Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Ice Roads and Ice Trails Construction and Maintenance Activities on Alaska's North Slope, 2988-3010 [2020-00393]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 85, Number 12 (Friday, January 17, 2020)]
[Proposed Rules]
[Pages 2988-3010]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00393]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 200106-0003]
RIN 0648-BJ24


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Ice Roads and Ice Trails 
Construction and Maintenance Activities on Alaska's North Slope

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments and information.

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SUMMARY: NMFS has received a request from Hilcorp Alaska, LLC (Hilcorp) 
and Eni US Operating Co. Inc. (Eni) for authorization to take small 
numbers of marine mammals incidental to ice road and ice trail 
construction, maintenance, and operation in Alaska's North Slope, over 
the course of five years (2020-2025). As required by the Marine Mammal 
Protection Act (MMPA), NMFS is proposing regulations to govern that 
take and requests comments on the proposed regulations. NMFS will 
consider public comments prior to making any final decision on the 
issuance of the requested MMPA authorization and agency responses will 
be summarized in the final notice of our decision.

DATES: Comments and information must be received no later than February 
18, 2020.

ADDRESSES: You may submit comments, identified by NOAA-NMFS-2019-0129, 
by any of the following methods:
     Electronic submissions: submit all electronic public 
comments via the Federal eRulemaking Portal, Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0129, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments.
     Mail: Submit comments to Jolie Harrison, Chief, Permits 
and Conservation Division, Office of Protected Resources, National 
Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 
20910-3225.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information. 
NMFS will accept anonymous comments (enter ``N/A'' in the required 
fields if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, or Adobe PDF file 
formats only.

FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION: 

Purpose and Need for Regulatory Action

    This proposed rule would establish a framework under the authority 
of the MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of 
take of marine mammals incidental to Hilcorp and Eni's ice roads and 
ice trails construction and maintenance activities on Alaska's North 
Slope.
    We received an application from Hilcorp and Eni requesting five-
year regulations and authorization to take ringed seals. Take would 
occur by Level B, Level A harassment and serious injury and/or 
mortality of a few individual seals incidental to ice roads and ice 
trails construction and maintenance. Please see ``Background'' below 
for definitions of harassment.

Legal Authority for the Proposed Action

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs 
the Secretary of Commerce to allow, upon request, the incidental, but 
not intentional taking of small numbers of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region for up to five years 
if, after notice and public comment, the agency makes certain findings 
and issues regulations that set forth permissible methods of taking 
pursuant to that activity and other means of effecting the ``least 
practicable adverse impact'' on the affected species or stocks and 
their habitat (see the discussion below in the ``Proposed Mitigation'' 
section), as well as monitoring and reporting requirements. Section 
101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR 
part 216, subpart I provide the legal basis for issuing this proposed 
rule containing five-year regulations and for any subsequent letters of 
authorization (LOAs). As directed by this legal authority, this 
proposed rule contains mitigation, monitoring, and reporting 
requirements.

Summary of Major Provisions Within the Proposed Rule

    Following is a summary of the major provisions of this proposed 
rule regarding Hilcorp and Eni's construction activities. These 
measures include:
     No initiation of ice road or trail construction if a 
ringed seal is observed within 150 ft of the action area after March 1 
through May 30 of each year.
     Requiring monitoring of the construction areas to detect 
the presence of marine mammals before beginning construction 
activities.

Background

    The MMPA prohibits the ``take'' of marine mammals with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are issued or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization may be provided to the public 
for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to in shorthand as

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``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of such takings are set forth.
    The definitions of all applicable MMPA statutory terms cited above 
are included in the relevant sections below.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an 
incidental harassment authorization (IHA)) with respect to potential 
impacts on the human environment.
    Accordingly, NMFS is preparing an Environmental Assessment (EA) to 
consider the environmental impacts associated with the proposed rule.
    NMFS' draft EA is available online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
    We will review all comments submitted in response to this document 
as we complete the NEPA process, prior to making a final decision on 
the incidental take authorization request.

Summary of Request

    On December 2, 2018, NMFS received a joint application from Hilcorp 
and Eni requesting authorization for take of marine mammals incidental 
to construction activities related to ice roads and ice trails in the 
North Slope, Alaska. The requested regulations would be valid for five 
years, from February 15, 2020, through February 14, 2025. Hilcorp and 
Eni plan to conduct necessary work, including use of heavy machinery on 
ice, to facilitate access to North Slope offshore oil and gas 
facilities. The proposed action may incidentally expose marine mammals 
occurring in the vicinity to elevated levels of sound, human presence 
on ice habitat, and interactions with heavy machinery, thereby 
resulting in incidental take, by Level B harassment and serious injury 
or mortality. NMFS provided questions and comments to Hilcorp and Eni 
after receiving the initial application regarding the scope of the 
project and impact analysis. Hilcorp and Eni submitted a modified 
request on May 21, 2019 and NMFS deemed the application adequate and 
complete on May 31, 2019.

Description of Proposed Activity

Overview

    Hilcorp and Eni conduct oil and gas operations at Northstar 
Production Facility (Northstar) and Spy Island Drillsite (SID), 
respectively, in coastal Beaufort Sea, Alaska. During the ice-covered 
season, Hilcorp constructs annual ice roads and trails to connect and 
allow access between West Dock and Northstar. Similarly, Eni builds and 
utilizes an ice road connecting the Oliktok Production Pad (OPP) and 
SID. Eni also builds an annual ice road from shore to the Oooguruk 
Drill Site (ODS) (Figures 1-4). This regulation and the implementing 
LOAs would authorize takes of marine mammals incidental to Hilcorp and 
Eni's ice roads and ice trails construction during the ice-covered 
season on Alaska's North Slope.

Dates and Duration

    Both Hilcorp and Eni generally begin constructing sea ice roads and 
ice trails as early as possible, usually by late December depending on 
weather. Maintenance and use of the ice roads and trails continue 
generally through mid-May when the ice becomes too unstable to access. 
Depending on the weather, from the initial surveying until the ice is 
thick enough to allow travel by wheeled vehicles, ice road construction 
takes about six weeks.

Specific Geographic Region

    Northstar, an artificial gravel island, is located in State of 
Alaska coastal waters about 9.7 km (6 mi) offshore from Point 
Storkersen in the Beaufort Sea (Figure 1). Water depth at the island is 
about 12 ft (39 ft). This region is covered by landfast ice in winter 
and with water depths greater than 3 m (10 ft) .
    The 0.05 square kilometer [km\2\] (11-acre) SID is also an 
artificial, gravel island constructed in shallow (1.8-2.4 m, 6-8 ft), 
State of Alaska coastal waters approximately 4.8 km (3 mi) north of 
Oliktok Point and just south of the Spy Island barrier island (Figure 
2). While SID is situated in water depths considered unsuitable for 
ringed seals, each year a crack or lead has developed in the road 
between OPP and SID.
    The ODS consists of a 0.024 km\2\ (6-acre) gravel drillsite 
approximately 8 km (5 mi) offshore in 1.4 m (4.5 ft) of water (Figures 
3 and 4). The site is connected to an onshore facility by a flowline 
system consisting of a 9.2 km (5.7 mi) subsea buried flowline bundle 
which transitions onshore to a 3.7 km (2.3 mi) traditional North Slope 
aboveground flowline support system.
BILLING CODE 3510-22-P

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Detailed Description of Specific Activity

Hilcorp: Northstar to West Dock
Ice Road Construction, Use, and Maintenance
    Each year during the ice-covered season an approximately 11.7 km 
(7.3 mi) long ice road is constructed between Northstar and the Prudhoe 
Bay facilities at West Dock to transport personnel, equipment, 
materials, and supplies (Figure 1). Ice roads allow standard vehicles 
such as pick-up trucks, SUVs, buses and other trucks to be used to 
transport personnel and equipment to and from the island during the 
ice-covered period.
    In some years depending on operational needs and weather 
conditions, Hilcorp may elect to not build the main improved ice road. 
In this case, a primary ice trail that can support only tracked, 
lighter-weight vehicles would be built in the location of the improved 
ice road shown on Figure 1. However, to cover all scenarios, Hilcorp 
assumes that an ice road would be built in each year for the next five 
years.
    In water deeper than 3 m (10 ft), the ice must be approximately 2.4 
m (8 ft) thick to support construction equipment. Ice road construction 
activities occurs 24 hours a day, 7 days a week during the construction 
phase and are only halted in unsafe conditions such as high winds or 
extremely low temperatures. The ice roads are typically constructed by 
specially-designed pumps with ice augers. Seawater for creating the 
offshore ice road is obtained by drilling holes through the existing 
sea ice using augers and pumping salt water to flood the ice surface. 
The rolligons (vehicles with large low-pressure tires) move along the 
road alignment while flooding the surface. Water trucks are used to 
spray a freshwater cap over the thickened sea ice to provide 
durability.
    Following construction, ice road surfaces are maintained using 
graders with snow wings and blowers, or front-end loaders with snow 
blower attachments. Snow can also be cleared by personnel with snow 
blowers. When snow blowing, wind direction is used to assist in 
dispersing the blown snow over a large area so that large berms or 
piles are not created. Delineators may be used to mark the roadway in 
15 m (50 ft) increments down the centerline of the road, and at no more 
than 0.4 km (\1/4\ mi) increments on both sides of the ice road to 
delineate the path of vehicle travel and areas to be maintained. 
Corners of rig mats, steel plates, and other materials used to bridge 
sections of hazardous ice, are clearly marked or mapped using Global 
Positioning System (GPS) coordinates of the locations.
    The following steps are used to build the Northstar ice road:
     Clear snow using lighter-weight tracked vehicles;
     Grade or drag the ice to smooth the surface, incorporating 
rubble ice into the road or moving it outside of the expected road 
surface;
     Drill holes through floating ice along the planned ice 
road route using rolligons equipped with ice augers and pumps;
     Pump seawater from drilled holes over floating ice; and
     Flood the ice road. Flooding techniques are dependent on 
the conditions of the sea ice (i.e., grounded vs. floating).
    Grounded ice requires minimal freshwater flooding to either cap or 
repair cracks. Floating ice requires flooding with seawater until a 
desired thickness is achieved. Thickness of floating ice would be 
determined by the required strength and integrity of the ice. After 
achieving desired thickness, floating ice areas may then be flooded 
with fresh water to either cap or repair cracks. This technique 
minimizes the amount of freshwater used to obtain the desired thickness 
of the ice road. Hilcorp would use permitted freshwater sources if 
fresh water is needed to construct the Northstar ice roads. Water would 
be transported by truck from permitted freshwater sources via existing 
roads.
Ice Trails
    Ice trails are unimproved access corridors used by Tuckers (a type 
of tracked vehicle that moves on snow), PistenBullys[supreg] (a type of 
tracked vehicle that moves on snow), snow machines, or similar tracked 
equipment. Seawater flooding of the entire trail and freshwater caps 
are not used. However, small rough areas of a trail may require minimal 
seawater flooding to allow tracked vehicles, rolligons, and the 
hovercraft (if needed) to travel along the corridor.
    To construct the trail, snow machines and light-weight tracked 
vehicles are used to initially mark the corridor as soon as it is 
determined to be safe for access. Sea ice in the unimproved roads would 
be allowed to thicken through natural freeze up as the ice, and snow is 
packed down by larger tracked vehicles. Generally, snow removal or 
large surface modifications are not required for ice trails.
    Hilcorp usually builds the following unimproved ice trails to 
Northstar:
     Along the pipeline corridor from the valve pad near the 
Dew Line site to Northstar (9.5 km, 5.93 mi),
     From West Dock to the pipeline shore crossing (grounded 
ice along the coastline (7.8 km,4.82 mi), and
     Two unimproved ice road paths from the hovercraft tent at 
Dockhead 2. One would go under the West Dock causeway bridge to 
Dockhead 3 (1.4 km, 0.86 mi) and the other would go around West Dock 
and intersect the main ice road north of the Seawater Treatment Plant 
(4.6 km, 2.85 mi).
    In addition to these trails, Hilcorp may need to construct several 
shorter length trails into undisturbed areas to work around unstable 
and unsafe areas of ice as the season progresses. Due to safety 
considerations these work-around or detour trails may need to be 
constructed after March 1st. They are constructed similarly to the 
planned ice trails and are not flooded or capped with seawater or 
freshwater. Typically, these detours deviate approximately 23 to 46 m 
(75 to 150 ft) from the original road or trail to allow crews to safely 
go around soft spots or cracks.
Eni: Oliktok Production Pad to SID
Ice Road Construction, Use, and Maintenance
    Each year Eni builds a single ice road and three ice pads. The ice 
road extends 6.8 km (4.2 mi) offshore from OPP to SID (Figure 2). This 
ice road has both supported on water (floating) and grounded ice 
sections; the first 244 m (800 ft) of the road from shore is grounded 
ice (i.e., frozen to the bottom). In addition, Eni typically also 
builds two floating ice pad parking areas at SID: A 152 m by 6 m (500 
ft by 200 ft) area located on the southeast side of SID, and a 91 m by 
46 m (300 ft by 150 ft) area on the northeast side, and one grounded 
ice pad at the Oliktok Point end of the ice road.
    Initial construction of the sea ice road begins with surveying and 
staking the route as soon as the ice is thick enough to support snow 
machines. The floating sections of the road are constructed using the 
free flood method; low pressure pumps flood the ice surface with 
seawater. A 7. 6 cm (3 in.) layer of water is applied, some of which 
may move to lower parts of the roadway. After the water has frozen, the 
next flood can be applied.
    Small rolligon vehicles with augers and pumps are used for augering 
and flooding. Hand augers can be used to check the ice thickness. Ice 
needs to be 41 to 51 cm (16 to 20 in.) thick to support these vehicles. 
Rolligon tires distribute the load over a larger tire

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print. Flooding operations occur 24 hours a day, 7 days a week during 
this phase. Once the ice is about 183 cm (72 in.) thick and determined 
to be able to support full loads, vehicles such as passenger trucks, 
vacuum trucks, drill trucks and other tractor plus trailer loads can 
use the ice road. Up until that time, only rolligon vehicles and 
tracked vehicles are used on the road. The maintained ice road width 
(including the shoulder areas) is 49 m (160 ft).
    Rig mats are used to bridge small leads (fractures within large 
expanse of ice) and wet cracks during construction and maintenance. 
During maintenance activities, fresh water is used for road surfacing 
and repair. Once fully flooded and open to traffic, snow loads on the 
ice road must be managed. Snow on the ice road is cleared frequently 
and the width of the ice road (including the shoulder areas) is 
maintained at 49 m (160 ft). At the end of the ice road season, as 
temperatures and sun exposure increase, snow may be spread over the 
road surface to insulate and shade the ice surface, helping to preserve 
ice road integrity.
Ice Trails
    Following the same general construction methods used at Northstar, 
Eni plans to build an unimproved ice trail just west of and parallel to 
the sea ice road corridor near SID. The ice trail is typically 
approximately 15-30 m (50-100 ft) west of the western edge of the ice 
road shoulder and is used when the ice road is being constructed. Once 
the ice road is open to regular traffic, the ice trail is not used. 
After March 1st, due to safety considerations, Eni may also need to use 
several shorter length trails in undisturbed areas to work around 
unstable and unsafe areas of ice as the season progresses. As described 
above, these work-around or detour trails allow PistenBullys[supreg] 
and other tracked vehicles to safely go around soft spots or cracks.
Eni: Oooguruk Ice Road
Ice Road Construction, Use, and Maintenance
    A single ice road and staging area ice pad are required each year 
to operate the ODS. As shown in Figure 3, the typical or proposed ice 
road extends 8.9 km (5.5 mi) offshore to the ODS. An alternative ice 
road as shown on Figure 4 would be located in shallower water and, 
therefore, can be grounded and used earlier in the season. The 
alternative route extends 11.2 km (7 mi) offshore and is used in years 
when an early road completion is required or when extra heavy loads, 
such as a drilling rig is expected. Either ice road is up to 
approximately 10.7 m (50 ft) wide with a similar width shoulder area on 
each side. The shoulders of the road are used when traffic must 
periodically detour around equipment or in areas where ice road 
maintenance is occurring. In addition, a grounded ice pad staging area 
is constructed on the southwest edge of the ODS (see Figures 3 and 4). 
The dimensions of the staging area are approximately 180 by 140 m (600 
by 450 ft).
    The ODS is located in 1.2 to 1.8 m (4 to 6 ft)of water, and the 
area from the site to the shore generally becomes grounded landfast ice 
in winter. The typical and alternate ice road routes shown in Figures 3 
and 4 would be located in grounded rather than floating ice. There is 
one small area near the Colville River that has an open lead for a 
short duration in December but freezes solid within a few weeks. The 
road is clearly marked with delineators and monitored routinely by 
Alaska Clean Seas and industry environmental coordinators. Ice bridges 
or rig mats are not required for construction or maintenance of the ice 
road or ice pad staging area.
    Initial construction of the sea ice road begins with surveying and 
staking the route as soon as the ice is thick enough to support snow 
machines. Low pressure pumps are used to flood the ice surface with 
seawater. Small tractor vehicles with augers and pumps are used for 
augering and flooding. An initial layer of water is applied, some of 
which may move to lower parts of the roadway. After the water has 
frozen, the next flood can be applied. Flooding operations occur 24 
hours a day, 7 days a week during this phase. Depending on weather and 
sea ice conditions, construction of the ice road typically begins in 
early December and is complete by February 1st.
    The ODS operations do not require offshore ice trails. However, a 
coastal trail in very shallow water right off of the beach is 
occasionally needed between Oliktok and the ODS ice road to demobilize 
equipment after tundra travel has been closed.
    Proposed mitigation, monitoring, and reporting measures are 
described in detail later in this document (please see Proposed 
Mitigation and Proposed Monitoring and Reporting).

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS' Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments), and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS' 
website (https://www.fisheries.noaa.gov/find-species).
    Table 1 lists all species with expected potential for occurrence in 
the Beaufort Sea and summarizes information related to the population 
or stock, including regulatory status under the MMPA and ESA and 
potential biological removal (PBR), where known. For taxonomy, we 
follow Committee on Taxonomy (2018). PBR is defined by the MMPA as the 
maximum number of animals, not including natural mortalities, that may 
be removed from a marine mammal stock while allowing that stock to 
reach or maintain its optimum sustainable population (as described in 
NMFS's SARs). While no mortality is anticipated or authorized here, PBR 
and annual serious injury and mortality from anthropogenic sources are 
included here as gross indicators of the status of the species and 
other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS' U.S. 2018 SARs (Carretta et al., 2019; Muto et al., 2019). All 
values presented in Table 1 are the most recent available at the time 
of publication and are available in the 2018 SARs (Carretta et al., 
2019; Muto et al., 2019).

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                                    Table 1--Marine Mammals With Potential Presence Within the Proposed Project Area
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                                                                                         ESA/ MMPA status;   Stock abundance (CV,
             Common name                  Scientific name               Stock             Strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
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                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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Family Eschrichtiidae:
    Gray whale......................  Eschrichtius robustus..  Eastern North Pacific..  -; N                26,960 (0.05, 25,849).        801        139
Family Balaenidae:
    Bowhead whale...................  Balaena mysticetus.....  Western Arctic.........  E/D; Y              16,820 (0.052, 16,100)        161         46
Family Delphinidae:
    Beluga whale....................  Delphinapterus leucas..  Beaufort Sea...........  -; N                39,258 (0.229, N/A)...      Undet        139
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                                                             Family Phocidae (earless seals)
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Ringed seal \4\.....................  Phoca hispida..........  Alaska.................  T/D; Y              300,000 (NA, 170,000).      Undet       1,54
Spotted seal........................  Phoca largha...........  Alaska.................  -; N                461,625 (NA, 423,237).     12,697        329
Bearded seal \5\....................  Erignathus barbatus....  Alaska.................  T/D; Y              301,836 (NA, 273,676).      Undet        557
Ribbon seal.........................  Histriophoca fasciata..  Alaska.................  -; N                184,695 (NA, 163,086).      9,785        3.9
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\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region#reports. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated
  with estimated mortality due to commercial fisheries is presented in some cases.
\4\ Ringed seal estimate is based on surveys conducted in the Alaska Chukchi and Beaufort seas in the late 1990s and 2000, and in the U.S. portion of
  the Bering Sea in 2012. This is the best available information for use here.
\5\ Bearded seal estimate is based on surveys conducted in the U.S. portion of the Bering Sea in 2012. This is the best available information for use
  here.

    All species that could potentially occur in the proposed survey 
areas are included in Table 1. As described below, only the ringed seal 
temporally and spatially co-occurs with the activity to the degree that 
take is reasonably likely to occur, and we have proposed authorizing 
it. However, the temporal and/or spatial occurrence of the rest of the 
species listed in Table 1 is such that take is not expected to occur, 
and they are not discussed further beyond the explanation provided 
here.
    While ringed, spotted, and bearded seals are present in the 
Beaufort Sea during the open-water season, only ringed seals are likely 
to be in the nearshore environment during the ice-covered months. The 
other two species of ice seals only occur in the project area during 
the open-water season. Ribbon seal mostly occurs in the Chukchi Sea and 
western Beaufort Sea, and is considered as extra-limital in the project 
area. Therefore, the potential for encounters with bearded, spotted, 
and ribbon seals during ice road/trail construction and maintenance is 
extremely unlikely. As a result, these ice seal species will not be 
discussed further in this document.
    None of the cetacean species listed above is expected to enter the 
ice-covered action areas during the winter months when ice road 
activities would be occurring. Therefore, the potential for encounters 
with cetaceans during ice road/trail construction and maintenance is 
extremely unlikely. As a result, cetacean species will not be discussed 
further in this document.

Ringed Seal

    Ringed seals are circumpolar in distribution; the subspecies (Phoca 
hispida hispida) is present year-round in the Bering, Chukchi, and 
Beaufort seas off the coast of western and northern Alaska (Muto et al. 
2017, Muto et al. 2018). Results of previous monitoring from Northstar 
(Aerts and Richardson 2009) and nearshore surveys in Foggy Island Bay 
east of the action areas (Aerts et al. 2008, Smultea et al. 2014) 
support the assumption that they are expected to be the most commonly 
occurring pinniped in the action areas during the ice road/trail 
season.
    Throughout their range, ringed seals have an affinity for ice-
covered waters and are well adapted to occupying both shore fast and 
pack ice (Kelly1988). They remain with the ice most of the year and use 
it as a platform for pupping and nursing in late winter to early 
spring, for molting in late spring to early summer, and for resting at 
other times of the year (Simpkins et al. 2003, Kelly et al. 2010). In 
the Beaufort, Chukchi, and Bering Seas ringed seals move seasonally 
coinciding with ice melting and retreating (Frost and Lowry 1984, Frost 
1985, Kelly et al. 2010).
    Ringed seals are closely associated with sea ice during breeding, 
pupping, and molting as are all ice seals. With the onset of freeze-up 
in the fall, ringed seal movements become increasingly restricted. 
Seals that have summered in the Beaufort Sea are thought to move west 
and south with the advancing ice pack, with many seals dispersing 
throughout the Chukchi and Bering seas where they remain throughout 
winter, and some staying in the Beaufort Sea (Frost and Lowry 1984, 
Muto et al. 2018).
    During winter, ringed seals excavate and maintain several breathing 
holes to allow access to air while hunting prey species (e.g., Arctic 
cod). The breathing holes also provide escape routes from polar bears 
and other predators such as foxes. Ringed seals in the action areas 
spend much of their time out of sight in their lairs or under the sea 
ice (BOEM 2018). Ringed seal movements during winter and spring are 
typically quite limited, especially where ice cover is extensive (Kelly 
et al. 2010).
    In the spring (typically beginning in March), female ringed seals 
give birth to and nurse a single pup in a subnivean lair. The peak of 
pupping occurs in early April (Frost and Lowry 1981). Subnivean lairs 
are especially important for protecting pups, providing protection from 
predators and thermal protection from cold temperatures and wind.
    Ringed seals feed year round (NMFS 2018a). Most ringed seal prey is 
small, and preferred prey tends to be schooling species that form dense 
aggregations. Fish of the cod family tend to dominate the diet from 
late autumn through early spring in many areas (Kovacs 2007).

[[Page 2997]]

Arctic cod is often reported to be the most important prey species for 
ringed seals, especially during the ice-covered periods of the year 
(Lowry et al. 1980).
    The Alaska stock of ringed seals are the most abundant marine 
mammal in the Beaufort, Chukchi, and Bering seas (Kelly et al. 2010a, 
Kelly et al. 2010b). Currently a complete population estimate is not 
available for the entire Alaska stock (Allen and Angliss 2014, Muto et 
al. 2018). This is because abundance surveys of ringed seals in Alaska 
have used various methods and assumptions, and were conducted more than 
a decade ago; therefore, current and comprehensive abundance estimates 
or trends for the Alaska stock are not available (NMFS 2018a). Historic 
ringed seal population estimates in the Arctic ranged from 1 to 1.5 
million seals (Frost 1985) to 3.3 to 3.6 million (Frost et al. 1988).
    Ringed seal winter ecology studies conducted in the 1980s (Frost 
and Burns 1989, Kelly and Quakenbush 1990) and surveys associated with 
the Northstar development (Williams et al. 2001) provided information 
on both seal ice structure density and use where ice structures include 
both breathing holes and subnivean lairs. Ringed seal density estimates 
are based on these historical surveys (both on-ice and aerial).
    Most ringed seals in the Beaufort and Chukchi seas follow the sea 
ice front south into the Bering Sea during fall where they remain 
throughout winter. Therefore, while they are still within the Beaufort 
Sea during winter, a much smaller portion of the Alaska ringed seal 
stock is present in the Beaufort Sea during winter as compared to the 
remainder of the year. Frost and Lowry (1984) estimated that 
approximately half of the population moves out of the Beaufort Sea, and 
into the Chukchi and Bering seas in winter.
    Most taxonomists recognize five subspecies of ringed seals. The 
Arctic ringed seal subspecies occurs in the Arctic Ocean and Bering Sea 
and is the only stock that occurs in U.S. waters (referred to as the 
Alaska stock). NMFS listed the Arctic ringed seal subspecies as 
threatened under the ESA on December 28, 2012 (77 FR 76706), primarily 
due to anticipated loss of sea ice through the end of the 21st century 
due to ongoing climate change. On March 11, 2016, the U.S. District 
Court for the District of Alaska issued a memorandum decision in a 
lawsuit challenging the listing of ringed seals under the ESA (Alaska 
Oil and Gas Association, et al. v. National Marine Fisheries Service, 
et al., Case No. 4:14-cv-00029-RRB). The decision vacated NMFS's 
listing of the Arctic subspecies of ringed seals as a threatened 
species. NMFS appealed that decision and on February 12, 2018, the 
Ninth Circuit U.S. Court of Appeals upheld the decision to list the 
ringed seal as threatened. The decision was affirmed and the listing 
reinstated on May 15, 2018.
    A comprehensive and reliable abundance estimate for the Alaska 
stock of ringed seals is not available. However, using data from 
surveys in the late 1990s and 2000 (Bengtson et al., 2005; Frost et 
al., 2004), Kelly et al. (2010) estimated the total population in the 
Alaska Chukchi and Beaufort seas to be at least 300,000 ringed seals. 
This is likely an underestimate since surveys in the Beaufort Sea were 
limited to within 40 km (24.9 mi) from shore (Muto et al., 2017). Conn 
et al. (2014) calculated an abundance estimate of about 170,000 ringed 
seals for the U.S. portion of the Bering Sea. This estimate did not 
account for availability bias and did not include ringed seals in the 
shorefast ice zone, which were surveyed using a different method. Thus, 
the actual number of ringed seals in the U.S. sector of the Bering Sea 
is likely much higher, perhaps by a factor of two or more (Muto et al., 
2017).
    NMFS proposed critical habitat for the Arctic ringed seal in the 
northern Bering, Chukchi, and Beaufort seas off of Alaska on December 
3, 2014 (79 FR 71714). The proposed critical habitat in U.S. waters 
includes all the contiguous marine waters from the ``coastline'' of 
Alaska to an offshore limit within the U.S. Exclusive Economic Zone 
(EEZ) and effectively include all marine waters within the EEZ where 
sea ice regularly forms during winter. The final rule is pending.
    Generally, there is increasing concern about the future of the 
ringed seal populations due to receding ice conditions and potential 
habitat loss. Ringed seal habitat maybe modified by the warming climate 
and projections that suggest continued or accelerated warming in the 
future (Kelly et al. 2010). Climate models project ice and snow cover 
losses throughout the 21st century, with some variations, and 
increasing atmospheric concentrations of greenhouse gases that drive 
climate warming and increase ocean acidification (BOEM 2018), thereby 
affecting ringed seal habitat. The greatest impacts to ringed seals 
from climate change would manifest in less snow cover (BOEM 2018). 
Also, the duration of ice cover could be reduced leading to lower snow 
accumulation on ice (BOEM 2018), particularly over ringed seal 
subnivean lairs. Such changes would also threaten prey communities on 
which ringed seals depend.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. The Estimated Take by Incidental Harassment section 
later in this document includes a quantitative analysis of the number 
of individuals that are expected to be taken by this activity. The 
Negligible Impact Analysis and Determination section considers the 
content of this section, the Estimated Take by Incidental Harassment 
section, and the Proposed Mitigation section, to draw conclusions 
regarding the likely impacts of these activities on the reproductive 
success or survivorship of individuals and how those impacts on 
individuals are likely to impact marine mammal species or stocks.
    Ringed seals could be adversely affected by exposure to visual and 
acoustic disturbances. The majority of impacts are likely to occur from 
visual exposure by machinery and vehicles used for ice roads and ice 
trails construction and from human presence. The associated noise from 
the machinery and vehicles could also cause pinniped behavioral 
modification and temporary displacement within the vicinity of the 
action area if the noise levels are high enough. In a few unlikely 
cases, these activities could result in serious injury or mortality if 
an animal is crushed by a construction machinery or vehicle while in 
its subnivean lair.
    A series of reports from the Northstar development provide evidence 
of ringed seal reactions to human activity during ice road construction 
beginning in 1999. As summarized in Richardson and Williams (2000), 
approximately 6.6 km\2\ (2.5 mi\2\) were surveyed for ringed seals 
prior to initiation of ice road construction activities. Though much of 
the ice was flat and not optimal for seal lairs, surveys were conducted 
by biologists and Inupiat hunters who used avalanche probes to identify 
potential breathing holes and lairs. No breathing holes or lairs were 
documented during this January 1999 survey. A follow-up survey for 
ringed seal breathing holes and lairs was conducted in May 1999 using 
trained dogs. The May survey did locate at least two, possibly three, 
open breathing holes within the area previously surveyed in January.
    The following year, a subsequent survey was undertaken using dog-
based searches which found numerous seal structures within about 1 km 
(0.6 mi) of Northstar facilities before and after

[[Page 2998]]

intensive construction activities in early and late winter. This may 
indicate that the survey method using avalanche probes and Inupiat 
hunters was not effective or that ringed seals were unaffected by ice 
road/trail construction to such extent that it prevented them from 
establishing breathing holes in the project area (Richardson and 
Williams 2000).
    During two replicate aerial surveys conducted in 1999, ringed seals 
were observed within approximately 0.64 km (0.4 mi) of ice roads 
(Richardson and Williams 2000). These six seals were not assumed to be 
the only seals located within that 0.64 km (0.4 mi) area. Using seal 
densities in similar water depths approximately 4 to 10 km (about 2 to 
6.2 mi) from the ice roads, about 12 ringed seals would be expected to 
occur within 0.64 km (0.4 mi), and 110 ringed seals within 4 km (2.5 
mi), during 1999. Seal behavior within 0 to 0.64 km (0.4 mi) of the 
road may have been affected in some subtle way; however, the 
observation of seals within that area suggests that effects of the ice 
roads were minor and localized. As summarized in Williams et al. 
(2006), several factors influence the rate of abandonment of seal 
lairs, making it challenging to attribute abandonment to any specific 
factor. Of 181 seal structures located within 11 to 3,500 m (36 ft to 
2.1 mi) of Northstar during surveys conducted in 2001, 118 (65 percent) 
were still actively used in late May (the end of ice road season).
    The effect of underwater noise on ringed seals is dependent on the 
ability of the seal to perceive or hear the sounds. Due to the overall 
relatively low-noise levels associated with the ice roads and ice 
trails construction and that most of these noises are airborne, it is 
highly unlikely seals in the vicinity of the construction site would 
suffer hearing damages (i.e, permanent hearing threshold shift or 
temporary hearing threshold shift). Temporary short-term changes in 
behavior or avoidance of the affected area as a result of disturbance 
is the most common response of marine mammals to increased noise levels 
(Richardson et al. 1995). Nonetheless, some minor disturbance due to 
in-air or underwater (ice-covered) conditions may occur as a result of 
ice road/trail activities. The types of impacts to ringed seals exposed 
to low-level noise may include masking and temporary displacement. 
Increased levels of natural and artificial sounds can disrupt behavior 
by masking. The masking of communication signals by anthropogenic noise 
may reduce the communication space of animals (Clark et al. 2009). 
Factors other than received sound level such as the activity state of 
animals exposed can affect the probability of a behavioral response 
(Ellison et al. 2012).
    The current acoustic exposure threshold for Level B harassment for 
continuous noise sources is 120 dB re 1 [mu]Pa (NMFS 2018). Southall et 
al. (2007) assessed relevant studies, found considerable variability 
among pinnipeds, and determined exposures between approximately 90 and 
140 dB generally do not induce strong behavioral responses of pinnipeds 
in water, but an increasing probability of avoidance and other 
behavioral effects exists in the 120 to 160 dB range. The use of the 
Ditchwitch to cut ice or from pumping at Northstar did not exceed 120 
dB at 100 m (328 ft) (Greene et al. 2008). Despite the potential 
exposure to such noise levels, it is highly unlikely the disturbance 
would result in biologically significant effects on the seals 
(individually or to the population) as evident from Northstar research 
(Richardson and Williams 2000). In addition, Kelly et al. (1986) report 
that some ringed seals temporarily departed their lairs when sound 
sources were within 97 to 3,000 m (0.06 to 1.9 mi) but did return to 
their lairs later. Haul outs with and without disturbance were not 
significantly different, and time spent in the water versus hauled out 
was not significantly different.
    Displacement of seals from ice road construction is considered 
unlikely but could occur. As described in Williams et al. (2006), 
during three surveys conducted in November/December, March and May of 
2001 during Northstar construction activities, 181 ringed seal 
structures were located and 118 (65 percent) were still actively used 
by late May 2001. Active ringed seal structures appeared to be evenly 
distributed across the Northstar study area in relation to the 
facility. The noise heard through snow and ice, and into the subnivean 
lair or den location of the animal should be considerably weaker than 
at source due to sound being attenuated in the ice and snow. In March 
2002, sounds and vibrations from vehicles traveling along an ice road 
along Flaxman Island (a barrier Island east of Prudhoe Bay) were 
recorded in artificially constructed polar bear dens. Sounds were 
attenuated strongly by the snow cover of the artificial dens; broadband 
vehicle traffic noise was reduced by 30-42 dB. Due to attenuation of 
noise through ice and snow, it is less likely that seals in lairs would 
be exposed to levels exceeding 120 dB re 1 [micro]Pa underwater and 
that such exposure would result in displacement.
    In air noise associated with ice road/trail activities is not 
expected to cause disturbance to ringed seals, as construction noise is 
not likely to exceed 100 dB re 20 [micro]Pa at the source. During the 
winter of 2000, background unweighted in air noise levels from various 
machineries measured in the vicinity of Northstar ranged from 59 to 84 
dB re 20[mu]Pa, and this background noise level was related to wind 
speed (Greene et al. 2008). Similar levels were reported during the 
winter of 2001 and 2002 by Blackwell et al. (2004a, b) with minimum 
background unweighted in air noise levels of 44 to 52 dB re 20[mu]Pa 
measured in ice-covered conditions with low wind up to 10 km (6 mi) 
from Northstar in Prudhoe Bay. The NMFS in air threshold for 
disturbance of phocids (i.e., ringed seals) is 100 dB re 20 [mu]Pa 
(NMFS 2018b). For this reason, in air noise is not expected to result 
in harassment of seals.
    The probability that acoustic noise associated with ice road and 
trail construction would result in masking any acoustic signals of 
ringed seals during construction is very low. Ice road and trail 
construction activities would be initiated prior to March 1st when 
animals begin constructing dens prior to pupping and during pupping 
when seals are minimally vocal in the dens to prevent predation. Also, 
in order for the effects of masking to occur, a seal would have to be 
within close proximity to the specific sound source to result in a 
Level B harassment. The probability that the noise producing activities 
associated with the proposed Project would result in masking acoustic 
signals important to the behavior and survival of marine mammal species 
in the Action Areas is low.
    Overall, the construction and maintenance of ice roads and trails 
is not expected to cause significant impacts on habitat used by ringed 
seals or on their food sources. Landfast ice near the shoreline is the 
best habitat for ringed seal pupping (Kelly 1988), with water depth 
strongly dictating whether ringed seals overwinter in a given area. 
Depths greater than about 3 m (10 ft) are typically the minimum depth 
suitable for successful lair construction (Miller et al. 1998, Link et 
al. 1999) although more shallow areas with open leads or cracks can be 
attractive to seals as described for the road between OPP and SID.
    While ringed seals may be present in the proposed Action Areas 
during winter, the number of seals is generally expected to be 
relatively low during ice road/trail activities. Ice road construction 
is a short-term activity with minor disruptions to the natural

[[Page 2999]]

habitat. Ringed seals feed on fish and a variety of benthic species 
including crabs and shrimp. There should be no impact on the 
distribution of fish or zooplankton as a result of ice road/trail 
construction within the Action Areas. The roads and trails melt each 
year and do not affect water circulation, substrate, fish presence or 
use of the area, or benthic populations.
    NMFS' proposed rule designating critical habitat for ringed seals 
identified three physical and biological features (PBFs) essential to 
the conservation of the species including:
    1. Suitable sea ice habitat for the formation and maintenance of 
subnivean birth lairs used for sheltering pups during whelping and 
nursing, which is defined as seasonal landfast (shorefast) ice, except 
for any bottom-fast ice extending seaward from the coast line in waters 
less than 2 m (6.5 ft) deep, or dense, stable pack ice, that has 
undergone deformation and contains snowdrifts at least 54 cm (21 in.) 
deep;
    2. Sea ice habitat suitable as a platform for basking and molting, 
which is defined as sea ice of 15 percent or more concentration, except 
for any bottom-fast ice extending seaward from the coast line in waters 
less than 2 m (6.5 ft) deep; and
    3. Primary prey resources to support Arctic ringed seals, which are 
defined to be Arctic cod, saffron cod, shrimps, and amphipods.
    Disturbance associated with construction, operation and maintenance 
of ice roads and trails is unlikely to have long-term effects on the 
availability of sea ice habitat identified in PBFs 1 and 2. 
Disturbances due to ice road and trail construction and maintenance 
activities are not expected to have any effect on PBF3, because these 
activities would not cause injury or mortality to fish species, nor 
would it displace food resources of ringed seals.

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization through this IHA, which will inform both 
NMFS' consideration of ``small numbers'' and the negligible impact 
determination.
    Harassment is one of the types of take expected to result from 
these activities. Except with respect to certain activities not 
pertinent here, section 3(18) of 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).
    Authorized takes would primarily be by Level B harassment, as 
exposure of ringed seals by construction activities and noise has the 
potential to result in disruption of behavioral patterns for individual 
animals. There could also be potential for serious injury/mortality if 
an animal is crushed by a construction machinery or vehicle while in 
its subnivean lair. Auditory injury is unlikely to occur because the 
overall noise levels generated from the construction activities are 
low. The proposed mitigation and monitoring measures are expected to 
minimize the severity of such taking to the extent practicable.
    Below we describe how the take is estimated.
    Generally speaking, we estimate take by considering: (1) Marine 
mammals (ringed seals) likely to be exposed to visual and acoustic 
disturbances from ice roads and ice trails construction; (2) the 
density or occurrence of marine mammals within the areas likely to be 
disturbed; and, (3) the number of days of activities. We note that 
while these basic factors can contribute to a basic calculation to 
provide an initial prediction of takes, additional information that can 
qualitatively inform take estimates is also sometimes available (e.g., 
previous monitoring results or average group size). Below, we describe 
the factors considered here in more detail and present the proposed 
take estimate. This section includes an overview of estimated ringed 
seal density in the area, a description of the area of potential 
disturbance, estimates for noise sources (under ice-covered conditions 
and in air), and a discussion of the potential for behavioral responses 
or serious injury or mortality due to ice road/trail/pad activities.

Ringed Seal Densities

    Ringed seals are present in the nearshore Beaufort Sea waters and 
sea ice year round, maintaining breathing holes and excavating 
subnivean lairs in the landfast ice during the ice-covered season. 
During this ice-covered season, ringed seals' home ranges are generally 
less than 5 km\2\ (2 mi\2\) in area (Frost et al. 2002, Kelly et al. 
2005). While older datasets from the 1970s and 80s provide important 
context for understanding seal presence in the region, only more recent 
surveys beginning in 1997 have been used to calculate density for this 
rule as described in the following sections.
Winter Densities
    Ringed seals overwinter in the landfast ice in and around the 
project area. Relatively few data are available for ringed seal density 
in the southern Beaufort Sea during the winter months, but several 
studies on ringed seal winter ecology were undertaken during the 1980s 
(Kelly et al. 1986, Frost and Burns 1989). These reports, in addition 
to data associated with the Northstar development and the abandoned 
Seal Island (Williams et al. 2001, Frost et al. 2002) provide 
information on both seal ice structure use (where ice structures 
include both breathing holes and subnivean lairs) and the density of 
ice structures (Table 4).
    Both male and female ringed seals maintain a number of breathing 
holes and haul out in more than one subnivean lair during the ice-
covered season. Kelly et al. (1986) found that of their tagged seals, 
the animals would haul out between one and multiple subnivean lairs. 
The distances between each lair could be as great as 4 km (2.5 mi) with 
numerous breathing holes in between (Kelly et al. 1986). While these 
authors calculated the average number of lairs used by an individual 
seal to be 2.85 (SD = 2.51) per animal, they also suggest that this is 
likely to be an underestimate.

               Table 2--Seal Structure Density Along the Beaufort Sea Coast Near the Project Area
----------------------------------------------------------------------------------------------------------------
                                                                     Sea structure
                               Year                                  density/km\2\             Source
----------------------------------------------------------------------------------------------------------------
1982..............................................................             3.6         Frost and Burns 1989.
1983..............................................................            0.81            Kelly et al. 1986.
Dec. 1999.........................................................            0.71         Williams et al. 2001.
May 2000..........................................................             1.2         Williams et al. 2001.
Average structure density/km\2\...................................            1.58  ............................
----------------------------------------------------------------------------------------------------------------


[[Page 3000]]

    In 1982, aerial surveys were conducted near Reindeer Island, just 
east of the project area (Northstar and SID), where seismic exploration 
activities were occurring. Seal structures were located by searching 
with a dog along 267 km (166 mi) of seismic and control lines as well 
as 28 km (17 mi) of non-systematic search lines (295 linear km [183 
linear mi] total). A total of 157 structures were found resulting in an 
average estimate of 0.53/km seal structures (Kelly et al. 1986) or 3.6 
structures/km\2\ (Frost and Burns 1989).
    In 1983, the vicinity of Reindeer Island was surveyed again and the 
average number of seal structures recorded was 0.70/km over 
approximately 81 km (50 mi) of linear survey lines resulting in an 
average number of total structures of 0.81/km\2\.
    In 1999, a total of 26 seal structures were located within a 36.5 
km\2\ area encompassing the Northstar Development resulting in an 
estimated 0.71 structures/km\2\ in December 1999 and 1.2 structures/
km\2\ in May 2000 (Richardson and Williams 2001).
    To estimate ringed seal density during the winter, an average 
structure density was divided by the average number of structures used 
by seals (Kelly et al. 1986). Thus, for the winter season ringed seal 
density has been estimated as the average ice structure density (1.58/
km\2\) divided by the average number of ice structures used by an 
individual seal (2.85, SD = 2.51). This results in an estimated density 
of 0.55 ringed seals/km\2\ (for example, 1.58/2.85 = 0.55). However, 
this density is likely to be an overestimate because the equation 
denominator of 2.85 is assumed to be an underestimate (Kelly et al. 
1986).
    Average ice structure density/Average number of structures per seal 
= Estimated Average Winter Seal Density: 1.58/2.85 = 0.55 seals/km\2\.
Spring Densities
    In 1997, prior to Northstar construction, British Petroleum 
Exploration Alaska (BPXA) conducted aerial surveys for seals as part of 
the industry monitoring programs for the Northstar facility. These 
datasets provide the best available information on spring ringed seal 
density for the project area. Information is based on aerial surveys 
were flown around Northstar and west of Prudhoe Bay during late May and 
early June (Frost et al. 2002, Moulton et al. 2002a,b, Richardson and 
Williams 2003) when the greatest percentage of seals have abandoned 
their lairs and are hauled out on the ice (Kelly et al. 2010, Kelly et 
al. 2010).
    Because densities were consistently very low where water depth was 
<3m (and these areas are generally frozen solid during the ice-covered 
season) densities were calculated where water depth was >3m deep 
(Moulton et al. 2002a,b), Richardson and Williams 2003). Frost et al. 
(2002) and Frost et al. (2004) reported slightly higher densities based 
on surveys conducted during this same time period between 1997 and 
1999. As with all aerial surveys, animal densities are underestimated 
because animals are missed, or not counted. This is generally because 
they are not hauled out where they can be seen or are missed by the 
observer. Therefore, these density estimates represent minimum 
estimates during the time and location of the surveys. The average 
uncorrected densities calculated based on these separate datasets 
(1997-1999) are provided in Table 5. It is acknowledged that densities 
of seals near the Eni SID Action Area are likely to be lower than 
densities calculated for the purposes of estimating take in this 
analysis, due to much shallower water near the Eni SID site. However, 
for consistency and as a precautionary measure, the same density 
estimates are used throughout this analysis.

    Table 3--Estimated Ringed Seal Densities (Uncorrected) Based on Spring Aerial Surveys During Ice-Covered
                                              Conditions, 1997-2002
----------------------------------------------------------------------------------------------------------------
                                                          Uncorrected seal density (no/km\2\)       Average
                                                        --------------------------------------    uncorrected
                          Year                                                                    ringed seal
                                                           Moulton et al.      Frost et al.       density (no/
                                                            2002, 2005*         2002, 2004           km\2\)
----------------------------------------------------------------------------------------------------------------
1997...................................................               0.43               0.73               0.58
1998...................................................               0.39               0.64               0.52
1999...................................................               0.63               0.87               0.75
2000...................................................               0.47  .................               0.47
2001...................................................               0.54  .................               0.54
2002...................................................               0.83  .................               0.83
Average density (no/km\2\).............................  .................  .................               0.61
----------------------------------------------------------------------------------------------------------------
* Water depths > 10 ft.

    For the period 2000, 2001, and 2002, (Moulton et al. 2005) reported 
ringed seal densities (uncorrected) on landfast ice during Northstar 
construction were calculated as 0.47, 0.54, and 0.83 seals/km\2\. Based 
on the average density of surveys flown from 1997 to 2002 the 
uncorrected density of ringed seals during the spring is expected to be 
0.61 ringed seals/km\2\.
    As reported in Frost et al. (2002) habitat-related variables 
including water depth, location relative to the fast ice edge, and ice 
deformation have shown to result in substantial and consistent effects 
on the distribution and abundance of seals. Moulton et al. (2003) and 
Moulton et al. (2005) also reported that environmental factors such as 
date, water depth, degree of ice deformation, presence of meltwater, 
and percent cloud cover had more conspicuous and statistically-
significant effects on seal sighting rates than did any human-related 
factors. Thus, the intra- and inter-annual variability in survey 
conditions and ice characteristics is unavoidable and identifying 
trends in seal abundance or estimating density is challenging.

                     Table 4--Ringed Seal Densities
------------------------------------------------------------------------
                                                         Spring  average
          Winter average density  (seal/km\2\)            density  (seal/
                                                              km\2\)
------------------------------------------------------------------------
0.55...................................................            0.61
------------------------------------------------------------------------

    In summary, for the purposes of estimating take associated with ice 
road/trail activities, winter and spring densities are assumed to be 
0.55 and 0.61 seals/km\2\ (respectively) as shown in Table 6.

[[Page 3001]]

Take Estimates

Level B Harassment
    To estimate exposures of ringed seals to disturbance that may 
result in a take, the total area of potential disturbance (i.e., 
exposure area) associated with construction and maintenance of the 
roads/trails/pads is defined as 170 m (approximately 558 ft) on either 
side of the road/trail/pad centerline; a total width of 340 m 
(approximately 1,115 ft).
    Again, the total width of the exposure area is 340 m (558 ft). This 
width is then multiplied by the total length of roads/trails likely to 
be constructed each year to calculate the exposure area in km\2\. Due 
to the variability in the length of ice roads/trails that may be needed 
from year to year, a 10 percent buffer is also added to the total 
length and is accounted for in the total area calculated. The total 
area of exposure is then multiplied by the seasonal ringed seal density 
to calculate the total estimated ringed seals exposed each season. 
Since there are two seasons during which ringed seals may be exposed to 
ice road activity (winter and spring), the exposure estimates for 
winter and spring are then added together to calculate the total number 
of seals exposed per year. For example, the following calculation was 
used for Northstar ice roads and trails:

TAE x D = TES
TES (winter) + TES (spring) = TEY

where

TAE = Total Area of Exposure

D = Species Density (variable by season)

TES = Total Estimated Seals Exposed Per Season

TEY=Total Estimated Seals Exposed Per Year

For example:

12.96 km\2\ (TAE) x 0.55 (winter density per km\2\) = 7.13 seals/winter
12.96 km\2\ (TAE) x 0.61 (spring density per km\2\) = 7.91 seals/spring
7.13 seals/winter + 7.91 seals/spring = 15.03 seals/year

    As stated in Description of Proposed Activities section earlier, an 
ice trail is constructed at SID each year and is located approximately 
15 to 30 m (50 to 100 ft) west of the ice road. The ice trail is 
located within the exposure area of the ice road centerline (340 m). 
Therefore, the same formula shown above is applied for calculating 
potential takes at SID.
    Based on the exposure estimates, Eni and Hilcorp request takes for 
Level B harassment for the 5-year period as shown in Table 7. Takes are 
presented annually for each company and are requested for ice road and 
ice trail construction, operation and maintenance expected to occur 
between December and May of each year, depending on local conditions. 
Potential Level B harassment takes could occur in all five years.
[GRAPHIC] [TIFF OMITTED] TP17JA20.004

    NMFS does not expect Level A harassment of ringed seal to occur, as 
noise and visual exposure to construction activities will not become 
injurious as defined for purposes of a Level A take under the MMPA. 
However, it is possible that a seal may be in its lair during ice 
roads/trails construction and thus, it is possible for a seal to become 
crushed by construction machinery or vehicle while the road/trail is 
being erected, resulting in injury, serious injury, or mortality. A 
detailed discussion of such events is provided below.

Potential Serious Injury or Mortality

    Based on a review of literature and monitoring reports from 
Northstar and other North Slope projects, there is documentation of one 
seal mortality associated with a vibroseis program outside the barrier 
islands east of Bullen Point in the eastern Beaufort Sea (MacLean 
1998). During a 1999 NMFS workshop to review on-ice monitoring and 
research, Dr. Brendan Kelly (then of the University of Alaska), also 
indicated that a dead ringed seal pup was found during his research 
using trained dogs to locate seal structures in the ice. The dead 
ringed seal pup was located approximately 1.5 km (0.9 mi) from the 
Northstar ice road. No data on the age of the pup, date of death, 
necropsy results, or cause of death are available. Therefore, whether 
ice road construction at Northstar could have contributed to the death 
of this pup, or if its death was coincidental to Northstar activities 
cannot be determined (Richardson and Williams 2000).
    While the only recorded mortality of a seal occurred in 1998, Eni 
and Hilcorp are also requesting ten takes for each development over the 
5-year period for potential ringed seal serious injury or mortality 
during construction, operation and maintenance of ice roads and trails.

[[Page 3002]]

    However, NMFS does not consider this request to be adequately 
justified, and is concerned that the requested mortality in this 
proposed action is much higher than other similar actions.
    For instance, in the 2019 Hilcorp Liberty rule for ice road and ice 
trail construction on the North Slope, there are two lethal takes 
proposed over the first 5 years (and eight over the following 20 years, 
for 10 total mortalities over 25 years). In that action, four ice 
roads, totaling 51.5 km in length would be constructed: In Years 1 
through 3, all four roads would be constructed; in Years 4 and 5, only 
Road #1 would be constructed (11.3 km in length). By comparing the two 
proposed actions, Hilcorp Northstar and Eni are constructing more ice 
roads/trails than Hilcorp is at the Liberty site over a five-year 
period.
    In terms of the distribution of construction activities between the 
two companies, Hilcorp is constructing 1.9 times as many ice road/trail 
kilometers as Eni is at either SID or ODS. However, Eni's construction 
activities encompass two separate sites and each have the potential to 
encounter inhabited seal lairs given an assumed equal distribution of 
species. Based on these factors, NMFS proposes authorizing three 
serious injury/mortalities for ice road/trail activities at each of 
Eni's sites (Spy Island and Oooguruk), and six serious injury/
mortalities at Hilcorp's Northstar site, all over five years. A summary 
of serious injury/mortality for Hilcorp and Eni over the five-year 
period is provided in Table 8.

 Table 6--Total Estimated Ringed Seal Takes Annually and Over the 5-Year
                           Proposed LOA Period
------------------------------------------------------------------------
                                                          Serious injury/
                                                           mortality for
                                                              5 years
------------------------------------------------------------------------
Eni SID.................................................               3
Eni ODS.................................................               3
Hilcorp Northstar.......................................               6
                                                         ---------------
  Total.................................................              12
------------------------------------------------------------------------

Effects of Specified Activities on Subsistence Uses of Marine Mammals

    Subsistence hunting continues to be an essential aspect of Inupiat 
Native life, especially in rural coastal villages. The Inupiat 
participate in subsistence hunting activities in and around the 
Beaufort Sea. The animals taken for subsistence provide a significant 
portion of the food that will last the community through the year. 
Marine mammals represent on the order of 60-80 percent of the total 
subsistence harvest. Along with the nourishment necessary for survival, 
the subsistence activities strengthen bonds within the culture, provide 
a means for educating the younger generation, provide supplies for 
artistic expression, and allow for important celebratory events.
    The proposed ice roads/trails construction projects are generally 
remote from subsistence use areas. Nuiqsut is the closest Native 
Alaskan community to the Northstar, ODS and SID facilities; located 
approximately 91 km (about 57 mi) southwest from Northstar, 40 km 
(about 25 mi) from ODS, and 56 km (about 35 mi) from SID. Primary 
subsistence users in the area between Oliktok Point and West Dock are 
residents from the village of Nuiqsut. People from Utqiagvik (about 309 
and 264 km [192 and 164 mi] west of Northstar and SID, respectively) 
and Kaktovik harvest marine mammals that pass through the area but 
generally do not hunt there. Kaktovik is 196 km (122 mi) east of 
Northstar and 241 km (150 mi) east of SID.
    Nuiqsut hunters harvest ringed seals primarily during open water 
periods in July through August. In summer, boat crews hunt ringed, 
spotted and bearded seals. The most important seal hunting area for 
Nuiqsut hunters is off the Colville Delta, as far east as Pingok 
Island. The closest edge of the main sealing area at Pingok Island, is 
about 27 km (17 mi) west of Northstar (SRBA 2010, Galginaitis 2014). 
While less frequent than open water hunting, seals are taken by hunters 
on snow machines before break-up.
    In summary, Hilcorp and Eni's proposed ice roads and ice trails 
construction projects would occur far away from subsistence activities, 
and would be conducted during the time few subsistence activities 
occur. In winter and spring, small numbers of ringed seals may be 
disturbed and possibly displaced from the immediate locations of the 
ice roads and trails shown on Figures 1 through 4. Seal hunters would 
likely avoid the areas near SID, Northstar and ODS in favor of less 
developed more productive areas closer to the main sealing areas near 
the Colville River delta. Therefore, construction and maintenance of 
the ice roads and trails is unlikely to impact on winter subsistence 
hunting of ringed seals.

Proposed Mitigation

    In order to issue an LOA under Section 101(a)(5)(A) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to such 
activity, and other means of effecting the least practicable 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 certain 
subsistence uses. NMFS regulations require applicants for incidental 
take authorizations to include information about the availability and 
feasibility (economic and technological) of equipment, methods, and 
manner of conducting such activity or other means of effecting the 
least practicable adverse impact upon the affected species or stocks 
and their habitat (50 CFR 216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat, as 
well as subsistence uses. This considers the nature of the potential 
adverse impact being mitigated (likelihood, scope, range). It further 
considers the likelihood that the measure will be effective if 
implemented (probability of accomplishing the mitigating result if 
implemented as planned), the likelihood of effective implementation 
(probability implemented as planned), and;
    (2) the practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.

Mitigation for Marine Mammals and Their Habitat

    For Hilcorp and Eni's proposed ice roads and trails construction 
project, Hilcorp and Eni worked with NMFS and proposed the following 
mitigation measures to minimize the potential impacts to marine mammals 
in the project vicinity. The primary purposes of these mitigation 
measures are to minimize human-seal interactions and to avoid takes by 
serious injury/mortality from the activities, to monitor marine mammals 
within designated zones of influence in the project vicinity and, if 
seals are within the designated shutdown zone after March 1 during the

[[Page 3003]]

pupping season, to initiate immediate pause of all construction 
activities, making it very unlikely potential injury or serious injury/
mortality to seals would occur and ensuring that Level B behavioral 
harassment of seals would be reduced to the lowest level practicable. 
Construction activities may result after the seals leave the shutdown 
zone on their own.
    The proposed mitigation and monitoring measures are described 
below.

Wildlife Training

    Prior to initiation of sea ice road- and ice trail-related 
activities, project personnel associated with ice road construction, 
maintenance, use or decommissioning (i.e., ice road construction 
workers, surveyors, security personnel, and the environmental team) 
will receive annual training on implementing mitigation and monitoring 
measures. Personnel are advised that interactions with, or approaching, 
any wildlife is prohibited. Annual training also includes reviewing the 
company's Wildlife Management Plan. In addition to the mitigation and 
monitoring plans, other topics in the training will include:

 Ringed Seal Identification and Brief Life History
 Physical Environment (habitat characteristics and how to 
potentially identify habitat)
 Ringed Seal Use in the Ice Road Region (timing, location, 
habitat use, birthing lairs, breathing holes, basking, etc.)
 Potential Effects of Disturbance
 Importance of Lairs, Breathing Holes and Basking to Ringed 
Seals

General Mitigation Measures Implemented Throughout the Ice Road/Trail 
Season

    General mitigation measures will be implemented through the entire 
ice road/trail season (December through May) including during 
construction, maintenance, use and decommissioning.
     Ice road/trail speed limits will be no greater than 45 
miles per hour (mph) under typical circumstances but may be exceeded in 
emergency situations. Travel on ice roads and trails is restricted to 
industry staff.
     Following existing safety measures, delineators will mark 
the roadway in a minimum of \1/4\-mile increments on both sides of the 
ice road to delineate the path of vehicle travel and areas of planned 
on-ice activities (e.g., emergency response exercises). Following 
existing safety measures currently used for ice trails, delineators 
will mark one side of an ice trail a minimum of every \1/4\ mile. 
Delineators will be color-coded, following existing safety protocol, to 
indicate the direction of travel and location of the ice road or trail. 
These measures will ensure that vehicles stay on disturbed ice roads/
trails and will not deviate to undisturbed areas.
     Corners of rig mats, steel plates, and other materials 
used to bridge sections of hazardous ice, will be clearly marked or 
mapped using GPS coordinates of the locations, so vehicles travel on 
ice roads/trails will not deviate to undisturbed areas.
     Personnel will be instructed to remain in the vehicle and 
safely continue, if they encounter a ringed seal while driving on the 
road.

Mitigation Measures After March 1st

    After March 1st, and continuing until decommissioning of ice roads/
trails in late May or early June, the on-ice activities mentioned above 
can occur anywhere on sea ice where water depth is less than 3 m (10 
ft) (i.e., habitat is not suitable for ringed seal lairs). However, if 
the water is greater than 3 m (10 ft) in depth, these activities should 
only occur within the boundaries of the driving lane or shoulder area 
of the ice road/trail and other areas previously disturbed (e.g., spill 
and emergency response areas, snow push areas) when the safety of 
personnel is ensured.
    In addition to the general Mitigation Measures, the following 
measures will also be implemented after March 1st:
     Ice road/trail construction, maintenance and 
decommissioning will be performed within the boundaries of the road/
trail and shoulders, with most work occurring within the driving lane. 
To the extent practicable and when safety of personnel is ensured, 
equipment will travel within the driving lane and shoulder areas.
     Blading and snow blowing of ice roads will be limited to 
the previously disturbed ice road/shoulder areas to the extent safe and 
practicable. Snow will be plowed or blown from the ice road surface.
     In the event snow is accumulating on a road within a 45.7-
m (150-ft) radius of an identified downwind seal or seal lair (as 
identified by seal ice structure), operational measures will be used to 
avoid seal impacts, such as pushing snow further down the road before 
blowing it off the roadway. Vehicles will not stop within 45.7 m (150 
ft) of identified seals or within 152.4 m (500 ft) of known seal lairs.
     When safety of personnel is ensured, tracked vehicle 
operation will be limited to the previously disturbed ice trail areas. 
When safety requires a new ice trail to be constructed after March 1st, 
construction activities such as drilling holes in the ice to determine 
ice quality and thickness, will be conducted only during daylight hours 
with good visibility. Ringed seal structures will be avoided by a 
minimum of 45.7 m (150 ft) during ice testing and new trail 
construction. Once the new ice trail is established, tracked vehicle 
operation will be limited to the disturbed area and when safety of 
personnel is ensured.
     If a seal is observed on ice within 45.7 m (150 ft) of the 
centerline of the ice road/trail, the following mitigation measure will 
be implemented:
     Construction, maintenance or decommissioning activities 
associated with ice roads and trails will not occur within 45.7 m (150 
ft) of the observed ringed seal, but may proceed as soon as the ringed 
seal, of its own accord, moves farther than 45.7 m (150 ft) distance 
away from the activities or has not been observed within that area for 
at least 24 hours. Transport vehicles (i.e., vehicles not associated 
with construction, maintenance or decommissioning) may continue their 
route within the designated road/trail without stopping.

Proposed Monitoring and Reporting

General Monitoring Measures Implemented Throughout the Ice Road/Trail 
Season

    General monitoring measures will be implemented through the entire 
ice road/trail season including during construction, maintenance, use 
and decommissioning.
    If a ringed seal is observed within 45.7 m (150 ft) of the center 
of an ice road or trail, the operator's Environmental Specialist will 
be immediately notified with the information provided in the Reporting 
section below.
     The Environmental Specialist will relay the seal sighting 
location information to all ice road personnel and the company's office 
personnel responsible for wildlife interaction, following notification 
protocols described in the company-specific Wildlife Management Plan. 
All other data will be recorded and logged.
     The Environmental Specialist or designated person will 
monitor the ringed seal to document the animal's location relative to 
the road/trail. All work that is occurring when the ringed seal is 
observed and the behavior of the seal during those activities will be 
documented until the animal is at least 45.7 m (150 ft) away from the 
center of the road/trail or is no longer observed.

[[Page 3004]]

     The Environmental Specialist or designated person will 
contact appropriate state and Federal agencies as required.

Monitoring Measures After March 1st

    In addition to the general Monitoring Measures, the following 
measures will also be implemented after March 1st:
    If an ice road or trail is being actively used, under daylight 
conditions with good visibility, a dedicated observer (not the vehicle 
operator) will conduct a survey along the sea ice road/trail to observe 
if any ringed seals are within 152.4 m (500 ft) of the roadway 
corridor. The following survey protocol will be implemented:
     Surveys will be conducted every other day during daylight 
hours;
     Observers for ice road activities need not be trained 
Protected Species Observers (PSOs), but they must have received the 
training described above and understand the applicable sections of the 
Wildlife Interaction Plan. In addition, they must be capable of 
detecting, observing and monitoring ringed seal presence and behaviors, 
and accurately and completely recording data; and
     Observers will have no other primary duty than to watch 
for and report observations related to ringed seals during this survey. 
If weather conditions become unsafe, the observer may be removed from 
the monitoring activity.
    If a ringed seal structure (i.e., breathing hole or lair) is 
observed within 152.4 m (500 ft) of the ice road/trail, the location of 
the structure will be reported to the Environmental Specialist who will 
then carry out notification protocol identified above and:
     An observer will monitor the structure every six hours on 
the day of the initial sighting to determine whether a ringed seal is 
present. Monitoring for the seal will occur every other day the ice 
road is being used unless it is determined the structure is not 
actively being used (i.e., a seal is not sighted at that location 
during monitoring). A lair or breathing hole does not automatically 
imply that a ringed seal is present.

Reporting

    A final end-of-season report compiling all ringed seal observations 
will be submitted to NMFS Office of Protected Resources within 90 days 
of decommissioning the ice road/trail. The report will include:
     Date, time, location of observation;
     Ringed seal characteristics (i.e., adult or pup, behavior 
(avoidance, resting, etc.));
     Activities occurring during observation including 
equipment being used and its purpose, and approximate distance to 
ringed seal(s):
     Actions taken to mitigate effects of interaction 
emphasizing: (1) Which mitigation and/or monitoring measures were 
successful; (2) which mitigation and/or monitoring measures may need to 
be improved to reduce interactions with ringed seals; (3) the 
effectiveness and practicality of implementing mitigation and 
monitoring measures; (4) any issues or concerns regarding 
implementation of mitigation and/or monitoring measures; and (5) 
potential effects of interactions based on observation data; and
     Proposed updates (if any) to Wildlife Management Plan(s) 
or Mitigation and Monitoring Measures.
    In the rare event a seal is killed or seriously injured by ice 
road/trail activities, NMFS will be notified immediately.
    In the event ice road/trail personnel discover a dead or injured 
seal but the cause of injury or death is unknown or believed not to be 
related to ice road/trail activities, NMFS will be notified within 48 
hours of discovery.

Mitigation for Subsistence Uses of Marine Mammals or Plan of 
Cooperation

    Regulations at 50 CFR 216.104(a)(12) further require IHA applicants 
conducting activities that take place in Arctic waters to provide a 
Plan of Cooperation 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. A plan must 
include the following:
     A statement that the applicant has notified and provided 
the affected subsistence community with a draft plan of cooperation;
     A schedule for meeting with the affected subsistence 
communities to discuss proposed activities and to resolve potential 
conflicts regarding any aspects of either the operation or the plan of 
cooperation;
     A description of what measures the applicant has taken 
and/or will take to ensure that proposed activities will not interfere 
with subsistence whaling or sealing; and
     What plans the applicant has to continue to meet with the 
affected communities, both prior to and while conducting the activity, 
to resolve conflicts and to notify the communities of any changes in 
the operation.
    As discussed earlier, Hilcorp and Eni's proposed ice roads and 
trails construction is expected to have no unmitigable adverse impacts 
on subsistence use of marine mammals in the project area, and the 
construction projects would occur in areas away from subsistence 
activities during the time when there is no subsistence activities. 
Nevertheless, both Hilcorp and Eni have developed Plans of Corporations 
(POCs) to ensure that no impact would occur. Both companies have been 
engaging the communities of Utqiagvik and Nuiqsut to share information 
about planned exploration/development activities and to maintain 
dialogue about measures to minimize potential impacts on the 
subsistence harvest of seals or whales. For the proposed ice roads and 
ice trails construction and maintenance activities, Hilcorp and Eni 
developed further mitigation and monitoring measures to minimize the 
potential impacts to subsistence use of marine mammals in the area. 
These measures are described below.

Hilcorp

    To help minimize disturbances to marine mammal subsistence 
resources, Hilcorp has signed a Conflict Avoidance Agreement (CAA) with 
the Alaska Eskimo Whaling Commission (AEWC) and Whaling Captains' 
Associations of nearby North Slope communities. The CAA describes 
measures to minimize any adverse effects on the availability of bowhead 
whales for subsistence use. Hilcorp also conducts the Cross Island 
whaling survey every year to document any conflicts and ensure that 
operations continue to be compatible with the hunt.
    The CAA and much of the coordination focus on whales and whaling 
activities. To date, the Native community has not expressed concerns 
over interactions with seals, particularly during the ice-covered 
seasons. Hilcorp states that it will continue to address questions and 
concerns from community members, and continue to provide them with 
contact information of project management to which they can direct 
concerns related to Northstar operations.
    In addition, Hilcorp has adopted the ``Good Neighbor Policy'' 
originally put in place for Northstar by BPXA. The policy is a 
commitment to the eleven whaling villages, the Inupiat Community and 
the Siberian Yupik Community to establish financial assurance in the 
event of an oil spill. While the focus is on bowhead whales, the policy 
does include other Arctic marine resources including ringed seals. The 
Good Neighbor Policy also outlines how Hilcorp would provide 
transportation for the subsistence

[[Page 3005]]

community to alternate hunting areas in the event that a spill prevents 
the use of Cross Island or other hunting areas. It also has provisions 
for providing interim alternative food supplies to community members, 
along with counselling and cultural assistance. Hilcorp is committed to 
adhering to the CAA and Good Neighbor Policy for the duration of North 
Slope operations as necessary.

Eni

    To help minimize disturbances to marine mammal subsistence 
resources, Eni also signs a CAA each year with the AEWC and Whaling 
Captains' Associations of nearby North Slope communities. The CAA 
describes measures to minimize any adverse effects on the availability 
of bowhead whales for subsistence use. Eni also conducted multiple 
community meetings and meetings with subsistence organizations such as 
the AEWC and NWCA to establish and maintain positive relationships with 
locals that rely on subsistence resources in the area.
    Based on our evaluation of the applicant's proposed measures, NMFS 
has preliminarily determined that the proposed mitigation measures 
provide the means effecting the least practicable impact on the 
affected species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stock for 
subsistence uses.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact 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 (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, and 
specific consideration of take by serious injury/mortality previously 
authorized for other NMFS research activities).

Serious Injury and Mortality

    NMFS is proposing to authorize a very small number of serious 
injuries or mortalities that could occur incidental to ice roads and 
ice trails construction and maintenance.
    NMFS considers many factors, when available, in making a negligible 
impact determination, including, but not limited to, the status of the 
species or stock relative to the optimum sustainable population (OSP) 
level (if known), whether the recruitment rate for the species or stock 
is increasing, decreasing, stable, or unknown, the size and 
distribution of the population, and existing impacts and environmental 
conditions. The potential biological removal (PBR) metric can help 
inform the potential effects of serious injury and mortality caused by 
activities authorized under 101(a)(5)(A) on marine mammal stocks.
    PBR is defined in the MMPA (16 U.S.C. 1362(20)) as the maximum 
number of animals, not including natural mortalities, that may be 
removed from a marine mammal stock while allowing that stock to reach 
or maintain its optimum sustainable population, and is a measure to be 
considered when evaluating the effects of serious injury and mortality 
on a marine mammal species or stock. Optimum sustainable population 
(OSP) is defined by the MMPA (16 U.S.C. 1362(9)) as the number of 
animals which will result in the maximum productivity of the population 
or the species, keeping in mind the carrying capacity of the habitat 
and the health of the ecosystem of which they form a constituent 
element. PBR values are calculated by NMFS as the level of annual 
removal from a stock that will allow that stock to equilibrate within 
OSP at least 95 percent of the time.
    To specifically use PBR, along with other factors, to evaluate the 
effects of serious injury and mortality, we first calculate a metric 
that incorporates information regarding ongoing anthropogenic serious 
injury and mortality into the PBR value (i.e., PBR minus the total 
annual anthropogenic mortality/serious injury estimate), which is 
called ``residual PBR''. We then consider how the anticipated potential 
incidental serious injury and mortality from the activities being 
evaluated compares to residual PBR. Anticipated or potential serious 
injury and mortality that exceeds residual PBR is considered to have a 
higher likelihood of adversely affecting rates of recruitment or 
survival, while anticipated serious injury and mortality that is equal 
to or less than residual PBR has a lower likelihood (both examples 
given without consideration of other types of take, which also factor 
into a negligible impact determination). For a species or stock with 
incidental serious injury and mortality less than 10 percent of 
residual PBR, we consider serious injury and mortality from the 
specified activities to represent an insignificant incremental increase 
in ongoing anthropogenic serious injury and mortality that alone (i.e., 
in the absence of any other take) cannot affect annual rates of 
recruitment and survival.
    Regarding the impacts of the specified activities analyzed here, a 
stock-wide PBR for ringed seals is unknown; however, Muto et al. (2018) 
estimate PBR for ringed seals in the Bearing Sea alone to be 5,100 
seals. Total annual mortality and serious injury is 1,054 for a 
residual PBR (r-PBR) of 4,046, which means that the 10 percent 
insignificance threshold is 405 seals. Currently there is one 
authorized MMPA incidental take authorization authorizing takes of 
serious injury/mortality of ringed seals as a result of NMFS Alaska 
Fisheries Science Center fisheries research activities in the Arctic 
(84 FR 46788; September 5, 2019). This authorization authorizes up to 4 
mortalities annually over the 5-year regulation. In the case of the 
Hilcorp-Eni ice roads and ice trails construction, the authorized 
taking, by serious injury and mortality, of 12 ringed seals over the 
course of 5 years, equates to an average of less than 4 seals serious 
injury/mortality annually. This number is far less than the 10 percent 
r-PBR of 405 seals, when considering mortality and serious injuring 
caused by other anthropogenic sources. This amount of take, by 
mortality and serious injury, is considered insignificant and therefore 
supports our negligible impact finding.

Harassment

    Hilcorp and Eni requested, and NMFS proposes, to authorize take, by 
Level B harassment of ringed seals. The amount

[[Page 3006]]

of taking proposed to be authorized is low compared to marine mammal 
abundance. Potential impacts of Hilcorp-Eni's proposed ice roads and 
ice trails construction activities are mostly from behavioral 
disturbances due to exposure to machinery and human activity. The 
potential effect of the Level B harassment is expected to be localized 
and brief. The construction crew would be required to closely monitor 
ringed seals in the vicinity of the project activity and to make sure 
that potential impacts are within the levels that are analyzed.
    In summary and as described above, the following factors primarily 
support our preliminary determination that the impacts resulting from 
this activity are not expected to adversely affect the species or stock 
through effects on annual rates of recruitment or survival:
     Only 12 ringed seals are authorized to be taken by serious 
injury/mortality over 5 years; i.e., less than 0.1 percent of residual 
PBR (considering only a partial abundance estimate);
     No injury by permanent hearing threshold shift is 
expected;
     The only harassment is Level B harassment in the form of 
brief and localized behavioral disturbance and avoidance;
     The amount of takes, by harassment, is low compared to 
population sizes; a
     Critical behaviors such as lairing and pupping by ringed 
seals would be avoided and minimized through implementation of ice road 
Best Management Plans;
     No long lasting modification in marine mammal habitat; and
     Ice roads/trails construction and maintenance would only 
occur between December and May each year.
    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 proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the proposed activity will have a negligible impact on 
all affected marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under Section 101(a)(5)(A) of the MMPA for specified 
activities. The MMPA does not define small numbers and so, in practice, 
where estimated numbers are available, NMFS compares the number of 
individuals taken to the most appropriate estimation of abundance of 
the relevant species or stock in our determination of whether an 
authorization is limited to small numbers of marine mammals. 
Additionally, other qualitative factors may be considered in the 
analysis, such as the temporal or spatial scale of the activities.
    The amount of total taking (i.e., Level B harassment and serious 
injury/mortality) of ringed seal each year is less than one percent of 
the population (Table 12).

        Table 7--Amount of Proposed Ringed Seal Authorized Take Relative to Population Estimates (Nbest)
----------------------------------------------------------------------------------------------------------------
                                                                    Population                      Percent of
                Species                           Stock              estimate       Total take      population
----------------------------------------------------------------------------------------------------------------
Ringed seal...........................  Alaska..................         170,000              27              <1
----------------------------------------------------------------------------------------------------------------

    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals will be taken relative to the population 
sizes of the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    In order to issue an IHA, NMFS must find that the specified 
activity will not have an ``unmitigable adverse impact'' on the 
subsistence uses of the affected marine mammal species or stocks by 
Alaskan Natives. 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.
    As described in the Marine Mammal section of the document, ringed 
seal is one of the key subsistence species that is being harvested by 
native subsistence users. However, the proposed ice roads/trails 
construction and maintenance would occur far from any subsistence 
activities and would be separated temporarily from subsistence 
activities. In addition, Hilcorp and Eni have proposed and NMFS has 
included several mitigation measures to address potential impacts on 
the availability of marine mammals for subsistence use. In addition, 
both Hilcorp and Eni have developed Plans of Cooperation and worked 
with subsistence use communities in the vicinity of the project areas. 
Hilcorp and Eni further indicate that they will sign a Conflict 
Avoidance Agreement to ensure that there will be no unmitigable impact 
on subsistence uses of marine mammals during the proposed ice roads and 
ice trails construction and maintenance.
    Based on the description of the specified activity, the measures 
described to minimize adverse effects on the availability of marine 
mammals for subsistence purposes, and the proposed mitigation and 
monitoring measures, NMFS has preliminarily determined that there will 
not be an unmitigable adverse impact on subsistence uses from Hilcorp 
and Eni's proposed activities.

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
Hilcorp and Eni's ice roads/trails construction and maintenance 
activities would contain an adaptive management component.
    The reporting requirements associated with this proposed rule are 
designed to provide NMFS with monitoring data from the previous year to 
allow consideration of whether any changes are appropriate. The use of 
adaptive management allows NMFS to consider new information from 
different sources to determine (with input from Hilcorp and Eni 
regarding practicability) on an annual or biennial basis if mitigation 
or monitoring measures should be modified (including additions or 
deletions). Mitigation measures could be modified if new data suggests 
that such modifications would have a reasonable likelihood of reducing 
adverse effects to marine mammals and if the measures are practicable.
    The following are some of the possible sources of applicable data 
to be considered through the adaptive

[[Page 3007]]

management process: (1) Results from monitoring reports, as required by 
MMPA authorizations; (2) results from general marine mammal and sound 
research; and (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.

Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally, in this case with the Alaska Region Protected 
Resources Division, whenever we propose to authorize take for 
endangered or threatened species.
    NMFS is proposing to authorize take of Alaska stock of ringed seal, 
which is listed under the ESA.
    The Permit and Conservation Division has requested initiation of 
Section 7 consultation with the NMFS Alaska Region Protected Resources 
Division for the issuance of the LOAs. NMFS will conclude the ESA 
consultation prior to reaching a determination regarding the proposed 
issuance of the authorizations.

Request for Information

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning Hilcorp and Eni's request and the proposed 
regulations (see ADDRESSES). All comments will be reviewed and 
evaluated as we prepare a final rule and make final determinations on 
whether to issue the requested authorizations. This proposed rule and 
referenced documents provide all environmental information relating to 
our proposed action for public review.

Classification

    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
proposed rule is not significant.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
Hilcorp and Eni are the sole entities that would be subject to the 
requirements in these proposed regulations, and Hilcorp and Eni are not 
small governmental jurisdictions, small organizations, or small 
businesses, as defined by the RFA. Both companies are global entities. 
Because of this certification, 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 proposed 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

    Administrative practice and procedure, Alaska, Endangered and 
threatened species, Indians, Marine mammals, Oil and gas exploration, 
Reporting and recordkeeping requirements, Wildlife.

    Dated: January 6, 2020.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For reasons set forth in the preamble, 50 CFR part 217 is proposed 
to be 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., unless otherwise noted.

0
2. Add subpart P to read as follows:
Subpart P--Taking Marine Mammals Incidental to Ice Roads and Ice Trails 
Construction and Maintenance on Alaska's North Slope
Sec.
217.150 Specified activity and specified geographical region.
217.151 Effective dates.
217.152 Permissible methods of taking.
217.153 Prohibitions.
217.154 Mitigation requirements.
217.155 Requirements for monitoring and reporting.
217.156 Letters of Authorization.
217.157 Renewals and modifications of Letters of Authorization.
217.158--217.159 [Reserved]

Subpart P--Taking Marine Mammals Incidental to Ice Roads and Ice 
Trails Construction and Maintenance on Alaska's North Slope


Sec.  217.150   Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to Hilcorp Alaska, LLC 
(Hilcorp) and Eni US Operating Co. Inc. (Eni) and those persons they 
authorize or fund to conduct activities on their behalf for the taking 
of marine mammals that occurs in the areas outlined in paragraph (b) of 
this section and that occurs incidental to construction and maintenance 
of ice roads and ice trails.
    (b) The taking of marine mammals by Hilcorp and Eni may be 
authorized in two Letters of Authorization (LOAs) only if it occurs on 
Alaska's North Slope.


Sec.  217.151   Effective dates.

    Regulations in this subpart are effective from [EFFECTIVE DATE OF 
FINAL RULE] through [DATE 5 YEARS AFTER EFFECTIVE DATE OF FINAL RULE].


Sec.  217.152   Permissible methods of taking.

    Under LOAs issued pursuant to Sec. Sec.  216.106 of this chapter 
and 217.156, the Holders of the LOAs (hereinafter ``Hilcorp'' and 
``Eni'') may incidentally, but not intentionally, take marine mammals 
within the area described in Sec.  217.150(b) by mortality, serious 
injury, Level A harassment, or Level B harassment associated with ice 
road and ice trail construction and maintenance activities, provided 
the activities are in compliance with all terms, conditions, and 
requirements of the regulations in this subpart and the appropriate 
LOAs.


Sec.  217.153   Prohibitions.

    Notwithstanding takings contemplated in Sec.  217.152 and 
authorized by the LOAs issued under Sec. Sec.  216.106 of this chapter 
and 217.156, no person in connection with the activities described in 
Sec.  217.150 may:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or an LOA issued under Sec. Sec.  216.106 
of this chapter and 217.156;
    (b) Take any marine mammal not specified in such LOAs;
    (c) Take any marine mammal specified in such LOAs in any manner 
other than as specified;
    (d) Take a marine mammal specified in such LOAs if NMFS determines 
such taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or

[[Page 3008]]

    (e) Take a marine mammal specified in such LOAs if NMFS determines 
such taking results in an unmitigable adverse impact on the species or 
stock of such marine mammal for taking for subsistence uses.


Sec.  217.154   Mitigation requirements.

    When conducting the activities identified in Sec.  217.150(a), the 
mitigation measures contained in any LOA issued under Sec. Sec.  
216.106 of this chapter and 217.156 must be implemented. These 
mitigation measures shall include but are not limited to:
    (a) General conditions. (1) Hilcorp and Eni must renew, on an 
annual basis, the Plans of Cooperation (POCs), throughout the life of 
the regulations;
    (2) Copies of any issued LOAs must be in the possession of Hilcorp 
and Eni, their designees, and work crew personnel operating under the 
authority of the issued LOAs;
    (3) Prior to initiation of sea ice road- and ice trail-related 
activities, project personnel associated with ice road construction, 
maintenance, use or decommissioning must receive annual training on 
implementing mitigation and monitoring measures;
    (i) Personnel must be advised that interactions with, or 
approaching, any wildlife is prohibited;
    (ii) Annual training must also include reviewing Hilcorp and Eni's 
Wildlife Management Plan; and
    (iii) In addition to the mitigation and monitoring plans, other 
topics in the training must include:
    (A) Ringed seal identification and brief life history;
    (B) Physical environment (habitat characteristics and how to 
potentially identify habitat); (C) Ringed seal use in the ice road 
region (timing, location, habitat use, birthing lairs, breathing holes, 
basking, etc.);
    (D) Potential effects of disturbance; and
    (E) Importance of lairs, breathing holes and basking to ringed 
seals
    (b) General mitigation measures throughout the Ice Road/Trail 
Season (December through May). (1) Ice road/trail speed limits must be 
no greater than 45 miles per hour (mph); speed limits must be 
determined on a case-by-case basis based on environmental, road 
conditions and ice road/trail longevity considerations;
    (2) Following existing safety measures, delineators must mark the 
roadway in a minimum of \1/4\-mile increments on both sides of the ice 
road to delineate the path of vehicle travel and areas of planned on-
ice activities (e.g., emergency response exercises). Following existing 
safety measures currently used for ice trails, delineators must mark 
one side of an ice trail a minimum of every \1/4\ mile. Delineators 
must be color-coded, following existing safety protocol, to indicate 
the direction of travel and location of the ice road or trail;
    (3) Corners of rig mats, steel plates, and other materials used to 
bridge sections of hazardous ice, must be clearly marked or mapped 
using GPS coordinates of the locations;
    (4) Personnel must be instructed to remain in the vehicle and 
safely continue, if they encounter a ringed seal while driving on the 
road;
    (c) Additional mitigation measures after March 1st. In addition to 
the general mitigation measures listed in Sec.  217.154(b), the 
following measures must also be implemented after March 1st:
    (1) Ice road/trail construction, maintenance and decommissioning 
must be performed within the boundaries of the road/trail and 
shoulders, with most work occurring within the driving lane. To the 
extent practicable and when safety of personnel is ensured, equipment 
must travel within the driving lane and shoulder areas.
    (2) Blading and snow blowing of ice roads must be limited to the 
previously disturbed ice road/shoulder areas to the extent safe and 
practicable. Snow must be plowed or blown from the ice road surface.
    (3) In the event snow is accumulating on a road within a 150-ft 
radius of an identified downwind seal or seal lair, operational 
measures must be used to avoid seal impacts, such as pushing snow 
further down the road before blowing it off the roadway. Vehicles must 
not stop within 150 ft of identified seals or within 500 ft of known 
seal lairs.
    (4) To the extent practicable and when safety of personnel is 
ensured, tracked vehicle operation must be limited to the previously 
disturbed ice trail areas. When safety requires a new ice trail to be 
constructed after March 1st, construction activities such as drilling 
holes in the ice to determine ice quality and thickness, must be 
conducted only during daylight hours with good visibility.
    (5) Ringed seal structures must be avoided by a minimum of 150 ft 
during ice testing and new trail construction.
    (6) Once the new ice trail is established, tracked vehicle 
operation must be limited to the disturbed area to the extent 
practicable and when safety of personnel is ensured.
    (7) If a seal is observed on ice within 150 ft of the centerline of 
the ice road/trail, the following mitigation measures must be 
implemented:
    (i) Construction, maintenance or decommissioning activities 
associated with ice roads and trails must not occur within 150 ft of 
the observed ringed seal, but may proceed as soon as the ringed seal, 
of its own accord, moves farther than 150 ft distance away from the 
activities or has not been observed within that area for at least 24 
hours; and
    (ii) Transport vehicles (i.e., vehicles not associated with 
construction, maintenance or decommissioning) may continue their route 
within the designated road/trail without stopping.


Sec.  217.155   Requirements for monitoring and reporting.

    (a) All marine mammal monitoring must be conducted in accordance 
with Hilcorp and Eni's Marine Mammal Mitigation and Monitoring Plan 
(4MP). This plan may be modified throughout the life of the regulations 
upon NMFS review and approval.
    (b) General monitoring measures will be implemented through the 
entire ice road/trail season including during construction, 
maintenance, use and decommissioning.
    (1) If a ringed seal is observed within 150 ft of the center of an 
ice road or trail, the operator's Environmental Specialist must be 
immediately notified with the information provided in paragraph (d) of 
this section.
    (i) The Environmental Specialist must relay the seal sighting 
location information to all ice road personnel and the company's office 
personnel responsible for wildlife interaction, following notification 
protocols described in the company-specific Wildlife Management Plan. 
All other data will be recorded and logged.
    (ii) The Environmental Specialist or designated person must monitor 
the ringed seal to document the animal's location relative to the road/
trail. All work that is occurring when the ringed seal is observed and 
the behavior of the seal during those activities must be documented 
until the animal is at least 150 ft away from the center of the road/
trail or is no longer observed.
    (2) [Reserved]
    (c) Monitoring measures that begin after March 1st.
    (1) In addition to the general monitoring measures listed in Sec.  
217.155(b), the following measures must also be implemented after March 
1st:
    (i) If an ice road or trail is being actively used, under daylight 
conditions with good visibility, a dedicated observer (not the vehicle 
operator) must

[[Page 3009]]

conduct a survey along the sea ice road/trail to observe if any ringed 
seals are within 500 ft of the roadway corridor. The following survey 
protocol must be implemented:
    (A) Surveys must be conducted every other day during daylight 
hours;
    (B) Observers for ice road activities must have received the 
training described in Sec.  217.154(a) and understand the applicable 
sections of the Wildlife Interaction Plan;
    (C) Observers for ice road activities must be capable of detecting, 
observing and monitoring ringed seal presence and behaviors, and 
accurately and completely recording data;
    (D) Observers must have no other primary duty than to watch for and 
report observations related to ringed seals during this survey;
    (E) If weather conditions become unsafe, the observer may be 
removed from the monitoring activity;
    (ii) If a ringed seal structure (i.e., breathing hole or lair) is 
observed within 150 ft of the ice road/trail, the location of the 
structure must be reported to the Environmental Specialist and:
    (A) An observer must monitor the structure every six hours on the 
day of the initial sighting to determine whether a ringed seal is 
present.
    (B) Monitoring for the seal must occur every other day the ice road 
is being used unless it is determined the structure is not actively 
being used (i.e., a seal is not sighted at that location during 
monitoring).
    (d) Reporting requirement at the end-of-season.
    (1) A final end-of-season report compiling all ringed seal 
observations must be submitted to NMFS Office of Protected Resources 
within 90 days of decommissioning the ice road/trail. The report must 
include:
    (i) Date, time, location of observation;
    (ii) Ringed seal characteristics (i.e., adult or pup, behavior 
(avoidance, resting, etc.));
    (iii) Activities occurring during observation including equipment 
being used and its purpose, and approximate distance to ringed seal(s);
    (iv) Actions taken to mitigate effects of interaction emphasizing:
    (A) Which mitigation and/or monitoring measures were successful;
    (B) Which mitigation and/or monitoring measures may need to be 
improved to reduce interactions with ringed seals;
    (C) The effectiveness and practicality of implementing mitigation 
and monitoring measures;
    (D) Any issues or concerns regarding implementation of mitigation 
and/or monitoring measures; and
    (E) Potential effects of interactions based on observation data; 
and
    (v) Proposed updates (if any) to Wildlife Interaction Plan(s) or 
Mitigation and Monitoring Measures.
    (2) In the event a seal is killed or seriously injured by ice road/
trail activities, Hilcorp or Eni must immediately cease the specified 
activities and report the incident to the NMFS Office of Protected 
Resources (301-427-8401) and Alaska Region Stranding Coordinator (877-
925-7773). The report must include the following information:
    (i) Time and date of the incident;
    (ii) Description of the incident;
    (iii) Environmental conditions (e.g., cloud over, and visibility);
    (iv) Description of all marine mammal observations in the 24 hours 
preceding the incident;
    (v) Species identification or description of the animal(s) 
involved;
    (vi) Fate of the animal(s); and
    (vii) Photographs or video footage of the animal(s).
    (3) In the event ice road/trail personnel discover a dead or 
injured seal but the cause of injury or death is unknown or believed 
not to be related to ice road/trail activities, Hilcorp or Eni must 
report the incident to the NMFS Office of Protected Resources (301-427-
8401) and Alaska Region Stranding Coordinator (877-925-7773) within 48 
hours of discovery.


Sec.  217.156   Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, Hilcorp and Eni must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of these regulations.
    (c) If an LOA expires prior to the expiration date of these 
regulations, Hilcorp or Eni may apply for and obtain a renewal of the 
LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, Hilcorp and Eni 
must apply for and obtain a modification of the LOA as described in 
Sec.  217.57.
    (e) The LOAs shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (f) Issuance of the LOAs shall be based on a determination that the 
level of taking will be consistent with the findings made for the total 
taking allowable under these regulations.
    (g) Notice of issuance or denial of an LOA shall be published in 
the Federal Register within thirty days of a determination.


Sec.  217.157   Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec. Sec.  216.106 of this chapter and 
217.156 for the activity identified in Sec.  217.150(a) shall be 
renewed or modified upon request by the applicant, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations (excluding changes 
made pursuant to the adaptive management provision in paragraph (c)(1) 
of this section); and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOAs under these regulations were 
implemented.
    (b) For LOAs modification or renewal requests by the applicants 
that include changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision in paragraph (c)(1) of this section) that do not change the 
findings made for the regulations or result in no more than a minor 
change in the total estimated number of takes (or distribution by 
species or years), NMFS may publish a notice of proposed LOAs in the 
Federal Register, including the associated analysis of the change, and 
solicit public comment before issuing the LOA.
    (c) The LOAs issued under Sec. Sec.  216.106 of this chapter and 
217.156 for the activity identified in Sec.  217.150(a) may be modified 
by NMFS under the following circumstances:
    (1) Adaptive management. NMFS may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after 
consulting with Hilcorp or Eni regarding the practicability of the 
modifications) if doing so creates a reasonable likelihood of more 
effectively accomplishing the goals of the mitigation and monitoring 
set forth in the preamble for these regulations.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA:
    (A) Results from Hilcorp or Eni's monitoring from the previous 
year(s).
    (B) Results from other marine mammal and/or sound research or 
studies.

[[Page 3010]]

    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
will publish a notice of proposed LOA in the Federal Register and 
solicit public comment.
    (2) Emergencies. If NMFS determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in LOAs issued pursuant to Sec. Sec.  216.106 
of this chapter and 217.156, an LOA may be modified without prior 
notice or opportunity for public comment. Notice would be published in 
the Federal Register within thirty days of the action.


Sec. Sec.  217.158--217.159   [Reserved]

[FR Doc. 2020-00393 Filed 1-16-20; 8:45 am]
 BILLING CODE 3510-22-P