purposes. BP and the Alaska Eskimo Whaling 
Commission (AEWC) established a conflict avoidance agreement to 
mitigate the noise and/or traffic impacts of offshore oil and gas 
production related activities on subsistence whaling. In addition, the 
NSB and residents from Barrow, Nuiqsut, and Kaktovik participated in 
the development of the Final Environmental Impact Statement (FEIS) for 
the Northstar project. Local residents provided traditional knowledge 
of the physical, biological, and human environment, which was 
incorporated into the Northstar FEIS. Also included in the Northstar 
FEIS is information gathered from the 1996 community data collection, 
along with relevant testimony during past public hearings in the 
communities of Barrow, Nuiqsut, and Kaktovik. This data collection has 
helped ensure that the concerns of NSB residents about marine mammals 
and subsistence are taken into account in the development of the 
project designs, permit stipulations, monitoring programs, and 
mitigation measures.
    BP meets annually with communities on the North Slope to discuss 
the Northstar Development project. Stakeholder and peer review meetings 
convened by NMFS have been held at least annually from 1998 to the 
present to discuss proposed monitoring and mitigation plans, and 
results of completed monitoring and mitigation. Those meetings have 
included representatives of the concerned communities, the AEWC, the 
NSB, Federal, state, and university biologists, the MMC, and other 
interested parties. One function of those meetings has been to 
coordinate planned construction and operational activities with 
subsistence whaling activity. The agreements have and likely will 
address the following: operational agreement and communications 
procedures; when/where agreement becomes effective; general 
communications scheme, by season; Northstar Island operations, by 
season; conflict avoidance; seasonally sensitive areas; vessel 
navigation; air navigation; marine mammal and acoustic monitoring 
activities; measures to avoid impacts to marine mammals; measures to 
avoid impacts in areas of active whaling; emergency assistance; and 
dispute resolution process.
    Most vessel and helicopter traffic will occur inshore of the 
bowhead migration corridor. BP does not often approach bowhead whales 
with these vessels or aircraft. Insofar as possible, BP will ensure 
that vessel traffic near areas of particular concern for whaling will 
be completed before the end of August, as the fall bowhead hunts in 
Kaktovik and Cross Island (Nuiqsut) typically begin around September 1 
each year. Additionally, any approaches of bowhead whales by vessels or 
helicopters will not occur within the area where Nuiqsut hunters 
typically search for bowheads. Essential traffic to and from Northstar 
has been and will continue to be closely coordinated with the NSB and 
AEWC to avoid disruptions of subsistence activities. Unless limited by 
weather conditions, BP maintains a minimum flight altitude of 1,000 ft 
(305 m), except during takeoffs, landings, and emergency situations, 
and all helicopter transits occur in a specified corridor from the 
mainland.

Unmitigable Adverse Impact Analysis and Determination

    NMFS has determined that BP's operation of the Northstar facility 
will not have an unmitigable adverse impact on the availability of 
marine mammal species or stocks for taking for subsistence uses. This 
determination is supported by the fact that BP works closely with the 
NSB, AEWC, and hunters of Nuiqsut to ensure that impacts are avoided or 
minimized during the annual fall bowhead whale hunt at Cross Island 
(the closest whale hunt to Northstar). Vessel and air traffic will be 
kept to a minimum during the bowhead hunt in order to keep from 
harassing the animals, which could possibly make them more difficult to 
hunt. To minimize the potential for conflicts with subsistence users, 
marine vessels transiting between Prudhoe Bay or West Dock and 
Northstar Island travel shoreward of the barrier islands as much as 
possible and avoid the Cross Island area during the bowhead hunting 
season in autumn. The fall hunt at Kaktovik occurs well to the east of 
Northstar (approximately 124 mi [200 km] away), so there should be no 
impacts to hunters within that community, since the whales will reach 
Kaktovik well before they enter areas that may be ensonified by 
activities at Northstar. Barrow is more than 155 mi (250 km) west of 
Northstar. Even though the whales will have to pass by Northstar before 
reaching Barrow for the fall hunt, the community is well beyond the 
range of detectable noise from Northstar. In the spring, the whales 
will reach Barrow before Northstar. Therefore, no impacts are 
anticipated on the spring bowhead whale hunt for the Barrow community.
    Beluga whales are not a primary target of subsistence hunts by the 
Beaufort Sea communities. However, Nuiqsut whalers at Cross Island have 
been known to take a beluga in conjunction with the fall bowhead whale 
hunt. The reasons stated previously regarding no unmitigable adverse 
impact to bowhead hunting at Cross Island are also applicable to beluga 
hunts. Additionally, should Kaktovik or Barrow conduct a beluga hunt, 
the distance from Northstar of these two communities would ensure no 
unmitigable adverse impact to those hunts.
    Subsistence hunts of ice seals can occur year-round in the Beaufort 
Sea. However, hunts do not typically occur in the direct vicinity of 
Northstar. Some of the more established seal hunts occur in areas more 
than 20-30 mi (32-48 km) from Northstar. It is not anticipated that 
there would be any impacts to the seals themselves that would make them 
unavailable to Native Alaskans. Additionally, no adverse effects to the 
hunters are anticipated to occur due to conflicts with them in 
traditional hunting grounds.
    In the unlikely event of a major oil spill that spread into 
Beaufort Sea ice or water, there could be major impacts on the 
availability of marine mammals for subsistence uses. As discussed 
earlier in this document, the probability of a major oil spill 
occurring over the life of the project is low (S.L. Ross

[[Page 75507]]

Environmental Research Ltd., 1998). Additionally, BP developed an oil 
spill prevention and contingency response plan, which has been amended 
several times. The most recent revision has been approved by the State 
of Alaska and is pending approval by BSEE. BP also conducts routine 
inspections of and maintenance on the pipeline (as described in the 
proposed rule) to help reduce the likelihood of a major oil spill. To 
help with preparedness in the event of a major oil spill, BP conducts 
emergency and oil spill response training activities at various times 
throughout the year. Equipment and techniques used during oil spill 
response exercises are continually updated.
    Based on the measures described in BP's POC, the required 
mitigation and monitoring measures (described earlier in this 
document), and the project design itself, NMFS has determined that 
there will not be an unmitigable adverse impact on subsistence uses 
from BP's operation of the Northstar facility. Even though there could 
be unmitigable adverse impacts on subsistence uses from a major oil 
spill, because of the low probability of such an event occurring and 
the measures that BP implements to reduce the likelihood of a major oil 
spill, NMFS has determined that there will not be an unmitigable 
adverse impact to subsistence uses from an oil spill at Northstar.

Endangered Species Act (ESA)

    On March 4, 1999, NMFS concluded consultation with the U.S. Army 
Corps of Engineers on permitting the construction and operation of 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. Since no critical habitat has been 
established for that species, the consultation also concluded that none 
would be affected.
    Within the project area, the bowhead whale is listed as endangered 
and the ringed and bearded seals are listed as threatened under the 
ESA. Therefore, the NMFS Permits and Conservation Division conducted 
consultation with the NMFS Endangered Species Division on the issuance 
of regulations and subsequent LOAs under section 101(a)(5)(A) of the 
MMPA for this activity. In May, 2012, NMFS finished conducting its 
section 7 consultation and issued a Biological Opinion, and concluded 
that the issuance of regulations and subsequent LOAs associated with 
BP's operation of Northstar is not likely to jeopardize the continued 
existence of the endangered bowhead whale, the Arctic sub-species of 
ringed seal, or the Beringia distinct population segment of bearded 
seal. No critical habitat has been designated for these species, 
therefore none will be affected.

National Environmental Policy Act (NEPA)

    On February 5, 1999 (64 FR 5789), the Environmental Protection 
Agency noted the availability for public review and comment of a FEIS 
prepared by the U.S. Army Corps of Engineers under NEPA on Beaufort Sea 
oil and gas development at Northstar. Based upon a review of the FEIS 
and comments received on the Draft and Final EIS, NMFS adopted the FEIS 
on May 18, 2000. Because of the age of the FEIS and the availability of 
new scientific information, NMFS conducted a new analysis, pursuant to 
NEPA, regarding the issuance of MMPA rulemaking and subsequent LOA(s) 
to BP for its operation of Northstar. In June 2012, NMFS released an EA 
and issued a FONSI for this action. NMFS determined that issuance of 
these regulations and subsequent LOAs would not significantly impact 
the quality of the human environment; therefore, preparation of an 
Environmental Impact Statement was not required for this action.

Classification

    The Office of Management and Budget (OMB) has determined that this 
final rule is not significant for purposes of Executive Order 12866.
    At the proposed rule stage, the Chief Counsel for Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that this rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities. BP Exploration (Alaska) Inc. is the only entity that would be 
subject to the requirements in these proposed regulations. BP 
Exploration (Alaska) Inc. is an upstream strategic performance unit of 
the BP Group. Globally, BP ranks among the 10 largest oil companies. BP 
Exploration (Alaska) Inc. is one of Alaska's largest employers with 
nearly 2,000 employees, and, as of December 31, 2011, BP Group had more 
than 83,000 employees worldwide. Therefore, it is not a small 
governmental jurisdiction, small organization, or small business, as 
defined by the Regulatory Flexibility Act. No comments were received on 
the certification. Accordingly, a regulatory flexibility analysis is 
not required and none has been prepared.
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act (PRA) unless that collection of information 
displays a currently valid OMB control number. This final rule contains 
collection-of-information requirements subject to the provisions of the 
PRA. These requirements have been approved by OMB under control number 
0648-0151 and include applications for regulations, subsequent LOAs, 
and reports.

List of Subjects in 50 CFR Part 217

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

    Dated: December 5, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    For reasons set forth in the preamble, 50 CFR part 217 is amended 
as follows:

PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS 
INCIDENTAL TO SPECIFIED ACTIVITIES

0
1. The authority citation for part 217 continues to read as follows:

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


0
2. Subpart O is added to part 217 to read as follows:
Subpart O--Taking of Marine Mammals Incidental to Operation of Offshore 
Oil and Gas Facilities in the U.S. Beaufort Sea
Sec.
217.140 Specified activity and specified geographical region.
217.141 Effective dates.
217.142 Permissible methods of taking.
217.143 Prohibitions.
217.144 Mitigation.
217.145 Measures to ensure availability of species for subsistence 
uses.
217.146 Requirements for monitoring and reporting.
217.147 Applications for Letters of Authorization.
217.148 Letters of Authorization.
217.149 Renewal of Letters of Authorization and adaptive management.
217.150 Modifications of Letters of Authorization.

[[Page 75508]]

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


Sec.  217.140  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to BP Exploration 
(Alaska) Inc. (BP) and those persons it authorizes to conduct 
activities on its behalf for the taking of marine mammals that occurs 
in the area outlined in paragraph (b) of this section and that occurs 
incidental to operation of offshore oil and gas facilities in the U.S. 
Beaufort Sea, Alaska, in the Northstar Development Area.
    (b) The taking of marine mammals by BP may be authorized in a 
Letter of Authorization only if it occurs in the geographic region that 
encompasses the Northstar Oil and Gas Development area within state 
and/or Federal waters in the U.S. Beaufort Sea.


Sec.  217.141  Effective dates.

    Regulations in this subpart are effective from January 13, 2014 
through January 14, 2019.


Sec.  217.142  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec.  
216.106 and 217.148 of this chapter, the Holder of the Letter of 
Authorization (hereinafter ``BP'') may incidentally, but not 
intentionally, take marine mammals within the area described in Sec.  
217.140(b), 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.  217.140(a) must be conducted 
in a manner that minimizes, to the greatest extent practicable, any 
adverse impacts on marine mammals and their habitat.
    (c) The incidental take of marine mammals under the activities 
identified in Sec.  217.140(a) is limited to the following species and 
by the indicated method and amount of take:
    (1) Level B Harassment:
    (i) Cetaceans:
    (A) Bowhead whale (Balaena mysticetus)--75 (an average of 15 
annually)
    (B) Gray whale (Eschrichtius robustus)--10 (an average of 2 
annually)
    (C) Beluga whale (Delphinapterus leucas)--100 (an average of 20 
annually)
    (ii) Pinnipeds:
    (A) Ringed seal (Phoca hispida)--155 (an average of 31 annually)
    (B) Bearded seal (Erignathus barbatus)--25 (an average of 5 
annually)
    (C) Spotted seal (Phoca largha)--25 (an average of 5 annually)
    (2) Level A Harassment and Mortality: Ringed seal--25 (an average 
of 5 annually)


Sec.  217.143  Prohibitions.

    Notwithstanding takings contemplated in Sec.  217.140 and 
authorized by a Letter of Authorization issued under Sec. Sec.  216.106 
and 217.148 of this chapter, no person in connection with the 
activities described in Sec.  217.140 may:
    (a) Take any marine mammal not specified in Sec.  217.142(c);
    (b) Take any marine mammal specified in Sec.  217.142(c) other than 
by incidental take as specified in Sec.  217.142(c)(1) and (c)(2);
    (c) Take a marine mammal specified in Sec.  217.172(c) if such 
taking results in more than a negligible impact on the species or 
stocks of such marine mammal;
    (d) Take a marine mammal specified in Sec.  217.172(c) if such 
taking results in an unmitigable adverse impact on the species or stock 
for taking for subsistence uses; or
    (e) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a Letter of Authorization issued under 
Sec. Sec.  216.106 and 217.148 of this chapter.


Sec.  217.144  Mitigation.

    (a) When conducting the activities identified in Sec.  217.140(a), 
the mitigation measures contained in the Letter of Authorization issued 
under Sec. Sec.  216.106 and 217.148 of this chapter must be 
implemented. These mitigation measures include but are not limited to:
    (1) Ice-covered Season:
    (i) In order to reduce the taking of ringed seals to the lowest 
level practicable, BP must begin winter construction activities, 
principally ice roads, as soon as possible once weather and ice 
conditions permit such activity.
    (ii) Any ice roads or other construction activities that are 
initiated after March 1, in previously undisturbed areas in waters 
deeper than 10 ft (3 m), must be surveyed, using trained dogs in order 
to identify and avoid ringed seal structures by a minimum of 492 ft 
(150 m).
    (iii) After March 1 of each year, activities should avoid, to the 
greatest extent practicable, disturbance of any located seal structure.
    (2) Open-water Season:
    (i) BP will establish and monitor, during all daylight hours, a 190 
dB re 1 [mu]Pa (rms) exclusion zone for seals around the island for all 
activities with sound pressure levels (SPLs) that are expected to 
exceed that level in waters beyond the Northstar facility on Seal 
Island.
    (ii) BP will establish and monitor, during all daylight hours, a 
180 dB re 1 [mu]Pa (rms) exclusion zone for cetaceans around the island 
for all activities with SPLs that are expected to exceed that level in 
waters beyond the Northstar facility at Seal Island.
    (iii) If any marine mammals are observed within the relevant 
exclusion zone, described in Sec.  217.144(a)(2)(i) or (a)(2)(ii), the 
activity creating the noise will shutdown or reduce its SPL 
sufficiently (i.e., power down) to ensure that received SPLs do not 
exceed those prescribed SPL intensities at the affected marine mammal. 
The shutdown or reduced SPL shall be maintained until such time as the 
observed marine mammal(s) has been seen to have left the applicable 
exclusion zone or until 15 minutes have elapsed in the case of a 
pinniped or odontocete or 30 minutes in the case of a mysticete without 
resighting, whichever occurs sooner.
    (iv) The entire exclusion zones prescribed in Sec.  
217.144(a)(2)(i) or (a)(2)(ii) must be visible during the entire 30-
minute pre-activity monitoring time period in order for the activity to 
begin.
    (v) BP shall employ a ramp-up technique at the beginning of each 
day's in-water pile driving activities and if pile driving resumes 
after it has ceased for more than 1 hour.
    (A) If a vibratory driver is used, BP is required to initiate sound 
from vibratory hammers for 15 seconds at reduced energy followed by a 
1-minute waiting period. The procedure shall be repeated two additional 
times before full energy may be achieved.
    (B) If a non-diesel impact hammer is used, BP is required to 
provide an initial set of strikes from the impact hammer at reduced 
energy, followed by a 1-minute waiting period, then two subsequent 
sets.
    (C) If a diesel impact hammer is used, BP is required to turn on 
the sound attenuation device for 15 seconds prior to initiating pile 
driving.
    (vi) New drilling into oil-bearing strata shall not take place 
during either open-water or spring-time broken ice conditions.
    (vii) All non-essential boats, barge, and air traffic will be 
scheduled to avoid periods when bowhead whales are migrating through 
the area where they may be affected by noise from these activities.
    (3) Helicopter flights to support Northstar activities must be 
limited to a corridor from Seal Island to the mainland, and, except 
when limited by weather or personnel safety, must maintain a minimum 
altitude of 1,000 ft

[[Page 75509]]

(305 m), except during takeoff and landing.
    (4) Additional mitigation measures as contained in a Letter of 
Authorization issued under Sec. Sec.  216.106 and 217.148 of this 
chapter.
    (b) [Reserved]


Sec.  217.145  Measures to ensure availability of species for 
subsistence uses.

    When applying for a Letter of Authorization pursuant to Sec.  
217.147 or a renewal of a Letter of Authorization pursuant to Sec.  
217.149, BP 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 mammal species or stocks for 
taking for subsistence uses. A plan shall 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 BP has taken and/or will take to 
ensure that the proposed activities will not interfere with subsistence 
whaling or sealing; and
    (c) What plans BP has to continue to meet with the affected 
communities to notify the communities of any changes in operation.


Sec.  217.146  Requirements for monitoring and reporting.

    (a) BP must notify the Alaska Regional Office, NMFS, within 48 
hours of starting ice road construction, cessation of ice road usage, 
and the commencement of icebreaking activities for the Northstar 
facility.
    (b) BP must designate qualified, on-site individuals, approved in 
advance by NMFS, to conduct the mitigation, monitoring, and reporting 
activities specified in the Letter of Authorization issued under 
Sec. Sec.  216.106 and 217.148 of this chapter.
    (c) Monitoring measures during the ice-covered season shall 
include, but are not limited to, the following:
    (1) After March 1, trained dogs must be used to detect seal lairs 
in previously undisturbed areas that may be potentially affected by on-
ice construction activity, if any. Surveys for seal structures should 
be conducted to a minimum distance of 492 ft (150 m) from the outer 
edges of any disturbance.
    (2) If ice road construction occurs after March 1, conduct a 
follow-up assessment in May of that year of the fate of all seal 
structures located during monitoring conducted under paragraph (c)(1) 
of this section near the physically disturbed areas.
    (3) BP shall conduct acoustic measurements to document sound 
levels, characteristics, and transmissions of airborne sounds with 
expected source levels of 90 dBA or greater created by on-ice activity 
at Northstar that have not been measured in previous years. In 
addition, BP shall conduct acoustic measurements to document sound 
levels, characteristics, and transmissions of airborne sounds for 
sources on Northstar Island with expected received levels at the 
water's edge that exceed 90 dBA that have not been measured in previous 
years.
    (d) Monitoring measures during the open-water season shall include, 
but are not limited to, the following:
    (1) Acoustic monitoring of the bowhead whale migration.
    (2) BP shall monitor the exclusion zones of activities capable of 
producing pulsed underwater sound with levels >=180 or >=190 dB re 1 
[micro]Pa (rms) at locations where cetaceans or seals could be exposed. 
At least one on-island observer shall be stationed at a location 
providing an unobstructed view of the predicted exclusion zone. The 
observer(s) shall scan the exclusion zone continuously for marine 
mammals for 30 minutes prior to the operation of the sound source. 
Observations shall continue during all periods of operation and for 30 
minutes after the cessation of the activity. The observer shall record 
the: species and numbers of marine mammals seen within the 180 or 190 
dB zones; bearing and distance of the marine mammals from the 
observation point; and behavior of marine mammals and any indication of 
disturbance reactions to the monitored activity.
    (e) BP shall conduct any additional monitoring measures contained 
in a Letter of Authorization issued under Sec. Sec.  216.106 and 
217.148 of this chapter.
    (f) BP shall submit an annual report to NMFS within the time period 
specified in a Letter of Authorization issued under Sec. Sec.  216.106 
and 217.148 of this chapter.
    (g) If specific mitigation and monitoring are required for 
activities on the sea ice initiated after March 1 (requiring searches 
with dogs for lairs), during the operation of strong sound sources 
(requiring visual observations and shutdown procedures), or for the use 
of new sound sources that have not previously been measured, then a 
preliminary summary of the activity, method of monitoring, and 
preliminary results shall be submitted to NMFS within 90 days after the 
cessation of that activity. The complete description of methods, 
results, and discussion shall be submitted as part of the annual report 
described in paragraph (f) of this section.
    (h) BP shall submit a draft comprehensive report to NMFS, Office of 
Protected Resources, and NMFS, Alaska Regional Office (specific contact 
information to be provided in Letter of Authorization), no later than 
240 days prior to the expiration of the regulations in this subpart. 
This comprehensive technical report shall provide full documentation of 
methods, results, and interpretation of all monitoring during the first 
four and a quarter years of the LOA. Before acceptance by NMFS as a 
final comprehensive report, the draft comprehensive report shall be 
subject to review and modification by NMFS scientists.
    (i)(1) In the unanticipated event that Northstar operations clearly 
causes the death of more than five ringed seals annually or the take of 
a marine mammal in a manner prohibited by this final rule, such as an 
injury (Level A harassment), serious injury or mortality (e.g., ship-
strike, gear interaction), BP shall immediately take steps to cease the 
operations that caused the unauthorized take and report the incident as 
soon as practicable and no later than 24 hours after the incident to 
the Chief of the Permits and Conservation Division, Office of Protected 
Resources, NMFS, or his designee, the Alaska Regional Office, and the 
Alaska Regional Stranding Coordinators (specific contact information to 
be provided in Letter of Authorization). The report must include the 
following information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) The type of equipment involved in the incident;
    (iii) Description of the incident;
    (iv) Water depth, if relevant;
    (v) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
    (vi) Species identification or description of the animal(s) 
involved;
    (vii) The fate of the animal(s); and
    (viii) Photographs or video footage of the animal (if equipment is 
available).
    (2) Activities shall not resume until NMFS is able to review the 
circumstances causing the exceedance of the authorized take. NMFS will 
work with BP to identify additional measures to minimize the likelihood 
that more than five ringed seals will not be killed each year (or other 
marine mammal species that may have been injured, seriously injured, or 
killed) from BP's activities. BP may not resume their activities until 
notified by NMFS via letter, email, or telephone.
    (3) In the event that BP discovers an injured or dead marine 
mammal, and it

[[Page 75510]]

is determined that the cause of the injury or death is unknown and the 
death is relatively recent (i.e., in less than a moderate state of 
decomposition as described in the next paragraph), BP will report the 
incident/discovery as soon as practicable and no later than 24 hours 
after the incident/discovery to the Chief of the Permits and 
Conservation Division, Office of Protected Resources, NMFS, by phone or 
email, the Alaska Regional Office, and the NMFS Alaska Stranding 
Hotline and/or by email to the Alaska Regional Stranding Coordinators 
(specific contact information to be provided in Letter of 
Authorization). The report must include the same information identified 
in Sec.  217.146(i)(1). Activities may continue while NMFS reviews the 
circumstances of the incident. NMFS will work with BP to determine 
whether modifications in the activities are appropriate.
    (4) In the event that BP discovers an injured or dead marine 
mammal, and it is determined that the injury or death is not associated 
with or related to the activities authorized in this final rule (e.g., 
previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), BP shall report the incident to 
the Chief of the Permits and Conservation Division, Office of Protected 
Resources, NMFS, by phone or email and the NMFS Alaska Stranding 
Hotline and/or by email to the Alaska Regional Stranding Coordinators 
(specific contact information to be provided in Letter of 
Authorization), as soon as practicable and no later than 24 hours after 
the discovery. BP shall provide photographs or video footage (if 
available) or other documentation of the stranded animal sighting to 
NMFS and the Marine Mammal Stranding Network. Activities may continue 
while NMFS reviews the circumstances of the incident.


Sec.  217.147  Applications for Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the U.S. Citizen (as defined by Sec.  216.103 of this 
chapter) conducting the activity identified in Sec.  217.140(a) (i.e., 
BP) must apply for and obtain either an initial Letter of Authorization 
in accordance with Sec.  217.148 or a renewal under Sec.  217.149.
    (b) [Reserved]


Sec.  217.148  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, shall 
be valid for a period of time not to exceed the period of validity of 
this subpart.
    (b) The Letter of Authorization shall 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 (i.e., mitigation); and
    (3) Requirements for mitigation, monitoring and reporting.
    (c) Issuance and renewal of the Letter of Authorization shall be 
based on a determination that the total number of marine mammals taken 
by the activity as a whole will have no more than a negligible impact 
on the affected species or stock of 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.


Sec.  217.149  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 and Sec.  
217.148 of this chapter for the activity identified in Sec.  217.140(a) 
shall be renewed upon request by the applicant or determination by NMFS 
and the applicant that modifications are appropriate pursuant to the 
adaptive management component of these regulations, provided that:
    (1) NMFS is notified that the activity described in the application 
submitted under Sec.  217.147 will be undertaken and that there will 
not be a substantial modification to the described work, mitigation or 
monitoring undertaken during the upcoming 12 months;
    (2) NMFS receives the monitoring reports required under Sec.  
217.146(f) and (g); and
    (3) NMFS determines that the mitigation, monitoring and reporting 
measures required under Sec. Sec.  217.144 and 217.146 and the Letter 
of Authorization issued under Sec. Sec.  216.106 and 217.148 of this 
chapter were undertaken and will be undertaken during the upcoming 
period of validity of a renewed Letter of Authorization.
    (b) If either a request for a renewal of a Letter of Authorization 
issued under Sec. Sec.  216.106 and 217.149 of this chapter or a 
determination by NMFS and the applicant that modifications are 
appropriate pursuant to the adaptive management component of these 
regulations indicates that a substantial modification, as determined by 
NMFS, to the described work, mitigation or monitoring undertaken during 
the upcoming season will occur, NMFS will provide the public a period 
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 indicating that the 
determinations made in this document are in need of reconsideration, 
and
    (2) Proposed substantive changes to the mitigation and monitoring 
requirements contained in these regulations or in the current Letter of 
Authorization.
    (c) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register.
    (d) Adaptive management--NMFS may modify or augment the existing 
mitigation or monitoring measures (after consulting with BP regarding 
the practicability of the modifications) if doing so creates a 
reasonable likelihood of more effectively accomplishing the goals of 
mitigation and monitoring set forth in the preamble of these 
regulations. Below are some of the possible sources of new data that 
could contribute to the decision to modify the mitigation or monitoring 
measures:
    (1) Results from BP's monitoring from the previous year;
    (2) Results from general marine mammal and sound research; or
    (3) Any information which reveals that marine mammals may have been 
taken in a manner, extent or number not authorized by these regulations 
or subsequent LOAs.


Sec.  217.150  Modifications of Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization issued by NMFS, pursuant to Sec. Sec.  216.106 
and 217.148 of this chapter 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.  217.149, 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.  217.142(c), a Letter of 
Authorization issued pursuant to Sec. Sec.  216.106 and 217.148 of this 
chapter 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. 2013-29553 Filed 12-11-13; 8:45 am]
BILLING CODE 3510-22-P