Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Operation of Offshore Oil and Gas Facilities in the U.S. Beaufort Sea, 75488-75510 [2013-29553]

Download as PDF 75488 Federal Register / Vol. 78, No. 239 / Thursday, December 12, 2013 / Rules and Regulations Dated: November 25, 2013. David L. Miller, Associate Administrator, Federal Insurance and Mitigation Administration, Department of Homeland Security, Federal Emergency Management Agency. [FR Doc. 2013–29658 Filed 12–11–13; 8:45 am] Background BILLING CODE 9110–12–P 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 National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: 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: https:// www.nmfs.noaa.gov/pr/permits/ incidental.htm. Documents cited in this final rule may also be viewed, by wreier-aviles on DSK5TPTVN1PROD with RULES SUMMARY: VerDate Mar<15>2010 15:03 Dec 11, 2013 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: Jkt 232001 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 PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 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. E:\FR\FM\12DER1.SGM 12DER1 Federal Register / Vol. 78, No. 239 / Thursday, December 12, 2013 / Rules and Regulations 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). wreier-aviles on DSK5TPTVN1PROD with RULES 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 nonacoustic 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 VerDate Mar<15>2010 15:03 Dec 11, 2013 Jkt 232001 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 PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 75489 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: https://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 E:\FR\FM\12DER1.SGM 12DER1 75490 Federal Register / Vol. 78, No. 239 / Thursday, December 12, 2013 / Rules and Regulations • 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. wreier-aviles on DSK5TPTVN1PROD with RULES 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. VerDate Mar<15>2010 15:03 Dec 11, 2013 Jkt 232001 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 icecovered 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 PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 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 habitatrelated 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. E:\FR\FM\12DER1.SGM 12DER1 Federal Register / Vol. 78, No. 239 / Thursday, December 12, 2013 / Rules and Regulations 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 onice searches were conducted. wreier-aviles on DSK5TPTVN1PROD with RULES 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 icecovered season or break-up period and would not be scheduled during the fall bowhead migration. However, if such activities were to occur during the openwater 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 mPa (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 mPa (rms) at any location in the water. This was attributable to attenuation by the gravel and sheet pile walls VerDate Mar<15>2010 15:03 Dec 11, 2013 Jkt 232001 (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 mPa (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 mPa (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 mPa 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 mPa (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 PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 75491 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 oilbearing 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: https:// E:\FR\FM\12DER1.SGM 12DER1 75492 Federal Register / Vol. 78, No. 239 / Thursday, December 12, 2013 / Rules and Regulations www.nmfs.noaa.gov/pr/permits/ incidental.htm. wreier-aviles on DSK5TPTVN1PROD with RULES 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 VerDate Mar<15>2010 15:03 Dec 11, 2013 Jkt 232001 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 longterm 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 15July 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 PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 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 mPa (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 E:\FR\FM\12DER1.SGM 12DER1 Federal Register / Vol. 78, No. 239 / Thursday, December 12, 2013 / Rules and Regulations 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: https://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: 75493 (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 BP Response/commitment BP should attempt to assess the duration of deflection (i.e., the amount of time or distance before deflected whales returned to their normal migratory path) of bowheads away from Northstar Island, if possible. Other data sets (i.e., Bowhead Whale Aerial Survey Program [BWASP], Shell acoustic data) might prove useful for addressing this question. wreier-aviles on DSK5TPTVN1PROD with RULES Panel recommendation Because of the relatively low sound levels emanating from Northstar into the bowhead whale migration corridor and the subtle responses of the whales, detecting deflection immediately north of Northstar was challenging, but statistically significant deflection was detected in 2001–2004. Shell’s arrays west of 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. VerDate Mar<15>2010 15:03 Dec 11, 2013 Jkt 232001 PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 E:\FR\FM\12DER1.SGM 12DER1 75494 Federal Register / Vol. 78, No. 239 / Thursday, December 12, 2013 / Rules and Regulations 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—Continued Panel recommendation BP Response/commitment BP should continue to use their proposed approach for counting seals. Additional data should be collected to help interpret the counts, including: recording on-island activities and correlate them with seal numbers. (It is likely that counts of seals will be influenced mostly by onset of spring, however, numbers should also be assessed relative to island activity to investigate whether those activities impact the numbers of seals counted from the island.). Previously collected seal data should be analyzed for the date when seals are first seen and the peak date of haul out. Counts of seals hauled out on ice in the late autumn or early winter would help assess seal use of the area near Northstar at times other than the spring and early summer. BP will continue seal monitoring. If Northstar undertakes substantial work during the basking season, it might make sense to undertake a behavioral study using island-based observers before, during, and after the work. BP suggests further discussions of this option during annual planning meetings (described below) if substantial work is planned during the basking season. Counts of seals are intended as a broad measure of use of the area around the island. One component of the counts is to determine whether additional monitoring is needed, yet no specific thresholds have been identified that might trigger additional monitoring. Thresholds should be established for the initiation of discussions about additional monitoring. wreier-aviles on DSK5TPTVN1PROD with RULES Thresholds should also be established related to calling rates for initiation of discussions about additional monitoring of bowheads. BP should incorporate environmental factors (i.e., sea ice extent, wind, etc.) in addition to anthropogenic activities, as a covariate in analyses of impacts from Northstar Island on bowheads. BP should continue to deploy one hydrophone (and one back-up unit) 1,476 ft (450 m) north of Northstar to monitor anthropogenic sounds from activities associated with the island. BP should continue to record the amount and type of activities at the island (i.e., crew boat trips, hovercraft trips, activities on the island, etc.). If activity levels change substantially, discussions of additional monitoring might be warranted. Determine if additional monitoring (e.g., full acoustic array) might be needed if levels and types of activities at the island increase or whether BP’s lower level of 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 using existing acoustic data to monitor species other than bowhead whales. Also consider configuring hydrophones that would be deployed in the future to record at the higher frequencies and monitor other marine mammals in addition to bowheads. Establish protocols for additional monitoring during autumn migratory seasons for bowheads when ‘‘loud’’ sounds are expected to be produced 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 of industrial sound sources with associated metadata, (2) raw 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 cumulative perspective. Each company’s monitoring efforts, including BP’s, should fit into a larger more comprehensive monitoring program with the objective of assessing cumulative impacts. This is one of the reasons that monitoring data should be archived. VerDate Mar<15>2010 15:03 Dec 11, 2013 Jkt 232001 PO 00000 Frm 00046 Fmt 4700 BP agrees to begin reporting dates of the first appearance of basking seals and peak basking dates beginning in 2014. Limited daylight will make this challenging, but BP agrees to attempt autumn observations for basking seals using the same 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). Due to the large range in seal counts from year to year, BP prefers not to set a priori thresholds but rather to formalize annual discussions about planned monitoring. These discussions should be based not only on specific numbers of seals observed but also on circumstances surrounding those observations and 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. See the response to the previous recommendation. This would be part of the annual monitoring discussions between BP, NMFS, and the NSB. Because of the inherent difficulties in adding multiple variables to such analyses, BP suggests that this be discussed at the annual monitoring meeting between BP, NMFS, and the NSB. BP will continue this practice under this final rule. BP will continue this practice under this final rule. Should additional monitoring be warranted, this would be discussed at the annual monitoring meeting between BP, NMFS, and the NSB. This recommendation repeats several previous recommendations. This topic would be included in the annual discussions between BP, NMFS, and the NSB. Beginning with the 2011 data set, BP can document calls from species other than bowheads, but many other species do not call in the vicinity so the vocalizations would not be picked up by the array. BP will assess the possibility of recording at higher frequencies, but their ability to do so is limited by existing hardware. Should additional monitoring be warranted, this would be discussed at the annual monitoring meeting between BP, NMFS, and the NSB. BP has provided archived data to the NSB and others in the past and will continue to do so. Although not specifically linked to this monitoring plan, BP has undertaken cumulative effects methods development using an expert panel approach. The method is currently being ‘‘truthed’’ using data collected in 2008, including Northstar data. Sfmt 4700 E:\FR\FM\12DER1.SGM 12DER1 Federal Register / Vol. 78, No. 239 / Thursday, December 12, 2013 / Rules and Regulations 75495 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—Continued BP Response/commitment Develop a plan for the periodic redeployment of a full array ................... wreier-aviles on DSK5TPTVN1PROD with RULES Panel recommendation BP will discuss this possibility at 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 iceroad 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 VerDate Mar<15>2010 15:03 Dec 11, 2013 Jkt 232001 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 PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 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. E:\FR\FM\12DER1.SGM 12DER1 wreier-aviles on DSK5TPTVN1PROD with RULES 75496 Federal Register / Vol. 78, No. 239 / Thursday, December 12, 2013 / Rules and Regulations 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: https:// 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 VerDate Mar<15>2010 15:03 Dec 11, 2013 Jkt 232001 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 PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 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 E:\FR\FM\12DER1.SGM 12DER1 wreier-aviles on DSK5TPTVN1PROD with RULES Federal Register / Vol. 78, No. 239 / Thursday, December 12, 2013 / Rules and Regulations zone for impulsive sources and (2) conduct acoustic measurements for any novel sound sources that produce in-air sounds of 90 dB re 20 mPa (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 inwater Level A and B harassment zones for all those sources (including using the 120-dB re 1 mPa (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 mPa (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 VerDate Mar<15>2010 15:03 Dec 11, 2013 Jkt 232001 cause injury at SPLs at or above 149 dB re 20 mPa (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 mPa. 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 mPa. 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 mPa (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 mPa (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 mPa (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 PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 75497 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 nondiesel 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 inair 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 E:\FR\FM\12DER1.SGM 12DER1 wreier-aviles on DSK5TPTVN1PROD with RULES 75498 Federal Register / Vol. 78, No. 239 / Thursday, December 12, 2013 / Rules and Regulations 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 breakup 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 VerDate Mar<15>2010 15:03 Dec 11, 2013 Jkt 232001 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 PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 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– E:\FR\FM\12DER1.SGM 12DER1 wreier-aviles on DSK5TPTVN1PROD with RULES Federal Register / Vol. 78, No. 239 / Thursday, December 12, 2013 / Rules and Regulations 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 spillrelated 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. VerDate Mar<15>2010 15:03 Dec 11, 2013 Jkt 232001 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: https://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. PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 75499 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 § 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. E:\FR\FM\12DER1.SGM 12DER1 75500 Federal Register / Vol. 78, No. 239 / Thursday, December 12, 2013 / Rules and Regulations wreier-aviles on DSK5TPTVN1PROD with RULES 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 VerDate Mar<15>2010 15:03 Dec 11, 2013 Jkt 232001 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 icecovered 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 icecovered 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 icecovered 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 lowfrequency 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 PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 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 icecovered 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 E:\FR\FM\12DER1.SGM 12DER1 Federal Register / Vol. 78, No. 239 / Thursday, December 12, 2013 / Rules and Regulations wreier-aviles on DSK5TPTVN1PROD with RULES (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 breakup 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 VerDate Mar<15>2010 15:03 Dec 11, 2013 Jkt 232001 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 openwater 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 PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 75501 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 openwater period are likely to be young, nonreproductive 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 openwater season. (4) Bowhead Whale Bowhead whales are not resident in the region of activity. During the openwater 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 E:\FR\FM\12DER1.SGM 12DER1 75502 Federal Register / Vol. 78, No. 239 / Thursday, December 12, 2013 / Rules and Regulations wreier-aviles on DSK5TPTVN1PROD with RULES 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 mPa (Malme et al., 1984, 1988; Richardson et al., 1995b; Southall VerDate Mar<15>2010 15:03 Dec 11, 2013 Jkt 232001 et al., 2007). The broadband received level approximately 1,476 ft (450 m) seaward from Northstar did not exceeded 120 dB 1 mPa 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. PO 00000 Frm 00054 Fmt 4700 Sfmt 4700 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. E:\FR\FM\12DER1.SGM 12DER1 Federal Register / Vol. 78, No. 239 / Thursday, December 12, 2013 / Rules and Regulations 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 Species Abundance Ringed Seal ..................................................................................................... Bearded Seal ................................................................................................... Spotted Seal .................................................................................................... Bowhead Whale ............................................................................................... Beluga Whale .................................................................................................. Gray Whale ...................................................................................................... Total annual authorized Level B take 1∼250,000 31 5 5 15 20 2 1 155,000 1 141,479 2 15,750 1 39,258 1 19,126 Total annual authorized injury or mortality take Percentage of stock or population 5 0 0 0 0 0 0.01 <0.01 <0.01 0.1 0.05 0.01 1 Abundance 2 Estimate estimates in NMFS 2011 Alaska SAR (Allen and Angliss, 2012). from George et al. (2004) with an annual growth rate of 3.4%. wreier-aviles on DSK5TPTVN1PROD with RULES 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 VerDate Mar<15>2010 15:03 Dec 11, 2013 Jkt 232001 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 openwater season. Moreover, they are more common in the Colville River Delta area, PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 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 E:\FR\FM\12DER1.SGM 12DER1 wreier-aviles on DSK5TPTVN1PROD with RULES 75504 Federal Register / Vol. 78, No. 239 / Thursday, December 12, 2013 / Rules and Regulations 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 VerDate Mar<15>2010 15:03 Dec 11, 2013 Jkt 232001 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 PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 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 70ß10’ N., 144ß11’ 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. E:\FR\FM\12DER1.SGM 12DER1 Federal Register / Vol. 78, No. 239 / Thursday, December 12, 2013 / Rules and Regulations wreier-aviles on DSK5TPTVN1PROD with RULES 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 VerDate Mar<15>2010 15:03 Dec 11, 2013 Jkt 232001 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 tailslapping, 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 PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 75505 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 openwater 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 oilcontaminated 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 nonoiled 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 E:\FR\FM\12DER1.SGM 12DER1 75506 Federal Register / Vol. 78, No. 239 / Thursday, December 12, 2013 / Rules and Regulations wreier-aviles on DSK5TPTVN1PROD with RULES 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 VerDate Mar<15>2010 15:03 Dec 11, 2013 Jkt 232001 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 PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 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 E:\FR\FM\12DER1.SGM 12DER1 Federal Register / Vol. 78, No. 239 / Thursday, December 12, 2013 / Rules and Regulations wreier-aviles on DSK5TPTVN1PROD with RULES 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 VerDate Mar<15>2010 15:03 Dec 11, 2013 Jkt 232001 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. PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 75507 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-ofinformation 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 1. The authority citation for part 217 continues to read as follows: ■ Authority: 16 U.S.C. 1361 et seq. 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. E:\FR\FM\12DER1.SGM 12DER1 75508 Federal Register / Vol. 78, No. 239 / Thursday, December 12, 2013 / Rules and Regulations Subpart O—Taking of Marine Mammals Incidental to Operation of Offshore Oil and Gas Facilities in the U.S. Beaufort Sea § 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. § 217.141 Effective dates. Regulations in this subpart are effective from January 13, 2014 through January 14, 2019. wreier-aviles on DSK5TPTVN1PROD with RULES § 217.142 Permissible methods of taking. (a) Under Letters of Authorization issued pursuant to §§ 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 § 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 § 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 § 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) VerDate Mar<15>2010 15:03 Dec 11, 2013 Jkt 232001 (2) Level A Harassment and Mortality: Ringed seal—25 (an average of 5 annually) § 217.143 Prohibitions. Notwithstanding takings contemplated in § 217.140 and authorized by a Letter of Authorization issued under §§ 216.106 and 217.148 of this chapter, no person in connection with the activities described in § 217.140 may: (a) Take any marine mammal not specified in § 217.142(c); (b) Take any marine mammal specified in § 217.142(c) other than by incidental take as specified in § 217.142(c)(1) and (c)(2); (c) Take a marine mammal specified in § 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 § 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 §§ 216.106 and 217.148 of this chapter. § 217.144 Mitigation. (a) When conducting the activities identified in § 217.140(a), the mitigation measures contained in the Letter of Authorization issued under §§ 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 mPa (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. PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 (ii) BP will establish and monitor, during all daylight hours, a 180 dB re 1 mPa (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 § 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 § 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 1minute 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 E:\FR\FM\12DER1.SGM 12DER1 Federal Register / Vol. 78, No. 239 / Thursday, December 12, 2013 / Rules and Regulations (305 m), except during takeoff and landing. (4) Additional mitigation measures as contained in a Letter of Authorization issued under §§ 216.106 and 217.148 of this chapter. (b) [Reserved] § 217.145 Measures to ensure availability of species for subsistence uses. When applying for a Letter of Authorization pursuant to § 217.147 or a renewal of a Letter of Authorization pursuant to § 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. wreier-aviles on DSK5TPTVN1PROD with RULES § 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, onsite individuals, approved in advance by NMFS, to conduct the mitigation, monitoring, and reporting activities specified in the Letter of Authorization issued under §§ 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. VerDate Mar<15>2010 15:03 Dec 11, 2013 Jkt 232001 (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 mPa (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 §§ 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 §§ 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 PO 00000 Frm 00061 Fmt 4700 Sfmt 4700 75509 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 E:\FR\FM\12DER1.SGM 12DER1 75510 Federal Register / Vol. 78, No. 239 / Thursday, December 12, 2013 / Rules and Regulations 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 § 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. wreier-aviles on DSK5TPTVN1PROD with RULES § 217.147 Applications for Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regulations, the U.S. Citizen (as defined by § 216.103 of this chapter) conducting the activity identified in § 217.140(a) (i.e., BP) must apply for and obtain either an initial Letter of Authorization in accordance with § 217.148 or a renewal under § 217.149. (b) [Reserved] § 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: VerDate Mar<15>2010 15:03 Dec 11, 2013 Jkt 232001 (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. § 217.149 Renewal of Letters of Authorization and adaptive management. (a) A Letter of Authorization issued under § 216.106 and § 217.148 of this chapter for the activity identified in § 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 § 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 § 217.146(f) and (g); and (3) NMFS determines that the mitigation, monitoring and reporting measures required under §§ 217.144 and 217.146 and the Letter of Authorization issued under §§ 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 §§ 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: PO 00000 Frm 00062 Fmt 4700 Sfmt 9990 (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. § 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 §§ 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 § 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 wellbeing of the species or stocks of marine mammals specified in § 217.142(c), a Letter of Authorization issued pursuant to §§ 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 E:\FR\FM\12DER1.SGM 12DER1

Agencies

[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: https://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: https://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:
https://

[[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: https://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: https://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: https://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

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